Full opinion text
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT George Z. Singal, United States District Judge Before the Court are three motions for summary judgment: (1) the State Defendants’ Motion for Summary Judgment, or in the Alternative, for Dismissal for Failure to Join Indispénsable Parties (ECF No. 117), (2) the United States’ Motion for Summary Judgment (ECF No. 120) and (3) the Motion for Summary Judgment by Plaintiff Penobscot Nation (ECF No. 121/128-1). As explained herein, the Court GRANTS IN PART AND DENIES IN PART each Motion. I. LEGAL STANDARD Generally, á party "is entitled to summary judgment if, on the record before the Court, it appears “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248, 106 S.Ct. 2505. A “material, fact” is one that has “the potential to affect the outcome of the suit under the applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.1993) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505) (additional citation omitted). The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the Court must view the record in the light most favorable to the nonmov-ing party and give that party the benefit of all reasonable inferences in its favor. Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004). Once the moving party has made this preliminary showing, the nonmoving party must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (citation and internal punctuation omitted); see also Fed. R.Civ. P. 56(e). “Mere allegations, or conjecture unsupported in the record, are insufficient.” Barros-Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir.2011) (quoting Rivera-Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37 (1st Cir.1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir.2011) (“A properly supported summary judgment motion cannot be defeated by conelusory allegations, improbable inferences, periphrastic circumlocutions, or rank speculation.” (citations omitted)). “As to any es-' sential factual element of its claim on which the nonmovant -would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue-warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir.2001) (quoting In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir.1993)). Even when filed simultaneously, “[cjross-motions for summary judgment require the district court to consider each motion separately, drawing all inferences in favor of each nonmoving party in turn. AJC Int’l, Inc. v. Triple-S Propiedad, 790 F.3d 1, 3 (1st Cir.2015) (internal quotations and citations omitted). In short, the above-described “standard is not affected by the presence of cross-motions for summary judgment.” Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir.2005) (citation omitted). “[T]he- court must mull each motion separately, drawing inferences against each movant in turn.” Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir.2003) (citation omitted). The Court notes that Local Rule 56 provides a detailed, process by which the parties are to place before the, Court the “material facts .., as to which the moving party contends there is no genuine issue of material fact.” D. Me. Loc. R. 56(b). Local Rule 56 calls for “separate, short, and concise” statements' that may be readily admitted, denied or qualified by the opposing side. D. Me. Loc. R. 56(b)&(c). Additionally, the rule requires each statement to be followed by a “record citation ... to a specific page or paragraph of identified record material supporting the assertion.” D. Me. Loc. R. 56(f). “The court may disregard any statement of-fact not supported by a specific citation to- record material properly considered on summary judgment. The court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties’ separate statement of facts.” Id.; see also Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion[,]”). In this Order, the Court has endeavored to construct the facts in accordance with the letter and spirit of Local Rule 56. Doing so has required the Court to yeview 479 separately numbered paragraphs, many of which were compound, complex, and supported with citation to voluminous records. Additionally, many of the numbered paragraphs were immaterial and/or obviously disputed in the context of this litigation. In short, in multiple instances, each of the movants has failed to comply with the letter and spirit of Local Rule 56, making .construction of the undisputed material facts unnecessarily difficult. However, the parties have maintained — even, after the briefing was complete — that this matter is amenable to resolution on the record submitted. (See 10/14/15 Transcript (ECF No. 156) at 5.) The Court concurs in that assessment. II. BACKGROUND On August 20, 2012, Plaintiff Penobscot Nation, which is a federally recognized American Indian tribe in Maine, filéd'this action seeking to resolve ongoing disputes between the tribe and the State of Maine regarding a section of the Penobscot River. This Court allowed the United States to intervene as a plaintiff on its own behalf and as a trustee for the Penobscot Nation. (See generally United States’ Complaint (ECF No. 58).) The named State Defendants in this matter are: Janet T. Mills, the current Attorney General for the State of Maine; Chandler Woodcock, the Commissioner of the Maine Department of Inland Fisheries and Wildlife (“DIFW”); and Joel T. Wilkinson, Colonel of the Maine Warden Service. Additionally, the United States’ Complaint directly names the State of Maine as a State Defendant. The Penobscot .Nation asserts that it was prompted to file this case in response to the August 8, 2012 Opinion issued by then-Maine Attorney General William J. Schneider regarding “the respective regulatory jurisdiction of the ... Penobscot Nation and the State of Maine relating to hunting and fishing on the main stem of the Penobscot River.” (8/8/12 Ltr. from Atty. Gen. Schneider to Comm. Woodcock & Col. Wilkinson (ECF No. 8-2).) In relevant part, this Opinion concluded: [T]he Penobscot Nation has authority to regulate hunting and fishing on those islands [in the main stem] included in its Reservation from Indian Island in Old Town, northward to the confluence of the East and West branches in Medway. Like private landowners, the Penobscot Nation may also restrict access to their lands, here islands, as it sees fit. However, the River itself is not part of the Penobscot Nation’s Reservation, and therefore is not subject to its regulatory authority or proprietary control. The Pe-nobscot River is held in trust by'the State for all Maine citizens, and State law, including 'statutes and regulations governing hunting, are fully applicable there. 