770 A.2d 574 (Me. 2001), Cum-00-573, Great Northern Paper, Inc. v. Penobscot Nation

Docket Nº:No. Cum-00-573.
Citation:770 A.2d 574, 2001 ME 68
Opinion Judge:SAUFLEY, J.
Party Name:GREAT NORTHERN PAPER, INC., et al. v. PENOBSCOT NATION et al.
Attorney:Catherine R. Connors, Esq. (orally), Matthew D. Manahan Esq., Brian M. Rayback Esq., Pierce Atwood, Portland, for plaintiffs., Kaighn Smith Jr., Esq. (orally), Gregory W. Sample, Esq., Drummond Woodsum & MacMahon, Portland, Mark A. Chavaree, Esq., Indian Island, Old Town, for defendants., G. Stev...
Case Date:May 01, 2001
Court:Supreme Judicial Court of Maine
 
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Page 574

770 A.2d 574 (Me. 2001)

2001 ME 68

GREAT NORTHERN PAPER, INC., et al.

v.

PENOBSCOT NATION et al.

No. Cum-00-573.

Supreme Judicial Court of Maine.

May 1, 2001.

        Argued: Feb. 13, 2001.

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[Copyrighted Material Omitted]

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        Catherine R. Connors, Esq. (orally), Matthew D. Manahan Esq., Brian M. Rayback Esq., Pierce Atwood, Portland, for plaintiffs.

        Kaighn Smith Jr., Esq. (orally), Gregory W. Sample, Esq., Drummond Woodsum & MacMahon, Portland, Mark A. Chavaree, Esq., Indian Island, Old Town, for defendants.

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        G. Steven Rowe, Attorney General, William R. Stokes, Asst. Attorney General (orally), Augusta, for intervenor State of Maine.

        Dean A. Beaupain, Esq., Millinocket, Loretta M. Smith, Esq., New England Legal Foundation, Boston, MA, for amici curiae Towns of Bucksport, Houlton, Lincoln, Millinocket, Orono, and Patten; Houlton Water Company, Lincoln Sanitary District, Milo Water District, Winterport Sewer District; Maine Chapters of the Pulp & Paperworkers Resource Council, Casco Bay Energy Co., LLC, and Penobscot Frozen Foods, Inc.

        Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.

        SAUFLEY, J.

        [¶ 1] This case requires us to decide whether the Maine Freedom of Access Act, 1 M.R.S.A. §§ 401-410 (1989 & Supp.2000), which is ordinarily applicable to municipalities and other components of state government, is applicable to the Penobscot Nation and the Passamaquoddy Tribe. We conclude that the Act does not apply to the Tribes when they act in their municipal capacities with respect to internal tribal matters. We further conclude that the Act does apply to the Tribes when they interact with other governments or agencies in their municipal capacities.

        [¶ 2] The dispute before us began when Great Northern Paper, Inc., Georgia-Pacific Corporation, and Champion International Corporation filed a complaint pursuant to the Freedom of Access Act, 1 M.R.S.A. §§ 401-410, seeking certain documents in the Tribes' possession. Ultimately, the Superior Court (Cumberland County, Crowley, J.) denied the Tribes' motion to dismiss the complaint and granted the paper companies' motion for summary judgment, thereby requiring the Tribes to turn over the documents requested by the paper companies. We affirm the judgment in part and vacate in part.

        I. BACKGROUND

        [¶ 3] The facts relevant to our analysis are not disputed. Great Northern Paper, Inc., is a Maine corporation that owns and operates pulp and paper mills in Millinocket and East Millinocket, both of which discharge treated wastewater into the West Branch of the Penobscot River, upstream of the Penobscot Indian Reservation. Georgia-Pacific Corporation is a Georgia corporation that owns and operates a pulp and paper mill in Woodland, Maine, which discharges treated wastewater to the St. Croix River, downstream of the Indian Township Reservation of the Passamaquoddy Tribe. The mouth of the St. Croix River is just northwest of the Pleasant Point Reservation of the Passamaquoddy Tribe. Champion International Corporation owns and operates a paper mill in Bucksport, Maine, which discharges treated wastewater into the Penobscot River, downstream of the Penobscot Indian Reservation. All three paper companies have federal and state discharge licenses authorizing their wastewater discharges.

