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STATE OF MAINE WASHINGTON, ss.

SUPERIOR COURT CIVIL, ACTION DOCKET NO. CV-05-33

WINIFRED B. FRENCH CORPOFUTION, d/b/a THE QUODDY TIMES, ET AL Plaintiff DECISION AND ORDER PLEASANT POINT PASSAMAQUODDY

RESERVATION^,
Defendant This matter is before the court on the complaint of the plaintiffs The Quoddy Tides and the Bangor Daily News ("Newspapers") for relief under Maine's Freedom of Access Act ("FOAA"), 1 M.R.S. $5401 et seq., and for a declaratory j ~ d g m e n t . ~Also before the court is the Reservation's objection to evidence submitted by the Newspapers at the November 28,2005 trial in this matter.

Following a joint motion of Plaintiffs at trial, the Pleasant Point Passamaquoddy Reservation (the "Reservation") was substituted as Defendant in this action in lieu of the Passamaquoddy Tribe. 30 M.R.S.A. 4 6203(6) establishes the Reservation as part of the Passamaquoddy Tribe but with its own council. Defendant argued at sidebar and later in its post-trial brief that the Reservation should have been joined as an indispensable party before trial, and that the Reservation's interests could be prejudiced by being substituted for the Tribe at such a late date. However, counsel for the Tribe and the Reservation was given the opportunity prior to the presentation of Plaintiffs' evidence to reschedule the trial for a later date, after a formal substitution of parties had been made pursuant to M.R. Civ. P. 19, and chose not to do so. Defendant instead reserved the right to present further evidence after the close of the trial. Count I of the Complaint is styled a "Freedom of Access Appeal" and seeks an expedited trial de novo under the FOAA based upon the Reservation's denial of the Newspapers' requests to inspect and copy certain records of the Reservation. 1 M.R.S.A. 408 (Supp. 2005). Count I1 seeks a declaration that certain meetings of the Reservation Council are public proceedings under the FOAA to which the

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On September 9, 2005, the Newspapers filed a two count complaint alleging that the Reservation violated the FOAA by wrongfully denying the Newspapers7 requests for access to records and documents relating to the Reservation's negotiations of a lease of its land to Quoddy Bay LLC for the development of a liquefied natural gas facility ("LNG facility") (Count I), and seeking a declaration that that all meetings of the Reservation or its Council relating to the LNG facility are "public proceedings" under the FOAA and must be open to the public (Count 11). A.

RESERVATION'S OBJECTIONS EVIDENCE TO OFFERED HEARING AT
The Reservation participated in the evidentiary hearing in this matter subject

to a continuing objection to the relevancy of the testimony and documents offered into evidence by the Newspapers. The Newspapers sought to establish .the capacity in which the Reservation was acting by reference to a similar LNG proposal brought to the Town of Harpswell, and by evidence of the likely impact such a facility would have on the public outside the borders of the tribal lands. Because the evidence was offered pursuant to a mixed fact-law question that both parties

Newspapers and the general public have a right of access. As such, both counts are in the nature of iy appeals from alleged governmental action. M.R. Civ. P. 80B; see Baker's Table, Inc. v. Ct of Portland, 2000 ME 7 at 711, n. 6; see also Blethen Me. Newspapers, Inc. v. State, 2005 ME 56, 713-6; Bangor Publishing Co. v. Bucksport, 1995 Me. Super. Lexis 8 0 , 1 4 . Count I1 also seeks a broader declaration that Council meetings at which "other matters not solely related to internal tribal affairs" must also be open to the public. The court concludes that this broad and non-specific claim for relief seeks an impermissible advisory opinion.

agree is central to the court's decision, see Part I1 of this opinion, infia, the court overrules the Reservation's objection.

B.

THEGREATNORTHERN FRAMEWORK PAPER Both parties agree that Great Northern Paper, Inc. v. Penobscot Nation

provides the framework within which the Newspapers' claims are resolved. See 2001 ME 69, 770 A.2d 574. This decision lays out a four-part test for determining the applicability of state laws to the tribes that are recognized and governed by the Maine Implementing Act, 30 M.R.S.

$5

6201 et seq.

Id. at

7

42.

The

Passamaquoddy Tribe is recognized and governed by the Act, and the Reservation, as a political subdivision of the Tribe, is also governed by it.' 30 M.R.S.A.

5 6202.

Under the first prong of the test, the court must determine to what entities the statute at issue applies. Id. Great Northern Paper established that the FOAA in particular applies to "public proceedings," which are defined as "the transactions of any hnctions affecting any or all citizens of the State by a municipality." Id. at

7 43.

Therefore, the FOAA applies to municipalities. Id. at 44. Second, the court must determine whether the Reservation is acting in its

municipal capacity. Id. Under the Maine Implementing Act, when the Reservation acts as a governmental entity, it is acting in a municipal capacity. Id.

On June 24, 1996, the Passamaquoddy Tribe and the Reservation entered into an agreement whereby the Reservation was acknowledged as a political subdivision of the Tribe.

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The third and fourth prongs of the Great Northern Paper test are contingent upon the outcome of the second. See id. It is only if the Reservation is acting as a government that the FOAA may apply. See id. And then, even when acting as a government, application of .the FOAA is limited to proceedings and records that do not concern internal tribal matters. See id.;see also 30 M.R.S.A. 6206(1).

C.