30 M.R.S. § 6204. Accordingly, members of the public engaged in hunting, Ashing or other recreational activities on the waters of the Penobscot River aré subject to Maine' law as they would be elsewhere in the State, and are not subject to any additional restrictions from the Penobscot Nation. To avoid friction on the Penobscot Riyer, it is important that state, and tribal officials, as well as members of the Penobscot Nation and the general public, have a clear understanding of the regulatory jurisdictions of the Penobscot Nation and the State of Maine. Both the State and the Penobscot Nation must encourage citizens to respond civilly to uniformed tribal and state game wardens performing their official duties. All citizens must heed and comply with ordinances promulgated by the Penobscot Nation governing the islands it owns, as well as State laws and regulations covering the River. Id. The Penobscot Nation and the United States (together, “Plaintiffs”) maintain that this' 2012 Attorney General Opinion reflects a misinterpretation of the law governing the boundaries of their, reservation and their rights to engage in' sustenance fishing.'Thus, Plaintiffs seek a declaratory judgment clarifying both those boundaries and tribal fishing rights within the Penob-scot River. In responding to Plaintiffs’ multi-part requests for declaratory relief, State Defendants have asserted their own claim for declaratory relief regarding these sámé issues." (See State Defs. Amended Answer (ECF No. 59) at 11-14 & State Defs. Mot. for Summ. J. (ECF No. 117) at I, 30-31 n. 36.) For purposes of this litigation, the parties agree that the “Main Stem” is a portion of the Penobscot River and stretches from,Indian Island north to the confluence of the East and West Branches of the Penobscot River. (Stipulations (ECF No. III) ¶¶ 3 ,& 4.) At present, the.Main Stem is a non-tidal, navigable stretch, of river that is approximately sixty miles long. (Id. & Penobscot Chem. Fibre Co., 30 F.P.C. 1465, 1466 (1963).) There are at least 146 islands located in the Main Stem. (Jt. Ex. 568 (ECF No. 108-68) at PageID # 5522; J. Banks. Decl. (ECF No., 140-1) ¶4.) These islands total between 4446 and 5000 acres. -(Jt. Ex. 593 (ECF No. 108-93) at PageID # 5631; Jt. Ex. 568 (ECF No. 108-68) at PageID’ # 5522.) None' of those islands contains a body of water in which fish live. (Barry Dana Decl. (ECF No 124-2) ¶ -12.) Within the Main Stem, there are stretches of river that contain no islands. (See, e.g., Jt. Exs. 301, 304, 309 & 310.) All told, the Main Stem.islands, together with the bank-to-bank water surface of the Main Stem, cover approximately 43,760 acres. (State Defs. Ex. 8 (ECF No. 118-8) at PageID # 7090.) Before wading into the depths of the factual record the parties have placed4be-fore the Court, the Court first reviews the history of the key treaties and legislation that led to the present relationship between the State of Maine and the Penob-scot Nation concerning the Main, .Stem.' A. Legislative Background of Penob-scot Nation Land in Maine In 1790, when Maine was still part of the Commonwealth of Massachusetts, Congress passed the Indian Nonintercourse Act (“ITIA”), 1 Stat. 137, which provided that “no sale of lands made by any Indians, or nation or tribe , of Indians within the United States, shall be valid to any person or persons, or to any state, whether having the right of preemption to such lands or not, unless the same shall.- be made and duly executed at some public treaty, held under the' authority of' the United States.” 1 Stat. 138. 1. The 1796 and 1818 Treaties Notwithstanding 'the language of ITIA, Massachusetts proceeded to negotiate two treaties with the Penobscot Nation,-that are relevant to the present case. The first treaty was negotiated in 1796 (the “1796 Treaty”). The subject of the 1796 Treaty was a six mile wide strip of land on each side of the Penobscot River stretching for thirty miles of the Main Stem. (Jt. Ex. 294 at PagelD # 3858-59 (Transcription of 1796 Treaty).) After the execution of the 1796 Treaty,- Massachusetts directed that the subject lañd be surveyed and laid out into townships and quarter townships, as follows: Whereas this Commonwealth in August one thousand, seven hundred and ninety six, obtained of the Penobscot tribe of Indians their relinquishment of their claims to the lands six miles wide on each side of Penobscot River, extending from Nicholas Rock, so called, near the head of the tide in the said river, up the same river thirty miles, on a direct line, according to the general course thereof: and whereas .'.. it is necessary to have a survey of said land, and information of the quality and situation there Resolved that Salem Town Esqr. be vested with full powér to have all the said Lands surveyed and laid out into Townships as near the contents of six miles square as the land will admit, and also into quarters of Townships as soon "as may be, according to his discretion, & a plan thereof returned to him with a true description of the quantity and situation of each Township, and quarter parts thereof, as also of the streams and waters therein and of the number of Settlers thereon, who may have settled prior to the. first day of August one thousand, seven hundred and ninety six, with the number of acres each' Settler has under improvement, and the’particular time of-his settlement. (P.D. Ex. 1 at 202-203.) Park Holland, John Maynard; and John Chamberlain were engaged by Salem Town to survey the Penobscot tract and created a map reflecting their survey. (Jt. Ex. (ECF No. 110-32) at Page ID # 6384.) The tract surveyed by Holland, Maynard, and Chamberlain, comprised of 189,426 acres, became known as the Old Indian Purchase. (P.D. Ex. 21 at 209; Jt. Ex. 732 (Map 1).) After accounting for land sold, in 1817, Massachusetts asserted it was “still the proprietor of 161,815 acres of land in the Old Indian Purchase.” (State Defs. Ex. 15 (ECF No. 118-15) at PagelD # 7168.) On June 29, 1818, Massachusetts entered into another treaty with the Penob-scot Nation. In this “1818 Treaty,” the Penobscot Nation ceded “all the lands [the Penobscot Nation possesses] on both sides of the Penobscot river, and the branches thereof, above the tract of thirty miles in length on both sides of said river, which said tribe [ceded in the 1796 Treaty]” but reserved .four townships as well as “all the islands in the Penobscot river above Old-town, and including said Oldtown island.” (P.D. Exs. 7 & 8 (1818 Treaty & Transcription of 1818 Treaty) at 45-46.) The 1818 Treaty also explicitly granted to the citizens of the Commonwealth of Massachusetts •& right to “pass and repass” in any river, stream or pond that “runs through any of the lands hereby reserved [for the Penobscot Nation] for the purpose of transporting timber and other articles.” (P.D. Ex. 8 at 46.) When Maine became a state in 1820, the unsold public lands in Maine that were obtained under the treaties of 1796 and 1818 were 'divided between Maine and Massachusetts by Commissioners appointed for that purpose; this division included townships or unsold acreage located along the Penobscot River. (Jt. Ex. 667 (ECF No. 109-67) at PagelD #s 5944-48, 5956; see also Jt. Ex..732 (Map 2).) The December 28, 1822 report 'by the Commissioners assigns lands to each state. (Id. at PagelD # 5943, 5945-46, 5947.)) From the Old Indian Purchase, the following unsold lands were assigned to Maine: Townships No. 1, 2, and 4, east of the Penobscot River, which townships later became Pas-sadumkeag, Greenbüsh, and Bradley, respectively. (Id. at PagelD # 5947-5948; Jt. Ex. 757 (ECF No. 110-57) at-PagelD # 6587 (map dated 1829).) Thereafter, a deed dated June 10, 1833 documents a sale of the Penobscot Nation’s four reserved townships from the 1818 Treaty to the State of Maine (the “1833 Deed”): ■ . ■ ■ Know all men by these- present that, we the Governor, Councillors and principal head men of the Penobscot Tribe of Indians in council assembled -after