Penobscot Nation v. Georgia-Pacific Corp.

• Decision Date: 09 February 2001
• Docket Number: INTERVENOR-APPELLEE,GEORGIA-PACIFIC,No. 00-2265,00-2265
• Citation: 254 F.3d 317
• Parties: (1st Cir. 2001) PENOBSCOT NATION, ET AL., APPELLANTS, v.CORPORATION, ET AL., APPELLEES. STATE OF MAINE, DEFENDANT,, Heard
• Court: U.S. Court of Appeals — First Circuit

Page 317

254 F.3d 317 (1st Cir. 2001)

PENOBSCOT NATION, ET AL., APPELLANTS, v. GEORGIA-PACIFIC CORPORATION, ET AL., APPELLEES.

STATE OF MAINE, DEFENDANT, INTERVENOR-APPELLEE,

No. 00-2265

United States Court of Appeals For the First Circuit

Heard February 9, 2001

Decided June 20, 2001

Amended July 9, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge] Kaighn Smith, Jr. with whom Gregory W. Sample and Drummond Woodsum & MacMahon were on brief for appellants.

Catherine R. Connors with whom Matthew D. Manahan and Pierce Atwood were on brief for appellees.

William R. Stokes, Assistant Attorney General, with whom Andrew Ketterer, Attorney General, and Paul Stern, Deputy Attorney General, were on brief for defendant, intervenor-appellee.

Before Boudin, Chief Judge, Stahl, Senior Circuit Judge, and Lynch, Circuit Judge.

Boudin, Chief Judge

The appellants in this case, the Penobscot Nation and the Passamaquoddy Tribe ("the Tribes"), occupy tribal lands in Maine. The corporate appellees--Georgia-Pacific Corp., Great Northern Paper, Inc., and Champion International Corp. ("the companies")--operate pulp and paper mills that discharge waste water in rivers near or flowing through the Tribes' reservations. A dispute developed between the Tribes and the State of Maine as to the regulation of waste water discharge under the Clean Water Act, 33 U.S.C. §§§§ 1342(b), 1377 (1994).

Concerned that the Tribes would seek to regulate their activities, the companies requested that the Tribes turn over broad categories of documents bearing on such (potential) regulation, including efforts by the Tribes to secure authority to regulate and pertinent agreements between the Tribes and federal agencies. The companies' demand, made on May 10, 2000, was based on Maine's Freedom of Access Act ("the Maine Access Act"), Me. Rev. Stat. Ann. tit. 1 §§§§ 401- 10 (West 1989 & Supp. 2000). Under Maine law, the Tribes are regulated in certain respects as municipalities, and municipalities are covered by the Access Act.

The Tribes then brought the present lawsuit against the companies in federal district court to obtain injunctive and declaratory relief debarring the companies from obtaining the documents they sought. The substance of the Tribes' position was that a settlement between Maine and the Tribes, reflected in both Maine law and a federal statute, precluded state regulation of "internal tribal matters" and that applying the Maine Access Act as sought by the companies would impermissibly regulate the Tribes' internal affairs. This federal suit was filed on May 18, 2000.

On May 22, the day before they were served with the federal complaint, the companies brought suit against the Tribes in the Maine Superior Court. Invoking the Maine Access Act, Me. Rev. Stat. tit. 1 §§ 409(1), the companies demanded that the Tribes produce the documents previously sought. In this state-court suit, the Tribes resisted the demand by asserting, inter alia, that the internal affairs limitation in the settlement meant that the Maine Access Act could not validly be applied to require the Tribes to produce the documents. The same question as to the breadth of the limitation was thus posed in both courts.

The federal district court acted first, ruling on July 18, 2000, that it lacked jurisdiction to entertain the Tribes' suit for declaratory and injunctive relief against the companies. Penobscot Nation v. Ga.-Pac. Corp., 106 F. Supp. 2d 81, 86 (D. Me. 2000) ("Penobscot I"). The court assumed that the internal affairs limitation could comprise a federal-law defense if the companies sued the Tribes under the Maine Access Act; but it ruled that under the well-pleaded complaint rule, the anticipatory assertion of such a defense in a suit by the Tribes did not create a case "arising under" federal law for purposes of the general federal-question jurisdiction statute, 28 U.S.C. §§ 1331, nor under the parallel language of section 1362, the special Indian jurisdiction statute.¹ Id. at 83-84. The court thereafter (on September 26, 2000) denied reconsideration. Penobscot Nation v. Ga.-Pac. Corp., 116 F. Supp. 2d 201, 205 (D. Me. 2000) ("Penobscot II").

