Yesterday was the end of the 21 day grace period for Aquafortis Associates LLC to appeal the recent Lincoln County Superior Court ruling on the DEP transfer order. As of this morning, no appeal has been filed. This comes as no surprise. The DEP Transfer Order stands. And that, as they say, is that.
Category Archives: Court Action
09 October 2020: Water Level Transfer Order Upheld
Following a hearing for oral arguments on September 8th, the Lincoln County Superior Court has issued its ruling on the Aquafortis Associates, LLC [AQF] Rule 80C Appeal of DEP’s December 2018 Order transferring the Clary Lake Water Level Order to the Clary Lake Association. In its discussion, the Court carefully considered all of AQF’s claims and denied or rejected all of them. The Order, issued on September 28, 2020 is subject to appeal, and AQF has 21 days from the date of the Order (deadline October 19th) to appeal the ruling to the Maine Supreme Court, but honestly, in my humble opinion, the Superior Court’s ruling was so unequivocal and final and the appeal so pointless in the first place, that I can’t imagine they will want to waste their money on a Law Court appeal, which they would undoubtedly lose. While this ruling did not come as a surprise to us, it is nice nonetheless to get the official word. The ruling is only 9 pages and well worth reading: Continue reading
13 August 2020: Hearing Scheduled for AQF Appeal
It appears the Aquafortis Associates LLC [AQF] appeal of the Water Level Order Transfer (docket AP-20-4) is going to hearing after all! A one-hour hearing for oral arguments has been scheduled in Lincoln County Superior Court on September 8th at 2:30 PM. The hearing will be held in front of the Honorable Daniel Billings using Google Meet (Google’s version of Zoom). I assume the hearing will be available to the general public but I don’t have information about how to connect yet. When I do I’ll make that information available. The State will be represented by Assistant Attorney General Scott Boak, the Clary Lake Association will be represented by Attorney Randy Creswell who so ably represented us during the Bankruptcy proceedings (and got us the dam!), and AQF is being represented by Dennis Carrillo. The Clary Lake Association is named as a Party in Interest in the appeal. Continue reading
09 July 2020: Aquafortis Associates Files Combined Reply Brief
On Thursday July 9, 2020 Aquafortis Associates, LLC [AQF] filed their reply brief in the matter of AQF v. Maine Board of Environmental Protection [BEP] Docket No. WISSC-AP-20-4, it being an appeal of a Department of Environmental Protection [DEP] Order issued in December 2018 transferring the Clary Lake Water Level Order to the Clary Lake Association. AQF filed their initial brief on May 29th of this year; their reply brief is a combined reply to both the BEP’s brief filed on June 19th and the Clary Lake Association’s brief filed on June 25th. This latest document includes 52 pages but there are a number of attachments; the actual reply brief itself is actually only 16 pages long:
Now that AQF’s petition has been fully briefed, the next step is up to the Court. The judge may schedule a hearing for oral arguments or he may just issue a ruling. I have no idea what to expect or when to expect it. I’m going to refrain from further comment at this time.
26 June 2020: Clary Lake Association Files Brief in AQF WLO Transfer Appeal
On Thursday June 25th the Clary Lake Association through their counsel Randy Creswell timely filed their brief in the matter of Aquafortis Associates, LLC [AQF] v. Maine Board of Environmental Protection [BEP] Docket No. WISSC-AP-20-04. The State of Maine filed their brief a week ago, on June 19th. AQF now has 14 days from the service of these briefs to file their reply briefs. For the State’s brief the deadline is July 3rd and for our brief, the deadline is July 9th. Someone is going to have a fun-filled Fourth of July weekend!
The Clary Lake Association is but a Party in Interest to this appeal and as such we really didn’t need to file a reply to AQF’s brief, especially considering how thorough and irrefutable the State’s brief is. Nonetheless we felt that providing some additional arguments supporting our right, title, and interest in the Clary Lake dam was a worthwhile effort. Continue reading
07 March 2020: AQF Appeal Scheduling Order Issued
With the January 17th Kennebec County Court ruling transferring Aquafortis Associate LLC’s 80C appeal of the DEP Transfer Order to Lincoln County, we’re essentially starting over in a new jurisdiction. On February 28th Lincoln County Superior Court Judge Daniel Billings has issued a Scheduling Order. The Petitioner (AQF) has 40 days from the date of the Order to file their brief (on or about April 8th) and responses by the State and CLA (if we choose to prepare one) are due 30 days after that. The Petitioner then has 14 days to file their reply brief. After that we can expect a hearing date to be set. Stay tuned folks, and don’t hold your breath.
