Nestlé bottled-water company seeks to take more Michigan water

by Keith Matheny and Paul Egan, Detroit Free Press

Nestlé Waters North America’s plans to increase its Michigan groundwater withdrawal by more than 2 1/2 times would unravel an accord reached with environmentalists seven years ago that was aimed at protecting the water table and wildlife.

Nestlé announced a $36-million expansion at its Ice Mountain bottling operations in Stanwood, in Mecosta County, on Oct. 31. The addition of two water-bottling lines — the first to begin operation next spring; the next opening by 2018 — is expected to add 20 jobs to the plant, which employs more than 250 people.

But the Michigan Department of Environmental Quality has not yet approved the company’s request to increase its groundwater withdrawals by 167% — from 150 gallons per minute to 400 gallons per minute — at White Pine Springs well No. 101 in nearby Osceola County. The DEQ has, however, recommended approval under the Michigan Safe Drinking Water Act.

Michigan Citizens for Water Conservation sued Nestlé in 2001 over the potential damage to lakes, rivers and streams that its bottled water plant’s groundwater withdrawals would cause. After years of court battles, the two sides reached a settlement agreement in 2009, reducing Nestlé’s siphoning to 218 gallons per minute from 400, with additional restrictions on spring and summer withdrawals. The litigation cost the nonprofit more than $1 million, which was covered by supporters.

Now, the proposed permit from the DEQ would take the bottled-water plant’s groundwater withdrawals back up to the level that prompted the lawsuit.

“I’m not sure if there is a reasonable amount of water that should be allowed to be taken from an aquifer,” said Jeff Ostahowski, vice president of the nonprofit Michigan Citizens for Water Conservation. “But 400 gallons per minute seems more than a bit too much.”

The controversy highlights the sometimes-contentious balance between protecting Michigan’s most important, abundant natural resource — its fresh water — and using it as an economic commodity. It’s particularly heightened after the months of fierce debate this year over a Wisconsin community, Waukesha, which lies just outside the Great Lakes Basin, being approved to use the basin for its water supply by Great Lakes Compact member states — over howls of protest from local governments throughout the Midwest.

The DEQ requires use of its Water Withdrawal Assessment Tool, an interactive, online evaluation of proposed water withdrawals in the state that looks at impacts to fish and stream flows through comparative data and modeling, prior to any proposed large-quantity water withdrawal.

“When Nestlé ran the Water Withdrawal Assessment Tool” last December, “they didn’t pass,” said Jim Milne, the shorelines unit chief in the DEQ’s Water Resources Division.

But as state regulations allow, the company then requested a site-specific review by DEQ staff. That review, which included looks at the geology in the area and Nestlé’s own compiled stream-flow information, led the DEQ to determine the increased pumping “is not likely to cause an adverse resource impact,” in January, he said, meaning it won’t impact populations of fish in the Chippewa Creek watershed, a tributary to the Muskegon River, or decrease stream flows to the point of natural resource impacts.

It’s not unprecedented for DEQ staff to override the findings of the agency’s Water Withdrawal Assessment Tool. From July 2015 to July of this year, the DEQ authorized 123 withdrawal requests rejected by the computerized modeling after site-specific reviews, Milne said.

The Stanwood plant receives its water supply “from diverse sources that we manage in a sustainable manner,” said Christopher Rieck, a spokesman for Nestlé Waters North America.

“The increase would also allow us the ability to balance the use of our water sources to ensure long-term sustainability and support future growth.”

The DEQ notified the public of its impending decision on the Nestlé permit via its biweekly environmental calendar, a little-read regulatory notices clearinghouse, and announced that public comment on Nestlé’s request would close Nov. 3, sparking outrage from many because of the short notice.

“The MDEQ’s handling of the Nestlé application is as lax as the handling of the Flint water crisis. Nothing has changed,” said Jim Olson, an environmental attorney and founder and president of the environmental nonprofit For Love of Water, or FLOW.

“Rights to public notice, public information, hearings and public participation in government decisions over water and quality of life, health — even our economy — have been diminished to the point of absurdity. MDEQ didn’t even post the underlying documents to the application summary online for interested people to review before public comment, and the notice was so hidden and late in the game that no meaningful comments can be made by Nov. 3.”

Added Ostahowski : “I think they were trying to slip it through. It’s disappointing but not uncommon.”

