STATE OF MAINE SUPERIOR COURT WASHINGTON, ss. CIVIL, ACTION DOCKET NO. CV-05-33
WINIFRED B. FRENCH CORPOFUTION, d/b/a THE QUODDY TIMES, ET AL
Plaintiff
DECISION AND ORDER
PLEASANT POINT PASSAMAQUODDY RESERVATION^, Defendant
This matter is before the court on the complaint of the plaintiffs The Quoddy
Tides and the Bangor Daily News ("Newspapers") for relief under Maine's
Freedom of Access Act ("FOAA"), 1 M.R.S. $5401 et seq., and for a declaratory
j ~ d g m e n t . ~Also before the court is the Reservation's objection to evidence
submitted by the Newspapers at the November 28,2005 trial in this matter.
1 Following a joint motion of Plaintiffs at trial, the Pleasant Point Passamaquoddy Reservation (the "Reservation") was substituted as Defendant in this action in lieu of the Passamaquoddy Tribe. 30 M.R.S.A. 4 6203(6) establishes the Reservation as part of the Passamaquoddy Tribe but with its own council. Defendant argued at sidebar and later in its post-trial brief that the Reservation should have been joined as an indispensable party before trial, and that the Reservation's interests could be prejudiced by being substituted for the Tribe at such a late date. However, counsel for the Tribe and the Reservation was given the opportunity prior to the presentation of Plaintiffs' evidence to reschedule the trial for a later date, after a formal substitution of parties had been made pursuant to M.R. Civ. P. 19, and chose not to do so. Defendant instead reserved the right to present further evidence after the close of the trial.
Count I of the Complaint is styled a "Freedom of Access Appeal" and seeks an expedited trial de novo under the FOAA based upon the Reservation's denial of the Newspapers' requests to inspect and copy certain records of the Reservation. 1 M.R.S.A. 408 (Supp. 2005). Count I1 seeks a declaration that certain meetings of the Reservation Council are public proceedings under the FOAA to which the On September 9, 2005, the Newspapers filed a two count complaint alleging
that the Reservation violated the FOAA by wrongfully denying the Newspapers7
requests for access to records and documents relating to the Reservation's
negotiations of a lease of its land to Quoddy Bay LLC for the development of a
liquefied natural gas facility ("LNG facility") (Count I), and seeking a declaration
that that all meetings of the Reservation or its Council relating to the LNG facility
are "public proceedings" under the FOAA and must be open to the public (Count
11).
A. RESERVATION'S TO EVIDENCE OBJECTIONS AT HEARING OFFERED
The Reservation participated in the evidentiary hearing in this matter subject
to a continuing objection to the relevancy of the testimony and documents offered
into evidence by the Newspapers. The Newspapers sought to establish .the capacity
in which the Reservation was acting by reference to a similar LNG proposal
brought to the Town of Harpswell, and by evidence of the likely impact such a
facility would have on the public outside the borders of the tribal lands. Because
the evidence was offered pursuant to a mixed fact-law question that both parties
Newspapers and the general public have a right of access. As such, both counts are in the nature of appeals from alleged governmental action. M.R. Civ. P. 80B; see Baker's Table, Inc. v. City of Portland, 2000 ME 7 at 711, n. 6; see also Blethen Me. Newspapers, Inc. v. State, 2005 ME 56, 713-6; Bangor Publishing Co. v. Bucksport, 1995 Me. Super. Lexis 8 0 , 1 4 .
Count I1 also seeks a broader declaration that Council meetings at which "other matters not solely related to internal tribal affairs" must also be open to the public. The court concludes that this broad and non-specific claim for relief seeks an impermissible advisory opinion. agree is central to the court's decision, see Part I1 of this opinion, infia, the court
overrules the Reservation's objection.