04 February 2020: Kennebec County Judge Rules In AQF Appeal Hearing
We’ve received word that Kennebec County Superior Court Judge William Stokes has issued his ruling on the January 10th hearing in regard the Aquafortis Associates LLC appeal of the Clary Lake water level order transfer. The Order, dated January 17th, DENIES AQF’s motion to supplement the record and GRANTS the Clary Lake Association’s motion to transfer the venue to Lincoln County. This is Good News. We’re hearing about it now because the Court mailed the Order to our lawyer’s old mailing address. Continue reading
10 January 2020: Update on Aquafortis Associates Appeal
The first hearing on the AquaFortis Associates LLC appeal of the Maine DEP transfer of the Water Level Order to the Clary Lake Association took place today. It lasted about an hour and a half. The picture at left, taken before the start of the hearing shows CLA attorney Randy Creswell (left) and Assistant AG Scott Boak discussing strategy. Aquafortis Associates LLC (and Richard Smith) were represented by attorney L. Dennis Carrillo. The Judge handling the case is Justice William Stokes. Continue reading
16 December 2019: Update on AQF Appeal of WLO Transfer
You may recall that back in December 2018 Aquafortis Associates LLC (AQF) took issue with the Department of Environmental Protection’s decision to transfer the Clary Lake Water Level Order to the Clary Lake Association, and that they subsequently appealed that DEP decision to the Board of Environmental Protection (BEP). The BEP subsequently denied AQF’s appeal at a June 2019 hearing. Then, in a move that defied understanding, on July 8, 2019 AQF appealed the BEP decision to Kennebec Superior Court, docket no. AP-2019-31. I posted an article about the Superior Court appeal (see “Aquafortis Associates LLC Appeals BEP Ruling“). The Clary Lake Association was named as a Party in Interest in the appeal. I haven’t written anything else about this proceeding since the appeal was filed in Superior Court on July 8th, but that doesn’t mean nothing has been happening.
During the several months following AQF’s July 8th filing of the appeal in Superior Court, there was the usual flurry of filings and by the (3) parties. The State for their part filed the Administrative Record (copies all the documents and correspondence used or reviewed by the DEP and the BEP to arrive at their decision). The State also filed a motion to dismiss independent claims. AQF through their counsel Dennis Carrillo filed a motion to supplement the administrative record, and the Clary Lake Association, through it’s counsel Randy Creswell, filed a motion to transfer the venue from Kennebec County to Lincoln County. All three motions have been “fully briefed” and I believe the motion to dismiss independent claims has been acquiesced to by all parties which leaves the motion to supplement the record and the motion for venue change to be decided by the court.
A hearing has been scheduled on January 10, 2020 at 10:30 AM in Kennebec County Superior Court at which time the Court will address two outstanding motions. Kennebec County Superior Court is located in Augusta at 1 Court St Suite 101. The hearing is open to the public.
08 July 2019: Aquafortis Associates LLC Appeals BEP Ruling
In a move that defies understanding, Aquafortis Associates LLC (AQF) has decided to appeal the June 6th Board of Environmental Protection (BEP) ruling denying their appeal of the DEP transfer of the Water Level Order to the Clary Lake Association (see “06 June 2019: BEP Denies AQF Appeal“). This new Petition for Review of Final Agency Action, Docket No. AP-2019-TBA, was filed today in Kennebec County Superior Court by counsel for AQF Dennis Carrillo. Mr. Carrillo has represented Richard Smith and AQF in both the Paul Kelley Bankruptcy proceeding and the Rubin/Ayer lawsuit. The petition names the Board of Environmental Protection as the Defendant and they will be doing the heavy lifting in this court case. The Clary Lake Association has been named a Party-In-Interest. I am not going to comment further until I’ve had a chance to read the Petition carefully. Without further palaver:
Stay Tuned!
15 March 2019 Central Maine Papers: Whitefield lakeside property owners not entitled to monetary damages over low water, court rules
Central Maine Papers staff reporter Jessica Lowell has written an article about the Rubin v. Smith lawsuit.
