Category Archives: Petition News

News about the Clary Lake water level petition

24 July 2013: Setting the record straight: Kelley has no DEP permit

pinocchio_0_0Kelley did not get a “permit” from DEP to “lower the lake level” to “fix the dam” despite what he keeps saying to the contrary. He’s made that statement at the public hearing, he’s made it in official documents of record since then, he said it at a Whitefield Selectmen’s meeting last spring, and he said it again in his 23 July 2013 interview with Channel 13’s reporter Marissa Bodnar. Kelley would like you think he’s has an official Department of Environmental Protection sanction for his negligent dewatering of Clary Lake, but he doesn’t. He’d also like you to think that he was going to fix the dam until we filed the water level petition. Does anyone really believe any of this tripe?He had the fall of 2011 to fix the dam but he did nothing- I didn’t file the petition until January of 2012. What was stopping him?

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23 July 2013: Channel 13 News doing a story on Clary Lake Water Level Petition

channel_13_news_crew01Channel 13 News is doing a segment on the Clary Lake water level petition that is supposed to air tonight at 6 PM. I got a call this morning from Marissa Bodnar, news reporter for Channel 13. She and her camera man Mike came by around 1PM and interviewed me, took a look at the lake, then headed over to the dam to meet up with Paul Kelley and get his side of the story.

19 July 2013: Tim Chase makes an offer on the dam

forsalebyowner-customTim Chase told me today that after much thought he has put in an offer on the Clary Lake dam! As many of you know, Tim’s father Chester Chase owned the dam for years and as a teen Tim worked at the mill and help operate the dam making him a perfect choice to take it over. In fact I can’t think of anyone I’d rather have own it. Tim owns the property adjoining the Clary Mill property on the north. Of course, there is no guarantee that Kelley will accept Tim’s offer, but if he really wants out from under the dam, here’s his chance.  Tim sent me a copy of his offer:

It sure looks legitimate to me. I’ve asked Tim to keep me posted on developments.

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11 July 2013 Kennebec Journal: Clary Lake property owners putting hopes on water level management plan

newspaper-salesman-1flip-customPaul Koenig has written another article which has appeared in today’s Kennebec Journal. Paul and I spoke several times over the past few days about the closing arguments that Kelley and I submitted last Monday. I hadn’t expected the article to be published until tomorrow. Many thanks to Brandon K. for bringing it to my attention.

Here’s a link to the online version:

It’s a good article; I have been pleasantly surprised in recent months with the coverage we’re getting from the local papers. Kelley is striking out at every turn, you’d think he’d read the handwriting on the wall and start taking a different, more conciliatory stance; his endless strident objections are falling on deaf ears. The Department is going to slap an order on his breached dam and it’s not going to specify a water level that is 2.7′ below the hole in his dam. Why he thinks the condition of the dam is relevant to the determination of a suitable water level for Clary Lake, I have no idea. He’s making that part up, along with a whole lot of other stuff. There is a way out of this mess he’s in but he’s just too damned stubborn, spiteful, and vindictive to consider it.

10 July 2013: Survey Plans of Clary Mill Property and Clary Lake Dam

compassI got my hands on copies of some survey plans some time ago. I wasn’t planning on releasing them for general consumption just yet but Paul Kelley posted one as part of his  FOAA booty so I figure I might as well put them all out there. First a little history: Back in 1981 there was a boundary dispute between Chester Chase and Albert and Alden Boynton. The property was surveyed by Coffin Engineering and the case went to court. As is the case with most boundary disputes that go to court, nobody but the lawyers won but the boundary lines did get established in the process. These two survey plans are sort of “before and after” plans: Continue reading

10 July 2013 Commentary: Paul Kelley fabricates reality to suit his own ends

mummy_falling_apart_0Paul 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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10 July 2013 Lincoln County News article: DEP receives final comments on Clary Lake Dam

newsletter01An article by Shlomit Auciello has appeared in this week’s Lincoln County News (on page 12). Ms. Auciello has done a good job of summarizing both Kelley’s closing arguments and mine. For those of you who don’t want to slog through Kelley’s painfully obtuse 44 page closing brief, this is a good alternative 🙂

08 July 2013: [UPDATED] A very few thoughts on Kelley’s “Final Brief”

jackass-donkeyI 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.

08 July 2013: Petitioner’s Findings of Fact and Conclusions of Law submitted

phewPhew. I have submitted the Petitioner’s Findings of Fact and Conclusions of Law to the Service List, with time to spare even. Then in what can only be described as “totally anticlimactic”, I immediately received auto-responder email from Heather Parent informing me that she’s on vacation this week and won’t return to work until July 15th. Then I thought, far be it for me to begrudge Ms. Parent a vacation: she’ll arrive back at work next week, ready to munch tigers, I’m sure!

