By SUSAN YOUNG
AUBURN, Me., Nov 14, 2000 (Bangor Daily News)—Maine's three tribal governors did not go to jail Monday. Instead, their attorneys filed an appeal to a state court ruling ordering them to turn over to paper companies documents relating to water regulation or face imprisonment.
As the judge's 9 a.m. deadline passed, the governors emerged from the Androscoggin County Courthouse and held a press conference on the steps blasting paper companies for polluting the state's waters.
"The paper companies don't want our documents ... they're after the continued right to pollute the river," said Barry Dana, governor of the Penobscot Nation, as he held up a bottle of yellowish water he said he had taken from the Penobscot River that morning.
Last week, a Superior Court judge found Dana and Passamaquoddy Govs. Richard Doyle of Pleasant Point and Richard Stevens of Indian Township in contempt of court for failing to turn over the documents that the three paper companies sought under the Maine Freedom of Access Law.
Attorneys for the tribes argued that the documents, including minutes of tribal council meetings, are privileged under tribal law and could not be turned over. In addition, the attorneys said, the tribes were sovereign authorities, and not subject to the freedom of information law.
Superior Court Judge Robert Crowley disagreed and ordered the men jailed until the documents were turned over or his ruling appealed to the state Supreme Judicial Court. He also assessed fines of $1,000 a day on each tribe until his ruling was followed. He gave the tribes until Monday morning to comply.
Tribal attorneys met for more than 41/2 hours Saturday at the Penobscot Nation headquarters at Indian Island next to Old Town before deciding how to proceed.
At the courthouse Monday, Dana said he wasn't sure that sitting in jail being a martyr would have gotten the tribes anywhere. So, they chose to file an appeal, a route Gov. Angus King suggested they take.
The appeal contends that Judge Crowley improperly interfered with tribal matters by requiring the Indian officials to comply with the Freedom of Access Law, said Kaighn Smith, a tribal attorney.
At the same time, the tribes have appealed to the 1st Circuit Court of Appeals in Boston a Portland federal judge's decision not to hear the case.
The legal drama began when the state Department of Environmental Protection applied to the federal Environmental Protection Agency for authority to issue federal wastewater discharge permits to streamline the permitting process. More than 40 states now issue such permits on behalf of the EPA. In other states, however, the federal government retained permitting authority in tribal territories.
The three tribes contested the state's application because they believe the federal government will do a better job of protecting their interests. They believe the state is too beholden to paper companies.
Three paper companies — Georgia-Pacific Corp., Champion International Corp. and Great Northern Paper Inc. - filed a state freedom of information request to obtain any tribal documents relating to water regulation.
Tribal officials refused, saying water quality was an internal tribal matter.
Paper company attorneys accused the tribes of trying to undermine the 1980 Indian Claims Settlement Act which says the tribal nations are subject to state laws except when it comes to internal matters.
"We're not undermining anything," Dana said.
Other tribal members stood behind him carrying signs that read: "Tribes never gave up the right to clean water" and "We will not assimilate, Gov. King."
Dana blamed the companies for fouling the water that flows around Indian Island. But, he also blamed the federal government for giving the companies permits to discharge pollutants into the Penobscot River.
"The U.S. has an obligation, that as a person who grew up on the river, I don't think they've taken seriously enough," Dana said.
But, he said, if the federal government retains such permitting authority, rather than handing it over to the states, his people "will have a strong voice in minimizing those pollutants."
Gov. Doyle pointed out the irony that this battle was being fought during Native American Month, a national designation made by President Clinton.
"This is Maine's way of appreciating us?" he asked.
Representatives of the Natural Resources Council of Maine attended the event to lend their support to the tribes' efforts to protect the state's rivers, said Laura Rose Day, the group's watershed project director.
She said a situation this summer in which the state admitted it had not monitored discharges from a Champion International mill in Costigan for years highlights problems with giving permitting authority to the states.
Records at the facility had been falsified for years and the problem was not uncovered until monitors from the Penobscot Nation raised questions about water quality in the area.
© 2000 Bangor Daily News Bangor, ME via Bell&Howell Information and Learning Company; All Rights Reserved.
