Penobscot Nation v. Georgia-Pacific Corp., No. 00-101-B-H.

• Decision Date: 26 September 2000
• Docket Number: No. 00-101-B-H.
• Citation: 116 F.Supp.2d 201
• Parties: PENOBSCOT NATION and Passamaquoddy Tribe, Plaintiffs, v. GEORGIA-PACIFIC CORPORATION, Great Northern Paper, Inc. and Champion International Corporation, Defendants, and State of Maine, Intervenor.
• Court: U.S. District Court — District of Maine

116 F.Supp.2d 201

PENOBSCOT NATION and Passamaquoddy Tribe, Plaintiffs, v. GEORGIA-PACIFIC CORPORATION, Great Northern Paper, Inc. and Champion International Corporation, Defendants, and State of Maine, Intervenor.

No. 00-101-B-H.

United States District Court, D. Maine.

September 26, 2000.

Kaighn Smith, Jr., Melissa A. Hewey, Gregory W. Sample, Drummond, Woodsum & MacMahon, Portland, ME, for Penobscot Nation, plaintiff.

Catherine R. Connors, Matthew D. Manahan, Pierce, Atwood, Portland, ME, for Georgia-Pacific Corporation, defendant.

William R. Stokes, Assistant Attorney General, Augusta, ME, for Maine, State of, intervenor-defendant.

ORDER ON PLAINTIFFS' MOTION FOR RECONSIDERATION

HORNBY, Chief Judge.

On July 18, 2000, I dismissed the plaintiff Tribes' claims for declaratory and injunctive relief on the basis that, as a result of the well-pleaded complaint rule, there was no federal subject matter jurisdiction under either the general federal question jurisdiction statute, 28 U.S.C.A. § 1331 (West 1993), or the Indian jurisdictional statute, 28 U.S.C.A. § 1362 (West 1993). See Penobscot Nation v. Georgia-Pacific Corp., 106 F.Supp.2d 81, 82 (D.Me.2000).

The Tribes have moved for reconsideration, arguing that federal jurisdiction exists under § 1362 regardless of the wellpleaded complaint rule because the United States could have brought the lawsuit as trustee for the Tribes before enactment of § 1362; and that I have misapplied the well-pleaded complaint rule as it applies to both § 1331 and § 1362 in treating the Tribes' federal issue as a defense. The motion is DENIED. The Tribes' argument about the trustee power is not supported by the caselaw.¹ As for the well-pleaded complaint rule, I conclude that my Order correctly and logically applied Supreme Court and circuit precedents that deal explicitly with that principle. See Penobscot Nation, 106 F.Supp.2d at 82-83. I recognize that the result in a recent First Circuit decision seems to be contrary to how I applied the well-pleaded complaint rule. But the well-pleaded complaint rule was never raised in that case by the parties or the courts at either the trial or the appellate level.

This dispute has arisen because the defendant paper companies are using Maine's Freedom of Access Law, 1 M.R.S.A. §§ 401-410 (West 1989 & Supp. 1999), to seek access to certain of the Tribes' records about water resources and quality. The plaintiff Tribes filed this lawsuit in federal court invoking federal law and seeking declaratory and injunctive relief to prevent the paper companies from pursuing the application of the state Freedom of Access Law in state court. I use the Tribes' own characterization of the dispute in the opening lines of their memorandum of law in opposition to the paper companies' motion to dismiss:

This action arises out of [the paper companies'] attempt to impose the regulatory provisions of Maine's Freedom of Access Laws, 1 M.R.S.A. §§ 401 et seq. ("MFAL") upon the Penobscot Nation and the Passamaquoddy Tribe (the "Tribes"). When [the paper companies] sought to impose MFAL on the Tribes, the Tribes commenced this action on May 18, 2000 to protect their right to be free from state regulation pursuant to the Maine Indian Claims Act of 1980, 25 U.S.C. § 1721 et seq. (the "Settlement Act").

Pls.' Mem. in Opp'n to Defs.' Mot. to Dismiss or Stay at 1. Similarly, in their motion for reconsideration, the Tribes concede that "state law creates Defendants' cause of action under MFOAL," but argue that "[e]ven though" that is so, federal jurisdiction exists because the federal issue of tribal sovereignty will inevitably come up in the lawsuit. Pls.' Mot. for Recons. of Order on Defs.' Mot. to Dismiss and Vacate J. at 7. For the reasons I set forth in my Order of July 18, 2000, conventional application of the well-pleaded complaint rule treats the Tribes' federal issue as a defense to the paper companies' state law claim. See Penobscot Nation, 106 F.Supp.2d at 82-83. The result is that federal jurisdiction is missing.

