PENOBSCOT NATION; UNITED STATES, on its own behalf, and for the benefit of the Penobscot Nation, Plaintiffs, Appellants, Cross-Appellees,
JANET T. MILLS, Attorney General for the State of Maine; CHANDLER WOODCOCK, Commissioner for the Maine Department of Inland Fisheries and Wildlife; JOEL T. WILKINSON, Colonel for the Maine Warden Service; STATE OF MAINE; TOWN OF HOWLAND; TRUE TEXTILES, INC.; GUILFORD-SANGERVILLE SANITARY DISTRICT; CITY OF BREWER; TOWN OF MILLINOCKET; KRUGER ENERGY (USA) INC.; VEAZIE SEWER DISTRICT; TOWN OF MATTAWAMKEAG; COVANTA MAINE LLC; LINCOLN SANITARY DISTRICT; TOWN OF EAST MILLINOCKET; TOWN OF LINCOLN; VERSO PAPER CORPORATION, Defendants, Appellees, Cross-Appellants, EXPERA OLD TOWN; TOWN OF BUCKSPORT; LINCOLN PAPER AND TISSUE LLC; GREAT NORTHERN PAPER COMPANY LLC, Defendants, Appellees, TOWN OF ORONO, Defendant.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. George Z. Singal, U.S. District Judge]
Smith, Jr., with whom James T. Kilbreth, III, David M.
Kallin, Drummond Woodsum, and Mark A. Chavaree were on brief,
for appellant Penobscot Nation.
Gabrielle Sprague, Attorney, Environment and Natural
Resources Division, U.S. Department of Justice, with whom
John C. Cruden, Assistant Attorney General, Bella Sewall
Wolitz, Office of the Solicitor, U.S. Department of the
Interior, Steven Miskinis, Attorney, Environment and Natural
Resources Division, U.S. Department of Justice, and Elizabeth
Ann Peterson, Attorney, Environment and Natural Resources
Division, U.S. Department of Justice, were on brief, for
appellant United States.
D. Reid, Assistant Attorney General, Chief, Natural Resources
Division, with whom Janet T. Mills, Attorney General,
Kimberly L. Patwardhan, Assistant Attorney General, Susan P.
Herman, Deputy Attorney General, Chief, Litigation Division,
and Christopher C. Taub, Assistant Attorney General, Senior
Litigation Counsel, were on brief, for state defendants
Catherine R. Connors, with whom Matthew D. Manahan and Pierce
Atwood LLP were on brief, for state intervenors appellees.
Torruella, Selya, and Lynch, Circuit Judges.
Penobscot Nation (the "Nation") filed suit in
federal court against the State of Maine and various state
officials (the "State Defendants"), claiming rights
as to a 60-mile stretch of the Penobscot River, commonly
known as the "Main Stem." The United States
intervened in support of the Nation. Private interests,
towns, and other political entities, whom we shall call the
"State Intervenors, " intervened in support of the
State Defendants' position.
district court, on cross-motions for summary judgment, made
two rulings: (1) "[T]he Penobscot Indian Reservation as
defined in [the Maine Implementing Act ("MIA"), Me.
Rev. Stat. Ann. tit. 30 ("30 M.R.S.A."), ] §
6203(8) and [the Maine Indian Claims Settlement Act
("MICSA")], 25 U.S.C. § 1722(i), includes the
islands of the Main Stem, but not the waters of the Main
Stem, " Penobscot Nation v.
