There’s an article in this week’s Lincoln County News by staff writer Abigail Adams about the letter that Representative Sanderson and Senator Johnson wrote last week. Judging from the article, it appears Sanderson and Johnson did end up meeting with Paul Kelley. Johnson is quoted as saying “We have a much better understanding of his perspective, but we didn’t reach any agreement on actions that would get us closer to a resolution without the courts.” Butch Duncan was also quoted as saying “The depleted water level has given me my land back. Now I have a meadow instead of a swamp.” To each his own I guess. Anyways, here’s the article:
Category Archives: News
15 September 2015: Two Maine lawmakers say DEP has failed to protect Clary Lake
Paul Kelley standing in front of the Clary Lake dam. Photograph by George Fergusson, 8 August 2007
There is an article in today’s Central Maine Papers (Kennebec Journal, Morning Sentinel) by staff writer Paul Koenig about the letter written by Representative Sanderson and Senator Johnson last week (see: Representative Sanderson, Senator Johnson send letter to DEP). The article suggests the DEP has failed to protect Clary Lake by not taking enforcement action on the water level order issued by the Department over a year and a half ago, in late January 2014. The article acknowledges why DEP has not taken enforcement action, but that their failure to do anything nonetheless is “clearly in violation” of their legislative mandate to protect and prevent diminution of the state’s natural environment. Because the Water Level Order (WLO) is under appeal in Superior Court, if the DEP were to attempt traditional enforcement action, lawyers for the dam owner would likely request a stay of the Order from the court, and they would probably get one, because that’s how these things roll. However, the article points out that in light of the severe ongoing impact low water is having on Clary Lake shore owners and the sensitive lake environment, they are entitled to equitable relief in the form of a high water level while the court case plays out. Equitable relief as I understand it is a judgment that the Court would issue in lieu of the Department taking actual enforcement action. Actions by the DEP such as entering the property to physically implement the terms of the order are provided for in the statute.
The article quotes Paul Kelley, owner of the company that owns the Clary Lake dam as saying that one of the reasons why he can’t raise the water level of Clary Lake is because doing so “would expose Pleasant Pond Mill LLC to potential lawsuits from upstream and the owner of the mill property below the dam.” I’ve always dismissed Kelley’s concerns over being sued by Aquafortis Associates LLC because, really, who believe his partner, Richard Smith, is going to sue him for high water damage? Continue reading
14 September 2015: Attorneys for PPM & AQF file reply in support of their motion to amend [UPDATED]
Late last Friday afternoon attorneys for Pleasant Pond Mill LLC (PPM) and Aquafortis Associates LLC (AQF) filed their final brief in support of their motion to amend their petition for review of final agency action (the water level order appeal), and a sur-reply to the State’s motion to dismiss. The reply was expected; the sur-reply was not, at least not by me. For anyone trying to follow what is going on in these proceedings, things sure have gotten confusing. Among other provocative claims, this latest filing challenges the State’s position that PPM no longer exists, instead claiming that PPM is an “existing legal entity in Good Standing.” The filing ended with a request for a hearing at the Court’s discretion to respond to any questions that the Court may have regarding the pending motions:
- 9-11-2015 Petitioners’ Reply in support of their motion to amend and sur-reply to DEP motion to dismiss [UPDATED LINK]
Don’t know what a sur-reply is? Neither did I. From the USLegal.com website:
Sur-reply is an additional reply to a motion filed after the motion has already been fully briefed. For example, a legal document such as a motion is filed by one party (filing party) requesting the court to enter an order. The other party (responding party) responds to the motion. The filing party then replies to the responding party’s response. Some courts allow the responding party to file a sur-reply to the filing party’s reply to the responding party’s response.
I was under the impression that once a motion has been fully briefed, that respondents have to ask a judge for permission to make an additional filing. I guess it remains to be seen if Lincoln County Superior Court is one of those courts that allow responding parties to file a sur-reply.