mature deliberation and upon full consideration of a proposition made to,us in behalf of said Tribe, by the State of Maine ... do cede grant, bargain, sell and convey to said State, all th'd'right, title and interest of said Tribe in arid to their four townships of land lyirig north of the mouth of Piscataquis River .... To have and to hold to said State the above granted prémises, with all the privileges and appurtenánces thereto belonging forever. :i * And we do covenant with said State that wé are authorized by the Laws and usage of said Tribe to convey as aforesaid and- that we for ourselves and in behalf of said Tribe will forever warrant and defend the premises against-the claims of all the mémbers of said Tribe. (PD Ex. 131 at 592.) The sale price was $50,000. (Id.) ' 2. United States v. Maine: The Land Claims Litigation In the 1970s, the Penobscot Nation claimed that Maine and Massachusetts had failed to have the 1796 and 1818 Treaties and the, 1833 Deed confirmed by Congress in accordance with ITIA. The Penobscot Nation claimed that it consequently retained title to all of these -lands. See, e.g., Maine v. Johnson, 498 F.3d 37, 41 (1st Cir.2007) (citing Bottomly v. Passama-quoddy Tribe, 599 F.2d 1061, 1065 (1st Cir:1979)); see also Passamaquoddy. Tribe v. Maine, 75 F.3d 784, 787 (1st Cir.1996) (explaining that the -tribes then pursued claims to “nearly two-thirds of Maine’s land mass”). The land claims of the Penob-scot Nation were ultimately pressed by the United States in a 1972 case titled United States v. Maine, D. Me. Civil No. 1969-ND (P.D. Ex. 223 (Complaint)). Other Maine Indian tribes asserted similar claims involving similar land transactions that had occurred since 1790. Settlement discussions in these cases began in March 1977 and were concluded with a stipulation of dismissal in August 1981. (See, e.g., P.D. Ex. 282 at 5941 (describing history of settlement discussions) & P.D. Ex. 233 at 3241-47 (stipulation of dismissal.) The tribes were represented at these negotiations in part by a committee of tribal representatives, including Rueben Phillips, Andrew Akins, James Sappier, and Timothy Love on behalf of the Penob-scot Nation. (Phillips Decl. (ECF No. 124) ¶¶ 7-9.) The proposed settlement was presented to the members of the Penobscot Nation in early March 1980. (Phillips Deck ¶¶ 12-17.) A tribal referendum vote-on March 15, 1980 resulted in 320 votes, in favor of the settlement and 128 opposed. (See P.D. Ex. 260 at 3940-42.) . . As part of the Stipulation of Dismissal in United States v. Maine, on April 17, 1981, the Penobscot Nation Tribal Council authorized then-Governor Timothy Love to execute a Release and Relinquishment. (Jt. Ex. 612 (ECF No 109-12) at. PagelD # 5742.) In, accordance with this authorization, on. April 21, 1981, Governor Timothy Love authorized the United States to stipulate to the final dismissal with prejudice of the claims the United States had brought on behalf of the Penobscot Nation and also explicitly released and relinquished the Penobscot Nation’s claims to the extent provided in the related acts passed by Congress and the Maine Legislature. (Jt. Ex. 612 (ECF No 109-12) at PagelD # 5743.) This Release and Relinquishment was reviewed by the Department of Justice. (Jt. Ex. 612 (ECF No. 109-12) at PagelD # 5736.) 3. The Passage of the Settlement Acts Ultimately, the stipulation of dismissal in United States v. Maine (P.D. Ex. 233) was the culmination of the passage of two pieces of legislation: the Maine Implementing Act, 30 M.R.S.A., §§ 6201-6214 (“MIA”), and the Maine Indian Claims Settlement Act,. 25 U.S.C. §§ 1721-1735 (“MICSA”). Throughout this Order, the Court will refer to MICSA and MIA collectively as “the Settlement Acts.” While the Settlement Acts operate in tandem, each act has its own legislative history, and the parties have drawn extensively from those legislative histories in constructing the factual record now before the Court. a. MIA: 30 M.R.S.A. §§ 6201-6214 Working on the premise that this particular legislative action needed to occur "as soon as possible,” L.D. 2037, the negotiated proposal that was thereafter enacted as MIA was presented to the Maine Legislature. in mid-March -1980. (Hull Deck (ECF No. 119-32) ¶ 7.) On March 28, 1980, the Maine-Legislature’s Joint Select Committee on Indian Land Claims held a public hearing on L.D. 2037, (See P.D. Ex. 258 at 3738.) In his opening remarks at the hearing, Attorney General Cohen described “the Settlement Proposal” and his; reasons for recommending “this.Settlement to the people of the State of Maine.” (P.D. Ex. 258 at 3740.) While acknowledging that “DOt would be an overstatement to say that there would be no difference between Indians’ Lands and non-Indians’ Lands” under terms of L.D. 2037, he described the proposed legislation as “generally consistent with [hjs] belief that all people in the State should be subject to the same laws. While there are some exceptions which recognize historical Indian concerns, in all instances the State’s essential interest is protected.” (Id. at 3744-45.) ■ Thomas Tureen, appearing at the hearing as counsel on behalf of the Penobscot Nation and the Passamaquoddy Tribe, explained that the negotiations that led to the current proposal occurred only because “feelings of mistrust began to breakdown and a spirit .of reconciliation made itself felt.” (Id. at *3768.) Tureen flagged the exercise of “tribal powers in certain areas of particular cultural importance such as hunting and fishing” as an issue that had been important for the State to understand. (Id.) Mr. Aikens, Chair of the Pas-samaquoddy-Penobscot Land Claims Committee, also spoke and indicated that part of the negotiation with the State had been “that neither side would make any changes or amendment' to the package. We have not and we expect, the same in return from the Maine Senate or House.” (Id. at 3765-66.) The Committee heard concerns about the hunting and fishing pro-visions of the proposed settlement. By . way of example, Joe Floyd, a Public Member of the. Atlantic Seamen’s Salmon Commission, expressed concern that “critical parts of the Penobscot River” would “fall within the confines of the Settlement,” which he said “could spell danger to the salmon.”