Opposition Brief — Penobscot Nation v. Georgia-Pacific Corp.

,

No. 01-723 DFC ©&7 9nn

In The

Supreme Court of the United States

+

PENOBSCOT NATION; PASSAMAQUODDY TRIBE;

BARRY L. DANA, in his capacity as Chief of the

Penobscot Nation; RICHARD M. DOYLE, in his

capacity as Governor of the Passamaquoddy Tribe;

and RICHARD STEVENS, in his capacity as

Governor of the Passamaquoddy Tribe,

Petitioners,

GEORGIA-PACIFIC CORPORATION;

GREAT NORTHERN PAPER, INC.; INTERNATIONAL

PAPER COMPANY; and the STATE OF MAINE,

Respondents.

*

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

®

RESPONDENTS GEORGIA-?ACIFIC

CORPORATION’S AND GREAT NORTHERN

PAPER, INC.’S BRIEF IN OPFOSITION

*

CATHERINE R. CONNORS

Counsel of Recori

MatrHew D. MANAHAN

BRIAN M. RaysBack

Pierce ATWOopD

One Monument Square

(207) 791-1100

Counsel for Responitorts

Georgia-Pacific Gmmumattam amt

Great Northern Papper, tm

COCKLE LAW BRIEF PRINTING CO., (800) 225e894

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Was the United States Court of Appeals for the

First Circuit required to vacate the United States District

Court for the District of Maine’s decision that it lacked

subject matter jurisdiction under the well-pleaded com-

plaint rule when the First Circuit affirmed the District

Court’s ruling on the alternate grounds of res judicata,

thereby depriving the original decision of issue preclu-

sive or binding precedential effect?

2. In addressing Petitioners’ motion for rehearing

and rehearing en banc, was the United States Court of

Appeals for the First Circuit required to expunge lan-

guage from its decision discussing jurisdictional issues

before entering judgment based on res judicata principles?

ii

CORPORATE DISCLOSURE STATEMENT

1. Respondent Great Northern Paper, Inc. is a

wholly-owned subsidiary of Inexcon Maine LLC. There >

are no publicly held companies that own 10% or more of

the party’s stock.

2. Respondent Georgia-Pacific Corporation has no

parent companies, and there are no publicly held com-

panies that own 10% or more of its stock.

iii

TABLE OF CONTENTS

Page

CUBS LIND FIRB IED cc vccccccccccesccccvccees i

CORPORATE DISCLOSURE STATEMENT .......... ii

TABLE OF CONTENTS...... ie deeheawhpewewa cad iii

pol FR Be BM Naey. @ cry A rer ee iv

STATEMENT OF THE CAGE... ccccesviiesscccvcess 1

I. The Status of the Tribes Under the Settlement

WONG seas SA ORNS A eV Re oup ees ER eseces hese eeeee 2

II. The Factors Prompting the Companies’ FOAA

RPT Tee PES TET EEE ATT Pe CREEK EEE 4

III. The Resulting State and Federal Litigation .... 5

REASONS FOR DENYING THE WRIT............. 7

I. There Is No Basis To Vacate the District Court's

Decision On Equitable Grounds............... 8

II. There Is No Reason To Vacate the First Circuit's

Discussion of the Well-Pleaded Complaint Rule

On RGURNEGe GOWN oc ese ieee cece 14

Ill. Even If This Court Chooses To Grant the Writ, A

Summary Disposition Is Inappropriate ........ 16

SUITS Actua sbie ew ¥s obs ce'ech 010.8 4) v0.no vee sese 18

iv

TABLE OF AUTHORITIES

Page

Cases

Akins v. Penobscot Nation, 130 F.3d 482 (1st Cir.

DOF i i scp aaah eves ec0seebs can boeeatedeel ice wanseekn 4

Audette v. Sullivan, 19 F.3d 254 (6th Cir. 1994)....... 10

Blue Cross & Blue Shield v. Nielsen, 142 F.3d 1375

(13th Cis. 1996) (oer CuMAMA). oe sia ees 11

Dedham Water Co. v. Cumberland Farms Dairy, Inc.,

TFS Hee GE CGE Ge TORE io cveccccnccesncevseses 16

Dilley v. Gunn, 64 F.3d 1365 (9th Cir. 1995).......... 17

Gelb v. Royal Globe Ins. Co., 798 F.2d 38 (2d Cir.

SHOE «cian ivi vtnichned taba Cee eeeshed tieackeiiakens 10

Great Northern Paper, Inc. v. Penobscot Nation, 2001

ME 68, 770 A.2d 574, cert. denied, 70 U.S.L.W.

BE Se ee Pe eee 1, 4, 3, 6, 7

Great Northern Paper, Inc. v. Penobscot Nation,

CV-00-329 (Me. Super. Ct., Cumb. Cty., Sept. 19,

SD COONS, Bebo ease venccnctentinsrsctawieesrtee 6

Hoult v. Hoult, 157 F.3d 29 (1st Cir. 1998) ........ 10, 15

In re Smith, 964 F.2d 636 (7th Cir. 1992).......... 12, 13

Mills v. Apfel, Civil No. 99-27-P-H, 2000 U.S. Dist.

