HELP KILL THE EWC! Action needed now on our bill.

Help protect Maine people and the environment from unnecessary new transportation infrastructure

(like the East-West Corridor)

 

Call your Senators and Representatives and ask them to vote, “ought to pass” on LD 1168 today!

 

Click here for a CONTACT LIST for all Senators and Representatives: https://docs.google.com/spreadsheets/d/1WBJaw1Hvmr0n0DSVVS_CBXA1ug1_lLw0-L26MbrPVdE/pubhtml?usp=gmail

 

Please take notice: LD 1168 has changed from a focus on eminent domain to a focus on improving the P3 law. There are several reasons for this. Primarily, we want to achieve some protection THIS SESSION. Please contact us to discuss.

 

New Talking Points for LD 1168

 

LD 1168 as amended makes some significant improvements to the public-private partnership law for transportation projects (P3) to improve protection of the public interest.  This amended bill was a joint effort between Stop the East-West Corridor, the Department of Transportation, and Sen. Paul Davis.

 

LD 1168 clarifies that P3s must be in accordance with the Sensible Transportation Policy Act (section 73).  The P3 should comply with the STPA because it is the guiding statute dictating appropriate transportation development in Maine, with guidelines for protecting the public interest in significant transportation development. That means more safeguards for water resources, farmland, wildlife, natural resources, rural character, tourism, state and municipal resources, and taxpayer money from unnecessary transportation infrastructure like the East-West Corridor.

 

LD 1168 calls for an annual reporting requirement, which enables some public participation and accountability to lawmakers on authorized P3 projects.  Right now, P3 projects only require legislative authorization at a draft stage, and then never need to be seen again.  Since P3 projects may use up to 50% taxpayer money and other state resources, ongoing legislative and public oversight is critical.

 

LD 1168 clarifies that the department may not confer eminent domain power to a private entity.  According to the Chief Deputy Attorney General, Linda Pistner, this potential abuse of eminent domain power is currently unclear in Maine State law, so we are fixing that.

 

 

To view Maine’s existing P3 law, visit: http://legislature.maine.gov/statutes/23/title23sec4251.html

 

To view Maine’s Sensible Transportation Policy Act (section 73), visit:

http://legislature.maine.gov/legis/statutes/23/title23sec73.html

 

To view an amended version of LD 1168, see the attachment.

 

Click here for a CONTACT LIST for all Senators and Representatives: https://docs.google.com/spreadsheets/d/1WBJaw1Hvmr0n0DSVVS_CBXA1ug1_lLw0-L26MbrPVdE/pubhtml?usp=gmail

 

Thank you for your concern and your support!

 

 

Questions? Contact:

 

Chris Buchanan                                                             Jane Crosen

Statewide Coordinator, STEWC                                 Eastern Outreach, STEWC

Maine Coordinator, Defending Water for Life         jcrosenmaps(at)gmail(dot)com

chris(at)defendingwater(dot)net                                           (207) 326-4850

(207) 495-3648

 

 

For more information about Stop the East-West Corridor and the East-West Corridor proposal in general, please visit: www.stopthecorridor.org

LIKE us on Facebook: Stop the East-West Corridor

The Historical Continuum: WE ARE ALL PARTICIPANTS IN AN AGE-OLD CLASH OF CULTURES

By Maria Girouard – Penobscot historian.

canoe on penobscot, JfR

Panawapskewi (“Penobscot people”) are the indigenous people of this territory, and have nurtured a relationship with and maintained a presence on the Penobscot River for thousands of years. We are an ancient riverine people who have survived enormous losses as a result of colonization – displacement of our ancestors, destruction of our fisheries, degradation of the Water, deforestation of traditional hunting grounds, and disruption in our traditional form of governance.

A Colonial Agreement: In exchange for Penobscot alliance in the revolutionary war, colonial government agreed to protect Penobscot territory from encroachment and to preserve Penobscot aboriginal territory for their perpetual use so that traditional sustenance lifeways could be maintained. (Perpetual: meaning forever, never to be changed). This agreement is recorded in the 1775 Congressional Resolves. Following the war, there was a large war debt.   Abundant Penobscot resources proved too tantalizing to resist.

Treaties were negotiated: Treaties are nation-to-nation agreements negotiated between sovereigns. The Treaty of 1796 and the Treaties of 1818 and 1820, ceded portions of Penobscot territory but the river and the fisheries were never relinquished. Historical records reveal multiple pleas on deaf ears about destruction of the fisheries and decimation of hunting grounds leading to Penobscot starvation.

Treaties were broken: An 1801 petition to colonial government declared, The Penobscots “feel themselves and their Tribe greatly wronged and injured by a Mr. Winslow and his two sons of Portland erecting a sawmill at the Falls in Penobscot … when the government secured to their Tribe and their descendants the aforesaid island with other islands in the Penobscot River with all their natural rights and privileges, the Fishery was esteemed the most important advantage attached to their island and which no individual could deprive them of – they would therefore humbly request your excellent and honor in your wisdom to prevent an Evil so great as would be the total ruin of the tribe.”

In the 1940s, Penobscot Elder Florence Nicola Shay spoke out against the state and broken treaty promises – “The treaties are merely useless pieces of paper today as all promises have been broken… we are a segregated, alienated people and many of us are beginning to feel the weight of the heel that is crushing us to nothingness. We are still in slavery, we are dictated to, and we are made to feel that we do not own our own souls.”

A major turning point in tribal-state history: In the 1970s Penobscot & Passamaquoddy tribes sued the State of Maine for theft of aboriginal territory which had left them displaced and impoverished. The 1794 Trade and Non-Intercourse Act, a federal law aimed at curbing massive land grabs, had been ignored. The law required any and all land transactions with an Indian person or tribe be ratified by Congress. Since Maine had become a state in 1820, no land transactions were ratified; therefore, all were null and void. Following a tumultuous decade riddled with overt racial hostility and fear-mongering played out in the press, the State of Maine, the Penobscot Nation and the Passamaquoddy tribes negotiated a settlement agreement resulting in the federal 1980 Maine Indian Claims Settlement Act. The Settlement Act was intended to stop the further taking of Indian Territory and to strengthen tribal sovereignty and tribal-state relations, but like all agreements that preceded it, it, too, was broken and little was settled.