-(Id. at 3855-56.) In response to expressed. concerns about the sustenance fishing rights contemplated under L.D. 2037, Deputy Attorney General Patterson explained: Currently under Maine Law, the Indians can hunt and fish on their existing reservation for their own sustenance without regulation of the State. That’s a right which the State gave to the Maine Indians on their reservations a number of years ago and the contemplation of this draft was to keep in place that same kind of right and provide that the Indians could' continue to sustenance hunt and fish and that that would provide a legitimate basis for distinction between Indian and non-Indian hunting and fishing. (Id. at 3793-94.) In response to later questions, Deputy Attorney General Patterson similarly explained: ■ - [T]he State currently lets' Indians and the Legislature currently lets Indians engage and regulate their own hunting and fishing on their on reservations. That’s a current state law. That’s in Title 12, § 7076. That was a right which the State gave to the Indians on their reservations some years ago. So in large measure, the policy embodied here was long ago recognized by the Legislature of the State. That’s why the right to sustenance hunt and fish on reservations which is found in Sub-§ 4 on Page 9, is not such a major departure from current policy. (Id. at 3894.) Following this hearing, additional memo-randa were drafted and distributed suggesting clarifications that might be made to L.D. 2037. The March 31,1980 Preliminary Bill Analysis by John Hull, who was then working as a staff attorney for the Maine Legislature, noted, in relevant part, that the definition of the Penobscot Indian Reservation in L.D. 2037 “is unclear” with respect to whether “the boundaries ¿xtend to high or low water mark on tidal waters, or beyond that on marine waters.” (P.D. Ex. 262 at 3945.) A memo from then-Attorney General Richard S. Cohen, dated April 1,1980, was provided to the Joint Select Committee on Indian Land Claims. It included a section, titled “Boundaries of the Reservation and Territory,” that read in relevant part: The external boundaries of the Reservations are limited to those areas described in the bill including any riparian or littoral rights expressly reserved by the original treaties with Massachusetts or which are included by the operation of law.... ____ In any event the Tribes will not own the bed of any Great Pond or any waters of a Great Pond or river or stream, all of which are owned by the State in trust for all citizens. Jurisdiction of the Tribes (i.e, ordinance powers, law enforcement) will be coextensive and coterminous with land ownership. (P.D. Ex. 263 at 3965-66.) The first portion of this section of the memo became part of the April 2,1980 Report of the Joint Select Committee on Indian Land Claims Relating to L.D. 2037, “An Act to Provide for Implementation of the Settlement of Claims by Indians in the State of Maine and to create the Passamaquoddy Indian Territory and Penobscot Indian Territory,” with minimal changes: The boundaries of the Reservations are limited to those areas described in the bill, but include any riparian or littoral rights expressly reserved by the original treaties with Massachusetts or by operation of State law. (P.D. Ex. 264 at 3971 (changes noted by added emphasis).) This was one of fourteen specific interpretations that the Joint Select Committee on Indian Land Claims announced as part of its understanding of MIA at the time of its passage. (See P.D. Ex. 272 at 4023 (Representative Post explaining that “as we vote on this particular piece of legislation, we accept the understanding that is reflected” in the 4/2/1980 Joint Committee Report).) Upon introducing' L.D. 2037 to the Maine Senate on April 2, Í980, Senator Samuel Collins acknowledged some technical amendments had been made at the committee level but stated that “[t]he amending procéss is not open to the Legislature in the manner of our usual legislation, bfecause this is the settlement of a law suit [sic]. Just as with a negotiated labor contract we cannot make the changes.” (P.D. Ex. 271 at 4016.) He explained that, if enacted, the bill would be “a unique document” that would not “take effect unless Congress adopts it and finances it” and could not be readily amended once ratified by Congress. (Id.) He further stated, however, “It is the expectation of the committee ... that at the time of enactment, we will have before you a further report of the 'committee in which we express some of our understandings of various words and provisions of this very complicated document, so that you may have them as a pa!rt of the legislative history of the act. No act of this complexity will be free from question marks. There will be interpretations necessary through the years just as there are interpretations necessary of all the statutes that we pass.” (P.D. Ex. 271 at 4016;) Senator Collins also noted that L.D. 2037 “[w]ill be extending some- hunting, fishing and trapping rights to about 800 Indian people in 300,000 acres.” (Id.) Ultimately, on April' 2, 1980, the 'Maine Senate voted to approve L.D. 2037. (P.D. Ex. 271 at 4020.) On April 3, 198Ó, the Maine House voted to approve it. (P.D. Ex. 272 at 4025.) Thereafter, it was sighed by Governor Brennan. On April 3, 1980, the Maine House of Representatives passed an order (H.P. 2055) to place documents in the Legislative Files, as did the Maine Senate (the “Legislative Files Order”). (P.D. Ex. 274 at 4031.) The Legislative Files Order directed that the following documents “be placéd in the Legislative files”: (1) “The report of the Joint Select Committee on Indian Land Claims,” which included a memorandum to the Committee from Attorney General Richard S. Cohen, dated April 2, 1980 (“Report of Maine’s Joint Committee”); and (2) “The transcript of the hearing of the Joint Select Cofhmit-tee on Indian Land Claim's, including the statement of the Honorable James B. Longley and the memorandum to the committee from Maine Attorney General Richard S. Cohen, dated March 28, 1980.” (Id.) In a declaration dated June 16, 2014, Michael Pearson, a member of the Maine Legislature and the Joint. Select Committee in 1980, stated that he believes the sustenance fishing provisions of. MIA were “intended to allow members of the Penob-scot Nation to take fish-for their sustenance from the Penobscot River in waters from Indian Island, near Old Town, at least as- -far up the River to Medway, where members of the Tribe had always taken fish for their subsistence” and were “not intended to confine' members of the Penobscot Nation to seek out fish for their sustenance on the surfaces of the islands or within restricted zones of the River next to the-islands.” (Pearson Deck (EOF No. 119-37) at PagelD # 7363.) Likewise, Bennett Katz, then-Chair of the Maine Indian Tribal-State Commission, which was- created by MIA, and previously a member of the Maine Senate at the time of MIA’s passage, stated in a 1995 letter to the Federal Energy Regulatory Commission that he could not imagine that his colleagues intended MIA to be interpreted to mean that “[t]he sustenance fishing right granted to the Penobscot Nation is hot on the Penobscot River” and' that “[o]nly the islands and none of the waters in the Pe-nobscot River' constitute the Penobscot Reservation.” (Jt. Ex. 161 (ECF No. 104-61) at PagelD # 2200.) Katz went on to state that he was “certain the Penobscots never would have agreed to the Settlement had it been understood that their fishing right- extended only to the tops of their islands” and that it would have “been assumed that the right [to sustenance fish] would be exercised in the waters of the Penobscot River”'because any other interpretation would-'not “make sense.” (Id.) b. MICSA: 25 U.S.C. §§ 1721-1735 With the State’s enactment of MIA, attention shifted to Congress. The Senate Select Committee on Indian Affairs held hearings on July 1 and 2, 1980 (P.D. Ex. 278), hearing testimony from tribal members and non-tribal Maine residents as well as state officials. A map that was presented to Congress during the sessions on ratifying MIA showed the Passama-quoddy- and Penobscot Reservations as shaded in red. (Sproul Decl. (ECF No. 141-2) at PagelD # 8185- (referencing Jt. Ex. 732 (ECF No. 110-32) Map 30).) On this map, “river and lakes, adjacent to settlement lands” are shaded