Kimball v. LAND USE REGULATION COM'N

• Decision Date: 07 February 2000
• Citation: 2000 ME 20,745 A.2d 387
• Parties: Evelyn KIMBALL et al. v. LAND USE REGULATION COMMISSION et al.
• Court: Maine Supreme Court

745 A.2d 387

2000 ME 20

Evelyn KIMBALL et al. v. LAND USE REGULATION COMMISSION et al.

Supreme Judicial Court of Maine.

Argued September 10, 1999.

Decided February 7, 2000.

Jeffrey Rosenblatt (orally), Berman & Simmons, P.A., Lewiston, Margaret D. Wille (orally), Hebron, John M.R. Paterson, Bernstein, Shur, Sawyer & Nelson, P.A., Portland, for plaintiffs.

Gregory W. Sample (orally), Barbara L. Goodwin, Drummond Woodsum & MacMahon, Portland, for defendant Passamaquoddy Tribe.

Andrew Ketterer, Attorney General, Jeffrey Pidot, Asst. Attorney General (orally), Augusta, defendant for LURC.

Before CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.

SAUFLEY, J.

[¶ 1] The Passamaquoddy Tribe and the Land Use Regulation Commission appeal from a judgment entered in the Superior Court (Kennebec County, Humphrey, J.) vacating LURC's approval of the Tribe's application for the rezoning of a parcel of land in Albany Township. The court concluded that the parcel was not "Indian territory" as defined by 30 M.R.S.A. § 6205 (1996) and therefore concluded, as a matter of law, that a proposed high stakes bingo facility could not be built on that parcel. See 17 M.R.S.A. § 314-A(5) (Supp.1999). We agree with the Superior Court that the Albany land is not yet Indian territory, and we affirm the judgment.

I. BACKGROUND

[¶ 2] In 1980, the State of Maine reached a settlement with the Passamaquoddy Tribe and two other tribes regarding these tribes' land claims against the state. To facilitate the settlement,¹ Congress passed the Maine Indian Claims Settlement Act, which, inter alia, terminated all land claims of the Passamaquoddys against Maine,² established a land acquisition fund, and authorized the United States Secretary of the Interior (the Secretary) to expend portions of this fund to acquire tribal land as trustee for the Tribe. See 25 U.S.C.A. § 1724 (1983).³ As a result of the settlement, the Legislature passed An Act to Implement the Maine Indian Claims Settlement Act (Implementing Act), which in part set up a statutory scheme under which certain parcels of land would be designated "Indian territory." P.L.1979, ch. 732 (codified as amended at 30 M.R.S.A. §§ 6201-6214 (1996 & Supp. 1999)).⁴ Subsequently, the Legislature enacted a provision allowing the Tribe to operate one high stakes bingo or beano facility in the state on Indian territory. See 17 M.R.S.A. § 314-A(5). Because high stakes bingo is not otherwise allowed to operate in the state, whether a parcel qualifies as Indian territory under the Implementing Act directly controls the potential location of any high stakes bingo or beano facility.

[¶ 3] In 1988, the Tribe purchased a parcel of land in Albany Township from a tribal member. On January 7, 1992, following approval by the Maine Indian Tribal-State Commission, a bill was introduced in the Legislature on behalf of the Tribe which amended 30 M.R.S.A. § 6205 to include the Albany parcel among the lands which could potentially become Passamaquoddy Indian territory. See L.D.2081 (115th Legis.1992). The bill was passed and signed into law on March 23, 1992, and became effective on June 30, 1992. See P.L.1991, ch. 720 (hereinafter 1992 Amendment).⁵ It added to the list of parcels of land that could be designated Indian territory "any lands in Albany Township acquired by the Passamaquoddy Tribe before January 1, 1991." See id.

[¶ 4] Section 6205 also contained a preexisting requirement that any such land be transferred to the Secretary in trust and certified as accepted by the Secretary on or before January 31, 1991, in order finally to become Indian territory. See 30 M.R.S.A. § 6205. The 1992 Amendment did not amend that date. The prerequisite of the 1991 approval, therefore, created a conundrum. The Secretary of the Interior could not accept the land in trust until the state formally approved it for the trust. Yet, the state approved the Albany land for placement in trust within a statutory scheme that required, in order for the land to become Indian territory, that the Secretary of the Interior accept the land before the date that the Legislature approved it for placement in trust. Although the Tribe ultimately did transfer the parcel to the Secretary, the acceptance by the Secretary was not accomplished until over two and a half years later, on October 21, 1994.

[¶ 5] In 1997, acting on the assumption that the land in question was Indian territory as required by 17 M.R.S.A. § 314-A(5), the Tribe applied to LURC requesting that the Albany parcel be rezoned as "General Development," and further requesting that a development permit be issued to allow construction of a high stakes bingo facility. Various governmental bodies reviewed and commented on the proposal. Several voiced significant concerns.