Territorial takings are not a thing of the past: In August 2012, Penobscot Chief and Council received a letter from state government asserting an Attorney General’s opinion – that the Penobscot Indian Reservation did not include any portion of their ancestral River. An opinion with which Penobscot Nation could never agree. Interestingly, this new opinion was contrary to a previous Attorney General’s opinion (AG James Tierney, 1988) which stated that the Penobscot River was reservation territory (?!)

Penobscot Nation v. Mills, is a current U.S. district court case to protect Penobscot fishing rights. It has a large cast of characters! The Penobscot Nation, Maine Attorney General Janet Mills, the United States Department of Justice, and 17 intervening towns and industries up and down the River. Until recently, the case had 18 interveners, but on April 1, 2015, in an amazing act of humanity, the Town of Orono filed a motion to withdraw from the case. After deliberation, their town council admitted to knowing very little about how they got involved; they concluded that their participation was unnecessary, and decided that they did not wish to be in contentious litigation against the Penobscots. The remaining interveners are: the City of Brewer, Town of Bucksport, Covanta Maine, LLC, Town of East Millinocket, Great Northern Paper Company, LLC, Guilford-Sangerville Sanitary District, Town of Howland, Kruger Energy (USA) Inc., Town of Lincoln, Lincoln Pulp and Tissue LLC, Lincoln Sanitary District, Town of Mattawamkeag, Town of Millinocket, Red Shield Acquisition LLC, True Textiles, Inc., Veazie Sewer District, and Verso Paper Corp. Led by Pierce Atwood attorney, Matt Manahan, these interveners are asking a judge to determine that the Penobscot reservation does not include any portion of the Water. The U.S. Department of Justice intervened on behalf of the Penobscots, viewing this as an attempted territorial taking by the State of Maine which they have a duty to protect against.

Confusing an already complex issue: Happening alongside Penobscot Nation v Mills, is a battle between the State and the federal Environmental Protection Agency over water quality in Indian Territory. Last summer, the State of Maine sued the EPA demanding jurisdiction over water quality in Indian Territory. In February 2015, the EPA agreed that according to the Maine Indian Claims Settlement Act, the State of Maine did in fact have jurisdiction over water quality, but since Penobscots retained an inherent right to sustenance fish, the water quality in their reservation had to be sufficient to safely consume fish. The State has again sued the EPA and stated that they have no intention of complying with the order to clean up the Penobscot.

Gaining Support: Penobscot Nation has gained thousands of allies but could use more! This case has gained the interest and support of numerous social justice and environmental organizations who agree that Maine must cease and desist its aggression. Maine priorities should be elsewhere – not in continued territorial takings and suing for the right to pollute. Together, we are writing our Grandchildren’s history (and protecting their Drink). Let’s make it a history that will make both them and the ancestors proud!

Let your voices be heard: Call on our state to stop its hostilities and respect tribal fishing rights.

  • Attorney General Janet T. Mills, 6 State House Station, Augusta, Maine 04333
  • Governor Paul LePage, Office of the Governor, #1 State House Station, Augusta, ME 04333
  • Find (and write!) your legislators at http://legislature.maine.gov/

 

 

 

 

“The Penobscots believe that the God of Nature gave them their fisheries, and no man alive has the right to take that away from them…” (historical petition to Massachusetts Colonial Government)

LD 1168 reconsidered, won unanimous “ought to pass” vote!

On Thursday, June 4, the Judicicary Committee reconsidered our bill, LD 1168, with amendments agreed to by STEWC, the Maine department of transportation, and Sen. Paul Davis, and voted unanimously “ought to pass” on the bill.
In a nuthsell, we chose to use our initial 6-3 win on the original eminent domain bill as a tool to negotiate for protections that actually have a very good chance of becoming law.  The Governor had vowed to veto the original bill, and it had a poor chance of getting past the House or Senate in the first place.  Instead, we focused on changes to the P3 law as follows:
  • We have clarified language in the P3 law that states that the P3 must be in accordance with the Sensible Transportation Policy Act (section 73).  We believe that this helps protect the public interest.  Also, some of the guidelines outlined in the STPA contradict EWC development.  We feel that this is a big accomplishment.
  • In addition, we tried to ask for legislative review and authorization of a P3 proposal at both the draft and final stages, because right now it is only authorized by the legislature at draft stage and never needs to be seen again.  We compromised on an annual reporting requirement to the transportation committee which enables some legislative oversight, accountability, and public input ongoing.  We believe that if a project went forward and turned out to be a bad project, this bit of transparency would make it much easier to introduce a bill to rescind the authorization of the project.
  • Finally, the bill clarifies that the department’s powers of eminent domain may not be conferred to a private entity, although the department would NOT accept the additional language, “or on behalf of a private entity.”  This last piece is not really a win for us, because the department taking land by eminent domain on behalf of a private entity is what we already assumed to be the danger.  We did not accomplish that protection, and we’ll need to keep fighting for that protection under a different administration in the future.
Now we are hoping LD 1168 flies through the Senate and the House and does NOT get vetoed by the Governor.  However if it does, we are likely to be able to override the veto and get these important changes to the P3 passed into law.  If we had stuck with the previous bill, that would not have been possible.
If Peter Vigue / Cianbro persists in refusing to publically withdraw the project, we can go after the eminent domain issue and the other problems with the P3 during a future administration where we have better chances at success.  In the meantime, we will focus on continuing the pressure in other ways.
NOW, please contact your Senators and Representatives and ask them to vote ought to pass on LD 1168! Here is a contact list for all Senators and Representatives:

https://docs.google.com/spreadsheets/d/1WBJaw1Hvmr0n0DSVVS_CBXA1ug1_lLw0-L26MbrPVdE/pubhtml?usp=gmail

STEWC’s Steering Committee agreed to have a press conference after the House vote, so we’ll be monitoring that closely.
The bill now only address the P3 law and the changes are underlined below:

Maine Revised Statutes

Title 23: TRANSPORTATION

Chapter 410: DEPARTMENT OF TRANSPORTATION

4251. PUBLIC-PRIVATE PARTNERSHIPS; TRANSPORTATION PROJECTS

 

1.  As used in this subchapter, unless the context otherwise indicates, the following terms have the following meanings.

“Agreement” means a contract between the department and a private entity to create a public-private partnership that allows for private sector participation in the financing, development, operation, management, ownership, leasing or maintenance of a transportation facility and that sets forth rights and obligations of the department and the private entity in that partnership.