B. PAPERFRAMEWORK THEGREATNORTHERN
Both parties agree that Great Northern Paper, Inc. v. Penobscot Nation
provides the framework within which the Newspapers' claims are resolved. See
2001 ME 69, 770 A.2d 574. This decision lays out a four-part test for determining
the applicability of state laws to the tribes that are recognized and governed by the
Maine Implementing Act, 30 M.R.S. $5 6201 et seq. Id. at 7 42. The
Passamaquoddy Tribe is recognized and governed by the Act, and the Reservation,
as a political subdivision of the Tribe, is also governed by it.' 30 M.R.S.A. 5 6202.
Under the first prong of the test, the court must determine to what entities
the statute at issue applies. Id. Great Northern Paper established that the FOAA
in particular applies to "public proceedings," which are defined as "the transactions
of any hnctions affecting any or all citizens of the State by a municipality." Id. at
7 43. Therefore, the FOAA applies to municipalities. Id. at 44. Second, the court must determine whether the Reservation is acting in its
municipal capacity. Id. Under the Maine Implementing Act, when the Reservation
acts as a governmental entity, it is acting in a municipal capacity. Id.
4 On June 24, 1996, the Passamaquoddy Tribe and the Reservation entered into an agreement whereby the Reservation was acknowledged as a political subdivision of the Tribe. The third and fourth prongs of the Great Northern Paper test are contingent
upon the outcome of the second. See id. It is only if the Reservation is acting as a
government that the FOAA may apply. See id. And then, even when acting as a
government, application of .the FOAA is limited to proceedings and records that do
not concern internal tribal matters. See id.;see also 30 M.R.S.A. 6206(1).
C. WASTHERESERVATION ACTING AS A GOVERNMENT?
Depending on the circumstances and the activity, a tribe may act in various
distinct capacities - as a sovereign nation, a person or other entity, a business
corporation, or a municipal government. Great Northern Paper at 7 41. For
example, the Law Court found that the Penobscot Nation was acting as a
government when it requested that the EPA and the Federal government treat it
like a state. Id.at 144.
In the instant case, the nature of Reservation's activities is less definitive.
Over a period of months in 2004, the Reservation negotiated a land lease with a
company that intended to build a LNG facility on the leased land. On August 17,
2004, the Reservation voted to continue negotiations with the developer. On May
19, 2005, they reached agreement on the terns of the lease. The Reservation then
sent the proposed lease to the federal government for approval, and within two
weeks, on June 1, 2005, the United States Secretary of the Interior approved the
lease. However, the federal approval process is not yet concluded. The parties
have stipulated that the developer has no right under the lease to use any portion of
the Reservation's land for the LNG project unless and until it completes and files
an Environmental Impact Statement with the Federal Energy Regulatory
Commission ("FERC"), and obtains permits fiom FERC and any other applicable
federal or state authority for the construction and operation of the LNG project.
From these facts alone, it is not possible to say whether the Reservation was
acting in a governmental as opposed to a business capacity. The Newspapers press
the point that, in its negotiations, the Reservation acted in a way that was
substantially similar to the way the Town of Harpswell acted when negotiating the
possibility of a lease of its land to a LNG facility developer. However, the fact that
the Town of Harpswell is a municipality, and that it engaged in negotiations and
vote-taking in a manner that parallels the Reservation's activities, does not mean
that the Reservation could only have been acting in its governmental capacity
when it performed these functions. Private landowners as well as municipalities
engage in land lease negotiations, and business corporations as well as
governmental entities are structured for vote-taking on important issues.
The question remains whether the Reservation used any of its
quintessentially governmental powers in negotiating this lease or in having it
approved. The Reservation submits that it was not acting in its governmental capacity, but rather in its business capacity, and cites to a 1950 Law Court case,
Wilde v. Inhabitants of the Town of Madison, to elaborate on this distinction. See
145 Me. 83, 87-88 (Me. 1950). Wilde notes:
The courts have always recognized that a town may act within the scope of its authority as a town in two capacities. One is its governmental and the other its private capacity, although the line of demarcation is often indistinct and difficult to ascertain. Speaking Generally, the public or governmental capacity of the municipal governmental agency is the discharge of acts or duties for the benefit of the general public. The private capacity is acting in its own matters, such as the acts as owner of property held for profit or advantage. In almost all affairs of local concern some indirect relation may be traced to a matter of health, safety, or other subject of governmental cognizance. The test is not the casual or incidental connection, it is whether there is a duty or an authorization under the statute.