Mills, 151 F.Supp.3d 181, 222 (D. Me. 2015); and (2)
"[T]he sustenance fishing rights provided in . . . 30
M.R.S.A. § 6207(4) allows the Penobscot Nation to take
fish for individual sustenance in the entirety of the Main
Stem section of the Penobscot River, " id. at
222-23. The court issued declaratory relief to that effect on
both points. Id.
these cross-appeals, we affirm the first ruling and hold that
the plain text of the definition of "Penobscot Indian
Reservation" in the MIA and the MICSA (together, the
"Settlement Acts"), includes the specified islands
in the Main Stem, but not the Main Stem itself. As to the
second ruling on sustenance fishing, we vacate and order
dismissal. That claim is not ripe, and under these
circumstances, the Nation lacks standing to pursue it.
interested in further details of this dispute will find them
in the district court opinion. See Penobscot Nation,
151 F.Supp.3d at 185-212. Given that the plain text of the
statutes resolves the first issue and that there is no
Article III jurisdiction as to the second, we do not and may
not consider that history. Instead, we get directly to the
point on both issues.
litigation began shortly after the Maine Warden Service and
the Maine Department of Inland Fisheries and Wildlife
requested a legal opinion from Maine's then-Attorney
General William Schneider "regarding the respective
regulatory jurisdictions of the . . . Nation and the State of
Maine . . . relating to hunting and fishing on the [M]ain
[S]tem of the Penobscot River." Attorney General
Schneider issued his opinion (the "Schneider
Opinion" or "Opinion") on August 8, 2012. On
the same day, Attorney General Schneider sent a copy of the
Opinion to the Governor of the Nation and noted in a cover
letter: "I also understand that there have been several
incidents in recent years in which . . . Nation
representatives have confronted state employees, including
game wardens, as well as members of [the] public, on the
River for the purpose of asserting jurisdiction over
activities occurring on the River."
Schneider Opinion states that "the . . . Nation may
lawfully regulate hunting on, and restrict access to, the
islands within the River from Medway to Old Town that
comprise its Reservation, but may not regulate activities
occurring on, nor restrict public access to, the River
itself" and that "the State of Maine has exclusive
regulatory jurisdiction over activities taking place on the
Nation filed suit in federal court against the State
Defendants on August 20, 2012. In its second amended
complaint, the Nation sought a declaratory judgment that the
Schneider Opinion misinterprets federal law -- namely, MISCA
--and that both the Nation's regulatory authority and its
sustenance fishing rights extend to and include the Main Stem
of the Penobscot River. The State Defendants answered the
Nation's complaint and filed counterclaims. The State
Defendants sought a declaratory judgment that, among other
things, "[t]he waters and bed of the [M]ain [S]tem of
the Penobscot River are not within the Penobscot Nation
reservation." All parties agree that the State
Defendants' declaratory judgment claim on this point is
United States, through the Department of Justice, filed a
motion to intervene on behalf of the Nation on August 16,
2013, and the district court granted the United States
intervenor status on February 4, 2014. The State
Intervenors filed their motion to intervene in support of the
State Defendants on February 18, 2013, which the district
court granted on June 18, 2013. The parties engaged in
discovery and further procedural sparring, after which the
Nation, the State Defendants, and the United States each
moved for summary judgment, and the State Intervenors moved
for judgment on the pleadings.
positions of the Nation and the United States differed
slightly. The Nation defined the term "Reservation"
to include the entire Main Stem, bank-to-bank, and its
submerged lands. The United States said that that was its
preferred reading, but it offered as another possible reading
that the "Reservation" reaches the
"thread" or centerline of the River. This
alternative reading would create "halos" around
each of the Nation's islands, in which the Nation could
engage in sustenance fishing.
oral argument, the district court issued its
opinion. The Nation and the United States then
filed motions to amend the judgment, seeking to
"clarify" that the Penobscot Indian Reservation
includes submerged lands on each side of the Nation's
islands to the thread of the Penobscot River, or
alternatively "clarify" that the court had not
decided the issue. The State Defendants opposed the motions,
and the court summarily denied the motions.
review orders granting summary judgment de novo.
McGrath v. Tavares, 757 F.3d 20,
25 (1st Cir. 2014). The parties agreed before the district
court that the record was "amenable to resolution"
by summary judgment, and the court agreed, concluding that it
could "disregard as immaterial many factual disputes
appearing in the record." Penobscot Nation, 151
F.Supp.3d at 185 & n.4. All of the issues here are ones
of law, which we review de novo. Franceschi
v. U.S. Dep't of Veterans Affairs, 514
F.3d 81, 84-85 (1st Cir. 2008).
