State, tribes end standoff on water lawsuit

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BANGOR – Gov. Angus King met Tuesday with officials of two Maine Indian tribes to discuss settling a long-standing lawsuit about water quality regulation and tribal sovereignty. The case, which pits the Penobscot and Passamaquoddy tribes against paper companies and the state, recently went all the way to the U.S. Supreme Court, which refused to hear it.

King and other top state officials met with tribal leaders for nearly three hours behind closed doors in the city council chambers at Bangor City Hall. It was the first such meeting between state and tribal officials since the two became embroiled in a legal battle two years ago.

The battle centers on whether the state or federal government should regulate water quality on tribal land. As part of the larger battle, three paper companies filed a lawsuit seeking documents about water quality from the tribes. Three tribal governors were sentenced to jail in 2000 for not producing the documents.

Tuesday’s meeting was meant to begin the search for a way to end the legal wrangling, King said after the private session.

Although he termed the meeting “very preliminary,” King said it was productive.

“We didn’t come to any conclusions,” the governor said. Instead, the participants identified issues to be discussed at greater length by a subcommittee of state and tribal officials that was set up Tuesday.

While not identifying a specific timetable, King, who has less than a year left in office, said he hoped resolution of the matter would move “fairly quickly.”

The aim, he said, was to find a way for the state to be delegated the authority to regulate water quality statewide under the federal Clean Water Act.

The fight started when the state asked the U.S. Environmental Protection Agency for sole authority to issue wastewater discharge licenses under the federal act, as is done in most other states. The Penobscot and Passamaquoddy tribes said they want the EPA to retain permitting authority on tribal lands, because the state is too beholden to paper companies.

Last year, the EPA granted the state full permitting authority in most areas of Maine. The agency deferred a decision on who should issue the permits in “Indian country,” and has asked the U.S. Department of Justice to review the matter.

On Tuesday, an attorney for the EPA said his agency still was in consultation with the Justice Department on the matter, and he didn’t know when a decision would be forthcoming.

Tribal officials said they believed Tuesday’s meeting marked a fresh start for state and tribal relations. The tribes long had said they wanted to meet with King but only sent a letter formally requesting such a meeting a couple of weeks ago.

“We’re starting a better relationship,” said Richard Doyle, governor of the Passamaquoddy tribe at Pleasant Point. “That’s a good thing.”

He said the tribes, too, wanted to put the legal wrangling behind them.

“We want to focus on protecting Mother Earth. The other stuff is distracting,” Doyle said.

In addition to King and Doyle, the meeting was attended by Attorney General Steven Rowe, Department of Environmental Protection Commissioner Martha Kirkpatrick, Penobscot Nation Gov. Barry Dana and tribal environmental officials among others.

Representatives of the paper companies that filed the lawsuit, later joined by the state, were not invited to attend the meeting, King said. He said it was more productive to start the process with just the state and tribes talking and that other interested parties, such as the paper companies and towns on the Penobscot and St. Croix rivers that could be affected by a change in entities that regulate water quality there, would be brought in later.

Attorneys for the paper companies could not be reached for comment Tuesday.

The case originally involved Champion International Corp., Great Northern Paper Co. and Georgia-Pacific Corp.

Champion merged with International Paper Co. last year, and IP dropped out of the dispute last October, because its Bucksport mill is downriver from the area in dispute.

Earlier this year, the company ceased lumber operations at mills in Passadumkeag and Costigan. Both are upstream from Indian Island on the Penobscot River in the disputed territory.

Georgia-Pacific since has sold its Washington County mill to Domtar, a Canadian company.

The case emerged from several intertwined issues. In addition to the water quality dispute, the Penobscot Nation and the Passamaquoddy Tribe contend, that as sovereign entities they are not subject to the state’s Freedom of Access law, and, therefore, do not have to share documents with the paper companies.

The fight is also about the meaning of the 1980 Maine Indian Claims Settlement Act. Under the act, the paper companies have argued, the tribes are to be treated as municipalities and must make the vast majority of their documents available to the public. The tribes argued that regulating water quality is an internal tribal matter and not subject to review by outsiders.

The Maine Supreme Judicial Court ruled last fall that, in most instances, tribal government is to be treated like a municipal government and that most of the documents requested by the paper companies must be turned over. It did not decide how some documents, such as minutes and notes from tribal council meetings, should be treated. It asked the Superior Court to reconsider this issue.

The tribes appealed the Maine supreme court ruling to the U.S. Supreme Court, which refused to take the case late last year.

That means the case is back before Superior Court Justice Robert Crowley. Two years ago, the justice sentenced the three tribal governors to jail for not turning over the documents requested by the paper companies. The sentence was put on hold while the legal battle proceeded.

Unless the suit is settled, it is now up to Crowley to decide what documents must be turned over and what sanctions, such as jail time, would be applied if the tribes do not comply with his orders.