Category Archives: Petition News

News about the Clary Lake water level petition

05 October 2016: Clary Lake Water Level Order Appeal Update

Back on September 9th I wrote that a conference with the court had been scheduled for October 4th to address questions of Discovery in the Clary Lake WLO appeal. In fact, Attorneys with the Office of the Attorney General representing DEP and counsel for AquaFortis Associates (AQF) held a Status Conference by telephone yesterday afternoon with Lincoln County Superior Court Judge Daniel Billings to discuss the State’s requested discovery and the Petitioner’s objections to that discovery. “The Court needs more time” was my take away from a brief phone call I had today with Assistant Attorney General Scott Boak about yesterday’s meeting. The parties agreed to meet again towards the end of the month of October to continue their work to resolve the conflicts. A date to meet has not yet been set.

The State initially filed their request for discovery on August 2nd and their Administrative Record on August 17th; on August 30th Petitioners filed objections to the State’s discovery and on the following day, their own requested discovery to supplement the Adminstrative Record (see “AquaFortis Associates Files Objections to DEP Discovery Requests“). I understand that the State has, or intends, to object to Petitioner’s requested discovery.

The Wheels of Justice turn slowly. Stay tuned.

09 September 2016: AquaFortis Associates Files Objections to DEP Discovery Requests

You may recall back on August 2nd, DEP served Petitioner AquaFortis Associates LLC with their requests for discovery. Then on September 1st AquaFortis Associates filed a consented-to motion regarding various deadlines (see Petitioner Files Consented-To Motion Regarding Deadlines). In that filing they made clear their intention to object to (some or all of?) DEP’s requests for discovery by August 31st. On August 30th attorneys for AquaFortis Associates did indeed file 3 separate motions objecting to 1) DEP’s Request for Production of Documents, 2) their Deposition Notice, and 3) their Request for Discovery of Third Parties. The following day on September 1st they filed a Motion for Additional Evidence and Discovery. I received copies of all these filings a few days ago and have finally finished my review of them. I understand a conference with the court to address these issues has been set for October 4th. Continue reading →

01 September 2016: Petitioner Files Consented-To Motion Regarding Deadlines

Attorneys for AquaFortis Associates filed a “Motion Regarding Deadlines” in Superior Court on August 29, 2016. This motion seeks a conference with the Court in late September pursuant to the Court’s June 17, 2016 Order. The purpose of the conference will be to resolve conflicts between the parties regarding discovery requests which were served by DEP on AquaFortis on August 2, 2016. This motion was consented to by the DEP and was signed by the judge on August 30.

Typically, requests for discovery (documents, depositions etc.) are not filed with the court or made public. Therefore we don’t know exactly what has been asked for by DEP. However, the Motion gives us an idea:

4.     In accordance with the Court’s Procedural Order, on August 2, 2016, the DEP served on Aquafortis (1) the DEP’s First Requests for Production of Documents to Petitioner, (2) the DEP’s Notice of 30(b)(6) Deposition of Aqua Fortis (which DEP defines to include Richard Smith), and (3) the DEP’s Notice of Intended Discovery of Third Parties, including proposed discovery of Pleasant Pond Mill, LLC (which DEP defines to include Paul Kelley), Medius L3C, and Mr. Arthur Enos.

The motion goes on to say that “The parties also agree that a hearing with the Court to resolve discovery disputes is necessary. Aqua Fortis plans to object to the majority of the DEP’s discovery requests and the proposed discovery of third parties” and that “The parties are working cooperatively and in good faith to address the disputed discovery issues and plan on conferring to discuss these issues no later than September 7, 2016.”

September sounds like it’s going to be an interesting month; it will be very interesting to see what ends up being allowed in discovery.

This isn’t a terribly long document so I hope you’ll all take the time to read it.

Stay tuned.