Construction of 30 M.R.S.A. § 6203(8)
6203(8) of the MIA, which sets out what "Penobscot
Indian Reservation" "means" under the MIA, in
turn controls what "Penobscot Indian Reservation"
"means" for federal law purposes, 25 U.S.C. §
1722(i) ("'Penobscot Indian Reservation' means
those lands as defined in the [the MIA]."). "As a
rule, [a] definition which declares what a term
'means' . . . excludes any meaning that is not
stated." Burgess v. United
States, 553 U.S. 124, 130 (2008) (alterations in
original) (quoting Colautti v.
Franklin, 439 U.S. 379, 392-93 n.10 (1979)).
interpretation of section 6203(8) presents a question of
statutory construction. We apply traditional rules of
statutory construction to the Settlement Acts. See
Maine v. Johnson, 498 F.3d 37, 41-47
(1st Cir. 2007); Aroostook Band of Micmacs
v. Ryan, 484 F.3d 41, 50, 56 (1st Cir.
2007). The canon construing statutory ambiguities in favor of
Indian tribes does not apply when the statutory language is
unambiguous. South Carolina v. Catawba
Indian Tribe, Inc., 476 U.S. 498, 506 (1986); see
also, e.g., Carcieri v.
Salazar, 555 U.S. 379, 387 (2009) (holding that
where the language of the Indian Reorganization Act is
unambiguous, the court must enforce its plain
in any statutory construction case, '[w]e start, of
course, with the statutory text . . . .'"
Sebelius v. Cloer, 133 S.Ct. 1886,
1893 (2013) (alteration in original) (quoting BP Am.
Prod. Co. v. Burton, 549 U.S. 84,
91 (2006)). The MIA states that
"Penobscot Indian Reservation" means the islands in
the Penobscot River reserved to the Penobscot Nation by
agreement with the States of Massachusetts and Maine
consisting solely of Indian Island, also known as Old Town
Island, and all islands in that river northward thereof that
existed on June 29, 1818, excepting any island transferred to
a person or entity other than a member of the Penobscot
Nation subsequent to June 29, 1818, and prior to the
effective date of this Act.
30 M.R.S.A. § 6203(8). Where the meaning of the
statutory text is plain and works no absurd result, the plain
meaning controls. See Lamie v. U.S.
Trustee, 540 U.S. 526, 534 (2004) ("It is well
established that 'when the statute's language is
plain, the sole function of the courts -- at least where the
disposition required by the text is not absurd -- is to
enforce it according to its terms.'" (quoting
Hartford Underwriters Ins. Co. v. Union
Planters Bank, N.A., 530 U.S. 1, 6 (2000))). Such is the
analysis turns on what "the islands in the Penobscot
River" means. "Island" is not given a special
definition in the MIA, and so we "construe [it] in
accordance with its ordinary or natural meaning."
FDIC v. Meyer, 510 U.S. 471, 476
(1994). In its ordinary use, "island"
refers to a piece of land that is completely surrounded by
water. See, e.g., Island, Oxford English
Dictionary Online, http://www.oed.com/view/Entry/99986 (last
visited June 20, 2017) (first definition) ("A piece of
land completely surrounded by water."); Island,
Merriam-Webster's Dictionary Online,
https://www.merriam-webster.com/dictionary /island (last
visited June 20, 2017) (first definition) ("[A] tract of
land surrounded by water and smaller than a
continent[.]"); Island, Dictionary.com,
http://www.dictionary.com/browse/island (last visited June
20, 2017) (first definition) ("[A] tract of land
completely surrounded by water, and not large enough to be
called a continent."). Its ordinary meaning is clear and
unambiguous. See also Carcieri, 555 U.S. at 388-90
(interpreting the use of "now" in 25 U.S.C. §
479 through its ordinary meaning and use in the statute, and
finding the term unambiguous).
emphasis to the limits of this definitional term, the statute
further states that the Reservation "islands"
"consist solely" of the enumerated
islands. 30 M.R.S.A. § 6203(8) (emphasis added).
