Federal judge gives split ruling in Penobscot Nation lawsuit against state
All sides are finding something to praise in a federal judge’s ruling on Wednesday in a legal dispute between the Penobscot Nation and the state over the tribe’s regulatory jurisdiction and sustenance rights on the main stem of the Penobscot River, extending from Indian Island to the confluence of the river’s east and west branches about 60 miles north.
What remains uncertain, however, is whether the tribe will appeal a ruling that only supports the sustenance fishing rights arguments within its 2012 lawsuit against the state, but sides with the state and approximately 17 municipal and industrial intervenors by limiting the boundaries of the tribe’s reservation to its “lands” and not the water in that section of the river.
In a brief two-part ruling preceded by a 60-page summary of the history and conflicting legal positions underlying the case, Judge George Singal of the U.S. District Court from the District of Maine affirmed that the tribe’s sustenance fishing rights extend for the “entirety of the main stem section of the Penobscot River.” But he flatly rejected the tribe’s arguments that its reservation includes water as well as land, stating MISCA’s language “plainly defines the Penobscot Indian Reservation as the islands in the [river’s] main stem … [and] is explicitly silent on the issue of any waters being included within the boundaries of the Penobscot Indian Reservation.”
Kaighn Smith, a Drummond Woodsum lawyer who represented the Penobscot Nation in its lawsuit against the state, told Mainebiz in a phone interview that Singal’s ruling “validates” the tribe’s position on its sustenance fishing rights, characterizing it as “a huge victory for this tribe.” But he also voiced disappointment that the ruling doesn’t address other riverine sources of sustenance historically utilized by the tribe — including ducks, muskrats and eels — and said it falls far short of affirming the tribe’s belief that its reservation and regulatory rights extend to the river’s waters as well as its land.
Smith said he couldn’t comment on whether the tribe will appeal the ruling, noting that tribal leaders and their legal team have not had time to fully digest the ruling and its full legal implications.
Longstanding dispute
The tribe’s lawsuit stems from an Aug. 8, 2012, opinion by former Attorney General William Schneider in response to ongoing disputes between the state and tribe regarding “regulatory jurisdiction” relating to hunting and fishing on the main stem of the Penobscot River. “[T]he river itself is not part of the Penobscot Nation’s reservation and therefore is not subject to its regulatory authority or proprietary control,” Schneider wrote in an opinion quoted within Singal’s ruling.
Twelve days later the tribe filed its lawsuit in federal court challenging Schneider’s interpretation, asserting, Ringal wrote, it was a “misinterpretation of the law governing the boundaries of their reservation and their rights to engage in sustenance fishing.” Maine Attorney General Janet Mills was named as the state defendant in the lawsuit after Schneider resigned in January 2013.
Mills issued a written statement Wednesday describing the judge’s ruling as “very thorough.”
“The river is, as the state argued, held in trust for the benefit and use of all,” she said. “The state is equally pleased that the court recognizes the historical right of individual tribal members to engage in sustenance fishing along the river, a right which the state has always accorded and never denied.”
Matthew Manahan, a Pierce Atwood environmental attorney representing a number of municipalities, sewer districts and several paper mills along the river, praised the ruling as a “very thoughtful decision.”
“We’re pleased,” he said in a telephone interview Thursday with Mainebiz. “We’re hopeful it will put to rest, once and for all, the Penobscot Indian Nation’s efforts to undermine the Maine Indian Land Claims Settlement Act [1980].”
In a written statement posted on the law firm’s website, Manahan suggested the court ruling could have some bearing on a separate case in which Mills is suing the U.S. Environmental Protection Agency alleging it has no authority over water quality standards in waters passing through the Penobscot Nation’s reservation. The state’s position is that such authority solely rests with the Maine Department of Environmental Protection.
“Although Judge Singal wrote that he was 'not resolving the right to regulate water sampling or the right to regulate discharges by towns or non-tribal entities that currently discharge into the Penobscot River,' his decision, as a practical matter, effectively resolved that issue by ruling that the Penobscot Indian Nation reservation does not include any portion of the river. This is an important victory in upholding the terms of the Maine Indian Land Claims Settlement Act,” Manahan wrote.
Mainebiz was unable to reach Penobscot Nation Chief Kirk Francis Thursday morning, but Francis described the ruling as a “mixed bag” in his interview with Portland Press Herald reporter Kevin Miller. Francis told the newspaper that the tribe is “trying to understand how the existing statute and the decision fit together.”
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