Opposition Brief — Penobscot Nation v. Great Northern Paper, Inc.

Supreme Court brief2001

Ask Donna

What actually matters in this document.

Text

o™~ Supreme Cout,US.

No. 01-381 SEP 27 2001

In The | OFFICE OF THE CLERK |

Supreme Court of the United States

PENOBSCOT NATION, et al.,

Petitioners,

GREAT NORTHERN PAPER, INC., et al.,

Respondents.

On Petition For Writ Of Certiorari

To The Maine Supreme Judicial Court

. RESPONDENT COMPANIES’

BRIEF IN OPPOSITION

CATHERINE R. CONNORS

Counsel of Record

MatrHew D. MANAHAN

CurFFORD H. RuprecHT

Pierce ATWooD

One Monument Square

Portland, Maine 04101-1110

(207) 791-1100

Counsel for Respondents Great

Northern Paper, Inc., Georgia-

Pacific Corporation, and

International Paper Company

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does the “internal tribal matters” exception in the

Maine Implementing Act (“MIA”), 30 Me. Rev. Stat. Ann.

§ 6206, prohibit disclosure under Maine’s Freedom of

Access Act (“FOAA”), 1 Me. Rev. Stat. Ann. §§ 401-410, of

documents that do not bear on Petitioners’ deliberative

processes of self-government and relate to a subject that

MIA expressly provides is subject to state regulation?

CORPORATE DISCLOSURE STATEMENT k

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.

3. Respondent International Paper Company is a

party to this action as successor-in-interest to Champion

International Corporation, a named Plaintiff-Appellee in

the action below. Prior to January 1, 2001, Champion

International Corporation was a wholly-owned subsid-

iary of International Paper Company, a publicly held

company. On January 1, 2001, Champion International

Corporation was merged into International Paper Com-

pany. International Paper Company has no parent com-

panies, and there are no publicly held companies that

own 10% or more of its stock.

ili

TABLE OF CONTENTS

Page

RIPE EmNe PRESENTED. . 2.0.0.0 cccccccccccccacess i

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

SOU GE GENE oo neces sccccsscvcseseustce iii

peo ey 8: | v

STATEMENT OF THE CASE..................0005. 1

» Eee Trives’ Unique Status................00..- 2

II. Respondents’ Interaction With the Tribes Lead-

ing Up to the FOAA Requests................ 4

III. Respondents’ FOAA Requests and the Resulting

NA KS Rertus dcnnu'c0 ese suwereesseecceses 6

IV. Proceedings Subsequent to the Order to Produce

ET HisWhs VAWheidohsass 630 s40 604.0 0000-0 9

REASONS FOR DENYING THE WRIT............. 12

I. Petitioners Misrepresent Facts That Are Essential

to This Court’s Ready and Adequate Under-

standing of the Points Requiring Consideration,

and Therefore the Writ Should Not Issue ...... 14

A. Petitioners Repeatedly Misrepresent the Fact

That No Court Has Ordered Petitioners to

Allow Any Unwanted Access to Tribal

Lands, and Therefore the Questions Pre-

sented for Review Are Purely Advisory ... 14

1. The Tribes Seek Answers to Advisory

eee ea teed tha ae a 16

2. The Tribes’ Arguments Hinge Upon a

Non-Existent Order to Allow Access to

i a's 17

Il.

TABLE OF CONTENTS - Continued

Page

B. Petitioners Erroneously Claim That the Deci-

sion of the Law Court Below Conflicts With the

Law as Developed by the First Circuit.......

The True Question Presented In This Case Is

Whether the Law Court Properly Applied MIA’s

Internal Tribal Matters Exception to Define the

Scope of Petitioners’ Production Obligations

Under FOAA, and That Question Does Not War-

rant Supreme Court Review ...................

A. The Tribes’ Contention That Any Application

of FOAA to Them Regulates an Internal Tribal

Matter Is Not Persuasive and Is Not Framed In

Terms Applicable to This Case. .............

The Question Whether Application of FOAA

to the Tribes in This Case Regulates any

Internal Tribal Matter Cannot Be Divorced

From the Subject Matter of the Documents

FOE AD TS Ee PY aE

Even if the Tribes Properly Framed the Gen-

eral Question Whether Subjecting Them to

the FOAA in Every Case Regulates an Inter-

nal Tribal Matter, Certiorari Would Not Be

PND 6a hens cc cdandanvesbecsasees

RGU MMRING 605 Hodis va nccbec ii teres oeeue ee aka dts

TABLE OF AUTHORITIES

Page

Cases

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

od ere rerere errr ry we err eT ee err re passim

Couturier v. Penobscot Indian Nation, 544 A.2d 306

| Ree errr ree eT Cer rer re rrr ro ry ere 22

Gully v. First National Bank, 299 U.S. 109 (1936) ..... 14

Forrest Associates v. Passamaquoddy Tribe, 760 A.2d

WEY CDE. CIPO 5.6.65 54544504 6 bbe en Ree genoa 29

Montana v. U.S., 450 U.S. 544 (1981)................. 20

Passamaquoddy Tribe v. State of Maine, 75 F.3d 784

tg ae. | roe ree rere gee woe my bl heey 22

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

3 PETE T Pee ey ree ey 3, 4, 8, 20, 21, 22

Penobscot Nation v. Georgia-Pac. Corp., 106 ~—

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

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

grounds, 254 F.3d 317 (1st Cir. 2001).............. 7,9

Penobscot Nation v. Georgia-Pacific Corp., 254 F.3d

S87 Chat Ci BOE aa csctndeecivsacase a 4, th. 43; 21 -

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

appeal dismissed for want of substantial federal

question, 464 US. 963 (1963) ... 206s ec ccencecess passim

Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900) .... 14

Solman Distributors, Inc. v. Brown-Forman, 888 F.2d

VioRe! 8 A. Peewee errr eT err er re 22

U.S. v. Boots, 80 F.3d 580 (1st Cir. 1996)........ eh 22

TABLE OF AUTHORITIES

Page

STATUTES

25 UGA. © U7aeeee cnkegscvnicndeiteecvandcctceatces 20

2D UDA. &. Ee ss bss 0s epenscenneiessdaynss ere 3

7 25 USA. DS TRMGee 000k Fieve deeded vaestesn eee 20

53 USA. | TRG oc ccnsdccdvakeiscevesnns ise 5

eo FS OS FO DC Pee 6

eo FF F FO Rr err rrr 8

30 Me. Rev. Stat. Ann. § 6204........... 3, DB, ah, 2a, OO

30 Me. Rev. Stat. Ann. § 6206............... ee

30 Me. Rev. Stat. Ann. § 6206(1)................. 20, 28

30 Me. Rev. Stat. Amm. § G20GGS) ..cccccccscsccccscss 29

RuLes

bho. RK. Civ. FB. Gs cccceccsveceencssndatestssaaueee 10

Sap. Ch. BR: BD. cass csecssiedesthavwengsacan vane 23, 24

Sep. Ct. BOG ossccscarsesessssestsuavsnieaeieeene 14

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

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

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.

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 (ist 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

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 represented 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... ”).

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

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

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.

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

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... ”).

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

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.) “

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.)

III. 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 Compiaint, 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

“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

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

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.

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

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 only 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

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,

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.

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

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

6 The filing of an appeal in Maine automatically stays

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

imprisonment would be suspended pending any appeal

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

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.)

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.

REASONS FOR DENYING THE WRIT

SUMMARY

This case involves the Law Court’s determination

that, because the Tribes are subject to state laws except as

to internal tribal matters, FOAA does not require them to

turn over documents that bear on their “deliberative pro-

cesses of self-government,” but does require production

of documents such as those reflecting the Tribes’ interac-

tion with state and federal governments in an effort to

achieve regulatory authority over natural resources in

Maine.

