Penobscot Nation lawsuit could have broad effects for river communities, businesses, says attorney

Aerial photo of Milford Dam (foreground), Indian Island (in center), and Old Town Municipal Airport (in background) in April 2012.
photo by R.W. Estela | BDN
Aerial photo of Milford Dam (foreground), Indian Island (in center), and Old Town Municipal Airport (in background) in April 2012.
Posted Sept. 18, 2012, at 5:29 p.m.

ELLSWORTH, Maine — A Portland attorney is building a coalition of municipalities and businesses located on the Penobscot River to intervene in the Penobscot Nation’s lawsuit against Maine Attorney General William Schneider.

In an Aug. 29 email, Matthew Manahan of Pierce Atwood LLP contacted 10 municipalities and six companies he said have an interest in the lawsuit, in which the Indian nation is seeking an injunction to keep Maine game wardens from policing the river and preventing tribal members from engaging in sustenance fishing. The tribe claims federal law grants them the right to such fishing and to police the waters of the Penobscot.

Also named as defendants in the lawsuit are Chandler Woodcock, commissioner for the Maine Department of Inland Fisheries and Wildlife; and Joel Wilkinson, colonel for the Maine Warden Service.

Manahan said that, in the suit, the nation is seeking confirmation of its authority over the use of the “water, bed, and banks of the Penobscot River by members and nonmembers.”

“This lawsuit could have significant consequences for non-Indian waste discharge licensees discharging into the river or its tributaries,” he wrote in the email.

The towns Manahan hopes to represent include Bucksport, East Millinocket, Lincoln, Guilford, Sangerville, Millinocket, Brownville, Milo, Mattawamkeag and Danforth. He also contacted representatives of Lincoln Paper and Tissue, Brookfield Renewable Energy, Covanta Energy and Black Bear Hydro.

While the lawsuit makes no mention of pollution or discharge rights, Manahan said that if the nation is successful in affirming its rights to the waters of the Penobscot River, it could muddy the waters about authority regarding pollutants.

In 2007, the 1st Circuit Court of Appeals ruled that the state had authority to regulate the water quality of rivers that run through tribal lands, but Manahan said that decision did not resolve questions about the geographic scope of Penobscot territory or whether the tribe also had rights to regulate its waters, wherever they may be.

“If the PIN prevails in this lawsuit, it could mean that all non-Tribal dischargers in the Penobscot River above Indian Island, or its branches, could be regulated by the PIN in addition to the state of Maine,” Manahan wrote.

In an interview Friday, Manahan said the group he’s assembling is similar to the group he represented as intervenors in the 2007 case.

“We’re pulling together that coalition again to ensure that the court understands the issues presented in the current lawsuit have broader ramifications than just hunting, fishing and trapping,” he said.

Last week, Bucksport’s Town Council opted into the coalition to support the attorney general’s claim to authority over the river, but declined to pony up the roughly $2,500 Manahan requested to help cover legal expenses.

“We’re interested in this case,” Bucksport Town Manager Michael Brennan said. “But we’re not sure of the impact [on Bucksport], so we’re not willing to commit funds to it.”

Even though Bucksport is downstream of Indian Island and other territory claimed by the Penobscots, Manahan said the town and Verso Paper — which Manahan said also has joined the coalition, though efforts to verify with the company so far have been unsuccessful — could be affected if the tribe is given legal ground to impose additional discharge regulations.

Upriver, the town of Lincoln has signed on as an intervenor, but like Bucksport declined to set aside any money yet. Town Manager William Reed said Lincoln joined the group simply to stay abreast of the situation.

It’s a move of caution, he said, just in case the town needs to take a more active role later on. Reed said there could be questions about what the management of “sustenance fishing” on the Penobscot could look like if the Indian nation wins the lawsuit, and whether it could involve broad regulations.

“That’s one of the slippery slope issues, as people say,” he said Tuesday. “What entails fishing management? Is there going to be a proposed license program? I don’t know.”

Lincoln Tissue and Paper, which employs 400 people in that town, also has signed on, said Executive Vice President Doug Walsh. He said the company is worried a decision in the nation’s favor could affect his firm’s right to discharge in the river. It is unclear how much money the company will contribute to support the AG’s position.

“While the issue that’s being disputed right now is hunting and fishing on the main stem of the Penobscot River, any jurisdictional issues are of concern to us, with the potential for future ramifications,” Walsh said.

Millinocket also has joined the coalition and has agreed to financially support the effort for an unspecified amount, with local officials saying they fear a legal victory for the Penobscots could affect discharging rights for the town and the Great Northern Paper mill.

“The key thing for us is to prevent any attempt by the Penobscot Indian Nation to gain jurisdiction over the river,” said Town Manager Eugene Cologue. He said a pair of 1980 laws clearly established the state’s authority over water bodies in Maine.

“We’re not going to concede the authority away from the state to the tribes in relation to [discharge rights],” Conlogue said. “The town is protecting its interest by joining this coalition.”

There’s also a political question making the coalition’s voice necessary, Manahan wrote in his email. The specter of a Democratic takeover of the state Legislature means Schneider could be replaced by a “new AG who is more sympathetic to the tribes’ claims,” he wrote.

In the interview Friday, Manahan said he simply meant to say a change in the State House could bring uncertainty about how the state will proceed with the lawsuit.

“I can’t read a crystal ball, [but] it would inject some uncertainty,” he said. “I don’t believe the state’s position would change.”

Manahan said he didn’t know when he’d file for intervenor status in the case. There is no deadline for such a filing, he said, and the coalition’s final member list is still unknown as municipalities consider whether to join. Some groups, such as the Maine Pulp and Paper Association and Brookfield Renewable Energy, already have opted not to join, he said.

Kagin Smith, the attorney representing the Penobscot Indian Nation, declined comment on this story. Tribal Chief Kirk Francis is traveling until Sept. 24, according to the nation’s office, and is unavailable.

Follow Mario Moretto on Twitter at @riocarmine.

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