Maine Court Rejects Newspapers' Bid for Tribal Records

By: Passamaquoddy documents and meetings about a proposed $500 million liquefied natural gas terminal on tribal land in Washington County need not be open to the public, Maine's highest court ruled Monday.

The Supreme Judicial Court unanimously upheld a lower court's ruling that the tribe's Pleasant Point reservation was not subject to the state Freedom of Access Act in its negotiations with an Oklahoma developer because tribal officials were acting as a business rather than as a municipality.

The justices noted that while the state law implementing the 1980 Indian Land Claims Settlement treats the Passamaquoddy Tribe and Penobscot Nation as municipalities for many purposes, the tribes can under certain circumstances act as sovereign nation, a person or a business corporation.

In meeting behind closed doors to consider whether to lease tribal land to Quoddy Bay LLC, the reservation was engaged in a profit-making business rather than municipal governance, the court said.

"The fact that a municipality like the Town of Harpswell could have entered into a similar lease, and would have been subject to FOAA in doing so, cannot be determinative because Harpswell is a municipality at all times and for all purposes, while the Reservation is not," the opinion read.

The appeal was brought by the Bangor Daily News and The Quoddy Tides newspapers, which sought access to tribal council meetings in which the LNG project was discussed and to reservation documents about the project.

The court said the high degree of public interest in LNG development along the Maine coast had no bearing in determining in what capacity the tribe had acted and that the media's right to access under the state sunshine law is limited to "the transaction of public or governmental business."

"A tribe's actions in a non-governmental capacity cannot be rendered governmental merely by resulting controversy," the opinion said.

Portland attorney Craig Francis, who represented the tribe, said he was surprised that the newspapers chose to appeal the Superior Court ruling but was glad they did. "It's better to have a Supreme Judicial Court decision on this important issue," he said.

Francis said that while he was confident that the law court would side with the tribe, "it would have been a huge blow to tribal sovereignty if they had ruled the other way."

Bernard Kubetz, the Bangor lawyer who argued on behalf of the newspapers, said he understood the court's rationale but was disappointed that the justices didn't give more weight to the statewide importance of the LNG issue.

"If the process was conducted properly and if there were legitimate reasons for the tribe to decide to enter into a lease with a private developer to pursue an LNG facility, then there should be nothing to hide and no reason to hide it," Kubetz said.

"Closed doors and withheld records always raise suspicions," he said, "and if the process was clean, then there should have been no withholding of records or locking of doors in the first place."