Responding to such criticism, the DEQ has announced it would extend the public comment period 30 days, and will make available the documents it used to recommend approval of the Nestlé application. A public hearing will also be scheduled in the area during the 30-day period, with a date and venue yet to be determined, said Carrie Monosmith, the DEQ’s Environmental Health Section Chief in its Office of Drinking Water.

One reason the Nestlé operation in Michigan has been controversial is that Deb Muchmore, a lobbyist and public relations consultant who has served as a Michigan spokeswoman for the company, is the spouse of Dennis Muchmore, who until January was chief of staff to Gov. Rick Snyder.

The Free Press reported in February that in March 2015, Dennis Muchmore proposed spending $250,000 to buy bottled water for Flint from either Nestlé or Absopure, a competitor.

“How about cutting a deal with Ice Mountain,” which is bottled by Nestlé, “or (Absopure Water board member) Bill Young and buying some water for the people for a time?” Muchmore asked in a March 3, 2015, e-mail. He added that “$250,000 buys a lot of water, and we could distribute it through the churches while we continue to make the water even safer.”

Neither deal happened, officials said.

Nestlé’s large-scale withdrawal of low-cost Great Lakes water while Flint residents have not had clean tap water to drink has not sat well with many in Michigan.

State Rep. Jeff Irwin, D-Ann Arbor, said Nestlé has increased the amount of water it’s pumping over time and that he feels the company’s permit application shows the latest proposed increase would negatively impact the environment. Nestlé said its plans would only “minimally” affect the levels of nearby creeks, when it should be having no impact on surface waters, he said.

“Nestlé is essentially appropriating what is a common good for their personal corporate utility,” he said.

Given the track record of the DEQ under Snyder’s administration, it’s reasonable for people to question whether a decision will be made based on the environment and the public good, or on corporate interests, Irwin said.

“Michigan citizens need to understand that part of the legacy we have is the unusual amount of fresh water we have. It’s not a given that it’s going to be around forever. With a company like Nestlé, it appears there is no end to what they think they can sell,” Ostahowski said.

Written comments on Nestlé’s proposed increased water withdrawals can be submitted until Dec. 3 to the DEQ via e-mail at deq-eh@michigan.gov or mailed to Michigan Department of Environmental Quality, Office of Drinking Water and Municipal Assistance, P.O. Box 30241, Lansing, Mich., 48909-7741.

Source: http://www.freep.com/story/news/local/michigan/2016/11/20/nestl-bottled-water-company-seeks-take-more-michigan-water/93175144/

Nestle: A Defeat and a Victory

On May 12 after a nearly 4 year battle, Fryeburg, Maine lost its appeal in the Maine Supreme Court to Nestle Waters North America, confirming the Maine Public Utility Commission’s initial approval of a 45 year contract for the bottled water giant to mine water from the small White Mountain community, despite overwhelming opposition among area residents.

For more information on this battle and the court case, follow‪#‎WaterJustice‬ ‪#‎WaterIsLife‬ ‪#‎Nestle‬ #Water, like Community Water Justice on Facebook,

and check out these articles:

Maine high court allows Nestle’s Fryeburg water deal to stand

Nestlé Just Gained Control Over This Town’s Water for the Next 45 Years

On the other side of the country, Hood River County, Oregon, handily defeated Nestle’s proposal for a bottling plant.  Here is the press release from David Delk, President of the Alliance for Democracy, Portland, OR and co-chair of the national Alliance for Democracy:

 

Oregon voters Tuesday in Hood River County delivered a stunning defeat to Nestle.

In the epic battle between Nestle and people around the world to protect their access to water, little Hood River County in Oregon just achieved a major and unique victory. And Alliance for Democracy was a part of that, having provided volunteers and financial support over the course of eight years.

Nestle had proposed building a bottled water plant in the Columbia River gouge town of Cascade Locks, using over 100 million gallons of publicly-owned water a year, and creating more than approximately 1.6 billion plastic water bottles each year. Cascade Locks, hoping to develop its tourist industry, would have suffered over 200 daily truck trips on their roads. Cascade Locks is located at the western edge of the nationally renowned and protected Columbia River Gouge. Opponents to Nestle’s plans also stressed the detrimental effects extracting this pure cold spring water would have on salmon, considered a bellwether species by Native Americans.

 

Nestle promised up to 50 low-tech jobs and an increase in the town’s tax base.

 

But a coalition of residents, farmers and Native Americans organized in opposition and today were successful in saying “No to Nestle, the water belongs to the people, not a water privateer.”

 

On an initiative question, Hood River county voters were asked to approve a novel measure to ban the commercial bottling and transport of water in quantities greater than 1000 gallons daily. And today they voted 69-31% to approve the initiative measure.