"'Solely' leaves no leeway."
Helvering v. Sw. Consol. Corp.,
315 U.S. 194, 198 (1942).
holding that the term "island" does not refer to
the surrounding water itself or to the land submerged by the
surrounding water is also compelled by other text within the
Settlement Acts. See, e.g., Henson
v. Santander Consumer USA Inc., No. 16-349,
2017 WL 2507342, at *4 (U.S. June 12, 2017) (confirming plain
meaning reading by "[l]ooking to other neighboring
provisions in the [statute]"). When the Settlement Acts
mean to address the various topics of water, water rights, or
submerged land, they do so explicitly and use different
language. See, e.g., 25 U.S.C. § 1721(b)(2)
("It is the purpose of this subchapter . . . to clarify
the status of . . . natural resources in the State of
Maine."); id. § 1722(b) (defining the
phrase "land or natural resources" in the MICSA as
"any real property or natural resources . . . including
. . . water and water rights"); 30 M.R.S.A. §
6203(3) (defining the phrase "land or other natural
resources" in the MIA as "any real property or
other natural resources . . . including . . . water and water
rights"); 25 U.S.C. § 1722(n) and 30 M.R.S.A.
§ 6203(13) (including "natural resources" as
things that can be "transferred" as that word is
used in the Settlement Acts); 30 M.R.S.A. § 6207
(discussing regulation of "waters"); id.
§ 6207(1)(B) (addressing regulation of "[t]aking of
fish on any pond in which all the shoreline and all
submerged lands are wholly within Indian
territory, " and using the term
"territory" rather than "Reservation"
section 6205(3)(A), which deals with purchases of land to
compensate for regulatory takings within Indian reservations,
states that "[f]or purposes of this section, land along
and adjacent to the Penobscot River shall be deemed to be
contiguous to the Penobscot Indian Reservation, " thus
implying that otherwise the "Reservation" is not
contiguous to land along and adjacent to the Penobscot River.
30 M.R.S.A. § 6205(3)(A). The Nation's and United
States' construction of "Penobscot Indian
Reservation" would render that language superfluous, a
result forbidden by the canons of construction. See In re
Montreal, Me. & Atl. Ry., Ltd., 799 F.3d 1, 9 (1st
Cir. 2015) ("[C]ourts should construe statutes to avoid
rendering superfluous any words or phrases therein.").
MICSA's definitional provision for "Penobscot Indian
Reservation" itself reinforces this plain-meaning
reading of the MIA. Section 1722(i) of the MICSA provides
that "'Penobscot Indian Reservation' means those
lands as defined in [the MIA]." 25 U.S.C.
1722(i) (emphasis added). In its ordinary meaning, the
unadorned term "land" does not mean water. It means
land, as distinct from water. The MICSA does not say waters are
included within the boundaries of the "Penobscot Indian
Reservation." Taken together, the Settlement Acts
unambiguously define "Penobscot Indian Reservation"
as specified islands in the Main Stem of the Penobscot River,
and not the Main Stem itself or any portion of the Main Stem.
The plain meaning of "islands in the Penobscot
River" is the islands in the River, not the
islands and the River or the riverbed.
Nation and the United States agree that a plain-meaning
reading must control. They offer a different reading of what
that plain meaning is. They argue that the definition of
"Penobscot Indian Reservation" in section 6203(8)
is modified by section 6207(4)'s grant of sustenance
fishing rights to the Nation "within the boundaries of
[the Nation's] Indian reservation." 30 M.R.S.A.