11 September 2015: Representative Sanderson, Senator Johnson send letter to DEP
State Representative Deb Sanderson contemplating the Clary Lake dam during a site visit on August 10th. Photograph by George Fergusson 10 August 2015
As they promised at the town hall meeting held back on August 27th, Representative Deb Sanderson (R) and Senator Christopher Johnson (D), in an outstanding show of bi-partisan cooperation, have jointly drafted a letter which was sent earlier this week to the Department of Environmental Protection’s current Acting Commissioner, Avery Day. The letter, which included an 11 page attachment of captioned photographs and water level charts illustrating the low water conditions around Clary Lake, was also sent to Deputy DEP Commissioner Heather Parent, Attorney General Janet T. Mills, Assistant Attorney General Scott Boak, IF&W Commissioner Chandler Woodcock, and the Lincoln County Commissioners.
Representative Sanderson asked that the letter and attachments be embargoed and not be released to the general public until today. Later this morning I’ll be emailing digital copies of the letter and attachments to the towns of Whitefield and Jefferson, the Lincoln County News, the Kennebec Journal, and a number of other interested parties. They’re also being posted here.
I think the letter is outstanding and I have no doubt that being jointly written and signed by a Republican Representative and a Democratic Senator, this letter will raise eyebrows in Augusta and will be taken very seriously. Such bi-partisan cooperation by two legislators who normally don’t see eye to eye on much of anything is truly heartening, and I applaud them both for their willingness to put aside their ideological differences and come together on this most pressing matter. On behalf of the Clary Lake Association and the People of the State of Maine, I wish to sincerely thank Representative Sanderson and Senator Johnson for their help, regardless of the outcome of this effort.
The letter concludes with a request for “equitable relief” as opposed to enforcement action. Equitable relief is a legal term referring to a court-granted remedy and is not the same thing as enforcement.
At the town hall meeting, Sanderson and Johnson also offered to meet with Paul Kelley to discuss a possible resolution of the Clary Lake water level crisis. I understand that they planned to meet earlier this week, but I don’t know what, if anything, came of that meeting.
03 September 2015: DEP files their response to petitioner’s opposition to dismiss and motion to amend
On August 21st attorneys for Pleasant Pond Mill LLC and Aquafortis Associates LLC (“Petitioners”) filed their opposition to the State’s July 6th motion to dismiss, and another motion to amend the original 80C petition (see PPM/AQF file opposition to State’s motion, amend original petition). The DEP had 2 weeks to respond. Today, one day early, lawyers with the Attorney General’s Office fired back, filing their reply to Petitioner’s objections to their motion to dismiss and in a separate filing, their opposition to Petitioner’s motion to amend the original appeal. The State’s filing includes considerable supporting documentation including documents obtained from the Secretary of State’s Interactive Corporate Services website, a letter dated January 16, 2015 from Assistant Attorney General Thom Harnett to Paul Kelley accompanying a DRAFT Notice of Violation (NOV) prepared by DEP, another letter dated March 3, 2015 from AAG Harnett to Paul Kelley regarding his Petition for release from dam ownership or water level maintenance, and some relevant case law.
- State’s Support of their motion to Dismiss
- Documents Supporting State Findings
- State’s Opposition to Motion to Amend
The State maintains that PPM must be dismissed from the 80C action, that PPM was cancelled on March 26, 2015 and has never been (nor can be) revived for purposes of maintaining this action. According to state law, once an LLC is in dissolution it cannot file suit or maintain an action in court, and once an LLC is canceled, it cannot be revived except under certain special circumstances and then only for a specific purpose, and for a specific period of time. The State maintains that the steps Paul Kelley took to revive his company are not allowed by law and were therefore ineffective. The State also opposes Petitioner’s motion to amend the original 80C action for the same reasons: PPM doesn’t exist can’t engage in litigation.
If the judge in the case agrees with the DEP that PPM no longer exists and cannot maintain an action in court (and the evidence that this is so appears overwhelming), then PPM will be removed from the proceedings and the case will continue with only Aquafortis Associates LLC pursuing the appeal. This would be interesting since Aquafortis does not own the dam, which is the subject of the Clary Lake water level order.