Shortly before the denial of reconsideration, the Maine Superior Court ruled on the merits of the companies' suit against the Tribes to enforce the Maine Access Act. Great N. Paper, Inc. v. Penobscot Indian Nation, No. CV-00-329, slip op. at 9 (Me. Super. Ct. Sept. 19, 2000). The state court ruled that the demand for documents did not contravene the internal affairs limitation and ordered the Tribes to produce the documents immediately, save for conventionally privileged documents which needed only to be logged. The Tribes refused, were held in contempt, and appealed to the Maine Supreme Judicial Court. The Tribes also appealed to us from the district court's dismissal of their federal suit.

On May 1, 2001, while the present appeal was pending before us awaiting decision, the Supreme Judicial Court decided the state appeal. Great N. Paper, Inc. v. Penobscot Nation, 770 A.2d 574, 592 (Me. 2001). It ruled that the internal affairs limitation did protect the Tribes from having to produce documents reflecting internal deliberations about the waste water issue, but not from turning over under the Maine Access Act any correspondence between the Tribes and federal agencies on that issue. Id. The court vacated the lower court's judgment and contempt ruling and remanded for production of the narrower category of materials.

Because the district court dismissed for want of federal jurisdiction based on rulings of law, our review is de novo. Mills v. Maine, 118 F.3d 37, 41 (1st Cir. 1997). To sum up our conclusion at the outset, we think that whether the Tribes' claims "arise under" federal law within the meaning of either section 1331 or section 1362 is a difficult question; but the answer is now irrelevant in this case because the Maine Supreme Judicial Court has decided the merits of the underlying dispute, and any further proceedings in the federal district court are controlled by res judicata doctrine and would be pointlessly duplicative.

Understanding the jurisdictional issue requires a short excursion. The Tribes in this case occupy a status, and are subject to a legal framework, that is atypical. The federal Maine Indian Claims Settlement Act ("the Settlement Act"), 25 U.S.C. §§§§ 1721-35 (1994), and the Maine Implementing Act, Me. Rev. Stat. Ann. tit. 30 §§§§ 6201-14 (West 1996 & Supp. 2000), capped a settlement, reached in 1980, between the Tribes and the State of Maine involving disputes as to whether the Tribes should be recognized at all and as to their claimed ownership of large tracts of land in Maine. In the settlement, the Tribes gave up much of their land claims but got recognition, trust funds, title to designated reservations, and certain regulatory powers within those lands. See 25 U.S.C. §§§§ 1723-25; Me. Rev. Stat. Ann. tit. 30 §§§§ 6205- 10.²

However, partly as a result of the Tribes' disputed status, the State of Maine, as part of the settlement, obtained legal authority over the Tribes exceeding the usual state authority over native American tribes. The Tribes were for most purposes "subject to all the laws of the State of Maine." 25 U.S.C. §§ 1721(b)(4); accord id. §§ 1725; Me. Rev. Stat. Ann. tit. 30 §§ 6204. The Tribes were also (with a few exceptions not relevant here) made subject to suit in state courts. 25 U.S.C. §§ 1725(a); Me. Rev. Stat. Ann. tit. 30 §§ 6206(2). And a central provision of the state statute codifying the settlement contains both a general rule and a key qualification:

Except as otherwise provided in this Act, the Passamaquoddy Tribe and the Penobscot Nation, within their respective Indian territories, shall have, exercise and enjoy all the rights, privileges, powers and immunities, . . . and shall be subject to all the duties, obligations, liabilities and limitations of a municipality of and subject 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.

Me.Rev. Stat. Ann. tit. 30 §§ 6206(1).

In the federal Settlement Act, Congress did not expressly include the provision just quoted; but the Settlement Act did state, as "a purpose" of the statute, Congress' intent "to ratify" the Maine Implementing Act "which defines" the relationship between the State of Maine and the Tribes. 25 U.S.C. §§ 1721(b)(3). This court has assumed, albeit without extensive discussion, that the internal affairs limitation on state authority in the Maine Implementing Act is also an overriding federal limitation on Maine authority over the Tribes. Akins v. Penobscot Nation, 130 F.3d 482, 485 (1st Cir. 1997); see also 25 U.S.C. §§ 1735. The companies do not dispute that premise in this case.

This background brings us to the jurisdictional issue decided by the district court. The Tribes, in bringing their federal suit, based their claim of jurisdiction on the premise that their suit "arises under" federal law within the meaning of sections 1331 and 1362. In the Tribes' view, the controlling federal issue in the lawsuit is whether the internal affairs limitation is violated by applying the Maine Access Act to require the Tribes to produce the documents sought. The district court assumed arguendo that the internal affairs limitation was a creature of federal as well as state law. Penobscot I, 106 F. Supp. 2d at 83.

But, as the district court pointed out in its very able decision, Penobscot I, 106 F. Supp. 2d at 82, it is not enough to satisfy traditional "arising under" jurisdiction under section 1331 that a case involve a federal issue....