D.C. judge reactivates drilling lease in sacred Badger-Two Medicine
Laura Lundquist/Missoula Current
A Washington, D.C., federal judge has once again ruled that an oil and gas company can drill on a controversial 40-year-old lease in the Badger-Two Medicine region.
Calling 40 years of permit delays “Kafka-esque,” D.C. federal judge Richard Leon last week issued his second ruling giving Louisiana-based Solenex LLC the go-ahead to build roads and do exploratory drilling on a 6,200-acre lease in the heart of the Badger-Two Medicine area.
The Badger-Two Medicine is a 130,000-acre roadless portion of the Helena-Lewis and Clark National Forest adjacent to Glacier National Park, the Bob Marshall Wilderness Complex and the Blackfeet Indian Reservation.
Members of the Blackfeet Nation responded with disgust, having already jumped through hoops to preserve an area that they consider sacred and culturally important. They went so far as to offer to let Solenex drill on reservation land if it would relinquish the lease.
“It’s just more of the same from people who refuse to consult with the Blackfeet Nation about the industrialization of our last cultural refuge,” said John Murray, Blackfeet Tribal Historic Preservation Officer. “We’ve lived under this kind of reckless threat to our sacred lands for decades, and we will never surrender to roads and drill rigs in the Badger-Two Medicine.”
In 1981, Louisiana developer Sidney Longwell applied for the lease. A year later, then-Interior Secretary James Watt approved it and about 200 other leases without conducting studies of how eventual disturbances would affect the environment. Those studies were to be done prior to any digging or drilling.
Drilling permits were issued in 1985 to Fina, Longwell’s designee, but were suspended in 1993 pending further analysis. Along the way, the lease was delayed by numerous Forest Service delays and suspensions, 11 appeals, seven ethnographic studies and one archeological study.
In 2012, Solenex took over after Fina pulled out and started pursuing legal action with the help of William Perry Pendley and the Mountain States Legal Foundation, a Colorado-based property rights organization. Later, Pendley would lead the Bureau of Land Management under the Trump administration but he was never confirmed.
Leon entered the picture in 2013 when Solenex sued to force the federal government to return their exploration permits. After two years, Leon ordered the government to reach a decision, saying the permits should be granted. At the same time, dozens of Blackfeet tribal members and Montana citizens testified in Choteau before the federal Advisory Council on Historic Preservation, citing numerous examples of the region’s historic and cultural qualifications that should bar any development.
The U.S. Department of the Interior responded in 2016 by saying it intended to cancel the leases because they had been improperly issued in violation of environmental law and without required tribal consultation.
But Leon had to approve the DOI decision. Solenex attorneys argued against the cancellation, backed by the Montana Petroleum Association, and in 2018, Leon sent the memorandum back without approval, telling the DOI once again to reinstate the lease and grant a permit. His main reasoning was that the government had taken an inordinate amount of time to cancel the lease and therefore lost its chance.
The Interior Department appealed, backed by the Blackfeet tribe. In the meantime, other oil and gas companies, including Moncrief Oil and Devon Energy, relinquished or retired their leases, leaving Solenex as the only holdout.
In 2020, the D.C. Court of Appeals sent the case back to Leon, saying his reasoning was faulty, because nothing in the law limited the amount of time the government took to evaluate a lease or permit. However, their decision said nothing about whether the lease cancellation was warranted.
“The Secretary’s painstaking efforts to ensure that the agency’s statutory duties were met distinguishes this case from a long period of unexplained agency inaction. A failure to cancel the Lease earlier in the process, with less information, could not have been the sounder or legally compelled course of action,” Justice Patricia Millett wrote in 2020.
So last week, Leon again ruled in favor of Solenex, this time concluding that the law allowed the Interior Secretary to cancel only leases that were issued illegally. But Solenex’s lease was legal, Leon wrote.
“And even if the Lease did suffer from some legal infirmity that would have made the Lease voidable in 1982, the Government subsequently affirmed the lease and, as such, waived any right to cancel it before 2016,” Leon wrote.
Leon said the lease didn’t violate the National Environmental Policy Act, because for 30 years, the government itself had argued its environmental assessment was sufficient. Plus, the law doesn’t require “a full environmental impact statement before issuing a lease in every instance.”
He also concluded the National Historic Preservation Act didn’t apply to the issuance of an energy lease and didn’t require consultation with the tribe in 1982. The act applies to “undertakings” only if federal funds are spent – they weren’t – or if a license is granted and leases aren’t licenses, Leon said. Tribal consultation wasn’t required until the act was amended in 1992. Leon said Solenex’s subsequent drilling activities would be subject to the act, but that comes after the lease was issued. So the leases should stand.
“The only basis for rescission of the lease was the Government’s legal conclusion that issuance of the lease violated NEPA and NHPA. For the reasons, previously discussed, that decision was predicated on an incorrect interpretation of the law,” Leon wrote.
Also under the Historic Preservation Act, the Forest Service designated 165,000 acres of the Badger-Two Medicine – including the Solonex lease - as a Traditional Cultural District in 2002 and designated 5,000 acres around the drill pad as the APE or area where someone could sense some aspect of the drilling operations. Then in 2014, the Forest Service extended the APE across the entire cultural district, based on input from the Blackfeet Tribal Historic Preservation Officer, which put severe limits on any operations. Leon said that went too far.
“Other tribunals have rejected such an expansive approach, finding that reliance on the mere existence of a (cultural district) to reject a permit for energy development is insufficient,” Leon wrote. “The Forest Service adopted wholesale the Blackfeet Tribe’s position that allowing the Solenex venture had ‘the potential to adversely affect the power and spirituality of the entire district’ without explaining what those effects were or how they flowed from Solenex’ proposal.”
Earthjustice attorney Tim Preso represented the tribal and conservation groups that joined the Department of the Interior in appealing the lease reinstatement. He said Leon used a different line of thought to reach the same erroneous conclusion. But since the ruling just came out, Preso couldn’t say yet whether the groups would appeal again.
“We will take every step possible to defend the Badger-Two Medicine from industrial development,” Preso said.
Tyson Running Wolf, a Montana state legislator and former Blackfeet Tribal Business Council member said the Solenex executives and attorneys don’t understand the importance of the Badger-Two Medicine to Blackfeet culture and lifestyle.
“This is a place where original creation still lives,” Running Wolf said. “There are very few of those places left on this Earth. The stakes here go way beyond a couple years of profit for some oil company. This is our inheritance and legacy we’re talking about. This is about our cultural survival as Blackfeet People.”
Contact reporter Laura Lundquist at firstname.lastname@example.org.