The federal government has two weeks to either cancel an oil and gas lease in the Badger-Two Medicine area or allow exploration to proceed. In the meantime, people are working in both the courts and Congress to stop the drilling if it’s approved.
After Solonex LLC sued to force federal land agencies to halt a 21-year suspension of its oil exploration lease, District of Columbia District Judge Richard J. Leon in July ordered the Department of the Interior to set a schedule for issuing a decision. That decision is due by Nov. 23.
Anticipating a possible approval of the lease, the Blackfeet Pikuni Traditionalist Association and the Brave Dog Society asked Earthjustice attorney Tim Preso to resurrect a lawsuit filed in Great Falls 20 years ago to stop Solonex from drilling in the Badger-Two Medicine.
Preso responded by filing a motion on Oct. 30 to retrieve the case from the court archives.
The lawsuit has been in limbo after being closed in 1997, three years after it was filed, in response to the government's indefinite suspension of Solonex’s lease.
Now that the lease is being reconsidered, Preso said the lawsuit must be revived as soon as possible, although the Nov. 23 decision will determine whether he’ll have to argue it.
If the lease is cancelled, the Blackfeet won’t lose their spiritual place and the plaintiffs won’t have to update their case.
If the lease is approved, exploratory drilling would begin on July 1, so the plaintiffs wouldn’t have much time to stop it and the legal process is slow to spin up.
On Friday, the case was assigned to Great Falls Federal District Judge Brian Morris, because the original judge, District Judge Paul Hatfield, is now dead.
“Very little had happened (in the 1990s) – we’re basically starting over at square one, given the passage of time. We’ll need to file an amended complaint since there’s been a lot of water under the bridge,” Preso said.
Other plaintiffs who will rejoin the case are the National Wildlife Federation, Montana Wildlife Federation, Montana Wilderness Association, National Parks Conservation Association, C.M. Russell Backcountry Horsemen and the Missouri Breaks Audubon Society.
Solonex owner Sidney Longwell applied for the lease on 6,200 acre in 1982, and it was approved in a contentious action by Interior Secretary James Watt. Since then there’s been lease delays and suspensions, 11 appeals, seven ethnographic studies and one archeological study.
In 2012, the Lewis and Clark National Forest finally concluded that the lease area overlays areas of tribal historical significance. That led to Solonex’s 2013 lawsuit.
Two months ago, the Advisory Council on Historic Preservation, an independent body that advises federal agencies, held a hearing in Choteau to determine whether the Badger-Two Medicine held irreplaceable cultural and historical value. The 42 people that testified as to the cultural importance of the area evidently made an impression on the council. It concluded that development "would result in serious and irreparable degradation" of Badger-Two Medicine.” Only one person, Solonex’s attorney, spoke in favor of drilling in the area.
Since then, several agency leaders have added their voices to that of the Blackfeet Nation, saying that fossil fuel development would not be a good use of national forest land so important to native people and so close to Glacier National Park.
Eight former Glacier National Park superintendents and 19 former U.S. Forest Service leaders wrote letters recommending cancellation of the lease.
On Oct. 30, Agriculture Secretary Tom Vilsack sent a letter to Interior Secretary Sally Jewell saying the Forest Service recommended cancelling the lease because it would be impossible to alleviate the damage that drilling would have on the tribe's spiritual values.
But it’s the Bureau of Land Management that must make the decision because it oversees oil and gas leases. If it cancels the lease, the cancellation process will take until March 30.
It would also set a precedent for the other 18 leases still existing in the Badger-Two Medicine.
With all the agency support, the Blackfeet Nation is faring better in defending its spiritual lands than other tribes. In particular, the Apaches and Yavapais of Arizona are battling to save Oak Flat Campground, a spiritual place on the Tonto National Forest.
Like the Blackfeet, the Arizona tribes should have been able to protect Oak Flat Campground under the American Indian Religious Freedom Act, the National Historic Preservation Act and a 1950s-era executive order.
But last November, Sen. John McCain, R-Ariz., inserted a rider in the 2015 National Defense Authorization Act that bypassed other laws and allowed the transfer of Oak Flat to two copper-mining companies.
The situation has prompted push-back legislation. On Thursday, Sens. Bernie Sanders, D-Vermont, and Tammy Baldwin, D-Wis., introduced the Senate version of the Save Oak Flat Act, which Rep. Raúl Grijalva, D-Ariz., introduced to the House in June.
The bill rescinds McCain’s rider and would reinforce the cultural claims of all tribes, including the Blackfeet. But not in time to save the Badger-Two Medicine.
“We learned a long time ago not to wait for Congress to take action. That’s why we’re taking action. The courts are the great equalizer here, in terms of allowing the people to care about this place to have a say in what happens to it,” Preso said.