Category Archives: Superior Court

11 January 2018: Water Level Order Appeal Update

A hearing for oral arguments has been scheduled in Lincoln County Superior Court for Tuesday, February 6, 2018 at 1:30 PM. The hearing is expected to last approximately 1 hour. The purpose of the hearing is to provide an opportunity for the parties to speak in support of their written briefs which have previously been submitted to the court.  The hearing is open to the public and Margaret and I plan to attend. I expect some CLA Board members will be there as well.know. 

For those of you who want to review the briefs in this case, here are links to the posts about them:

 

05 December 2017: Aquafortis Associates Replies to State’s Brief

On Monday December 4th, counsel for Aquafortis Associates LLC [AQF] filed their reply to the State’s brief which the State filed with the Court on November 15th. This latest filing brings the briefing schedule of the Clary Lake Water Level Order [WLO] appeal to a close. Next up, the Court will schedule a hearing so the parties can present their oral arguments. I expect this will be sometime early in the new year.

This final reply brief (only 11 pages) addresses the arguments presented by the State in support of the WLO and the procedures DEP used to establish it, and reiterates AQF’s arguments against the WLO that were put forth in their original brief. I consider most of AQF’s arguments to be categorically specious i.e., superficially plausible, but actually wrong. For example, AQF argues that 38 M.R.S.A. § 841(1) implies that DEP can’t issue a WLO on a breached dam (see page 4). Nice try. First, the statute says nothing of the kind and second, DEP doesn’t believe the Clary Lake dam is breached and neither do I, and for that matter, neither does MEMA. Nonetheless this doesn’t stop AQF from making that claim. They also continue to demonstrate their lack of understanding of the difference between a water level and a water elevation by arguing that the DEP didn’t establish a water level based on evidence solicited at the Public Hearing.

Here’s the brief:

Stay tuned. I’ll post the court schedule as soon as I get it.

16 November 2017: State Files Response Brief in Superior Court

Yesterday afternoon, as expected, Assistant Attorney General Scott Boak hand-delivered DEP’s Reply brief to Superior Court, thereby responding to the Rule 80c Brief filed by Aquafortis Associates LLC [AQF] on October 1oth. This much-anticipated brief (40 pages plus 36 pages of supporting documents) represents the State’s one opportunity to present written arguments to the Court supporting the Clary Lake Water Level Order and Attorney Boak has done an outstanding job of making the State’s case. If you’ve been following the Clary Lake water level saga at all closely, you’re really going to enjoy reading it. For me, it was a trip down memory lane. Granted, parts of it are a little difficult to get through but for the most part I found the brief easy to read, absolutely fascinating, and a joy to read: 

As with the Rule 80C Brief filed by AQF, the State’s Brief includes numerous references to documents in the State’s Administrative Record (numbered 1 through 264). If you want to track down any given AR document to see what it says, you’ll find it in the following directory which includes an index file 000-Index.pdf so you can tell what’s what.

Next up: According to the Court’s briefing schedule, AQF will need to file their reply brief by December 4th. The Judge will then schedule a hearing for the parties to present their arguments, probably sometime after the first of the year.

Stay Tuned.

21 October 2017: Update on Clary Lake Water Level Order Appeal

Back on October 10th I posted Aquafortis Associates LLC’s [AQF] Rule 80C Brief and at the time I said I hadn’t read it but that I would shortly and would post my thoughts “at a later date.” I know some of you have been waiting for me to do just that. Well it’s a later date, I have read it, several times even, but have decided I will keep my thoughts on the brief to myself for now except to state that I think the arguments put forth in it are specious and without merit. I’d also suggest that apparently neither AQF nor their counsel has any idea what a bathymetric survey is or what it’s used for, and they seem equally confused over the difference between a water level and a water elevation. I don’t know whether this confusion is real or contrived, but I’m sure the State’s brief will clear it up.

The State’s response brief is due November 15th. I’ll post it as soon as I get a copy.

10 October 2017: Aquafortis Associates Rule 80C Brief Filed

Wait. What?

After three and a half years of countless delays and numerous stays, the Clary Lake Water Level Order appeal is finally getting down to business. Late last Friday counsel for Aquafortis Associates LLC (AQF) hand delivered their 40+ page brief to Lincoln County Superior Court. AQF is requesting the Court “reverse, remand, or modify” the Clary Lake Water Level Order and this brief explains their reasons for their request. I wanted to get it on the website without further delay. I haven’t read it yet but I will do so shortly and will post my thoughts on it at a later date. 