22 June 2016: Superior Court Update: WLO Appeal Stayed, Procedural Order Issued

[dropcap]The[/dropcap] judge handling the appeal of the Clary Lake Water Level Order (AP-2014-01) has issued a Procedural Order based on the results of the Status Conference held back on June 7th. The Order is dated June 17, 2016 which was last Friday. The Order specifies a deadline of August 19th by which time the State should have filed the administrative record as well as their request for discovery. The real surprise in the Order is that contrary to what I had been told and contrary to what had I reported at the time (see: “Update on Superior Court Action“), the proceedings HAVE been Stayed, yet again, until August 1st. I had been assured by Assistant Attorney General Scott Boak when I spoke to him the day after the Status Conference that the suit had not been stayed so I expect the fact that it has now been stayed will come as much of a surprise to him as it did to me. No reason for the additional stay has been given.

Continue reading →

08 June 2016: Update On Superior Court Action

After attorneys with PretiFlatherty representing the dam and mill owners failed to produce a plan to repair the Clary Lake dam by last week’s June 1st deadline, people were concerned that they had come to some agreement with DEP to give them more time to respond. Also, the current Stay on the Proceedings in Superior Court ran out on June 1st as well, and we’ve all been wondering if another stay was going to be granted which would further delay the resumption of court action. With a Status Conference in Superior Court with Judge Billings scheduled for June 7th, we didn’t have long to wait for answers. I spoke with Assistant Attorney General Scott Boak this morning about what happened at yesterday afternoon’s Status Conference and he said there was no agreement between Preti and DEP going into the meeting, and the proceedings have NOT been stayed. Neither the State nor the Judge are interested in further delays.

Continue reading →

02 May 2016: State Agrees to AQF Request for Stay of Proceedings

[dropcap]Back[/dropcap] on April 20th I posted about how Aquafortis Associates LLC (“AQF”) filed yet another Request for Stay of Proceedings in the matter of the ongoing appeal of the Clary Lake Water Level Order (see: “Lawyers for Kelley, Smith file Yet Another Motion For Stay of WLO Appeal“). That latest Request for Stay was dated April 14th and requested a stay of proceedings until June 1st to give the parties additional time to try and arrive at a settlement. When I reported on this matter, the State had not yet responded to the Motion though I anticipated that they would not object to the stay request. On April 22nd they did respond, and as expected, they did not object. Continue reading →

20 April 2016: Lawyers for Kelley, Smith file Yet Another Motion For Stay of WLO Appeal

Attorneys for Aquafortis Associates LLC (“AQF”) have filed another Motion For Stay of the WLO appeal until June 1st. The motion was filed on April 14th and states that AQF, Pleasant Pond Mill LLC (“PPM”), and the Department of Environmental Protection have been “cooperatively working to resolve the issues that are the subject of Aquafortis’ appeal of the Department of Environmental Protection’s (“DEP”) Water Level Order for Clary Lake Dam (“CLD”), including issues that impede repairs to the CLD.” Continue reading →

29 March 2016: Aquafortis Associates LLC Files Amended Petition in Superior Court

Attorneys for Aquafortis Associates LLC have finally filed an amended petition in the Superior Court appeal of the Clary Lake Water Level Order. You may recall that back on January 25th the Court issued an Order granting the State’s Motion to Dismiss and gave Aquafortis Associates, LLC 21 days to file an amended petition. Rather than filing the amended petition, they instead appealed the Superior Court ruling to the Law Court on February 16th, followed not quite 2 weeks later by Requests for Stays of Proceedings of both the appeal and the underlying Superior Court action. The appeal was subsequently dismissed by the Law Court on March 1st, and the 30 day stay requested on February 16th ended last Saturday, March 26th. The amended petition was filed yesterday, March 28th. Yes, it has taken a lot longer than 21 days for the amended petition to be filed; the reason for this is explained quite well in the cover letter accompanying the amended petition. Here’s the amended petition; it’s 23 pages and a rather large file, but interesting reading:

The most significant thing about this amended petition for me is that Paul Kelley and his company Pleasant Pond Mill LLC are not parties to it. This is because the Court’s January 25th Order granting the State’s Motion to Dismiss resulted in Mr. Kelley being removed from the proceedings. With that exception, this amended petition is not a whole lot different from the proposed amended petition filed with the court last summer.