 

“Today victory at the ballot shows that when the people organize to stop corporate domination, we can win,” said David Delk, President of the Alliance for Democracy, Portland, OR and co-chair of the national Alliance for Democracy.

 

 

 

 

Commission Handling Dozens of Petitions to Opt Out of Expedited Wind Development

Link to Original Article and Audio Stream

 | Maine Public Radio | FEB 22, 2016

Susan Sharon reports on wind development in Maine’s Unorganized Territory.

Townships and plantations in Maine have until June to opt out of being an “expedited permitting area” for wind development. Already there are nearly two dozen petitions that have been received by the Land Use Planning Commission.

Another 18 petitions are in circulation. But the agency is also hearing from large landowners who want to prevent the removal process from going forward without a formal review.

This is the first time since the Wind Energy Act was passed by the Maine Legislature in 2008 that residents of the Unorganized Territory can take steps to remove themselves from expedited wind permitting areas of the state. Last year lawmakers agreed to give them a six-month window to do so. The clock began ticking in January, and planning manager Samantha Horn Olsen of the Land Use Planning Commission says so far, the numbers are about what was expected.

“There are several hundred townships and plantations in the jurisdiction and so the number could be higher, however there places that are being considered for wind energy development where people are more likely to be interested and then others where that might not be so much of an issue,” she says, “and so you may not see people be interested in filing a petition.”

Getting a township or plantation removed from the expedited area does not ensure that a wind project won’t be developed, but it does mean that developers have to get zoning approval before they apply for a permit, something that is not currently required.

To qualify for removal, petitioners need to collect at least ten percent of residents’ signatures, based on the number of people who voted in the last gubernatorial election. In some places that might only be a handful.

Chris O’Neil of the group Friends of Maine’s Mountains has been trying to get the word out that there’s a June 30 deadline for what he calls a “unique opportunity.”

“We estimate that about 70 areas should take action on this,” he says. “Looking at the spreadsheets and the maps really lets you know that almost everywhere wind development wants to go there are people who live fairly close by.”

The process also gives stakeholders, such as landowners who object to removal, the opportunity to request a formal review.

And Patrick Strauch of the Maine Forest Products Council says he’s aware of several large landowners, members of his organization, who are concerned about how a land use designation change would affect their property and its future potential uses. They are now requesting formal review.

“The landowners have looked at the petitions that have been filed and figured out where there are areas they want to contest those petitions and that’s just the path we’re following that we set up through the legislative process,” he says.

Their request for review requires the Commission to confirm the residency of the petitioners, take comments and possibly hold a public hearing. Horn Olsen says it also requires the Commission to see if the petition for removal meets two fundamental criteria.

“The first one is that the removal of the place will not have an unreasonable, adverse effect on the state’s ability to meet the state goals for wind energy development,” she says. “And the second criterion is that it’s consistent with the principal values and the goals of the Comprehensive Land Use Plan.”

The Wind Energy Act was designed to cut through multiple layers of bureaucracy in a specific zone. But O’Neil says it neglected to give people who live in the area a voice. And he says it’s possible disputes over the the process for removing townships from expedited wind development will wind up in court.

Judge rules Penobscot Nation reservation does not include river’s waters

December 15, 2015 | by Kevin Miller | Portland Press Herald

Link to original article

But U.S. District Judge George Singal clarifies that Penobscot tribal members’ sustenance fishing rights extend throughout the main stem of the Penobscot River.

A federal judge has ruled that the Penobscot Nation's reservation does not extend to the waters of the Penobscot River, but the tribe's members can conduct sustenance fishing on the river's main stem. This is the East Branch.

A federal judge has ruled that the Penobscot Nation’s reservation does not extend to the waters of the Penobscot River, but the tribe’s members can conduct sustenance fishing on the river’s main stem. This is the East Branch. 2014 Press Herald File Photo/Gregory Rec

A federal judge ruled Wednesday that the Penobscot Nation’s reservation ends at the shoreline of tribal islands, siding with the state in a jurisdictional dispute over the waters of the Penobscot River.

But in a mixed ruling, U.S. District Court Judge George Singal reaffirmed tribal members’ sustenance fishing rights throughout the main stem of the Penobscot.

Singal rejected arguments from the Penobscot Nation and federal agencies that the tribe’s reservation boundaries extend “from bank to bank” of Maine’s second-largest river. Instead, Singal sided with Attorney General Janet Mills in ruling there was “no ambiguity” in the definition of the reservation as laid out in the landmark Maine Indian Claims Settlement Act of 1980 negotiated between the state, federal government and tribes.

