United States Department of the Interior

OFFICE OF THE SOLICITOR

Washington DC 20240

John P DeVillars

Regional Administrator

Environmental Protection Agency

Region 1

JFK Federal Building

Boston MA 022030001

SEP 2 1997 RECEIVED OFFICE OFTHE REGIONAL ADIAINISTRATOF

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Re Penobscot Indian Nation Request for Evidentiary Hearing

Lincoln Pulp Paper NPDES permit No ME0002003

Dear Mr DeVillars

The Department of the Interior Department has reviewed the

correspondence filed with you by the Penobscot Indian Nation PIN

Lincoln Pulp and Paper Company Lincoln and the State of Maine

Department of the Attorney General State in the above referenced

Request for Evidentiary Hearing concerning NPDES Permit No

ME0002003 Certain of the positions set forth in those filings

cause concern to this Department in its role as primary agency

within the Federal Government charged to act on behalf of Indian

Tribes Consequently my intent in this letter is to ensure that

your agency is fully aware of the positions of this Department and

of the United States concerning certain issues relevant to the

Maine Indian Claims Settlement Act the Federal Trust

responsibility to Maine Indians and the fishing rights of the

Penobscot Indian Nation

I address three major points as follows

1 The Nature of the Federal Governments trust

responsibility to the PIN

2 Interpretation of PINs fishing rights

3 PINs right to appeal the NPDES permit

1

The First Circuit has recognized the Secretary of the

Interior as the administrator of the Maine Indian Claims Settlement

Act MICSA Passamaquoddy Tribe v State of Maine 75 F3d 784

794 1st Circuit 1996 Moreover the Department of the Interior

is recognized to have reasonable power to discharge effectively its

broad responsibilities in the area of Indian affairs and its

actions in interpreting tribal rights are accorded substantial

deference Parravano v Babbitt 70 F3d 539 544 9th Cir 1995

cert denied 116 S Ct 2546 1996

1

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1 The Nature of the Federal Governments trust responsibility to

the PIN

As you know the United States has a trust responsibility to

protect the lands and resources of federally recognized Indian

Tribes In the exercise of this trust responsibility the United

States is held to the most exacting fiduciary standards Seminole

Nation v United States 316 US 286 1942 This fiduciary

responsibility extends to all agencies of the Federal Government

including the Environmental Protection Agency EPA Nance v EPA

645 F2d 701 711 9th Cir 1981

The Department acknowledges that the Maine Tribes came late to

federal recognition and protection However as of 1975 when the

First Circuit recognized that the protections of the federal Trade

and Intercourse Act 1 Stat 137 1790 now codified at 25 USC

§ 177 did apply to the Maine Tribes See Joint Tribal Council of

Passamaquoddy Tribe v Morton 528 F2d 370 379380 1st Circuit

1975 the United States has recognized and acted in furtherance

of its trust responsibility to protect the lands and natural

resources of the Maine Indians beginning with the United States

advocacy on the Tribes behalf in the Maine land claims litigation

This litigation which alleged that Massachusetts and Maine

illegally took lands of the Maine Indians without federal

involvement or consent in violation of the Trade and Intercourse

Act was settled through the enactment by Congress in 1980 of the

Maine Indian Claims Settlement Act MICSA 25 USC § 1721 et

seq which ratified Maines Act to Implement the Maine Indian

Claims Settlement 30 MRSA § 6201 et seq Implementing Act

Contrary to the assertions made in several of the filings

before you the United States did not through MICSA limit its trust

responsibility While the MICSA did create a unique relationship

between the State of Maine and the Maine Tribes the federal trust

obligation to protect the lands and natural resources of the Maine

Tribes continues The Penobscot Nation is a federally recognized

Indian Tribe 61 Fed Reg 58211 58213 1996 and as such is

entitled to those rights and benefits which the United States

provides to Indians based upon their status as Indians See 25 USC § 479a 1a H Rep No 961353 p 18 reprinted in 1980 USCCAN 3786 p 3794 The Penobscot Reservation is a

federal reservation under the jurisdiction of the United States 25 USC §§ 2 and 9

