Tribe Loses Appeal Over Drilling of Its Texas Land

     (CN) – A Native American tribe cannot sue the U.S. government for allowing oil and gas drilling on its aboriginal lands in several east Texas national preserves and forests, the 5th Circuit ruled.
     The Alabama-Coushatta Tribe of Texas sued the United States in Beamount in 2012. It challenged the National Park Service’s issuing of drilling permits in the Big Thicket National Preserve, as well as the permits and leases that the National Forest Service and Bureau of Land Management issued for lands in the Sam Houston and Davy Crockett National Forests.
     The tribe alleged violations of the Administrative Procedures Act and federal common law. Rather than seek monetary damages, the tribe sought an injunction against pending discretionary administrative decisions regarding federal land in its territories.
     A federal judge dismissed the suit for lack of subject-matter jurisdiction, however, concluding that the decisions of the federal agencies were not reviewable.
     Affirming that decision Wednesday, a three-judge panel with the 5th Circuit cited the U.S. Supreme Court’s ban on “programmatic challenges” – challenges that want “wholesale improvement” of an agency’s programs through the courts instead of through Congress or the agency itself.
     Here the tribe failed to allege a specific agency action that sufficiently overcomes the government’s sovereign immunity, according to the 12-page ruling.
     “The tribe’s complaint fails to point to any ‘identifiable action or event,'” Judge Carl Stewart wrote for the court in New Orleans. “Instead, the complaint brings a challenge to the federal management of the natural resources on the land in question. The complaint contends only that all of the leases, permits, and sales administered by multiple federal agencies, including any ongoing action by these agencies that encroach on the tribe’s aboriginal title, are unlawful. These are allegations of past, ongoing, and future harms, seeking ‘wholesale improvement’ and cover actions that have yet to occur. Such allegations do not challenge specific ‘agency action.'”
     Specific permits and leases that the tribe identified in the lawsuit failed to support its challenge, the court found.
     “As the tribe concedes, these numbers do not specifically identify the agency action nor is the tribe contesting these specific actions,” the opinion states. “Rather, the tribe believes that it is entitled to discovery to learn what agency actions are currently pending. Such an argument is unavailing, especially given the fact that information regarding the government’s management of natural resources on public lands is readily available.”
     The tribe did not immediately respond to a request for comment Wednesday afternoon.

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