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Balancing the Fishes’ Scales: Tribal, State, and Federal Interests in Fishing Rights and Water Quality in Maine

Balancing the Fishes’ Scales: Tribal, State, and Federal Interests in Fishing Rights and Water Quality in Maine

Patrick Marass

The state of Maine has a complicated and often adversarial legal relationship with the federally recognized Native American (Indian) Tribes in the state.[1] Perhaps the most contentious legal relationship presently pertains to Maine’s authority to regulate water resources on Indian territories and lands (Indian lands).[2] At their core, legal conflicts often involve disputes over power, money, respect, or any combination of these elements.[3] What makes conflicts between states and Native American tribes so complex, and in this particular case volatile, is that the legal issues often involve clashes of all three of these elements.[4] The legal framework for the current water resource dispute traces back to a series of state and federal laws setting aside reservation and trust land for the Tribes in the 1980s and 1990s, collectively known as the Settlement Acts.[5] The Tribes’ lack of bargaining power during these settlements arguably resulted in a jurisdictionally oppressive framework for the protection of tribal natural resources.[6] The most recent legal conflict erupted in February 2015, and juxtaposes Maine’s right to regulate water quality standards (WQS) against the Tribes’ right to fish for sustenance on their lands.[7] The emotional responses ignited by this conflict illuminate why a comprehensive approach to settling the disputes between Maine its Tribes is needed.

On February 2, 2015, the Environmental Protection Agency (EPA) sent a letter to the Maine Department of Environmental Protection (DEP).[8] The letter informed the DEP that the EPA was disapproving all of Maine’s WQS related to human health criteria for waters in Indian lands.[9] The primary purpose of the disapprovals, from the EPA’s perspective, was to protect the Tribes’ legally protected sustenance fishing rights.[10]

This Note analyzes the policy considerations, practical implications, and lost opportunities behind the EPA’s decisions to disapprove WQS on Indian lands in Maine. Part I provides an analysis of the EPA’s rationale for the decisions, including its Trust responsibility and authority under the Clean Water Act.[11] Part II considers the history of the Tribes’ agreements with Maine and their rights under Maine and Federal law in the context of the EPA’s decision. Part III considers Maine’s primary legal arguments against EPA’s decision and highlights why the State should consider settlement. Finally, Part IV looks toward how Maine and the Tribes can build mutual trust, and attempt to resolve conflicts outside of the courts. Given the incessant conflicts over tribal water rights under the current framework, Part IV suggests an amendment to the Settlement Acts to bolster the position of the Maine Indian Tribal-State Commission, allowing the Commission to foster a “true dialogue” between state officials and Tribal leaders and reduce the tendency to resort to the courts.[12]

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.


 

[1] Cassandra Barnum, Note, A Single Penny, an Inch of Land, or an Ounce of Sovereignty: The Problem of Tribal Sovereignty and Water Quality Regulation under the Maine Indian Claims Settlement Act, 37 Ecology L. Q. 1159, 1161 (2010).

[2] See Bill Trotter, EPA Ruling on Water Quality Standards in Penobscot River Tribal Sections Could Cost Towns Millions, Bangor Daily News (Feb. 11, 2015), http://bangordailynews.com/2015/02/11/news/state/epa-ruling-stirs-debate-over-legal-financial-effect-of-indians-territorial-dispute-in-maine/ (discussing how representatives from Maine described EPA’s 2015 decisions for Indian lands “outrageous” and that they would cost businesses and municipalities in the state millions of dollars).

[3] N. Bruce Duthu, American Indians and the Law xi (Colin G. Calloway, ed., 2008).

[4] Colin Woodard, LePage Calls EPA’s Tribal waters ruling ‘outrageous,Portland Press Herald, Mar. 2, 2015, http://www.pressherald.com/2015/03/02/maine-governor-on-epas-tribal-waters-ruling-its-an-outrage/ (quoting Penobscot Indian Nation Chief Kirk Francis regarding disputes over the Penobscot River saying that the Tribe is not against “economic growth,” but Maine needs to “recognize the cultural needs of the tribes . . . so we can manage a lifestyle that maintains the cultural traditions of our people”).

[5] Barnum, supra note 1, at 1168–69.

[6] See id. at 1168 (explaining that the laws essentially subjected the Tribes “almost entirely to the State’s jurisdiction,” which is comparatively oppressive to the jurisdictional status of many Indian tribes in the Western United States).

[7] Letter from H. Curtis Spaulding, Reg’l Admin., Envtl. Prot. Agency, to Patricia Aho, Comm’r, Maine Dep’t of Envtl. Prot. 4 (Feb. 2, 2015), http://www.maine.gov/dep/water/wqs/EPA%20WQS%20Letter%20and%20Attachment%20Feb%202%202015.pdf [hereinafter February, 2015 Letter]. 

[8] Id.   

[9] The letter also disapproved other WQS throughout the State, none of which are at issue here. Maine Department of Environmental Protection, DEP’s Position on EPA’s Wrongful Disapprovals of Maine’s Water Quality Standards 1 (June 12, 2015), http://www.maine.gov/dep/water/wqs/DEP%20public%20position%20final.pdf.

[10] Id.

[11] In fact, EPA recently proposed promulgating new rules relating to human health criteria for the entire state of Washington, in part spurred by the desire to invoke its Trust responsibility and protect tribal sustenance-fishing rights. Revision of Certain Federal Water Quality Criteria Applicable to Washington, 80 Fed. Reg. 55063 (proposed Sept. 14, 2015) (accepted comments until Nov. 13, 2015), https://www.federalregister.gov/articles/2015/09/14/2015-22592/revision-of-certain-federal-water-quality-criteria-applicable-to-washington.

[12] See Nicole Friederichs, A Reason to Revisit Maine’s Indian Claims Settlement Acts: The United Nations Declaration On the Rights of Indigenous Peoples, 35 Am. Indian L. Rev. 497, 520 (2010–2011) (explaining that resolving the underlying issues in state-tribal relations requires a “true dialogue” between the state and tribe).

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