LEXIS 9691 (D. Me. Mar. 6, 2000)................. 12

Oklahoma Radio Assocs. v. Magnolia Broad. Co., 3

PO TOG CO. Cie, BO noo isin ckcdaivnccsccceesss 12

Penobscot Nation v. Stilphen, 461 A.2d 478 (Me.),

appeal dismissed for want of a substantial federal

question, GhG WD. SG3 CSG ainsi ccs tassecivecccnas 3

v

TABLE OF AUTHORITIES - Coritinued

Page

Potomac Greens Assocs. P’ship v. City Council, 6 F.3d

SO Se Co Rs a 5 ace by care bh ih eeeep cacneene 11

U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship,

Be Sas PE as des hice s Vivien reas cevececs 9, 17

United States v. Munsingwear, 340 U.S. 36 (1950)..... 13

STATUTES

Pe ERE Thine 5a nob 4.c doe C155 eS evb se hs t OO 3

“US. Const. art. II, § 2...... esse cece cece cence ee eeeees 3

Et Fab Og | Ay eS was eee ey eer ee bee 5

Se AR, TE BEEF ev a eb se Cec cbdeveneedesesee 3

pe CD Pe PO ee ar reas mony sre 3

Re eancacena 4

Me. Rev. Stat. Ann. tit. 1, §§ 401-410................. 1

Me. Rav. Seat. Amn. Gt. 1, 6 GAD) 00. cerscvwcvsccves 6

Me. Rev. Stat. Ann. tit. 30, §§ 6201-6214.............. 3

Me. Rev. Stat. Ann. tit. 30, § 6204..... Lie Spiele CR Aca dee 5

LEGISLATIVE History

H.R. Rep. No. 96-1353 (1980), reprinted in 1980

EEN BE RE POP, EPP ee ee ere eee ee 3

- JREGULATIONS

66 Fed. Reg. 12,791.......... aN RT ER KAAS DSO ie ee ks 4

vi

TABLE OF AUTHORITIES - Continued

Page

RuLEs 3

Sep. Ch, Bei BOAR vii ie cece se tbe dare veven es 8, 11, 16

MISCELLANEOUS AUTHORITIES

Restatement (Second) of Judgments § 27......... 10, 16

Restatement (Second) of Judgments § 27 cmt. h..... 16

Restatement (Second) of Judgments § 27 cmt. o..... 10

18 James Wm. Moore, et al., Moore’s Federal Prac-

thee © S27 Ce oo isa rk bce d see hc bes Clarke es « 13

18 James Wm. Moore, et al., Moore’s Federal Prac-

thes © TSGQR Ses cis ve ei ewnevesebeles us Fisiseeeecuse 12

3 STATEMENT OF THE CASE

This is the second petition for certiorari that Peti-

tioners (hereinafter “the Tribes”) have filed this year, both

arising out of their refusal to comply with Maine’s Free-

dom of Access Act (“FOAA”), Me. Rev. Stat. Ann. tit. 1,

§§ 401-410 (West 1989 & Supp. 2001).

In the first petition, the Tribes sought review of the

Maine Supreme Judicial Court (“SJC”)’s decision on the

merits, in which the SJC held that the Tribes had to

comply with some, but not all, of the FOAA requests

served upon them by the Respondents (hereinafter “the

Companies”). See Great Northern Paper, Inc. v. Penobscot

Nation, 2001 ME 68, 770 A.2d 574, cert. denied, 70 U.S.L.W.

3338 (U.S. Nov. 13, 2001).}

In the instant petition, the Tribes challenge the deci-

sion of the United States Court of Appeals for the First

Circuit rejecting the Tribes’ effort to collaterally attack the

SJC’s decision. While the exact scope of the relief sought

is not clear, it appears that the Tribes are not challenging

the First Circuit’s holding that the Tribes’ parallel attempt

to litigate the FOAA issues in federal court failed on res

judicata grounds. Rather, it appears that the Tribes want

this Court to order the First Circuit to (1) vacate the

decision of the District of Maine, which the First Circuit

affirmed on the alternate res judicata ground; and (2)

expunge from the First Circuit’s decision some portion of

1 There were originally three companies ‘involved in this

dispute. International Paper Company, the successor in interest

to Champion International Corporation and one of the parties

below, is not participating in this Brief.

the discussion of the well-pleaded complaint rule, upon

which the District Court’s initial decision was based.

In sum, having chosen to file this federal suit and

forced the Companies to litigate it through a rehearing en

banc motion in the First Circuit, the Tribes are now ask-

ing this Court to expunge the record as if their suit were

never filed in the first place.

The Tribes argue that, when a federal court of

appeals decides a case based on an alternate ground from

that relied upon by the district court, equity compels the

appellate court to (1) vacate the district court’s decision;

and (2) include no language in its own opinion discussing

the ground upon which the district court relied. Aside

from the fact that no legal authority exists for such a

novel and extraordinary request, the Tribes have no equi-

table basis to seek such relief, however broadly the term

equity is construed. While the Tribes allude opaquely to

some sort of prejudice in letting the record stand as is,

when a district court decision is affirmed on alternate

grounds, the original ground upon which that decision

was made is not binding upon any court. Similarly, the

First Circuit’s discussion of that original ground does not

bind that Court of Appeals, nor any other court, to any

‘particular determination on that issue in the future.

Hence, the Tribes’ Petition is devoid of any legal or

logical support.

I. THE STATUS OF THE TRIBES UNDER THE

SETTLEMENT ACTS

Rather than repeat a lengthy narrative of this dis-

pute, the Companies provide only a summary of the

essential facts here. A more detailed factual background

is found in the Companies’ Statement of the Case from its

Brief in Opposition to Petitioners’ first petition. A copy of

that Statement is included in the Appendix hereto. (See

Respondents’ Appendix, hereinafter “Resp. App.,” at

App. 1.)

Briefly, the Tribes’ status as Indian tribes is “atypi-

cal.” (Petitioners’ Appendix, hereinafter “Pet. App.,” at

5.) This unique status flows from two legislative enact-

ments, one state and one federal (collectively “the Settle-

ment Acts”): (1) the Maine Act to Implement the Indian

Claims Settlement, Me. Rev. Stat. Ann. tit. 30,

§§ 6201-6214 (West 1996 & Supp. 2001) (“MIA”); and (2)

Congress’s ratification of MIA in the Maine Indian Claims

Settlement Act of 1980, 25 U.S.C.A. §§ 1721-1735 (West

2001) (“MICSA”).2 See Penobscot Nation v. Stilphen, 461

A.2d 478, 489 (Me.), appeal dismissed for want of a substan-

tial federal question, 464 U.S. 963 (1983) (stating the Settle-

ment Acts “set up a relationship between the tribes, the

State, and the Federal government different from the

relationship of Indians in other States to the State and

Federal government”).

2 While not relevant to the issues raised by the Tribes in

their Petition, the Tribes’ characterization of the Settlement Acts

as a “modern-day, tripartite treaty” (Pet. for Cert. at 5 n.1) is

incorrect. Because the Nonintercourse Act does not apply to the

Tribes, 25 U.S.C.A. § 1724(g) (West 2001), the MICSA is not a

treaty, but a statute passed by both houses of Cungress and

signed by the President. See H.R. Rep. No. 96-1353 (1980),

reprinted in 1980 U.S.C.C.A.N. 3786. In contrast, a treaty is

negotiated by the President and ratified by two-thirds of the

Senate. Compare U.S. Const. art. I, § 7 (statutes) with U.S. Const.

art. II, § 2 (treaties).

4

As a result of this legislation, the rule in Maine is that

each Indian tribe “in certain capacities functions as a

municipality of Maine and is reachable under State and

Federal law in that capacity, but when it functions as a

tribe as to internal tribal matters, it is not.” Akins v.

Penobscot Nation, 130 F.3d 482, 485 (1st Cir. 1997).

Il. THE FACTORS PROMPTING THE COMPANIES’

FOAA REQUESTS

The Companies discharge wastewater into rivers in

Maine under federal and state discharge licenses. Great

Northern Paper, 2001 ME 68, ¥ 3, 770 A.2d at 577. Pursuant

to the National Pollutant Discharge Elimination System

(“NPDES”) program of the Clean Water Act, 33 U.S.C.A.

§§ 1251-1387 (West 2001), the State of Maine has applied

to the U.S. Environmental Protection Agency (“EPA”) to

obtain primary authority to issue all NPDES permits in

Maine. Great Northern Paper, 2001 ME 68, { 4, 770 A.2d at

577-78.3

The Companies support full NPDES delegation to the

State of Maine because it would simplify their licensing

processing, reducing costs. The Tribes oppose the delega-

tion, and, in response to the State’s application, asked the

EPA to conclude that the State lacks authority to regulate

the water resources within their reservations because,

according to the Tribes, they are entitled to be treated .