It is equally important to note what this case does not

involve: invasion of or unwanted entry upon tribal lands

by non-members of the Tribes.

The Tribes seek to make the issue decided below

appear to be more substantial than it was in Stilphen by

creating a false sense of emergency. Specifically, the

Tribes misstate the case right at the outset of their peti-

tion: “The Maine Supreme Judicial Court has mandated

the entry of hostile corporations onto Petitioners’ reserva-

tions.” (Pet. for Cert. at 1.) The Law Court did no such

thing. No Maine court has mandated that Respondents be

allowed onto Petitioners’ lands and, indeed, Respondents

have never sought such a mandate. Similarly, the Tribes

state that “the Maine Supreme Judicial Court has placed

itself in direct conflict with the First Circuit.” Id. Again,

this statement is false. The Law Court (like the lower

state court) expressly followed and applied First Circuit

law governing the application of the “internal tribal mat-

ters exception,” as set out in Akins. (See Pet. App. at

26-27, 74-76.) There is no emergency, and there has been

no miscarriage of justice in Maine; the state courts

resolved a production dispute in part favorably to the

Tribes and in part favorably to Respondents. Review of

that resolution is not an appropriate use of this Court's

limited certiorari docket.”

7 A threshold issue is whether this case presents any

federal question, given this was a state FOAA action involving

interpretation of MIA, another state statute. Cf. Georgia-Pac.

Corp., 254 F.3d at 320-21 (“This court has assumed, albeit

I. PETITIONERS MISREPRESENT FACTS THAT ARE

ESSENTIAL TO THIS COURT’S READY AND ADE-

QUATE UNDERSTANDING OF THE POINTS

REQUIRING CONSIDERATION, AND THERE-

FORE THE WRIT SHOULD NOT ISSUE.

“The failure of a petitioner to present with accu-

racy . . . whatever is essential to ready and adequate

understanding of the points requiring consideration is

sufficient reason for the Court to deny a petition.” Sup.

Ct. R. 14.4.

A. PETITIONERS REPEATEDLY MISREPRESENT

THE FACT THAT NO COURT HAS ORDERED

PETITIONERS TO ALLOW ANY UNWANTED

ACCESS TO TRIBAL LANDS, AND THERE-

FORE THE QUESTIONS PRESENTED FOR

REVIEW ARE PURELY ADVISORY.

At the very heart of Petitioner’s claim for certiorari is

a mischaracterization of the record: “The corporations

claim - and the Maine courts have agreed - that they

may, on demand, enter the reservations to gather tribal

without extensive discussion, that the internal affairs limitation

on state authority in the Maine Implementing Act is also an

overriding federal limitation on Maine authority over the

Tribes”) (emphasis added). One may doubt whether a suit

involving construction of a state’statute that has been ratified by

federal statute fits with the statutory “arising under”

jurisdiction of the federal district courts. See Shoshone Mining Co.

v. Rutter, 177 U.S. 505 (1900). Cf. Gully v. First National Bank, 299

U.S. 109, 116 (1936) (“[I]t is unimportant that federal consent is

the source of state authority. To reach the underlying law we do

not travel back so far. By unimpeachable authority, a suit

brought upon a state statute does not arise under an act of

Congress or the Constitution of the United States because

prohibited thereby. With no greater reason can it be said to arise

thereunder because permitted thereby”) (citation omitted).

records.” (Pet. for Cert. at 5.) But no Maine court has

ordered that Respondents may enter upon Petitioners’

tribal lands. The state trial court ordered Petitioners “to

turn over all non-privileged documents as well as logs of

all documents claimed to be privileged.” (Pet. App. at 76.)

Nothing in the order to “turn over” documents requires

Petitioners to allow Respondents onto tribal lands to

inspect originals. Any potential ambiguity on this score

was removed by the order of the Law Court: “the Supe-

rior Court did not err in requiring the Tribes to turn over

copies of their correspondence or documents exchanged

with the State or Federal government that relate to their

efforts to obtain federal recognition as a ‘state’ in water

quality matters.” (Pet. App. at 32; emphasis added.)

Indeed, FOAA itself does not require access to any partic-

ular location, and Respondents have no desire to enter

any reservation. See supra note 5.

Yet the Tribes inaccurately suggest - continually

throughout their Petition for Certiorari — that this case

involves invasion of tribal lands or the integrity of the

Tribes’ physical borders. (See, e.g., Pet. for Cert. at 1: “The

Maine Supreme Judicial Court has mandated the entry of

hostile corporations onto Petitioners’ reservations”;

19-20: the Law Court “left the Respondent corporations

free to intrude upon the reservations;” 21: “The decisions

of the courts below threaten the very existence of the

Tribes, as tribes. This is not an exaggeration. Cases

involving the rights of Indian tribes to be secure in their

territory in the face of state power and local economic

interests, are at the core of this Court’s Indian law juris-

prudence”; 22: “This right [to protect the integrity and

order of tribal territory] is at stake here;” 23: “at stake in

this case are the basic rights of the Penobscot Nation and

the Passamaquoddy Tribe to maintain . . . the integrity of

their reservation boundaries;” 28: the Law Court “entirely

failed to even address Petitioners’ crucial claim: that con-

trol over the terms and conditions under which strangers

may enter their reservations . . . is essential to their

ability to maintain authority as Indian tribal govern-

ments.”).

This misrepresentation in itself suffices to deny the

writ. The misrepresented fact is essential to the Court's

ready and adequate understanding of the points requir-

ing consideration, because the misrepresentation is

expressly relied-en.in-framing both of Petitioners’ Ques-

tions Presented, and because the misrepresentation forms

the linchpin of each of the two arguments that the Tribes

present as reasons for granting the writ.

1. The Tribes Seek Answers to Advisory Ques-

tions.

Petitioners’ first question presented for review asks

whether “the terms and conditions under which the non-

Indian public . . . can gain and enforce entry into the

Tribes’ reservations” is “immune from state jurisdiction”

at least for the purposes of demanding, inspecting, and

copying tribal records. (Pet. for Cert. at i.) Similarly, the

second question asks whether the Law Court applied the

proper law in determining the scope of “the Petitioner

Tribes’ right to be free from state control over the non-

Indian public’s intrusion into the reservations,” again, at

least for the purposes of demanding, inspecting, and

copying tribal records. (Id.) ;

Without any such order of entry having been entered

below, answers to these questions would be purely advi-

sory. The Tribes have made no attempt to turn over

documents without permitting entry, nor has any dispute

arisen regarding any claimed right to enter onto Peti-

tioners’ lands. The challenged order simply requires the

Tribes to produce copies of documents. Because there is

no order for Petitioners to permit entry upon their land to

comply with the document requests, the Tribes’ questions

presented seek an advisory ruling from this Court regard-

ing whether such an order of entry would violate federal

law. Nor is this misrepresentation simply colorful talk by

an advocate without real bearing on the substantive anal-

ysis at issue; it lies at the heart of Petitioners’ substantive

arguments in support of issuance of the writ.

2. The Tribes’ Arguments Hinge Upon A Non-

Existent Order to Allow Access to Tribal

Lands.

The very first reason Petitioners give for why the

writ should issue is that “Cases involving the rights of

Indian tribes to be secure in their territory ... are at the

core of this Court’s Indian law jurisprudence. This is

because the right of Indian tribes to control the terms and

conditions under which Strangers enter their reservations

to access tribal property . . . is a crucial attribute of their

retained sovereignty.” (Pet. for Cert. at 21; emphasis

added; citations omitted.) Nowhere in Petitioners’ first

argument for why the writ should issue do they charac-

terize the rights at stake in this case as anything less than

the right to exclude nonmembers from entry onto tribal

lands.

