High court mulls BDN case on access to tribal meetings

PORTLAND – How the Maine Supreme Judicial Court defines the functions of governing most likely will determine when Maine’s Indian tribes are subject to the state’s Freedom of Access Act, justices on the state’s high court indicated Wednesday.

Justices asked pointed questions Wednesday about what constitutes governing when they heard oral arguments in the appeal of a Superior Court verdict that found the Pleasant Point Passamaquoddy Reservation did not have to give reporters access to its tribal meetings or minutes of those meetings.

The Bangor Daily News and the Quoddy Tides sued the reservation when its reporters were told they could not attend tribal council meetings or see the minutes of meetings where a proposed liquefied natural gas terminal was discussed.

Because the court agreed to hear the case on an expedited or fast-tracked schedule, the justices should issue their decision fairly quickly, attorney Bernard J. Kubetz of Bangor, representing the BDN, predicted after the hearing.

The newspapers sued the reservation in September in Washington County Superior Court seeking access to tribal council meetings when the LNG facility was being discussed. Superior Court Justice Thomas Humphrey presided in November at a jury-waived trial in Portland, where his office is located.

He ruled in January 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 newspapers appealed that decision asking the state’s high court to refine a decision it issued in 2001.

In Great Northern Paper Inc. vs. the Penobscot Nation, the 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 state’s open meeting law.

Attorneys for the newspapers argued Wednesday at the Cumberland County Courthouse that tribal council discussions about the lease agreement should have been open to the public due to:

. The controversial nature of the project.

. Its impact on the community.

. The tribal referendum that was held to determine whether the project should go forward.

“Aren’t we looking for the core [definition] of government when we decide whether the tribe is acting as a municipality?” Chief Justice Leigh I. Saufley asked Kubetz.

“Yes,” he replied. “And I would equate political activities and impact on the broad citizenry to indicate when a governmental entity is acting as a governmental entity as opposed to simply a business corporation.”

Craig Francis, the reservation’s Portland attorney, said the tribe’s actions concerning the LNG lease were not a governmental function, but a business function, so not subject to the FOAA. He compared the tribal referendum to a company taking a vote of its stockholders to determine the direction the firm might take.

“The issue of negotiating the terms of an economic deal doesn’t have any impact on the outside community,” Francis told the court. “It’s the ultimate construction and operation of the facility that’s going to ultimately have [that] impact. But all of that process is governed by the Federal Energy Regulatory Commission, and it’s all open and it’s actually ongoing right now.”

Saufley pressed Francis to define the functions of governing in which the tribe might engage that would fall under the municipal function umbrella.

Francis replied that what is a tribal function and what is not is a “complicated and murky” area of the law that is evolving. He said that in the near future, the court would have to continue to distinguish between the two on a case-by-case basis.

Jeffrey Pyle, the Boston attorney representing the Quoddy Tides, told justices they should consider to whom the land was being leased and the effect the lease might have on the general public in determining whether the tribe is operating in a governmental or business capacity.

Six of the seven justices will decide the case. Justice Susan Calkins did not attend arguments in the case. No reason was given Wednesday for her recusal.