“Project” means the initial capital development of a transportation facility.

“Proposal” means a conditional offer of a private entity that, after review, negotiation, documentation and legislative approval, may lead to an agreement as provided in this subchapter.

“Transportation facility” means a facility that is or if developed would be within the jurisdiction of the department including a highway, bridge, railroad line, pier, airport, trail, ferry vessel, building or other improvement.

2.  This subchapter applies to a proposal or agreement for a private entity to form a public-private partnership when the department estimates that the initial capital cost of a project is $25,000,000 or more or when the proposal includes placing tolls on existing transportation facilities that were not previously subject to tolls. Nothing in this section is intended to prohibit or otherwise affect programs that do not meet the criteria of this subsection.

3.  Notwithstanding any other provision of law, the department is authorized to receive or solicit proposals to form a public-private partnership with respect to a transportation facility. Proposals must be reviewed in accordance with this subchapter. Upon approval of the Legislature as provided in this subchapter, the department may enter into an agreement. All proposals must comply with section 73.

4Standards for review. Before submitting a proposal to the Legislature for approval the department must find that the proposal meets the following standards.

The purpose of and need for the transportation facility must be consistent with the long-term planning of the department.

The private entity must have the financial, technical and operational capacity to discharge the responsibilities set forth in the proposal cost-effectively and responsibly as determined by the department. This capacity must include, but is not limited to, meeting department prequalification standards for professional engineering services and general contracting.

The proposed transportation facility must be owned, controlled, operated and maintained in a manner satisfactory to the department.

The proposal must be cost-effective in the long term.

The proposal must limit the use of state capital funding to less than 50% of the initial capital cost of the transportation facility and to the extent practicable minimize the use of transportation funding sources such as the Highway Fund, general obligation bonds supported by the Highway Fund, the TransCap Trust Fund under Title 30-A, section 6006-G and program funding provided by the Federal Highway Administration.

If the proposed transportation facility is to be supported by tolls or other user fees, the private entity must provide a traffic and revenue study prepared by an expert acceptable to the department and national bond rating agencies. The private entity must also provide a finance plan consistent with the traffic and revenue study that identifies the proposal costs, revenues by source, financing, major assumptions, internal rate of return on private investments and whether any government funds are assumed to deliver a cost-feasible project and that provides a total cash flow analysis beginning with implementation of the project and extending for the term of the agreement.

The proposal must demonstrate safeguards adequate to ensure that no significant additional costs or service disruptions would be borne by the traveling public and residents of the State if the private entity defaults or cancels the agreement.

The proposal must include a provision that any contractor performing construction work required by the agreement must furnish performance and payment bonds or irrevocable letters of credit in an amount equal to the cost of the construction work. Any action on such a payment bond or irrevocable letter of credit is subject to the requirements of Title 14, section 871, subsection 4.

The proposal and the transportation facility must comply with all requirements of applicable federal, state and local laws and department rules, policies and procedures.

The proposal must identify the law enforcement jurisdictions and responsibilities relative to the transportation facility.

The proposal must provide that all reasonable costs of substantially affected local governments and utilities related to the transportation facility are borne by the private entity or are otherwise provided for to the satisfaction of the department.

5Proposal and selection processes; solicited and unsolicited. The department may request proposals from private entities for a public-private partnership for a transportation facility or may accept unsolicited proposals pursuant to this subsection.

If the department receives an unsolicited proposal and determines that it meets the standards in this subchapter, the department shall publish a notice of the receipt of the proposal on the department’s publicly accessible website or through advertisements in newspapers. If a notice is published exclusively in newspapers, the notice must appear in 2 or more public newspapers circulated wholly or in part in the State and in one public newspaper circulated wholly or in part in the county where the proposed transportation facility is to be located if any such newspaper is circulated in that county. The notice must provide that the department will accept, for 120 days after the initial date of publication, proposals meeting the standards in subsection 4 from other private entities for transportation facilities that satisfy the same basic purpose and need. A copy of the notice must be mailed to each local government in the area affected by the proposal.

After the proposal or proposals have been received, and any public notification period has expired, the department shall rank the proposals in order of preference. In ranking the proposals, the department may consider factors that include, but are not limited to, professional qualifications, general business terms, innovative engineering or cost-reduction terms, finance plans and the need for state funds to deliver the project and discharge the agreement. The department shall undertake negotiations with the private entity submitting the 1st-ranked proposal. If the department is not satisfied with the results of the negotiations, the department may, at its sole discretion, terminate negotiations with that entity and the department may negotiate with the other entities in order of the ranking of their proposals. If only one proposal is received, the department shall negotiate in good faith and, if the department is not satisfied with the results of the negotiations, the department may, at its sole discretion, terminate negotiations.

The department may require that the private entity assume responsibility for all costs incurred by the State or local governments before execution of the agreement, including costs of retaining independent experts to review, analyze and advise the department with respect to the proposal.

6Tolls; fares. An agreement may authorize the private entity to impose tolls or fares for the use of the transportation facility. The following provisions apply to such an agreement.

The agreement must be consistent with the traffic and revenue study required under subsection 4, paragraph F.

The agreement must ensure that the transportation facility and any related toll facility are properly operated and maintained in accordance with department standards or standards generally accepted in the transportation industry.

The agreement must include provisions governing changes in tolls or fares.

The department may require provisions in the agreement that ensure that a negotiated portion of revenues from a toll-generating or a fare-generating transportation facility is returned to the department over the life of the agreement.