Petitioners’ second argument for why the writ should

issue similarly turns on the erroneous contention that

they have been ordered to permit unwanted access to

tribal lands. To support, their request that this Court

review whether the Law Court employed the proper legal

analysis in applying the FOAA to the Tribes, Petitioners

iia,

contend that the Law Court (notwithstanding its state-

ments to the contrary) did not take into account “ ‘prior

legal understandings’ in accordance with the First Cir-

cuit’s approach.” (Pet. for Cert. at 28.) How so? Peti-

tioners state that the Law Court “entirely failed to even

address” what Petitioners characterize as their “crucial

claim.” (Pet. for Cert. at 28.) This “crucial claim” — the

claim on which ‘so much turns that the Law Court's

failure to address it warrants review by this Court —

again, involves not the right to withhold the copies of

documents that the Tribes were ordered to produce, but

rather the Tribes’ sovereign control of their borders, i.e.,

their “control over the terms and conditions under which

strangers may enter their reservations.” Id.

In other words, throughout Petitioners’ entire argu-

ment in support of issuance of the writ, the only reason

Petitioners say the writ should issue in this case is to

permit this Court to make a declaration concerning rights

that are not actually in controversy in this case: namely,

their right to exclude unwanted strangers from their

tribal lands.

B. PETITIONERS ERRONEOUSLY CLAIM THAT

THE DECISION OF THE LAW COURT BELOW

CONFLICTS WITH THE LAW AS DEVELOPED

BY THE FIRST CIRCUIT.

The legislative history of the Settlement Acts

“embodies two conflicting approaches to resolve the

question of what is an internal tribal matter. On the one

hand, Congress described the settlement as ‘original’ and

‘innovative.’ On the other hand, Congress referred to

respecting the inherent self-governing authority of a

tribe.” Akins, 130 F.3d at 489. Petitioners contend that the

First Circuit holds that this latter strand of Congressional

intent governs interpretation of the internal tribal matters

exception, and that it means that the entire federal com-

mon law of Indian inherent sovereignty is contained

within that exception. The Tribes further contend that the

Law Court departed from First Circuit law by not giving

due weight to the federal common law of Indian inherent

sovereignty. (See Pet. for Cert. at 28-29.) That being so,

Petitioners claim, had this case been heard in the First

Circuit, or had the First Circuit’s analysis been properly

applied in the Law Court, “the Tribes’ interests would, no

doubt, [have] prevail[ed].” (Jd. at 29.) Neither contention

is correct.

The Law Court and the First Circuit agree on the

significance of federal common law in determining the

extent of Petitioners’ sovereignty as defined in the Settle-

ment Acts. On the one hand, the “internal tribal matters”

exception does not reserve to Petitioners the entire

“inherent authority” of Indian tribes under the federal

common law. This is the view of the Law Court, see

Stilphen, 461 A.2d at 488, and the First Circuit, see Akins,

130 F.3d at 489 (stating that First Circuit does not read

references in legislative history to respecting Tribes’

inherent self-governing authority “as invoking all of

prior Indian law. That would be inconsistent with the

unique nature of the Maine settlement.”). On the other

hand, federal common law is of some relevance in deter-

mining the scope of the “internal tribal matters” excep-

tion. Again, this is the view of both the First Circuit, see

id. (“But we also do not agree that reference to [federal

common] law is never helpful in defining what is an

internal tribal matter”), and the Law Court (see, e.g.,

Stilphen, 461 A.2d at 482-488, analyzing federal common

law in determining whether the state could regulate

Tribal beano games).®

Petitioners contend, however, that the First Circuit’s

recent Fellencer decision shows that the court’s “starting

premise is not that the Tribes are presumptively subject to

state authority ‘as municipalities’ pursuant to the munici-

pal ‘duties and obligations’ clause of section 6206(1).”

(Pet. for Cert. at 27.) In their view, the First Circuit starts

with the premise that state regulatory authority is not the

general rule (with exemption the exception), and that the

Tribes possess all the attributes of inherent tribal sover-

eignty established in Indian common law. See id. This

view does not square with what the First Circuit has

actually said, both in Fellencer and more recently.

The Fellencer court reaffirmed the Akins principle that

the whole of Indian law is not incorporated in the inter-

nal tribal matters exception, nor in references in the legis-

lative history to preserving inherent tribal sovereignty.

See Fellencer, 164 F.3d at 712. More importantly, that court

8 Underscoring the unique status of Maine Indians, any

applicability of federal common law is further informed by

express provisions in MICSA, 25 U.S.C. §§ 1725(h) and 1735(b),

which preclude any federal law generally applicable to Indians

from applying to the Tribes, if.that law accords or relates a

special Indian status or right and affects or preempts the State of

Maine’s regulatory jurisdiction. (Because the Tribes omitted

these and other relevant statutory provisions from their

Appendix, they are attached hereto at Resp. App. at

1-4.) Hence, while federal common law can properly be cited

to limit the scope of MIA’s “internal tribal matters” exception,

e.g., Montana v. U.S., 450 U.S. 544, 564 (1981), cited in Akins, 130

F.3d at 490 (for the proposition that powers of self-government

involve only the relations among members of a tribe), it cannot

be applied in a way that circumscribes the state’s broad

regulatory authority over the Tribes.

twice stated expressly that the starting premise is indeed

that Tribes are presumptively subject to state authority:

the Tribes’ right to self-government, said the court, was

preserved only “to a limited extent”; the court iterated

that “with very limited exceptions, the [Tribes are] subject

to the laws of Maine.” Id. at 708. More recently, the First

Circuit has referred to the Tribes’ municipal duties and

obligations as the “general rule,” and the internal tribal

matters exception as a mere “qualification.” Georgia-Pac.

Corp., 254 F.3d at 320.9 In short, the Tribes attempt to

generate an issue worthy of review in this Court based on

the false premise that the First Circuit and the Law Court

disagree over the so-called “municipal model” of the

Tribes’ status in Maine and the role to be accorded to

federal common law in interpreting the internal tribal

matters provision.

Nor is there any reason to think, as the Tribes flatly

declare, that this case would have come to a different

result in the First Circuit. First, in affirming Chief Judge

Hornby’s dismissal of the federal preliminary injunction

suit, Chief Judge Boudin stated that he did not find

anything in the Law Court's analysis “so implausible as

to suggest the need for independent federal reexamina-

tion.” Georgia-Pac. Corp., 254 F.3d at 324. Second, even if

the First Circuit had addressed federal Indian common

law in more detail than did the Law Court, it would have

reached the same result. The First Circuit has pointed out

that “[w]here . . . the issue involves tribal attempts to

regulate non-tribal members, the Supreme Court has

° This position comports with the language of MIA itself. 30

Me. Rev. Stat. Ann. § 6204 (Resp. App. at 4); § 6206 (Pet. App. at

40.)

often found that those attempts are not within the inher-

ent self-governing powers of a tribe.” Akins, 130 F.3d 482.

Both the Superior Court and Law Court expressly applied

the Akins court's five-factor test for determining whether

the internal tribal matter exception applies. (Pet. App. 27,

74-75.)10

In sum, the First Circuit’s and Law Court’s inter-

pretations of MIA converge; they do not conflict."

10 Just as the Maine state courts, as noted, regularly rely

upon the First Circuit’s MIA decisions, such as Akins, so also has

the First Circuit cited state MIA decisions, e.g., Stilphen. See

Fellencer, 164 F.3d at 710; Akins, 130 F.3d at 483, 487; U.S. v. Boots,

80 F.3d 580, 591 (1st Cir. 1996); Passamaquoddy Tribe v. State of

Maine, 75 F.3d 784, 784 (1st Cir. 1996). See also Solman

Distributors, Inc. v. Brown-Forman, 888 F.2d 170, 173 (1st Cir.