So this is a big milestone! Submitting of findings represents the final step in the petition process, at least from our point of view. No more submissions, no more motions, no more responses. The Department is done collecting evidence. It’s now up to them to do the voodoo they do so well: deliberate, then draft the water level order and slap it on the Clary Lake dam. Hopefully this will happen sooner rather than later.

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06 July 2013: Weekend Update, Findings, KML fun, etc.

eyesI hope everyone has been enjoying the hot weather we’ve been getting. I for one am grateful for living close enough to the lake that I can just throw myself in the water to cool off whenever I feel like it, and I’ve been feeling like it quite a bit. It’s hard for me to imagine how people can survive in the city in this kind of heat. We’re fortunate to have received so much rain lately, some of those afternoon thunderstorms have been some real splashers. While they haven’t done much to cool the air off, it’s been enough to largely offset the falling lake level. In the first 6 days of this month we’ve received almost 1″ of rain.

Tomorrow afternoon I’m heading up to the Branch Pond Association annual meeting to talk to them about the water level petition process. Their public hearing is scheduled for August 23rd. On the off-chance anyone wants to go with me, I’ll be leaving about 1 PM. Give me a call.

When I haven’t been floating in my tube this past week I’ve been sitting at my computer working on my Findings of Fact and Conclusions of Law, the deadline for submission of which is 5 PM this coming Monday afternoon. I’m in good shape and expect to get them submitted sometime around mid-day so I can take the rest of the afternoon off and float in my tube. I’ll post them here and send around a Petition Update after I’ve submitted them.

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24 June 2013: DEP Issues Procedural Order #7

bam-customPresiding Officer Heather Parent has issued the Department’s Procedural Order #7. It was sent to the service list (along with an updated service list) by Beth Callahan a little before 4 PM today. First and foremost, the order addresses the recent Clary Lake Association motion filed by Robert Rubin, Association Counsel, calling for a prompt final date for closing arguments:

“Following receipt of this Order, the Department invites the parties to submit final closing arguments about the petition. Closing arguments must be submitted to the Department no later than July 8, 2013 and must be limited to the criteria outlined in 38 M.R.S.A. § 840 (4).”

This is an aggressive schedule, suggesting that DEP is done fiddling around and is ready to get down to business. This works in our favor. Ms. Parent also ruled on my motion to supplement the record with additional information and Kelley’s motion to for a new hearing. She denied them both. I’m content. It would have been nice to get more stuff into the record, but it’s not necessary.

L22585BN DEP Procedural Order #7

Here’s the revised Service List:

Service_List_17-June-13

22 June 2013 Lincoln County News: Lake association calls for speedy decision on water level

newspaper_bw-customA short and sweet article in this week’s Lincoln County News by Shlomit Auciello about the Clary Lake Association’s short and sweet motion to set a deadline for submission of Findings of Fact and Conclusions of Law. The actual motion was filed by Bob Rubin, counsel for the Association back on June 12th. We have not yet received a response from DEP nor has Kelley filed an objection to it.

20 June 2013: MEMA Dam Inspection shows no change to Clary Lake dam safety status

inspector1_0Tony Fletcher, State Dam Inspector did in fact inspect the Clary Lake dam last Tuesday morning as previously suspected, accompanied by another engineer by the name of Blaine Cardali. Present also were Paul Kelley representing Pleasant Pond Mill LLC and Richard Smith representing Aquafortis Associates LLC. So Paul Kelley got his MEMA dam inspection after all, but he didn’t get the report he was looking for, or much of a report at all, judging from an email sent by Tony Fletcher to Kelley late Tuesday afternoon, summarizing their nearly 3 hour visit to the dam in a few short sentences:

Regarding the “hazard” of the dam, in my opinion Clary Lake Dam should remain a “low potential hazard dam”. In terms Maine State Law, low hazard dams do not require emergency action plans or remedial action.

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19 June 2013: Tuesday morning confab at the dam

eyesThe Whitefield informant network is alive and well- little can transpire in the town of Whitefield that isn’t observed by at least one person who spends at least part of the day hanging out at the Whitefield Superette, drinking coffee and holding office. According to several reports, there was a gathering of folks at the dam for a couple of hours yesterday morning, from about 9 AM to a little after 11 AM. Paul Kelley and Richard Smith were there, and one or more people “from the state” judging from their description. They were reportedly standing on the road and pointing at the dam when observed by one passerby.

I suspect it was most likely Tony Fletcher, State Dam Inspector with the Maine Emergency Management Agency (MEMA) since according to Paul Kelley, he’s the only person in the State qualified to point at dams. Certainly nobody at DEP is qualified to point at dams. I’m not qualified to point at dams. Kelley can point at his dam of course.