Id. This distinction between the public/governmental and proprietary capacities in
which a town may act is seductive in its simplicity. Although the test
acknowledges that it is sometimes difficult to distinguish these capacities, it
suggests a clear delineation for understanding the capacity in which the
Reservation is acting in the instant case - that is, as "owner of property held for
profit" and, therefore, in its private capacity.
However, subsequent to Wilde, the Law Court has made clear, not only that
the common law doctrine of governmental immunity for which this distinction was
created has been abandoned, see Davies v. City of Bath, 364 A.2d 1269, 1272-3
(Me. 1976), but also that, with specific reference to the question of whether the Passamaquoddy Tribe or Penobscot Nation is acting in its governmental capacity
under the Implementing Act, this old distinction does not apply. See Couturier v.
Penobscot Indian Nation, 544 A.2d 306, 309, fn. 6 (Me. 1988) (stating, "[30
M.R.S.A.] section 6206(2) does not resurrect old distinctions between
'governmental' or nonprofit and 'proprietary' or profit making hnctions of a
municipality formerly existing under Maine sovereign immunity common law.")
Further, the Maine Tort Claims Act, which has now overtaken what was the
common law doctrine of sovereign immunity, creates a unitary definition of
"governmental entity" which explicitly abrogates the old distinction. See 14
M.R.S.A. 6 8102.~
The Law Court did acknowledge in Couturier, however, that a question
exists under the Implementing Act concerning the capacity in which the Penobscot
Nation or Passamaquoddy Tribe is acting, that doesn't exist for towns or school
districts, etc., which are statutorily always designated as governmental entities.
See 544 A.2d at 309, h.6 (stating, "section 6206(2) provides immunity under the
5 This section states in pertinent part:
2. Governmental entity. "Governmental entity" means and includes the state and political subdivisions as defined in subsection 3.
3. PoIitical subdivision. "Political subdivision" means any city, town, plantation, county, administrative entity or instrumentality created pursuant to Title 30-A, chapters 115 and 119, incorporated fire fighting unit that is organized under Title 13-B and is officially recognized by any authority created by statute, quasi-municipal corporation and special purpose district, including, but not limited to, any water district, sanitary district, hospital district, school district of any type, any volunteer fire association as defined in Title 30- A, section 3 151, and any emergency medical service. Maine Tort Claims Act to those functions dealing with the operation of the Tribe
or Nation as a government. The Tribe or Nation is not immune when it is acting in
its business capacity.")
In light of the foregoing history, the court must now attempt to define the
capacity in which the Reservation was acting in this case, cognizant of the fact that
the old distinctions under the common law of governmental immunity are
inapplicable, yet recognizing that some functional distinction must be made. In .the
context of land development, 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. The latter is not a regulatory function.
The Reservation correctly offers that the entity occupying a regulatory role
in this case is the federal Department of the Interior, Bureau of Indian Affairs.
Under the Maine Indian Claims Settlement Act, 25 U.S.C. $5 1721-1735, the
federal government reserved exclusive authority to regulate the alienation of tribal
lands belonging to or held in trust for the Yassamaquoddy Tribe. See 25 U.S.C. §
1724(g) ("Except as [otherwise] provided, any transfer of land or natural resources
within Passamaquoddy Indian Territory.. . shall be void ab initio and without any
validity in law or equity.. . Land or natural resources within the Passamaquoddy
Indian Territory.. . may, at the request of the respective Reservation.. . be leased in
accordance with 25 U.S.C. § 415."); 25 U.S.C. § 415 ("restricted Indian lands ... may be leased, with the approval of the Secretary of the Interior, for.. . business
purposes.") The federal statute applies a good deal of significance to the Secretary
of the Interior's role in approving a tribal lease:
Prior to the approval of any lease pursuant to this section, the Secretary of the Interior shall first satis@ himself that adequate consideration has been given to the relationship between the use of the leased lands and the use of neighboring lands; the height, quality, and safety of any structures or other facilities to be constructed on such lands; the availability of police and fire protection and other services; the availability of judicial forums for all criminal and civil causes arising on the leased lands; and the effect on the environment of the uses to which the leased lands will be subject.
