Companies Vying to Drill on Blackfeet Land Lose DC Circuit Fight

The Badger-Two Medicine area near the Blackfeet Indian Reservation and Glacier National Park, rear, in Montana on June 16, 2015. (Tristan Scott/Flathead Beacon via AP, File)

WASHINGTON (CN) — The federal government’s cancellation of an oil and gas lease on land in Montana that is sacred to the Blackfeet Tribe survived scrutiny by the D.C. Circuit on Tuesday. 

Nestled between Glacier National Park and the Bob Marshall Wilderness Complex, just south of the U.S. border with Canada, the Badger-Two Medicine region has long held “immense cultural and spiritual importance” to the Blackfeet Tribe, whose reservation sits just to the northeast, and it is the natural habitat of several threatened species including grizzly bears and elk.

Conservation groups explained last year in a brief to the D.C. Circuit that the pristine mountainous area is central to the creation story of the Blackfeet, and that members of the tribe still come to the land to participate in and prepare for cultural and religious activities.

“The Badger-Two Medicine is essential to the cultural survival of the Blackfeet,” John Murray, a Blackfeet tribal preservation officer, said in a statement Tuesday. “It is our last refuge. The court’s decision today highlights the original error in leasing the Badger and provides great hope that historic mistakes can, at least in part, be corrected.”

But in 1982, a series of oil and gas leases issued by the Bureau of Land Management threatened to change the land. The leases, which allowed for drilling in the Two Medicine area, required holders to receive permission from the federal government before breaking ground.

Tuesday’s ruling by the D.C. Circuit brings an end to a nearly 40-year effort by some companies to drill under one of the leases. Starting in 1983, a group of entities that held one of the leases spent nearly 20 years seeking government approval to drill in the Two Medicine area, navigating a tangle of administrative and legal proceedings that delivered no resolution.

In 2006, two years after the lease was acquired by a company called Solenex, Congress passed a law withdrawing the Two Medicine area from mineral leasing. Declining a tax incentive to relinquish the lease, Solenex filed suit in 2013, claiming the U.S. government had improperly delayed its drilling project. 

Though it won the court fight in July 2015, the Advisory Council on Historic Preservation suggested two months later that the lease be canceled, citing the area’s importance to the Blackfeet Tribe. The Department of the Interior canceled the lease on March 15, 2016.

Solenex revived its lawsuit in response, and in 2018 a federal judge ruled in its favor, saying the agency violated the Administrative Procedure Act by not taking into consideration the company’s reliance interests when canceling the lease.

On Tuesday, a three-judge panel of the D.C. Circuit called that decision baseless, saying the lengthy delay was not by itself enough for the court to justify invalidating the government’s decision to cancel the lease.

“The district court’s reliance on agency delay and Interior’s asserted failure to consider Solenex’s reliance interests finds no purchase in circuit precedent or the administrative record,” U.S. Circuit Judge Patricia Millett wrote for the court. 

Millett found the delays justified due to the land’s unique cultural and environmental significance. She also said they Solenex, which acquired the lease following decades of administrative appeals, litigation and congressional action that held up drilling plans, could easily foresee the delays. 

The 20-page opinion chastises the District Court for relying on “unidentified and unproven reliance interests” and not on any concrete harm the company suffered. Solenex has not invested any money in the lease and the Interior Department had previously offered to refund money the company’s predecessors poured into the project.

“The alleged delay did not, standing alone, render the cancellation decision invalid,” Millett wrote. “Nor did the secretary fail to consider identified reliance interests.” 

Tim Preso, an attorney with Earthjustice who represented a collection of tribal and conservation groups that intervened in the case to oppose the lease, praised the decision Tuesday.

“This ruling rightly rejects Solenex’s effort to resurrect an illegal oil and gas lease that never should have been issued in the first place,” Preso said. “The value of the Badger-Two Medicine region is in its wild beauty and irreplaceable cultural significance for the Blackfeet Nation — not in oil and gas.” 

Derrick Henry, a spokesman for the Bureau of Land Management, said the agency is “pleased” with the court’s decision upholding the Interior Department’s move to cancel the lease.

“The court recognized the lengthy efforts we undertook to make sure our statutory obligations were fulfilled and a fair decision was rendered,” Henry said in a statement. “We will continue to oversee development of oil and gas resources on public lands consistent with our statutory authorities and obligations to the American people.”

The Mountain States Legal Foundation, which represented Solenex, did not immediately respond to a request for comment.

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