§ 6207(4). They contend that because section 6207(4)
was meant to protect the Nation's sustenance fishing
rights in the Penobscot River, a reading of section 6203(8)
based on the otherwise plain meaning of the term
"islands" must be rejected because it would lead to
the absurd result of nullifying section 6207(4).
The two provisions -- sections 6203(8) and 6207(4) -- are not
in tension. The Nation's and United States' argument
selectively omits relevant text and also ignores the
differences in text between the two sections. Section 6203
itself specifically articulates that definitions in its
subsections do not apply when "the context indicates
otherwise, " 30 M.R.S.A. § 6203, which governs
section 6207(4). This clause avoids any supposed conflict
between section 6203(8) and section 6207(4) through the
statute's own provisions. There is no need to distort the
plain meaning of "islands" in section 6203(8).
the sustenance fishing provision refers to "Indian
reservations, " not just the "Penobscot Indian
Reservation, " as it applies "within the
boundaries" of both the Passamaquoddy Tribe's and
the Nation's respective reservations. Id. §
6207(4). If the term "island" in section 6203(8)
was meant to include all or any portion of the surrounding
waters, the text would have said so. As Justice Scalia
observed in a Chevron case, see Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837 (1984), legislatures do not "hide elephants
in mouseholes." Whitman v. Am.
Trucking Ass'ns, Inc., 531 U.S. 457, 468 (2001). The
ancillary reference to "Indian reservations"
referring to both the Passamaquoddy Tribe and the Nation in
section 6207(4) cannot dramatically alter the plain meaning
of section 6203(8)'s definition of "Penobscot Indian
Nation and the United States also point to the reference to
previous "agreement[s]" in section 6203(8):
"the islands in the Penobscot River reserved to the
Penobscot Nation by agreement with the States of
Massachusetts and Maine consisting solely of Indian Island .
. . and all islands in that river northward thereof that
existed on June 29, 1818, excepting any island transferred
[after] June 29, 1818." 30 M.R.S.A. § 6203(8). They
argue that the reference to the previous treaties found in
the "by agreement" clause means that the definition
of "Penobscot Indian Reservation" incorporates the
Nation's understanding of the treaties and state common
law. Again, not so. The reference to the treaties is merely
language specifying which "islands" are involved,
not language modifying the meaning of "islands."
The treaties no longer have meaning independent of the Maine
Settlement Acts. Rather, upon the passage of the Acts, the
treaties were subsumed within the Acts, and we look only to
the statutory text to understand the reservation's
Nation and the United States further argue that, regardless
of text, the district court's reading of section 6203(8)
must be incorrect because it contradicts the Supreme
Court's holding in Alaska Pacific Fisheries
v. United States, 248 U.S. 78 (1918). It
does not. Alaska Pacific concerned the
interpretation of a distinct phrase, "the body of lands
known as Annette Islands, situated in Alexander Archipelago
in Southeastern Alaska, " in an unrelated congressional
statute that was enacted in 1891 before Alaska became a
state. Id. at 86 (quoting Act of March 3, 1891, ch.
561, § 15, 26 Stat. 1095, 1101). The Court considered
not only the statute's plain text but also the
legislative history of the statute and the "general rule
that statutes passed for the benefit of dependent Indian
tribes . . . are to be liberally construed, doubtful
expression resolved in favor of the Indians."
Id. at 78. In light of those considerations, the
Court held that Congress "did not reserve merely the
site of [the Metlakahtlans'] village, or the island on
which they were dwelling, but the whole of what is known as
Annette Islands, and referred to it as a single body of
lands." Id. at 89.
Pacific's holding does not affect the question
before us. Despite the superficial similarities between the
definition of the Penobscot reservation and the statute at
issue in Alaska Pacific, they differ materially. The
Alaska Pacific Court found it "important,
" if not "essential, " to consider "the
circumstances in which the reservation was created."
