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: Superior Court
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
19 June 2020: State Files Brief in AQF WLO Transfer Appeal
On Friday June 19th the State of Maine timely filed their brief in the matter of Aquafortis Associates, LLC v. Maine Board of Environmental Protection Docket No. WISSC-AP-20-04. The original appeal was filed by AQF in December 2018 in response to DEP’s issuance of an Order transferring the Clary Lake Water Level Order from Pleasant Pond Mill LLC to the Clary Lake Association, after we bought the dam in October, 2018 and it’s taken a convoluted and circuitous route to get where we are today. If you’re wondering WHY Aquafortis Associates LLC decided to spend the time and money appealing the WLO transfer, you’re not alone. You may want to also review Aquafortis Associate LLC’s brief, previously filed on May 27th. Seeing as how this is an ongoing case in which the Clary Lake Association is an interested party, I’m going to refrain from further comment at this time.
29 May 2020: AQF Files Brief in WLO Transfer Appeal
On May 27th Aquafortis Associates LLC [AQF] by their counsel Dennis Carrillo finally filed their brief in their ongoing appeal of the Maine DEP’s December 2018 Order transferring the Clary Lake Water Level Order [WLO] to the Clary Lake Association [CLA]. To remind everyone how we got here: when the CLA purchased the Clary Lake dam in October 2018, DEP rules required we file an application with the Department requesting the Order be transferred from Pleasant Pond Mill LLC (in whose name it was originally issued) to the CLA. We did that, and the DEP approved the transfer request in early December 2018. Later that month AQF appealed the DEP transfer order to the Board of Environmental Protection [BEP] who subsequently denied their appeal at a hearing held in Augusta in June 2019. AQF then appealed the BEP ruling to Kennebec County Superior Court in July 2019. In early February 2020 the Kennebec County Superior Court judge granted a motion to change the venue to Lincoln County. In early March of this year, a scheduling order was issued and AQF has finally filed their brief, which brings to now.
Here’s the AQF brief:
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.
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.
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
26 December 2018: Update on Rubin v. Smith Lawsuit
The lawsuit that CLA members Robert Rubin and his wife Cheryl Ayer brought against Richard Smith, Aquafortis Associates LLC, Paul Kelley, and Pleasant Pond Mill LLC back in January 2016, finally, after numerous delays and stays, went to trial on December 20th and 21st in Lincoln County Superior Court. The presiding Judge in the case is Justice Billings, the same Judge that spent 4 years presiding over the Clary Lake Water Level Order appeal so he’s no stranger to Clary Lake, its characters, and its issues. Bob and Cheryl’s lawsuit was initially delayed to allow the WLO appeal to finish (which concluded in February 2018) and then delayed further to let Kelley’s bankruptcy finish. When we ended up closing on the dam this past October, the Rubin/Ayer lawsuit finally went forward. Bob asked me early on not to write about the lawsuit as he didn’t want the publicity. Now that the hearing has taken place, the lid is off. You can read more about the trial in the latest Central Maine Papers article about Clary Lake. Continue reading
20 March 2018 Central Maine Papers: Clary Lake residents await enforcement of water level order
There is an article in today’s Central Maine Papers (Kennebec Journal, Morning Sentinel) about the recent Superior Court ruling by staff writer Jessica Lowell:
Clary Lake residents await enforcement of water level order following years of dispute
Love all the publicity 🙂
Here’s an archived copy if perchance you can’t get to the newspaper’s website:
20 March 2018: The Clary Lake Water Level Order Stands
It’s been 3 weeks since the recent Superior Court ruling affirming the Clary Lake Water Level Order, and Aquafortis Associates LLC has apparently decided not to challenge it. I just spoke to the Lincoln County Superior Court Clerk who confirmed that no filing announcing a Law Court appeal had been made by the March 19th deadline. Also, rumor has it that Preti Flaherty who for years has been counsel to Aquafortis Associates no longer represents them. You can’t go to the Supreme Court without a lawyer.
While I’m pleased as can be, their decision not to appeal does not come as a big surprise to me. And that’s that.