 

22 August 2017: Clary Lake Water Level Order Appeal Update

At long last, 3 Orders which we’ve been patiently waiting for since the hearing on April 25, 2017 have finally been issued by Lincoln County Superior Court Judge Daniel Billings. The first Order was a Joint motion for Extension of Filing Deadlines to April 28, 2017 (thanks for that!) and was GRANTED. The second Order has two parts, the first, Petitioner’s Motion for Taking of Additional Evidence and Discovery is DENIED, and Respondent’s Motion for Consideration of Extra-Record Evidence is GRANTED. The third Order pertains to Petitioner’s Motion Requesting Court Modification of the Record and GRANTS the motion with respect ONLY to those exhibits agreed to by DEP. The remainder of Petitioner’s motion is DENIED with respect to those exhibits DEP felt were not relied upon by them in preparing the Water Level Order [WLO] and hence were not relevant in a review of the WLO.

In short, these Orders represent a favorable decision for the State: DEP got everything they asked for while Aquafortis Associates LLC got none of what they asked for except for several concessions not objected to by the State:

So after three and a half years of delays, stays, and stalling tactics (and let’s not forget the 13 months of pointless mediation), the jockeying for position is finally OVER and the time has come to hear the arguments for and against the Clary Lake Water Level Order. We won’t have long to wait: included with the Orders is a Notice and Briefing Schedule which spells out the schedule for the filing of briefs and responses. Assuming everyone uses their allowed time to file their briefs and nobody tries to delay the proceedings further (I expect the Judge has little tolerance for additional delays from here on out) AQF’s brief will be due no more than 40 days from August 15th, by September 25th. The State then has 30 days from the filing of the Petitioner’s brief to file their response, by October 25th. Finally, the Petitioner’s response to the State’s response will be due 14 days later, around October 8th.

For background on the proceedings leading up to these Orders, see “24 March 2017: State files 2 Motions in Aquafortis v. Maine Department of Environmental Protection WLO Appeal” and “11 April 2017: State Files Response to AQF Motion to Modify Record.”

I have not heard anything about the Rubin/Ayer lawsuit lately but it seems reasonable to expect that with the WLO appeal now moving forward, that their suit against Kelley and Smith will also start moving forward.

10 May 2017 Lincoln County News: Despite Bankruptcy, Clary Lake Dam Situation ‘Status Quo’

Lincoln County News staff writer Abigail Adams attended the May 1st bankruptcy meeting of creditors and has written an article about it appearing in this week’s Lincoln County News. It’s a good, factual article but like the recent article in the Central Maine Papers, it incorrectly states that “Medius L3C foreclosed on the dam and held an auction for it in January 2016.” It would be more accurate to say that Medius L3C tried to foreclose on the dam, but failed. Had the foreclosure been successful, someone other than Pleasant Pond Mill would own the property now.

This confusion over foreclosure does nothing to detract from an otherwise accurate and well written article, and I am grateful that the Lincoln County News and the Central Maine Papers are helping keep this slow-motion train wreck in the news:

Despite Bankruptcy, Clary Lake Dam Situation ‘Status Quo’

Continue reading →

11 April 2017: State Files Response to AQF Motion to Modify Record

A few weeks ago I posted about 2 filings by the State asking the court to consider the “mootness” and “justiciability” of a request made by Aquafortis Associates LLC [AQF] for additional discovery. In those filings the State asked the court to DENY the AQF motion. There is also another pending AQF Rule 80C(f) Motion Requesting Court Modification the [Administrative] Record that has now been addressed by the State. In English what it means is AQF wants to add various documents to the Record because they think they are important and relevant to their case. Personally I think the real purpose of this and similar motions is not the pursuit of justice at all, but rather, is simply to bury the court in ever growing piles of useless documents intended to bog down the legal proceedings and drag things out. Because that’s how the game is played. But I digress.

