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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0751%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 534 U.S. 1127

## Text

,

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0751%3A2. Public record. Not legal advice.