In an Indian tribe's challenge to the 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, the district court's judgment dismissing the case is affirmed as the 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 the threat of serious injustice if the court adheres to the mandate.
Appeal from the United States District Court for the District of Maine
Decided October 28, 2009
Opinion by: Boudin, Circuit Judge
For Appellant: Teresa B. Clemmer, Environmental and Natural Resources Law Clinic, Vermont Law School, with David K. Mears.
For Appellee: John L. Smeltzer, Department of Justice, Environment & Natural Resources Division, with 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