3 On January 12, 2001, the State’s application was granted

for all parts of the State, except disputed Indian country, where

the EPA has yet to make a final decision. 66 Fed. Reg. 12,791

(Feb. 28, 2001).

under the Clean Water Act as a separate “state.” Id. This

Tribal assertion of “state” status, impervious to state reg-

ulatory oversight of environmental issues, conflicts with

the plain language of the Settlement Acts. See, e.g., Me.

Rev. Stat. Ann. tit. 30, § 6204 (“Except as otherwise pro-

vided in this Act, all Indians, Indian nations, and ribes

and bands of Indians in the State and any lands or other

natural resources owned by them .. . shall be subject to

the laws of the State... .”).

On March 9, 2000, counsel for the Companies discov-

ered the existence of agreements between the Tribes and

the EPA providing, among other things, that the EPA will

make its best efforts to protect from disclosure all com-

munications between the Tribes, the EPA, and other fed-

eral agencies, if requested under the federal Freedom of

Information Act, 5 U.S.C.A. § 552 (West 1996 & Supp.

2001). (See Record Item No. 14 before the Maine Supreme

Judicial Court, in Great Northern Paper, Inc. v. Penobscot

Nation, Docket No. CUM-00-573, at {J 4, 6.)

Concerned about the content of these communica-

tions and their potential conflict with the Settlement Acts,

the Companies served FOAA requests on the Tribes, seek-

ing documents relating to the Tribes’ efforts to gain regu-

latory powers over water resources within or adjacent to

their borders. Great Northern Paper, 2001 ME 68, {{ 5-6,

770 A.2d at 578.

III. THE RESULTING STATE AND FEDERAL

LITIGATION

On May 10, 2000, the Tribes rejected the Companies’

FOAA requests, arguing that FOAA did not apply to

them. Id. at J 7, 770 A.2d at 578. Under FOAA, the

Companies had to wait five working days before they

could pursue their FOAA rights by filing an action in

Maine Superior Court. Me. Rev. Stat. Ann. tit. 1, § 409(1).

Before the Companies could file that action, the Tribes

filed the instant suit in federal court, seeking an injunc-

tion against the state court action and a declaratory judg-

ment that they do not have to comply with FOAA. (Pet.

App. at 26.) After the statutory waiting period, the Com-

panies promptly filed their state court action. Great North-

ern Paper, Inc. v. Penobscot Nation, CV-00-329, at 2 (Me.

Super. Ct., Cumb. Cty., Sept. 19, 2000) (Crowley. J.).

Hence, two actions, the Companies’ state FOAA action

and the Tribes’ federal declaratory judgment action, were

launched.

In the federal action, with the state Superior Court

action pending, the Companies filed a motion to dismiss,

asserting various jurisdictional defenses, including the

well-pleaded complaint rule, which provides that federal

jurisdiction cannot be based on a defense to a state law

claim. The federal District Court (Hornby, C.J.) agreed

that the well-pleaded complaint rule applied, and dis-

missed the Tribes’ action on that basis. (Pet. App. at 38.)

The Tribes filed a motion for reconsideration. (Id. at 17.)

While that reconsideration motion was pending, the

state FOAA action proceeded to final judgment, with the

Superior Court granting the Companies’ motion for sum-

mary judgment. Great Northern Paper, 2001 ME 68,

{1 8-10, 770 A.2d at 579. Back in the federal court, the

Companies alerted the District Court to the final judg-

ment; in rejecting the motion to reconsider, the District

——— -— ——— 4-

Court chose again to rely on the well-pleaded complaint

rule jurisdictional ground. (Pet. App. 18 & 24 n.6.)

Back in the state court, the Tribes appealed the Supe-

rior Court decision. The SJC affirmed in part and vacated

in part on May 1, 2001. Great Northern Paper, 2001 ME 68,

{ 64, 770 A.2d at 592.

The Tribes also appealed Judge Hornby’s decision to

the First Circuit Court of Appeals. Both the well-pleaded

complaint rule and res judicata issues (among others)

were briefed and argued. (See PACER docket entry for

12/20/00, Br. of Appellees in Penobscot Nation v. Georgia-

Pac. Corp., Civ. No. 00-2265 (1st Cir.) at 8-21; see also

PACER docket entry for 12/28/00, Reply Br. of Appel-

lants in Penobscot Nation v. Georgia-Pac. Corp., Civ. No.

00-2265 (1st Cir.) at 13-25.) The First Circuit affirmed

dismissal, choosing to base its decision on the res judicata

ground. (Pet. App. at 4-5.) The First Circuit denied the

Tribes’ request for rehearing and for rehearing en banc on

August 24, 2001. (Id. at 39-41.)

+

REASONS FOR DENYING THE WRIT

The Tribes claim that under the rule of vacatur, they

cannot be “forced to live under the cloud of the [D]istrict

[Cjourt’s unreviewed decisions,” and that the First Cir-

cuit’s refusal to expunge its discussion of the well-

pleaded complaint rule somehow conflicts with the deci-

sions of other circuits or is otherwise so far beyond the

usual course of judicial proceedings as to require an

exercise of this Court’s supervisory powers. (See Pet. for

Cert. at 3.) The Tribes do not specify whether they fear

future preclusive or precedential effects of these courts’

decisions, or both, or precisely what language in the First

Circuit’s decision that they wish to erase.

The Tribes do not cite a single case that supports

their novel propositions that (1) a district court decision

affirmed on alternate grounds must always be vacated;

and (2) a decision rejecting a claim on res judicata grounds

must be stripped of any language discussing any other

potential ground for dismissal, including jurisdiction.

This lack of support is not surprising, because, as a

matter of law, the District Court’s decisions and First

Circuit’s discussion of the well-pleaded complaint rule

have neither issue preclusive nor binding precedential

effect. Hence, vacatur would serve no equitable purpose.

There is no conflict between the First Circuit’s decision

denying the Tribes’ petition to vacate and the decisions of

other circuits, let alone a departure from the accepted

course of judicial proceedings that would justify exercise

of this Court’s supervisory powers. Sup. Ct. R. 10(a).

Therefore, the writ should be denied.

I. THERE IS NO BASIS TO VACATE THE DISTRICT

COURT’S DECISION ON EQUITABLE GROUNDS

The Tribes state that they seek vacatur to avoid the

potential future impact of the District Court’s decision

that the well-pleaded complaint rule barred jurisdiction

in this case. Their argument proceeds from an incorrect’

premise, and, therefore, they misapprehend the applica-

tion of the vacatur doctrine to this case.

Vacatur is an equitable doctrine providing that a

party should not suffer the negative effects of a district

court judgment when it is denied the benefit of appellate —

review through happenstance. See U.S. Bancorp Mortgage

Co. v. Bonner Mall P’ship, 513 U.S. 18, 25 (1994).

