Bangor Daily News Susan Young Saturday, May 11, 2002
Tribes reject
water compact
Governor
puzzled by sudden reversal
An agreement that was initiated by Gov. Angus King aimed at ending a dispute between two Indian tribes and the state over water quality regulation has fallen apart.
The Passamaquoddy Tribe and the Penobscot Nation said Friday that they would not sign on to the agreement because it would continue to allow the state’s paper companies to exert too much influence over water quality standards.
However, the tribes agreed to turn over records sought by the companies as part of a legal battle surrounding the water quality issue.
“People were not living up to their word,” Penobscot Gov. Barry Dana said Friday.
The tribes wanted to finally separate the water quality issue from the document case and this action will allow them to do so, he said.
“The [tribal councils] believe that Great Northern Paper Inc. and Georgia-Pacific Corporation have exerted unfair influence on both the pace of the negotiation process and the proposed memorandum of agreement,” wrote Dana and Passamaquoddy Govs. Richard Stevens and Richard Doyle in letters to Maine Attorney General Steven Rowe.
When it became obvious to the tribes that state negotiators were consulting with an attorney for several paper companies over the terms of the agreement, the tribal councils voted to withdraw their support for the document, Dana said. The same councils voted to support the agreement last month.
The turnaround puzzled King who spoke with Doyle at a reception at the Calais Motor Inn on Friday.
Doyle blamed the change of heart on the fact that the agreement lacked substance.
“What we wanted to do is talk and have these agreements say something. After looking at it for a couple of weeks, we kept seeing the words ‘may’ instead of ‘will,’” Doyle told King. “That leaves the chance that some of our cultural practices weren’t going to be included, so it really didn’t give us much.”
King said he was “disappointed and surprised” by the tribes’ reversal.
“I thought it was approved and done and all we were waiting for was the final agreement between the tribes and the EPA, and I wasn’t aware that there was any problem on that front. My impression was that the EPA was prepared to finalize something by the deadline, which is today. I thought it was an historic agreement and I think the tribal leaders thought so too. I don’t know where we go from here. I am afraid we are back in court and moving forward,” he said.
King said state officials talked with the paper companies and others interested in the rivers, but “they were not calling the shots.”
The agreement, which was to be joined by a similar agreement between the tribes and the U.S. Environmental Protection Agency, was meant to settle the issue of whether the state or federal government would regulate pollution discharges into tribal waters.
The state applied several years ago for authority to issue such permits under the Clean Water Act. The tribes objected to the state’s application saying it was too lenient on paper companies. By withdrawing their support for the agreement, the tribes are also renewing their objection to the state’s application, Dana said.
The agreement was also supposed to settle a long-running court battle over tribal documents that the paper companies sought from the tribes under the state’s Freedom of Access law. The tribes steadfastly argued that they were exempt from the document law. A Superior Court judge sentenced three tribal governors to jail for not producing the documents. The tribes appealed the case all the way to the U.S. Supreme Court, which refused to hear it.
Now, the tribes have proposed to make documents requested by the paper companies available for their review at the offices of the Natural Resources Council of Maine in Augusta from noon to 5 p.m. beginning May 24. The tribes will assess “reasonable charges” for identifying and gathering the records and charge a copying fee of $1 per page, according to a letter sent late Friday to executives at Great Northern and Domtar, which acquired the G-P mill in Baileyville last year.
Brooke Barnes, deputy commissioner of the Maine Department of Environmental Protection, the agency seeking water quality permitting authority, said state officials were “perplexed, confused, stunned” by the tribes’ rejection of the agreement.
He called allegations of paper company influence over the terms of the agreement “baloney.”
At the end of the negotiations, which were kicked off by King in February, state and tribal officials agreed to share the agreement with Matt Manahan of Pierce Atwood in Portland, the attorney for the paper companies. He made one suggestion on a language change which was agreed to by a tribal attorney, and the change was made.
Manahan said Friday that he, too, was “mystified” by the tribes’ charges.
He said he made several requests to review drafts of the agreement, but was told it was not possible. He did not see a copy of the agreement until the eve of the tribal council votes in April, Manahan said.
The tribal governors said Friday that they were also upset that Manahan only recently said his clients would not drop their lawsuit until the state was given the authority to issue the water permits. He was quoted publicly in April as saying this was the case.
The Passamaquoddy governors said in a letter to paper company executives Friday: “These shifts in your positions have left us confused and with much distrust of your word.”
The companies’ actions had “intolerably soured the process,” the men wrote.
As for the tribe’s willingness now to produce the requested documents, Manahan said that would be acceptable as long as the papers turned over “comply with the court’s order.”
Dana said Friday that the request for documents was very broad and that the tribes hoped the request could be made more specific before May 24.
Basically, the water quality matter is now back in the hands of the EPA, which is still reviewing the state’s application for permitting authority.
More than a year ago, the agency granted permitting authority to the DEP in most of the state, but said it needed further guidance from the Department of Justice as for what to do in Indian territory, which includes portions of the Penobscot and St. Croix rivers.
Tim Williamson, an EPA attorney, said it made sense to separate the document case from the permitting issue. He said his agency was “perhaps naively hopeful” that the parties will soon go back to the negotiating table.
King said he, too, hoped this was the case but was skeptical that the judge would allow another delay in the lawsuit to accommodate more talks.
“The tribe has not totally closed the door on reaching an agreement with the state, but we want to do it in an atmosphere where we are not pressured by timelines and deadlines and court motions and all those kinds of things, and I think that would produce a stronger and more beneficial agreement for both parties,” Doyle said.
NEWS reporter Diana Graettinger contributed to this report.