Lake side property owners not entitled to monetary damages over low water
Here’s a link to an archived copy if you have trouble getting off the newspaper site:
03 March 2019: Judge Rules In Rubin Lawsuit In Favor of Smith
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
Central Maine Papers: Repairs to Whitefield’s Clary Lake Dam completed
There’s an article that appeared in the Sunday December 23rd Kennebec Journal and Morning Sentinel by Central Maine Papers staff writer Jessica Lowell about the Clary Lake dam and the Rubin/Ayer v. Smith/AQF lawsuit which went to trial last week. This latest article is factually accurate which is somewhat of a marvel even considering Ms. Lowell has been following the Clary Lake saga for a number of years.
Here’s an archived copy if you have trouble getting it off the Central Maine Papers website:
17 October 2018 Lincoln County News: Clary Lake Association Closes on Dam, Plans Repairs
There is a follow up article in the Lincoln County News in this week’s paper by staff writer Jessica Clifford. The only factual inaccuracy that jumps out at me is the article states “The association received the deed to the dam Friday, Oct. 12.” when in fact, the closing on the dam was the following Saturday morning:
Good article, though I had hoped they would publish our mailing address and website address and encourage people to donate money to help restore Clary Lake! It is after all a Great Pond, held in trust for the People of the State of Maine. It’s everyone’s lake. No worries, anyone interested in donating shouldn’t have any trouble finding us.
I’ll post a link to a locally archived copy in a while.
13 October 2018: We Own The Dam!
We Own The Dam!
I’ve been waiting to say that for more than 7 years. Many thanks to everyone who helped make this possible! In particular, I’d like to thank the Clary Lake Association Board who has worked tirelessly with me over the years to get us where we are today. I’d also like to thank our Membership, past and present, and everyone else on or around Clary Lake who has contributed their time and money to bringing this about. We couldn’t have done this with all your help! I’d also like to thank our lawyer, Randy Creswell who did such a good job representing us in Bankruptcy court. Finally, and last but by no means least, I must mention my wife Margaret Fergusson who steadfastly helped and supported me (and put up with me!) throughout this challenging time. Thank you all!
It’s sure been an interesting 24 hours. Yesterday, as most of you know, was the last day of the 14 day stay of the September 28th Bankruptcy Court Order approving the free and clear sale of the Clary Lake dam to us. The 2 week period was to provide Richard Smith and/or Aquafortis Associates LLC with an opportunity to appeal that Order, if they wished. Finally, about 4:30 PM yesterday afternoon and on the last day available, they did just that, through their attorney Dennis Carrillo. Mr. Carrillo did not file a motion for a stay of the Order however. As a result, today, with the appeal period over and thanks to the 363(M) protections afforded us by the Court as Good Faith buyers, their appeal is moot, and the Order stands as issued.
We finally closed on the dam this morning. The deed has already been recorded electronically at the Lincoln County Registry of Deeds, and checks mailed to Medius L3C and to the Trustee. What happens to appeal now is not our problem. I’m guessing the Trustee will file a motion to dismiss next week. In any case, it’s not our concern.
Our work is just beginning. Now that we own the dam, it’s time to get busy on repairing it and restoring Clary Lake. I’m so ready for this 🙂
06 October 2018: Dam Purchase Update
Now that we own the dam (or will, in a few days) we’ve got a lot to do! One of the first on the list of things to do is starting up the process of transferring the Clary Lake Water Level Order from the current licensee (Pleasant Pond Mill LLC or PPM) to the Clary Lake Association (CLA). The application has to be filed with the Maine Department of Environmental Protection within 2 weeks of the transfer of the property, and the first step is to send out a public notice of our intent to file the transfer application, and the approximate date. We originally sent this notice in early July when we anticipated owning the dam later that month, but court delays prevented that from happening. So here we go again. If you’re a littoral or riparian land owners around Clary Lake or someone who owns land directly across a road from the lake, you should have received your public notice earlier this week. There was also a notice in this week’s Lincoln County News. We’ve also started a second and final fundraising initiative to raise money needed to complete repairs to the dam; I’ll talk more about this in a separate post. Additional steps to be taken real soon include filing the underground tank registration form and the Permit By Rule notice required to work on the dam.