Here, the Tribes were not denied the benefit of appel-

late review. A portfolio of reasons to dismiss the Tribes’

federal action was presented to the District Court and the

First Circuit. The District Court chose to base its decision

. on reason #1 (the well-pleaded complaint rule). The First

Circuit chose reason #2 (res judicata). At the time the

appeal was briefed and argued, the First Circuit was fully

cognizant of all the relevant facts. It analyzed all the

arguments, including both the well-pleaded complaint

rule and res judicata, and contoured its opinion in light of

all then and now existing circumstances and all the argu-

ments fully and fairly presented to it.

For the reasons that the First Circuit articulated in its

decision, it chose to rest its holding upon the res judicata

ground. It does not follow from this choice, however, that

its analysis, or the District Court’s analysis, of the well-

pleaded complaint rule should be stricken from the

annals as if the well-pleaded complaint rule had never

been raised at all. On the contrary, as both the District

Court and the First Circuit’s decisions noted, the issue is

a complex one that can only benefit from reasoned anal-

ysis by jurists such as Chief Judge Hornby and Chief

Judge Boudin.

Here, moreover, their analyses have only persuasive,

not binding, impact upon the Tribes. Because of its equi-

table nature, the vacatur doctrine logically applies only

when the party invoking the doctrine might be subject to

some unfair consequence absent vacatur. Here, not only

{0

would any consequence not be unfair (for the reasons

noted above), but there is no concrete consequence in the

first place.

The Tribes’ flawed premise is, apparently, that the

District Court’s conclusion that it lacked subject matter

jurisdiction due to the well-pleaded complaint rule some-

how binds that or other courts. (See Pet. for Cert. at 3:

“Those decisions . . . stand against the Tribes for the

future.”) But it is well established that there is no issue

preclusive effect to the original decision when an appel-

late court affirms on alternate grounds, as it did here.

Restatement (Second) of Judgments § 27 cmt. 0 (1982); see

also Audette v. Sullivan, 19 F.3d 254, 257 (6th Cir. 1994)

(holding there is no preclusive effect to district court's

decision when affirmed on different grounds); Gelb v.

Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986) (holding

“if an appeal is taken and the appellate court affirms on

one ground and disregards the other, there is no collateral

estoppel as to the unreviewed ground”).

Because the First Circuit follows the rule in Section

27 of the Restatement (Second) of Judgments, neither of

the District Court’s decisions on the application of the

well-pleaded complaint rule has preclusive effect. Hoult v.

Hoult, 157 F.3d 29, 31 (ist Cir. 1998). Petitioners fail to cite

any authority contrary to this basic point, and therefore

cannot show that the First Circuit’s decision in any way

conflicts with the decisions of other circuits, or is

11

somehow beyond the usual course of proceedings, as

required by Rule 10(a) of this Court.‘

4 The only two decisions cited by the Tribes (Pet. for Cert. at _

20) of even potential relevance only underscore the differences

between the instant situation and those where vacatur might

arguably be appropriate within the discretion of the Court of

Appeals. See Blue Cross & Blue Shield v. Nielsen, 142 F.3d 1375

(11th Cir. 1998) (per curiam); Potomac Greens Assocs. P’ship v.

City Council, 6 F.3d 173 (4th Cir. 1993).

In Blue Cross, the question was whether the Alabama

Provider Act applied to Blue Cross. The District Court said no. It

additionally concluded that even if the Act did apply, it would

be preempted by ERISA. The Eleventh Circuit Court of Appeals

certified the application question to the Alabama Supreme

Court, which declared that the Act did not apply. The Court of

Appeals then accepted the Supreme Court’s conclusion and

vacated the District Court’s decision on the preemption issue.

See Blue Cross, 142 F.2d at 1376.

In Potomac Greens, the plaintiffs challenged a local zoning

ordinance. The District Court agreed with two of their

arguments: (1) the defendant had violated a state notification

statute; and (2) the defendant had violated a state rule of

statutory construction. The Fourth Circuit Court of Appeals

certified both issues to the Virginia Supreme Court. The

Supreme Court declared that the notice statute had been

violated, and declined to address the statutory construction

issue. Because the state court declined to address it, the Court of

Appeals vacated the District Court’s ruling on that issue as well.

See Potomac Greens, 6 F.3d at 177.

Thus, both cases went to state law issues, and the federal

courts demurred to the highest state courts’ rulings. The district

court’s conclusion on ERISA preemption in Blue Cross was no

longer valid because the state law did not apply to the plaintiff

in the first place. A law cannot be preempted if it does not apply.

In Potomac Greens, the ordinance was similarly inapplicable by

virtue of the defendant’s violation of the state notification

statute rendering the ordinance void ab initio.

12

Similarly, although it is an open question whether

vacatur can appropriately be used to invalidate the prece-

dential effects of decisions, see, e.g., In re Smith, 964 F.2d

636, 638 (7th Cir. 1992) (“We vacate unappealable deci-

sions, to prevent them from having a preclusive effect.

We do not vacate opinions, to prevent them from having

a precedential effect.”), it is clear that district court deci-

sions are not binding precedent even within the same

district. See 18 James Wm. Moore, et al., Moore’s Federal

Practice § 134.02[1][d]; Mills v. Apfel, Civil No. 99-27-P-H,

2000 U.S. Dist. LEXIS 9691, at *2 (D. Me. Mar. 6, 2000).

Therefore, because the decision of the District Court in

this case can have nothing more than persuasive value,

there is once again no compelling reason to grant vacatur

in this instance, and the Tribes have failed to supply one.

See Oklahoma Radio Assocs. v. Magnolia Broad. Co., 3 F.3d

1436, 1437 (10th Cir. 1993) (refusing to vacate and holding

settlement agreement went “beyond the rationale of

Here, in contrast, the Tribes seek to vitiate a federal court’s

decision on a question of federal jurisdiction. No state statute or

ordinance has been eliminated by virtue of a determinative

finding of state law, rendering any other federal court musing

on that state statute or ordinance not only hypothetical but an

intrusion into state legislation. The appeals presented to the

Eleventh and Fourth Circuits were resolved by the state

supreme court rulings. Here, the issue on appeal to the First

Circuit on the well-pleaded complaint grounds was not

eliminated by the Maine SJC’s decision. In fact, the Tribes

argued vigorously that res judicata principles did not apply. The

well-pleaded complaint ground for dismissal remained as

viable a ground for dismissal as it was in front of the District

Court. The SJC decision added a ground for the First Circuit to

review, as opposed to eliminating the need for review, as in the

cases noted above.

13

vacatur” by agreeing to deprive decision of precedential

effect); In re Smith, 964 F.2d at 638 (holding that courts

lack jurisdiction under Article III to vacate decision that

has no preclusive effect because parties have no tangible

interest in mere precedential effect).

In sum, because the District Court’s decisions can

have neither issue preclusive nor binding precedential

effect, any reason that could justify vacatur in another

case does not exist here because there are no binding

“legal consequences” to the unreviewed decision. United

States v. Munsingwear, 340 U.S. 36, 41 (1950). Although the

Tribes cite numerous cases where this Court has vacated

decisions that could not be appealed through no fault of

the parties, they do not cite any authority that the courts

should waste resources vacating decisions that have been

appealed, and the appellate court determines to affirm

the decision below on alternate grounds after reviewing

all the issues.

