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PORTLAND – Tribal officials were buoyed Tuesday by the reception they received at the Maine Supreme Judicial Court, where arguments in a case pitting them against three paper companies were heard.
Chief Justice Daniel Wathen said the paper companies’ request for all Penobscot and Passamaquoddy tribal documents relating to water quality was “overly broad” and “absurd,” if taken to its extreme, because it could include discussion of all sorts of irrelevant issues such as tribal canoe races.
When the lawyer for the paper companies, Catherine Connors, said she should be allowed to hear tribal discussions of any matters that may affect her, Wathen snapped back: “It’s none of your business.”
Another justice, Leigh Saufley, said it was clear to her that the Legislature had said “tribal government is off limits” to state regulation. “It is not the people’s business occurring when the tribe is governing,” she said.
The case arose last year when three paper companies asked the Penobscot Nation and the Passamaquoddy Tribe for all of their documents relating to water quality regulation. The companies – Great Northern Paper Inc., Georgia-Pacific Corp. and Champion International Corp. – made the request after the tribes contested the state’s application to the U.S. government to issue federal wastewater discharge permits.
The U.S. Environmental Protection Agency last month granted Maine’s request to issue federal permits in all of the state, except “Indian country.” It has asked the U.S. Department of Justice to help it decide what to do in this area.
The tribes have said they want the federal government to retain permitting authority in waters near their lands, because the state is too beholden to the paper companies.
The tribes refused to turn over the documents, and the companies sued, claiming they are entitled to the papers under the Maine Freedom of Access law. The tribes said the access law, which says government agencies must make their meetings and documents available to the public, does not apply to them.
Superior Court Judge Robert Crowley disagreed and sentenced three tribal governors to jail and assessed fines of $1,000 a day against the tribes until the documents were turned over, or his opinion was appealed.
The 45-minute hearing Tuesday was part of the tribe’s appeal to the state’s highest court. The courtroom was filled to its capacity of 75 people, and nearly as many people were sent to another room where they could hear, but not see, the proceedings.
While attorneys for both sides cautioned against reading too much into the questions asked by the six justices who heard the case, the lawyer for the tribes was clearly pleased with the tone of queries from the bench.
“I was pleased with the questions asked,” said Kaighn Smith of Drummond, Woodsum and MacMahon in Portland. He argued that the case was very simple because the state’s Freedom of Access law guarantees the right of the people to have access to the workings of their state agencies. Tribal government clearly isn’t a state agency for the general public.
“The court understands our position. That’s what’s important,” Smith said.
Penobscot Nation Gov. Barry Dana rated the proceedings a 61/2 on a scale of 1 to 10. He said the justices asked some tough questions and the paper companies didn’t have all the answers.
Paper company attorney Connors of Pierce Atwood in Portland argued that the tribes must produce documents when tribal actions affect nontribal members.
Paper company lawyers have said that their ultimate concern is that the tribes want the authority to issue wastewater discharge permits themselves in Indian territory. They fear that the tribes will, therefore, pass regulations that affect the companies without the companies’ input.
“We have a practical interest in seeing documents that affect us,” Connors told the court. She acknowledged that there are times, when the tribes’ actions or decision do not affect outsiders, that tribal government should be free from the intrusion of state government in the form of the access act.
After the hearing, Connors said: “We made our points. I’m sure the court will deliberate on all the issues.”
The state has intervened in the case on the side of the paper companies. Assistant Attorney General Bill Stokes acknowledged that it is difficult to draw a line between “internal tribal matters” when the access act would not apply, and external matters when the act should come into play.
“Not everything the tribe may do … qualifies as an internal tribal matter,” he said.
Echoing the sentiments of tribal leaders, Chief Justice Wathen said the case was a complicated one, because “the problem with the river is that the river is a part of their culture.”
Before and after the hearing, tribal members gathered on the courthouse steps where “honor songs” were sung and some people carried signs. Tribal officials stressed that this fight was about clean water and the Indians’ rights to govern themselves.
“Water is very precious to us,” said June Ranco Lane, who grew up on Indian Island and now lives in Wells. She wore a sign saying “Respect the River” around her neck.
She said her 89-year-old mother used to drink the water of the Penobscot River. Today, it is not safe to eat the fish from the river, she said.
“We are very interested in keeping our waters under our control,” she said. She said tribal members fear that the paper companies will have too much control over state regulation of water quality.
Holding up a bottle of water from the Penobscot River, Dana said, “This is the most sacred thing we have on the planet.”
After the court hearing, he said it was clear that an Indian prophecy had come true. The story is that humankind will come very close to destroying the Earth, but this terrible turn of events will be turned around by the keepers of the Earth, its native people.
“We might not have all the resources the paper companies do … or the state does, but we are right,” Dana said.
The tribes also have argued their case in federal court. Last week, the 1st Circuit Court of Appeals in Boston heard arguments on whether the matter should be decided by a federal, rather than state, court.
The tribes believe it is a federal issue, because the U.S. Congress gave them the right to govern themselves.
The paper companies argued that the Maine Indian Claims Settlement Act and Maine Freedom of Access law are at issue and that they are both state laws, so the matter belongs in state court.
A decision from the other court could come in a matter of weeks or it could take six months or more for the courts to issue their rulings.
If the Maine Supreme Judicial Court rules in their favor, the tribes will continue to pursue the federal case because they believe it is important to establish that Indian tribes have “a key to the federal courthouse door,” Smith said.
He said his clients are prepared to take either case to the U.S. Supreme Court if necessary.
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