Id. at 87. Not so here: the definition of the
Penobscot reservation lacks any comparable ambiguity, and any
resort to "the circumstances in which the reservation
was created" would be neither important nor essential
but, rather, wholly unnecessary. The definition of the
Penobscot Indian Reservation specifies that it consists
"solely of Indian Island . . . and all islands
in that river." 30 M.R.S.A. § 6203(8) (emphasis
added). The definition in Alaska Pacific has no
limiting term comparable to the adverb "solely."
Moreover, the definition of the Penobscot reservation refers
only to "islands in the Penobscot River"
and "islands in that river." Id.
(emphases added). As discussed above, this forms a clear
distinction between uplands and the river itself. In
contrast, the definition in Alaska Pacific uses a
much vaguer phrase: "the body of lands known as Annette
Islands, situated in Alexander Archipelago." 248 U.S. at
86. Unlike the Alaska Pacific Court, we have no need
to consider legislative history or the Indian canons of
construction, see supra note 3, because the plain
text of the definition of the Penobscot reservation is
forbidden by law from varying from the plain text based on
arguments made as to the nature of the Agreement reached. We
do not look to either side's understanding of the
Agreement when the meaning of the text of the Settlement Acts
is plain.See Star Athletica, L.L.C.
v. Varsity Brands, Inc., 137 S.Ct. 1002,
1010 (2017) ("The controlling principle in this case is
the basic and unexceptional rule that courts must give effect
to the clear meaning of statutes as written." (quoting
Estate of Cowart v. Nicklos Drilling Co., 505 U.S.
469, 476 (1992))); Puerto Rico v. Franklin Cal. Tax-Free
Tr., 136 S.Ct. 1938, 1946 (2016) (question of statutory
interpretation "begins 'with the language of the
statute itself, ' and that 'is also where the inquiry
should end, ' for 'the statute's language is
plain'" (quoting United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 241 (1989))).
Nation's and United States' arguments from history
and each party's intent would be relevant only if the
statutory language were ambiguous. See Matal
v. Tam, No. 15-1293, 2017 WL 2621315, at
*10 (U.S. June 19, 2017) ("These arguments are
unpersuasive. As always, our inquiry into the meaning of the
statute's text ceases when 'the statutory language is
unambiguous and the statutory scheme is coherent and
consistent.'" (quoting Barnhart v.
Sigmon Coal Co., 534 U.S. 438, 450 (2002)));
Milner v. Dep't of the Navy,
562 U.S. 562, 572 (2011) ("Those of us who make use of
legislative history believe that clear evidence of
congressional intent may illuminate ambiguous text. We will
not take the opposite tack of allowing ambiguous legislative
history to muddy clear statutory language."). The
language is not ambiguous.
district court was correct to hold that the Settlement Acts
mean what they plainly say. The Penobscot Indian Reservation
consists of the specified "islands in" the Main
Stem of the Penobscot River. It does not include the Main
Stem itself, any portion thereof, or the submerged lands
the dissent's three reasons to reach the opposite
conclusion, as explained, the Alaska Pacific opinion
does not provide the rule for decision because it concerned
an entirely different provision in a different statute. The
dissent departs from the Supreme Court's mandate that
courts must interpret statutes according to their plain text.
See Tam, 2017 WL 2621315, at *10 (noting that a
party's "argument is refuted by the plain terms of
the [statute]"); Henson, 2017 WL 2507342, at *6
("And while it is of course our job to apply faithfully
the law Congress has written, it is never our job to rewrite
a constitutionally valid statutory text under the banner of
speculation about [congressional intent]."); Star
Athletica, LLC, 137 S.Ct. at 1010 ("We . . . begin
and end our inquiry with the text . . . ."); Samsung
Elecs. Co. v. Apple Inc., 137 S.Ct.
429, 434 (2016) ("The text resolves this case.").
