AUGUSTA — The Mills administration and leaders of Maine’s Native American tribes are hoping to set aside long-standing legal disputes over sustenance fishing rights by proposing more protective water quality standards in waterways important to tribal members.
A bill presented to lawmakers Wednesday would create a “sustenance fishing” designation within Maine’s water quality standards with the long-term aim of reducing pollution levels so tribal members could safely subsist on fish from those waterways.
Equally significant, the agreement is further evidence of improving relations between tribal leaders, state regulators and Gov. Janet Mills.
“This bill takes a very important step in a very critical area,” Penobscot Tribal Ambassador Maulian Dana told members of the Legislature’s Environment and Natural Resources Committee. “I feel we have taken a lot of politics out of it and we have really focused on the health and safety of not just our people, but all people.”
If enacted by the Legislature and approved by federal officials, the proposal would set the nation’s most protective health standards for specific waters near tribal communities but without imposing costly new pollution regulations on industry. Those waters include the main stem of the Penobscot River north of Old Town and sections of the St. Croix, St. John and Aroostook rivers, as well as multiple smaller streams or brooks.
Members of the four Indian tribes in Maine – the Penobscot Nation, the Passamaquoddy Tribe, the Houlton Band of Maliseet Indians and the Aroostook Band of Micmacs – already have the right to take any marine organism other than lobster “for sustenance use.”
But those sustenance fishing rights exist only on paper for many tribal members. That’s because contamination levels in fish – particularly from mercury – make it unsafe to regularly consume wild fish from their areas. In the Penobscot River, for instance, the state advises anglers to limit themselves to one or two fish per month and for pregnant or nursing women to avoid eating Penobscot fish altogether.
House Speaker Sara Gideon, who sponsored the bill, L.D. 1775, on Mills’ behalf, said the bill was an “opportunity for us to set past conflicts aside” and work on health issues important to tribal members and all Mainers.
“The time is long past due that we show Maine’s tribal communities that their concerns are our concerns and that we take action to address them responsibly and to address them together,” said Gideon, D-Freeport.
The “past conflicts” in Gideon’s testimony refers to decades-old differences of interpretation over the 1980 Maine Indian Claims Settlement Act that was supposed to resolve disputes. Instead, it gave rise to court battles over reservation boundaries, water quality and sustenance fishing.
As Maine’s former attorney general, Mills’ office led the legal effort to prevent the U.S. Environmental Protection Agency from requiring the state to set tougher water quality standards in order to protect tribal sustenance fishermen.
That lawsuit is still pending. But soon after Mills’ inauguration as governor in January, her commissioner of the Maine Department of Environmental Protection, Jerry Reid, began working with leaders of the state’s four tribes and EPA officials to find a work-around solution to the legal dispute.
The proposal discussed Wednesday would designate several dozen rivers, streams or other water bodies as “sustenance fishing” areas. The DEP would then set water quality criteria adequate to protect the health of tribal members that eat up to 200 grams — or roughly 7 ounces — of fish from those waterways each day.
Reid told lawmakers that the goal was to reach agreement on water quality standards without forcing any of the parties to “give up their positions” on the legal and jurisdictional issues at the heart of the lawsuit.
“In other words, we wanted to find a way to put aside the legal arguments and move ahead to accomplish something important,” Reid said. “This bill is a product of those negotiations.”
Reid said he and his staff have spoken with all the 19 entities – mostly municipal wastewater treatment plants — that discharge into the affected waterways. None would be significantly affected by the tighter standards because all are already meeting the lower thresholds. Any new facilities, he added, “would need to come in essentially with state-of-the-art pollution-control technology regardless of this bill.”
The tougher standards would guard against any “backsliding” on the toxic contaminants discharged by treatment plants or industrial facilities into waterways, Reid said. But he also acknowledged that passage of the bill will not immediately lead to safe-to-eat fish because the contaminant of highest concern, mercury, ends up in Maine waterways after settling out of air pollution generated in other states.
“This bill will, I think, put Maine in a better position to work on a national level and a regional level to try to get some changes made outside of our jurisdiction to the mercury problem,” Reid said.
The agreement would need to be ratified by the EPA, which is why Reid cautioned lawmakers not too meddle too much with the carefully negotiated language. But the commissioner said EPA approval would likely lead to the lawsuit being settled.
Tribal leaders praised the agreement as well as the governor and Reid, in particular, for working with them.
Chief Clarissa Sabattis with the Houlton Band of Maliseet Indians said it is “no secret that the state of Maine and our tribes here have had a difficult history.” But as a “riverine people who pride ourselves as being good stewards of the land and water, this bill is very important to us.”
“This is the result of a meaningful collaboration that has taken place and I want to thank Commissioner Reid for being a man of his word,” Sabattis said. “It’s been a few months and he has definitely delivered on what his promises were from the beginning, so I do appreciate that.”
Such sentiments are significant.
Multiple tribal members testified forcefully against Reid’s nomination as commissioner in January because, as a former assistant attorney general, he represented the state in the federal water quality lawsuit against the EPA and the tribes. But during that hearing, Reid pledged to personally reach out to leaders of the four tribes on water quality issues.
Dana also said the Penobscot Nation was pleased with the outcome of the negotiations and other dialogue with the state.
“I think this session has been a bright light in a lot of ways, but we still have a long way to go,” Dana said.
Already this session, Mills has signed laws to rename Columbus Day as “Indigenous People’s Day” and to prohibit schools in Maine from using Indian symbols or names as mascots. Additionally, last week she finally announced a slate of nominees to serve on the Maine Indian Tribal-State Commission that was created to review implementation of the 1980 settlement act and recommend policies.
John Banks, a longtime commission member who is also director of natural resources for the Penobscot Nation, said the process “has really strengthened and improved the tribal-state relations.”
“It was a nice process,” Banks said.
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