Law360 Article: River Waters Don’t Belong To Penobscot Tribe, 1st Circ. Says 6/30/2017

River Waters Don’t Belong To Penobscot Tribe, 1st Circ. Says

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Law360, New York (June 30, 2017, 7:04 PM EDT) — A divided First Circuit panel ruled Friday that two federal laws made plain that the Penobscot Indian Nation can’t lay claim to the waters of the Penobscot River in Maine, but a sharp dissent blasted that holding as a “dictionary-driven conclusion” and said the laws should have been interpreted in favor of the tribe.

The Penobscot Nation was appealing a December 2015 ruling by U.S. District Judge George Z. Singal that the tribe’s reservation includes the roughly 150 islands within a 60-mile navigable stretch of the river but not the water itself, while Maine contested the judge’s ruling that the tribe has the right to fish anywhere in the area.

Writing for the panel’s majority, Circuit Judge Sandra L. Lynch said that Judge Singal had rightly found that two 1980s settlement acts clearly defined the boundaries of the tribe’s reservation to include the islands within the river’s main stem, but not the waters in that area.

The federal government and the Penobscot tribe had pointed to the legislative history of the laws and the intent of the parties in their appeal, but such arguments weren’t relevant because the language of the laws is unambiguous, Lynch said.

“The district court was correct to hold that the settlement acts mean what they plainly say,” Lynch said. “The Penobscot Indian Reservation consists of the specified ‘islands in’ the main stem of the Penobscot River. It does not include the main stem itself, any portion thereof or the submerged lands underneath.”

The majority also overturned Judge Singal’s ruling that the tribe can fish throughout the river, saying the district judge shouldn’t have addressed the issue because the tribe hadn’t shown it suffered any injury to its rights.

“There is no evidence in this record that Maine has interfered with or threatened to interfere with the nation’s sustenance fishing in the main stem, and there is not even an allegation that the state plans to change its informal policy of not interfering with sustenance fishing,” Lynch said. “We have no concrete dispute before us and so have no facts to frame the appropriate inquiry, or even any relief.”

But in his dissent, Circuit Judge Juan R. Torruella said there were three main reasons why the Penobscot Nation’s reservation includes the main stem of the river, including the fact that the settlement acts give the tribe the rights to fish within its reservation — which the majority’s ruling would limit to dry land, he said.

The definition of the Penobscot reservation in the settlement acts is “ambiguous to say the least,” and ambiguous provisions in laws related to tribes are supposed to be construed in their favor under the Indian canon of construction, Judge Torruella said.

“This clearly defeats the majority’s dictionary-driven conclusion to the contrary,” he said.

The Penobscot Nation and the U.S. Department of Justice had sued Maine for its 2012 determination that the nation has no authority to regulate fishing or hunting in the waters of the river’s main stem, and that Maine has exclusive regulatory and enforcement authority over all activities occurring there.

The U.S. intervened in the suit on its own behalf and as a trustee for the tribe, after the Maine attorney general stated that the river was not part of the nation’s reservation. Several municipalities and companies that have permits allowing them to discharge water or treated wastewater into the Penobscot River or its branches or tributaries also intervened.

The federal government, Maine and the Penobscot Nation all won partial victories when Judge Singal determined in December 2015 that the 1980s settlement acts clearly defined the boundaries of the nation’s reservation to include the islands within the river’s main stem, but not the waters in that area.

The tribe, the federal government, Maine and the municipalities all appealed the ruling to the First Circuit in April 2016.

The federal government said in an October brief to the First Circuit that the nation’s treaties with Maine and the federal government signed in 1796 and 1818 must be interpreted in the tribe’s favor to find that its reservation includes the lands underneath the river from bank to bank, as well as the roughly 150 islands within the approximately 60 miles of the main stem.

The nation said in its own October brief that the U.S. Supreme Court had ruled in a case similar to the Penobscot’s that an Alaska tribal reservation included the submerged lands and related waters within it. The high court’s ruling in Alaska Pacific Fisheries Co. v. U.S., in which the justices found that the Metlakahtlan Indians’ reservation included its fishing grounds because the tribe members couldn’t have sustained themselves on the island uplands alone, governs the current case, the tribe argued.

In the majority opinion Friday, Judge Lynch said that the plain text of the settlement laws defining the Penobscot reservation made clear that only the islands of the main stem and not its water were included in the reservation.

In vacating the lower court’s ruling that the tribe has a right to sustenance fishing in the main stem, Lynch said those claims were “merely speculative.”

Judge Torruella said in his dissent that the Supreme Court’s Alaska Pacific Fisheries ruling established the rule that a grant of lands and islands to Indians includes both the waters around the islands and submerged lands.

The judge also said that the settlement acts preserved the rights the Penobscots had secured through their treaties with Massachusetts and Maine, including its claim to the main stem, and give the nation to right to fish within its reservation boundaries, he said.

“The fact that the Indians can fish ‘within’ their reservation implies that there is a place to do so,” according to the dissent. “Unless the majority is of the view that one can fish where there is no water, there is no place to fish on the uplands of the nation’s islands — which implies that some part of the river has to be a part of the reservation.”

The majority responded to the dissent by saying that the current case wasn’t governed by the Alaska Pacific ruling “because it concerned an entirely different provision in a different statute.”

In addition, the nation’s treaties defined the islands included in its reservation but didn’t change the definition of the term reservation, and the question of that definition “is not the same as the unripe question of sustenance fishing,” the majority said.

Penobscot Chief Kirk Francis said in a statement Friday that Torruella’s dissent “lays out the correct view of the law” and that the tribe is “exploring all avenues for further consideration in light of what he has said.”

The tribe is looking to establish its control of fishing, hunting and trapping in the Penobscot River, and hasn’t sought to prevent non-Indians from using the river for recreational purposes, according to the statement.

Representatives for the other parties were not immediately available for comment late Friday.

Circuit Judges Juan R. Torruella, Bruce M. Selya and Sandra L. Lynch sat on the panel for the First Circuit.

The Penobscot Nation is represented by Michael L. Buescher, Adrianne Elizabeth Fouts, Kaighn Smith Jr. and James T. Kilbreth III of Drummond Woodsum.

The U.S. is represented by Steven Miskinis and Mary Gabrielle Sprague of the U.S. Department of Justice and Bella Sewall Wolitz of the U.S. Department of the Interior.

Maine is represented by Susan P. Herman, Gerald D. Reid, Kimberly Patwardhan and Paul Stern of the state attorney general’s office. The town of Orono is represented by Catherine R. Connors and Matthew D. Manahan of Pierce Atwood LLP.

The cases are U.S. v. Mills et al., case numbers 16-1424, 16-1435, 16-1474 and 16-1482, in the U.S. Court of Appeals for the First Circuit.

–Additional reporting by Christine Powell, Vidya Kauri and Brian Amaral. Editing by Alyssa Miller.