Second, the statute is clear that the role of the treaties is
simply to define which "islands" are included in
the Reservation, not to alter the plain meaning of the term
the question of the definition of Reservation is not the same
as the unripe question of sustenance fishing. The MIA itself
provides for how to resolve tensions between the definition
of Reservation and the use of that term in the sustenance
v. Johnson, 498 F.3d 37 (1st Cir. 2007),
cited heavily by the dissent, concerned an entirely different
issue and did not present the issue of the meaning of
Penobscot Indian Reservation in the Settlement Acts. Footnote
11 of Johnson, which the dissent suggests controls
this case, merely distinguishes between Reservation lands and
land later acquired in trust. Id. at 47 n.11. It is
simply not true that this court has held in Johnson
that the definition of Reservation embraced the waters of the
Penobscot River. Johnson addressed a distinct
question and, in doing so, explicitly bypassed any
territorial dispute that might have been implicated by that
question. See id. at 40 n.3 ("The territorial
boundaries are disputed but, for purposes of this case, we
assume (without deciding) that each of the disputed . . .
points lies within the tribes' territories.");
see also id. at 47. It has no bearing on the precise
boundaries of the Nation's Reservation as that term is
used in the Settlement Acts.
while the Nation and the United States referred glancingly in
their briefing to footnote 11 in Johnson, they did
not argue that the issue presented in this case was already
decided by Johnson. The dissent has made this
argument for them. The dissent's version of history
does not illuminate the plain meaning of the text and is
impermissible to consider.
affirm the entry of declaratory judgment for the defendants
on this point.
Sustenance Fishing Rights
that the federal courts lack jurisdiction in the
circumstances of this case to adjudicate the question of the
Nation's sustenance fishing rights. The district court
erred in reaching this issue because the issue is not ripe
and the plaintiffs presently lack standing. As a result, we
vacate the district court's ruling on this issue, without
adjudicating the merits of the sustenance fishing issue, and
order dismissal of this claim for relief.
Constitution limits the jurisdiction of the federal courts to
"Cases" and "Controversies." U.S. Const.
art. III, § 2. Two "interrelated"
"manifestations" of that limitation "are the
justiciability doctrines of standing and ripeness."
Reddy v. Foster, 845 F.3d 493,
499, 505 (1st Cir. 2017) (affirming dismissal of challenge to
never-implemented statute). The plaintiffs cannot satisfy
either doctrine as to the sustenance fishing issue.
standing doctrine requires, inter alia, that a plaintiff show
an "injury in fact, " which is "'an
invasion of a legally protected interest' that is
'concrete and particularized' and 'actual or
imminent, not conjectural or hypothetical.'"
Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1548 (2016) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)).
Nation alleges that the Schneider Opinion poses a
"threat" to its sustenance fishing rights. We see
no such threat. Allegations of future injury confer standing
only "under circumstances that render the threatened
enforcement sufficiently imminent." Susan B. Anthony
List v. Driehaus, 134 S.Ct. 2334, 2342
(2014). That test is not met.
Schneider Opinion does not confer standing on the Nation now
to obtain relief as to the sustenance fishing issue. The
Opinion itself does not address or even mention the scope of
the Nation's fishing rights. Nothing about the Opinion
evidences that Maine threatens an injury -- imminent or
otherwise -- to the Nation's sustenance fishing
activities. See Blum v. Holder,
744 F.3d 790, 792 (1st Cir. 2014) (holding that animal rights
activists lacked standing to challenge the Animal Enterprise
Terrorism Act where they had not been prosecuted or
threatened with prosecution under the statute).
contrary, Maine has affirmatively represented that it has a
"longstanding, informal policy" not to
"interfere with [Nation] members engaged in sustenance
fishing on the Maine Stem." In Reddy, where we
held there was neither standing nor ripeness, we found that
the challenged unimplemented legislation did not presently
interfere with the plaintiffs' relevant activities and
that the government had "affirmatively disavowed
prosecution . . . unless and until" certain absent
preconditions were met. 845 F.3d at 502; see also
Blum, 744 F.3d at 798 ("Particular weight must be
given to the Government disavowal of any intention to
prosecute . . . ."). The Nation's claims that the
Schneider Opinion presently threatens the
Tribe's "exclusive sovereign authority to govern
[sustenance fishing]" or "tribal
self-government" have no support in the record.
the Nation generate standing or ripeness by its own actions.