WASTHERESERVATION ACTING A GOVERNMENT? AS Depending on the circumstances and the activity, a tribe may act in various

distinct capacities - as a sovereign nation, a person or other entity, a business corporation, or a municipal government. Great Northern Paper at

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41. For

example, the Law Court found that the Penobscot Nation was acting as a government when it requested that the EPA and the Federal government treat it like a state. Id.at 1 44. In the instant case, the nature of Reservation's activities is less definitive. Over a period of months in 2004, the Reservation negotiated a land lease with a company that intended to build a LNG facility on the leased land. On August 17, 2004, the Reservation voted to continue negotiations with the developer. On May 19, 2005, they reached agreement on the terns of the lease. The Reservation then sent the proposed lease to the federal government for approval, and within two weeks, on June 1, 2005, the United States Secretary of the Interior approved the lease.

However, the federal approval process is not yet concluded. The parties have stipulated that the developer has no right under the lease to use any portion of the Reservation's land for the LNG project unless and until it completes and files an Environmental Impact Statement with the Federal Energy Regulatory Commission ("FERC"), and obtains permits fiom FERC and any other applicable federal or state authority for the construction and operation of the LNG project. From these facts alone, it is not possible to say whether the Reservation was acting in a governmental as opposed to a business capacity. The Newspapers press the point that, in its negotiations, the Reservation acted in a way that was substantially similar to the way the Town of Harpswell acted when negotiating the possibility of a lease of its land to a LNG facility developer. However, the fact that the Town of Harpswell is a municipality, and that it engaged in negotiations and vote-taking in a manner that parallels the Reservation's activities, does not mean that the Reservation could only have been acting in its governmental capacity when it performed these functions. Private landowners as well as municipalities engage in land lease negotiations, and business corporations as well as governmental entities are structured for vote-taking on important issues. The question remains whether the Reservation used any of its

quintessentially governmental powers in negotiating this lease or in having it approved. The Reservation submits that it was not acting in its governmental

capacity, but rather in its business capacity, and cites to a 1950 Law Court case, f f Wilde v. Inhabitants o the Town o Madison, to elaborate on this distinction. See 145 Me. 83, 87-88 (Me. 1950). Wilde notes: The courts have always recognized that a town may act within the scope of its authority as a town in two capacities. One is its governmental and the other its private capacity, although the line of demarcation is often indistinct and difficult to ascertain. Speaking Generally, the public or governmental capacity of the municipal governmental agency is the discharge of acts or duties for the benefit of the general public. The private capacity is acting in its own matters, such as the acts as owner of property held for profit or advantage. In almost all affairs of local concern some indirect relation may be traced to a matter of health, safety, or other subject of governmental cognizance. The test is not the casual or incidental connection, it is whether there is a duty or an authorization under the statute. Id. This distinction between the public/governmental and proprietary capacities in which a town may act is seductive in its simplicity. Although the test

acknowledges that it is sometimes difficult to distinguish these capacities, it suggests a clear delineation for understanding the capacity in which the Reservation is acting in the instant case - that is, as "owner of property held for profit" and, therefore, in its private capacity. However, subsequent to Wilde, the Law Court has made clear, not only that the common law doctrine of governmental immunity for which this distinction was f created has been abandoned, see Davies v. City o Bath, 364 A.2d 1269, 1272-3 (Me. 1976), but also that, with specific reference to the question of whether the

Passamaquoddy Tribe or Penobscot Nation is acting in its governmental capacity under the Implementing Act, this old distinction does not apply. See Couturier v. Penobscot Indian Nation, 544 A.2d 306, 309, fn. 6 (Me. 1988) (stating, "[30

M.R.S.A.] section 6206(2) does not resurrect old distinctions between
'governmental' or nonprofit and 'proprietary' or profit making hnctions of a municipality formerly existing under Maine sovereign immunity common law.") Further, the Maine Tort Claims Act, which has now overtaken what was the common law doctrine of sovereign immunity, creates a unitary definition of "governmental entity" which explicitly abrogates the old distinction. See 14

M.R.S.A. 6 8102.~
The Law Court did acknowledge in Couturier, however, that a question exists under the Implementing Act concerning the capacity in which the Penobscot Nation or Passamaquoddy Tribe is acting, that doesn't exist for towns or school districts, etc., which are statutorily always designated as governmental entities. See 544 A.2d at 309, h. (stating, "section 6206(2) provides immunity under the 6
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This section states in pertinent part:
2. Governmental entity. "Governmental entity" means and includes the state and political subdivisions as defined in subsection 3.

3. PoIitical subdivision. "Political subdivision" means any city, town, plantation, county, administrative entity or instrumentality created pursuant to Title 30-A, chapters 115 and 119, incorporated fire fighting unit that is organized under Title 13-B and is officially recognized by any authority created by statute, quasi-municipal corporation and special purpose district, including, but not limited to, any water district, sanitary district, hospital district, school district of any type, any volunteer fire association as defined in Title 30A, section 3 151, and any emergency medical service.

Maine Tort Claims Act to those functions dealing with the operation of the Tribe or Nation as a government. The Tribe or Nation is not immune when it is acting in its business capacity.") In light of the foregoing history, the court must now attempt to define the capacity in which the Reservation was acting in this case, cognizant of the fact that the old distinctions under the common law of governmental immunity are inapplicable, yet recognizing that some functional distinction must be made. 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 Reservation correctly offers that the entity occupying a regulatory role in this case is the federal Department of the Interior, Bureau of Indian Affairs. Under the Maine Indian Claims Settlement Act, 25 U.S.C.

$5

1721-1735, the

federal government reserved exclusive authority to regulate the alienation of tribal lands belonging to or held in trust for the Yassamaquoddy Tribe. See 25 U.S.C.

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