The Tribes’ argument, when taken to its logical con-

clusion, cannot stand under its own weight. They would

apparently require, upon a proper motion, that appellate

courts vacate every district court decision that is affirmed

on alternate grounds. But there is no logical reason to

limit their argument at this point. It would seemingly also

apply when an appellate court affirms on only one of a

district court’s alternate, independent grounds, even

though the unreviewed ground could have neither pre-

clusive nor binding precedential impact. See 18 James

Wm. Moore, et al., Moore’s Federal Practice § 132.03[4][a]

(issue preclusion applies to “only those issues necessary

to support the judgment entered in the first action”).

14

‘

Appellate courts acting in equity are not in the business

of vacating decisions that do not have binding future

effects, and would certainly need a legion of new staff

attorneys to attend to such cases if they were. This Court

should deny the writ.

~~ s.

II. THERE IS NO REASON TO VACATE THE FIRST

CIRCUIT’S DISCUSSION OF THE WELL-

PLEADED COMPLAINT RULE ON EQUITABLE

GROUNDS.

In addition to seeking to vacate the District Court’s

decision on the application of the well-pleaded complaint

rule, the Tribes also ask this Court to expunge some or all

of the First Circuit’s decision. (See Pet. for Cert. at 27-28.)

As a threshold matter, the Tribes fail to explain

exactly what they seek to change about the First Circuit's

opinion, and this Court should not be forced to guess.

(See Pet. for Cert. at 27, alluding generally to a seven-

page discussion of the well-pleaded complaint rule at Pet.

App. 5-11, and/or language that “could be interpreted as

approving the district court’s decisions” at Pet. App. 9.)

Nor do the Tribes suggest how this Court would go about

carving out only those portions of the opinion that the

Tribes find objectionable.

As an additional uncertainty, the Tribes twice request

that this Court vacate the First Circuit’s “judgment” (Pet.

for Cert. at 23 & 29), even though they have not appealed .

the res judicata grounds relied upon in the decision to —

affirm the District Court. Vacating the judgment of the

First Circuit would go well beyond addressing the Tribes’

stated concerns about the application of the well-pleaded

complaint rule.

ng A IP tt

: : |

15

Regardless what the Tribes seek to expunge from the

First Circuit’s decisions, they provide no authority for

their request. The First Circuit’s discussion- of subject

matter jurisdiction was logical in light of the District

Court’s decision. It is informed, well-reasoned and pro-

vides guidance on a difficult and complex issue, after

both sides had a full and fair opportunity to brief the

issue.

In any event, the First Circuit stated:

[W]e are reluctant (despite the urging of the

district court that we clear up the matter) to

decide in advance of necessity whether a federal

claim can be conjured out of a lawsuit by the

Tribes asserting that the threatened actions vio-

late the internal affairs limitation contained in

Maine law and purportedly ratified by a federal

statute. Perhaps there is not even a single

answer to this question - it could conceivably

turn on the circumstances. See Penobscot I, 106

F, Supp. 2d at 83, n.4. In all events, no answer is

needed in this case... .

(Pet. App. at 11.)

Given that vacatur does not apply to decisions that

have no preclusive or binding precedential effect, as dis-

cussed above, it strains credulity that this Court would

grant certiorari to censor the First Circuit’s discussion of

jurisdiction. Once again, the Tribes cite no authority for

the proposition that vacatur exists to wipe away a discus-

sion that has no binding legal consequences.

Under federal law in the First Circuit, issue preclu-

sion applies only to those elements that are “essential to

the judgment.” Hoult, 157 F.3d at 31 (citing Restatement

16

(Second) of Judgments § 27). The First Circuit’s discus-

sion of jurisdiction was not essential to the judgment, and

therefore cannot have preclusive effect. Id.; Restatement

(Second) of Judgments § 27 cmt. h. Nor do the First

Circuit’s statements have binding precedential effect.

E.g., Dedham Water Co. v. Cumberland Farms Dairy, Inc., 972

F.2d 453, 459 (1st Cir. 1992) (“Dictum constitutes neither

the law of the case nor the stuff of binding precedent.”).

Finally, as a practical matter, if vacatur were available to

expunge such discussions, this Court would constantly be

rewriting opinions to ensure that only whatever it or the

Petitioner deemed the core holding remained.

Once again, the Tribes have failed to present compel-

ling authority that the First Circuit’s decision conflicts

with the decisions of other circuits or has “so far

departed from the accepted and usual course of judicial

proceedings” as to require this Court to exercise its juris-

diction. Sup. Ct. R. 10(a). The writ should be denied.

Ill. EVEN IF THIS COURT CHOOSES TO GRANT

THE WRIT, A SUMMARY DISPOSITION IS

INAPPROPRIATE.

Even if this Court chooses to grant the writ, the

summary disposition sought by the Tribes would be inap-

propriate. (See Pet. for Cert. at 3 (asserting “because the

First Circuit’s error is clear” that “summary disposition is

appropriate”).) Because they fail to recognize that the

District Court’s decisions and the First Circuit’s jurisdic-

tional discussion have no binding impact, the Tribes

wrongly argue that they “are locked out of the federal

court.” (Pet. for Cert. at 23.) The Tribes apparently

17

assume that vacatur is automatic, but this Court rejected

that approach in U.S. Bancorp. E.g., Dilley v. Gunn, 64 F.3d

1365, 1370 (9th Cir. 1995) (stating that automatic vacatur

is no longer the established practice in light of U.S.

Bancorp).

Pursuant to U.S. Bancorp, the Tribes, “as the party

seeking relief from the status quo of the appellate judg-

ment,” must demonstrate “equitable entitlement to the

extraordinary remedy of vacatur.” U.S. Bancorp, 513 U.S.

at 26. “As always when federal courts contemplate equi-

table relief, [the Court’s} holding must also take account

of the public interest.” Id. To grant vacatur automatically,

according to the Court, would treat judicial precedents as

the private property of the litigants and disturb the

orderly operation of the judicial system. Id. at 26-27.

As this Court has made clear, the primary route to

seek relief from the consequences of a judgment is by

appeal as of right and certiorari; the secondary option of

vacatur is only available as a stopgap when orderly pro-

cedure otherwise fails. Id. at 27. No such procedural

failure occurred here. The Tribes chose to file a parallel

federal suit; the state suit was resolved first; the Court of

Appeals had all the circumstances before it when it chose

to discuss the well-pleaded complaint rule and base its

holding on res judicata grounds. Given that the usual

rules of preclusion and precedent will ensure that there

are no binding legal consequences to the District Court’s

decisions or the First Circuit’s discussion of the jurisdic-

tional issue, and that the Tribes have declined to petition

for certiorari on the merits of the decision below, there is

18

simply nothing present in this case that is urgent (or

automatic) enough to justify a summary disposition.

