‘Sacred Lands,’ Or The Almighty Dollar?

William Perry Pendley President, Mountain States Legal Foundation
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Tomorrow, over the objections of the Obama Justice Department, an American Indian tribe in Montana, and radical environmental groups, a federal court in Washington, D.C. will conduct an expedited hearing to determine whether the tribe may deny a Louisiana man’s use of his property, which lies in a national forest, because the land is “sacred.” For over two decades federal officials let the tribe have its way despite a Supreme Court 1988 opinion by Justice O’Connor: “Whatever rights the Indians may have to the use of [a sacred] area … those rights do not divest the Government of its right to use what is, after all, its land.”

The federal government’s decades of stonewalling, federal officials’ willingness to surrender federal land to the tribe, and the tribe’s self-serving, cynical objections shock the conscience. Whether they will shock the judge into allowing the man to exercise his legal rights is yet to be determined.

In 1982, the Bureau of Land Management (BLM) issued Sidney M. Longwell of Baton Rouge, a 6,247 acre oil and gas lease in the Badger-Two Medicine Area of the Lewis and Clark National Forest — south of Glacier National Park, the Great Northern Railroad, and U.S. Highway 2, east of private lands, and southwest of the Blackfeet Reservation in Glacier County in northwestern Montana. In 1983, an application for permit to drill (APD) a single well was submitted to evaluate the potential of that part of the Overthrust Belt, whose unique geology may yield “100 trillion cubic feet of natural gas” there. After repeated reviews under the National Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA), the APD was approved in 1985, 1987, 1991, and finally in 1993 — subject to onerous mitigation measures and a mandate for added reviews if producible quantities of gas were discovered.

Nonetheless, the Clinton administration tried to kill the lease. In 1993, 1994, and 1995, Secretary Babbitt suspended lease activity purportedly so Congress could designate the area as a wilderness, which was impossible — the tribe has reserved rights to hunt and gather wood there. In 1996, Babbitt continued the suspension ostensibly to comply with the NHPA a fifth time, repeated that suspension in 1997, and in 1998 made it indefinite. In 2013, Mr. Longwell sued Secretary Jewell and others to end the decades-long suspension.

The dawdling — maintain federal lawyers — is due to the government’s “diligent” efforts to address the cultural concerns of the Blackfeet Tribe regarding the area. Yet weeks after the 1983 APD’s submission, the tribe passed a resolution to join with an oil company to develop hydrocarbons there. Moreover, in 1983, federal and private scrutiny of the 23-acre drill site and three alternative access routes found no “cultural resources” and declared, “[N]o religious site or activities were identified in the project area.” That same conclusion was reached in 1993. Likewise, the tribe’s sole challenge of the drilling site plan came not on religious or cultural grounds but — from the tribe’s mistaken belief that it owned mineral rights in the area.

Meanwhile, the Forest Service concluded that a “traditional cultural district” (TCD) of some 90,000 acres existed on federal lands beyond the APD drill site, which was designated with the tribe’s concurrence. Less than two years later, the tribe demanded expansion of the TCD’s boundary. To appease the tribe, federal officials bankrolled the tribe and its consultants in generating multiple studies to expand the TCD to 120,000 and then 165,000 acres, thereby enveloping the drilling site but excluding nearby private lands.  If history is any indication, another 30 years of study beckon. Sadly, it is years Mr. Longwell does not have; forty-three when he won the lease, he is 77 today.

Federal officials say they are helpless given the tribe’s position that no oil and gas drilling occur in the area due to its “spiritual and religious power,” but one federal official suggested that a $5 million payment would remove all objections. In fact, in 2013, the tribe published a slick, twelve page prospectus, “Oil and Gas Development Opportunities” on its nearby tribal lands. Federal officials, in addition to sloth, ineptitude, and bad faith in the performance of their duties, have ceded federal lands to the tribe. Whether all that is lawful will be determined in federal district court beginning tomorrow and perhaps eventually by the Supreme Court of the United States.

William Perry Pendley, an attorney, is president of Mountain States Legal Foundation in Denver and author of Sagebrush Rebel:  Reagan’s Battle with Environmental Extremists and Why It Matters Today (Regnery, 2013).