Yearly Archives: 2019

03 March 2019: Judge Rules In Rubin Lawsuit In Favor of Smith

IMG_20150828_155836 (Custom)On February 22, 2019, Justice Billings finally ruled in the Rubin/Ayer v. Smith/Aquafortis Associates [AQF] lawsuit, finding in favor of Richard Smith. At the start of the litigation back in January 2016 (see Clary Lake Shore Owners Rubin & Ayer File Suit in Superior Court), both Paul Kelley and Pleasant Pond Mill LLC [PPM] were defendants in the suit along with Richard Smith and AQF but first PPM and then Kelley subsequently filed for bankruptcy, staying the civil suit against them. Rubin and Ayer decided to pursue a judgment against only Richard Smith and AQF. They almost won, which is to say, they lost. There were a lot of very interesting elements in the suit, I’ve followed it closely since it was filed, and I testified when it went to hearing on December 20th (see Update on Rubin v. Smith Lawsuit). I have not written about the case much on this website, at the request of Bob Rubin who told me he did not want the publicity. In any case, here’s the Judge’s Order:

At the risk of over-simplifying the case, Rubin and Ayer basically had to prove three things, 1) that their use and enjoyment of their property was impacted due to low water conditions and that their property value had been damaged, 2) that Richard Smith was personally liable for the actions of AQF (a procedure referred to as “piercing the corporate veil”) and 3) that AQF and PPM were effectively alter egos of each other, in other words, one and the same and hence AQF/Smith should be held liable for the operation (or lack thereof) of the dam. Continue reading →

February 2019 Water Level Chart Archived

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February 2019

I have archived the February 2019 Water Level Chart (at left). The most noticeable thing about this chart is it’s BORING, and how pleasant for a change not seeing rapidly fluctuating water levels! The lake level gradually dropped only 3.72″ over the course of the month from a high of -10.68″ below HWM at the start of the month to -14.40″ below the HWM at the end of it, staying pretty much right within the range we were looking for. Our goal was to keep the lake level right about 12″ to 18″ below the HWM. We didn’t have any major precipitation events: rainfall for the month of February was slightly below average with precipitation of only 2.16″ bringing us to 5.36″ for the year, slightly above the average of 5.04″ thanks to a extra wet January. We do have a reasonable snow pack developing so runoff this spring should be more than sufficient to raise the lake level up to the HWM, for the first time in over 10 years. Continue reading →

Lake Stewards of Maine’s Winter 2018-19 Water Column Newsletter Is Out

I just received my copy of the 2018-2019 issue of the Water Column, the newsletter of Lake Stewards of Maine (formerly the Maine Volunteer Lake Monitor Program). This issue has a great article by Roberta Hill which discusses the impact climate change is having on lakes in Maine, and everyone who cares about Clary Lake should read it. While there is debate in some quarters about the causes of climate change, there is little question that our climate is in fact changing and the effect it is having on Maine lakes are very real. If there’s one thing the last 8 years of our lake level crisis has shown us it is that lakes are fragile and tenuously balanced ecosystems and that seemingly small changes in water levels, water temperature, and nutrient load can have profound impact on lake ecology. Now that we’ve succeeded in restoring the historical water level regime of Clary Lake, I think our primary challenge going forward will be to preserve Clary’s water quality, and keep it free of invasive plant and animal species. To quote the article:

“We now have sufficient data to know with a high degree of certainty that, like much of the northeast, Maine is getting warmer, experiencing wetter winters and springs, drier summers, and more frequent extreme weather events (including floods and droughts). The shifting climate is causing our growing seasons in Maine to become longer, and the periods of ice cover on our lakes to become shorter. All of the changes described above pose serious challenges for lakes.” 

The Clary Lake Association has been a long time supporting member of the Lake Stewards of Maine and has been monitoring water quality on Clary Lake since 1975 making Clary the 3rd longest monitored lake in the state. We’ll be starting up the 2019 water monitoring season again in late April or early May.

22 February 2019: Whitefield Library Association to Purchase Arlington Grange

Two years ago the Whitefield Library Association was formed and moved into Whitefield’s historic Arlington Grange Hall. This structure, built in 1884, has acted as a community gathering space in various capacities over the past 135 years and is a heartwarming symbol of rural American civic engagement. The Whitefield Library Association has begun fundraising to purchase the building and set up a fully functioning community library on the bottom floor and a vibrant community center on the second floor. Check out the new website!

Purchase & Renovation Effort

January 2019 Water Level Chart Archived

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January 2019

I have archived the January 2019 Water Level Chart (at left). The best thing about this chart is that it shows that for the first time in over 8 years, the lake level was right where was supposed to be, when it was supposed to be there. The lake level remained above -24″ below the HWM for the entire month. How sweet is that! For the first 3/4 of the month, the lake level hovered right around 18″ below the HWM, give or take a few inches. Then we received 1.66″ of rain on the 24th which caused the lake to rise almost 1 foot, topping out at about 5″ below the HWM. That was higher higher than we’ve seen the lake in over 8 years, and actually than we wanted to see it so we opened the gate a foot to release more water in addition to what was already going over the weir. That halted the lake level rise. Since then it’s been falling gradually, ending the month not quite 10″ below the HWM. Welcome to the new normal! Continue reading →

31 January 2019: Board of Environmental Protection Rejects Kelley and Smith Filings

Just last week I posted about several filings made by Richard Smith and Paul Kelley in response to an appeal of the DEP’s Order transferring the Clary Lake Water Level Order to the Clary Lake Association (see: “Kelley, Smith, Duncan File Comments on AQF Appeal“). The appeal was originally filed by Aquafortis Associates LLC (AQF) on December 26th (see: Aquafortis Appeals CLA License Transfer). The Board of Environmental Protection (BEP) wasted no time in responding to those filings and in a move that should surprise no one, they were determined to be not admissible to the record and have been summarily rejected. The BEP has not responded to Butch Duncan’s request for a public hearing on the license transfer and I think it’s safe to say that’s just not going to happen. Continue reading →

25 January 2019: Lake at a Level Not Seen in Years

The lake has so far risen over 8″ as a result of yesterday’s heavy rain and is now 7 inches below the normal high water mark. The last time it was this high was 9 years ago, in 2010. It will continue to rise a little more over the next couple of days before it starts falling again. Ideally this time of year we’d like it between 12 and 24 inches below the HWM.
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24 January 2019: Kelley, Smith, Duncan File Comments on AQF Appeal

The deadline for submitting written comments on Aquafortis Associates LLC’s appeal of the DEP Order transferring the Clary Lake Water Level Order to the Clary Lake Association was Tuesday, 22 January 2019 at 5:00 PM (see “Aquafortis Appeals CLA License Transfer“). Only Butch Duncan commented on the actual license transfer application so therefore, according to the Notice of Appeal, he was the only one entitled to submit written comments on the appeal. He did not disappoint, submitting a short email to the Service List just after 3 PM on Tuesday. Per the Notice of Appeal, the Clary Lake Association was also entitled to comment, and we did by our letter dated January 4th. Much to my surprise (just kidding!) verbose comments were also submitted at the last minute by Paul Kelley (a total of 79 pages) and Richard Smith (a total of 37 pages). Continue reading →

O5 January 2019: Clary Lake Association Responds to Aquafortis Appeal of License Transfer

Back on December 26th I posted about Aquafortis Associates LLC appealing the recent DEP Order #L-22585-36-F-T transferring the Clary Lake Water Level Order to the Clary Lake Association. CLA President Malcolm Burson has in turn responded to the appeal with a short, succinct 1 page letter:

Ho hum. That is all.