To avoid the well-pleaded complaint rule, the Tribes argue that the paper companies' access effort itself depends on federal law and thereby provides federal jurisdiction. That is so, they say, because the state Implementing Act, 30 M.R.S.A. §§ 6201-6214 (West 1996), on which the paper companies rely to treat the Tribes as subject to certain municipal responsibilities like Maine's Freedom of Access Law, has an explicit exception or proviso: "provided, however, that internal tribal matters ... shall not be subject to regulation by the State." 30 M.R.S.A. § 6206(1). The First Circuit has held that interpretation of this "tribal matters" exception raises a question of federal law. See Penobscot Nation v. Fellencer, 164 F.3d 706, 708 (1st Cir.), cert. denied, 527 U.S. 1022, 119 S.Ct. 2367, 144 L.Ed.2d 771 (1999); Akins v. Penobscot Nation, 130 F.3d 482, 485 (1st Cir.1997). The Tribes conclude, therefore, that the paper companies' claim against them will have to involve consideration of that federal issue and, as a result, confers federal jurisdiction over the Tribes' declaratory judgment lawsuit.

Under well-pleaded complaint analysis, however, that is not enough. The paper companies are asserting that Maine's Freedom of Access Law (a state statute) compels the Tribes to open their records as if they were municipalities because of language in the Implementing Act (another state statute), making the Tribes "subject to all the duties, obligations, liabilities and limitations of a municipality of and subject to the laws of the State." 30 M.R.S.A. § 6206(1). Now the other language in the Implementing Act that the Tribes point to (the "provided, however" language) well may be interpreted to give them a successful defense to the coverage the paper companies assert—a federal defense, according to Fellencer and Akins, because Congress ratified it. But under well-pleaded complaint analysis it still is a defense to the paper companies' claim that Maine's Freedom of Access Law applies to the Tribes.² Thus, it does not confer federal jurisdiction under the well-pleaded complaint rule; instead, it is the classic case where jurisdiction does not exist.

The Tribes argue that the paper companies cannot make the case that the state Freedom of Access Law applies, however, without using federal law, and therefore that jurisdiction exists even under the well-pleaded complaint rule. The argument goes as follows. The Freedom of Access Law, by its terms, applies to municipalities. It is the separate Implementing Act upon which the paper companies must rely to hold the Tribes to some of the responsibilities of municipalities. But the Implementing Act could not become effective without ratification by Congress.³ Therefore, the paper companies' claim presents a federal claim under the well-pleaded complaint rule.

This argument fails because of Justice Cardozo's 1936 opinion in Gully v. First National Bank. Quoting in part from an earlier decision, he said:

`The federal nature of the right to be established is decisive—not the source of the authority to establish it.' Here the right to be established is one created by the state. If that is so, it is unimportant that federal consent is the source of state authority. To reach the underlying law we do not travel back so far. By unimpeachable authority, a suit brought upon a state statute does not arise under an act of Congress or the Constitution of the United States because prohibited thereby. With no greater reason can it be said to arise thereunder because permitted thereby.

299 U.S. 109, 116, 57 S.Ct. 96, 81 L.Ed. 70 (1936) (citation omitted). The same conclusion applies here. The fact that Congress ratified what Maine did and thereby permitted Maine to legislate concerning the Tribes—or that it prohibited Maine from doing so—does not suffice to let the Tribes meet the test for "arising under" federal jurisdiction.⁴

But as I have said, the outcome of one recent First Circuit decision is difficult to square with this analysis. In Fellencer, the First Circuit ruled that the Penobscot Nation was entitled to a federal court injunction against the state court lawsuit of a terminated female employee who was suing the Nation for state-prohibited sex discrimination. See 164 F.3d at 707. The Nation's federal "claim" was that federal law—specifically, the "internal tribal matters" exception that the Tribes also assert here—prevented Maine courts from applying the Maine Human Rights Act. Under well-pleaded complaint analysis, that "claim" sounds like a federal defense that the Nation could have asserted in state court—not enough to confer federal jurisdiction. Nevertheless, without mentioning the well-pleaded complaint rule, Fellencer assumed that jurisdiction existed. I have examined the trial court record from this District and discovered that the wellpleaded complaint rule was never briefed. The lawyer who represented the Penobscot Nation in that case is the lawyer for the Tribes in this case, and he informed me at oral argument that the well-pleaded complaint rule likewise was never mentioned on appeal. I do not therefore read Fellencer as having rejected the well-pleaded complaint rule for Indian cases.⁵

The Tribes argue that the consequence of this reasoning is to deprive them of the federal protection of their sovereignty— that it is an affront to that sovereignty to have to appear...