Category Archives: Water Level Order

Annual Meeting Reminder

The Annual Meeting of the Clary Lake Association is next Saturday, August 12th at 2:00 PM. The meeting is to be held at the home of Erin Grimshaw and Christina Bishop located at 739 Gardiner Road in Jefferson. Erin and Christina hosted the meeting last year and it turned out to be such a great venue that we’ve decided to hold it there again. Their home is located about 1/3 of a mile west of (towards Whitefield) the intersection of Route 126 and 215. You’ll know the place: this is the house at the foot of the old MacDonald hay field overlooking Clary Lake, and at the end of a looooong driveway. Andy Goss built the house a few years ago; Erin and Christina have owned it since 2013. Here’s a Google Map showing the location. If you need help finding the place George at 207-549-5991 for directions.

The rain date, on the off chance it is raining on Saturday, is the same time, same place, the next day. I can’t remember the last time the Annual meeting was rained out (though it got a little dicey last year). As usual, there will be a pot luck supper at the conclusion of the meeting so bring your favorite casserole, salad, desert, bread, dip, or what have you and plan to stay awhile and socialize.

Petition Announcement

This year the CLA Board intends to introduce for discussion and Membership approval, a petition to the Department of Environmental Protection requesting they take enforcement action in the matter of the Clary Lake Water Level Order. As most of you know, the Water Level Order was issued over 42 months ago on January 27, 2014 and a subsequent Notice of Violation was issued on September 28, 2015. Since then the Department has taken no further action. The order however is still in force and has not been stayed. We see no reason why they shouldn’t immediately initiate enforcement action. We hope you’ll be able to attend the meeting and sign this petition.

The Board will be collecting additional signatures and endorsements during the week following the Annual meeting and plan to submit the Petition to DEP on or about Monday August 21st. You do not need to be a Clary Lake Association member or a Clary Lake shore owner to sign the petition. If you can’t make it to the meeting but would still like to sign the petition, please contact George Fergusson at secretary@clarylake.org or call at 207-549-5991 and we’ll try to accommodate you.

18 April 2017: Spring Musings and a Look Ahead

Isn’t it time to get a dry fire hydrant installed at the inlet of the lake on Route 126?

[dropcap]I[/dropcap] try to keep this news forum factual and informative and not all that speculative. From time to time however I am compelled to offer up some commentary on what has been happening, where we are and where it looks like we are headed. This is one of those times. My goal is to bring some perspective and commonality into our lives where they intersect with Clary Lake and the travails that have assaulted it for so long. Spring is a good time for this kind of musing: it’s a time to wake up, gear up, get in shape, and get ready for another season. I feel this is going to be an important year, that a lot is going to happen. We may not see a resolution of our water level crisis this year but then again we might, the problem being that I really have no idea what a “resolution” might look like. Certainly we’ll see some real progress towards a resolution. Not only am I prepared to be surprised, I expect to be. If one thing has been proven time and time again it is that we have no idea what lies around the next corner. 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 →

10 April 2017 Central Maine Papers: Whitefield Dam Owner Files For Bankruptcy Protection

A new Central Maine Papers article by KJ staff writer Jessica Lowell appeared on-line last night and will be in today’s print edition. It is about Pleasant Pond Mill LLC’s [PPM] mind-boggling decision to file for bankruptcy, it also contains the necessary background to acquaint the reader with the basic facts of the story if they’re coming into this mess cold. The article contains a few mistakes (alternative facts?) which however do nothing to detract from it’s otherwise accurate and fair reporting. You have to admit, after 5+ years, our story has gotten pretty hard to follow. This is the first newspaper article about Clary Lake in over a year, and in my opinion it is overdue (shift-click to open link in a new tab):

Whitefield dam owner files for bankruptcy protection

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 →

03 December 2016: Clary Lake Dam Gate Fully Opened Today

Clary Lake dam owner Paul Kelley, Jr. opening the dam’s gate today, December 3, 2016.

Today the Clary Lake dam owner was seen opening the dam’s gate (pictured at left) shortly after meeting on-site with a Lincoln County Deputy. I have no idea why Mr. Kelley summoned the police to his property or whether it had anything to do with his decision to open the gate today, but I was told by a passerby that he and the officer were seen standing on the road in front of the dam before he opened the gate and that Mr. Kelley looked “upset” and was “waving his arms” and pointing at the dam. I can’t imagine what Mr. Kelley’s problem might be.

The gate has been effectively closed since mid-summer, and I have been wondering if or when Mr. Kelley was going to open the gate this fall to provide the Minimum Flows required in the Clary Lake Water Level Order . Flows vary throughout the year: between November 16th and December 31st the Order says the gate should be opened 0.9 feet to provide 15.5 cfs (cubic feet per second) of outflows. Mr. Kelley has in fact opened the gate all the way, approximately 2.5 feet, letting out way more water than the recommended volume. Clearly, Mr. Kelley had more on his mind today than just meeting the minimum flows requirement, and he isn’t particularly interested in garnering anything like goodwill either. It seems to me Mr. Kelley could use a little of that about now.