white. (Jt. Ex. 732 (ECF No.. 110-32) Map 30.) At the Senate Committee hearing, the Committee requested that Maine’s Governor and other state officials provide written responses to certain questions, including whether MIA and the proposed federal statute contain “jurisdictional language [that] bestow[s] preferential treatment upon the tribes.” In his August 12, 1980 “joint response” letter, Attorney General Cohen responded to that question as.follows: Under [MIA], the Penobscot Nation and Passamaquoddy Tribe are given certain rights and authority within the 300,000 acres of “Indian Territory.” To the extent that these rights and authority exceed that given any Maine municipality, they do so only to a limited extent and in recognition of traditional Indian activities .... The most significant aspect of this limited expansion of authority is in the area of hunting and trapping and, to a limited extent, fishing in Indian Territory. Even in this area, .the Indian Tribes must treat Indians and non-Iñdi-ans alike, except for subsistence provisions, and Tribal authority can be overridden by the State if it begins to affect ,i hunting, trapping or fishing outside the Indian Territory. Generally the Act does not provide Indians with preferential treatment. To the contrary, we believe the Implementing Act, establishes a measure of equality between Indian and non-Indian citizens normally not existing in other States. Indeed, the Act recovers back for the State almost all of the jurisdiction that had been lost as a result of recent Court decisions. Obviously no one can guarantee that there will be no litigation in the future over the meaning of certain provisions in the Maine Implementing Act or S.2829. However, the provisions of S. 2829 and the Implementing Act have been carefully drafted and reviewed to eliminate insofar as possible. „any future legal disputes. Particular care was taken to insure that S. 2829 is , adequate to finally extinguish the land claims, and as to those provisions we are satisfied that they have been drafted as carefully as possible. Nevertheless, litigation’ over this and other provisions is always possible and we cannot prevent the filing of future suits. Any contract, agreement or legislation always contains unanticipated ambiguities that sometimes can only be resolved through the courts. In our judgment, however, should questions arise in the future over the legal status of Indians and Indian lands in Maine, those questions can be answered in the context of the Maine Implementing Act and S. 2829 rather than using general principles of Indian’law. (P.D. Ex. 278 at 4436-4437.); In the final House and S.enate committee reports (“Committee Reports”) on the federal ■ act ratifying the terms of MIA, Congress confirmed in its “Summary of Major Provisions” that “the settlement ... provides that the ... Penobscot Nation will retain as reservations those lands and naturabresources which were reserved to them in their treaties with Massachusetts and not subsequently transferred.” (P.D. Ex. 282 .at 5946; P.D. Ex. 283 at-6008.) Congress also addressed as “Special Issues” concerns raised in testimony and written materials to the House and Senate Committees, all of which the committees said were “unfounded.” (P.D. Ex. 282 at 5942; P.D. Ex. 283 at 6004.) In response to the concern “[t]hat the settlement amounts to a ‘destruction of the sovereign rights and jurisdiction of the ... Penobscot Nation,” the Committee Reports stated, in identical language, that the settlement “protects the sovereignty of ... the Pe-nobscot Nation” and that “hunting and fishing provisions discussed in paragraph 7” of the “Special Issues” were “examples of expressly retained sovereign activities.” (P.D. Ex. 282 at 5942-43; P.D. Ex. 283 at 6004-05.) The Committee Reports then indicate in paragraph 7: “Prior to the settlement, Maine law recognized ... the Pe-nobscot Nation’s right to control Indian subsistence hunting and fishing within‘[its] reservation[ ], but the State of Maine claimed the right to alter or terminate these rights at any time.” (P.D. Ex. 282 at 5944-45; P.D. Ex. 283 at 6006-07.) In identical language, each report continued, “Under Title 30, Sec. 6207 as established by the Maine Implementing Act ... the Pe-nobscot Nation [has] the permanent right to control hunting and' fishing ... within [its] reservation. The power of the State of Maine to alter such rights without the consent of the [Tribe] is ended.... The Statehas only a residual right to prevent the [Tribe] from exercising [its] hunting and fishing rights in a manner which has a substantially adverse effect on stocks in or on adjacent lands or waters ... not unlike that which other states have been found to have, in connection with federal Indian treaty. hunting and fishing, rights.”. (P.D. Ex. 282 at 5944-45; P.D. Ex. 283 at 6006-07.) ... ... With the passage of MICSA, Congress approved and ratified all earlier transfers of land and natural resources by or on behalf of the Penobscot Nation. See 25 U.S.C. § 1723. This ratification by its express terms included not' 6nly “any voluntary or involuntary sale, grant, lease, allotment, partition, or other conveyance,” but also “any act, event, or circumstance that resulted in a change in title to, possession of, dominion over, or control of land or natural resources.” 17' U.S.C. § 1722(n). Before the end of 1980,' the Settlement Acts were in effect. • B. Post-Settlement Acts: The State and the Penobscot Nation Chart a New Course “The slate is effectively wiped clean,” stated Penobscot Nation counsel Thomas Tureen after Maine’s passage of MIA. (Jt. Ex. 580 (ECF No. 108-80) at PagelD # 5563.) Likewise, the Native American Rights Fund, whose lawyers represented the Penobscot Nation in the land claims case, celebrated the 1980 Acts by declaring: “The Maine settlement is far and away the greatest Indian victory of its kind in the history of the United States.” (Jt. Ex. 582 (E.CF No. 108-82) at PagelD # 5566.)- On January 9, 1981, the Department of the Interior (the “DOI”) published a notice in the Federal Register announcing the “extinguishment of all land and related claims of the Maine Indians” and, in relevant part, stating that MICSA “extinguishes any claims of aboriginal title of the Maine Indians anywhere in the United States and bars all claims based on such title. This section also extinguishes any land claims in the State of Maine arising under federal .law by any Indian tribe ....” (P.D. Ex. 288 at 6063 (46 Fed. Reg. 2390 (Dep’t of Interior Jan. 9,1981)).) Since 1980, the Penobscot Nation has posted signs on certain islands in the Main Stem. (State Defs. Ex. 8 (ECF No. 118-8) at PagelD # 7083.) Specifically, since at least 1983, the Penobscot Nation has posted signs on some (but not all) of the islands in the Main Stem that state: “PE-NOBSCOT INDIAN RESERVATION. ' NO TRESPASSING WITHOUT PERMISSION. VIOLATORS- WILL BE PROSECUTED.” (State Defs. Ex. 8 at PagelD # 7083-84.) Similar postings do not appear at the public boat launches or on the banks.of the Main Stem, nor have such postings appeared in the past at these locations. (Id. at PagelD # 7084.) Notably, non-tribal hunters and trappers generally access the Main Stem from these river banks, especially the public boat launches. (Id. at PagelD # 7084-85 & Ring