7Exercise of powers. If the department exercises its power of eminent domain for the development and construction of a transportation facility pursuant to this subchapter and section 73, the department must retain ownership rights and interests taken. The department’s powers of eminent domain may not be conferred to a private entity. The State may provide maintenance, law enforcement and other services with respect to a transportation facility owned by a private entity when the agreement provides for reasonable reimbursement for such services.

8Term of agreement. An agreement may not exceed a term of 50 years unless the Legislature, upon the recommendation of the Commissioner of Transportation, approves a longer term.

9Legislative approval. If the department determines that a public-private partnership proposal and draft agreement meets the standards of this subchapter, the department shall submit to the Legislature a bill that authorizes the agreement. The bill must include a statement that the proposal meets the standards in subsection 4, a summary of the substance of the draft agreement and a description of the nature and amount of state investment, if any, including effects on programmed capital work. Should legislative approval be granted, the department shall report to the joint standing committee of the Legislature having jurisdiction over transportation matters by February 1st of each year as to the status of the project and any substantive changes to the proposal.

10Information in public record. Except as provided in subsection 10-A, information obtained by the department under this subchapter is a public record pursuant to Title 1, chapter 13, subchapter 1.

10-AConfidential information.  Information submitted to the department relating to a public-private partnership proposal under this subchapter is confidential and not a public record under Title 1, chapter 13, subchapter 1 if the private entity submitting the information designates the information as being only for the confidential use of the department and if:

The information is a trade secret as defined in Title 10, section 1542, subsection 4; or

Disclosure of the information would result in a business or competitive disadvantage, loss of business, invasion of privacy or other significant detriment to the private entity to whom the record belongs or pertains.

If legal action is filed to gain access to the information designated as confidential under this subsection, the private entity must defend its designation and the department shall release the information in accordance with the order of the reviewing court. Failure to defend the designation under this subsection constitutes a waiver of confidentiality by the private entity and the department shall release the information.

11Report of proposals. By February 1st, annually, the department shall provide to the joint standing committee of the Legislature having jurisdiction over transportation matters a report summarizing all proposals that the department has determined meet the standards of this subchapter or that have been finally rejected during the previous calendar year.

12.  The department may adopt rules to implement this subchapter. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.

Legislation would put hidden sections of Maine’s constitution back into print

Publication of the redacted passages, many involving the state’s treaty obligations to its Indian tribes, has been banned for 139 years.

Link to Original Article

INDIAN ISLAND — One hundred and thirty-nine years ago, 2,100 words of Maine’s Constitution vanished from circulation, although they remained in effect.

The sections, which included the treaty obligations with Indian tribes that Maine agreed to assume as a condition of its separation from Massachusetts in 1820, are still forbidden to be published with the rest of the state’s fundamental laws, the result of a constitutional amendment ratified by Maine’s people in 1875 and which went into effect the following year.

Judges and legal experts remained cognizant of the redacted passages, which are found in pre-1876 copies of the constitution. But for a century, few ordinary citizens or tribal members knew what the passages said.

Now the Maine Legislature is expected to vote soon on a bill that would undo the prohibition on publishing the passages. The bill, sponsored by the Maliseet tribe’s representative to the Legislature, Henry Bear, would add a constitutional amendment referendum question to the ballot this November, asking Maine voters if they wish to repeal the printing ban on the redacted constitutional language in Article X, Section 5.

“Right now you can’t access that section, even though it remains in force – you won’t see it,” said Bear, who became the only active tribal representative Tuesday when his Passamaquoddy and Penobscot counterparts renounced their seats in protest over Maine’s refusal to compromise on a range of jurisdictional disputes. “I think it’s essential that all parts of our constitution are legally publishable,” he said.

The section, the state constitution has read since 1876, “shall hereafter be omitted in any printed copies” but “shall remain in full force, as part of the Constitution … with the same effects as if contained in said printed copies.”

On Wednesday, a legislative panel recommended in an 11-1 vote that the bill be passed. At a May 19 public hearing, nobody testified in opposition. The bill, L.D. 893, is likely to go to a full floor vote this week.

Legislators on the Judiciary Committee were surprised to learn that part of the state constitution was unprintable, said Sen. Chris Johnson, D-Somerville. “There was a very strong opinion around the table that what is in our constitution should be printed in our constitution,” he said.

Bear said he learned of the situation from reading “Unsettled,” a 2014 Press Herald/Sunday Telegram series.

The measure is of symbolic importance to Maine’s four federally recognized Indian tribes, some of whom were adversely affected for a century by the suppression of the contents of the article enumerating Maine’s obligations to them.

It is not known why publication of Section 5 was suppressed. Several other sections of Article X also were stricken, but they were no longer relevant, having prescribed how Maine should convene its first legislature and other one-time procedures. By contrast, the treaty obligations in Section 5 were still in force in 1876, although the state was violating many of them, sometimes flagrantly.

Forgotten text, forgotten duties 

The redacted section is the text of the 1816 Act of Separation, the Massachusetts law that allowed the District of Maine to become an independent state. The text includes a section obligating Maine to “assume and perform all the duties of (Massachusetts) towards the Indians within said District of Maine, whether the same arise from treaties or otherwise.” It directs Maine to set aside land valued at $30,000 for tribal use, at a time when undeveloped land in Maine sold for between 3 and 4 cents an acre.

In 1967, Maine’s first Indian affairs commissioner, anthropologist Edward Hinckley, discovered Maine had received $30,000 from Massachusetts in compensation, but the state never actually set aside new land for the tribes. In a letter to the NAACP, Hinckley argued for a public education campaign to promote “the ideas that Indians are people; that Massachusetts considered them so; that Massachusetts’ obligations to Indians were important enough to be a condition of Maine’s becoming a state and to therefore be included in the constitution.”

Hinckley, who went on to a career in child mental health and died in 2012, also called for a constitutional amendment similar to that envisioned by L.D. 893 “for neatness’s sake and educational value, if nothing else.” The suggestion went nowhere.

By implication, the redacted constitutional passages also required that Maine honor the terms of a 1794 treaty between Massachusetts and the Passamaquoddy tribe, including the management of a trust fund that the Bay State turned over to Maine to manage for the tribe’s benefit. In 1968, the Passamaquoddy’s attorney, Don Gellers, sued Maine for looting this trust fund, which had been worth $37,471 in 1822, or about $150 million with interest by the mid-1960s.