25 U.S.C. 8 415. The court is mindfil that the Secretary of the Interior approved
the Reservation's lease less than two weeks after it was sent to the federal
government. That brief time frame suggests that the Secretary did not play a
substantial role in regulating the project, specifically with regard to providing an
opportunity for participation in the regulatory process to the interested public
outside the tribal land who might be affected by the LNG project.
This is perhaps because the proposed LNG facility is subject to
comprehensive regulation by the Federal Energy Regulatory Commission
("FERC"). See 15 U.S.C. § 717 ("Regulation of Natural Gas Companies").
Pursuant to federal statute, 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. See id., see also
(describing FERC's procedure in overseeing www.ferc.~ov/industries/ln~.asp -
proposals for and construction and maintenance of LNG facilities in the United
States.) In particular, the FERC process requires every applicant to hold an open
house with opportunities for public input prior to issuing approval of a proposed
project. See id. If FERC concludes that the project will have limited adverse
environmental impact, it then issues a draft Environmental Impact Statement
("EIS"), which it mails to all federal, state, and local agencies; public interest
groups; affected landowners; libraries; newspapers; and parties to the proceeding.
See id. Anyone wishing to comment on the draft EIS may do so, and is directed to
the appropriate FERC personnel for receipt of their comments. See id. FERC also
announces and holds public meetings after issuing the draft EIC, for the purpose of
allowing interested parties to present oral comments on it. See id.
The federal legislation and FERC's compulsory regulatory process for
approving construction of LNG facilities demonstrate that the federal government
has wholly taken over the regulation of such facilities. See e.g. Grants Dairy v.
Commissioner, 232 F.3d 8, 15 (1" Cir. 2000) (stating, "federal law may preempt
state law ... when a federal regulatory scheme is so pervasive as to warrant an
inference that Congress did not intend the states to supplement it.") Therefore, to
the extent the leased land will be regulated for compliance with environmental and safety standards, the federal government, and not the Reservation, is acting in the
governmental role. See id. Although Article VII of the lease requires the
developer to submit to ongoing monitoring by the Reservation, such monitoring is
merely an additional restriction on the developer's activities, and cannot, by force
of this preclusive federal activity, occupy a regulatory position. See id.
The lease, however, indicates that the Reservation is acting in a
governmental capacity with respect to taxation of the leased property. Paragraph
3.1.l(f) of the lease in effect promises the developer that the Reservation will
obtain reduced taxation on the Tribe's Tribal Employment Rights Ordinance
("TERO") tax. The TERO tax is ordinarily 3% of the total gross contract price for
civil works on the premises; the lease promises to reduce this tax to 1%. Paragraph
3 . 1 . 1 ( , as well as a separate paragraph at 7.7 devoted to the issue of
"governmental role," maintains a strict separation between the Reservation,
denominated "Landlord" in the lease, and the Tribe as government authority.
Nevertheless, the arrangement indicates a significant overlap in the authority of the
Tribe and the Reservation in this area, enough so that the Reservation can
reasonably be said to be acting as a government with respect to the issue of TERO
taxation. D. Is THERESERVATION'S EXERCISE OF ITSGOVERNMENTAL TERO TAXATION AUTHORITYSUBJECT TOTHEFOAA?
The Maine Implementing Act does not contain a specific exemption from
application of the FOAA for matters of tribal taxation. However, the act's general
exemption fi-om state law for internal tribal matters is applicable to such matters.
See 30 M.R.S.A. fj 6206(1)~. While levying taxes is not part of the illustrative list
of internal tribal matters, it fairly fits under the umbrella of "tribal government."