>

CONCLUSION

For all the foregoing reasons, the Petition for Cer-

tiorari should be denied.

Respectfully submitted,

CATHERINE R. CONNORS

Counsel of Record

MattHew D. MANAHAN

BRIAN M. RayBACkK

Pierce ATWOooD

One Monument Square

Portland, Maine 04101-1110

(207) 791-1100

Counsel for Respondents

Great Northern Paper, Inc., and

Georgia-Pacific Corporation

APPENDIX

TABLE OF CONTENTS

Page

Excerpt from Respondent Companies’ Brief in

Opposition, Penobscot Nation v. Great Northern

Paper, Inc., No. 01-381, Statement of the Case,

previously lodged with this Court.....<°c7>>..App. 1

App. 1

STATEMENT OF THE CASE

This case comes before the Court from the decision

and order of the Maine Supreme Judicial Court, sitting as

the Law Court, affirming in part and vacating in part an

order of the Maine Superior Court requiring Petitioners

to produce documents pursuant to state law.

In the decision below, the Law Court held that Peti-

tioners must comply in part with a document request

served on them by Respondents under Maine’s Freedom

of Access Act, 1 Me. Rev. Stat. Ann. §§ 401-410 (1989 &

Supp. 2000) (hereinafter “FOAA”). The Law Court's rul-

ing that Petitioners are partially subject to and partially

exempt from FOAA turned on the Court's construction of

the “internal tribal matters” exception to the general rule

that, in their governmental capacities, the Penobscot

Nation and the Passamaquoddy Tribe (hereinafter “the

Tribes”) are treated like municipalities. See 30 Me. Rev.

Stat. Ann. § 6206.}

This Court has ruled in the past that the Law Court’s

interpretation of the scope and applicability of Section

6206’s “internal tribal matter” exception does not raise a

1 Section 6206 (found at Petitioners’ Appendix, hereinafter

“Pet. App.” at 40), provides in relevant part:

The Passamaquoddy Tribe and the Penobscot Nation,

within their respective Indian territories, shall have,

exercise and enjoy all the rights, privileges, powers

and immunities . . . and shall be subject to all the

duties, obligations, liabilities and limitations of a

municipality of and subject to the laws of the

State, provided, however, that internal tribal

matters . . . shall not be subject to regulation by the

State.

App. 2

sufficiently substantial federal question to warrant this

Court’s review. See Penobscot Nation v. Stilphen, 461 A.2d

478 (Me.), appeal dismissed for want of substantial federal

question, 464 U.S. 963 (1983). The Court should so rule

again, and reject the petition for writ of certiorari in this

case.

Certain aspects of the factual, procedural, and histor-

ical record presented by Petitioners need correction or

clarification.

I. THE TRIBES’ UNIQUE STATUS

The Law Court’s ruling, and interpretation of the

Maine Implementing Act, 30 Me. Rev. Stat. Ann.

§§ 6201-6214 (West 1996 & Supp. 2000) (hereinafter

“MIA”), apply and are relevant solely to Maine Indians,

because the status of and rules that apply to these Tribes

are unique. See Penobscot Nation v. Georgia-Pacific Corp.,

254 F.3d 317, 320 (1st Cir. 2001) (Petitioners’ status is

“atypical.”) The Tribes’ own counsel noted: “what we

wound up with was a blueprint for a governmental rela-

tionship between Indians and non-Indians alike — unlike

that which exists anywhere else in the United States.”

(Testimony of Thomas Tureen, Public Hearing Before the

Maine Joint Select Committee on Indian Land Claims,

dated Mar. 28, 1980, cited in Stilphen, 461 A.2d at 488.)

This unique status is the product of two legislative

enactments, one state and one federal (collectively “the

Settlement Acts”): MIA; and Congress’s ratification of

MIA in the Maine Indian Claims Settlement Act of 1980,

25 U.S.C. §§ 1721-1735 (1994) (hereinafter “MICSA”). See

Stilphen, 461 A.2d at 489 (the Settlement Acts “set up a

App. 3

relationship between the tribes, the State, and the Federal

government different from the relationship of Indians in

other States to the State and Federal governments.”)

The historical backdrop of this legislation and of the

relationships between the Tribes and the State of Maine

has been exhaustively treated in numerous state and fed-

eral cases. See, e.g., Stilphen, 461 A.2d at 487-89. The First

Circuit has summarized:

The settlement represerited a partial victory for

[Petitioners] and Maine: [Petitioners] obtained

federal recognition as . . . Indian tribe[s] and

received . . . $81.5 million appropriated under

the Settlement Act (see 25 U.S.C. § 1733) and, in

exchange, [Petitioners’] claims against Maine

were extinguished. Further, while [Petitioners’]

right to self-government was preserved to a lim-

ited extent, Maine was permitted to extend its

jurisdiction over [Petitioners] to a greater degree

than most states exercise over other Indian

tribes.

Penobscot Nation v. Fellencer, 164 F.3d 706, 708 (1st Cir.

1999).

The general rule in Maine, unlike anywhere else, is,

as Section 6206 expressly provides, that the Tribes enjoy

the immunities and bear the responsibilities of a munici-

pality, and are subject to state regulation. See also 30 Me.

Rev. Stat. Ann. § 6204 (contained in the Appendix hereto,

or “Resp. App.,” at 4) (“Except as otherwise provided in

this Act, all Indians, Indian nations, and tribes and bands

of Indians in the State and any lands or other natural

resources owned by them... shall be subject to the laws

of the State... ”).

App. 4

The exception to this general rule applies when an

“internal tribal matter” is involved, in which case neither

the state nor the federal government may intrude (absent

Congressional authorization). See Akins v. Penobscot

Nation, 130 F.3d 482, 485 (1st Cir. 1997) (each tribe “in

certain capacities functions as a municipality of Maine

and is reachable under State and Federal law in that

capacity, but when it functions as a tribe as to internal

tribal matters, it is not.”)

Views differ over whether the Settlement Acts lim-

ited or expanded tribal powers, but “this disagreement

stem|[s] primarily from... differing views as to the extent

of the tribes’ power before the settlement.” Id. Whatever

the situation before the Settlement, general judicial con-

sensus exists as to the Tribes’ status after passage of the

Settlement Acts. The First Circuit’s view is that the Settle-

ment Acts preserved the Tribes’ right to self-government

only “to a limited extent.” See Fellencer, 164 F.3d at 708.

The Law Court agrees. (See Pet. App. at 18-19.)

This “municipal model” of state regulatory authority,

with the “internal tribal matter” exception to state and

federal authority (see id. at 20), is the result of a compro-

mise in the truest sense. Both the First Circuit and the

Law Court recognize that the Tribes surrendered their

sovereignty except in limited instances, and in return

derived substantial benefits. See Georgia-Pac. Corp., 254

F.3d at 320; Pet App. at 15-17; Stilphen, 461 A.2d at 488

n.7. Petitioners’ revision of this historical backdrop is an

attempt to undo the compromise that the Settlement Acts

2 The decision below is set out in full at pages 1-35 of the

Appendix to the Petition for Certiorari and is cited herein as

“Pet. App.,” followed by the Appendix page number.