The Nation points to an Internet "alert" from a
Nation official to Nation members stating that they are
"at risk of prosecution by Maine law enforcement
officers" if they practice sustenance fishing in the
Main Stem. The State of Maine has said no such thing.
kinds of general and hypothetical allegations of injury
cannot succeed at the summary judgment stage, where the
plaintiffs must do more than merely allege legal injury and
must instead provide a factual basis for the alleged injury.
See Lujan, 504 U.S. at 561. The Nation and the
United States have not even attempted to show that any member
of the Nation has suffered any injury related to sustenance
fishing practices in response to the Schneider Opinion.
See Reddy, 845 F.3d at 503 (rejecting
"conjectural fear" as sufficient for standing);
see also Wittman v. Personhuballah, 136 S.Ct. 1732,
1737 (2016) ("When challenged by a court (or by an
opposing party) concerned about standing, the party invoking
the court's jurisdiction cannot simply allege a
nonobvious harm, without more.").
Nation and the United States also attempt to create standing
by arguing that the State Defendants' own counterclaims
in this lawsuit "necessarily place in controversy the
location of the Penobscot Nation's sustenance
fishery." The counterclaims do not do so. The State
Defendants' counterclaims referenced allegations from
Maine officials and recreational users of the Main Stem that
the Nation had attempted to assert exclusive control over the
Main Stem by, inter alia, demanding payment for access
permits. While this may establish standing as to the issue
about the meaning of "Penobscot Indian Reservation"
(for which standing has not been contested), it does not go
to the issue of sustenance fishing rights. The allegations do
not show there has been any injury to the Nation's
sustenance fishing activities. The plaintiffs cannot
bootstrap the justiciability of their own claims by use of
the State Defendants' counterclaims. Cf.
DaimlerChrysler Corp. v. Cuno, 547
U.S. 332, 352 (2006) ("[A] plaintiff must demonstrate
standing for each claim he seeks to press.").
sustenance fishing claim is also not ripe. Plaintiffs must
show both "fitness" and "hardship" to
satisfy the ripeness analysis. Reddy, 845 F.3d at
501. The fitness prong asks "whether the claim involves
uncertain and contingent events that may not occur as
anticipated or may not occur at all, " Town of
Barnstable v. O'Connor, 786 F.3d
130, 143 (1st Cir. 2015) (quoting Ernst & Young
v. Depositors Econ. Prot. Corp., 45 F.3d
530, 536 (1st Cir. 1995)), and the hardship prong
"concerns the harm to the parties seeking relief that
would come to those parties from our 'withholding of a
decision' at this time, " Reddy, 845 F.3d
at 501 (quoting Labor Relations Div. of Constr. Indus. of
Mass., Inc. v. Healey, 844 F.3d 318,
330 (1st Cir. 2016)).
prongs of the ripeness analysis prevent justiciability here.
The sustenance fishing claim on this record is merely
speculative. There is no evidence in this record that Maine
has interfered with or threatened to interfere with the
Nation's sustenance fishing in the Main Stem, and there
is not even an allegation that the State plans to change its
informal policy of not interfering with sustenance fishing.
We have no concrete dispute before us and so have no facts to
frame the appropriate inquiry, or even any relief. See
Reddy, 845 F.3d at 497.
hardship, "there is no apparent prejudice to the
plaintiffs if they must wait until their claims ripen to sue,
" because "[t]hey are 'not required to engage
in, or to refrain from, any conduct, unless and
until'" Maine actually takes some step to interfere
with or at least officially proposes to interfere with
sustenance fishing in the Main Stem. Id. at 505
(quoting Texasv.United States,
523 U.S. 296, 301 (1998)). ...