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

Maine to sue EPA over tribal water pollution decision

Link to Original Article

The state contests the agency’s authority to order stricter pollution limits to ensure sustenance fishing is safe.

By Colin Woodard Staff Writer | Portland Press Herald

Maine plans to sue the U.S. Environmental Protection Agency over a ruling intended to ensure that members of Maine’s Indian tribes can safely eat large quantities of fish for sustenance.

The move, disclosed in a letter this week from Attorney General Janet Mills to EPA Administrator Gina McCarthy, opens a new front in an escalating, decades-long power struggle between the state and tribes over the latter’s rights and authority under the 1980 Settlement Acts, the federally brokered compromise agreement that extinguished the tribe’s claim to two-thirds of the state.

Document

Chief Kirk Francis of the Penobscot Nation.

Chief Kirk Francis of the Penobscot Nation.

In Tuesday’s letter, Mills charged that the EPA has acted unlawfully, usurping Maine’s regulatory powers in violation of federal law and court rulings. She advised the agency that she was giving 60-day notice of her intention to sue.

The Penobscot Nation expressed concern with the move. “While not surprising, it is disappointing that we can’t get the state to recognize or acknowledge our sustenance fishing right,” said the tribe’s chief, Kirk Francis. “We have a right to clean water so that sustenance fishing is conducive to the health of our people.”

The dispute is over the LePage administration’s proposed water quality standards, which are subject to review by the federal agency. The EPA informed state authorities on Feb. 2 that their proposed standards are inadequate to protect sustenance fishermen on the reservations from certain toxins, because they eat much greater volumes of fish than the average Mainer.

The agency, acting in consultation with the federal Bureau of Indian Affairs and the U.S. Department of Justice, asserted such fishing rights were granted to the tribes under the Settlement Acts. It ordered the state to come up with more restrictive standards for certain toxins in Indian waters within 90 days. The EPA ruling did not suggest eating fish from the state’s waters is unsafe for most Mainers.

Gov. Paul LePage subsequently blasted the EPA decision, calling it “outrageous” and an act of “retribution” against the state Department of Environmental Protection for having previously crossed the agency. The DEP won a 2007 federal appeals court case that confirmed the state’s authority to establish environmental regulations on Indian lands and in July 2014 filed another suit to force the agency to honor that decision.

DISPUTE CENTERS ON SETTLEMENT ACT

In her letter, Mills said the Settlement Act only permits “certain Maine tribes to take fish without restriction within their reservations provided that such fish takings are for individual sustenance only” and does not provide a tribal right to sustenance fish.

Penobscot Chief Francis said the tribes, not the state, are trying to properly enforce the Settlement Acts. “It’s very clear that there is no acknowledgment at all of the rights of the tribe to fish and for those fish to be conducive to eating,” he said. “It’s very clear this is about wiping that out for the tribes, not about promulgating water standards.”

In a statement, the EPA said it was committed to upholding both the Clean Water Act and the Settlement Acts in Maine. “EPA must ensure that water quality standards in Maine protect the health and environment for all populations, including the Indian tribes in Maine who practice sustenance fishing as provided for by the Indian Settlement Acts,” the agency said, adding that it and the Department of Justice would respond to the state’s allegations in detail if a suit is filed.

The Department of Environmental Protection did not respond to interview requests, and the Attorney General’s Office declined to comment.

The EPA on Monday rejected other proposed state water pollution standards in Indian territory, including ammonia and arsenic. The agency also rejected a DEP proposal to downgrade the water quality target standard for a 0.3-mile section of Long Creek in Westbrook.

The EPA rulings on tribal waters, which could substantially tighten water standards in certain sections of the Penobscot and St. Croix rivers and other water bodies, have alarmed paper companies and riverside municipalities, which fear they may result in added pollution control expenses.

Maine’s largest tribes, the Penobscot Nation and Passamaquoddy Tribe, are already locked in disputes with the state over saltwater fishing rights, tribal jurisdiction over domestic violence cases by non-Indians on their reservations, and land use regulation on the tribe’s extensive, off-reservation trust lands. The Penobscot Nation have sued Mills in federal court over the state’s assertion that the tribe has no special rights in the main stem of the river that bears its name.

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Orono panel endorses withdrawal from Penobscot Nation water rights lawsuit

Orono resident and Penobscot Indian Nation member Maria Girouard speaks to the Orono Community Development Committee about withdrawing from a lawsuit the Penobscot have against the state over tribal waters. &quotI have a sense you don't really understand the severity of the decision," she told council members. &quotI’'ve spent the good part of a year or so [educating people] and nobody has any idea that the state government is in this fight with the Penobscot Nation." At the end of the meeting, the committee voted to recommend to the full council that they withdraw from the lawsuit.
Nok-Noi Ricker | BDN
Orono resident and Penobscot Indian Nation member Maria Girouard speaks to the Orono Community Development Committee about withdrawing from a lawsuit the Penobscot have against the state over tribal waters. “I have a sense you don’t really understand the severity of the decision,” she told council members. “I’’ve spent the good part of a year or so [educating people] and nobody has any idea that the state government is in this fight with the Penobscot Nation.” At the end of the meeting, the committee voted to recommend to the full council that they withdraw from the lawsuit. Buy Photo
Posted March 16, 2015, at 8:58 p.m.
Last modified March 17, 2015, at 12:26 p.m.

ORONO, Maine — Local resident John Banks, who is also a member of the Penobscot Indian Nation, told the town’s Community Development Committee on Monday that his tribe has been promised fishing privileges over and over by different governments, including the Colonial government of Massachusetts before Maine was even a state.

He said in 1775, Massachusetts leaders “asked my tribe to join the calling” during the American Revolution and that “our tribal chief at that time was named Orono.” In exchange for fighting the British the Penobscots were promised “our lands and our fishing privileges within our waters would be protected in perpetuation,” Banks said.

