Category Archives: Water Level Order

11 December 2018: Clary Lake Water Level Order Transfer Complete

We are pleased to announce that the Department of Environmental Protection has approved the transfer of the Clary Lake Water Level Order from Pleasant Pond Mill LLC to the Clary Lake Association. There was never really any question that the Department would approve the license transfer given that the State openly endorsed our effort to purchase the dam from Kelley’s bankruptcy estate, but it is nonetheless very nice to have this matter behind us. The WLO which was appealed right after it was issued in late January 2014, was upheld by the Lincoln County Superior Court in a ruling issued February 26, 2016. Now, if someone complains about how we’re managing the lake level, we will simply say we’re obeying the Order and if they don’t like it, they can take it up with the DEP.

As usual with DEP rulings, aggrieved parties have 30 days (from December 7th) to appeal the decision. Good luck with that! The chances of it being overturned are ZERO.

30 November 2018: Water Level Order Transfer Update

Since closing on the dam property back on October 13th, the Clary Lake Association Board has been out straight trying to get the dam repaired, the old underground storage tank removed, and the Water Level Order transferred over to the Clary Lake Association. The repairs are underway, the tank is gone, and the license transfer is moving forward.

We submitted the license transfer application to the Department of Environmental Protection (DEP) back on October 22nd and it was accepted for processing by the Department on October 26th. Anyone with a good reason had until the end of the day on November 16th to file a request with the Department for a public hearing on the application. Not surprisingly, two parties did make such a request: Richard Smith (on behalf of Aquafortis Associates LLC) and Butch Duncan. Also not surprisingly, we received word today that both requests for a public hearing have been denied:

The outcome of these attempts to interfere with the transfer of the Clary Lake Water Level Order from PPM to CLA was never in question, and I expect a satisfactory decision on our license transfer application in the near future.

27 July 2018: Final Sale Motion Hearing Audio, No Ruling Yet

Oral arguments of the Final Sale Motion hearing took place today before U.S. Bankruptcy Court Judge Michael Fagone. Trustee Jeffrey Piampiano was represented by attorney Kaitlyn Husar, the Clary Lake Association [CLA] was ably represented by attorney Randy Creswell, and Richard Smith and Aquafortis Associates LLC [AQF] were represented by attorney Louis Carrillo. The Trustee and CLA were to receive 40 minutes combined to present their arguments in support of the Sale Motion, which time was to be split roughly equally between them. Attorney Carrillo was to be given 40 minutes to present his arguments supporting Smith’s and AQF’s objections to the Sale Motion. Finally, the Counsel for the Trustee was to be given 10 minutes for rebuttal. In fact, each party went over their time limits a little bit. Also present at the hearing representing the Maine DEP was Assistant Attorney General Scott Boak and co-counsel Kevin J. Crosman. The hearing started promptly at 10 AM and lasted about 2 hours. No ruling was issued today: after hearing the oral arguments, Judge Fagone took the matter under advisement and said he will issue his Decision and Order just as soon as he can. While I had hoped for a ruling from the bench today, the Judge was presented numerous cases to review and that was far more than he could be expected to do today.

I thought counsel for the Trustee and counsel for the CLA did a GREAT JOB of presenting their arguments, and I thought counsel for Smith and AQF was way out of his comfort zone did an incredibly lousy job of presenting his arguments, but don’t take my word for it, listen to the hearing audio and decide for yourself. Continue reading →

05 July 2018: No Sale Today, Bankruptcy Case Continued

I had hope to be able to tell everyone today that the U.S. Bankruptcy Court had approved the sale of the Clary Lake dam to the Clary Lake Association, but that announcement is going to have to be postponed for a few weeks. Thanks to objections raised by Richard Smith and Paul Kelley, today’s hearing which should have resulted in a quick decision approving the sale instead turned into a day-long evidentiary hearing with numerous parties taking the stand and testifying, and being cross examined. Court started at 9 AM and finally adjourned at 4:30 PM. A hearing for oral arguments will scheduled sometime the week after next (the week of July 16th) at a time and place to be announced. While there is little question whether the judge will eventually approve the sale to the CLA, there are questions regarding the restrictive covenants which need to be answered. Smith’s and AQF’s objections to the sale and to the scraping of the covenants provided a considerable diversion today, but ultimately I have no doubt that we’ll end up owning the dam. Patience people. We’ve been waiting 7 years for this. A few more weeks won’t hurt.

I wanted to get something posted as soon as possible because I know there are lots of people anxiously awaiting word after today’s hearing. I’ll provide additional details about today’s hearing at a later date and will post an audio transcript of today’s hearing when it becomes available.

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.

07 February 2018: Update on the Clary Lake Water Level Order Appeal

Superior_Court_20180206_130133I 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.

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.

20 November 2017: Thoughts On The Recently Filed State’s Response Brief

Last Wednesday afternoon Assistant Attorney General Scott Boak filed the Department of Environmental Protection’s brief in response to Aquafortis Associates LLC’s brief appealing the Clary Lake Water Level Order [WLO]. AquaFortis Associates LLC [AQF] filed their brief back on October 6th. Since posting the State’s brief last week, quite a few people have viewed and/or downloaded it. I’ve read through the brief twice now, the first time quickly to get a feel for it, and then again more carefully, taking the time to read the foot notes, review unfamiliar citations and check the exhibits, most of which I was already familiar with. For me, it was a trip down memory lane and I found it to be clear, well-written, and easy to follow certainly not what I’d call “hard reading” by any means. Your mileage may vary, but a number of people have commented to me that they found the brief easy to follow and helpful in understanding everything that has gone on over the last 6 years since the Clary Lake water level petition was filed in early January 2012. I believe Assistant Attorney General Scott Boak did an outstanding job of defending the WLO, clearly demonstrating a solid grasp of ALL ASPECTS of this very complicated case. I look forward to the hearing when both sides of the case get to present their arguments which I expect to take place early next year. Continue reading →

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.