Aff. (ECF No 52-3).) The Penobscot Nation has, posted a three-panel informational kiosk at the Cos-tigan Boat-Launch in Milford, which was funded by the DOI. (Id. at PagelD # 7083; Jt. Ex. 705 (ECF No. 110-5) at PagelD #, 6156.) With respect to permits, the, panel states: “To- obtain fiddleheads or duck hunting permits for the islands, for information regarding other allowable uses of the reservation or to report water quality problems, contact the Penobscot Nation Department of Natural Resources at 12 WabanakrWay, Indian- Island, Old Town, Me. 04468* or call (207) 827-7776.” (Jt. Ex. 705 (ECF No. 110-5) at PagelD # 6156.) Likewise, the Penobscot Nation’s woodland territory beyond the Main Stem contains postings. (State' Defs. Ex. 8 at Pa-gelD # 7084.) Generally, these posting signs read: “NOTICE Penobscot Nation Indian Territory Hunting, trapping, and other taking of wildlife under exclusive authority of the Penobscot Nation. Special restrictions may apply. Violators will be prosecuted. PERMIT MAY BE REQUIRED Contact: Wildlife & Parks Community Bldg. Indian Is., Me. 04465 i-207-827-777.” (State Defs. Ex. 8. .at PagelD # 7084; Georgia Deck Ex. E (ECF No. 118-4) -at PagelD # 7037.) These postings are not visible from the Main Stem, nor do the signs notify the public that the Penob-scot Nation regulates activities on the Main Stem. (State Defs. Ex. 8 at PagelD # 7084.) Since the passage of the Settlement Acts, the Penobscot Nation does not and has not required non-tribal members to purchase “access permits” in order to be on the waters of the Main Stem for navigating, fishing, or sampling. (Banks Deck (ECF No. 140-1) ¶5; Kirk Loring Deck (ECF No. 140-21) ¶ 12 .(regarding 1976-2001 when Loring was Chief Game Warden for tribe).) However, the Penobscot Nation Warden Service has patrolled the Main Stem when it is not icebound, as it has done since it began operating its own warden service in 1976. (Kirk Loring Aff. (ECF No. 119-12) ¶¶8 & 9; Gould Decl. (ECF No. 140-2) If 5.) The Penobscot Nation Warden Service historically has employed approximately four wardens who havé patrolled in the Main Stem.' (Kirk Loring Aff. (ECF No. 119-12) ¶4.) Under various Maine state' laws, Peiiobsco't Nation wardens are cross-deputized to enforce state laws within Penobscot* Indian territory and have been granted the powers of'a game warden outside said territory. See, e.g., 12 M.R.S.A,-§ 10401. During the early years following the passage of the Settlement Acts, the game wardens for Penobscot Nation and Maine occasionally collaborated on patrols and enforcement ■ actions in the Main Stem. (See, e.g., Dunham Decl. (ECF No., 118-2) ¶2; Georgia Decl. (ECF NO. 118-4) ¶¶ 5, 6-8; Georgia Decl. (ECF NO.-148-2) ¶¶4,12; Wilkinson Aff. (ECF No. 118-6) at PagelD # 7052; see also Jt. Exs. 85-87 (ECF Nos, 103-35-103-37) at PagelD # 1697-1700 (documenting game warden collaboration on the summonsing of Kirk Francis).) More recently, the Main Stem patrol and enforcement actions by the wardens employed by the Penobscot Nation and ,the State have become contentious. (See, e.g., Wilkinson Aff. (ECF No. 118-6) at ^agelD # 7052-53.) In a May 2005 memo from DIFW, Dunham expressed his concerns that no.n-tribal trappers were being,, advised by tribal game wardens that their trapping activities violated tribal law and that the Penobscot Nation “claimed” the River “bank-to-barik.” (See, e.g., Dunham Decl. (ECF No. 118-2) at PagelD # 3310.) Dunham complained about the lack of clarity regarding the boundaries of the reservation lands but asserted that “[t]he rule of thumb has always been the halfway point between the island and the mainland” but “[t]he water belongs, to the State.” (Id.) The record contains dueling declarations regarding a November 12, 2011 interaction between Penobscot Nation Game Warden Richard Adams and a four-person duck hunting party. Jennifer Davis Dykstra was a member of the duck hunting party that was hunting from a boat on the Main Stem. As the party approached the Costi-gan boat landing, Penobscot Nation game warden Richard Adams approached the party and asked to see their hunting permits. The group did not have any permits from the Penobscot Nation and Adams indicated that they would need a Penob-scot hunting permit- to hunt in the Main Stem, even if that hunting was only done from a boat located in the waters of the Main Stem. (See Dykstra Aff. (ECF No. 52-2) ¶¶ 4-8; Gould Decl. ¶¶ 11-14; Adams Decl. ¶¶4-14.) C. The History of Fish and Fishing in the Main Stem In an affidavit dated January 8, 1822, Joseph .Butterfield attested that he had lived in “Oldtown” since 1803, and: that the fish either Sabnon[,] Shad or Alewives were abundantly plenty in the Penobscot River until about 1813. Since which time they have been-rapidly decreasing every season so that by this time there is scarce any to be taken in the season of the year when they are most plenty which has led me. to believe that they have- been unreasonably ■ destroyed and in endeavoring to find out the cause I am led to believe- that, it is owing to the vast number of destructive Machines used in the tide waters and other places that has produced this evil, particularly the Wears .•... [It] is now a fact that at Oldtown falls where I reside used to be considered one of the greatest places for taking fish on the river where the Penobscot Indians procured at least half of their living annually. That now they cannot take a sufficient quantity for their families to eat even in the best part of the season and many of the white people used to take - plentfy] for their own use cannot git any by any means whatever. (Jt. Ex. 560 (ECF No. 108-60) at Page ID #s 5493-94,) As this affidavit establishes, there is a long history of fishing in the Main Stem, including' commercial, recreational, and sustenance fishing. The factual record in this case explicitly discusses fishing of two particular species, Atlantic salmon and eels. The Court addresses each of these fisheries and then turns to a discussion of sustenance fishing by members of the Penobscot Nation. 1. Atlantic Salmon The commercial salmon catch in the Pe-nobscot River decreased from the 1850s through 1947, the last year commercial fishing was permitted in the river, as follows: ., - ; a. In the 1850s, the annual commercial salmon catch was approximately 25,000; b. In 1875, the annual commercial salmon catch was approximately 15,000; ■ c. From 1873 to 1900, the annual commercial salmon catch was approximately 12,000; d. In 1910, the annual commercial salmon catch was approximately 2,500; and eJIn 1947, the annual commercial salmon catch was 40, all by rod. (Jt. Ex. 694 (ECF' No. 109-94) at PagelD # 6034.) Even with commercial salmon fishing prohibited since 1947, for the decade between 1957 and 1967, no Atlantic salmon were reportedly caught in the Pe-nobscot River. (Id.) By 1967, the quantity of shad, alewives, striped bass, and smelt in the Penobscot River was also severely reduced. (Id.) A-1980 DIFW interdepartmental memo noted that Maine then allowed very limited noncommercial fishing of Atlantic salmon and expressed concern about the impact of “the proposed settlement” of the Indian .claims, in that the settlement would involve acreage of watershed that could be subject to’“[i]ncreased exploitation and capricious regulation” that