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Nkihtaqmikon v. Impson

ELR Citation: 39 ELR 20242
Nos. No. 08-2122, (1st Cir., 10/28/2009) Aff'd

The First Circuit upheld the dismissal of a Native American tribe's claim challenging the Bureau of Indian Affair's (BIA's) decision to allow a plot of tribal land to be leased for the construction and operation of a liquefied natural gas facility. The tribe argued that the BIA's decision violated the National Historic Preservation Act and the APA. As the court noted in a previous appeal, however, the tribe has not exhausted its administrative remedies with the DOI. It held that the exhaustion of agency remedies is "mandatory" under governing precedent, subject only to the possibility that one of the established exceptions to the exhaustion requirement applied. On remand, the district court found no exception applicable and dismissed the case. In this second appeal, the tribe took issue with the court's earlier decision and argued that unless a statute requires exhaustion, judicial review of agency action under the APA, applicable where no other statutory channel of review is provided, does not require exhaustion unless there is both internal agency review available and the final agency action is rendered inoperative during such review. But the court's remand order was quite clear that exhaustion was required unless excused. Once this mandate was issued, it established the law of the case. Blatant error has not been demonstrated and there is no showing that exhaustion of the internal remedies will cause any significant harm, let alone serious injustice.