I’ll try to confirm this but it sounds like Kelley managed to convince MEMA to come out and do another dam inspection, which is not really surprising considering the big stink Kelley created around this issue. I’ll simply remind everyone: the condition of the dam impounding Clary Lake is not relevant to the determination of a water level for the lake. Period. End of discussion.

12 June 2013: Clary Lake Association files motion to set deadlines for findings of fact and conclusions of law

thumbs_up1Robert J. Rubin, counsel for the Clary Lake Association has filed a motion with the Department of Environmental Protection requesting the Hearing Officer set a “prompt final date for submission of the proposed Findings of Fact and Conclusions of Law of the Public Hearing from August 17, 2012.” The Association feels that these petition proceedings have gone on entirely too long and it’s time for some substantive action on the part of the Department. It is hoped this short and sweet motion will spur the Department to move quickly and decisively in the right direction on this matter.

I commend Bob Rubin and through him, the Association, for taking this assertive step.

10 June 2013: PPM submits revised response to Procedural Order #6

dohPaul Kelley has submitted a revised response to Procedural Order #6 along with a typically confusing, profusely-footnoted cover letter explaining what the error was in the original copy. Rather than stopping there however, which would have been fine, he continues on in excruciating detail to explain WHY the error occurred and he has the gall to rest the blame with the Presiding Officer herself, for making him do it:

Kelley can do no wrong: even when he makes a mistake it’s someone else’s fault!

08 June 2013: A few thoughts on Kelley’s recent vitriolic response to Procedural Order 6

angry_business_manAfter having his request for an extension denied, I expected Paul Kelley to take things to another level but I did not expect him to lash out with an angry, hate-filled, indiscriminate attack against anyone and everyone. Nobody is above ridicule or scorn. Clearly, Kelley is losing this battle and he knows it, and this latest tirade is proof of that. For those of you who haven’t figured out what his response was all about, he’s appealing the Presiding Officer’s decision denying him an extension to the DEP Commissioner. That intent was contained in the last cryptic sentence on the very last page (the reference to 06-096 Chapter 3 refers to the Department of Environmental Protection’s rules concerning the conduct of licensing hearings, with section 4(D) being ruling appeals). The rest of the document is Kelley going postal: pure and simple spiteful vitriol or as the saying goes, “shock and awe”. That’s sure going to go over well with the Department. Not.

In his anger Kelly perhaps revealed a few things that a calmer, more cautious Paul Kelley would not have said. For example, I have suspected for a while now that his plan with the petition for release from dam ownership or water level maintenance (which he prefers to call “Clary Lake Dam abandonment proceedings”) was to try and stall the water level petition long enough to get a breach order from the State but of course he couldn’t come right out and say that because that’s not the purpose of the statute. He has to pretend he is looking for a new dam owner because to do otherwise would be to engage the State’s resources under false pretenses and make a mockery out of the system. Well he came right out and said in his response what the real deal with the petition for release from dam ownership is about, in footnote 6:

…”that the anomalies cited herein and in previous filings have largely triggered recent Clary Lake Dam abandonment proceedings by PPM – proceedings seemingly likely to lead to a formal (but superfluous) breach order by the Commissioner, which will supercede any Water Level Order which may issue from this proceeding.”

Caught in the act of playing both sides against the middle. Nice work Kelley, thanks for putting that bit on the record. DEP just loves to be played for a fool. Your chances of actually getting a breach order on the dam? Zero. Watching you try? Priceless.

I have a few other observations I’ll keep to myself for now. I have no intention at this time commenting on this response. There are several issues he’s raised (over and over and over) which will be adequately dealt with when we prepare our Findings of Fact. The DEP has their hands full for the time being. I see no sense in adding to the furor at this time.

07 June 2013: Pleasant Pond Mill LLC Reply to Procedural Order #6

daffy-customAt 4:50 PM this afternoon (did I call that or what!) Paul Kelley posted his response to… Procedural Order 6? I thought today was the deadline for comments on documents released as an addendum to Procedural Order 5. Oh well. What do I know. I’m sure it will all make sense when I read it. Without further adieu:

Kelley also included 4 other documents which appear stuff he got from a FOAA request. Ain’t looked at `em:

Comments later after I’ve actually read this stuff.

07 June 2013: Petitioner’s Comments on the 28 August 2012 MEMA Report Addendum to Procedural Order 5: Dam Safety

dead_endI have submitted Petitioner’s comments on the Maine Emergency Management Agency material, with time to spare. If Kelley stays true to form, he’ll be posting his comments about 4:50 PM. As I mentioned earlier, I hadn’t planned on responding to the MEMA comments because…  well, what is there to say? Nonetheless since Kelly is making such a big deal out of this, I thought I should say something:

Kelley is chasing down a dead end road with this dam safety issue.