By early afternoon the water level in the mill pond behind the dam had fallen noticeably. I’ve revised the Water Level Charts to reflect the change in gate status.

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.

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.

04 November 2016: DEP Establishes Clary Lake High Water Elevation

For the past 5 years I’ve been referencing Clary Lake water levels to the “top of the dam” for the simple reason that the actual elevation of the Normal High Water Line of Clary Lake has never been established. I knew from my own observations (picture at left) that the historical normal high water line has always been at or very near the top of the dam so it made sense to use the top of the dam both as a reference for my measurements, and as a proxy for the high water line. The picture at left shows a boulder with a distinct black stain showing the prolonged effect of the action water that corresponds to the approximate high water line of Clary Lake.

When the Clary Lake Water Level Order was issued back in late January 2014, the water level regime specified therein only referred to the “historical normal high water line” of Clary Lake without stating what the actual elevation of that line on the earth was. Special Condition #4 of the WLO required the dam owner to hire a Professional Land Surveyor to conduct an elevation survey whose job would be to establish the actual elevation of the Normal High Water Line of Clary Lake, which is defined as follows:

Normal High Water Line. “Normal high water line” means that line along the shore of a great pond, river, stream, brook or other non-tidal body of water which is apparent from visible markings, changes in the character of soils due to prolonged action of the water or from changes in vegetation and which distinguishes between predominantly aquatic and predominantly terrestrial land, 38 M. R.S. S.480-B (6)

The problem is, the dam owner didn’t comply with Special Condition #4 and in June 2014 the Department sent him a Letter of Warning for failing to provide a satisfactory survey. Continue reading →

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.

Consented-To Motion Regarding Deadlines 08-29-2016

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 →

06 July 2016: Quick Update on the Dam’s Gate Status

[dropcap]Back[/dropcap] on June 30th when I posted the June 2016 Water Level Chart to the website I speculated that the dam operator would likely lower the gate further within the next day or two so as to maintain at least the appearance of complying with the Water Level Order‘s (WLO) requirement for maintaining minimum outlet flows. What with the long Fourth of July weekend, the parties, the cookouts and what have you, I didn’t get a chance to swing by the dam until yesterday. Sure enough, measurements of a photo I took of the gate mechanism shows that sometime in the last 5 days the gate has been lowered approximately 5″ and is now open just a little more than 2″ as suggested in the WLO to maintain minimum outlet flows this time of year. For my records I’m back dating the gate change to July 1st, and today’s water level chart update reflects this. In theory anyways we can look forward to it remaining at this level for about the next two and a half months, until September 15th.

On a more unpleasant note, the lake level reached 5′ below the top of the dam this morning. It hasn’t been this low since the end of last September.

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.

21 May 2016: Clary Lake Dam’s Gate Almost But Not Quite Closed

Late last Thursday afternoon for reasons known only to himself, the Clary Lake dam owner closed the dam’s gate to within about 7″ of completely shut. As you can see from the picture at left, there’s still quite a bit of water flowing out of the lake but the mill pond behind the dam has considerably more water in it than when the gate was wide open. However, while the water may be backing up behind the dam, the lake level is still falling about 1/4″ per day. Remember, water only flows down hill and there is a mile and a half of meandering channel down which the water has to flow to get from the lake to the dam. With the gate wide open and the lake this low, I suspect the water level right at the dam itself has been as much as 2 feet lower than out on the lake, perhaps even more. I’ve actually measured a 3″ difference when gate was wide open and the lake was almost full. Albert Boynton whose family owned the dam in the 1920’s and who was actually born in the little red house on the dam told me once that after a morning of sawing lumber, the upper mill pond would have fallen considerably; when they returned from dinner, it would be full again.

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 →

05 March 2016: Law Court Dismisses PPM Appeal

The appeal filed with the Law Court back in late February by counsel for Pleasant Pond Mill LLC (PPM) was dismissed last Tuesday, March 1st because the appeal was deemed to be “interlocutory” which is a term referring to an interim ruling issued before the conclusion of a suit. While it is certainly good news, one shouldn’t try to read too much into this decision: it is not uncommon for a Law Court to dismiss an appeal of a lower court ruling while the underlying suit is still being heard. Consequently, this dismissal isn’t really unexpected but it is interesting that the dismissal was issued so quickly. PPM’s Motion to Stay the appeal, filed last Monday, February 29th, has also been dismissed as moot.

So what all this means is that when the appeal of the Clary Lake Water Level Order in Superior Court resumes at the conclusion of the current stay on March 26th, it will proceed without the benefit of Paul Kelley/PPM being a party to it.

Order Dismissing Appeal 3-01-2016

Things do seem to be proceeding at a fast pace.