The TERO tax is levied by .the Tribe on projects constructed within tribal territory.
In addition, under the first circuit's test of internal tribal matters, it is apparent that
the TERO tax is an internal tribal matter. See Akins v. Penobscot Nation, 130 F.3d
482, 486-7 (1" Cir. 1997); see also Great Northern Paper, 2001 ME 68 at W 49
and 55. Lowering the tax is a boon to the developer, but it directly affects only the
Tribe's purse; the tax is levied only on projects on tribal lands, and does not affect
surrounding lands; thus on its face it does not implicate or impair any interest of
the State of Maine. See id. Finally, it is consistent with prior legal understandings
that this tax, internal to projects within the tribal lands, would be an internal tribal
matter. See id. It is does not necessarily follow under the Great Northern Paper
6 This section states in relevant part that the Reservation is subject to:
all the duties, obligations, liabilities and limitations of a municipality of [the State and to] the laws of the State, provided, however, that internal tribal matters, including membership in the respective tribe or nation, the right to reside within the respective Indian territories, tribal organization, tribal government, tribal elections and the use or disposition of settlement fund income shall not be subject to regulation by the State. tests that, because the Reservation has made the lease more attractive to the
developer by contriving to lower the TERO tax on its proposed project, the
Reservation's actions have an effect on members of the public outside of the
borders of tribal lands by making it incrementally more likely that a LNG facility
will eventually be developed at Pleasant Point. See Great Northern Paper, 2001
ME 68 at 7 55. Under the Great Northern Paper rationale, the Reservation's
actions are not internal to the tribe only if they have a direct effect on members of
the public outside of tribal lands. See id. That is not the case here.
Pursuant to M.R. Civ. P. 79(a), the Clerk is directed to enter this Order on
the Civil Docket by a notation incorporating it by reference, and the entry is:
A. As to Count I of Plaintiffs' Complaint, Judgment for Defendant;
B. As to Count I1 of Plaintiffs' Complaint, It is ADJUDGED and DECLARED that, the meetings of Defendant Passamaquoddy Reservation or its Tribal Council regarding and relating to the Reservation's negotiations of a lease of its land to Quoddy Bay LLC for the development of a liquefied natural gas facility are the actions of a business corporation, not a municipality, and, thus, are not public proceedings open to Plaintiffs or to the general public within the meaning of Maine's Freedom of Access Act, 1 M.R.S. $5401 et seq; and, to the extent these meetings include matters relating to the Reservation's governmental function of taxation of the proposed development, they are internal tribal matters exempt from Maine's Freedom of Access Act.
Dated: December 29,2005
Thomas E. Humphrey Chief Justice, Superior Court WINIFRED B FRENCH CORPORATION - P W N T I F F SUPERIOR COURT WASHINGTON, ss . Attorney for: WINIFRED B FRENCH CORPORATION Docket No MACSC-CV-2005-00033 BERNARD KUBETZ - RETAINED 09/09/2005 EATON PEABODY 80 EXCHANGE ST DOCKET RECORD PO BOX 1210 BANGOR ME 04402-1210
Attorney for: WINIFRED B FRENCH CORPORATION VISITING ATTORNEY - RETAINED 11/20/2005 VISITING ATTORNEY
BANGOR PUBLISHING COMPANY - PLAINTIFF
Attorney for: BANGOR PUBLISHING COMPANY BERNARD KUBETZ - RETAINED 09/09/2005 EATON PEABODY 80 EXCHANGE ST PO BOX 1210 BANGOR ME 04402-1210
~ I
Attorney for: BANGOR PUBLISHING COMPANY VISITING ATTORNEY - RETAINED 11/20/2005 VISITING ATTORNEY -
I, vS PASSAMAQUODDY TRIBE - DEFENDANT
Attorney for: PASSAMAQUODDY TRIBE CRAIG E FRANCIS - RETAINED 10/05/2005 PASSAMAQUODDY TRIBES 15 RUNNING BROOK ROAD FAtMOUTH ME 04105