“The Settlement Acts clearly define the Penobscot Indian Reservation to include the delineated islands of the main stem, but do not suggest that any of the waters of the main stem fall within the Penobscot Indian Reservation,” Singal wrote. “That clear statutory language provides no opportunity to suggest that any of the waters of the main stem are also included within the boundaries of the Penobscot Indian Reservation.”

But Singal rejected the state’s interpretation on the fishing issue and, seeking to clarify what he said was ambiguous language, said the tribe has a “retained right to sustenance fish in the main stem, as it had done historically and continuously.” Under the state’s erroneous interpretation, Singal wrote, tribal members would only be allowed to fish from land.

“There is no evidence that the Maine Legislature, Congress, or the Penobscot Nation intended for the Settlement Acts to change and further restrict the already long-accepted practice of Penobscot Nation members sustenance fishing in the main stem, such that tribal members would need to have at minimum one foot on an island and could no longer sustenance fish from boats in the main stem,” Singal said.

This ruling doesn’t address a dispute over water-quality standards in the waterways that pass through tribal lands. A separate lawsuit on that issue that the state filed against the federal government is pending.

Tribal leaders were evaluating the ruling Wednesday evening and plan to “huddle up” with attorneys from the U.S. Department of Justice, which helped argue the tribe’s case, to discuss next steps, which could include an appeal.

Penobscot Nation Chief Kirk Francis described the ruling as “a mixed bag.” Francis was gratified Singal upheld the tribe’s sustenance fishing rights “from bank to bank” but disappointed that the judge did not believe those waters are part of the reservation. That is concerning, Francis added, because the tribe needs to understand how to manage a resource that members depend on for sustenance.

“Obviously it’s not the greatest decision for the tribe,” Francis said. “We are trying to understand how the existing statute and the decision fit together.”

Mills said the case, which has been watched closely by American Indian organizations around the country, could have had “potentially enormous” ramifications for river users. While the tribe’s attorneys argued that the case was primarily about sustenance fishing rights, lawyers for the state said Penobscots’ interpretation of their boundaries could allow the tribe to exclude fishermen from the river, charge fees for access or even regulate industrial and municipal discharges into the Penobscot.

“The state respects that federal Judge George Singal has digested thousands of pages of filings by all the parties and intervenors,” Mills’ office said in a statement. “In this very thorough 64-page ruling the judge decided very clearly that the reservation itself does not include the main stem of the Penobscot River. The river is, as the state argued, held in trust for the benefit and use of all. The State is equally pleased that the court recognized the historical right of individual tribal members to engage in sustenance fishing along the river, a right which the state has always accorded and never denied.”

The case stems from a 2012 letter from then-Attorney General William Schneider, although the underlying tensions over tribal jurisdiction and fishing rights date back decades.

Responding to reports that tribal game wardens were stopping and summonsing non-tribal sportsmen on the river, Schneider advised the Maine Warden Service and Maine Marine Patrol that the Penobscot reservation does not include the main stem of the river.

“Like private landowners, the Penobscot Nation may also restrict access to their lands, here islands, as it sees fit,” Schneider wrote. “However, the river itself is not part of the Penobscot Nation’s Reservation, and therefore is not subject to its regulatory authority or proprietary control. The Penobscot River is held in trust by the State for all Maine citizens, and State law, including statutes and regulations governing hunting, are fully applicable there.”

The Penobscot Nation filed suit in federal court 12 days later, claiming that any attempt to enforce state law against tribal members who are sustenance fishing in the river “threatens to violate the federal law right of the Nation’s members to be free from state authority over such activity.”

The case is emblematic of the growing rift between Maine’s tribal governments and the LePage administration as well as ongoing tensions over the 35-year-old settlement agreement. In May, the Penobscot Nation and Passamaquoddy Tribe withdrew their representatives to the Maine Legislature and accused the state of attempting to perpetuate a “guardian-to-ward relationship” with the sovereign tribal nations. Mills, meanwhile, is suing the U.S. Environmental Protection Agency over water quality standards in waters that pass through tribal areas.