The day after filing the suit, Gellers was arrested on marijuana possession charges as part of an elaborate conspiracy orchestrated by the state Attorney General’s Office; he eventually fled the country, and the tribe’s suit collapsed.

If the constitutional commissioners who proposed the 1875 suppression of Section 5 intended to ensure the state’s obligations were forgotten, they were successful. Rather than protecting the Indians’ trust lands, Maine authorized some tracts to be flooded by dams, others to be annexed for the laying out of highways, and thousands more acres transferred to white owners. In no case was compensation given to the Indians, in violation of treaty obligations. In 1893, Maine courts even ruled that the Passamaquoddy tribe didn’t exist because it lacked sovereign powers.

“Maine’s attitude towards not recognizing treaties and tribal rights is legendary and it just doesn’t shock me that they’ve been buried somewhere,” said the chief of the Penobscot Nation, Kirk Francis. “Those were huge conditions to becoming a state. And so they should be prominently displayed. I think Rep. Bear is right in wanting to get attention to that.”

Today: symbolic significance

In testimony before legislators, Penobscot historian Maria Girouard and the executive director of the Maine Indian Tribal-State Commission, John Dieffenbacher-Krall, both asserted that the treaties referenced in the text were still in force. They said that the 1980 settlement acts – the result of a compromise agreement by which the tribes agreed to drop a land claims suit for more than half the state in exchange for a cash settlement – did not contain language eliminating the treaties.

Attorney General Janet Mills’ office disagreed, citing Section 1731 of the federal settlement act, which states that Maine will enjoy “a general discharge and release of all obligations … arising from any treaty or agreement with, or on behalf of any Indian nation, or tribe or band of Indians or the United States as trustee” to the tribes.

Either way, allowing publication of Article X, Section 5 will have no legal consequence, as the section has always remained in force, even if its contents were hidden from view.

Zach Heiden, legal director of the American Civil Liberties Union of Maine, said he supports the printing of the section. “Maine cannot hope to live up to its historical responsibilities if it does not know its history,” he said.

Colin Woodard can be contacted at 791-6317 or at:

cwoodard@pressherald.com

Twitter: WoodardColin

Action time! Next steps on LD 1168!

LD 1168 was voted “Ought to Pass” by the 127th Legislature’s Judiciary Committee by 6 – 3

LD 1168 prevents eminent domain from being used by a private entity, or in certain Public-Private Partnerships (P3) on behalf of a private entity, by amending the Public-Private-Partnership for Transportation Projects Law[1], and the law that restricts eminent domain use[2].

Video of the work session and vote for LD 1168 is located at:

http://youtu.be/-JkymA9rCmE

(thank you Eric Tuttle for videotaping and uploading!)

This was a bipartisan vote with Republicans, Democrats, and one Independent voting in favor.

 

What happens now?

Any day now, the bill will go before the Senate for possible discussion and a vote. We are encouraged that all the Senators present on the Judiciary Committee voted for the bill, which puts us on good footing going into the Senate vote. Still, please contact your Senator and encourage them to vote “ought to pass” on LD 1168. The vote could happen any day, so call your Senator right away!

If the bill passes the Senate, it will go before the House. We will need a lot of support from all of you to educate your Representatives about the importance of this bill in protecting Maine people from eminent domain takings by the State on behalf of private entities for a transportation facility. Since the bill may be voted on in the Senate anytime now, please start calling your Reps immediately! We especially need support from those of you in Southern Maine.

 

Here is contact list for all Senators and Representatives:

https://docs.google.com/spreadsheets/d/1WBJaw1Hvmr0n0DSVVS_CBXA1ug1_lLw0-L26MbrPVdE/pubhtml?usp=gmail

LD 1168’s bill summary states, “This bill prohibits the use of the power of eminent domain for the development, operation, management, ownership, leasing or maintenance of a transportation facility as a public-private partnership project. It also prohibits the use of the power of eminent domain by a private business entity when the entity is involved in a public-private partnership.”

To view the entire bill, visit: http://www.mainelegislature.org/legis/bills/display_ps.asp?snum=127&paper=SP0415&PID=0

We highly recommend watching Eric Tuttle’s video of the LD 1168 work session because the discussion that unfolded amongst the Judiciary Committee may help you talk to your Senator or Representative. Again, that link is: http://youtu.be/-JkymA9rCmE

We encourage folks to thank Senator Paul Davis, Rep. Ralph Chapman, and these members of the Judiciary Committee for their support: Senator Dave Burns, Senator Chris Johnson, Rep. Barry Hobbins, Rep. Jeff Evangelos, Rep. Phyllis Ginzler, and Rep. Charlotte Warren.

Again, here is contact list for all Senators and Representatives:

https://docs.google.com/spreadsheets/d/1WBJaw1Hvmr0n0DSVVS_CBXA1ug1_lLw0-L26MbrPVdE/pubhtml?usp=gmail

(thank you again Eric Tuttle)

 

