The Quoddy Tides

12 May 2006

Court rules tribe's LNG meetings can remain closed

The Maine Supreme Judicial Court has ruled unanimously in favor of the Pleasant Point Passamaquoddy Reservation in a request by two newspapers, The Quoddy Tides and the Bangor Daily News, for access to tribal council meetings and documents that concern negotiations for the development of a liquefied natural gas (LNG) terminal on tribal land. The newspapers had appealed a superior court judgment that the newspapers did not have access to meetings of the tribal council with LNG developer Quoddy Bay LLC or documents relating to the negotiations of a land lease for the LNG terminal.

In the May 8 decision, the court upheld a December 29 ruling by Superior Court Justice Thomas Humphrey, who had concluded that the reservation "acts in a governmental capacity when it regulates its land but acts in a business capacity when it merely leases the land." In 2001, the Maine supreme court had ruled in favor of several paper companies that sought access to water quality documents from the Penobscot Nation and the Passamaquoddy Tribe. In its decision, the court laid out a four-part test for determining the applicability of state laws to the tribes, since a tribe may act in various distinct capacities — as a sovereign nation, a person, a business corporation or a municipal government. When the tribe is acting as a government, then the Maine Freedom of Access Act (FOAA) may apply.

In its decision concerning the LNG proposal, the supreme court found that the tribal actions did not include any of the core determining aspects of governing, such as taxation, regulation or permitting, and lawmaking or law enforcement. Writing for the court, Chief Justice Leigh Saufley wrote, "Contrary to the newspapers' argument, the covenants in the lease regarding environmental and related impacts do not reflect municipal regulation, but set forth the contractual obligations of the parties to the lease. They are the sort of restrictions or conditions that could be insisted on by any commercial/industrial landlord, especially one that wants to maintain good relations with the surrounding communities and a safe environment for the many people (including tribal members) who live in close proximity to the lease site."

The newspapers also pointed to the referendum held by the Pleasant Point governor and council that endorsed their negotiations with Quoddy Bay as another indication of municipal governance. However, the justices observed, "Non-governmental organizations govern themselves through votes of their members in some situations. For example, as the reservation points out, business corporations often hold shareholder votes."

The degree of public interest is a factor of little or no importance in determining in what capacity a tribe has acted, the court's decision states. The potential effect that a tribal activity may have on persons outside the tribe also is not a factor concerning the municipal-capacity question, "although it is relevant to whether the activity at issue is an 'internal tribal matter.'"

The high court justices agreed with the trial court that the reservation's entering into a commercial lease "is more like the profit-making activity of a business corporation than the governmental activity of a municipality. The fact that a municipality like the Town of Harpswell could have entered into a similar lease, and would have been subject to FOAA in doing so, cannot be determinative because Harpswell is a municipality at all times and for all purposes, while the reservation is not."

Finally, the justices stated that public policy does not require that the reservation be subject to FOAA, since "under the delicate balance of interests embodied in the [Indian Claims] Settlement Act and the Maine Implementing Act, the tribes have more autonomy than towns in many respects." The decision states, "Although the newspapers' desire to promote public access to information on issues of public concern is commendable, their free access rights under FOAA are generally limited to 'the transaction of public or governmental business.'"