I’m sorry to be just getting to this now: back on April 3, 2017 the State filed DEP’s response to AQF’s Rule 80C(f) Motion Requesting Court Modification of the Record. The filing includes a Proposed Order for the Judge to sign should he uphold the State’s motion. Besides the legal mumbo jumbo that we all struggle with, there is fairly clear and understandable content in this filing and I encourage everyone to take a look at it. I’ll explain what it means below:

State Response to Petitioners’ Motion Requesting Court Modification of the Record

Continue reading →

24 March 2017: State files 2 Motions in Aquafortis v. Maine Department of Environmental Protection WLO Appeal

On March 20, 2017 the State on behalf of DEP made two filings in Lincoln County Superior Court in their defense of the Clary Lake Water Level Order. These filings were made pursuant to the Court’s February 21, 2017 Order which (among other things) set the 3/20/17 deadline for the filing of “any additional motions concerning discovery or the course of future proceedings.” The first filing was a “Motion For Consideration Of Extra-Record Evidence For [the_tooltip text=”Mootness” tooltip=”In the legal system of the United States, a matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law.” url=”” background=”” color=””] and [the_tooltip text=”Justiciability” tooltip=”Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing” url=”” background=”” color=””] Purposes” and the second filing was the State’s “Opposition to Petitioner’s Motion for Taking of Additional Evidence and Discovery.” Both of these motions pertain to issues going to last August when the State submitted the Administrative Record and as far back as a year ago when Aquafortis Associates LLC [AQF] filed their amended petition (and the amended petition was required because the Judge threw Paul Kelley and his canceled company Pleasant Pond Mill LLC out of the case; see: 30 January 2016: Superior Court grants State’s Motion to Dismiss“).

Here are the latest filings- these really are fascinating documents and are well worth reading: Continue reading →

21 January 2016: Paul Kelley Introduces himself to the Whitefield Selectboard

Paul Kelley attended the regularly scheduled open (public) meeting of the Whitefield Selectboard on the evening of January 17th to discuss with them issues he has with some Town records, in particular certain Planning Board Meeting minutes. Reference may be had to the following letter which he presented to the Board in open session, which clearly explains his concerns, and what he would like to Town to do about them.

Here is the letter, presented without further comment:

Kelley Letter to Whitefield Selectboard January 17, 2017

It is not clear whether the Town intends to respond to this letter.

18 November 2016: Update on the Clary Lake Lawsuits

My wife and I spent the better part of last Wednesday the 16th at Lincoln County Superior Court attending 2 different hearings. I had already planned to attend the discovery hearing in the Clary Lake Water Level Order appeal proceeding (Docket No. AP-14-1 ) scheduled for 1:00 PM, then Tuesday afternoon I got a call from Bob Rubin informing me that the Judge had also scheduled a discovery hearing in the Rubin/Ayer lawsuit (Docket No. 2016 CV-002) for 9:00 AM that same day. The judge, Justice Daniel Billings, is the same for both cases. Wednesday was looking like Clary Lake day at Lincoln County Superior Court and my wife and I decided to make a day of it and attend both hearings, which we did, and we even found enough time between hearings for a nice lunch at Sarah’s.

IMG_20150828_155836 (Custom)A little background regarding Docket No. 2016 CV-002 is in order since I haven’t written about it on this website since it was first filed: Robert Rubin and Cheryl Ayer are husband and wife, Clary Lake shore owners, Clary Lake Association members, and they are both lawyers licensed to practice in the State of Maine. Their property is on the west shore of Clary Lake. Many of you will remember Bob Rubin from the role he played during the Clary Lake Water Level Petition process, representing the Clary Lake Association pro bono as an intervener in those proceedings. Shortly after issuance of the Final Clary Lake Water Level Order on January 27, 2014, Bob Rubin retired. On January 11, 2016 Bob and Cheryl filed suit in Lincoln County Superior Court (see: “31 January 2016: Clary Lake Shore Owners Rubin & Ayer File Suit in Superior Court“). At the time Cheryl Ayer was a Board member of the Association. She subsequently resigned her Board position in April 2016 so as to avoid any appearance of a conflict of interest. Their complaint named defendants Paul Kelley, Pleasant Pond Mill LLC (PPM), Richard Smith, and Aquafortis Associates LLC (AQF). Paul Kelley and Richard Smith are defending themselves in this proceeding, they are not represented by counsel. Continue reading →

10 November 2016: WLO Appeal Update, Court Conference Scheduled

[dropcap]A[/dropcap] quick update to let everyone know what’s going on with the Clary Lake Water Level Order Appeal: back on October 4th counsel for DEP and Aquafortis Associates LLC (AQF) held a telephone conference with Justice Billings to discuss issues around the State’s requested discovery, Petitioners objections to it, and some other jurisdictional issues raised by AQF including their own requested discovery (see: 05 October 2016: Clary Lake Water Level Order Appeal Update). The Court’s conclusion at that time was that it needed “more time” to consider matters and the parties agreed to meet again towards the end of the month of October to continue their work to resolve the conflicts.