“It’s really hard for me, in 2015, to be fighting the same battle,” he said. “This is all about our fishing rights, which are located above the town of Orono.”

The Penobscot Nation in 2012 sued the state in federal court over the state’s interpretation of whether the tribe’s jurisdictional authority applies to parts of the river that abut tribal islands in the river. Orono is one of 18 municipalities and other entities with discharge permits into the river who have an interest in its water quality standards and are listed as intervenors in the suit.

Before Banks spoke, about a dozen others asked the town to withdraw from the lawsuit as a sign of support for the Penobscot Nation. After hearing from residents, Orono’s Community Development Committee voted unanimously to recommend to the full town council that Orono withdraw from the lawsuit.

Many of the 35 people at Monday’s meeting applauded their decision.

After reviewing all the materials, Councilor Mark Haggerty said: “The conclusion I came to is that we should not be interveners. I’m going to hope things work out and we’re not going to see additional cost with our [future] waste water discharges.”

The 1980 Maine Indian Claims Settlement Act provided the Penobscots with subsistence hunting and fishing rights for all sections of the Penobscot River from the Milford Dam to Millinocket. The tribe’s lawsuit against the state was filed in 2012 after then-Attorney General William Schneider issued an opinion that the Penobscots’ territory was limited to islands in the river and does not extend to the river itself.

While the Penobscot Nation lawsuit works it’s way through the system, on Feb. 2 the federal Environmental Protection Agency issued a decision, which some have described as “unprecedented,” that reaffirmed the state’s authority to establish water quality standards for “waters in Indian lands” and also required that Maine must adopt tighter water standards along the Penobscot River to better protect the sustenance fishing rights of the Penobscot Nation.

The state has 90 days from Feb. 2 decision to address the EPA’s position on increasing standards to protect human health along the Penobscot River, stretching about 70 miles from the Milford Dam up to Millinocket. If the state does not respond within that time, EPA officials said the federal agency “will propose and promulgate appropriate human health criteria for waters in Indian lands in Maine.”

BDN writers Judy Harrison, Chris Cousins and Bill Trotter contributed to this report.

 

CORRECTION:

An earlier version of this story said Banks was part of the group that asked the town to withdraw from the lawsuit. Banks made no such statement.

EPA Decision: Maine Water Quality Standards Inadequate for Tribal Waters

Link to Original Article and Radio Program

  FEB 5, 2015 | Maine Public Broadcasting Network

Download audio file: 

      1. 02052015spsmix.mp3

AUGUSTA, Maine – In a decision that is being welcomed as “historic” by Maine Indian tribes, the U.S. Environmental Protection Agency has asked the state of Maine to revise some water quality standards for tribal waters.

The decision comes during ongoing litigation brought by the state against the EPA. Maine’s chief of environmental protection says it could have far-reaching consequences for discharge license holders.

In a communique to Maine Department of Environmental Protection Commissioner Patty Aho this week, EPA Regional Administrator Curt Spalding delivered the news:  that federal regulators disapprove of some state water quality standards established by Maine more than a decade ago.

Aho says she was stunned by the announcement that the standards could not be used on tribal waters because they’re not protective enough of human health, and of the tribes’ sustenance fishing practices.

“It is, in some cases, work that we thought had been approved and had been in place for many, many years,” Aho says. “So it is just simply, as I stated, breathtaking in the scope and the sweep.”

Breathtaking in its scope, Aho says, because of its wide implications for sewer districts, paper companies and other discharge licensees.  She says the EPA has not defined what it means by waters in Indian territory.  Nor, she says, has the agency indicated how it wants the state to revise the standards and on what scientific  basis.

“It’s asking us to redo something, but not telling us to what standards,” she says. “They’re not telling us which waters in the state, or what parts of those waters, we are to redo these standards.”

“We’re talking only about the waters within tribal reservations and trust lands,” says Ken Moraff. “We’re not talking about the waters upstream or downstream, although there could possibly be an effect on upstream dischargers.”

Moraff is the director of the Office of Ecosystem Protection for EPA. He says existing permit holders will not be affected by the decision. But when new water quality standards are adopted in the future, any new or re-issued permits would have to meet the new standards, which have yet to be established.

Moraff says the decision is significant from the EPA’s point of view, too. That’s because this is the first time the EPA has determined that state standards are inadequate for uses in tribal waters, including sustenance fishing.

Chief Kirk Francis of the Penobscot Indian Nation couldn’t be happier.

“For the first time ever, what the EPA has said is that tribal subsistence and sustenance-based rights are a determinant factor under the Clean Water Act,” Francis says. “So you have to acknowledge those differences while setting your standards within Indian territory. You have to respect those practices. You have to respect the human health issues and the cultural identity of the tribes within those areas where the standards are being set.”

As part of an ongoing lawsuit brought by the state against the EPA over jurisdiction to set water quality standards, the EPA has concluded that the 1980 Maine Indian Land Claims Settlement Act, which extinguished certain tribal rights, allows the state authority to set water quality standards in tribal waters.

But Matt Manahan, an attorney representing discharge license holders along the Penobscot River, says what the EPA is also doing is setting up a two-tiered system for the tribe.

“What this is saying is, notwithstanding the fact that the Settlement Act treats them just like any other citizens of the state, we’re going to carve them out and say because they would like to have standards that are more stringent than the standards that apply to everyone else in the state, even though the science doesn’t support that, we’re going to basically carve that out and give them special treatment for purposes of water quality standards,” Manahan says.

The EPA has given the state 90 days to establish new standards for tribal waters. Commissioner Aho says she’s working with the Attorney General’s Office to determine a response.