02 September 2015: Legislators Enter Clary Lake Water Level Order Fray
CLA President and meeting moderator Malcolm Burson sits between State Representative Deb Sanderson and State Senator Christopher Johnson near the end of the August 26th meeting of Clary Lake shore owners and town of Whitefield representatives. Photograph by George Fergusson 26 August 2015
There is an article in this week’s Lincoln County News by staff writer Abigail Adams about the town hall meeting of lake shore owners, Whitefield town officials, and community members that was held last week, on Wednesday, the 26th of August. The meeting, originally conceived and organized by the Clary Lake Association, was held at the Whitefield Fire & Rescue building and was attended by over 60 people. The Kennebec Journal published an article in anticipation of the meeting (see: “Legislator to hear Clary Lake water level concerns at Whitefield meeting“) and I wrote about the meeting the next day (see: “Wednesday night meeting to air grievances about Clary Lake well attended“).
The primary purpose of the meeting was to provide Representative Sanderson and Senator Johnson with an opportunity to hear Clary Lake shore owner concerns and grievances. They will then jointly draft a letter to the DEP requesting equitable relief for Clary Lake shore owners (I’ll post a copy of that letter here when it becomes available). According to the article, Sanderson and Johnson also plan to meet with the dam owner to “hear Kelley’s concerns and hopefully negotiate a resolution.“
Representatives of the Clary Lake Association will be separately meeting with Jefferson and Whitefield Select Board members in the next few weeks to encourage them to play a more active role in supporting the State in their defense of the Clary Lake water level order.
01 September 2015: August 2015 water level chart archived
I’ve archived the August 2015 water level chart (at left), and what a chart it is. One glance and you can see that the water level hardly moved. For the entire month the lake level never rose above -63″ below the top of the dam and on August 7th it reached -65.16″ below the top of the dam, the lowest level I’ve ever recorded. The lake is so low in fact that water is no longer flowing out of the lake into the outlet channel and hasn’t been since early July; there’s a trickle of water flowing through the open gate in the dam but it is coming from ground water and springs in the meadow area. It’s actually been at or below -60″ below the top of the dam since July 10th. This makes it the longest stretch of the lowest water levels we’ve experienced in the last 4 years. It’s gotten almost this low before, but it has never stayed this low for this long.
The low water condition has been exacerbated by the near-drought conditions we’ve experienced so far this year. As of the end of August we had received only 18.88″ of precipitation for the year compared to 32.83″ on this date a year ago. As a result, because the ground is so dry, there has been no absolutely no runoff as the result of what little rain we have received. To make matters worse, because of the topography of the shoreline around lake, when it does rain the lake doesn’t so much get deeper as it does bigger. This then explains how last August 11th and 12th when we received 2.29″ of rain, the lake only came up 1.92″ total. This defies logic, but as those of you who have stuck sticks in the mud on your water front to mark where the water line is can attest, it ain’t moved.
This extended period of excessively low water levels has severely restricted everyone’s use and enjoyment of Clary Lake even more than usual, not to mention the ongoing impact on wildlife habitat, and water quality. There will be consequences.
31 August 2015: DEP Commissioner Steps Down to Join the Office of Senator Collins
DEP Commissioner Steps Down to Join the Office of Senator Collins
August 31, 2015
For Immediate Release: Monday, August 31, 2015
Contact: Adrienne Bennett, Press Secretary, 207-287-2531
AUGUSTA – Governor Paul R. LePage announced Monday that Department of Environmental Protection Commissioner Patricia Aho is stepping down. After four years serving in the LePage Administration, Aho has accepted a position within the Office of Senator Susan Collins.
Aho has led the Department of Environmental Protection since September 2011, having previously served as the agency’s Deputy Commissioner. At the Department, Commissioner Aho focused on making improvements to assistance, compliance and environmental literacy for all members of the regulated community, maintaining high-level protections for our natural resources.
“Pattie has been a tremendous asset to the Administration by improving efficiency and accountability throughout the Department of Environmental Protection,” said Governor LePage. “We wish her well knowing she will bring value and experience to Senator Collins’ office.”
“Working with a dedicated staff, it has been my privilege to work to improve regulatory reform, increase accountability and transparency and modernize DEP’s approach to doing business,” said Commissioner Aho. “It has been my distinct honor to serve the people of Maine as Commissioner of the Department of Environmental Protection.”
Aho will join Senator Collins’ team as the State Office Representative in Augusta. In this role, Aho will be the Senator’s representative in Kennebec, Lincoln and Knox Counties. She will also direct constituent service efforts in those areas and manage the Augusta office staff.