We’re one step closer to owning the dam! In accordance with the recent Order approving the sale of the Clary Lake dam to the Clary Lake Association, the Bankruptcy Trustee has filed evidence of compliance with paragraph 2 of the order, that being the transfer of the Clary Lake dam from PPM to Paul Kelley’s bankruptcy estate, from whence it will be eventually conveyed to us. The deed, dated September 28, 2018 was recorded by the Trustee at the Lincoln County Registry of Deeds on October 3, 2018 in Book 5311, Page 46. In other words, PPM no longer owns the Clary Lake dam. This has been a long time coming, and brings a smile to my face 🙂
Finally, more than a few people have expressed some concern about the 14 day appeal period, wondering what it means and worried that Paul Kelley will try and appeal the recent ruling. This is an understandable concern given past history with these parties, but it is not a valid one: as the debtor, Paul Kelley himself does not have standing to file an appeal; the only parties who do have standing to appeal are Richard Smith and Aquafortis Associates LLC. However, filing an appeal would be a waste of time and money because the judge granted us Good Faith protections under Section 363(M) of the U.S. Bankruptcy Code meaning that any appeal becomes moot when we close on the property. If an appeal has been filed by the time we close, a simple motion to dismiss is all it will take to make it go away.
28 September 2018 Central Maine Papers: Federal judge OKs Whitefield dam sale
Well that didn’t take long: yet another fine article in the Kennebec Journal and Morning Sentinel by Staff Writer Jessica Lowell.
I find this comment amusing:
Paul Kelley said Friday after the ruling was announced that he doesn’t know “how things are playing out. I do know that parties are generally unhappy.”
I can count the parties that are “generally unhappy” with today’s ruling on the fingers of one hand and have a couple of fingers left over. Everyone else is VERY happy 🙂
A minor correction: the dam cost $80,000 not $32,500
Here’s a link to an archived copy of the article:
28 September 2018: Bankruptcy Judge Approves FREE and CLEAR Sale of Dam!
At a short hearing held today at 10 AM in Bangor at the U.S. Bankruptcy Court, Judge Michael Fagone granted the Trustee’s motion to sale the Clary Lake dam to the Clary Lake Association free and clear of the restrictive covenants under sections 363(F)(5) of the U.S. Bankruptcy code. Gone too is the Medius mortgage under 363(F)(2). Further, the Judge granted the Clary Lake Association Good Faith Protections provided by section 363(M) of the U.S. Bankruptcy code. The Judge declined to allow the immediate sale of the property so we will have to wait to take title to the Clary Lake dam in 14 days at the expiration of the appeal period. Should AQF or Richard Smith (or anyone else) decide to appeal today’s ruling, 14 days from today our attorney will simply file a motion to dismiss and <POOF> the appeal will disappear, thanks to the 363(M) Good Faith Protections. Continue reading
Road Trip!
So who’s planning on attending the hearing in Bangor this Friday? Who’s thinking of it? I think it would be great for a contingent of Clary Lake people put in an appearance. This is the hearing when the Judge will rule on the Sale Motion and if past hearings are any indication, this one promises to be very interesting! If you’re planning on attending, drop me an email and let me know.
The hearing is at the U.S. Federal Bankruptcy Court at 202 Harlow Street, Bangor Me. See the previous post “Bankruptcy Judge to Issue Ruling in Open Court” for more information.
17 September 2018: Bankruptcy Judge to Issue Ruling in Open Court
We’ve all been anxiously awaiting a decision from the Bankruptcy Court on the Clary Lake Association’s efforts to purchase the Clary Lake dam from Paul Kelley’s bankruptcy estate. This morning Judge Fagone announced his intention of issuing an Oral Ruling on the Trustee’s Sale Motion in open court at a hearing at 10 AM on Friday September 28th at the United States Bankruptcy Court at 202 Harlow Street, Bangor, Maine. The hearing will be open to the public. A date for a ruling is not the same as a ruling, but I’ll take it. At least now we have an end date for the Sale Motion!
Given how much time has passed since oral arguments back on July 27th, we were all expecting the Judge to issue a written decision but our attorney assures us that Judges issue oral decisions in open court with some frequency. We have every reason to believe the Judge will approve the sale of the Clary Lake dam at that hearing, with the only question being whether he sells us the dam free and clear of the restrictive covenants or approves the sale with the covenants in place. Either way we’ll own the dam. The closing will most likely take place the following week. We have a contingency plan in place to deal with the covenants if the Judge decides not to sell the dam free and clear.
We had not counted on this sale process taking so long, and it remains to be seen whether there is enough time this fall to get the dam permanently repaired or whether we’ll need to wait until next summer for that. Needless to say we’ll do everything we can to get the dam repaired and the lake level restored as quickly as possible.
If anyone is interested in attending the hearing and is looking for a ride, get in touch with me about carpooling!