### UnitedStates

### Departmentofthe Interior

OFFICEOFTHESOLICITOR
Washington 

### DC20240

John

# P DeVillars Regional Administrator Environmental Protection Agency Region 1 

# JFK Federal Building 

### Boston MA 

### 022030001 SEP

# 2

1997 RECEIVED OFFICEOFTHEREGIONAL ADIAINISTRATOF


### oft21411141
9700

## 27 Z4

vwi161

r



## LUAf

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 withyou bythe Penobscot Indian Nat

### ion

# PIN Lincoln Pulp and Paper Company 

### Lincoln and the State of

### Maine Department of theAttorneyGeneral 

## State inthe 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 youragency 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 Interioras the administratorofthe Maine Indian Claims Settlement Act 

## MICSA Passamaquoddy Tribe

# v State of

### Maine 75 

## F3d 784 794 

### 1stCircuit 

## 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 

### 10

## 1 The Nature ofthe Federal Governments trust responsibility to the PIN

Asyou 

### 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

## F2d370 379380 1stCircuit 

# 1975 the United States has recognized and acted infurtherance 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 landclaims 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 byCongress in 1980 of the Maine Indian Claims Settlement Act 

## MICSA 25

# USC § 

### 1721 et 

# seq which ratified 

### Maines Act to Implement the Maine Indian ClaimsSettlement 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 MICSAlimit 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 federallyrecognized 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 thejurisdiction 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 formallyconfirmed 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 theAroostook Band of

### Micmacs Pub

# LNo 102171 105 

### Stat 1143 

# 1991 Congress has declared that thisrecognition 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 

## F3d685 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 inMaine 

### 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 lawdoes

### apply See

# HR Rep

## No 961353 at

### 1920 

# 1980 reprinted in 1980

# USCCAN 3786 

## pp37945 Senate Report

## No 96957 at 30 

# 1980

In the 

### Departments view section 

### 1725h hasno 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 permitdecision therefore is required in this

## case

2 While the State does have authority under section 401 of the CleanWater Act to certify that aproposed discharge meets its water quality standards this does not mean that EPAcannot impose
a more stringent standard in its 

### permit 40

# CFR § 

## 12455c provides that a state may not condition ordeny acertification on the grounds that State law allows a less stringent permit 

### condition

3 There is also no meritto 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 Aswith a

### treaty MICSA is similarlythe 

### 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 certSince there exists a trust relationship between the Maine Tribes and the United 

### States EPAmust act as atrustee 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 

### 9thCir

## 1995 cert denied 116

# SCt 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 ofwater to be diverted fromdam forbenefit 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 insituations 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 mustentail 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 forrights expresslyconfirmed 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 PINretained 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

# edaboriginal title to lands or natural resources given up bythe 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 CourtinAtlantic SalmonFederation

# v Maine Board ofEnvironmental Protection 662

## A2d 206 

# Me 1995 inwhich the United States position regarding the 

### PINs fishing right is set 

### out In 

### short the briefstates 

### that

The Penobscot 

### Nations right is a reserved 

### right meaning it was reserved fromthe greateraboriginal 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 inAtlantic Salmon Federation et 

# al v Maine Board of Environmental Protection Law Docket 

## No Ken

## 94779 January

### 27 1995 

# p15 b PINs statutory fishing right under the Maine Implementing Act

Inaddition to

### PINs retained aboriginal fishing rightswithin its Reservation the Maine ImplementingAct expresslyconfirmed to PIN a fishing 

### right providing that

the members of the Penobscot Nation may take 

### fish within the boundaries oftheirrespective 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
onadjacent waters the legislative historycompares this residual power to that which other states retain with respect to federal Indian treatyfishing 

### 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 preferentialtreatment is to be provided to Maine Indians See letter from Attorney General Richard Cohen toSenator 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 ChairWilliam Vail 

## Feb 16 

## 1988 inwhich 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 SeeWilson 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 onlyby 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 ImplementingAct 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 rightsunder 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 towhich it can be reasonably 

### applied and noproprietor above orbelow
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 ofClaimsby Indians in the State ofMaine and tocreate the Passamaquoddy IndianTerritoryand Penobscot Indian

### Territory included within 

### Appendix Senate Select Committee on Indian 

### Affairs hearing July

# 12 1980The 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 forpassage of boats and 

### logs All these rightswhich the riparian proprietorhas in the running streams are as certain as absolute and as inviolable as anyother species of

### property Opinion of the Justices of the SupremeJudicial 

### 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 riparianproprietor 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 findsparticularly 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 forfiling a request for

### hearing Moreover the PIN meetsthe criteria under thedefinitions 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 orcommunityrecognized bythe Secretary ofthe Interiorand 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 SierraClub Legal Defense Fund Paul 

### Stern State of 

### Maine Office of the Attorney General Kate 

### Geoffroy Pierce Atwood

### EPA Office of General 

### Counsel Washington 

# DC EPA Office ofRegional 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 andWildlife 

### Service Maine Field Office

8