Here’s my Letter to the Editor which appeared in this week’s Lincoln County News. It is pretty much the same as what I already posted except this of course has been published:

A Little Perspective

Mr. Kelley is going to have to start coming to terms with the reality of his situation. From what I’ve heard lately, it doesn’t appear he’s begun that process.

I have sent the following missive off to the Editor of the Lincoln County News with the expectation that it will be published in next week’s paper. I’m posting it here, now, because I don’t  want to wait that long to get my opinion out in the open. I also want to get a few more of my thoughts down on paper, so to speak, while it’s all fresh in my mind.

The latest Lincoln County News article “Water Level Order Enacted for Clary Lake” is a great article, but a few things contained in it have been bugging me ever since I read it, especially this statement since it suggests a reason as to why Mr. Kelley has been loathe to offer up the dam to us despite all his posturing to the contrary:

“If it was clear what my company owned and who was likely to sue my company if we sold something that we don’t own, then I would be more inclined to have discussions with the lake association with their interest, their purported interest, in the property,” he said. 

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As of 3:30 PM today, Friday the 27th of September, Mr. Kelley had not filed a new petition for release from dam ownership or water level maintenance with the DEP despite what his recent “notice of intent to file” stated. He has instead requested a 180 day extension to his current petition as provided for by the statute. I would have thought it made more sense for Mr. Kelley to withdraw his original petition and submit a new one so as to remove all question about the validity of his initial public notice. Now, while he has another 180 days to try and find a new owner for the dam, the uncertainty of whether his petition is valid or not still hangs over it like a cloud. I would have wanted to be rid of that uncertainty but apparently Mr. Kelley doesn’t mind it. Will DEP conclude in 6 months that he has failed to correct the deficiencies in his original filing? Who knows!

With his petition being continued for another 6 months, the dam remains for sale and Mr. Kelley must actively seek a new owner, and entertain offers on the property. After all, the purpose of the petition for release from dam ownership or water level maintenance is to facilitate the transfer of a dam from someone who doesn’t want it to someone who does. As is stated in the recent LCN article, the Clary Lake Association does want it, and intends to actively pursue ownership of the Clary Lake dam as soon as the Department places a water level order on it.

I’ve had a chance to reread and ponder (like the chump at left) the comments posted by Tony Buxton today and I have a few observations to make before I move on. First, very little of the document has anything to do with the actual restrictive covenants themselves, which is what this exercise was all about I think. In fact, only one paragraph on the first page addresses them at all. I particularly like this part:

1. Declaration of Restrictive Covenants:

“As consideration for PPM agreeing to be bound by the Restrictive Covenants, AQF agreed to waive certain of the claims it may have had prior to adoption of the Restrictive Covenants against PPM for damage from flows of water in excess of 50 cubic feet per second.”

So we’re to believe that Richard Smith coerced Paul Kelley into agreeing to be bound by the covenants in exchange for waiving the right to press claims he “may have had” (or might not have had?) for high water damage to the mill building. Really?

Buxton offered no rebuttal of my assertion that Kelley’s Covenants are invalid and will have no effect on the ability of the Department to place and administer a water level order on the Clary Lake dam. The rest is of no consequence.

Paul Kelley has fought this water level petition tooth and nail ever since it was filed over a year and a half ago. All his efforts have been futile while costing him a lot of money. Stalling is a fine tactic I guess when it leads to a tactical advantage; when it simply delays the inevitable, then it is just a waste of one’s time and money. He has lost the battle and he knows it. He is now on record saying that he just “wants out” and he’s looking for an exit strategy. What he’s come up with defies understanding: he sees his petition for release from dam ownership or water level maintenance resulting in a breach order from the Department. Once he has that in hand, he hires a backhoe to come in and dismantle the Clary Lake dam and then he just disappears. His development plans thwarted through his own incompetent efforts to ram them through the town planning process, he lashes out leaving destruction and devastation behind him as he departs for greener pastures. What a guy. Well, that scenario will only happen in his dreams. Reality I’m certain has a less pleasant outcome in store for him. Continue reading →

Paul Kelley fabricates reality to suit his own ends. The problem with fabrications however is they always unravel if you look closely at them. I’d like to unravel one of Kelley’s favorite fabrications right now- the one he likes to repeat occasionally about how Art Enos and Chester Chase managed to screw up the Clary Mill property and incidentally introduced the “mill privilege and flowage rights” language that had never existed before (or so he says). Kelley repeated this fabricated piece of reality in his 8 July 2013 closing brief on page 9 (emphasis added):

“In 1995, other substantial damage was done to Henry Clary’s vision and design of an integrated and functional hydrological unit. Then-mill owner Chase, acting in concert with the then-president of the Clary Lake Association (“CLA”) Arthur Enos, carved the historic mill property into pieces, including severance of the CLD from the historic mill parcel, sited on a marginal .13 acre of land. This ill-advised transaction invented and inserted the contentious phrase “mill privilege and flowage rights” both into the historic chain of title, and ultimately into these proceedings. That phrasing attempted transfer of a “mill privilege” which cannot be sold apart from a mill, and the sale of “flowage rights” which had not existed for decades.“

So he’s stating that the phrase “mill privilege and flowage rights” first appears in the chain in the deed from Chester Chase to Arthur Enos dated 3 February 1995 and recorded in Book 2056 Page 340. The actual verbiage he’s referring to is this:

“ALSO CONVEYING HEREWITH all the mill privilege and flowage rights contained in the hereinafter referenced deeds and any other mill privileges and flowage rights on Clary Lake however obtained by Chester H. Chase and his predecessors in title.”

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I have read about as much of Kelley’s final brief as I can bring myself to read at this time which is to say I got through about half a dozen pages before I had to stop lest I start to claw my eyes out. I thought of having Acrobat read it to me but I was afraid my head would explode! Kelley’s rant will make the rounds at the Department and at the Attorney General’s office where it will cause a lot of head shaking and muttering. I pity the poor people whose job it is to actually read all 44 pages so they can render an official opinion on it. My official opinion? It is just more of the same: Kelley braying ad nauseum. I won’t be wasting any more of my time on it. I’m sorry I wasted precious ink and paper printing it out.

[UPDATE] Well I finally finished reading Kelley’s brief. It wasn’t easy. What a sad excuse for a defense, if you ask me. He introduced all kinds of evidence that is not in the record, a procedural no-no. My motion to supplement the record with additional information was DENIED by Heather Parent, hence I was unable to refer to that material in my closing arguments. Kelley offered NO RELEVANT TESTIMONY at the public hearing. He made up for that with his 44 page tirade.

He also raised issues that are totally irrelevant to the determination of a water level for Clary Lake for example, he’s still trying to play the dam safety card. He also claims my testimony should be stricken from the record because I’m no longer a licensed land surveyor, but I didn’t testify as a licensed land surveyor.

I am confident the Department will give Kelley’s closing brief all the attention it deserves: None.