1989).

11 Respondents note two points in anticipation of a Tribal

reply argument that, if Respondents were so certain of First

Circuit and state court confluence of position, Respondents

would not have moved to dismiss the Tribes’ federal action.

First, Respondents had no jurisdictional basis for filing their

FOAA claim in federal court. As Chief Judge Hornby held,

neither did Petitioners. Respondents had no desire to proceed

through the federal system only for an appellate court

ultimately to expunge any such decision sua sponte when it

recognized the applicability of the well-pleaded complaint rule.

Second, even if the well-pleaded complaint rule had not

applied, and the federal district court could have ruled on the

merits, Respondents disagree with the Tribes’ apparent premise

that the federal forum is the only tribunal capable of

interpreting MIA. To the contrary, MIA is a state statute; the

primary responsibility for implementing its contents lies with

state authorities; and the Law Court has shown its capability of

construing the statute not only as reflected in this case, but

previously in decisions such as Stilphen and Couturier v.

Penobscot Indian Nation, 544 A.2d 306 (Me. 1988) (holding that

immunities bestowed upon Maine governmental entities under

II. THE TRUE QUESTION PRESENTED IN THIS

CASE IS WHETHER THE LAW COURT PROPERLY

APPLIED MIA’S INTERNAL TRIBAL MATTERS

EXCEPTION TO DEFINE THE SCOPE OF PETI-

TIONERS’ PRODUCTION OBLIGATIONS

UNDER FOAA, AND THAT QUESTION DOES

NOT WARRANT SUPREME COURT REVIEW.

“A petition for a writ of certiorari is rarely granted

when the asserted error consists of . . . the misapplication

of a properly stated rule of law.” Sup. Ct. R. 10. The true

question presented in this case concerns the Law Court's

application of the properly stated law regarding MIA’s

“internal tribal matter” exception. As in Stilphen, 464 U.S.

963, this Court’s review of the Law Court's application of

that properly stated rule of law is sought; once again, it

should be denied.

Both the Superior Court and the Law Court held that

the Tribes must produce copies of the requested docu-

ments that do not relate to internal tribal matters. By

ordering disclosure of certain documents connected with

the deliberative processes of self-government (like min-

utes of tribal meetings), the Superior Court implicitly

held that such documents do not automatically fall within

the internal tribal matters exception; specifically, that

court held that minutes dealing with the Tribes’ efforts to

regulate natural resources must be produced, because

regulation of natural resources is not itself an internal

tribal matter. (See Pet. App. at 73-74.) The Law Court

adjusted this holding: some documents relating to the

Tribes’ efforts to regulate natural resources, the court

the Maine Tort Claims Act apply to the Penobscot Nation when

acting in a governmental capacity).

held, do relate to internal tribal matters and are protected

from disclosure (see Pet. App. at 27-28), while other such

documents do not relate to internal tribal matters and

must be produced under FOAA (see Pet. App. at 29-30).

In other words, the state courts engaged in the essen-

tial judicial function of line drawing, trying to determine

which applications of FOAA to the Tribes constitute regu-

lation of internal tribal matters by state law, and which

do not. The two courts drew the line in slightly different

places, with both analyzing the question by, among other

things, applying the same five-factor test proposed by the

First Circuit in Akins.

The sole question, apparently, that the Tribes wish to

present here is whether the Law Court’s holding is wrong

because any application of FOAA to the Tribes would

violate MIA. (See Pet. for Cert. at 24 n.14: “The issue

presented by this Petition has nothing to do with what

particular documents may or may not be privileged from

disclosure to the public, whether under FOIA or the

MAA. This Petition presents the issue of the Tribes’ right

to control entry by the general public onto their reserva-

tions and into the files of tribal offices, well inside those

reservations, regardless of the particular subject matter such

strangers may wish to access”) (emphasis in original).!? But

12 The Tribes must contend that the question presented has

nothing to do with the particular content of the documents

ordered produced, because certiorari certainly would not be

warranted to review the Law Court’s determination that

documents reflecting external communications, such as

interaction with other governments in an effort to obtain

regulatory authority over natural resources in Maine, is not an

internal tribal matter. First, that determination is the classic

kind of application of law to fact that does not warrant certiorari

review. See Sup. Ct. R. 10. Second, the statutory language and

in defense of that proposition, the Tribes apparently are

prepared to offer only arguments that the most intrusive

applications of FOAA - applications that the Law Court

specifically did not order - would violate MIA.

The Petition for Certiorari does not show that the

Tribes are prepared to discuss, nor wish to present any

argument regarding, the limited application of FOAA to

the Tribes that the Law Court did order. It is not at all

clear that the Tribes wish to argue to this Court that the

document production ordered here, without any require-

ment that the. Tribes grant physical access to tribal lands,

violates MIA because any requirement that the Tribes

produce documents in their governmental capacity vio-

lates MIA. If the Tribes were seeking to present such an

argument, it would fail.

prior First Circuit case law clearly establish that the subject

matter of these requests — natural resource regulation — is not an

internal tribal matter. Under MIA, the natural resources owned

by the Maine Indians or held in trust for them expressly are

subject to the laws of Maine. See 30 Me. Rev. Stat. Ann. § 6204

(Resp. App. at 4.) Applying this law, the First Circuit expressly

limited its holding in Akins (that the issuance of stumpage

permits is an internal tribal matter) on the grounds that “the

subject matter . . . appears to have no bearing on Maine’s

environmental . . . interests.” 130 F.3d at 488. Where, as here, the

matter involved is the Tribes’ attempt to exercise authority

directly over Maine’s environmental resources and obtain

environmental regulatory authority that otherwise would

belong to Maine, the matter cannot seriously be said to be one

internal to the Tribes.

A. THE TRIBES’ CONTENTION THAT ANY

APPLICATION OF FOAA TO THEM REGU-

LATES AN INTERNAL TRIBAL MATTER IS

NOT PERSUASIVE AND IS NOT FRAMED IN

TERMS APPLICABLE TO THIS CASE.

The Tribes must be arguing that any requirement that

they produce documents, without regard to the content of

those documents, constitutes regulation of an internal

tribal matter, because such a production requirement reg-

ulates how the Tribes conduct “tribal government.” (See

Pet. for Cert. at 22-23, 24 n.14.) Neither of the arguments

apparently offered in support of this view is persuasive.

First, the Tribes claim that the requirement to pro-

duce any document regulates an internal tribal matter

because it subjects the Tribes to public policy determina-

tions that are those of the State, not the Tribes. Applica-

tion of FOAA to the Tribes, they say, “force[s] the Tribes

to submit to the public access procedures, policies, and

values of the State of Maine, which are far removed from

those of these tribal communities.” (Pet. for Cert. at

22-23.) This argument, however, proves too much. Every

subjection of the Tribes to state law forces them to submit to

the procedures, policies, and values of the State of Maine.

Yet one fundamental point underscored in MIA is the

Tribes’ general subjection to state law. See 30 Me. Rev.

Stat. Ann. §§ 6204, 6206.

Second, the hook upon which the Tribes attempt to

segregate FOAA from the general category of state regu-

lations applicable to them is protection of tribal borders:

“The terms and conditions for the general public’s entry

onto the reservations, what the public may inspect once

inside, and where and how the public may enforce its

2 SRE nen ——

‘rights’ of such access are intimate matters of self-govern-

ment.” (Id. at 23.) Such access, however, is not implicated

by the challenged decision.

B. THE QUESTION WHETHER APPLICATION

OF FOAA TO THE TRIBES IN THIS CASE

REGULATES ANY INTERNAL TRIBAL MAT-

TER CANNOT BE DIVORCED FROM THE

SUBJECT MATTER OF THE DOCUMENTS

ORDERED PRODUCED.

