The First Circuit and this Court previously described in detail the facts in this law suit. Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18 (1st Cir. 2007) ( NN); Nulankeyutmonen Nkihtaqmikon v. Impson, 462 F.Supp.2d 86 (D.Me. 2006) ( NNI). For the purposes of the Court's exhaustion determination, the salient facts are: In May, 2006, the Pleasant Point Passamaquoddy Reservation and Quoddy Bay, LLC formalized a ground lease agreement to allow Quoddy Bay to develop a LNG terminal on a three quarter acre portion of tribally owned land known as Split Rock, pending federal approval of the project.

Plaintiffs have the burden of demonstrating standing, Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), and only one plaintiff needs to have standing for the Court to exercise jurisdiction, Dubois v. U.S. Dep't. of Agric. , 102 F.3d 1273, 1282 (1st Cir.1996). “The doctrine of standing addresses whether a particular plaintiff has ‘such a personal stake in the outcome of [a] controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.’ ” Nulankeyutmonen Nkihtaqmikon v. Impson , 503 F.3d 18, 26 (1st Cir.2007) (quoting Baker v. Carr , 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) ). To establish standing, a plaintiff must show (1) that she or he suffered an injury that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical”; (2) that there is a causal connection between the injury and the challenged action; and (3) that it is likely that the injury will be redressed by a favorable decision.

The relevant facts, which have been discussed in previous decisions, are as follows. Nulankeyutmonen Nkihtaqmikon v. Impson (" NN I"), 462 F.Supp.2d 86, 91-93 (D.Me. 2006); Nulankeyutmonen Nkihtaqmikon v. Impson (" NN II"), 503 F.3d 18, 23-25 (1st Cir. 2007); Nulankeyutmonen Nkihtaqmikon v. Impson (" NN III"), 573 F.Supp.2d 311, 314-15 (D.Me. 2008). In May 2005, the tribal authorities in charge of the Pleasant Point reservation agreed to a lease with Quoddy Bay, LLC ("Quoddy Bay"), that would allow Quoddy Bay to construct a LNG facility on a 3/4 acre portion of the tribe's land known as Split Rock.

klahoma ex rel. Used MotorVehicle Parts Comm'n 327 F.3d 1247 Honeywell Int'l, Inc. v. EPA 374 F.3d 1363 393 F.3d 1315 Indep. Cmty. Bankers of Am. v. Bd. of Govs.Reserve Sys. 195 F.3d 28 Insurance Corp. of Ireland, Ltd. v. des Bauxites deGuinee 456 U.S. 694 Jones v. Bock 549 U.S. 199 La. Energy Power Auth. v. FERC 141 F.3d 364 Lujan v. Defenders of Wildlife 504 U.S. 555 Mahon v. U.S. Dept. of Agriculture 485 F.3d 1247thMcCarthy v. Madigan 503 U.S. 140 McKart v. U.S. 395 U.S. 185 McMellon v. United States 387 F.3d 329 en bancMetro. Washington Airports Auth. v. Citizens forthe Abatement of Aircraft Noise 501 U.S. 252 Michael Reese Hosp. Medical Ctr. v. Thompson 427 F.3d 436 443thMorrison v. Amway Corp. 323 F.3d 920 929 Motor Veh. Mfrs. Ass'n v. State Farm Mut. Auto.Ins. Co. 463 U.S. 29 N.C.U.A. v. First Nat'l Bank Trust, Co. 522 U.S. 479 N.Y. State Club Ass'n, Inc. v. New York 487 U.S. 1 NRDC v. EPA 824 F.2d 1146 en bancNRDC v. SEC 606 F.2d 1031 Nulankeyutmonen Nkihtaqmikon v. Impson 503 F.3d 18stPeoples Gas, Light Coke Co. v. U. S. PostalService 658 F.2d 1182thPub. Citizen v. Dep't of Justice 491 U.S. 440 Rosebud Sioux Tribe v. McDivitt 286 F.3d 1031thRyan v. Johnson 115 F.3d 193 Salmi v. Sec'y of Health Human Servs. 774 F.2d 685 Scheduled Airlines Traffic Offices, Inc. v. D.O.D. 87 F.3d 1356 Seven-Up Co. v. Coca-Cola Co. 86 F.3d 1379thShays v. F.E.C. 414 F.3d 76 Simon v. E.K.W.R.O. 426 U.S. 26 Southwestern Bell Tel. Co. v. City of El Paso 243 F.3d 936 Stauber v. Shalala 895 F.Supp. 1178 Steel Co. v. Citizens for a Better Environment 523 U.S. 83 Sugar Cane Growers Co-op. of Fla. v. Veneman 289 F.3d 89 Summers v. Earth Island Institute 129 S.Ct. 1142 Tel. Data Sys., Inc. v. FCC 19 F.3d 42 Toua Hong Chang v. Minnesota 521 F.3d 828 Tummino v. TortiU.S. v. Students Challenging Regulatory AgencyProcedures 412 U.S. 669 U.S. v. Western Pac. R. Co. 352 U.S. 59 U.S. v. Wilson 290 F.3d 347 Weinberger v. Salfi 422 U.S. 749 Western Radio Services Co. v. Qwest Corp. 530 F.3d 1186thSta