The Department thus finds erroneous the views expressed which

suggest that EPA has no special relationship with the Penobscot

Indian Nation In MICSA Congress formally confirmed the federal

recognition of the Penobscot Nation the Passamaquoddy Tribe and

the Houlton Band of Maliseet Indians 25 USC §§ 1722 1721

1725i Subsequent Congressional action extended this federal

recognition to the Aroostook Band of Micmacs Pub L No 102171

105 Stat 1143 1991 Congress has declared that this

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recognition requires that the United States protect tribal

resources through the trust responsibility Pub L No 103454

108 Stat 4791 1994

The Department further finds no merit in the claim that MICSA

extinguished PINs sovereignty Federal recognition connotes

recognition of a Tribes inherent sovereignty Pub L No 103

454 108 Stat 4791 1994 See also Rhode Island v Narragansett

Indian Tribe 19 F3d 685 694 1st Cir 1994 Passage of MICSA

did not terminate the Maine Tribes and thus did not extinguish

PINs sovereignty Instead as noted in the legislative history

the settlement strengthens the sovereignty of the Maine Tribes

H Rep No 961353 at 15 1980 reprinted in 1980 USCCAN

3786 p 3790 See also Senate Rep No 96957 pp 1415 1980

It has been asserted that section 1725h of the MICSA a

section of the Act which reflects the unique relationship between

the Maine Tribes and the State prevents the application of the

trust responsibility and federal case law interOeting its

requirements in Maine 25 USC § 1725h Through this section

Congress provided that the application of federal Indian law

including case law in Maine can be precluded but only if such

law would affect or preempt the civil criminal or regulatory

jurisdiction of the State If Maines jurisdiction is unaffected

federal law does apply See HR Rep No 961353 at 1920 1980

reprinted in 1980 USCCAN 3786 pp 37945 Senate Report No

96957 at 30 1980

In the Departments view section 1725h has no applicability

to this situation2 The NPDES program has not been delegated by

the United States to the State of Maine it thus remains a federal

program for which EPA is the permitting authority EPAs

consideration of federal law to determine its obligations to the

PIN in making the NPDES permit decision therefore is required in

this case

2

While the State does have authority under section 401 of

the Clean Water Act to certify that a proposed discharge meets its

water quality standards this does not mean that EPA cannot impose

a more stringent standard in its permit 40 CFR § 12455c

provides that a state may not condition or deny a certification on

the grounds that State law allows a less stringent permit

condition

3 There is also no merit to the claim that because MICSA is

an Act of Congress rather than a treaty EPA cannot consider

federal case law in determining tribal rights and federal

obligations As with a treaty MICSA is similarly the supreme law

of the Land and creates rights and liabilities which are

virtually identical to those established by treaties See

Parravano v Babbitt 70 F3d 539 544 9th Cir 1995 cert

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Since there exists a trust relationship between the Maine