App. 5

achieved, the benefits of which the Tribes already have

received.

II. RESPONDENTS’ INTERACTION WITH THE

TRIBES LEADING UP TO THE FOAA REQUESTS

Respondents discharge wastewater into rivers in

Maine under federal and state discharge licenses. Pur-

suant to the National Pollutant Discharge Elimination

System (“NPDES”) program of the federal Clean Water

Act, 33 U.S.C. §§ 1251-1387 (West 1986 & Supp. 2000), the

State of Maine has applied to the U.S. Environmental

Protection Agency (“EPA”) to obtain primary authority to

issue all NPDES permits in the State of Maine. (See Pet.

App. at 2.) In response to the State’s application, the

Tribes asked EPA to conclude that the State is not entitled

to regulate water resources within their territories,

because, the Tribes said, they are entitled under Section

1377(e) of the Clean Water Act to be treated like a sepa-

rate “state.” (See id. at 3.)5

3 In their Petition (n.11), the Tribes continue to suggest that

this point is factually incorrect. While not relevant to the legal

analysis, the limited documents to which Respondents have had

access to date indicate the contrary. (See, e.g., Feb. 28, 2000 letter

from the Penobscot Nation to EPA (seeking treatment as state

(“TAS”) status for purposes of grant funding, and asserting that

“the Nation has jurisdiction over the resources affected by the

program” and that “the Nation has jurisdiction exclusive of the

State of Maine over its internal tribal matters”; “As with all land

use matters, new construction is within the exclusive

jurisdiction of the Nation as an internal tribal matter”); and

Sept. 10, 1993 letter from EPA to Penobscot Nation (offering the

clarification sought by the Penobscot Nation “as to why this

approval of TAS status is limited to the water quality CWA § 106

App. 6

Thus, Petitioners appear to be taking the position

before the EPA that they — and not the State of Maine -

should have regulatory authority over water resources

that Petitioners contend are within Indian Territory. This

position is directly contrary to the express language of

the Settlement Acts. See, e.g., 30 Me. Rev. Stat. Ann. § 6204

(Resp. App. at 4) (“Except as otherwise provided in this

Act, all Indians, Indian nations, and tribes and bands of

Indians in the State and any lands or other natural

resources owned by them... shall be subject to the laws

of the State... ”).

At the same time, on March 9, 2000, counsel for the

Companies discovered the existence of Tribal Environ-

mental Agreements (“TEAs”) between the Tribes and the

EPA, executed between June and October 1999. (See

Record Item No. 14 before the Maine Supreme Judicial

Court, in Great N. Paper, Inc. v. Penobscot Nation, Docket

No. CUM-00-573, at { 6.) These TEAs provide, among

other things, that the EPA will make its best efforts to

protect from disclosure all communications that have

been exchanged between the EPA, other federal agencies,

the Tribes, and the parties’ representatives, when such

communications are requested under the federal Freedom

of Information Act (“FOIA”). (See id., { 4.)

grant purposes and to the water resources over which the Tribe

exercises management and protection functions for purposes of

the grant activities”), attached as Exhibits E and F to

Respondents’ Opposition to Motion For Stay, dated August 15,

2001, before the Superior Court.)

App. 7

Ill. RESPONDENTS’ FOAA REQUESTS AND THE

RESULTING LITIGATION

Faced with the Tribes’ efforts to convince the EPA to

disregard the terms of the Settlement Acts, along with the

EPA’s agreement to use its best efforts to conceal any

ongoing communications with the Tribes, Respondents

served state FOAA requests on the Tribes. Respondents’

requests sought “documents relating to the Tribes’ efforts

to gain regulatory powers over water resources within or

adjacent to their borders.” (Pet. App. at 3.) Respondents

seek to view these documents at the Tribal offices “or

other reasonable location.” (FOAA Requests, found at Ex.

A to Complaint, Record Item 1.)4

* FOAA provides that the public shall have the right to

inspect records during the regular business hours “of the

custodian or location of such record.” 1 Me. Rev. Stat. Ann.

§ 408. Thus, it is the decision of the possessor of the record

where to maintain those records and allow inspection. Contrary

to the Tribes’ claims throughout their Petition, Respondents

have never insisted on viewing the documents at their

reservations; have said so on frequent occasions (e.g., the FOAA

requests themselves, Ex. A to Record Item 1); and would in fact

prefer to view them off-site, e.g., in the Tribes’ attorneys’ offices

in Portland.

In a letter dated Oct. 17, 2000, Respondents’ counsel wrote:

“The Penobscot Nation states that we will not be allowed onto

Indian Island to review records. This position is unacceptable

and not in compliance with the requirements of the FOAA. The

FOAA expressly states that ‘every person shall have the right to

inspect and copy any public record during the regular business

hours of the custodian or location of such record... .’”

Consistent with the FOAA requests themselves, counsel thus

cited the public’s right to view documents where the custodian

chooses to locate the records - this may or may not be on the

Tribes’ territories, as they choose. In any event, as discussed

App. 8

“After [the Tribes] received notice from [Respon-

dents] but before [Respondents] could get to state court

under the statutorily required waiting period, [the Tribes]

filed [a] federal lawsuit against [Respondents] seeking an

injunction against any state court lawsuit and a declara-

tory judgment that the Maine Freedom of Access Act

violates ‘their federal right to be free of such state regula-

tion.’” Penobscot Nation v. Georgia-Pac. Corp., 106

F. Supp. 2d 81, 82 (D. Me.), reconsideration denied, 116

F. Supp. 2d 201 (D. Me. 2000), aff'd on other grounds, 254

F.3d 317 (1st Cir. 2001).

Petitioners rejected Respondents’ FOAA requests,

declaring that no aspect of FOAA applied to them,

“because ‘the application of that law ... would amount to

state regulation of [the Tribes’] governmental process,

policies, and procedures.’” (Pet. App. at 5; ellipsis and

square brackets in original.) The Tribes offered to pro-

duce records in their possession that were not confiden-

tial under Petitioners’ unspecified tribal laws and policies

or otherwise protected from disclosure under Maine’s

discovery and evidentiary rules. (See id.)

Because the Tribes thus declined to allow inspection,

Respondents, following the procedure set forth in 1 Me.

Rev. Stat. Ann. § 409(2), filed a suit in state court to

compel production. Shortly thereafter, Respondents filed

a motion for partial summary judgment. (Pet. App. at 5.)

The purpose of Respondents’ motion for partial summary

judgment was to resolve the primary basis raised by the

infra, this point is academic, because the Law Court never

ordered any access to tribal lands, but only that the Tribes

produce copies of certain documents.

App. 9

Tribes for rejecting the FOAA request: that MIA’s “inter-

nal tribal matters” exception removed any duty by the

Tribes to respond under FOAA. The motion was orily for

partial summary judgment, because the Tribes had also

alluded to an attorney-client privilege/work product

claim as to unidentified documents.