“I am delighted that Pattie will be joining our team as a State Office Representative,” said Senator Collins. “Pattie has a wealth of experience and brings a robust understanding of both the state and federal government to the job, as well as a deep knowledge of the area. I have known Pattie for a long time and I’m very happy to have her joining the staff.”
Aho, a native of Boothbay Harbor, is a graduate of Nasson College and earned a law degree from Western New England College, School of Law. She resides in Newcastle with her husband Ron.
Governor LePage also announced Monday Avery Day will serve as acting commissioner of the Department of Environmental Protection effective Monday, September 7. Day now serves as Governor LePage’s Senior Policy Advisor on environmental protection; agriculture, conservation and forestry; inland fisheries and wildlife; and marine resources-related legislation and regulation. He will remain active in his role within the Governor’s Office while serving as acting commissioner.
28 August 2015: Wednesday night meeting to air grievances about Clary Lake well attended
CLA President and meeting moderator Malcolm Burson sits between State Representative Deb Sanderson and State Senator Christopher Johnson near the end of the August 26th meeting of Clary Lake shore owners and town of Whitefield officials. Photograph by George Fergusson 26 August 2015
Judging from the turnout (at least 61 people, maybe more) and the feedback (more than 31 people spoke, some of them more than once) I’d say last night’s standing-room-only meeting was a great success. The meeting, which came about as a result of discussions earlier in the month between Clary Lake Association (CLA) representatives and State Representative Deb Sanderson, was well-moderated by CLA President Malcolm Burson. In an outstanding show of solidarity, both State Representative Deb Sanderson (a Republican) and State Senator Christopher Johnson (a Democrat) ran the meeting together in a refreshing show of non-partisan cooperation. While the Clary Lake water level crisis is not a partisan issue, it was still refreshing and encouraging to see our two elected representatives completely aligned and working together towards a common goal. They will be working together to draft a letter to, and bring this matter to the attention of, the Department of Environmental Protection.
One of the main goals of the meeting had been to arrange for Clary Lake shore owners and other community members share their grievances with officials from both towns in the hopes of spurring them to take a more active role in support of the State’s defense of the water level order. To that end, Representative Sanderson had extended an invitation to both Jefferson and Whitefield officials to attend the meeting. While all 5 of Whitefield’s Select Board members were at the meeting, to everyone’s surprise, none of Jefferson’s 3 Select Board members decided to attend. This was an insult to the Jefferson residents that represented over 1/2 of the people that showed up and spoke at the meeting. Continue reading
26 August 2015: Legislator to hear Clary Lake water level concerns at Whitefield meeting
State Representative Deb Sanderson contemplating the Clary Lake dam during a site visit on August 10th. Photograph by George Fergusson
A story about tonight’s meeting at the Whitefield Fire & Rescue building on Townhouse Road has appeared in today’s Kennebec Journal. KJ staff writer Paul Koenig interviewed Representative Deb Sanderson and several other people for the article. Representative Sanderson conducted a site visit to Clary Lake several weeks ago to view the current low water conditions. I think it is safe to say that Representative Sanderson was appalled by what she saw that day, prompting her to call tonight’s meeting to solicit input from Clary Lake shore owners and town officials from Jefferson and Whitefield.
A number of Whitefield Select Board members have indicated that they plan to attend the meeting, but the article suggests that nobody from Jefferson plans to be there. I certainly hope that is not the case: I stopped by to talk with Select Board member Robert Clark yesterday morning and he told me that the Board had discussed the meeting at their regularly scheduled Board meeting the night before and said that he would be unable to attend the meeting but that Select Board member Gregory Johnston planned be there. We will see. It would be unfortunate if no one from the Jefferson Select Board cares enough about the Clary Lake situation to bother attending the meeting.
The meeting is to be held at 6:00 PM and the public is welcome. The meeting was scheduled on relatively short notice and we’re still trying to get the word out. If anyone has any questions, feel free to contact me.
The picture at upper left shows Representative Sanderson viewing the Clary Lake dam during her August 10th site visit. I’ll be posting some additional pictures from that visit shortly.