Here are some updated talking points

  • LD 1168 safeguards landowners’ rights. Eminent domain is an important tool for State and Local Government to have in order to promote the health, safety, and welfare of its residents; however, eminent domain is a serious power that overrides individual property rights in favor of community rights. Therefore, State and Local Government Entities should use eminent domain only as a last resort, for vetted transportation projects that can be demonstrated to be in the public’s best interest, not for corporate profit.
  • LD 1168 makes it clear that the public interest is the priority interest of concern to State and Local Government when exercising eminent domain power for transportation projects, not expanding corporate or state coffers.       Although private entities may be subcontracted by the State or Local Government Entity to fulfill a contract, no public entity should use its eminent domain power to act on behalf of a private entity’s transportation development interest, or to further the economic interests of another country that could be the primary beneficiary of the transportation infrastructure.
    • The proposed East-West Corridor, for example, would allow local territory to be used as a pass-through connecting New Brunswick and Quebec, with primary economic benefits accruing to Canada and profits accruing to foreign investors.
    • In general, since foreign investment and/or ownership is sometimes part of a private project, state and local eminent domain power should not be used to further these financial interests.
  • At this time, the P3 law enables new transportation infrastructure development by private entities using taxpayer money and access to eminent domain.   LD 1168 amends the P3 to protect farmland, water, and wildlife habitat from eminent domain takings and resulting impacts that are not based in public interest. Everyone needs good food and water to live a healthy life. The growth rate of Maine’s young farmers is much higher than anywhere else in the country, 40% versus 1.5%.[3] Maine farmers shouldn’t feel threatened by private entities to give up their livelihoods and future food security. Multi-generational farms and the next generation of farmers need as much support as possible. Transportation infrastructure increases risks to water quality, and is likely to result in fragmentation of farmland and wildlife habitat.
  • Additional protection from eminent domain for transportation projects will help maintain regional stability. When a private entity can access the power of eminent domain for a private transportation project, or unsolicited P3 for a transportation project, as we have learned through experience with the East-West Corridor proposal, many members of the public experience needless trauma, declined economic activity and real estate sales (also known as condemnation blight), and even flight from the region.
  • This bill closes previously unaddressed loopholes and shortcomings in our law that became apparent when the East-West Corridor proposal came to the table. These are lessons that stretch well beyond the East-West Corridor proposal.

To view Maine’s existing P3 law, visit: http://legislature.maine.gov/statutes/23/title23sec4251.html

To view Maine’s existing eminent domain restrictions law, visit: http://legislature.maine.gov/statutes/1/title1ch21.pdf

 

If you have questions, concerns, or just want to chat about all this, please feel free to contact Chris Buchanan or Jane Crosen:

 

Chris Buchanan                                                                         Jane Crosen

Statewide Coordinator, STEWC                                            Eastern Outreach, STEWC

Maine Coordinator, Defending Water for Life                   jcrosenmaps(at)gmail(dot)com

chris(at)defendingwater(dot)net                                          (207) 326-4850

(207) 495-3648

[1] Maine Revised Statutes Title 23, Part 5, Chapter 410, subchapter 5, subsection 4251. Public-private partnerships; transportation projects

[2] Maine Revised Statutes Title 1, Chapter 21, subsection 816. Limitations on Eminent Domain Authority

[3] In Maine, More Hipsters Choosing Life on the Farm, Jennifer Mitchell, MPBN 12-11-14

Tribes pull Reps. from Maine Legislature and go their own way

Photo by A.J. Higgins MPBN

Photo by A.J. Higgins MPBN

On Tuesday, May 26, Penobscot and Passamaquoddy leaders pulled their representatives from the Maine Legislature as part of a decision to work together, and follow their own leadership within their territories from here on out. It was an historic moment of bravery and leadership by the Tribes.

Here are two articles:
MPBN, Tribes Pull Reps from Maine Legislature as Sovereignty Issues Come to Boil

and

The Guardian, Two Native American tribes withdraw from ‘paternalistic’ Maine legislature

There was a press conference Wednesday afternoon as well and we will continue to post info here.

Flotilla on Penobscot River to Support Tribal Territory and Rights

flotilla 5-23-15

On May 23, 2015, people converged on the Penobscot River in Bangor to show their support of the Penobscot Nation’s rights over its ancestral territory- the waters of the Penobscot River.  The State of Maine issued a letter to the tribe in 2012, redefining the Penobscot’s territory to NOT include the River itself, a direct departure from historical treaties and previous interpretation of treaties and the Land Claims Settlement Act of 1980 by the State of Maine.

Around 150 people were present in boats or on shore to demonstrate their support.  Following is a video, news coverage, and photos of the event:

WABI-TV 5

BDN

3 minute video by Sass Linneken

photos by the Maine Paparazzi (including photo above)

Congress Members Support Penobscot v. Maine in Unprecedented Court Filing

Rep. Tom Cole: “Some people act as though a treaty signed a hundred or so years ago doesn’t exist – yes, it does as long as the parties are still there and there wasn’t a time limit placed on it.”
Gale Courey Toensing |5/5/15 | Indian Country Today
A group of Congress members has filed a brief in federal court backing the Penobscot Indian Nation’s lawsuit against the State of Maine over hunting and fishing rights in the Penobscot River.

It is almost certainly the first time members of Congress have entered a lawsuit in support of an Indian nation’s struggle for its sovereign rights against a state and, therefore, sets a precedent.

The amici curiae, or friends of the court, brief was filed April 29 in federal district court in Maine by five members of the Congressional Native American CaucusBetty McCollum(D-MN), co-chair of the Congressional Native American Caucus with Tom Cole(R-OK), a citizen of the Chickasaw Nation; Raúl M. Grijalva, (D-AZ), vice chair of the Congressional Native American Caucus; Ron Kind(D-WI), vice chair of the Congressional Native American Caucus; and Ben Ray Luján(D-NM), vice chair of the Congressional Native American Caucus.

“As members of the Caucus, amici have focused their legislative efforts on supporting the sovereign rights of, and federal obligations to, tribal nations and villages. A particular focus has been the growth of Native American communities through policies that support tribal political self-determination and economic self-sufficiency,” the group writes in its brief. “Amici therefore seek to strengthen the relationships between the United States and Indian tribes through legislation that secures the vital sovereign interests of tribal governments, including the implementation of federal statutes such as the Maine Indian Claims Settlement Act(MICSA), which was enacted to protect the rights of the Penobscot Nation and its members to sustenance fishing, hunting, and trapping within its reservation without interference from the State of Maine.”

Cole said the Native American caucus tries to stay out of inter-tribal disputes between tribes. “I don’t think that’s an appropriate place for us to be, but in this case my counterpart Betty McCollum, co-chair of the Native American Caucus, and I both felt the same way – that this was just an egregious case of a state effectively abrogating parts of a treaty.”

Sometimes tribes don’t defend their rights when they should, Cole said. “We applaud the Penobscots for going to court to defend their rights. The battle they’re fighting is not just for themselves. If sovereignty is diminished anywhere it’s diminished everywhere. If any of our tribes have their treaties unilaterally altered without the permission, consent and participation it hurts every single tribe in the country. I’m glad they decided to fight it; the least we can do is express our support.”