        [¶ 4] Pursuant to the National Pollutant Discharge Elimination System program of the federal Clean Water Act, 33 U.S. C.A. §§ 1251-1387 (West 1986 & Supp.2000), the State of Maine has applied to the U.S. Environmental Protection Agency to gain control over the issuance of all wastewater discharge permits in the state. See 33 U.S. C.A. § 1342(b) (West 1986 & Supp.2000). In response to Maine's application, the Tribes urged the EPA to conclude, in part, that the state is not entitled to regulate the water resources within their territories,

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because they are entitled to be treated like a separate "state." See id. § 1377(e) (West Supp.2000). Upon learning of the Tribes' efforts in that regard, the companies sought information from the Tribes relating to those efforts. 1

        [¶ 5] Through their attorneys, the paper companies served written requests upon the Governors of the Penobscot Nation and the Passamaquoddy Tribe, requesting, pursuant to Maine's Freedom of Access Act, 1 M.R.S.A. §§ 401-410, certain documents relating to the Tribes' efforts to gain regulatory powers over water resources within or adjacent to their borders. Specifically, the companies sought "[a]ll documents," including, without limitation, "notes, records, or minutes of all meetings or proceedings of [the Tribes] ... that relate in any way to":

        1. the regulation of water resources within [the Tribes' territories] and in adjacent waters;

        2. the State of Maine's application to obtain delegation of permitting authority under the Clean Water Act's National Pollutant Discharge Elimination System program;

        3. [the Tribes'] alleged authority to protect or regulate water resources within or adjacent to [the Tribes' territories];

        4. efforts by [the Tribes] to obtain "treatment as a State" status pursuant to Section 518 of the Clean Water Act, 33 U.S.C. § 1377;

        5. efforts by [the Tribes] to have the U.S. Environmental Protection Agency adopt water quality standards different from those of the State of Maine for any waters located in the State of Maine;

        6. any agreements with federal government agencies ... that relate to the protection or study of water or other natural resources.

        [¶ 6] The companies sought these documents "to educate themselves regarding issues affecting their discharge permits." They asserted that they were entitled to the documents pursuant to the "public records" provisions of the Freedom of Access Act, 1 M.R.S.A. § 402(3) (1989 & Supp.2000), and in accordance with Maine's Act to Implement the Maine Indian Claims Settlement, 30 M.R.S.A. §§ 6201-6214 (1996 & Supp.2000) (the Maine Implementing Act), 2 as ratified by Congress pursuant to the Maine Indian Claims Settlement Act of 1980, 25 U.S. C.A. §§ 1721-1735 (West 1983 & Supp.2000) (the Settlement Act).

        [¶ 7] The Tribes denied the companies' requests, responding, in part, that "the Maine Freedom of Access Act is inapplicable to [the Tribes]," because "the application of that law ... would amount to state regulation of [the Tribes'] governmental process, policies, and procedures." The Tribes did offer, however, to provide the companies with copies of records in their possession that are "not confidential under [the Tribes'] laws and policies concerning

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matters of tribal government" and are not "privileged from disclosure to adverse parties under ... discovery rules or rules of evidence."

        [¶ 8] The companies then commenced this action against the Tribes pursuant to 1 M.R.S.A. § 409(1) (1989), claiming that (1) pursuant to 30 M.R.S.A. § 6206(1) (1996) of the Maine Implementing Act, the Tribes have "all of the rights and are subject to all of the duties, obligations, liabilities, and limitations of municipalities"; (2) the Freedom of Access Act, by its terms, "makes all public records, including all records in the possession or custody of ... the State 'or any of its political subdivisions,' available for public inspection"; (3) the documents requested by the companies are "public records"; and (4) by refusing to comply with the companies' requests, the Tribes have violated the Freedom of Access Act. Soon thereafter, the companies filed a motion for partial summary judgment.

        [¶ 9] The Tribes filed a consolidated motion in opposition to the companies' summary judgment motion and in favor of their motion to dismiss the companies' action, arguing that the Superior Court lacked subject matter jurisdiction and that the Act could not, as a matter of law, be invoked against the Tribes, because section 6206(1) of the Maine Implementing Act prohibited direct state regulation of "internal tribal matters." 3 The Superior Court denied the Tribes' motion to dismiss and granted the companies' motion for partial summary judgment. Subsequently, the Superior Court also denied the Tribes' Rule 60 motion for relief from the judgment denying their motion to dismiss. See M.R. Civ. P. 60.

        [¶ 10] In its order granting partial summary judgment, the court ordered the Tribes "to turn over all non-privileged documents as well as logs of all documents claimed to be privileged no later than 14 days from the date of this order." The Tribes failed to turn over any documents or logs of any documents claimed to be privileged, and accordingly, the Tribes were deemed to have waived the claims of privilege. Because the Tribes asserted that the Freedom of Access law could not be applied to them in any way, they did not argue that even if the Act applied, the paper companies' requests were overbroad. Consequently, in the absence of a preserved privilege or a request to tailor the paper companies' demands to protect specific internal tribal matters, the Superior Court entered a final judgment in favor of the companies, granting full relief to the companies on their Freedom of Access requests. 4 After being held in contempt of the court for their continuing failure to comply with that order, the Tribes appealed to this Court. 5

        II. DISCUSSION

        [¶ 11] The applicability of the Freedom of Access Act to Maine's Indian Tribes is a

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matter of first impression. That Act does not explicitly mention the Tribes as covered by, or excluded from, its terms, nor do either of the Indian land claims settlement acts directly address the...

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