Sunlight Media Collective Releases Documentary on the Battle Over Contested Penobscot River Territory

Indian Island, ME: On Friday, Sunlight Media Collective released

♦───♦♦♦───♦

The Penobscot: Ancestral River, Contested Territory,

♦───♦♦♦───♦

a documentary film that explores the conflict between the state of Maine and the Penobscot Nation over contested river territory. Spanning from the 1700’s to the present-day legal battle of Penobscot Nation v. Mills, the film illustrates the Penobscots’ centuries-long fight to retain their territory and their inherent, treaty-reserved sustenance fishing rights for future generations. Featuring first-person accounts, the film tells the urgent, inspiring story of a struggle for justice and cultural survival in the face of an astonishingly open abuse of state power.

The documentary release closely follows a meeting between Penobscot Chief Kirk Francis and President Obama, where they discussed the Penobscot Nation v. Mills case. The Penobscot Nation is suing the state of Maine in response to a decision by former Attorney General William Schneider that the Penobscot Indian reservation, which includes more than 200 islands in the Penobscot River, does not include any portion of the water— a decision that amounts to territorial theft by the state. Oral arguments for the case are scheduled for October 14th at the US District Court in Portland, ME.

 

The case is taking place in the context of a larger state battle over river jurisdiction and water quality standards. In February, the federal EPA ruled that Maine must improve its water quality standards to protect Penobscot sustenance fishing rights. Governor Paul LePage has called the ruling “outrageous” and threatened to relinquish state regulatory responsibilities to the federal EPA if they did not reverse the ruling.

 

The Penobscot: Ancestral River, Contested Territory chronicles the Penobscot’s struggle to maintain their centuries-long stewardship to ensure a healthy ecosystem for all of Maine, a struggle exemplified by these contemporary legal battles. According to Penobscot Chief Kirk Francis, the Penobscot v. Mills case “is really not about controlling the river system, or controlling individuals within the system. It’s really about our ability to manage a subsistence resource that we have a responsibility for, for multiple generations.”

 

Funded by Broad Reach Fund of the Maine Community Foundation, The Penobscot: Ancestral River, Contested Territory is available for free on the Sunlight Media Collective website (www.sunlightmediacollective.org), and DVDs are available by order. To schedule a screening, please email sunlightmediacollective@gmail.com.

 

The Sunlight Media Collective is a collaboration between Penobscot and non-native filmmakers. The film is just one example of an up-swell of activism and work on issues affecting the Wabanaki tribes. In October, Upstander Productions will also release a short documentary entitled First Light, on the recently completed Maine Wabanaki-State Child Welfare Truth and Reconciliation Commission.

♦───♦♦♦───♦

Screenings of The Penobscot: Ancestral River, Contested Territory currently scheduled:

October 21st, Belfast Free Library, Belfast, 6:00PM

October 24th, Gates Auditorium, College of the Atlantic, Bar Harbor, 1:30PM

♦───♦♦♦───♦

For more information, contact sunlightmediacollective@gmail.com.

 

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Escalation in Penbscot River Battle: ACT NOW

flotilla 5-23-15Defending Water for Life in Maine and Stop the East-West Corridor are fully committed to supporting the Penobscot Nation in their fight to maintain their River.  Below is an urgent update and call to action from Penobscot historian, activist, and founder of Dawnland Environment Defense, Maria Girouard:

From: Maria Girouard <sacredhomelands(at)gmail(dot)com>

Date: Mon, Sep 7, 2015 at 8:15 AM 

Dear Friends and Allies of the Penobscot River,
Last week, Maine Governor Lepage escalated the river dispute between Penobscot Nation and state government by calling on our elected officials in Washington to “intervene” (…interfere…) in Environmental Protection Agency (EPA) efforts to protect Penobscot fishing rights and ensure a clean, healthy river for all. (letter attached)
I’m sharing an essay (also attached) so you can decide whether Lepage is acting on your behalf.  For those who feel compelled to help Penobscots and the beautiful River we all love, addresses for our Washington delegates are provided below.  I encourage you all to raise your voices. They heard from Lepage, now they should hear from the People.   And if you’d like to send words of appreciation or a thank you note along to the Environmental Protection Agency for protecting the health of the Penobscot River, that address is provided below as well. 🙂   Please feel free to share this communication far and wide to help sound the alarm about the looming threat of industrialization and accompanying territorial theft at the hands of state government.  There is a quote attributed to Elie Wiesel: “The only thing necessary for evil to triumph is for good men to do nothing.”  I implore you to please do something…. for the Water, for the Grandchildren.
Kci Woliwoni (“Great thanks”)
Maria
Senator Susan M. Collins
413 Dirksen Senate Office Building
Washington, DC 20510
Senator Angus S. King
133 Hart Senate Office Building
Washington, D 20510
Congressman Bruce L. Poliquin
426 Cannon House Office Building
Washington, DC 20515
Congresswoman Rochelle M. Pingree
2162 Rayburn House Office Building
Washington, DC 201515
To send words of appreciation or a thank you note along to the Environmental Protection Agency for protecting the health of the Penobscot River:
Mr. H. Curtis Spalding
Regional Administrator
USEPA REGION 1 – New England
5 Post Office Square
Mail Code: ORA
Boston, MA 02109-3912
Email:  Spalding.curt@Epa.gov
A million thanks to you for caring!  ><)),>  ~ ~ ><)),>  ~~ ><)),>
Due to file size constraints the File Attachments mentioned are archived at:
0831 Governor Letter to Senators and Congressmen  ‘Clean Water Act’
 