[¶ 6] Area residents requested a public hearing. Jeffrey Rosenblatt, on behalf of himself, Evelyn Kimball, and others, petitioned to intervene. LURC received a number of letters opposing the project. In general, the letters raised concerns regarding increased taxes to support public services to the facility, noise, flooding, pollution of the Crooked River, the general incompatibility of the project with existing settlement, and the lack of need for or benefit from the project for the local community. In addition, many letters in favor of the project were received.

[¶ 7] LURC held a two-day hearing at which it considered both prefiled statements and live testimony. Additional post-hearing materials were submitted on both sides of the issue. Rosenblatt sought to keep the record open for the filing of additional facts. After denying Rosenblatt's request, LURC granted both the rezoning request and the development permit. Petitions for judicial review were filed in the Superior Court by Rosenblatt, on behalf of himself and others, and by Evelyn Kimball and Margaret Wille. See 5 M.R.S.A. § 11001-11008 (1989); M.R. Civ. P. 80C. Both the Rosenblatt Petitioners and the Kimball Petitioners filed motions to supplement the agency record in the Superior Court, which were granted in part by the court (Alexander, J.).

[¶ 8] After a hearing, the Superior Court (Humphrey, J.) held that the Albany parcel was not Indian territory under section 6205. Because high stakes bingo would be an illegal use on land that is not Indian territory, the court concluded that LURC's rezoning of the parcel was improper and that LURC had erred as a matter of law when it granted a development permit for an illegal use. The Tribe, LURC, and the Kimball and Rosenblatt Petitioners each appealed from the court's judgment.⁶

[¶ 9] The matter before us requires us to determine whether the Albany land has become Indian territory. To do so, we must determine the consequences of the Legislature's omission of a new deadline for acceptance by the Secretary.

II. DISCUSSION

A. The Statute

[¶ 10] There is no dispute that the casino the Tribe wishes to build may only be placed on "Passamaquoddy Indian territory." Passamaquoddy Indian territory is defined in the Implementing Act as "that territory defined by section 6205, subsection 1." 30 M.R.S.A. § 6203(6) (1996). Section 6205, subsection 1 describes Passamaquoddy Indian territory as including the Passamaquoddy Indian Reservation, see 30 M.R.S.A. § 6205(1)(A), and the first 150,000 acres of land acquired by the Secretary of the Interior for the benefit of the Tribe, see 30 M.R.S.A. § 6205(1)(B). In order to become Indian territory pursuant to section 6205(1)(B), those lands must be identified in section 6205, must be acquired by the Secretary prior to January 31, 1991, must be certified by the Secretary as held for the benefit of the Tribe by January 31, 1991, and must not be held in common with any other person or entity. Id.

[¶ 11] The final paragraph of section 6205 creates a further limitation on the creation of new "Indian territory."⁷ Section 6205(5) provides that no land except land described in subsections 1 through 4 shall become Indian territory except upon: (1) recommendation by the Maine Indian Tribal-State Commission; (2) enactment of a law by the Legislature approving the Commission's recommendation; (3) signature of the legislation by the Governor; and (4) approval by the legislative body of the municipality (when the parcel is located in a city, town, village, or plantation). 30 M.R.S.A. § 6205(5).

B. Applicability of Section 6205(5)

[¶ 12] Because the land does not meet the requirements of the plain language of section 6205(1)(B), the Tribe argues that section 6205(5)

provides a freestanding method for the creation of Indian territory. It further asserts that the elements of this section have been met and that therefore the Albany land has become Indian territory notwithstanding the temporal requirement of subsection 1.

[¶ 13] Subsection 5 provides prerequisites to the creation of new Indian territory "other than [the lands] described in subsections 1, 2, 3, or 4." It appears to place limitations on the creation of new Indian territory and permits the creation of that territory only if its requirements are met.⁸ Contrary to the Tribe's contentions, however, mere compliance with the requirements of subsection 5 will not be sufficient to create new Indian territory if the Legislature places additional conditions on the process. In other words, even if the Tribe's interpretation of subsection 5 is correct, subsection 5 does not obviate the need for compliance with whatever other statutory conditions are imposed by the Legislature.

[¶ 14] When the Legislature enacted P.L.1991, ch. 720, it authorized the addition of "any lands in Albany Township..." acquired "by the secretary prior to January 31, 1991." No lands in Albany Township satisfy that legislative condition and, therefore, the Tribe cannot rely on the legislation signed into law on March 23, 1992, see L.D.2081 (115th Legis.1992), to satisfy the statutory prerequisites of section 6205(5). The Tribe's reliance on the provisions of section...