Pierce Atwood's Tribal Water Quality Jurisdiction Victory

Pierce Atwood represented a coalition of municipal and private wastewater discharge licensees in support of the State of Maine’s position in the Penobscot Indian Nation v. Mills lawsuit, in which the Penobscot Indian Nation (PIN) had claimed that their reservation included the entire main stem of the Penobscot River. On December 16, 2015, Judge Singal issued his decision in this case; in his order, Judge Singal unequivocally denied that claim, ruling that the PIN reservation does not include any portion of the Penobscot River, only the islands themselves. This means that the PIN cannot regulate non-tribal discharges to the river, or other activities in and on the river. While Judge Singal ruled that the PIN has sustenance fishing rights in the river, the PIN will not have jurisdiction over the river. Although Judge Singal wrote that he was “not resolving the right to regulate water sampling or the right to regulate discharges by towns or non-tribal entities that currently discharge into the Penobscot River,” his decision, as a practical matter, effectively resolved that issue by ruling that the PIN Reservation does not include any portion of the river. This is an important victory in upholding the terms of the Maine Indian Land Claims Settlement Act, and hopefully it will put to rest, once and for all, the efforts to undermine the Settlement Acts and create the “nation within a nation” construct that the Settlement Acts were intended to avoid.