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Badger Two-Medicine

A train hauls oil into Glacier National Park near the Badger-Two Medicine National Forest in northwest Montana. 

A federal judge has reinstated two energy companies’ leases just outside Glacier National Park.

In two separate but similar decisions Monday, Judge Richard Leon found that the Department of the Interior had erred in canceling leases held by Solenex LLC and W.A. Moncrief Jr. in the Badger-Two Medicine area, a 130,000-acre strip of land between Glacier, the Bob Marshall Wilderness and the Blackfeet Indian Reservation.

The prospect of drilling has long been contentious there. The area “has a lot of cultural and spiritual sites,” along with the sources of Badger Creek and the Two Medicine River, said former Blackfeet Tribal Business Council member Tyson Running Wolf.

Monday’s decisions marked a setback for opponents of drilling there, a win for the leaseholders, and the latest twist in a years-long legal and administrative tangle over drilling on these lands.

It dates back to the early 1980s, when the federal government issued several oil and gas drilling leases in Badger-Two Medicine, only to suspend them for three decades while conducting various environmental reassessments. Then, in 2015, a lawsuit from Solenex prompted Leon to order then-Secretary of the Interior Sally Jewell to submit a schedule for deciding whether to lift the company’s lease.

After more back and forth over this matter, in 2016 and 2017 the Department of the Interior canceled Badger-Two Medicine's last remaining leases – including the Moncrief and Solenex leases, which together totaled more than 10,000 acres.

The Bureau of Land Management had “concluded the Solonex lease was improperly issued in violation of the National Environmental Policy Act and the National Historical Preservation Act,” a press release said at the time, quoting Jewell as saying that "today's action honors Badger-Two Medicine's rich cultural and natural resources and recognizes the irreparable impacts that oil and gas development would have on them."

The agency also referenced the area's cultural importance to the Blackfeet in canceling the Moncrief lease and others.

But it rankled Moncrief and Solenex, which went to court to seek reinstatement of the leases.

“The government illegally placed Solenex in bureaucratic purgatory for two decades,” wrote Christian Corrigan. An attorney with the Mountain States Legal Foundation and counsel for Solenex, Corrigan argued that, “when forced by the court to make a decision [on the leases in 2015], the government arbitrarily and capriciously attempted to eliminate Solenex’s property rights. “

In the separate opinions issued Monday in the U.S. District Court for the District of Columbia, Leon echoed that assessment, ruling that the government’s cancellation of the three-decade-old leases had been “arbitrary and capricious,” and ordering them reinstated.

The plaintiffs cheered the ruling. A statement issued on behalf of W.A. “Tex” Moncrief Jr., his family, and Moncrief Oil said that the company “is pleased that the court has directed the Interior Department to reinstate our federal oil and gas lease in Montana.”

Corrigan called it “a huge victory for the rule of law and government accountability.” He said that the company is still evaluating its options with regards to drilling, but emphasized that “Solenex now has a valid lease and a valid right to drill. Full stop.”

Not so fast, say members of environmental groups that have served as defendant-interveners on behalf of the federal government.

“We have leases clearly back on the landscape today,” said Michael Jamison with the National Parks Conservation Association. “The question is, are those leases active or suspended?

“I think right now, the government is under a previous order to answer the question of what to do with the suspension” — the order that Leon had handed down prior to the leases’ cancellation.

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Tim Preso, an attorney with environmental group Earthjustice who had represented the defendant-interveners in court, shares that view. He also doesn’t see this ruling as the end of the legal line.

Leon’s decision to reinstate the leases leaned heavily on the 30-year period when the leases were suspended and Badger Two-Medicine was under intense regulatory scrutiny. “Even if agencies have the power to rescind decisions made by their predecessors, they must still exercise that power within a reasonable amount of time,” he wrote, charging the government with employing a “‘wait and see’ approach” that “wreaks havoc on the interests of individual landowners.”

In the judge’s view, this outcome helped make the decision “arbitrary and capricious,” but Preso rejected that position. “This idea that delay can be disqualifying has been, in our view pretty well rejected” by case law.

“We’re basically being told if you wait long enough a wrong just goes away,” Jamison said. “There’s no statute of limitations for correcting historic assaults on Native American culture.”

Both he and Preso are still weighing if and when an appeal would be appropriate. “Hopefully they're helping and trying to talk with government officials to push the appeal process hard,” Running Wolf said, commending Preso for his work.

The Blackfeet Nation is not a party to the lawsuit, and Running Wolf stressed that he was not speaking in an official capacity. But having long taken part in Badger-Two Medicine issues, he considers this latest lawsuit to have been mischaracterized as “the big bad government against poor Solenex.”

“I was just totally shocked by the decision,” he said. “I thought [Judge Leon] would be more inclined to see the bigger picture of what it would do to the cultural interests of the Blackfeet.”

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