So what’s been going on?

Continue reading →

19 February 2016: Update on LD 1566 “An Act Concerning the Establishment of Water Levels”

[dropcap]I[/dropcap] am pleased to announce that at a work session held earlier today the Legislature’s Environment & Natural Resource Committee voted unanimously Ought Not To Pass on LD 1566 “An Act Concerning the Establishment of Water Levels.” In it’s place, DEP will add a requirement to their rules pertaining to water level petitions for a public informational meeting including notices in local papers, a mailing to all lake front owners, the dam owner, and the town(s) in which the impoundment resides. The purpose of the meeting is to inform everyone of the requirements of the law governing water level petitions and the actual petition and adjudicatory hearing processes, and to encourage people to find a negotiated solution to their water level issues.

Many thanks to all the people who advocated against this legislation including the Clary Lake Association, the Branch Pond Association, the Midcoast Conservancy, Trout Unlimited, the Maine Lakes Society, the Maine Audubon and others parties.

 

17 February 2016: PPM Appeals Superior Court Ruling on Motion to Dismiss

[dropcap]On[/dropcap] Tuesday PretiFlatherty attorneys filed in Superior Court an appeal of the Order issued by the Court back on January 25th approving the State’s Motion to Dismiss (see: “Superior Court grants State’s Motion to Dismiss“). The granting of the State’s Motion resulted in Pleasant Pond Mill LLC being removed from the proceedings. The granting of the State’s motion also made moot the Petitioner’s pending motion to amend their petition. The Court gave lawyers for Aquafortis Associates LLC 21 days to file a new, amended petition. That deadline was last Monday which turned out to be a holiday, so the filing was made yesterday. I picked up a copy this morning.

I am not surprised that they have decided to challenge the lower Court’s decision by appealing it to the Maine Supreme Court, and I expect they intend to appeal every unfavorable ruling that the Court hands down in this case. Classic delay tactics. This how the game is played. What will be telling is how quickly the Court acts on this. At least the filing is mercifully short:

14 February 2016: What’s Happening?

[dropcap]It’s[/dropcap] been over 2 weeks since the foreclosure/auction of the Clary Lake dam allegedly took place and we still don’t know who the new owner is, or if a transfer took place at all. Nothing has been recorded in the registry of deeds, and DEP has not to my knowledge been notified that there is a new owner of the dam. And Butch Duncan isn’t talking. So what are we to think? I have been getting calls and emails from people wanting to know what’s going on but sadly, I don’t have any answers. I could speculate, but I won’t. I must admit I expected we’d have heard something by now, but I suppose I shouldn’t be surprised by what is happening.

It seems Medius L3C is the key to sorting all this out, but good luck trying to contact them for answers as the company has no mailing address or phone number, and no contact name. This is no doubt by design. The current registered agent, a reputable company in Readfield by the name of Public Information Resource Inc., is owned by a man named Ken Keene. When I asked him for contact information for Medius L3C he gave me the name and address of Ms. Merritt Carey who was the former registered agent. However, if you contact her she claims to have nothing to do with the company any more and refers you back to Mr. Keene. You end up chasing your tail. In short, nobody including the registered agent knows who owns Medius L3C or how to reach them. Apparently the only way to contact Medius L3C is via their email address: mediusl3c@gmail.com.

Continue reading →

01 February 2016: About that Dam Auction

“Dog and Pony Show” is a colloquial term which has come to mean a highly promoted, often over-staged performance, presentation, or event designed to sway or convince opinion for political or commercial ends.

