Judge rules open meetings not required for LNG project

PORTLAND – A Superior Court judge has ruled that negotiations for a proposed liquefied natural gas facility on Passamaquoddy tribal land do not fall under Maine’s Freedom of Access Act and so do not have to be open to the public.

Maine Superior Court Justice Thomas Humphrey ruled last week that the Pleasant Point Reservation acted as a business corporation, not a municipality, in negotiating a land lease with an Oklahoma firm. It therefore did not have to open its meetings about the proposed LNG facility to the press or the public.

The Bangor Daily News and The Quoddy Tides newspapers sued the Pleasant Point Passamaquoddy Reservation in September in Washington County Superior Court seeking access to tribal council meetings when the LNG facility was being discussed. Humphrey presided in November at a jury-waived trial in Portland, where his office is located. His ruling is dated Dec. 29.

In 2001, the Maine Supreme Judicial Court ruled that when a tribe functions in a municipal capacity and acts or interacts with persons or entities other than its tribal membership, such as the state or federal government, the tribe may be engaged in matters that are not internal tribal matters and subject to the FOAA.

Attorneys for the newspapers argued that because state and federal agencies must be involved in the siting and licensing of an LNG facility and because the plan has generated public interest statewide, the tribes’ discussion about the proposed project must be open to the public and the press. The tribe’s attorney argued that the negotiations were internal tribal matters and not subject to Maine’s sunshine law.

“In the context of land development,” Humphrey wrote in his 13-page decision, “the court concludes that the reservation acts in a governmental capacity when it regulates its land, but acts in a business capacity when it merely leases the land.”

Humphrey also accepted the tribe’s argument that there would be ample opportunity for public comment on the process when the licensing process under the Federal Energy Regulatory Commission begins.

“Pursuant to federal statute,” Humphrey said, “FERC oversees all proposals for the construction of LNG facilities within the United States, and provides a comprehensive review process that considers environmental impacts of the proposed development and provides numerous opportunities for public input.”

The siting of LNG facilities in coastal Washington County has become a divisive issue in the last 18 months. Passamaquoddy leaders announced last year that they were partnering with Quoddy Bay LLC, a development group out of Oklahoma, to put an LNG terminal on tribal land at Split Rock with companion storage tanks in either Robbinston or Perry. The tanks would be connected to the terminal by an underground pipe.

The developer has projected that the LNG facility will provide more than $6 million a year to the tribe and will bring hundreds of construction jobs to the area. There would be about 80 “high-paying permanent jobs” starting in 2009 or when the facility has been targeted for completion.

The proposal has split tribal members, friends and neighbors. Some seek the jobs and money such a development would bring; others believe the heavy industry would harm the quality of life around Passamaquoddy Bay.

Diana Graettinger, the BDN reporter based in Calais, and Edward French, editor of The Quoddy Tides, separately filed with the tribe requests for records, correspondence and lease agreements and other documents relating to the tribe’s dealings with Quoddy Bay LLC.

The tribe refused, and the lawsuit was filed.

“That’s a really exciting decision for the tribe and one we were hoping for,” Craig Francis, the tribe’s Portland attorney, said Thursday.

He declined to comment further because he had not yet received the decision.

“It’s a comprehensive and thoughtful decision,” Bangor Daily News attorney Bernard Kubetz of Bangor said Thursday. “The issue … the judge seems to have focused on as a basis for his ruling is not an issue that had been highlighted and stressed by either side. … So, the basis for his ruling comes as a bit of a surprise. I anticipate reviewing it in some detail … and then making [a] decision about what option to pursue.”

That option would be to appeal the case to the state supreme court.