Cole said he agreed with some tribal leaders who think the Penobscot case might turn out to be as significant for east coast tribes as the “fish wars” of the 1960s and 1970s led by the late Nisquallyleader Billy Frank Jr. were to the west coast tribes. At that time protesters held “fish-ins” at traditional fishing locations aimed specifically at asserting their treaty-protected fishing rights and, more broadly, their resistance to being culturally assimilated into American society.

RELATED: The Fire That Was Billy Frank Jr.; Indian Country’s Greatest Defender

“Some people act as though a treaty signed a hundred or so years ago doesn’t exist – yes, it does as long as the parties are still there and there wasn’t a time limit placed on it,” Cole said. “After all, land was given up in exchange for guarantees and those guarantees have to hold. The history of the United States in terms of holding up its side of treaties is not very commendable.”

The Penobscot case is not a partisan issue, Cole said; it’s an issue in which Congress needs to uphold its obligations and the trust responsibilities toward the tribe.

PenobscotChief Kirk Francis told ICTMN that the Nation is “extremely honored and excited that congress has weighed in on this very important case.” He said he was unaware of any other case in which members of Congress supported a tribe against a state. “I think this is truly historic and shows the level of seriousness with which they take these issues of protecting basic tribal cultural rights around attempted territorial removal and extinguishing fishing rights.”

The lawsuit – Penobscot Nation v. State of Maine, Maine Attorney General Janet Millsand two other state officials– was filed in August, 2012, in response to the state’s assertion that the Nation has jurisdiction and regulatory authority over hunting and fishing only on its reservation islands and not in the “Main Stem” of the Penobscot River. The river flows around 60 miles north of Indian Island where the Penobscot Nation’s government is located and most of its citizens live. The Nation owns numerous islands in the Main Stem as well as hundreds of thousands of acres of land elsewhere in the state as a result of the 1980 MICSA and its state companion, the 1980 Maine Implementing Act(MIA). The river is central to the Nation’s identity and culture, Francis said recently. ”This river is simply who we are. It’s the very core of our identity as a people and it’s simply the most important thing in the Penobscot Nation’s life,” he said.

Mills did not respond to a request for comment.

A year after the Nation filed the lawsuit, the federal government’s Department of Justice (DoJ) at the Nation’s request entered the case both as an intervener on the Penobscot Nation’s behalf and as a plaintiff filing a separate action against the state of Maine.

RELATED: Penobscot Nation Sues State Over Settlement-Protected Hunting and Fishing Rights

RELATED: Feds Join Penobscot Suit against State of Maine on Fishing Rights

RELATED: Ceremony – and Eagles – Mark Beginning of Veazie Dam Removal

The amici brief outlines three principles that “must” inform the interpretation of statutes regulating Indian nations: (1) that Congress reserves Indian lands to assist and protect Indians and intends that the reservation is also seen to favor and protect Indians; (2) that Congress drafts legislation against the longstanding Indian canon of construction, which requires courts to interpret ambiguities in Indian-related legislation in favor of Indians; and (3) when the U.S. acts as a trustee to settle a dispute over an Indian nation’s aboriginal property and fishing rights, it expects the court to act as a partner in fulfilling the federal government’s “solemn trust responsibilities.”

Congress plainly intended to include the Penobscot River within the Penobscot Reservation when it ratified Maine’s Act to Implement the Maine Indian Claims Settlement Act, and so did the State of Maine until recently, the amici wrote in their brief. “The State now contends that Congress, in drafting the Settlement Act, intended to harm the Penobscot Nation by persuading it to cede historically tribal land to the State, while preserving its sustenance fishing rights in name only by diminishing tribal land to include only the dry land of the islands in question,” the brief says. “But this interpretation cannot be squared with Congress’s intent to draft a statute that fulfills its trust responsibilities to the Penobscot Nation. Congress plainly intended to protect the Penobscot Nation’s right to fish for anadromous fish in the Penobscot River and therefore included the Main Stem of the Penobscot River, which contains the only anadromous fish available to the Tribe, within the Penobscot Reservation.”

Requests for summary judgment from the Penobscot Nation, the DoJ and the state are pending. The amici brief urges the court to grant summary judgment to the Nation.

Francis said he hopes all tribes’ nation-to-nation trust relationships with the federal government will be protected. He praised the Congressional Native American Caucus members for their activism. “They truly have proven their commitment to these issues,” Francs said. “For us this is such a scary and stressful time – having our rights and territory attacked – and this at the very least tells us in a very relevant and important way that we are not alone.”

Read more at http://indiancountrytodaymedianetwork.com/2015/05/05/congress-members-support-penobscot-v-maine-unprecedented-court-filing-160253
 
 

Updates on LD 1168 & STEWC Testimony

Note to readers: There are two email postings listed first, and then STEWC’s Testimony on LD 1168 is listed last.
On Mon, May 4, 2015 at 9:33 AM, Chris Buchanan <chris(at)defendingwater(dot)net> wrote:
Hi all,

I hope everyone enjoyed the beautiful weekend!  I was up in Sangerville yesterday and everything seemed so alive.  I love seeing the yard sales starting up again.  I hope everyone’s appreciating the sunshine as much as I am!
I wanted to follow up on the previous email about LD 1168 with the reminder that you may still submit written testimony to the Judiciary Committee and call, meet, or email them about the bill before the work session on May 12.
You may build off of the suggestions I made to them in my testimony, use the talking points, or speak from your heart about your own experience with eminent domain, especially the misuse of eminent domain for a transportation project.
Attached are the same resources I’ve sent before, hoping that it’s helpful.
Also, for those of you who read my testimony and noticed that I referenced MDOT’s statewide outreach coordinators who are supposedly being employed by us (taxpayers) to receive ideas, I was intending to attach the MDOT handout as well but the file is too large, so please give a shout if you want to take a look.  You can also find it on the MDOT website.
peace, Chris
On Fri, May 1, 2015 at 10:51 AM, Chris Buchanan <chris(at)defendingwater(dot)net> wrote:

Hi everyone,

Thanks to those of you who submitted testimony and/or came to the State House yesterday to testify on LD 1168 to prevent eminent domain from being used by a private entity through a public private partnership.
My sense was that the committee listened closely to our testimony and is interested in doing something with this bill during the work session.  This is a stark contrast to the mostly unresponsive and seemingly disinterested tranportation committee on LD 506, in my opinion.
The work session will be May 12 at 5pm in the Judiciary Committee, Room 438 of the State House.  During the work session, members must ask members of the audience to comment, there is no open public comment.  I am going to make an effort to meet with a couple committee members before the work session and I am hoping they invite me to provide additional information.
I have asked members of the group, “Maine Matters,” to videotape the session.  It is the time they deliberate and make a decision, and therefore important to record for accountability and learning purposes.
Here is the link where everyone’s testimony will be posted on LD 1168.  They are behind, so it’s not up yet.  I will attach my testimony on behalf of STEWC for those of you interested and encourage others to do so. The only testimony against the bill before the committee was by Nina Fisher of the MDOT.
Have a great weekend everyone and hope to see many of you at the steering committee meeting next week!
Remember anybody can post relevant info about the Corridor to this list, (except for articles unless you provide a description) by emailing your info directly to: stop_the_east_west_corridor@lists.riseup.net
no corridor, no compromise!  Chris

Stop the East-West Corridor

www.stopthecorridor.org

Testimony in Favor of LD 1168                                                               April 30, 2015

 

Dear Senator Burns, Representative Hobbins, and Honorable Members of the Judiciary Committee,

 

Thank you for hearing our comments today on LD 1168. My name is Chris Buchanan, I live in Belgrade, and I am testifying in favor of LD 1168 as the Statewide Coordinator of Stop the East-West Corridor. Stop the East-West Corridor, or STEWC, is a resource and communication hub for a decentralized coalition of Maine residents and organizations who share a multitude of concerns about the private or public-private East-West Corridor proposal that has been introduced to communities around the State and in New Brunswick by Cianbro CEO Peter Vigue and Cianbro Project Manager Darryl Brown.

 

We have also received permission from the Maine Association of Planners to express their support for LD 1168. They are unable to provide testimony due to resource constraints.

 

We are grateful for Senator Davis’s leadership and commitment to the desires of his constituents to provide protection from eminent domain for a transportation project like the East-West Corridor. The Corridor is unfounded in public planning or public need, and is in fact hugely unpopular. Abbot, Charleston, Dexter, Dover-Foxcroft, Garland, Monson, Parkman, and Sangerville, eight communities, have now passed a local ordinance, be it a moratorium, referendum, local-self governance, or land use ordinance, to develop local protection. These actions clearly demonstrate a sense of vulnerability and the need for adequate state policy.

 

As it stands, the only existing legal statute that may authorize development of the Corridor is the Public-Private-Partnership law for Transportation Projects, Title 23 §4251, which is why we continue to address the shortcomings in this law.

 

Eminent domain powers for significant transportation projects should be limited to government agencies acting on behalf of the public.   While LD 1168 effectively seeks to provide this protection, I have been informed by Maine Department of Transportation legislative liaison Nina Fisher that the Department wants to maintain eminent domain authority for private entities under the Public-Private-Partnership Law (Title 23, §4251).   Although we disagree for several reasons and ask this committee to make the changes outlined by LD 1168, we also want to offer the Committee the option to simply eliminate unsolicited proposals from 23 §4251, ensuring that all PPPs are solicited by the Department.

 

Maine’s Sensible Transportation Policy Act (STPA, Title 23 §73) is the guiding law for transportation planning, development, and maintenance in our State. However, the PPP law created a parallel legal pathway for significant transportation development that sidesteps the STPA. Although 23 §4251 sec. 4-I states that a PPP “must comply with…applicable…state…laws…”, sec. 3 states, “Notwithstanding any other provision of law…”. The PPP is an explicit provision of law that defines a different process. Also, the two laws blatantly contradict each other in both their reporting requirements (transparent vs. confidential), and public input process (lengthy public input to the Department vs. one public hearing before the Transportation Committee). The PPP also allows leveraging of up to 50% public taxpayer subsidy, and eminent domain powers to private entities for solicited and unsolicited proposals. If the legal pathway for unsolicited proposals were eliminated, only proposals initiated by the Department could access the extensive powers listed above, including eminent domain.

 

The Department’s Deputy Commissioner, Jon Nass, expressed concern about eliminating unsolicited proposals in his testimony before the Transportation Committee earlier this session on LD 506, stating that, “Unsolicited, industry based ideas are key to the PPP law. MaineDOT appreciates good ideas regardless of where they originate.”

The suggestion that eliminating a legal pathway for unsolicited proposals is the same as eliminating private-sector ideas is simply inaccurate and misleading. No proposed or existing laws prohibit consideration of private-sector ideas. On the contrary, the Department has regional outreach coordinators responsible for receiving unsolicited ideas from all over the State, outlined in their brochure, enclosed. Regardless of its origin, the Department may pursue a viable idea that is grounded in Department planning and supported by stakeholders through the PPP statute by soliciting proposals. Eliminating unsolicited proposals in the PPP will ensure that eminent domain may only be used on projects that have gone through an appropriate accountability process with Department oversight.

 

Several of these points are also clearly stated in Rep. Ralph Chapman’s letter to the Transportation Committee for the work session on LD 506, which is enclosed in your packet.

 

If the Department remains concerned about eliminating unsolicited proposals from 23 §4251 for the reasons they have expressed, we suggest simply adding the language, to 23 §4251 sec. 2 stating, “Nothing in this section is intended to prohibit the department from receiving ideas, or to prohibit or otherwise affect programs that do not meet the criteria of this subsection.” Enclosed in our testimony is a draft to reflect these suggestions.

 

We urge you to vote ought to pass on LD 1168, or consider this alternate proposal. Thank you very much for your time. I would be happy to answer questions or discuss details with members of this committee at any time.

 

Respectfully submitted,

 

 

 

Chris Buchanan

Statewide Coordinator, Stop the East-West Corridor www.stopthecorridor.org

(207) 495-3648

chris(at)defendingwater(d0t)net