Escalation of an Age-Old Conflict Update from the trenches

Stop the East-West Corridor gets a boost from Revised Transportation Law

The bill that is expected to prevent future development of Cianbro’s East-West Highway and Industrial Corridor idea passed into law unsigned by the Governor on June 26. The bill revises the controversial public-private partnership law for transportation projects to clarify that P3’s must comply with Maine’s Sensible Transportation Policy, which has guided Maine Transportation Policy and the Department of Transportation since 1991. The bill, LD 1168 was sponsored by Senator Paul Davis, R-Piscataquis, and broadly supported by opponents to the East-West Corridor, environmentalists, sportsmen and women, and small business owners. Opponents say that requiring Cianbro’s East-West Corridor proposal to meet the criteria outlined in the Sensible Transportation Policy Act will be impossible for the developers.

 

“We’ve been following this for over 3 years,” said Stop the East-West Corridor’s statewide coordinator Chris Buchanan. “We have read Cianbro’s proposal and attended most of Peter Vigue and Darryl Brown’s presentations, and we’ve been honest with people about what they say. Most people don’t like the idea.”

 

“This law makes it necessary for Cianbro, or any other private development corporation, to have public support before moving forward with a significant transportation project that profits them.” The bill created a reporting requirement so that both lawmakers and the public are informed annually by the Department about contracted public-private partnerships. “We believe that is important for transparency and accountability,” said Buchanan.

 

“The need for state legislation has been clearly demonstrated by the actions taken by local communities to enact local laws designed to protect their community from the proposed East-West Corridor when adequate state policy has been sorely lacking. Eight communities have overwhelmingly passed some form of local ordinance, be it a moratorium, referendum, local-self governance, or land use ordinance. These communities so far include: Abbot, Charleston, Dexter, Dover-Foxcroft, Garland, Monson, Parkman, and Sangerville,” Buchanan said.

 

“It is remarkable that so many local residents are taking the initiative to protect themselves. It is telling how many people feel threatened and left vulnerable by Maine’s existing state laws. LD 1168 creates some protection for people who don’t want the highway part of Cianbro’s Corridor plan,” Buchanan said.

 

Over the past three years, Stop the East-West Corridor has focused on developing resources, advocating for transparency, and supporting a statewide coalition of decentralized local resistance to the proposed East-West Corridor. The website, stopthecorridor.org, describes members as, “A coalition of Maine residents.”

 

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Roadblock for East-West Highway/Corridor passed by the Maine Legislature

View original article by Jym St. Pierre on Maine Environmental News

A bill intended to slow down, if not stop, the East-West highway and utility corridor proposed by Cianbro corporation executives has been passed by both houses of the Maine Legislature.

The original bill, LD 1168, would have prohibited the use of eminent domain for the development, operation, management, ownership, leasing or maintenance of a transportation facility as a public-private partnership project. It also would have prohibited the use of eminent domain by a private business entity involved in a public-private partnership.

Grassroots activists, led by the Stop the East-West Corridor (STEWC), have been working for legislation to better regulate potential public-private partnership transportation projects. They negotiated a compromise with the Maine Department of Transportation (MDOT) to clarify language in state statute that stipulates public-private partnership projects must comply with the Maine’s Sensible Transportation Policy Act.

According to Chris Buchanan, Statewide Coordinator of STEWC, “This bill closes previously unaddressed loopholes and shortcomings in our law that became apparent when the East-West Corridor proposal came to the table.”

On Friday, June 12, the Maine House gave its final blessing to the bill. On Monday, June 15, the Maine Senate concurred.

Even though MDOT under the LePage Administration supports the bill, Gov. Paul LePage is expected to veto it just because he can.

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

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