Kimball v. LURC

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 20
Docket:	Ken-99-72
Argued:	September 10, 1999
Decided:	February 7, 2000

Panel:CLIFFORD, RUDMAN, DANA,  and SAUFLEY, JJ.

EVELYN KIMBALL et al.

v.

LAND USE REGULATION COMMISSION et al.

SAUFLEY, J.

	[¶1]  The Passamaquoddy Tribe and the Land Use Regulation
Commission appeal from a judgment entered in the Superior Court
(Kennebec County, Humphrey, J.) vacating LURC's approval of the Tribe's
application for the rezoning of a parcel of land in Albany Township.  The
court concluded that the parcel was not "Indian territory" as defined by
30 M.R.S.A. § 6205 (1996) and therefore concluded, as a matter of law, that
a proposed high stakes bingo facility could not be built on that parcel.  See
17 M.R.S.A. § 314-A(5) (Supp. 1999).  We agree with the Superior Court that
the Albany land is not yet Indian territory, and we affirm the judgment.

I.  BACKGROUND

	[¶2]  In 1980, the State of Maine reached a settlement with the
Passamaquoddy Tribe and two other tribes regarding these tribes' land
claims against the state.  To facilitate the settlement,{1} Congress passed the
Maine Indian Claims Settlement Act, which, inter alia, terminated all land
claims of the Passamaquoddys against Maine,{2} established a land acquisition
fund, and authorized the United States Secretary of the Interior (the
Secretary) to expend portions of this fund to acquire tribal land as trustee
for the Tribe.  See 25 U.S.C.A. § 1724 (1983).{3}  As a result of the settlement,
the Legislature passed An Act to Implement the Maine Indian Claims
Settlement Act (Implementing Act), which in part set up a statutory scheme
under which certain parcels of land would be designated "Indian territory." 
P.L. 1979, ch. 732 (codified as amended at 30 M.R.S.A. §§ 6201-6214 (1996
& Supp. 1999).{4}  Subsequently, the Legislature enacted a provision allowing
the Tribe to operate one high stakes bingo or beano facility in the state on
Indian territory.  See 17 M.R.S.A. § 314-A(5).  Because high stakes bingo is
not otherwise allowed to operate in the state, whether a parcel qualifies as
Indian territory under the Implementing Act directly controls the potential
location of any high stakes bingo or beano facility.
	[¶3]  In 1988, the Tribe purchased a parcel of land in Albany
Township from a tribal member.  On January 7, 1992, following approval by
the Maine Indian Tribal-State Commission, a bill was introduced in the
Legislature on behalf of the Tribe which amended 30 M.R.S.A. § 6205 to
include the Albany parcel among the lands which could potentially become
Passamaquoddy Indian territory.  See L.D. 2081 (115th Legis. 1992).  The
bill was passed and signed into law on March 23, 1992, and became
effective on June 30, 1992.  See P.L. 1991, ch. 720 (hereinafter 1992
Amendment).{5}  It added to the list of parcels of land that could be
designated Indian territory "any lands in Albany Township acquired by the
Passamaquoddy Tribe before January 1, 1991."  See id.
	[¶4]  Section 6205 also contained a preexisting requirement that any
such land be transferred to the Secretary in trust and certified as accepted
by the Secretary on or before January 31, 1991, in order finally to become
Indian territory.  See 30 M.R.S.A. § 6205.  The 1992 Amendment did not
amend that date.  The prerequisite of the 1991 approval, therefore, created
a conundrum.  The Secretary of the Interior could not accept the land in
trust until the state formally approved it for the trust.  Yet, the state
approved the Albany land for placement in trust within a statutory scheme
that required, in order for the land to become Indian territory, that the
Secretary of the Interior accept the land before the date that the Legislature
approved it for placement in trust.  Although the Tribe ultimately did
transfer the parcel to the Secretary, the acceptance by the Secretary was
not accomplished until over two and a half years later, on October 21, 1994.
	[¶5]  In 1997, acting on the assumption that the land in question was
Indian territory as required by 17 M.R.S.A. § 314-A(5), the Tribe applied to
LURC requesting that the Albany parcel be rezoned as "General
Development," and further requesting that a development permit be issued
to allow construction of a high stakes bingo facility.  Various governmental
bodies reviewed and commented on the proposal.  Several voiced significant
concerns. 
	[¶6]  Area residents requested a public hearing.  Jeffrey Rosenblatt, on
behalf of himself, Evelyn Kimball, and others, petitioned to intervene.  LURC
received a number of letters opposing the project.  In general, the letters
raised concerns regarding increased taxes to support public services to the
facility, noise, flooding, pollution of the Crooked River, the general
incompatibility of the project with existing settlement, and the lack of need
for or benefit from the project for the local community.  In addition, many
letters in favor of the project were received. 
	[¶7]  LURC held a two-day hearing at which it considered both
prefiled statements and live testimony.  Additional post-hearing materials
were submitted on both sides of the issue.  Rosenblatt sought to keep the
record open for the filing of additional facts.  After denying Rosenblatt's
request, LURC granted both the rezoning request and the development
permit.  Petitions for judicial review were filed in the Superior Court by
Rosenblatt, on behalf of himself and others, and by Evelyn Kimball and
Margaret Wille.  See 5 M.R.S.A. § 11001-11008 (1989); M.R. Civ. P. 80C. 
Both the Rosenblatt Petitioners and the Kimball Petitioners filed motions to
supplement the agency record in the Superior Court, which were granted in
part by the court (Alexander, J.).
	[¶8]  After a hearing, the Superior Court (Humphrey, J.) held that the
Albany parcel was not Indian territory under section 6205.  Because high
stakes bingo would be an illegal use on land that is not Indian territory, the
court concluded that LURC's rezoning of the parcel was improper and that
LURC had erred as a matter of law when it granted a development permit
for an illegal use.  The Tribe, LURC, and the Kimball and Rosenblatt
Petitioners each appealed from the court's judgment.{6}
	[¶9]  The matter before us requires us to determine whether the
Albany land has become Indian territory.  To do so, we must determine the
consequences of the Legislature's omission of a new deadline for acceptance
by the Secretary.