Logically, whether production of a document

involves an internal tribal matter depends upon the con-

tent of the document. If the subject matter of the docu-

ment were an internal tribal matter - a rite, an election,

and so forth - then a persuasive argument might be made

that those documents would be off-limits under MIA.

But that is not the case here. Here, the subject matter

of the documents - water regulation — is without question

not an internal tribal matter, and the Tribes do not even

argue otherwise. Rather, their position is that subject

matter is irrelevant.

C. EVEN IF THE TRIBES PROPERLY FRAMED

THE GENERAL QUESTION WHETHER SUB-

JECTING THEM TO THE FOAA IN EVERY

CASE REGULATES AN INTERNAL TRIBAL

MATTER, CERTIORARI WOULD NOT BE

APPROPRIATE.

The final theoretical question is whether there is any-

thing besides content that could make this particular

production requirement a regulation of an internal tribal

matter. The fact that the Tribes themselves do not directly

tackle this argument predicts the answer.

As a threshold matter, as discussed supra, the Settle-

ment Acts are unique in American law; the relationship

between the Tribes and the State of Maine is unlike the

relationship between any other Indians and any other

state in the United States. Accordingly, resolution of

questions regarding application of the Settlement Acts is

of interest only to the Indians and other residents of

Maine; the Court is not being asked to resolve any ques-

tion of broader applicability. Where, as here, the state and

federal courts that regularly deal with the Settlement

Acts are in substantial agreement over how those laws

should be interpreted and applied, this Court's assistance

is not called for.

Second, and in any event, it is clear MIA does not

exempt the Tribes from any and all document requests

under FOAA. MIA provides in relevant part:

Except as otherwise provided in this Act, the

Passamaquoddy Tribe and the Penobscot

Nation, within their respective Indian territo-

ries, 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, including membership in

the respective tribe or nation, the right to reside

within the respective Indian territories, tribal orga-

nization, tribal government, tribal elections and the

use or disposition of settlement fund income shall

not be subject to regulation by the state.

30 Me. Rev. Stat. Ann. § 6206(1) (emphasis added).

The only way the Law Court’s decision could be

challenged would be if one interpreted the term “tribal

government” within the list of statutory examples of

types of internal tribal matters inconsistently with the

surrounding examples, to mean anything that the Tribes

do qua governments. Both the First Circuit and state

courts have consistently rejected this interpretation. It

would not only ignore the plain language of the Settle-

ment Acts, all relevant legislative history, and the context

in which the Acts were enacted, but would simply swal-

low the general rule. If “tribal government” meant any-

thing the government did, or any document it created,

then the result would be that no state reguiation would

apply to the Tribes.

The First Circuit has specifically noted: “That a tribe

attempts to govern a matter does not render it an internal

tribal matter.” Akins, 130 F.3d at 486 (emphasis added).

Raising revenue is an exercise of tribal government, but

that does not prevent the State from regulating revenue-

raising beano games. See Stilphen, 461 A.2d at 489-90.

Similarly, just because Petitioners possess documents in

their governmental capacities does not mean that a pro-

duction requirement - for documents on a subject unre-

lated to an internal tribal matter - regulates “tribal

government” as a subset of an “internal tribal matter.”

The abstract generality of the rule that the Tribes

must be proposing leads to absurd results. For example,

although the State of Maine has exclusive jurisdiction

over violations of tribal ordinances by nonmembers of the

Tribes, see 30 Me. Rev. Stat. Ann. § 6206(3), the Tribes’

argument leads to the conclusion that the State cannot

force the Tribes - through FOAA or any other law - to

produce copies of their ordinances to the non-Indian

public. Similarly, even though the Tribes can be sued for,

e.g., breach of contract, e.g., Forrest Associates v. Passama-

quoddy Tribe, 760 A.2d 1041 (Me. 2000), under the Tribes’

interpretation, they would have no duty to respond to

any discovery request.

In sum, the Tribes’ request for review is based on two

false premises: (1) the Law Court ordered access to tribal

land; and (2) federal and state decisions interpreting

MIA’s “internal tribal matters” exception conflict. Strip-

ped of these inaccuracies, the request is reduced to ‘the

apparent claim that requiring the Tribes to produce any

document whatsoever, even on subjects that are admit-

tedly not internal to the tribe, and do not reflect any

deliberative self-government process, somehow violates

federal law. As demonstrated above, it does not.

CONCLUSION

For all the foregoing reasons, the Petition for Cer-

tiorari should be denied.

Respectfully submitted,

CATHERINE R. CONNORS

Counsel of Record

MatrHew D. MANAHAN

Currorp H. RupRECHT

Pierce ATWOOD

One Monument Square

Portland, Maine 04101-1110

(207) 791-1100

Counsel for Respondents Great

Northern Paper, Inc., Georgia-

Pacific Corporation, and

International Paper Company

APPENDIX

TABLE OF CONTENTS

Relevant Statutes Involved in the Case Omitted from

Petitioners’ Appendix

25 U.S.C. § 1725(d)(1), (e)(1), (f(g) (h).....--- App. 1

Be UGK. © UFIG) ons ccdcscccccrcvnscvesvne App. 3

30 Me. Rev. Stat. Ann. § 6204................. App. 4

Additional Record Excerpts Relevant to Understanding

the Petition

Docket entries before the Superior Court, Great

Northern Paper Inc. v. Penobscot Nation, Docket

PO, CO hax cdcdeabbeshiatinedasaeaauces App. 5

App. 1

UNITED STATES CODE

TITLE 25. INDIANS

CHAPTER 19 - INDIAN LAND CLAIMS SETTLEMENTS

SUBCHAPTER II -

MAINE INDIAN CLAIMS SETTLEMENT

§ 1725. State laws applicable

(d) Capacity to sue and be sued in State of Maine and

Federal courts; section 1362 of Title 28 applicable to civil

actions; immunity from suits provided in Maine Imple-

menting Act; assignment of quarterly income payments

from settlement fund to judgment creditors for satisfac-

tion of judgments

(1) The Passamaquoddy Tribe, the Penobscot

Nation, and the Houlton Band of Maliseet Indians, and

all members thereof, and all other Indians, Indian

nations, or tribes or bands of Indians in the State of

Maine may sue and be sued in the courts of the State of

Maine and the United States to the same extent as any

other entity or person residing in the State of Maine may

sue and be sued in those courts; and section 1362 of Title

28 shall be applicable to civil actions brought by the

Passamaquoddy Tribe, the Penobscot Nation, and the

Houlton Band of Maliseet Indians: Provided, however,

That the Passamaquoddy Tribe, the Penobscot Nation,

and their officers and employees shall be immune from

suit to the extent provided in the Maine Implementing

App. 2

(e) Federal consent for amendment of Maine Imple-

menting Act; nature and scope of amendments; agree-

ment respecting State jurisdiction over Houlton Band

Lands

(1) The consent of the United States is hereby given

to the State of Maine to amend the Maine Implementing

Act with respect to either the Passamaquoddy Tribe or

the Penobscot Nation: Provided, That such amendment is

made with the agreement of the affected tribe or nation,

and that such amendment relates to (A) the enforcement

or application of civil, criminal, or regulatory laws of the

Passamaquoddy Tribe, the Penobscot Nation, and the

State within their respective jurisdictions; (B) the alloca-

tion or determination of governmental responsibility of

the State and the tribe or nation over specified subject

matters or specified geographical areas, or both, includ-

ing provision for concurrent jurisdiction between the

State and the tribe or nation; or (C) the allocation of

jurisdiction between tribal courts and State courts.