would “negate” the gains made in increasing the “[u]seable Atlantic salmon habitat in Maine” and restoring anadromous fish stocks. (Jt. Ex. 601 (ECF No. 109-1) at PagelD # 5681.) Following the passage of the Settlement Acts, the Penobscot Nation acknowledged the need to limit harvest of Atlantic salmon as well-as work towards long-term restoration of Atlantic salmon in the Penobscot River. Since 1980, the Pe-nobscot Nation has issued sustenance, permits for the taking of Atlantic salmon by gill net on two occasions. . (See Jt. Exs. 209 (ECF No. 105-9), 237 (ECF No. 105*37) & 239 (ECF Nos. 105-39).) In 1983, the Penobscot Nation informed various state authorities that it had promulgated its own regulations for sustenance fishing of Atlantic salmon in the Penobscot River. (See'Jt. Ex. 63 (ECF No. 103-33) at PagelD #s 1558-59;.JNEx. 64 (ECF No. 103-14) at PagelD # 1560.) In 1988; the Penobscot Nation proposed' to harvest 10 to 12 Atlantic salmon for ceremonial use. (Jt. Exs. 75 (ECF No. 103-25), 76 (ECF No. 103-26), 77(ECF. No. 403-27) & 81 (ECF No. 103-31),) In response to this proposal, the Atlantic Sea Run Salmon Commission sought clarification from the Maine Attorney General on the Penobscot Nation’s “plan [to take] approximately 20 Atlantic salmon from the Penobscot River by the use of gill nets.” (Jt. Ex. 78 (ECF No. 103-28) at PagelD # 1638.) In a letter dated February 16, 1988, then-Maihe Attorney General Jamés Tierney responded that the Penobscot Nation’s proposed fishing “would not be prohibited” under the express terms of 30 M.R.S.A, § 6207(4), which allows “sustenance fishing” that occurs “within the boundaries of’ the Penob-scot Indian Reservation. (Jt. Ex. 80 (ECF No. 103-30) at PagelD # 1652.) Currently, the Penobscot Nation addresses the sustenance taking of Atlantic salmon in its fish and wildlife laws. (Banks Deck ¶8; P.D. Ex. 222 at 3117-18 (section 303).) 2. Eel Potting Eels are “fish,” as defined by MIA:-a “cold blooded completely aquatic vertebrate animal having permanent fins, gills and an elongated streamlined body usually covered in scales and includes inland fish.” 30 M.R.S.A. § 6207(9). Eel potting generally involves placing a device or “pot” at the bottom of a body of water, usually baited, to capture eels; the device is then marked with a line and a buoy. (Jt. Ex. 130 (ECF No 104-30) at PagelD # 2093.) Both the State and the Penobscot Nation have issued commercial eel potting permits. (See, e.g., Jt. Exs. 214 (ECF No. 105-14), 215 (ECF No. 105-15), 220' (ECF No. 105-20), 227 (ECF No. 105-27), 228 (ECF No. 105-28), 229 (ECF No. 102-29) & 312 (ECF No. 106-12).) In 1994 and 1995, Maine acknowledged that the Penobscot Nation had authority to control access to its lands for purposes of placing eel pots by conditioning state permits with language to the effect: (Jt. Ex. 102 (ECF No. 104-2) at PagelD # 1887; see also Jt. Ex, 109 (ECF No, 104-9) at PagelD # 1977; Jt. Ex. 110 (ECF No. 104-10) at PagelD # 1979; Jt. Ex. Ill (ECF 104-11) at 1981.) Likewise, the Pe-nobscot Nation’s commercial permits for eel potting have provided that State of Maine eel potting regulations “not superseded” also apply. (Jt. Ex. 214 (ECF No. 104-14) at PagelD # 2742; Jt. Ex. 220 (ECF-No. 105-20) at PagelD.# 2807; Jt. Ex. 228 (ECF No. 105-28) at PagelD # 3090; Jt. Ex. 229 (ECF No. 105-29) at PagelD # 3091.) The Penobscot Nation Department of Natural Resources finalized eel trapping permits and catch reports with conditions for non-tribal members and tribal members in 1995. (Jt. Ex. 145 (ECF No. 104-45) at PagelD # 2167; Jt. Exs. 146 (ECF No. 104-46) at PagelD # 2168; Jt. Ex. 221 (ECF No. 105-21) at PagelD # 2808.) In this same time frame, the Penobscot Nation also raised concerns regarding the State’s issuance of eel permits and explained that a tribal member was seeking to begin a commercial eeling venture; the Penobscot Nation sought from the State “a solution that lessens the possibility of confrontation .., on the river.” (Jt. Ex. 138 (ECF No. 104-38) at PagelD # 2149.) On June 5, 1995, a State permit for eel pots was issued to the same tribal member for the Penobscot River from Oldtown to Howland and from West Enfield/Howland to the Mattaceunk Dam. (Jt. Ex. 486 (ECF No.107-93) at PagelD # 5217.) In response to the request of a tribal member in 1995, the .State allocated an exclusive fishing zone, Milford to West Enfield, for eeling by tribal members. (Jt. Ex. 142 (ECF No. 104-42) at PagelD # 2157.) This permit does not give the permittee the right to place fishing gear on private property against the wishes of the property owner. The portions of the Penob-scot River arid submerged lands surrounding the islands in the river are part of the Penobscot Indian Reservation and eel pots should not be placed on these lands without permission from the Penobscot Nation. In March 1996, DIFW sent previously permitted eel potters a memo outlining changes in eel potting regulations for the upcoming season. (Jt.- Ex. 172 (ECF No. 104-72) at PagelD # 2228.) The letter informed eel .potters of the prohibition on taking eels less than-six.inches long, announced that the fee for a state-wide per- ■ mit would be $100 'and enclosed a copy of the new application. (Id. at PagelD # 2242-43.) The new .application continued to include the language that the permit does not give the holder permit permission to place gear within the Penobscot Nation reservation, defined to include “portions of the Penobscot River and submerged lands surrounding the islands in the river.” (Id. at 2244.) Siinilar correspondence was sent to eel weir operators with applicable changes noted, as well as to all divisions within DIFW. (Jt. Ex. 173 (ECF No. 104-73) at PagelD # 2229-48.) DIFW provided the. Penobscot Nation with a list of all eel potters and weir owners in October 1996. (Jt. Ex. 184 (ECF No. 104-84) at PagelD # 2303-05.) 3; Sustenance Fishing In addition to commercial and recreational fishing, members of the Penobscot Nation have also caught many types of fish (including eel and Atlantic salmon) for sustenance, (B. Dana Deck (ECF No. 124-2) ¶ 6; Phillips Deck (ECF No. 124) ¶ 6; C. Francis Deck (ECF No. 124-3) ¶5.) Despite the decrease in catch and concerns about-pollution in the River, members of the Penobscot Nation have routinely engaged in sustenance fishing in the Main Stem, bank-to-bank. (See, e.g., L. Dana Deck (ECF No. 124-1) ¶¶ 6-12'(recounting her memories of tribal members fishing the area of the Main Stem back to the 1940s); B. Dana Deck' (ECF No.' 124-2) ¶¶ 5-6 & 8-9 (recounting his memories of fishing and other tribe members fishing the area of the Main Stem back to the 1960s); Phillips Deck (ECF No. 124) ¶6 (explaining that the Penobscot River “was an important source of food for my family” and that his family fished and trapped “bank to bank” while he was growing up in the 1940s-1960s); C. Francis Decl. ,(ECF No. 124-3) ¶ 5-11.) Families living on Indian Island relied on the Penobscot‘River for food. (K. Loring Deck (ECF No. 119-12) ¶ 4.) Some tribal members engaged in such fishing without obtaining a permit from the State of Maine. (B. Dana Deck ¶ 8; K. loring Deck (ECF No. 119-12) ¶. 