24 August 2015: PPM/AQF file opposition to State’s motion, amend original petition
Last Friday, attorneys representing Pleasant Pond Mill LLC (PPM) and Aquafortis Associates LLC (AQF) made two filings in Lincoln County Superior Court. The first was an expected objection to the State’s July 6th Motion to Dismiss. The second filing was a motion to amend the original Rule 80C petition (aka the water level order appeal) which was initially filed back in February 2014. The State’s response to the Petitioner’s objections to the motion to dismiss is due September 4th. Presumably then the judge will then rule on the State’s motion to dismiss as well as the petitioner’s motion to amend the original petition.
The motion to amend the original 80C petition was apparently intended to correct or address certain deficiencies in the original filing that had been highlighted in the State’s motion to dismiss. I had wondered if PPM was going to try to join their recently dismissed appeal of Agency action with the water level order appeal but apparently not as there is nothing in the amended motion about it.
In other developments this month, according to a document filed on the State’s Interactive Corporate Services web site date August 14th, PPM has been reinstated as a LLC in good standing. This move was expected: in a 2014 Maine Supreme Court case, the Law Court determined that State law prevents an LLC in administrative dissolution from filing suit in court, they can only defend themselves in court.
16 August 2015: For waterfront owners on Clary Lake in Jefferson, the water has been lacking
Stanely Whittier and his daughter Jane Roy on the shore of Clary Lake. Photo courtesy of Central Maine Papers.
Paul Koenig, Staff Writer with the Central Maine Papers has written another great article on the Clary Lake water level crisis. Koenig interviewed Stanley Whittier, his daughter Jane Roy, and recently elected Clary Lake Association President Malcolm Burson. Koenig also talked with Keel Kemper, wildlife biologist with the Department of Inland Fisheries and Wildlife. Department of Environmental Protection spokesperson David Madore declined to answer any questions, citing the ongoing litigation. Koenig also interviewed dam owner Paul Kelley who said that if the state ever attempts to enforce the water level order, the outcome will be the state ending up taking over ownership of the dam. I for one don’t have a problem with that.
Paul Koenig and I arranged to meet later that day after he completed his interview with Stanley Whittier and Jane Roy. I gave him the 50¢ tour of Clary Lake and its sorry environs which included a visit to the totally 
useless State boat launch (left) and a hike out to view the vast drained wetland at the northwest end of the lake (right). I took him out to stand next to the channel, and it was perfectly clear from the 
still water that there is no water flowing out of the lake at this time. The last picture (bottom left) shows Paul Koenig talking with Association President Malcolm Burson on his and Eleanor Goldberg’s so-called beach.
12 August 2015: Kelley’s recent appeal dismissed from Lincoln County Superior Court
Picture of Paul Kelley taken at the 15 October 2013 Lake Shore Owner meeting. Lincoln County News photo
At the Clary Lake Association Annual Meeting back on August 1st I provided an update on the Clary Lake water level order and where things stand (see post: “2015 Clary Lake Association annual meeting a great success). During that discussion I described a July 24th filing in Lincoln County Superior Court by dam owner Paul Kelley which I had only learned about the day before. The filing consisted of an appeal of a recent DEP decision to dismiss his petition for release from dam ownership, and a request for mediation. At that time I suggested that the appeal might be dismissed because Mr. Kelley filed it himself without the benefit of counsel. As it turned out, at a conference held on August 4th, Lincoln County Superior Court Judge Daniel Billings did dismiss the appeal stating “Because the filing in this matter was made on behalf of an LLC by a non-attorney, this matter is DISMISSED without prejudice.” One would have thought Mr. Kelley would have known that a lawyer is required when a Limited Liability Company (LLC) is involved in litigation in Superior Court. He certainly does now. Continue reading
10 August 2015: Drained Beaver flowage adds water to Clary Lake
A funny thing happened over the weekend: the lake level which has been falling a consistent 1/4″ daily (due to evaporation only) had, without warning, risen 1/4″ by early Saturday afternoon without us having received any rain at all… This situation had me thinking I’d made a mistake in measuring the water level until I discovered early that evening that the marsh on the south side of Route 126/215 at the primary inlet to Clary Lake which had been recently flooded by beavers was draining into Clary Lake. The picture at left shows the inlet of the culvert well plugged by sticks and mud on Thursday afternoon with the water level less than a foot from the top of the culvert. Sometime early Saturday morning someone, most likely a Town of Jefferson work crew, brought an excavator to the site and dredged out the blockage. Continue reading