II.  DISCUSSION

A.  The Statute

	[¶10]  There is no dispute that the casino the Tribe wishes to build
may only be placed on "Passamaquoddy Indian territory."  Passamaquoddy
Indian territory is defined in the Implementing Act as "that territory
defined by section 6205, subsection 1." 30 M.R.S.A. § 6203(6) (1996). 
Section 6205, subsection 1 describes Passamaquoddy Indian territory as
including the Passamaquoddy Indian Reservation, see 30 M.R.S.A.
§ 6205(1)(A), and the first 150,000 acres of land acquired by the Secretary
of the Interior for the benefit of the Tribe, see 30 M.R.S.A. § 6205(1)(B).  In
order to become Indian territory pursuant to section 6205(1)(B), those
lands must be identified in section 6205, must be acquired by the Secretary
prior to January 31, 1991, must be certified by the Secretary as held for the
benefit of the Tribe by January 31, 1991, and must not be held in common
with any other person or entity.  Id. 
	[¶11]  The final paragraph of section 6205 creates a further limitation
on the creation of new "Indian territory."{7}  Section 6205(5) provides that
no land except land described in subsections 1 through 4 shall become
Indian territory except upon:  (1) recommendation by the Maine Indian
Tribal-State Commission; (2) enactment of a law by the Legislature
approving the Commission's recommendation; (3) signature of the
legislation by the Governor; and (4) approval by the legislative body of the
municipality (when the parcel is located in a city, town, village, or
plantation).  30 M.R.S.A. § 6205(5).

B.  Applicability of Section 6205(5)

	[¶12]  Because the land does not meet the requirements of the plain
language of section 6205(1)(B), the Tribe argues that section 6205(5)
provides a freestanding method for the creation of Indian territory.  It
further asserts that the elements of this section have been met and that
therefore the Albany land has become Indian territory notwithstanding the
temporal requirement of subsection 1. 
	[¶13]  Subsection 5 provides prerequisites to the creation of new
Indian territory "other than [the lands] described in subsections 1, 2, 3, or
4."  It appears to place limitations on the creation of new Indian territory
and permits the creation of that territory only if its requirements are met.{8}  
Contrary to the Tribe's contentions, however, mere compliance with the
requirements of subsection 5 will not be sufficient to create new Indian
territory if the Legislature places additional conditions on the process.  In
other words, even if the Tribe's interpretation of subsection 5 is correct,
subsection 5 does not obviate the need for compliance with whatever other
statutory conditions are imposed by the Legislature.
	[¶14]  When the Legislature enacted P.L. 1991, ch. 720, it authorized
the addition of "any lands in Albany Township . . ." acquired "by the
secretary prior to January 31, 1991." No lands in Albany Township satisfy
that legislative condition and, therefore, the Tribe cannot rely on the
legislation signed into law on March 23, 1992, see L.D. 2081 (115th Legis.
1992), to satisfy the statutory prerequisites of section 6205(5).  The Tribe's
reliance on the provisions of section 6205(5) cannot substitute for
compliance with the explicit requirements of section 6205(1)(B).{9}
  