That delay stretched into 5 weeks: a conference has finally been scheduled for next Wednesday November 16th at 1PM. Presumably the issues surrounding DEP’s requested discovery and the other matters hanging fire will finally be addressed by the Court so the case can move forward. The State originally filed their request for discovery over 3 months ago, back on August 2nd. I sure hope the court can pick up the pace.

I will post a report as soon as I know something.

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 →

08 September 2016: DEP Administrative Record Now Available Online

On August 17th DEP filed their Administrative Record with the Lincoln County Superior Court in preparation for moving forward with their defense of the Clary Lake Water Level Order. I wrote about this back on September 1st (see: DEP files Administrative Record with Superior Court). The State’s filing consisted of a 20 page document that listed the descriptions of 264 items totalling 345 megabytes of material, which are all included on a CD. I was particularly interested in getting a copy of the CD partly because it seemed like every other document had my name associated with it, and partly because there were a goodly number of documents listed that I do NOT already have in my files, primarily internal Department and Interagency communications, and  correspondence between DEP staff and Paul Kelley that was not shared with the Service List. 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.

01 September 2016: DEP files Administrative Record with Superior Court

It has been a busy summer for me and I am just now getting around to catching up with what’s been happening with the Clary Lake Water Level Order appeal. I last posted on July 22nd about the Court’s June 7th Status Conference and resulting Procedural Order issued by the Court on June 17th which stayed the proceedings until August 1st and set a deadline of August 19th for the State to file the Administrative Record, and an outline of a discovery plan.

On August 17th Mark Bergeron of the Maine Department of Environmental Protection filed the Department’s “Administrative Record” which consists of 264 items on a CD. I did not make a copy of the CD, but I did copy the 20 page filing which lists all the various and sundry documents, photographs, and other items which comprise the full Administrative Record. The list starts with the Clary Lake Water Level Petition I filed with DEP on January 2, 2012 and ends with the Final Water Level Order issued by the Department on January 27, 2014 and includes everything in between. It’s an exhaustive list and just reading it for me was a tiring trip down memory lane. Continue reading →

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 →

03 June 2016: June 1st Deadline Comes and Goes With Nothing to Show For It

We’ve all been anxiously waiting the June 1st deadline when lawyers for Paul Kelley (Pleasant Pond Mill LLC) and Richard Smith (Aquafortis Associates LLC) were supposed to submit a plan to DEP for repairing the Clary Lake dam and raising the water level of Clary Lake. Earlier this spring PretiFlaherty asked for and received several Stays of the proceedings in Superior Court, first on February 29th for a stay until March 26th and most recently on April 14th for a stay until June 1st. These stays were ostensibly to give them and their clients time to work on their proposal without having the lawsuit hanging over their heads. The State agreed to both Stay requests, and their response to the latest clearly revealed DEP’s deep-seated frustration over lack of progress and their belief that June 1st was the latest they could afford to wait to receive a proposal and still have time to get the dam repaired and the lake level restored this summer. We were led to believe there would be no more stays. We have been told that Mr. Kelley has been trying to raise funds to repair the dam. We have been told repeatedly that the DEP Commissioner is deeply committed to getting the lake level restored and the Water Level Order upheld this summer. In recent months, DEP has publicly maintained an assertive stance that gave us reason to feel cautiously optimistic that finally, after years of maneuvering, come June 1st we were going to see some real progress.

It was not to be. At least not yet apparently. June 1st has come and gone and no formal plan to repair the dam has been submitted to DEP. It remains to be seen what DEP will decide to do next. We will know more after the upcoming Status Conference in Superior Court which is scheduled for this coming Tuesday June 7th, at 3:30 PM.

Stay tuned.