13 November 2017: DEP Responds to Clary Lake Association Petition

Back on August 21st we filed a petition with DEP requesting they take enforcement action on the Clary Lake Water Level Order [WLO].  We finally received a response from DEP Commissioner Paul Mercer by way of a letter from him dated October 17, 2017. The Commissioner said that the Department had previously attempted to address violations of the Clary Lake water level order through the negotiation of a consent agreement but was unable to reach agreement with the owner of the dam. The Department now awaits the decision of the Court. While the Department response did not come as a huge surprise, we are nonetheless disappointed that they have chosen not to take further action at this time.

Here’s the letter:

My apologies for not posting this sooner. Life happened.

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. 

 

26 September 2017: WLO Appeal Briefing Schedule Revised

The briefing schedule for upcoming filings in the Clary Lake Water Level Order Appeal that was included in the August 15th Court Order (see “Clary Lake Water Level Order Appeal Update“) has been revised by the Court in response to a motion filed by counsel for Aquafortis Associates LLC [AQF] on August 30th. In addition to requesting a change to the briefing schedule, the motion also requested an increase in the number of pages allowed in the filings (Maine Judicial Court Rules specify page limits for different kinds of filings). Counsel for AQF cited conflicts with long-standing vacation arrangements for the requested change in filing deadlines. The motion was consented to by DEP (meaning the State did not object to the motion) and the court subsequently issued an ORDER on September 7th granting AQF’s motion in its entirety.

AQF’s  appeal brief was originally due 40 days from August 15th, on or about September 26th. The date for that initial filing is now October 6, 2017. The State’s Response Brief now is due on November 15, 2017 and the Petitioner’s Reply Brief is due December 4, 2017. The ORDER also granted Petitioner’s request for increased page limits.

I was somewhat dismayed (though not particularly surprised) to learn of the change in the briefing schedule since delays seem to be the way this game is played. I was nonetheless glad the filing dates were only pushed out 10 days. What has me scratching my head however is the fact that the MOTION and the ORDER both list Pleasant Pond Mill LLC [PPM] as a petitioner. I assume this is an oversight as PPM was removed from the suit by COURT ORDER on January 25, 2016 and while a few filings in early 2016 listed both PPM and AQF as petitioners, ALL filings in the last year have included only AQF as petitioner.

I don’t expect additional changes to the briefing schedule.

27 August 2017 Centralmaine.com: Whitefield and Jefferson residents list frustrations in petition to DEP

There is an article in today’s Centralmaine.com papers  by staff writer Jessica Lowell about the Petition we submitted to DEP last week. The article is in the Kennebec Journal, the Morning Sentinel, and was also picked up by the Portland Press Herald. I love all the publicity! Everywhere I’ve been this week people are mentioning Clary Lake, the petition, and asking me what’s new:

Whitefield and Jefferson residents list frustrations in petition to DEP

I assume the “good faith effort by DEP to bring relief to the residents around Clary Lake” referred to by DEP spokesperson David Madore was the 13 or so months of court-ordered mediation that ended in March 2015. The Notice of Violation (NOV) mentioned was subsequently issued in late September 2015.

My only complaint about the article: they could have used a new photograph! They’re still using a picture included in a story from August 2015.

23 August 2017 Lincoln County News: Petition Calls on DEP to Enforce Clary Lake Water-Level Order

There’s an article in this week’s Lincoln County News by Staff Reporter Abigail Adams about the Petition we filed with DEP on Monday, August 21st. It’s a detailed and timely writeup. Ms. Adams includes a comment from David Madore, DEP Spokesperson, to the effect that “the petition is under review.” The CLA Board has yet to get a response to the Petition from the Commissioner’s office.

I’ve archived a copy of the article should you have trouble getting it off the paper now, or in the future:

22 August 2017: CLA Petition to DEP Submitted

I want to thank EVERYONE who signed our petition to DEP and to let everyone know that the Petition which the Board introduced at the Clary Lake Association Annual meeting on August 12th, along with over 350 signatures collected both at the meeting and over the course of the week following the meeting, was hand-delivered to the office of the Commissioner of the DEP yesterday, Monday August 21st, as planned. Looking over the signature sheets I believe ALL Clary Lake Association members managed to sign the petition even if they weren’t at the meeting; quite a few people who are currently out of state printed out the signature sheet, signed it, and mailed or emailed it back to me. A lot of people collected signatures for us, but I’d particularly like to thank Debbie Duncan, Ellis Percy, Malcolm Burson, and Jack and Ann Holland for their efforts to collect signatures. It seems like more often than not, when I asked someone to sign they’d say “Already signed it!” 🙂

It remains to be seen how the Department will respond to the petition and what if anything action they will take towards enforcement of the Clary Lake water level order. They have a variety of enforcement options and while I don’t expect miracles, I am cautiously optimistic they will take this matter as seriously as we do.  I do expect to hear from them and will keep everyone apprised of any developments.

The petition was also sent to the Lincoln County News, Central Maine Papers, and the Portland Press Herald, and I do expect articles to appear later this week in most if not all those papers.

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.