Tribe’s LNG meetings remain closed, court rules

PORTLAND – Passamaquoddy documents and meetings about a proposed $500 million liquefied natural gas terminal on tribal land in Washington County need not be open to the public, Maine’s highest court ruled Monday.

The Supreme Judicial Court unanimously upheld a lower court’s ruling that the tribe’s Pleasant Point Reservation was not subject to the state Freedom of Access Act in its negotiations with an Oklahoma developer because tribal officials were acting in a business rather than a municipal capacity.

“We’re really pleased with the outcome,” the tribe’s attorney, Craig Francis of Portland, said Monday.

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

“The ruling is disappointing,” Mark Woodward, executive editor of the Bangor Daily News, said Monday, “because it means important, relevant information concerning a major LNG proposal for Washington County will not be available to the Maine public.

“These development issues are complex, controversial and often become emotionally charged,” he continued. “Maine is faced with difficult choices. Knowledge and information contribute to good public policy decisions, and they’re also strong antidotes for emotionalism.”

Several years ago, the state’s high court ruled that Maine’s Indian tribes were subject to the sunshine law when the tribe acted as a municipality. Meetings and documents about internal tribal matters were off-limits to nontribal members.

In a hearing last month in Portland, attorneys for the two newspapers argued that the public should have access to information about the LNG proposal because in negotiating the lease the tribe acted as a municipality.

“The fact that a municipality like the town of Harpswell could have entered into a similar lease,” Chief Justice Leigh I. Saufley wrote for the court, “and would have been subject to FOAA in doing so, cannot be [determinative] because Harpswell is a municipality at all times and for all purposes, while the reservation is not.”

Attorneys for the newspapers at the hearing last month also argued that by holding a referendum election about the proposed facility, as the town of Harpswell had when an LNG facility was proposed there, the tribe had functioned as a municipality.

“In the circumstances of this case, where the referendum apparently was non-binding, limited to tribe members who lived on the reservation or in surrounding areas, and concerned the endorsement of business negotiations for a commercial lease, we cannot say that the referendum demonstrates that the reservation was acting in its municipal capacity,” the court found.

The newspapers also cited the controversial nature of the project as a reason that meetings and documents should be available to the public.

The court brushed aside that argument.

“A tribe’s actions in a nongovernmental capacity cannot be rendered governmental merely by resulting controversy,” Saufley wrote.

Bernard Kubetz, the Bangor attorney who argued on behalf of the Bangor Daily News, said Monday that he understood the court’s rationale but was disappointed that the justices didn’t give more weight to the statewide importance of the LNG issue.

“If the process was conducted properly and if there were legitimate reasons for the tribe to decide to enter into a lease with a private developer to pursue an LNG facility, then there should be nothing to hide and no reason to hide it,” Kubetz said.

“Closed doors and withheld records always raise suspicions,” he said, “and if the process was clean, then there should have been no withholding of records or locking of doors in the first place.”

Francis countered that “tribal meetings all are open to the tribal public.”

“We have public access, but it’s limited to tribal members,” he said Monday. “I think that for purposes of making comparisons of tribal governments to municipalities, it’s difficult. It’s not easy just to make an across-the-board comparison between a municipality and a sovereign Indian tribe.”

Woodward also said Monday that he was disappointed that the court’s ruling did not shed more light on what tribal meetings are subject to FOAA.

“We also hoped the decision would advance our understanding of the ground rules for media access to information regarding tribal government’s proceedings and deliberations,” he said. “We’ll have to examine the court’s decision more closely, but at first reading it doesn’t appear to offer much guidance for the future.”

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.

Humphrey 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 high court agreed to hear the case in April on an expedited or fast-tracked schedule, which is why it took just over a month for it to issue a decision.

Six of the seven high-court justices decided the case. Justice Susan Calkins did not attend arguments in the case. No reason was given last month for her recusal.

The Associated Press contributed to this report.