Judge rules against newspapers in suit for open LNG meetings -- The Quoddy Tides, Eastport, Maine

A superior court judge has ruled that the Passamaquoddy Tribe's Pleasant Point reservation is not subject to Maine's Freedom of Access Act (FOAA) in its negotiations to lease its land for a liquefied natural gas (LNG) facility and that the meetings of the tribal council with LNG developer Quoddy Bay LLC are not public proceedings.

In a December 29 decision, Justice Thomas Humphrey ruled against The Quoddy Tides and the Bangor Daily News in a suit the two newspapers had brought in September alleging that the reservation had violated the FOAA by wrongfully denying the newspapers' requests for access to documents relating to the reservation's negotiations of a lease of its land to Quoddy Bay LLC for the development of an LNG terminal. The newspapers also sought a declaration that all meetings of the reservation's tribal council relating to the LNG facility must be open to the public.

A previous case, Great Northern Paper Inc. v. Penobscot Nation, in which Maine paper companies sought access to water quality documents from the Penobscot Nation and the Passamaquoddy Tribe, provided a legal framework for the newspapers' suit. In 2001, the Maine Supreme Judicial Court had ruled in favor of the paper companies, ordering the tribes to turn over the documents. 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 Freedom of Access Act may apply. In the suit brought by the newspapers, Justice Humphrey found that the reservation was acting in its business capacity instead of its government capacity in its negotiations with Quoddy Bay LLC. "In the context of land development, the court concludes 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. The latter is not a regulatory function," the judge writes. He also notes that federal law and the Federal Energy Regulatory Commission's process for approving construction of LNG facilities "demonstrate that the federal government has wholly taken over the regulation of such facilities."

Justice Humphrey concluded that the meetings of the tribal council regarding the reservation's negotiations to lease its land to Quoddy Bay LLC for an LNG facility "are the actions of a business corporation, not a municipality, and thus, are not public proceedings open to plaintiffs or to the general public within the meaning of Maine's Freedom of Access Act."

The newspapers have not yet decided if they will appeal the case to the Maine Supreme Judicial Court.

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