Tribes and the United States EPA must act as a trustee when taking

federal actions which affect tribal resources When taking such

actions EPAs fiduciary obligation requires it to first protect

Indian rights and resources See Parravano v Babbitt 70 F3d 539

9th Cir 1995 cert denied 116 S Ct 2546 1996 Pyramid Lake

Paiute Tribe of Indians v Morton 354 F Supp 252 DDC 1972

revid in part on other grounds 499 F2d 1095 DC Cir 1974

cert denied 420 US 962 1975 holding that for the Secretary

of Interior to fulfill his fiduciary duty to Tribe while

determining amount of water to be diverted from dam for benefit of

irrigation district and to detriment of tribal fishery in

downstream Pyramid Lake the Secretary must insure to the extent

of his power that all water not obligated by court decree or

contract with the District goes to Pyramid Lake Northern

Cheyenne Tribe v Hodel 12 Indian L Rep 3065 D Mont May 28

1985 Rejecting Secretarys argument that national interest in

developing coal resources outweighed trust duty and stating that

identifying and fulfilling the trust responsibility it even more

important in situations such as the present case where an agencys

conflicting goals and responsibilities combined with political

pressure asserted by non Indians can lead federal agencies to

compromise or ignore Indian rights Thus fulfillment of EPAs

trust responsibility must entail considerations beyond the minimum

requirements in the Clean Water Act CWA and in MICSA to fully

protect the PINs rights and resources

2 Interpretation of PINs fishing rights

The historic treaties between PIN and Massachusetts Maine

then being part of the Massachusetts territory provide the basis

for rights expressly confirmed to the PIN through the Implementing

Act and MICSA As a result PINs fishing right has two components

the aboriginal right retained through treaty and confirmed by

MICSA and a statutory right included within the Implementing Act

a PINs confirmed aboriginal fishing rights

Through a series of treaties which culminated in the 1818

Treaty with Massachusetts the PIN retained the islands and natural

resources including fishing rights within the Penobscot River

beginning at Indian Island and extending upriver Congress

through its ratification in MICSA of the Maine Implementing Act

which defined the retained Penobscot Reservation confirmed this

reservation of lands and resources including fishing rights to

the PIN See 30 MRSA § 62038 25 USC §§ 17221

1725b1 While Section 1723b of MICSA did extinguish

denied 116 S Ct 2546 1996 Felix Cohen Handbook of Federal

Indian Law p 127 1982 ed

EPA000556
aboriginal title to lands or natural resources given up by the PIN

through transactions illegal under the Trade and Intercourse Act

MICSA did not extinguish aboriginal title to lands or natural

resources retained by the PIN Rather Congress confirmed those

retained aboriginal rights to the PIN According to the

legislative history of MICSA fishing rights are an example of

natural resources considered expressly retained sovereign

activities HR Rep No 961353 at p 15 1980 reprinted in

1980 USCCAN 3786 p 3791 emphasis added

I attach the brief filed by the United States in Maines

Supreme Judicial Court in Atlantic Salmon Federation v Maine Board

of Environmental Protection 662 A2d 206 Me 1995 in which the

United States position regarding the PINs fishing right is set

out In short the brief states that

The Penobscot Nations right is a reserved right meaning it

was reserved from the greater aboriginal rights of the Nation

to the use and occupancy of its territory which had not been

validly extinguished under 25 USC 177 prior to the

enactment of the Maine Implementing Act and the federal

Settlement Act ratifying its terms The fishing right

therefore is not a grant from the state of Maine in the

exercise of its sovereign authority over fish and wildlife

within its borders it is a reservation from the aboriginal

rights given up by the Penobscot Nation in the settlement

which finally extinguished its aboriginal rights

Brief for the United States as Amicus Curiae filed before the

Supreme Judicial Court of Maine in Atlantic Salmon Federation et

al v Maine Board of Environmental Protection Law Docket No

Ken 94779 January 27 1995 p 15

b PINs statutory fishing right under the Maine Implementing Act

In addition to PINs retained aboriginal fishing rights within

its Reservation the Maine Implementing Act expressly confirmed to

PIN a fishing right providing that

the members of the Penobscot Nation may take fish

within the boundaries of their respective Indian reservations

for their individual sustenance

30 MRSA § 62074 The State of Maine has only a residual

right to prevent the PIN from exercising its fishing right in a

manner which has a substantial adverse impact on fish stocks in or

on adjacent waters the legislative history compares this residual

power to that which other states retain with respect to federal

Indian treaty fishing rights See HR Rep No 961353 at p 17

1980 reprinted in 1980 USCCAN 3786 p 3793 Indeed the

State of Maine has acknowledged that in recognition of

traditional Indian activities such as fishing preferential

EPA000557