The anticipated foreclosure and auction of the Clary Lake dam took place Friday morning at 11 AM on the steps of the Lincoln County Court House in Wiscasset. The auctioneer was a man named Gregg Dorr who introduced himself as a retired attorney from Camden, hired by Medius L3C for the sole purpose of running this event. When questioned, he said his only contact at Medius L3C was with a “managing partner” of the company by the name of Matthew Staples, from Vermont. When questioned about the new Medius L3C Registered Agent, he explained the change in Registered Agent from Ms. Merritt Carey to a Commercial Registered Agent from Readfield was due to a serious heart condition requiring that she give up the job immediately. If you’re interested, here is the Change of Registered Agent Form from the Secretary of State’s website. Continue reading →

31 January 2016: Clary Lake Shore Owners Rubin & Ayer File Suit in Superior Court

IMG_20150828_155836 (Custom)

Bob Rubin and Cheryl Ayer sitting on their dock. Photograph by George Fergusson, 28 August 2015

[dropcap]In[/dropcap] yesterday’s Central Maine Papers article about the Clary Lake dam auction, reporter Jessica Lowell attempted to convey a sense of the frenetic, escalating pace of recent events surrounding the Clary Lake water level crisis by listing some of what just took place in January. One item that should have grabbed your attention was the statement regarding Clary Lake shore owners Robert Rubin and Cheryl Ayer, husband and wife lawyers, who have filed suit against Paul Kelley and Richard Smith in Lincoln County Superior Court. They are seeking damages for harm done to their Clary Lake front property as the result of low water conditions that have severely impacted the use and enjoyment of their property. The picture at left, taken by me last August, shows Bob and Cheryl sitting on their dock 6′ above bare rocks. That is as close as I could approach in my boat.

Continue reading →

30 January 2016: Superior Court grants State’s Motion to Dismiss

I must apologize, all the hype and hoopla surrounding the recent foreclosure and auction of the Clary Lake dam property has unfairly eclipsed a much more exciting and significant event that I’m only now finding the time to write about: I learned a couple of days ago that on Monday, January 25th the Lincoln County Superior Court issued a ruling in favor of the State’s motion to dismiss. This is fantastic news and represents a major victory for the Attorney General’s Office, and for DEP and it opens the door for aggressive enforcement action.

The Order itself is quite short and a little hard to understand so I will excerpt and explain as best I can the relevant portions from my lay person’s point of view. If you just want to see the order, scroll to the bottom of the post where I’ve included links to the Order and the briefing documents. First keep in mind that the phrase “motion to dismiss” does not mean that the State has asked the court to dismiss the whole appeal of the water level order, as pleasant a thought as that might be. It means that the State has selectively identified parts and pieces (and in this case, parties) that they feel are not relevant to the case, not applicable under the law, or for some other reason just shouldn’t be in there. Typically when a party files a lawsuit they toss in everything including the kitchen sink. It is the responding party’s prerogative to then ask the Court to cut it down to its essential worthy elements.

Continue reading →

30 January 2016 Central Maine Papers: Clary Lake dam auction draws a single bid

DSC_0804My apologies for not posting something before this about yesterday’s auction of the Clary Lake dam, but I’ve been a little busy. I know there’s a lot of interest in who showed up and what happened. To start, there is an excellent article on the Central Maine Papers site this morning (the print editions being the Kennebec Journal and the Morning Sentinel) by Staff reporter Jessica Lowell that will answer some of your questions: 

Clary Lake dam auction draws a single bid

20 January 2016 Lincoln County News: Clary Lake Dam Up for Auction

The Clary Lake Dam in December 2015. Due to a foreclosure, an auction has been scheduled for the Clary Lake Dam on Jan. 29. (Photo courtesy Clary Lake Association)

There’s a well-written, factual article in this week’s Lincoln County News by staff reporter Abigail Adams about the upcoming foreclosure and auction of the Clary Lake dam.

Lincoln County News: Clary Lake Dam Up for Auction

See related article from January 5th in a post on this site entitled Enos assigns Clary Lake dam mortgage to Maine company.

