Mills’ Pick To Lead DEP Raises Concerns For Penobscot Nation And Its Allies

Jan 29, 2019

This week, Maine lawmakers will consider the nomination of Jerry Reid to lead the Maine Department of Environmental Protection.

A former natural resources division chief at the Maine attorney general’s office, Reid has been praised as a talented and experienced environmental advocate. But for members of the Penobscot Nation he’s something else: the central figure in two legal cases that they say have undermined their cultural identity, and they and their allies are expected to turn out to oppose him.

As an assistant attorney general, Reid’s job was to defend the state in cases like the Penobscot Nation v. Janet Mills, his former boss who served as attorney general and who is now Maine’s governor. The case involved a dispute between the tribe and the state over who should have the authority to regulate paddlers, anglers, hunters and trappers on the Penobscot River.

Penobscot Chief Kirk Francis in May 2015.
Credit Jay Field / Maine Public File

In 2015, U.S. District Judge George Singal ruled that the Penobscot Indian Reservation included Indian Island and dozens of islands northward, but not the waters of the river itself. And for Chief Kirk Francis and other members of the tribe that was a devastating blow.

“It’s not only our namesake. I mean we treat that as living, breathing, very spiritual thing. And the river is much more to us than just a body of water,” he says.

Losing the case was a painful and emotional process, Francis says, made more challenging by the 1st Circuit Court of Appeals’ 2-1 decision two years later to uphold Singal’s ruling. The court rejected a claim that the Penobscot Nation’s sustenance fishing rights on the river were imperiled.

“We understand that that’s a public resource a lot of people care about. And all we ever really asked in that case was that the unique and distinct culture that lives within it and the associated rights to protect that are respected,” he says.

Because of contamination in the river, Francis says members of the tribe haven’t been able to harvest fish for sustenance or as a central part of their diet since about 1985. But there is one glimmer of hope for the Penobscot Nation in the dissenting opinion of 1st Circuit Judge Juan Toruella, who said fishing rights should be protected “within” the reservation, and that should include the islands and surrounding waters.

The tribe has now asked for a review of the 1st Circuit decision. Meanwhile, Francis says he has serious concerns about Reid’s nomination. And other tribal members remain distrustful of Mills.

"Her first day in office she made known her choice for head of Department of Environmental Protection, and it was this man who was the face of the Penobscot Nation v. Attorney General Janet Mills court case," says Dawn Neptune Adams, a member of the Penobscot Nation and an environmental activist who plans to oppose Reid at his confirmation hearing planned for Wednesday.

Reid has also represented Maine in a separate federal court case involving water quality standards on the Penobscot River, which also puts the state and tribes at odds. Under the Obama administration the Environmental Protection Agency had sided with the Penobscot Nation and other tribes’ efforts to protect sustenance fisheries. Under the Trump administration those standards are now up for review.

“We’re aligned with the tribes in helping protect the water quality of the Penobscot River and all other waterways in Maine,” Mills says.

Mills says despite the legal cases that previously involved the state attorney general’s office and the tribes, there are plenty of ways both sides have worked together: on efforts to remove dams on the Penobscot and on fighting the federal government’s efforts to roll back mercury and airborne toxins rules.

Mills says she stands by her nomination.

“The fact is Jerry Reid is a strong environmentalist and he’s done so much. Take the Penobscot River. He’s been there in the battle against Mallinckrodt Inc., holding their feet to the fire to effectuate a $20 million-plus remedy for the mercury they dumped at the mouth of the Penobscot River down by Orrington. He’s been there to protect the river,” she says.

Mills says when it comes to improving water quality and fish consumption rates, the state and the tribes can be partners.

Beth Ahearn, political director for the group Maine Conservation Voters, says there’s at least one positive signal on the horizon.

“I just want to point out that Mr. Reid has pledged to immediately support legislation that’s moving this year through the Maine Legislature to improve the water quality in the Penobscot River, and that’s an important first step. We all benefit from clean water,” she says.

As head of the DEP, Reid’s job to set policy and enforce environmental regulations will be starkly different than it was in the attorney general’s office. And Ahearn says her group supports Reid, who wants to take action to address climate change and to protect human health.

But other environmental groups, including 350 Maine, plan to oppose Reid’s nomination. Amy Eshoo, 350 Maine’s program manager, says the group has a longstanding relationship with the Penobscot Nation.

“We just feel that he represented the state in an effort that really further eroded tribal sovereignty and their inherent rights to the river, for the Penobscot. And we just felt that that was not a nomination we could support,” she says.

Eshoo says her group and others will be urging the Mills administration to select another candidate who doesn’t have an adversarial relationship with Maine tribes.