(f) Indian jurisdiction separate and distinct from State

civil and criminal jurisdiction

The Passamaquoddy Tribe and the Penobscot Nation

are hereby authorized to exercise jurisdiction, separate

and distinct from the civil and criminal jurisdiction of the

State of Maine, to the extent authorized by the Maine

Implementing Act, and any subsequent amendments

thereto.

App. 3

(g) Full faith and credit

The Passamaquoddy Tribe, the Penobscot Nation,

and the State of Maine shall give full faith and credit to

the judicial proceedings of each other.

(h) General laws and regulations affecting Indians

applicable, but special laws and regulations inapplicable,

in State of Maine

Except as other wise provided in this subchapter, the

laws and regulations of the United States which are gen-

erally applicable to Indians, Indian nations, or tribes or

bands of Indians or to lands owned by or held in trust for

Indians, Indian nations, or tribes or bands of Indians

shall be applicable in the State of Maine, except that no

law or regulation of the United States (1) which accords

or relates to a special status or right of.or to any Indian,

Indian nation, tribe or band of Indians, Indian lands,

Indian reservations, Indian country, Indian territory or

land held in trust for Indians, and also (2) which affects

or preempts the civil, criminal, or regulatory jurisdiction

of the State of Maine, including, without limitation, laws

of the State relating to land use or environmental matters,

shall apply within the State... .

§ 1735. Construction

(b) General legislation

The provisions of any Federal law enacted after Octo-

ber 10, 1980, for the benefit of Indians, Indian nations, or

App. 4

tribes or bands of Indians, which would affect or preempt

the application of the laws of the State of Maine, includ-

ing application of the laws of the State to lands owned by

or held in trust for Indians, or Indian nations, tribes, or

bands of Indians, as provided in this subchapter and the

Maine Implementing Act, shall not apply within the State

of Maine, unless such provision of such subsequently

enacted Federal law is specifically made applicable

within the State of Maine.

MAINE REVISED STATUTES ANNOTATED

TITLE 30. MUNICIPALITIES AND COUNTIES

PART 4. INDIAN TERRITORIES

CHAPTER 601. MAINE INDIAN CLAIMS SETTLEMENT

§ 6204. Laws of the State to apply to Indian Lands

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, held in trust for them by the United States or by

any other person or entity shall be subject to the laws of

the State and to the civil and criminal jurisdiction of the

courts of the State to the same extent as any other person

or lands or other natural resources therein.

App. 5

Cumberland County

Date Filed 05/22/00 Docket No. CV-00-329

Action FREEDOM OF ACCESS

GREAT NORTHERN PENOBSCOT INDIAN

PAPER, INC. NATION

CHAMPION RICHARD H.

INTERNATIONAL HAMILTON, CHIEF

CORPORATION THE PASSAMAQUODDY

GEORGIA-PACIFIC TRIBE

CORPORATION RICHARD M. DOYLE,

GOVENOR [sic]

STATE OF MAINE

(Intervenor)

VS.

Plaintiff’s Attorney Defendant’s Attorney

CATHERINE R. 722-1941

| CONNORS ESQ GREGORY SAMPLE ESQ

MATTHEW (Passamaquoddy)

MANAHAN, ESO 245 Commercial St. PM

791-1100 04101

ONE MONUMENT

SAUARE [sic] PM

04101

KAIGHN SMITH JR ESQ

(Penobscot) Box 9781, Por.

Me 04191-5083 -

MARK A CHAVAREE ESQ

6 River Rd., Indian

Isalnd [sic],

Old Town,

Me 04468

WILLIAM STOKES, AAG

(STATE) 626-8800

6 STATE HOUSE STATION

AUGUSTA, MAINE

04333-0006

Date of

Entry

2000

May 23

May 31

App. 6

Received 05/22/00:

Complaint Summary Sheet filed.

Complaint Under Maine's Freedom of Access

Act with Exhibits A and B filed.

Received 05/31/00:

“Summons filed showing officer’s return of

service on 5/25/00 upon Richard H. Hamilton,

Chief Penobscot Indian Nation.

“Summons filed showing officer’s return of

service on 5/25/00 upon Penobscot Indian

Naiton [sic] Richard H. Hamilton, Chief to

Linda Socoby, clerk.

“Summons filed showing officer’s return of

service on 5/26/00 upon The Passamaquoddy

Tribe Richard M. Doyle, Governor Richard

Stevens, Governor to Mary Lola clerk.

“Summons filed showing officer’s return of

service on 5/26/00 upon the Passamaquoddy

Tribe Richard M. Doyle, Governor to Mary

Lola, clerk.

“Summons filed showing officer’s return of

service on 5/26/00 upon the Passamaquoddy

Tribe Richard Stevens, Governor to Mary Lola,

clerk.

“Symmons filed showing officer’s return of

service on 5/26/00 upon Richard Stevens, Gov-

ernor The Passamaquoddy Tribe to mary [sic]

Lola, clerk

June 13

App. 7

“Summons filed showing officer’s return of

service on 5/26/00 upon Richard M. Doyle,

Governor The Passamaquoddy Tribe to Mary

Lola, Clerk.

Received 06-09-00:

Defendants, the Penobscot Indian Nation, Rich-

ard H. Hamilton, Chief of the Penobscot Indian

Nation, the Passamaquoddy Tribe, Richard M.

Doyle, Governor of Pleasant Point Passama-

quoddy Reservation, and Richard Stevens,

Governor of Indian Township Passamaquoddy

Reservation Answer and Affirmative Defenses

filed.

Received 06/12/00:

Plaintiff's Motion for Partial Summary Judg-

ment filed.

Memorandum of law in Support of Plaintiff's

Motion for Partial Summary Judgment filed.

Statement of Material Facts in Support of Plain-

tiff’s Motion for Partial Summary Judgment

filed.

Received 06/12/00:

Affidavit of Matthew D. Manahan in Support

of Plaintiff’s Motion for Partial Summary Judg-

ment with exhibits A-K filed.

Plaintiff's Motion for Expedited Hearing and

Incorporated Memorandum of Law filed.

Plaintiff's Request for a Hearing on Motion for

Partial Summary Judgment filed.

Defendant’s Motion to Stay Proceedings with

Incorporated Memorandum of Law with

exhibit A-D filed.

June 14

wena

see eae

June 14

wn on

we on

June 21

App. 8

Request for a Hearing on Motion to Stay Pro-

ceedings filed.

- Defendant’s Motion for Expedited Hearing on

Their Motion to Stay Proceedings with Incorpo-

rated Memorandum of Law filed.

Request for a Hearing on Motion for Expedited

Hearing on Motion to Stay Proceedings filed.

Received 06/14/00:

State of Maine’s Motion to Intervene Pursuant

to M.R.Civ.P.24(a) and (b) filed.

Memorandum in Support of State of Maine's

Motion to Intervene Pursuant to M.R.Civ.P.

24(a) and (b) filed.

Intervenor State of Maine’s Answer filed.

On 06/14/00:

As to Plaintiff’s Motion for Expedited Hearing

on Motion for Partial Summary Judgment,

Motion maybe scheduled for hearing after 25

days from filing or after responsive pleading

filed. (Crowley, J.)

As to Defendant’s Motion for Expedited Hear-

ing on Their Motion to Stay Proceedings,

Motion may be scheduled for hearing after 25

days from filing or after responsive pleading

filed. (Crowley, J.) -

On 06/14/00: Copies mailed to Kaighn Smith,

Matthew Manahan, Gregory Sample, Esqs. and

William Stokes, AAG. and Mark Chavaree, Esq.

Received 6-21-00.

Defendants’ motion to extend due date for

defendants’ opposition to plaintiff’s motion for

June 22

June 28

wean

June 29

June 30

App. 9

partial summary judgment to allow disposition

of defendants’ pending motion to stay proceed-

ings (memorandum of law incorporated) with

exhibits A, B & 1 filed.