treatment is to be provided to Maine Indians See letter from

Attorney General Richard Cohen to Senator John Melcher August 12

1980 reprinted in US Senate Select Committee on Indian

Affairs Hearings on S 2829 Proposed Settlement of Maine Indian

Land Claims See also Letter from Maine Attorney General James

Tierney to Atlantic Sea Run Salmon Commission Chair William Vail

Feb 16 1988 in which the State recognized that the Penobscot

Nation possesses a right to take fish from the Penobscot River for

consumption in a manner otherwise prohibited by state law due to

the provisions in the Maine Implementing Act Copies attached

As provided in the Implementing Act the PIN fishing right

applies within the boundaries of the Penobscot Reservation as it

is defined in the Implementing Act The Reservation is defined to

expressly include the islands in the Penobscot River beginning at

Indian Island and continuing upriver which were reserved by the

PIN in its historic treaties 30 MRSA § 62038 In those

treaties the PIN ceded lands beginning at the rivers edge and

extending upland thereby retaining its rights to the beds and

banks of the Penobscot River See Wilson Son v Harrisburg 107

Me 207 210 1910 Pursuant to the 1818 Treaty PINs riparian

ownership to the bed and banks of the river is limited only by the

commonly recognized right of the public to use the river for

navigation See Pearson v Rolfe 76 Me 380 386 1884 In

confirming the PIN Reservation the Implementing Act recognized the

retention of PINs riparian rights to the Penobscot River

including the beds and banks of the river

As a riparian owner PIN possesses certain rights under state

law which relate to the interpretation of its statutorily based

fishing right Maine law recognizes that a riparian proprietor

such as the PIN has a legal right

to take fish from the water over his own land to the

exclusion of the public Waters v Lilley 4 Pick Mass

145 16 Am Dec 333 He does not own the water itself but

he has the right to the natural flow of the stream and the

right to the use and benefit of it as it passes through his

land for all the domestic and agricultural purposes to which

it can be reasonably applied and no proprietor above or below

can unreasonably divert obstruct or pollute it Waluppa

Reservoir Co v Fall River 147 Mass 548 554 18 NE 465

1 LRA 466 Auburn v Water Power Co 90 Maine 576585 38

Atl 561 38 LRA 188

4

Report of the Joint Select Committee on Indian Land Claims

Relating to LD 2037 An Act to Provide for Implementation of the

Settlement of Claims by Indians in the State of Maine and to create

the Passamaquoddy Indian Territory and Penobscot Indian Territory

included within Appendix Senate Select Committee on Indian

Affairs hearing July 12 1980

EPA000558
The only limitation upon the absolute rights of riparian

proprietors in non tidal rivers and streams is the public

right of passage for fish and also for passage of boats and

logs All these rights which the riparian proprietor has

in the running streams are as certain as absolute and as

inviolable as any other species of property

Opinion of the Justices of the Supreme Judicial Court 118 Me 503

507 1919 emphasis added

The PIN Reservation encompasses the area into which Lincoln

discharges its outfall As such and as a riparian proprietor PIN

possesses certain rights under Maine law including the right to

take fish and the right that others not unreasonably pollute the

waters overlying those lands

3 PINs right to appeal

The Department finds particularly questionable the attempt to

have EPA deny the PINs right of appeal We have examined the

NPDES regulations which define standing to request a hearing in

this matter In the Departments view PIN is an interested

person as provided in 40 CFR §12474 which is the sole

indicated criterion for filing a request for hearing Moreover

the PIN meets the criteria under the definitions for Indian Tribe

and of person under 40 CFR § 1242 as well The definition

for Indian Tribe specifically states that for the NPDES

program the term Indian Tribe means any Indian Tribe band

group or community recognized by the Secretary of the Interior and

exercising governmental authority over a Federal Indian

reservation 40 CFR § 1242 PIN meets these requirements

There would appear thus no grounds on which to contest PINs

status to request an evidentiary hearing in this proceeding

Thank you for this opportunity to provide the views of the

Department Please contact me if you have any further questions

Edward B Cohen

Deputy Solicitor

Enclosures

CC The Honorable Francis Mitchell Chief PIN

Patty Goldman Sierra Club Legal Defense Fund

Paul Stern State of Maine Office of the Attorney General

Kate Geoffroy Pierce Atwood

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EPA Office of General Counsel Washington DC

EPA Office of Regional Counsel EPA Boston

EPA Indian Desk Washington DC

Department of Justice Indian Resources Section

Department of Justice Office of Tribal Justice

Office of the Regional Solicitor Boston

Bureau of Indian Affairs Office of Trust Responsibilities

Bureau of Indian Affairs Eastern Area Office

Fish and Wildlife Service Maine Field Office

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