Federal appeals court upholds cancellation of Badger-Two Medicine oil, gas leases

By Laura Lundquist - June 17, 2020 - Originally published in the Missoula Current 

An appeals court added one more chapter to a 38-year struggle when it ruled against an oil company that’s demanding to drill in the Badger-Two Medicine, an area along the Northern Continental Divide that is sacred to the Blackfeet Nation.

On Tuesday, the District of Columbia Court of Appeals overturned a federal district judge who ruled in September 2018 that Louisiana-based Solonex LLC should be allowed to drill on the one lease that still persists out of the many that were issued in the Badger-Two Medicine in the early 1980s.

However, the appeals court didn’t weigh in on whether Solonex should be allowed to drill on its 6,200-acre lease. Instead, Justice Patricia Millett said the district judge’s reasons for ruling in favor of Solonex weren’t correct.

The district court had said the Department of the Interior violated the law in March 2016 when it cancelled Solonex’s oil lease after so long a time, about 30 years. But the appeals court disagreed and sent the case back to the district court.

“In short, from the Lease’s inception, the various leaseholders, including Solenex, were aware that the NEPA and Historic Preservation Act analyses would be necessary prior to any surface-disturbing activity and that drilling permits were not guaranteed. 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,” Millett wrote.

Even though it wasn’t a final decision and the Solonex lease is still in limbo, the Blackfeet and Montana conservation groups celebrated the ruling.

“Blackfeet have lived under a cloud of threat and uncertainty for decades, with the risk of our traditional homelands being industrialized,” said John Murray, Blackfeet Tribal Preservation Officer and Pikuni Traditionalist Association leader. “The Badger-Two Medicine is essential to the cultural survival of the Blackfeet. It is our last refuge. The court’s decision today highlights the original error in leasing the Badger and provides great hope that historic mistakes can, at least in part, be corrected.”

Polls show that a majority of Montanans has long opposed drilling in the Badger-Two Medicine. The Rocky Mountain Tribal Leaders Council, National Congress of American Indians, Glacier County Commissioners, retired Glacier National Park superintendents, retired US Forest Service and BLM leadership all opposed the drilling proposals in the Badger-Two Medicine.

Earthjustice attorney Tim Preso represented the tribal and conservation groups that joined the Department of the Interior in appealing the lease reinstatement. The groups include the Blackfeet Headwaters Alliance, Pikuni Traditionalist Association, Glacier-Two Medicine Alliance, Montana Wilderness Association, National Parks Conservation Association and The Wilderness Society

“The value of the Badger-Two Medicine region is in its wild beauty and irreplaceable cultural significance for the Blackfeet Nation — not in oil and gas,” Preso said.

The beauty of the area speaks to many, regardless of heritage or race. It so moved Ryan Busse of the Montana Backcountry Hunters and Anglers that he named his son, Badge, after the region where he often returns to hunt and fish.

“I have long felt that I owed it to this place to fight for what is right, and while that must happen everywhere, the Badger is always central to my motivation,” Busse said. “I salute this decision and am happy to breath a quick sigh of relief, but I know we will never be done fighting to save it and other wild places.”

One of the things that prompted Interior Secretary Sally Jewell to cancel the lease in 2016 was a recommendation from the Advisory Council on Historic Preservation. The advisory council is a small independent agency that oversees preservation of historic places on federal lands under a section of the Historic Preservation Act of 1966. It steps in once an issue is at an impasse.

That certainly applied to the Badger-Two Medicine leases, so the council traveled to Choteau in September 2015 and listened to dozens of locals and tribal members attest to the historic, cultural and spiritual significance of the 132,000 acres that lie between the Bob Marshall Wilderness Complex and Glacier National Park.

Members of the Glacier Two Medicine Alliance were there, as they have been at numerous Forest Service meetings since 1985. The Alliance formed specifically to oppose the leases that were created without a public process by Interior Secretary James Watt during the Reagan administration.

The group was pleased with Tuesday’s ruling.

“While we celebrate this ruling, it is not the complete victory we had sought as the court left open the potential for further legal proceedings. The prospect of future uncertainty only reaffirms the need to permanently protect this area through an act of Congress, so our fish and wildlife can continue to thrive here, so the Blackfeet people can continue to practice their culture here, and so all our children can continue to hunt, hike, or otherwise enjoy this special place. We look forward to continuing to work with the Blackfeet Nation and other friends and allies to see this vision become reality,” the Alliance wrote in a statement.

Sen. Jon Tester may be the one to sponsor that act of Congress. He has supported the Blackfeet in their fight to protect their sacred places and repeatedly called for cancellation of the Badger-Two Medicine leases. After hearing about the appeals court ruling, Tester reiterated his desire to permanently protect the region, as he did with other parts of the Rocky Mountain Front.

“There are some places you just shouldn’t drill, and the Badger-Two Medicine is one of those places. That’s why today’s ruling is a huge win for our public lands that would not have been possible without tireless work by the Blackfeet Tribe and folks on the ground who fought to protect this sacred, breathtaking area. But while today’s battle is won, the fight goes on, and make no mistake – I am going to keep pushing until we make sure the Badger-Two Medicine is permanently protected for generations to come,” Tester said in a statement.

In October, one part of the battle ended when The Wilderness Society announced it had reached a settlement with Moncrief Oil to retire its 7,640-acre lease, the only other one that had been purchased. Prior to that, in April, the Department of the Interior dropped its appeal of district court ruling on the Moncrief lease, leaving the interveners with few options.

Solonex won’t give up on its lease, even though the Blackfeet offered to let Solonex drill on the reservation instead. But the Wilderness Society hasn’t given up either.

“The Wilderness Society has been a partner in this fight for years, working to support the Blackfeet’s goal of canceling all of the illegally issued leases. Today’s announcement cancelling the Solenex lease is a powerful victory for the Blackfeet Nation and good news for all who care about Native American culture and wildlands,” said Wilderness Society president Jamie Williams in a written statement.

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