Received 6-21-00.

Plaintiff's memorandum of law in opposition

to defendants’ motion to extend due date filed.

Plaintiff's memorandum of law in opposition

to defendant’s motion to stay with exhibits A &

B filed.

Letter from Matthew D. Manahan Esq. regard-

ing pending motions filed.

Received 6-26-00.

State of Maine’s Memorandum of Law in

Opposition to Defendants’ Motion to Stay,

filed.

Received 6-28-00.

Defendants’ motion to strike State of Maine’s

memorandum of law in opposition to defen-

dants’ motion to stay (memorandum incorpo-

rated) filed. |

Defendant’s request for hering [sic] filed.

Received 6-28-00.

Plaintiffs’ Memorandum of Law in Opposition

to Defendants’ Motion to Strike, filed.

Received 6-29-00.

Defendants’ Reply to Plaintiffs’ Memorandum

of law in Opposition to Defendants’ Motion to

Strike, filed.

Received 6-30-00.

App. 10

Defendants Penob scot Indian Nation’s and Pas-

samaquoddy Tribe's Reply to Plaintiffs’ Mem-

orandum of Law in Opposition to Defendants’

Motion to Stay with attached exhibits 1 & 2,

filed.

Defendants Penobscot Indian Nation’s and Pas-

samaquoddy Tribe's Motion for Two-Day

Extension to File Their Reply to Plaintiffs’

Opposition to Defendants’ Motion to Stay Pro-

ceedings (Memorandum Incorporated), filed.

Request for Hearing, filed.

July 3 Received 06-30-00:

Applicant for Intervention, State of Maine's

Opposition to Defendant’s Motion to Strike the

State’s Memorandum of law in Opposition to

Defendants’ Motion to Stay filed.

Applicant for Intervention, State of Maine's

Memorandum of Law in opposition to Defen-

dants’ Motion to Extend Due Date filed.

July 5 Received 7-3-00.

State of Maine’s memorandum of law in sup-

port of plaintiffs’ motion for for [sic] partial

summary judgment filed.

July 5 Received 07/03/00:

Defendant’s Motion to Dismiss filed.

Defendants’ Memorandum of law in Opposi-

tion to State of Maine’s Motion to Intervene

filed.

Defendants’ Consolidated Memorandum of

Law in Opposition to Plaintiffs’ Motion for Par-

tial Summary Judgment, and in Support of

July 6

July 10

App. 11

Defendants’ Motion to Dismiss with exhibits

1&2 filed.

Request for a Hearing on Motion to Dismiss

filed.

Received 07/06/00:

Defendants’ Motion to Strike State of Maine’s

Memorandum of Law in Support of Plaintiffs’

Motion for Partial Summary Judgment (Mem-

orandum Incorporated) filed.

Request for a Hearing on Defendants’ Motion

to Strike State of Maine’s Memorandum of Law

in Support of Plaintiffs’ Motion for Partial

Summary Judgment filed.

Received 7-5-00.

Plaintiff's memorandum of law in opposition

to defendants’ motion for a two-day extension

with exhibits A & B filed.

Received 7-6-00.

Plaintiffs’ reply memorandum in support of

plaintiffs’ motion for partial summary judg-

ment with exhibits A & B filed.

On 7-7-00.

Conference held in chambers with counsel pre-

sent.

As to Defendant’s Motion for Expedited Hear-

ing on Their Motion to Stay Proceedings:

Motion for expedited hearing denied.

(Crowley, J.)

July 10

“wn

July 11

July 13

soon

July 14

App. 12

On 7-7-00 continued.

As to Plaintiffs’ Motion for Expedited Hearing:

Motion for expedited hearing denied.

(Crowley, J.)

All other motions to be heard in normal course.

Crowley, J. Presiding; no court reporter.

Copies mailed Catherine Connors, Esq., Mat-

thew Manahan, Esq., Gregory Sample, Esq.,

Kaighn Smith, Esq., Mark Chavaree, Esq. and

William Stokes, AAG on 7-10-00.

Received 7-10-00.

Intervenor, State of Maine, Reply Memoran-

dum in Support of Its Motion to Intervene

filed.

Received 7-10-00.

Plaintiff's memorandum of law in opposition

to defendants’ motion to strike filed.

Received 7-12-00

Defendant’s reply to plaintiff's opposition to

defendants’ motion for two day extension to

file reply to defendants’ opposition to motion

to stay filed.

Letter from Matthew Manahan Esq. reguarding

[sic] a scheduling conference filed.

Received 7-14-00

State of Maine’s opposition to defendants’

motion to strike state of Maines memorandum

in support of plaintiff's motion for partial sum-

mary judgement with exhibit A filed.

July 18

July 21

July 25

July 27

July 28

Aug. 08

App. 13

State of Maine’s memorandum of law in oppo-

sition to defendants’ motion to dismiss with

exihibit [sic] a filed.

Received 7-17-00.

Plaintiff’s memorandum of law in opposition

to defenants’ [sic] motion to dismiss with

exhibit A filed.

Received 7-20-00.

Correspondence from Matthew Manahan, Esq.

with attached copy of Federal Court decision

requesting that Plaintiff’s Motion for Partial

Summary Judgment as soon as possible, filed.

Received 7-25-00

Defendant's Reply to plaintiff's memorandum

of law in opposition to defendant’s motion to

dismiss filed.

Received 7-26-00.

Scheduling Order, filed. (Crowley, J.)

Scheduling Order filed. Discovery deadline

is March 26, 2001. Copies mailed Matthew

Manahan, Esq., Gregory Sample, Esq., Kaighn

Smith, Esq., Mark Chavaree, Esq. and William

Stokes, AAG on 7-27-00.

Received 7-27-00.

Letter from Matthew D. Manahan Esq. regard-

ing motion to dismiss filed.

Received 08/07/00:

Plaintiff’s Motion to Amend or Alter Schedul-

ing Order and Incorporated Memorandum of

Law filed.

wom of

Aug.

Sept.

App. 14

Request for a Hearing filed.

Received 08/07/00:

Defendant’s Objection to Scheduling Order

with exhibits A & B filed.

Received 08-09-00:

Letter from William R. Stokes, AAG stating the

State supports the Plaintiffs’ Motion to Alter or

Amend the Scheduling Order dated July 26,

2000 filed.

Received 08-11-00:

Letter from William R. Stokes, Assistant Attor-

ney General supports the Defendants’ objection

to the Scheduling Order filed.

Received 08-11-00:

Plaintiffs’ Memorandum in Response to Defen-

dants’ Objection to Scheduling Order with

Exhibits 1a thru d, 2a thru c, 3a thru d, 4, 5, 6,

7a thru e, 8, 9, 10, 11 filed.

Amended Scheduling Order filed.

Received 8-28-00.

Defendants’ opposition to plaintiff’s motion to

amend or alter scheduling order with exhibits

A-C filed.

Received 08/31/00:

Plaintiff’s Reply Memorandum in Support of

their Motion to Amend or Alter scheduling

Order filed.

Received 09-07-00:

Letter Kaighn Smith, Jr., Esq. informing the

Court that the United States District Court for

Sept. 13

App. 15

the District of Maine in the matter of Penobscot

Nation, et al v. Georgia-Pacific, et al Civil

Action no 00-101-B, has scheduled oral argu-

ment on the Tribes’ Motion for Reconsideration

for September 13, 2000 filed.

On 9-6-00.

Hearing held on Plaintiff’s Motion for Partial

Summary judgment, Defendant’s Motion to

Stay Proceedings, State’s Motion to Intervene,

Defendants’ Motion to Strike State of Maine,

Defendants’ Motion to Dismiss, Defendants’

Motion to Strike and Plaintiff’s Motion to

Amend or Alter Scheduling Order.