C.  Interpretation of Section 6205(1)(B)

	[¶15]  We turn then to the task of addressing the amendments to
section 6205(1)(B) by which the Albany land was added to those properties
that may become Indian territory.  The difficulty presented by the Tribe's
current effort to use the Albany land as Indian territory may be stated as
follows:  when the Legislature amended section 6205(1)(B) in 1992 to add
the Albany land to those properties specifically named as eligible to become
Indian territory, it did not amend the statute to extend the 1991 date by
which the Secretary must acquire that Albany parcel land in trust and certify
it as held for the Tribe's benefit.  Although the land had been purchased by
the Tribe before the bill was enacted, it had not been acquired by the
Secretary nor certified as held for the Tribe's benefit, nor could it have been
taken by the Secretary prior to legislative action in 1992.  See 25 U.S.C.
§ 1724(d).{10}  In other words, on the face of the statute, the Albany land
could not become Indian territory without further legislative action.
	[¶16]  LURC and the Tribe argue that the Legislature's intent in
enacting the 1992 Amendment was to allow the Albany land to become
Indian territory, within a reasonable period of time, without further action
on the part of the Legislature.  They urge us to effectuate that legislative
intent either by declining to accept the plain language of section 6205(1)(B)
or by augmenting that language to allow acceptance by the Secretary on the
date the land was actually accepted.
	[¶17]  The intervenors argue that we need not consider legislative
intent because the language of the statute is plain on its face.  Because the
statute is neither ambiguous nor absurd on its face, they argue that the court
properly confined its construction of the statute to the plain meaning of its
words.  In addition, they assert that, even if we were to look to legislative
intent, it is not possible to discern the Legislature's intent with regard to
the date by which the Secretary must certify the land.

	1.  Canons of Statutory Interpretation

	[¶18]  Because statutory construction is a matter of law, we review
decisions regarding the meaning of a statute de novo.  See Estate of Jacobs,
1998 ME 233, ¶ 4, 719 A.2d 523, 524.  We have set forth the general rules
for statutory construction as follows:

We look first to the plain meaning of the statutory language as a
means of effecting the legislative intent.  Where the statutory
language is ambiguous, we examine other indicia of legislative
intent, such as legislative history.  The statutory scheme from
which the language arises must be interpreted to achieve a
harmonious outcome.  We will not construe statutory language to
effect absurd, illogical, or inconsistent results.

Coker v. City of Lewiston, 1998 ME 93, ¶ 7, 710 A.2d 909, 910 (citations
omitted).  "'If the meaning of this language is plain, we must interpret the
statute to mean exactly what it says.'"  Rowe v. Chapman Trucking, 629 A.2d
1224, 1226 (Me. 1993) (quoting Concord Gen. Mut. Ins. Co. v. Patrons-
Oxford Mut. Ins. Co., 411 A.2d 1017, 1020 (Me. 1980)).  Stated succinctly,
when the language chosen by the Legislature is clear and without ambiguity,
it is not the role of the court to look behind those clear words in order to
ascertain what the court may conclude was the Legislature's intent. 
	[¶19]  These rules of construction are applied to effectuate several
purposes.  First, the court should give meaning to the language chosen by
the Legislature to the greatest extent possible.  See Opinion of the Justices,
460 A.2d 1341, 1346 (Me. 1982).  Second, the court has no role in
attempting to divine legislative intent where the words chosen by the
Legislature are clear and unambiguous.  See Rowe, 629 A.2d at 1226.  And
finally, only when the words are susceptible of multiple meanings, or render
the enactment an absurdity or nullity, should the court explore indicia of
legislative intent.  See Coker, 1998 ME 93, ¶ 7, 710 A.2d at 910.

