United States First Circuit

In an Indian tribe's challenge to a decision approved by the Bureau of Indian Affairs (BIA) to lease a plot of Passamaquoddy land for the construction and operation of a liquefied natural gas facility, claiming that the BIA approved the lease in violation of the National Historic Preservation Act and the Administrative Procedure Act, dismissal of the case is affirmed where: 1) plaintiff did not present its argument in its first appeal and its request for relief from the mandate that exhaustion was mandatory unless an exception applied requires a showing of both blatant error and a threat of serious injustice if the court adheres to the mandate; and 2) no such showings have been made.

Appellate Information

• Decided 10/28/2009
• Published 10/28/2009

Judges

• BOUDIN, Circuit Judge., Before TORRUELLA, RIPPLE, and BOUDIN, Circuit Judges.

Court

• United States First Circuit

Counsel

• For Appellant:
  
• Teresa B. Clemmer, Environmental and Natural Resources Law Clinic, Vermont Law School, with whom David K. Mears, Environmental and Natural Resources Law Clinic, Vermont Law School, was on brief for appellants.


• For Appellees:
  
• John L. Smeltzer, Department of Justice, Environment & Natural Resources Division, with whom John C. Cruden, Acting Assistant Attorney General, Sara E. Costello, M. Alice Thurston, Department of Justice, Environment & Natural Resources Division, and John Harrington, Assistant Regional Solicitor, Department of the Interior, Office of the Solicitor, were on brief for appellees.