6.) State game wardens never interfered with any sustenance fishing activities pursuant to a “longstanding, informal policy”- that “remains in effect.” (Wilkinson Aff. (ECF No. 118-6) at PagelD # 7054.) In fact, State game wardens were rarely seen patrolling the Main Stem by tribal members fishing and trapping in the area. (See, e.g., Wilkinson Aff. (ECF No. 118-6).at PagelD # 7054; L. Dana Deck (E.CF No.-124-1) ¶ 9; K. Loring Deck (ECF No. 119-12) ¶5.) D. The History of Regulation of the Main Stem 1. Regulation by the State a. Pre-Settlement Acts The record reflects a long history of Penobscot Nation members and other r,esi7 dents looking to the State government to regulate the many activities occurring in the Penobscot River, including the'Main Stem. In 1790, 117 inhabitants on ’the Pe-nobscot River petitioned the 'Massachusetts Governor and General Court, seeking legislation to protect the fish in the Penob-scot River and its branches - by "placing limits on fishing nets and the number of days per week that fishing was permitted. (Jt. Ex. 558 (ECF No. 108-58) at.PagelD # 5486-89.) Later, in response to the January 1821 petition of the Chiefs of the Pe-nobscot Indians, which had requested that the Maine Legislature restrict the weir and driftnet fisheries in the lower Penob-scot River and Penobscot Bay, 176 inhabitants on the Penobscot Bay and River petitioned the Maine Legislature to complain about a variety of restrictions on their fishing, stating in part: Our “red brethren” have been instigated by some of their white brethren, far up the river, to make a talk about the destruction of salmon, by our expert fishermen on the big waters — It will be found on investigation, that they have contributed their full share, to the destruction of the' fish, not for their own use or consumption, but for fish merchants. When a salmon has run the gauntlet and arrived unharmed at the still waters, where the spawn is deposited, it becomes an object of solicitude; for by spearing them in these retired places, as has been the constant practice of the Indians, the destruction of a single fish -is that of thousands____The Indians are now reduced to a mere handful of strollers, having no regular residence and have really-little or no interest in the result. (Jt. Ex. 559 (ECF No. 108^59) at PagelD. #5491-92.) • Starting in approximately 1825, the State of Maine passed legislation that authorized the construction and operation of log booms, piers, canals and dams in the Penobscot River, thereby regulating navigation on the Main Stem by non-tribal members. (See generally, e.g., P.D. Exs. 48, 50, 55, 59, 61, 71, 90-91 & 97.) In a petition dated January 25,1831, two Penobscot tribal leaders petitioned the Maine Governor and Council seeking fishing rights and redress for various grievances. The petition stated in pertinent part: 1. There is an Island, called Shad Island, & some small ones near it, which belong to the Indians, lying just below Old town Island, where there are great conveniences for our Indians to take fish in the fishing season. We wish to have the whole right, -of taking fishing within six rods on the east side & four rids on the southerly & westerly sides of Shad Island, up as far as to the foot of Old town Island; & if anybody, except Indians takes fish within the limits mentioned, he may be-forced to pay five dollars. 5. All the Island in the Penobscot River, from Old - Town upwards belong to our Tribe; ____ Now we:pray that all our Islands may be preserved- and kept for ■the use of us, especially as -far up the West- -Branch. as opposite Moosehead ■Lake. Up the «Piscataquis to Borad ■Eddy; & up the East Branchy to the head of first ponds; .... 6. Upon the border or margin of Oldr town Island & Orson Island, & among other small islands of ours among them; the white people land and fasten a great many rafts, which plagues us very much indeed. Now we pray our agent to be empowered to take for every thousand feet of boards or other lumber landed & fastened to said Islands two cents, for any log one cent, & if the rafts lay there two months there be paid half as, much more; & if they lay their four months, then be paid double; all be paid at the beginning of the said periods; & if not so paid, the Indians shall be blameless, if they set the rafts adrift. 7.The Great Boom above Sunkhays deprives ug of several Islands, spoils others by soaking them & throwing the flood wood upon them; & as the owners make a great deal of money; so we pray they give up the Islands to the Indians, as our rights, or’ pay us twenty dollars every year, (Jt. Ex. 548 (ECF No. 108-48) at PagelD #s 5439, 5441-5442.) In response, the Committee on Indian Affairs reported, in relevant part: [I]t is the duty of the Indian Agent to attend to the rights of said Indians,- to see that there are no encroachments made by the whites upon the Indians Islands, their fishing and other privileges, and generally to attend to all the reasonable complaints of [said] Indians, and see that justice be done them. (Jt. Ex. 549 (ECF No 108-49) at PagelD ’ # 5444.) The report was approved by the Governor and the Executive Council. (Id.) Between 1846 and 1883, the State of Maine passed multiple laws intended to generally improve and regulate navigation on the Penobscot River. (See generally P.D. Exs. 62, 68, 69, 75, 76, 78, 85 & 89.) In 1862, the State of Míame passed a law allowing the “agent of the Penobscot Tribe” to “lease the public farm on Orson Island” and also “lease the shores of the islands in the Penobscot river belonging to said tribe .. < for the purpose of booming and hitching logs.” (P.D. Ex. 66.) In 1913, the State of Maine passed legislation that “authorized” the Penobscot Nation “to establish and maintain a ferry across’ the Penobscot river” between Old Town and Indian Island. (P.D. Exs. 95 & 99.) In 1949, the State of Maine enacted a law to build a single lane bridge between Old Town and Indian Island. This bridge project was paid for by the State. (P.D. Ex. 101.) From 1970 through 1980; state regulators and’game wardens published Maine’s Opeh Water Fishing Laws and sought to apply those laws on all areas of the Penobscot River, including the Main Stem. (P.D. Exs. 133-M3.) b. Post-Settlement Acts The Settlement Acts contemplated that fishing regulations for bodies of water that ran through or bordered Indian territory would be promulgated by the Maine Indian Tribal State Commission (“MITSC”). See 30 M.R.S.A. §§ 6207(3) & 6212. Until MITSC adopted regulations,, MIA "states that “all fishing laws and rules and regulations of the State shall remain applicable” in the waters within MITSC’s contemplated jurisdiction. 30 M.R.S.Á. '§§ 6207(3). In 1983, the Penobscot Nation asked MITSC to study the current management policies concerning Atlantic salmon, contending that the activities of the Maine Atlantic Sea-Run Salmon Commission were adversely affecting both the stocks “on the reservation” and the opportunity of the tribe to exercise its sustenance fishing rights in River. (Jt. Ex. 62 (ECF No. 103-12) at PagelD # 1557.) Since the enactment of the Settlement Acts, Maine, through DIFW, has continued to regulate boating on Maine’s inland waters, including the Main Stem. The State’s boating regulations contained no special exceptions or language regarding the compliance of the Penobscot Nation or its members within the Main Stem; (See generally State Defs. Ex. -21 (ECF No. 118-20) & P.D. Exs. 145-162.) Howeve