	2.  Treatment of Unambiguous Language

	[¶20]  Here, the language used by the Legislature is not ambiguous.  It
is not necessary to interpret the language of the provisions at issue in order
to understand its meaning.  Applying that language to the matter at hand,
the Albany parcel met all of the conditions precedent to becoming Indian
territory except one-it was not placed in trust with the Secretary and
certified before January 31, 1991.{11}
	[¶21]  We must decide, then, not whether legislative intent will bring
clarity to an ambiguity, but whether the plain and unambiguous language of
the Act, which appears not to have included the final amendment necessary
to the transmutation of the land into Indian territory, may be augmented by
the Court in order to complete the process.  
	[¶22]  The only circumstance where we may go behind the plain
language of an unambiguous statute to discern the Legislature's true intent is
where the language at issue renders the enactment absurd or a nullity.  See
Coker, 1998 ME 93, ¶ 7, 710 A.2d at 910; Struck v. Hackett, 668 A.2d 411,
417 (Me. 1995).  An enactment will be considered a nullity when it has no
effect whatsoever.  See Opinion of the Justices, 460 A.2d at 1346.  That is
not the case here.  The action by the Legislature cannot be considered a
nullity because the Albany land has, in fact, been identified and added to the
list of lands that may become Indian territory upon the completion of other
acts.  Completion of the process may yet occur upon the Legislature's
extension of the date by which the Secretary of the Interior must have
accepted the land in trust.  The Legislature knows how to amend that date;
it had extended the date on multiple occasions prior to its addition of the
Albany land to subsection 1.{12}  It could have extended that date at any time
following the enactment of the 1992 Amendment.  That it has not done so
to date does not render its original action a total nullity.{13}  
	[¶23]  For similar reasons, the provision does not constitute an
absurdity.  An absurdity may occur when the enactment is so contrary to the
plain understanding of legislative intent and the entire statutory scheme
within which the amendment falls that enforcement of the plain language
would be wholly unreasonable.  The enactment at issue simply did not
contain a necessary step toward creation of Indian territory.  Nothing in the
language of the Act or the provisions of the federal Settlement Act persuades
us that the omission of that step renders the enactment an absurdity.  See
Ballard v. Edgar, 268 A.2d 884, 887 (Me 1970) (recognizing the possibility
that the language resulted from "mere legislative inadvertence," but
declining to disregard the plain language).{14}
	[¶24]  Moreover, even if we were to accept the Tribe's argument that
the missing extension of the deadline renders the language of section
6205(1) ambiguous or absurd, there is no basis in the record from which we
could divine a new deadline for the Secretary's acceptance.  In order to
bridge the gap between the plain language of the statute and the result
sought by the Tribe, we would need to read into the statute a particular date,
somehow applicable only to the Albany parcel,{15} by which the Secretary of
the Interior must have accepted the land in trust.  Further, we would have to
read out of the statute the existing date.  In so doing, we would have to make
assumptions about legislative intent regarding that date.  Neither party has
provided persuasive legislative history applicable to this particular point. 
There is no mention in the Statement of Fact accompanying the bill or other
documents properly relied on for analysis of legislative intent of a date by
which the Secretary's acceptance must have occurred.  We would therefore
have to speculate as to the Legislature's intent regarding such a date at the
time of the enactment in 1992.
	[¶25]  The difficulty of such speculation becomes evident upon asking
the question:  what date did the Legislature intend?  In the absence of any
guidance on that point, we would have to infer a logical date.  If we inferred
a date that was exactly one year from the enactment of the original addition
of the Albany land to section 6205(1), the land would still not have become
Indian territory because it was not accepted by the Secretary within that
year.  Similarly, if we inferred a date exactly two years from the date of the
statute's enactment, the Tribe's desired result would still not have been
accomplished.  In the end we would be required, with the benefit of
hindsight, to decide today that the Legislature meant to allow the Secretary
of the Interior to accept the land more that two and one half years after the
statute was enacted.{16}
	[¶26]  Just as we are not free to interpret a statute so as to render a
provision a surplusage, see Struck, 668 A.2d at 417, such as would be the
case were we to read out of the statute the existing date of January 31,
1991, so too we are not free to substitute a different date for the existing
one.  Such speculation and legislative redrafting is wholly outside of our role
as a court.
	[¶27]  Although it is apparent that the Legislature intended to begin
the process of creating Indian territory in the Albany parcel, it did not
complete the steps necessary to accomplish that goal.  It is the role of the
Legislature, not this Court, to determine if, when, and under what
circumstances the land should actually become Indian territory.  Because the
parcel has not yet achieved the status of Indian territory, the Superior Court
did not err in concluding that the casino may not be built on that land. 
Accordingly, we need not address the challenges to LURC's approval of the
application.
	The entry is:
Judgment affirmed.