Maine Tribe Can’t Regulate River Waters, Judge Says

Maine Tribe Can’t Regulate River Waters, Judge Says

By Vidya Kauri

Law360, New York (December 16, 2015, 8:13 PM ET) — A Maine federal judge resolved a dispute over who can regulate the main portion of the Penobscot River, ruling Wednesday that the Penobscot Nation’s reservation does not include the waters in this section, but the tribe can fish anywhere in the area.

The federal government, the state of Maine and the Penobscot Nation all won partial victories when U.S. District Judge George Z. Singal said that two settlement acts from the 1980s clearly defined the boundaries of the nation’s reservation to include about 150 islands within the approximately 60 miles of the main, navigable stretch of the river but not the waters in this area. Judge Singal also said that there is no evidence that the Maine Legislature, Congress or the nation intended to change or restrict the tribe’s long-accepted practice of sustenance fishing in these waters.

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.

But the settlement acts are unambiguous in being explicitly silent on the issue of waters being included within the reservation’s boundaries, Judge Singal said. While one section of the statutes dealing with the boundaries speaks only of “lands,” another section dealing with water, hunting and mineral rights refers to real property and natural resources, and “no one expressed the view” that the passage of the settlement acts intended to recognize aboriginal title in the main stem of the Penobscot River, the judge ruled.

“The settlement acts clearly define the Penobscot Indian Reservation to include the delineated islands of the Main Stem, but do not suggest that any of the waters of the main stem fall within the Penobscot Indian Reservation,” Judge Singal said. “That clear statutory language provides no opportunity to suggest that any of the waters of the main stem are also included within the boundaries of the Penobscot Indian Reservation.”

However, the judge rejected the state’s argument that bank-to-bank sustenance fishing was a mere favor that the state could discontinue at its discretion and said that he could not adopt an interpretation that would diminish the nation’s fishing rights secured in the settlement acts.

“The current undisputed record shows a long history of Penobscot Nation members sustenance fishing the entirety of the main stem and an intention on the part of the Maine Legislature, Congress and the Penobscot Nation to maintain this status quo with the passage of the settlement acts. In fact, this status quo was maintained in practice and it was only in the context of this litigation that the state took the position that sustenance fishing rights in the main stem were not guaranteed,” Judge Singal said.

The tribe had claimed in its suit that it had a right to the river under the Maine Indian Claims Settlement Act of 1980 and the Maine Implementing Act, the two laws comprising the Settlement Acts. The tribe received the rights to the river under the first law, which also ratified Maine’s Act to Implement the Indian Land Claims Settlement, giving the tribe’s members the right to fish in the waters of the river, according to the nation’s August 2012 complaint.

The U.S. intervened in the suit on its own behalf and as a trustee for the Penobscot Nation after Maine’s then-attorney general stated that the river is not part of the nation’s reservation and that Maine has exclusive regulatory jurisdiction over activities taking place on the river.

In June, the Penobscot tribe argued that the laws did not strip it of its right to regulate activities on the river, but actually guaranteed the right of tribal members to engage in sustenance practices without interference from the state and the exclusive right to regulate those sustenance activities.

The state urged the court to rule that the tribe has no authority to regulate non-tribal activities on the Penobscot River, including water quality monitoring, fishing and salvage logging, because the legislation stripped the tribe of any rights it might have had on the riverbed, waters or natural resources of the disputed area, referred to as the main stem of the river.

Representatives for the parties could not be reached for comment.

Maine is represented by Janet T. Mills, Gerald D. Reid and Kimberly Patwardhan of the state attorney general’s office.

The Penobscot Nation is represented by Kaighn Smith Jr., James T. Kilbreth, Adrianne E. Fouts and David M. Kallin of Drummond Woodsum.

The U.S. is represented by Steven Miskinis of the U.S. Department of Justice.

The case is Penobscot Nation v. Schneider et al., case number 1:12-cv-00254, in the U.S. District Court for the District of Maine.

–Additional reporting by Andrew Westney. Editing by Emily Kokoll.

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