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Tribe's lease agreement can remain secret

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NEWS MEDIA UPDATE   ·   MAINE   ·   Freedom of Information   ·   May 11, 2006

NEWS MEDIA UPDATE   ·   MAINE   ·   Freedom of Information   ·   May 11, 2006

Tribe’s lease agreement can remain secret

  • The state’s Indian tribes act as private businesses, not public entities, when entering into business deals with private developers and therefore do not have to share information with the public.

May 11, 2006  ·   An Indian tribe that leases property to a private developer has acted like a business, not a municipality, and is not subject to the state’s open records laws, Maine’s highest court ruled Monday.

Two Maine newspapers sought access last year to documents and meetings related to a proposed $500 million liquefied natural gas terminal to be built on land owned by the Passamaquoddy Tribe, but the Supreme Judicial Court upheld a lower court decision denying access.

“Essentially, the Maine supreme court held that tribes can enter into a lease of land with a private developer to develop liquefied natural gas in Maine and, in merely leasing the land, the court held they are acting more like a business” than a municipality, said Bernard Kubetz, who represented the Bangor Daily News and The Quoddy Tides in their quest for the information.

The newspapers initially sued under the Freedom of Access Act when the Tribe held closed-door meetings to negotiate with the Oklahoma developer on the project. The Superior Court in Portland ruled that while tribes can act as both municipalities and businesses, in this case the tribe was acting “in a business capacity” and was not subject to the act.

Calling the lower court’s decision “cogent,” Chief Justice Leigh I. Saufley wrote for the unanimous six-judge panel that the tribe’s “conduct in entering as landlord into a commercial lease for up to $16 million per year in rent is more like the profit-making activity of a business corporation than the governmental activity of a municipality.”

The high court dismissed the potential public interest in a tribal matter, despite the great interest evident in the public disapproval of LNG Development. Before the tribe finalized the agreement, several of Maine’s coastal municipalities had also broached the possibility of entering into an agreement with the developer, but voters failed all of the referendums on the issue, Kubetz said.

“We argued the tribe was acting very much like a municipality —- the same process was attempted in several municipalities,” he said. “We said it’s an issue of great public importance and they were doing exactly what other municipalities were doing, but the court didn’t buy it.”

Under the Maine Indian Claims Settlement Act of 1980, the state passed laws allowing its tribes to be recognized both as sovereign nations and as state actors. In certain circumstances, they could be recognized as private business entities, but in others they would be subject to state laws, including the open meetings and open records laws. But there have been few cases to define when the tribes are acting in what capacity, Kubetz said.

“Generally, a tribe is subject to the [Freedom of Access] Act when it acts like a municipality and governs like a municipality. It’s not subject to the act when it governs more like a private business,” he said.

Despite the ruling, many of the records related to the agreement have since been released to the public, said Craig Francis, who represented the tribe. He said although the tribe does not believe it is subject to the FOAA —- to which the court agreed in this case —- it did not initially release the records because the tribe was still in negotiations with the Oklahoma developer.

“It was not an issue of them not wanting to give up the records,” he said, adding that “part of it was a matter of timing.”

Francis also differentiated between the tribe’s definition of “the public” —- its members —- as opposed to a definition referring to the general population. “One of those questions is ‘does the public have the right to know this information’ and I don’t think so. The public as we define it is tribal membership. There is a big difference between who we believe should have access and who should not.”

(French Corp. v. Pleasant Point Passamaquoddy Reservation, Media counsel: Bernard Kubetz, Eaton Peabody, Portland, Maine)CZ

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