As to Plaintiff’s Motion for Partial Summary

Judgment:

Court takes matter under advisement.

(Crowley, J.)

As to Defendants’ Motion to Stay Proceedings:

Court takes matter under advisement.

(Crowley, J.)

As to State’s Motion to Intervene:

Court grants motion prior to hearing. (Crowley,

J.)

As to Defendants’ Motion to Strike State of

Maine:

Motion moot pursuant to court’s granting of

Motion to Intervene.

As to Defendants’ Motion to Dismiss:

Court takes matter under advisement.

(Crowley, J.)

Sept. 21

App. 16

As to Defendants’ Motion to Strike:

Motion moot pursuant to the court’s granting

of Motion to Intervene.

As to Plaintiff’s Motion to Amend or Alter

Scheduling Order:

Court takes matter under advisement.

(Crowley, J-)

Crowley, J. Presiding, no court reporter,

Matthew Manahan, Esq. for Plaintiff

Kaighn Smith, Esq. for Defendants and Wil-

liam Stokes, AAG for Intervenor State of

Maine

Received 9-19-00.

Decision and Order, filed. (Crowley, J.)

Plaintiff's Motion for Partial Summary

Judgment is GRANTED.

Defendant’s Motion to Dismiss is DENIED.

Received 9-19-00 continued.

Defendant’s Motion to Stay Proceedings

is DISMISSED as MOOT.

Plaintiff's’ Motion to Amend or Alter

Scheduling Order is GRANTED insofar

as the Defendants are required to turn

over all non-privileged documents

claimed to be privileged not later than 14

days from the date of this order.

Copies mailed Catherine Connors, Esq.,

Matthew Manahan, Esq., Gregory Sample,

Esq., Kaighn Smith, Esq., Mark Chavaree,

Esq. and William Stokes, Esq. on 9-21-00.

Sept. 26

Sept. 28

Oct. 2

Oct. 10

App. 17

Received 9-26-00.

Defendants’ Motion for Relief from Decision

and Order (Memorandum Incorporated),

filed.

Proposed Order, filed.

Defendants’ Motion for Expedited Disposi-

tion Without Hearing or for Expedited Hear-

ing (Memorandum Incorporated), filed.

Proposed Order, filed.

On 9-27-00.

As to Defendants’ Motion for Relief from

Decision and Order:

Motion denied without hearing. (Crowley, J.)

Copies mailed Catherine Connors, Esq.,

Matthew Manahan, Esq., Gregory Sample,

Esq., Kaighn Smith, Esq., Mark Chavaree,

Esq. and William Stokes, AAG on 9-28-00.

Received 9-28-00.

Plaitniff’s [sic] opposition to defendant's

motion for relief from decision and order

and opposition to motion for expedited

disposition without hearing or for expe-

dited hearing with appendix 1 filed.

Received 10-2-00

Intervenor, State of Maine’s, Opposition

to Defendants’ Motion for Relief from

Decision and Order filed.

Received 10-5-00.

Plaintiff’s Motion for Contempt and Entry of

Final Judgment with Incorporated Memoran-

dum of Law, filed.

Oct. 13

Oct. 17

App. 18

Affidavit of Matthew D. Manahan in Support

of Plaintiff’s Motion for Contempt and Entry

of Final Judgment with attachment, filed.

Request for Hearing, filed.

Plaintiff’s Motion for Expedited Hearing and

Incorporated Memorandum of Law, filed.

Proposed Order, filed.

On 10-10-00.

As to Plaintiffs’ Motion for Expedited Hear-

ing:

Motion for Expedited Hearing granted. Hear-

ing on Motion for Contempt and Entry of

Final Judgment is set for October 18, 2000 at

9:00 a.m. Written opposition is to be filed by

4:15 p.m. on October 16, 2000. Copies mailed

Cahterine [sic] Connors, Esq., Matthew Man-

ahan, Esq., Gregory Sample, Esq., Kaighn

Smith, Esq., Mark Chavaree, Esq. and Wil-

liam Stokes, AAg on 10-12-00.

Received 10-13-00.

Intervenor State of Maine’s Position with

Respect to Plaintiffs’ Motion for Contempt

and Entry of Final Judgment filed.

Received 10-16-00.

Defendants’ Memorandum in Opposition to

Motion for Contempt, Final Judgment and

Expedited Hearing with exhibits A and B

filed.

Received 10-17-00.

Plaintiff’s Reply Memorandum in Support of

Plaintiffs’ Motion for Contempt and Entry of

Final Judgment with attachment filed.

Oct. 20

App. 19

On 10-18-00.

Hearing held on Plaintiff's Motion for Con-

tempt and Entry of Final Judgment. Court

grants motion for final judgment; no ruling

made on motion for contempt. Hearing on

motion for contempt scheduled for 11-9-00 at

9:00 a.m. in Androscoggin Superior Court.

Proposed Order to be filed by Attorney Man-

ahan. If an appeal is filed by November 9,

2000, hearing on motion for contempt will be

stayed.

Crowley, J. Presiding, Kathy Casey court

reporter, Matthew Manahan, Esq. for Plain-

tiff, Kaighn Smith, Esq. and Gregory Sample,

Esq. for Defendants and William Stokes,

AAG for Intervenor.

Received 10-18-00

Order Directing Entry of Final Judgment,

filed. (Crowley, J.)

On September 19, 2000, the Court

granted the Plaintiffs’ Motion for Partial

Summary Judgment, and ordered the

Defendants to turn over all non-privi-

leged documents as well as logs of all

documents claimed to be privileged by

no later than October 3, 2000. Upon

motion by the Plaintiffs and after hear-

ing, the Court finds that by failing to

turn over a log of any documents

claimed to be privileged by that date,

Defendants have waived their argument

that any responsive records are privilege

[sic] from disclosure. Therefore, given

that there is nothing further for this

court to do to resolve Plaintiffs’ claims in

App. 20

this case, the clerk is directed to enter

final judgment in favor of Plaintiffs.

Copies mailed Catherine Connors, Esq., Mat-

thew Manahan, Esq., Gregory Sample, Esq.,

Kaighn Smith, Esq., Mark A. Chavaree, Esq.

and William Stokes, AAG on 10-20-00.

Received on 10-20-00.

Order on Plaintiffs’ Motion for Contempt

filed. (Crowley, J.)

On September 19, 2000, the Court

granted the Plaintiffs’ Motion for Partial

Summary Judgment, and ordered the

Defendants to turn over all non-privi-

leged documents as well as logs of all

documents claimed to be privileged by

no later than October 3, 2000. Plaintiffs

have moved pursuant to M.R.Civ.P.

66(d), to hold the Defendants in con-

tempt of court for failing to turn over

responsive documents. The Court hereby

scheduled an evidentiary hearing on the

motion for contempt for November 9,

2000 at 9:00 a.m., in the Androscoggin

County Superior Court, provided, how-

ever, that the Plaintiffs’ Motion for Con-

tempt shall be stayed if the Defendants

appeal this Court's September 19, 2000

Order and Order Directing Entry of Final

Judgment, signed today, to the Law

Court before November 9, 2000.

Copies mailed Catherine Connors, Esq., Mat-

thew Manahan, Esq., Gregory Sample Esq.,

Kaighn Smith, Esq., Mark Chavaree, Esq. and

William Stokes, AAG on 10-20-00. Copy also

Oct. 25

Nov. 6

App. 21

mailed Linda Mason, Clerk, Androscoggin

Superior Court.

Received 10-24-00.

Transcript of hearing held on 9-18-00 before

Justice Crowley, filed.

Received 11-06-00

Subpoena for hearing on motion of contempt