01 August 2015: Clary Lake Association Annual Meeting today!
I should have posted this a few days ago but better late than never: the Clary Lake Association’s Annual Meeting is today at 2:00 PM at the home of Ellis Percy and Joanne Tribby at 101 Old Madden Road in Jefferson. The weather looks like it will be hot, but dry. We have a very full agenda and would like to start on time, so if you haven’t already joined the Association or renewed your membership, please come early to avoid the rush. Also, there will be a potluck supper after the meeting so bring something to share, or just bring your appetite.
Here’s Page 1 of the agenda:
If you have any questions feel free to call George Fergusson (549-5991) or Ellis Percy (549-7448). Hope to see you there!
29 July 2015: North Shore Clary Lake Video
Published: 29 July 2015
The north shore of Clary Lake in the vicinity of Duncan Road has been severely impacted by the ongoing water level crisis. Now, with the lake level 63″ below the top of the dam, the water has receded over 100′ from where it would normally be this time of year. How long will this be allowed to continue?
28 July 2015: Duncan road lake shore owners severely impacted by low water
Duncan Road, north shore. The water level in this picture was 63″ below the top of the dam. Photograph by George Fergusson 28 July 2015
Everyone around the lake has been impacted by the Clary Lake water level crisis to some extent, some more than others depending on the nature of their shoreline. However, it is hard to believe the conditions the people over by Duncan Road on the north shore of the lake have been putting up with going on 4 years now. I had been over that way in my boat a few times earlier this year, but I never got too close to shore because of shallow water. I knew that the lake had receded quite a bit, but I really was not prepared for what I found today when I went over to look around. I drove over, parked, and walked around for almost an hour, taking pictures. It was a beautiful day, high summer in Maine, and not a soul to be seen. Nobody was there. No kids. No dogs. Nobody. And no wonder: it’s not a place anyone wants to hang out any more. Continue reading
21 July 2015: Lake level reaches a new high in lows
I don’t need to tell anyone that the lake level is low, that much is obvious. However the lake is now lower than anyone has seen it in more than 54 years judging from a picture taken back in the summer of 1961, and that seems like something worth telling people about. On April 21, 2012 the lake fell to a then-record low of -62.53″ but as of the other day, the lake level had fallen even lower than that, to -62.64″ below the top of the dam, where it sits now. I went over to the State boat launch with my camera to take yet another picture of how useless it is and found the water level had fallen off the end of the ramp. Continue reading
18 July 2015: A few new historical photographs
Captioned on back, “Harold and me. Henry Clary’s cottage, Clary Lake”. This is Harold and Inez Carpenter, my great uncle and aunt. Inez was my Great Aunt Belle Douglas’s sister. Submitted by Steve Giampetruzzi. Click for a larger version.
Steven Giampetruzzi has uploaded two pictures to the site of historical interest, they are undated but appear to date from the early part of the last century, sometime after 1910. One photo in particular has piqued my curiosity, it shows what is described as “Henry Clary’s cottage, Clary Lake” (at left). Does anyone know where this might have been located? Henry Clary lived and owned property in Jefferson but I was unaware also had a place on Clary. I would very much like to know where this place was located. Continue reading
18 July 2015: Annual Maine Audubon Loon Count nets 1 Loon, 1 new rock
Usually Mary and Ernie have their 16′ boat in the water, and they can usually be seen most pleasant evenings taking a slow and leisurely sunset cruise around the lake but this year there wasn’t enough water at the State boat ramp for them to launch their boat. For that matter there isn’t enough water on their shoreline for them to put in their dock either, so to conduct today’s loon count they asked me to take them around in my 14′ boat. During the loon count I managed to find a new rock on the north side of the lake off the point at the end of Duncan Road, in an area that I thought was plenty deep enough, and free of hazards. I was wrong. There are 2 buoys off the point marking shallow water ledges, and I had given them what I thought was a sufficiently wide berth. Fortunately I was not going too fast and my motor was not locked down so no serious damage was done, but my propeller got bent. I will have to pull it and file and reshape it before heading out again.