RSIC's proffered caselaw regarding the ‘zone of interests’ is also largely inapposite because those cases deal with appeals of orders dismissing claims entirely. See, e.g.,Nulankeyutmonen Nkihtaqmikon v. Impson , 503 F.3d 18, 25 (1st Cir. 2007) (noting that the district court dismissed for lack of standing). The pertinent portion of Montana Wilderness Ass'n v. Fry , 310 F. Supp. 2d 1127, 1150-51 (D. Mont. 2004), upon which RSIC again relies (ECF No. 96 at 14) similarly involved a ‘zone of interests’ analysis regarding Article III standing, which the Court did not engage in the Prior Order.

D. 11 at 11. See Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, 29 (1st Cir. 2007) (holding that the plaintiffs were entitled to bring their claims against the BIA because the federal government had a duty, through the BIA, to "ensure that the parties to a lease of Indian land have given adequate consideration to the impacts of the lease on . . . neighboring lands and the environment" because that duty was provided for by a federal statute); Miccosukee Tribe of Indians of Florida v. United States, 980 F. Supp. 448, 461 (S.D. Fla. 1997), aff'd sub nom., 163 F.3d 1359 (11th Cir. 1998) (citing cases) (noting that "despite the general trust obligation of the United States to Native Americans, the government assumes no specific duties to Indian tribes beyond those found in applicable statutes, regulations, treaties or other agreements" and upon examination of several applicable statutes and agreements, concluding that the tribe had not "introduced evidence that the [federal agencies] assumed a duty under any of these statutes and agreements to provide the Tribe with the

The approval process must involve "informed decision-making" the aim of which is "to make government officials notice environmental [and other] considerations and take them into account." Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, 28 (1st Cir. 2007). When an undertaking is approved without such informed consideration, the procedural injury alleged by plaintiffs has already occurred.

NEPA and the Administrative Procedure Act therefore afford Klein a procedural right that protects his concrete interests—here, his health, which will be threatened by pollution from the ethanol plant. See Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, 28 (1st Cir.2007); Lujan, 504 U.S. at 573 n. 8, 112 S.Ct. 2130. If the Department's study was inadequate under NEPA then Klein's procedural right was violated and he has suffered an injury.

Relying on Arbaugh, the Court of Appeals for the District of Columbia has held that the requirement of final agency action under section 10(c) of the APA, 5 U.S.C. § 704, is not jurisdictional. Trudeau v. FTC, 456 F.3d 178, 183-84 nn. 6-7 (D.C. Cir. 2006); see also Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, 33 (1st Cir. 2007) (reaffirming the court's pre- Arbaugh determination that the APA's finality requirement is not jurisdictional). We assume without deciding that the Arbaugh rule applies equally to statutory "final agency action" under the APA and non-statutory inquiries under Leedom, rendering both nonjurisdictional.

In cases alleging procedural harms, the immediacy and redressability requirements of standing are relaxed. See Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, 27 (1st Cir. 2007); see also Lujan, 504 U.S. at 572 n.7 (“The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all of the normal standards for redressability and immediacy.”).