The Tribes opposed the motion for partial summary

judgment and moved to dismiss the state court action,

claiming that the state court lacked subject-matter juris-

diction, and that application of FOAA to them would

amount to regulation of “internal tribal matters,” in viola-

tion of MIA. (See id. at 6.)

On September 19, 2000, the Superior Court (Crowley,

J.) rejected the Tribes’ motions and granted the Com-

panies’ motion for partial summary judgment. (See id. at

76.) Citing First Circuit decisions such as Fellencer and

Akins, the Superior Court found that the document

requests did not intrude upon an “internal tribal matter”

within the meaning of MIA, because the subject matter of

the requests (water regulation) affected non-tribal mem-

bers and implicated state authority and interests. (Pet. .

App. at 75.)

In order to facilitate immediate appeal, Justice

Crowley entered an order giving the Tribes two weeks to:

(1) produce the documents over which no attorney-client

privilege/work product was claimed; and (2) provide a

privilege log as to the remaining documents. (See id.) The

Tribes filed a motion for reconsideration, which Justice

App. 10

Crowley denied on September 27, 2000. (See Resp. App. at

17, entry dated Sept. 28, 2000).5

The Tribes were equally unsuccessful on the federal

front. The United States District Court for the District of

Maine (Hornby, C.J.) dismissed that suit for lack of sub-

ject matter jurisdiction under the well-pleaded complaint

rule. See Penobscot Nation, 106 F. Supp. 2d at 86. Once

again, the Tribes filed a motion to reconsider, pursuant to

which Judge Hornby again found jurisdiction lacking. See

Penobscot Nation v. Georgia-Pacific Corp., 106 F. Supp. 2d 81

(D. Me.), reconsideration denied, 116 F. Supp. 2d 201 (D.

Me. 2000).

IV. PROCEEDINGS SUBSEQUENT TO THE ORDER

TO PRODUCE DOCUMENTS

The Tribes did not appeal Justice Crowley’s Septem-

ber 19, 2000 order. Nor did they choose to comply with

the order. They did not file a privilege log, nor seek any

extension of time to do so. They produced no documents.

They chose to do nothing, openly defying the Superior

Court.

With neither an appeal nor compliance forthcoming

from the Tribes, Respondents filed motions for entry of

final judgment and for contempt. (See Resp. App. at 17,

entry dated Oct. 10, 2000). After a hearing on October 18,

2000, Justice Crowley granted the motion for final judg-

ment, because the Tribes’ failure to respond in any way to

the September 19, 2000 order constituted a waiver of any

5 A certified copy of the trial court docket was before the

Law Court as part of the parties’ jointly filed Appendix. A copy

of that certified docket is included in the Appendix to this Brief.

App. 11

assertion of attorney-client privilege or application of the

work product doctrine. (See Pet. App. at 6-7.)

The Superior Court did not rule, however, on the

motion for contempt. Rather, it continued the action for

an evidentiary hearing on November 9, 2000, in order to

give the Tribes more time to comply with the order to

produce documents or file an appeal of the now final

judgment. (See Resp. App. at 7, entry dated Oct. 20,

2000.)

The Tribes responded to this allowance of more time

to appeal or comply by suing Justice Crowley in federal

court. See Penobscot Nation v. Honorable Robert E. Crowley,

Civil No. 00-222-B-S (D. Me. Oct. 31, 2000). Judge Carter

rejected their motion for preliminary injunction; the

Tribes withdrew the suit and sought an expedited appeal

of Judge Hornby’s dismissal. See id., Order dated Nov. 6,

2000 at 2.

In the state court forum, the Tribes continued to defy

the Superior Court, neither complying with its order nor

appealing from it. This left Justice Crowley with no

choice on November 9, 2000 but to find the Tribes in

contempt.

Justice Crowley ordered coercive imprisonment of

the three tribal leaders named as parties before him and

coercive fines against the Tribes themselves. Yet one more

time, however, the state court gave the Tribes another

chance. Justice Crowley ordered that any fines or

imprisonment would be suspended pending any appeal

to the Law Court; as to the individual tribal leaders, he

® The filing of an appeal in Maine automatically stays

execution of judgment. Maine Rule of Civil Procedure 62(a).

App. 12

further ordered that the sentences of coercive imprison-

ment should be stayed until November 13, 2000, to give

them another opportunity to appeal or comply. (See Resp.

App. at 26.)

Finally, on the last available day, November 13, 2000,

having delayed proceedings in state court as long as

possible without subjecting their leaders to actual

imprisonment, all the while accelerating the federal

appeal, the Tribes filed their Notice of Appeal of Justice

Crowley’s final judgment. (See Resp. App. at 28-29.)

The Law Court ruled on that appeal on May 1, 2001.

(See Pet. App. 1-36.) Surveying the legislative history and

case law in depth, the Law Court affirmed in part and

vacated in part Justice Crowley’s order to produce docu-

ments, vacated Justice Crowley’s contempt order, and

remanded to Justice Crowley to resolve any remaining

disputes over the scope of the Tribes’ obligation to pro-

duce documents. (See id. at 33-34.)

Both the Superior Court and the Law Court con-

cluded that MIA’s “internal tribal matters” exception did

not blanketly preclude any application of FOAA. While

Justice Crowley had focused primarily on the subject

matter of the FOAA request to determine whether the

exception was implicated, the Law Court focused on the

processes associated with creation of the documents. Doc-

uments, such as minutes of tribal meetings, reflect “delib-

erative processes of self-government,” the Law Court

reasoned, and, therefore, are excluded from production.

In contrast, other documents, such as inter-governmental

communications from the Tribes to the EPA, do not form

a part of the internal tribal governmental process; there-

fore, the exception does not apply. (Id. at 31-34.)

App. 13

On May 31, 2001, the Law Court denied the Tribes’

request for reconsideration. (See Pet. App. at 36.) On June

20, 2001, the First Circuit (Boudin, C.J.) affirmed the

dismissal of the Tribes’ federal suit, on the grounds that

the final judgment in the state court was entitled to full

faith and credit in the federal court and would bar the

injunctive relief that the Tribes requested in the federal

suit. See Georgia-Pac. Corp., 254 F.3d at 325. The First

Circuit denied the Tribes’ request for rehearing and for

rehearing en banc on August 24, 2001. See Penobscot

Nation v. Georgia-Pac. Corp., Docket No. 00-2265, orders

dated Aug. 24, 2001 (1st Cir.).

The FOAA requests are currently pending before the

Maine Superior Court on remand. The Law Court ordered

that Petitioners be given a reasonable time to comply

with its order of production. Orally, the Superior Court

on September 6, 2001 ordered that he would grant a stay

of actual production of documents pending resolution of

this certiorari petition, while requiring the parties to brief

the remand issues clarifying the exact documents to be

produced.

Throughout this 19-plus month process, Respondents

have consistently sought expedition, since the documents

could prove relevant to the EPA’s pending NPDES deci-

sion, which could issue at any time.