05 March 2018: What’s Next for the Water Level Order?
Hmmmm…
In light of the recent Superior Court decision affirming the Clary Lake Water Level Order [WLO], people are quite justified in asking “What’s next?” regarding the DEP taking enforcement action. The Water Level Order after all was issued over 4 years ago and we have been waiting way too long for the court case to conclude. Winning this hugely important battle was a crucial step towards bringing the Clary Lake dam into compliance with the WLO, but the war isn’t over yet. While I don’t know exactly how things are going to play out, I do firmly believe (and have believed all along) that we will ultimately prevail in our battle to restore Clary Lake, and I will continue to do everything in my power to bring about a satisfactory resolution of our water level crisis as quickly as possible. But what’s next, and how long do we have to wait for a resolution? Continue reading
27 February 2018: CLARY LAKE WATER LEVEL ORDER UPHELD
Finally! After 4 long years of legal wrangling, yesterday Justice Billings issued his Decision and Order in the matter of Aquafortis Associates LLC [AQF] vs Maine Department of Environmental Protection, denying AQF’s Rule 80C appeal and fully AFFIRMING the Clary Lake Water Level Order. All of AQF’s arguments were denied. ALL of them. The document is 17 pages long and totally worth reading fully. Each argument is addressed separately and in great detail:
The Decision did come sooner than I had anticipated; I was figuring we’d be lucky to get a ruling before April or even May. I’ve been saying all along that I fully expected the court to uphold the Order so this was not really an unexpected outcome, but that doesn’t make it any less noteworthy, or exciting. I can hardly contain myself 🙂
It will be interesting to see what happens next.
08 February 2018 Centralmaine.com: Clary Lake Dam water level order appeal heard in Wiscasset court
Clary Lake Dam water level order appeal heard in Wiscasset court
Here’s an archived PDF copy if for some reason you can’t get the on line article.
07 February 2018: Update on the Clary Lake Water Level Order Appeal
I attended the hearing for oral arguments on the Clary Lake water level order appeal yesterday in Lincoln County Superior Court (case AP 2014-1, Aquafortis Associates LLC [AQF] v. Maine Department of Environmental Protection [DEP or Department]). I was accompanied by my wife. In addition, Clary Lake Association President Malcolm Burson and Board member David Knight were there along with 3-4 people from DEP, a few people I did not know, and a couple of reporters. Paul Kelley and Richard Smith were also there. AQF was represented by attorneys Timothy D. Connolly and R. Benjamin Borowski; Attorney Anthony Buxton was NOT there; I don’t know if his decision to not show up is significant or not, but I was quite surprised by his absence. The State was represented by Assistant Attorney General Scott Boak. The purpose of the hearing was to give counsel for each side an opportunity to verbally present their case to the Judge. Their oral presentations closely followed their respective briefs (see: 10 October 2017: Aquafortis Files Rule 80C Brief, 16 November 2017: State files Response Brief, and 05 December 2017: Aquafortis Associates Replies to State Brief). You’ll find a few more pictures from the hearing in the new Winter 2018 photo gallery. Continue reading
05 February 2018 Reminder: WLO Appeal Hearing for Oral Arguments Tomorrow, February 6th
A quick reminder that a hearing for oral arguments in the Clary Lake Water Level Order Appeal is scheduled for tomorrow, Tuesday February 6th at 1:30 PM at the Lincoln County Courthouse in Wiscasset. The hearing is expected to last about 1 hour. I wrote about this in a Water Level Order Appeal Update post back on January 11th. The hearing will be in the Superior Court Room on the second floor of the Lincoln County Courthouse building. If you’re going to attend, plan to show up at least 30 minutes early; on court days, parking can be hard to find and there is a metal detector to pass through which slows down people entering the building. You’ll want to be on your best behavior and should leave your attitudes at the door: there will be no opportunity to speak, and disruptions of any sort will likely not be tolerated by the Judge. So no clapping, hooting, booing, or general mayhem; this is an opportunity to listen; pay attention and you’ll probably learn something. Make a scene and the lot of us will probably be thrown out of the court room 🙂
Assistant Attorney General Scott Boak will be there representing the Department of Environmental Protection. Attorney Anthony Buxton and likely several other lawyers from PretiFlaherty will be there representing Aquafortis Associates LLC.