20 January 2016: Clary Lake Association withdraws from settlement discussions

As many of you know, the Clary Lake Association has been in settlement discussions with Paul Kelley to buy the Clary Lake dam for some time now in the hopes that we could end this lake level crisis that is now heading into its 5th year. At the same time we have also been negotiating to purchase the Clary Mill property, either separately or as a “package” which property is owned by Richard Smith of Aquafortis Associates LLC. It’s not that we want to own the Mill (we don’t), we’re only interested in the dam but the properties are so entangled that it is virtually impossible to peacefully purchase and own just the dam without owning, at least briefly, the mill property as well. This is because of the restrictive covenants placed on the properties in 2013 and the red building (with its attendant easements and maintenance issues) on top of the dam, which building happens to belong to Aquafortis Associates.

These and other factors together have horribly complicated what in theory should have been a simple real estate negotiation. Whether by accident or design, the Clary Lake dam has become so hard to purchase and unattractive to own that on the advice of town counsel, the Whitefield Select Board has voted TWICE to waive foreclosure of the dam for unpaid back taxes because of concerns over “legal entanglements.” The first vote was at a Special Select Board meeting on March 24, 2015, and the second just two weeks ago at their regularly scheduled Select Board meeting on January 5, 2016. Back taxes for 2014 and 2015 totaling just $398.87 remain unpaid. Continue reading →

27 December 2015: Lake Level now where it should be this time of year

waterlevelchart_2feet

The December 2015 water level chart for the day after Christmas showing the lake level has finally risen above -24″ below the top of the dam and is now in the allowable range for lake levels under the Clary Lake water level order.

[dropcap]Sometime[/dropcap] late on Christmas day the lake level, which has been gradually rising for the past few weeks, finally rose above -24″ below the top of the dam. This marks the first time since the Clary Lake Water Level Order was issued in late January of 2014 that the lake level has actually been at or near where it is should be for a particular time of year. Yes, it has been higher a few times in the past few years, and in fact it came within 12″ of the top of the dam last spring, but at that time it was still a foot short of where it should have been at ice out. And while it’s nice to see the lake more or less where it should be going into winter (at or near 2 feet below the top of the dam), we could really have used the water this past summer when the lake sat for months at historic lows, to everyone’s dismay. Continue reading →

29 October 2015: Water Level Order Enforcement: Where to from here?

[dropcap]I’ve[/dropcap] received a lot of inquiries about the September 28th Notice of Violation (NOV) and the recently issued letter from the DEP  denying the dam owner’s request for a stay of enforcement, with everyone mostly wanting to know what’s next? Where does it go from here? My honest answer is I don’t know what’s next and I’d rather not engage in speculation. I have been pointing people at the Department of Environmental Protection’s Enforcement and Compliance web page for general information, and the Department’s “Non-Compliance Response Guidance” document for more a more detailed look at DEP’s enforcement options. One thing is perfectly clear: the DEP has come out swinging and has every intention of vigorously pursuing enforcement of the Clary Lake water level order.

23 October 2015: DEP denies PPM, AQF request to stay enforcement action

[dropcap]In[/dropcap] a 5 page letter issued just yesterday, the Department of Environmental Protection has denied the request by PretiFlaherty lawyers that they stay their enforcement action. The request for the stay was made in response to the recently issued Notice of Violation (EIS #2015-006-L) and was made on behalf of Clary Lake dam owner Pleasant Pond Mill LLC (PPM) and Clary Mill owner Aquafortis Associates LLC (AQF, collectively Petitioners) by letter dated October 8th. The Department is standing firm on their decision to enforce the Clary Lake water level order (WLO) at this time, citing overwhelming evidence of violations by the dam owner. The letter mentioned a September 22nd site visit by Department staff at which time they noted among other things, extreme low water conditions, declining wetland habitat, and a useless State boat launch. The letter also mentions and cites concerns raised in the letter jointly written by Representative Deb Sanderson and Senator Chris Johnson, and in the letter from the Whitefield Select Board, both of which appear to have been carefully considered in the Department’s decision to take action at this time. Continue reading →