               United States Court of Appeals
                               For the First Circuit
                                   _____________________

Nos. 16-1424
     16-1435
     16-1474
     16-1482

                PENOBSCOT NATION; UNITED STATES, on its own behalf,
                      and for the benefit of the Penobscot Nation,

                            Plaintiffs-Appellants/Cross-Appellees,

                                               v.

    AARON M. FREY, Attorney General for the State of Maine; JUDY A. CAMUSO,
       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.
                                    __________________

                                           Before
                                     Howard, Chief Judge,
           Torruella, Selya, Lynch, Thompson, Kayatta and Barron, Circuit Judges.
                                    __________________

       
         Judge Kayatta is recused from this case and did not participate in the determination of
this matter.
                                       ORDER OF COURT
                                       Entered: April 8, 2020

        A majority of the active judges who are not disqualified have voted to hear this case
en banc. Accordingly, Penobscot Nation's petition for rehearing en banc and the United States'
petition for rehearing en banc are each granted. In accordance with customary practice, the panel
opinion and the dissent released on June 30, 2017 are withdrawn, and the judgment entered the
same date is vacated. See 1st Cir. I.O.P. X(D).

        The en banc court will have copies of the parties' previously filed briefs. The parties are
also directed to file supplemental briefs addressing the following questions, in addition to any other
questions the parties may wish to address.

       1.      Does the Indian Canon of Construction apply to the Maine Settlement Acts, the
               Maine Implementing Act ("MIA"), Me. Rev. Stat. Ann. tit. 30 ("30 M.R.S.A."),
               §§ 6201-6214, and/or the Maine Indian Claims Settlement Act ("MICSA"), 25
               U.S.C. §§ 1721-1735? Also address the effects of 25 U.S.C. § 1725(h) and 25
               U.S.C. § 1735(b).

       2.      Does the canon against conveying navigable waters affect the application of the
               Indian Canon, assuming the Indian Canon otherwise would apply? See Idaho v.
               Coeur d'Alene, 521 U.S. 261, 284 (1997) (holding that, because "navigable waters
               uniquely implicate sovereign interests," there exists a "strong presumption of state
               ownership" of these waters). If the canon against conveying navigable waters
               generally takes precedence over the Indian Canon, does the navigational waters
               canon apply here, given the fact that Congress ratified the Tribe's grant of the public
               right of way in the 1818 treaty?

       3.      How does the holding in Alaska Pacific Fisheries v. United States, 248 U.S. 78
               (1918) (applying the Indian Canon in determining whether surrounding waters were
               within the "body of lands" comprising a reservation), impact this case, if at all?
               How does this Court's ruling in Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007),
               impact this case, if at all?

       4.      Are there any material ambiguities in the relevant provisions of any of the
               Settlement Acts, for purposes of applying the Indian Canon of Construction?
               Please specifically address whether and how the word "solely" in 30 M.R.S.A.
               § 6203(8) is ambiguous and, if so, how it should be construed; whether the word
               "Reservation" in 30 M.R.S.A. § 6207(4) must be construed to have the same
               meaning as the word "Reservation" in 30 M.R.S.A. § 6203(8), and if not why not;
               and how, 30 M.R.S.A. § 6203, which provides that its subsections' definitions,
               including "Penobscot Indian Reservation," will apply "unless the context indicates
               otherwise," affect how we interpret the relevant statutes and construe any
               ambiguities.



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5.    Because the MIA's definition of the Reservation references boundaries related to
      the 1796 and 1818 treaties between the Nation and Massachusetts and because
      Indian lands in Maine are subject to Maine law, do state common law and
      interpretive rules apply and therefore govern the meaning of the Settlement Acts?

6.    May the Court consider legislative history? If so, what legislative history is
      relevant to the proper interpretation of the Settlement Acts and how does the
      relevant legislative history inform our interpretation of the statutes and any material
      ambiguities?

7.    Does 25 U.S.C. § 1723(a)(2) bar the United States from asserting to this Court the
      claims it previously articulated to the panel?

8.    Do the doctrines of laches, acquiescence, and/or impossibility, as argued by the
      State of Maine, bar the Nation's claims? See City of Sherrill v. Oneida Indian
      Nation of N.Y., 544 U.S. 197, 217-21 (2005).

9.    Did the Penobscot Nation transfer the Main Stem of the Penobscot River to Maine
      under the Settlement Acts?

10.   What are the proper boundaries of the Reservation? What is the effect of Maine's
      former position that "portions of the Penobscot River and submerged lands
      surrounding the islands in the river are part of the Penobscot Reservation"?

11.   Is the Penobscot Nation's claim ripe that the Settlement Acts accord it the right to
      take fish for individual sustenance in the entire Main Stem section of the Penobscot
      River? See Reddy v. Foster, 845 F.3d 493, 501 (1st Cir. 2017) (describing the two
      prongs of the ripeness analysis, fitness and hardship); Town of Barnstable v.
      O'Connor, 786 F.3d 130, 143 (1st Cir. 2015) (discussing the fitness prong of the
      ripeness analysis).

12.   Does the Nation have standing to bring this claim? Specifically, does a declaration
      by a state's Attorney General confining a tribe's regulatory authority to dry land,
      despite statutory sustenance fishing rights, constitute state action amounting to a
      cognizable injury? Mashantucket Pequot Tribe v. Town of Ledyard, 722 F.3d 457,
      463 (2d Cir. 2013) ("Although Article III's standing requirement is not satisfied by
      mere assertions of trespass to tribal sovereignty, actual infringements on a tribe's
      sovereignty constitute a concrete injury sufficient to confer standing. . . . This rule
      exists because tribes, like states, are afforded 'special solicitude in our standing
      analysis.'" (quoting Massachusetts v. EPA, 549 U.S. 497, 520 (2007))). Would a
      finding limiting the Reservation to the uplands constitute a viable threat to self-
      government? And is there evidence that Maine's actions have created or will create
      events that are neither "uncertain" nor "contingent," O'Connor, 786 F.3d at 143, and
      that there is a "harm . . . 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.

                                       -3-
               Healey, 844 F.3d 318, 330 (lst Cir. 2016)), including in regards to whether Maine's
               actions constitute a questioning of the tribe's sovereignty? See Moe v. Confederated
               Salish & Kootenai Tribes of Flathead Reservation, 425 U.S. 463, 468 n.7 (1976).

        The supplemental briefs should be filed simultaneously on, or before, June 8, 2020, and
shall comply with applicable rules concerning format, service, and other requirements. Any reply
supplemental briefs must be filed no later than 21 days after the principal supplemental briefs are
filed. Seventeen paper copies of all briefs filed should be provided to the Clerk's Office no later
than one business day after the electronic brief is filed. Amici are welcome to submit amicus briefs
addressing the aforementioned questions.


                                                     By the Court:
                                                     Maria R. Hamilton, Clerk

cc:
Hon. George Z. Singal
Christa Berry, Clerk, United States District Court for the District of Maine
Mary Gabrielle Sprague
Steven Miskinis
Bella Sewall Wolitz
James T. Kilbreth III
Kaighn Smith Jr.
Elizabeth Ann Peterson
Pratik A. Shah
David M. Kallin
Adrianne Elizabeth Fouts
Michael L. Buescher
Susan P. Herman
Christopher C. Taub
Paul Stern
Kimberly Leehaug Patwardhan
Matthew D. Manahan
Catherine R. Connors
Lindsay Scott Gould
Graydon Stevens
Daniel D. Lewerenz
Joel West Williams
Gregory A. Smith
Elliott A. Milhollin
Kaitlyn E. Klass
Gerald Donohue Reid




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