13 October 2018: We Own The Dam!

We Own The Dam!

I’ve been waiting to say that for more than 7 years. Many thanks to everyone who helped make this possible! In particular, I’d like to thank the Clary Lake Association Board who has worked tirelessly with me over the years to get us where we are today. I’d also like to thank our Membership, past and present, and everyone else on or around Clary Lake who has contributed their time and money to bringing this about. We couldn’t have done this with all your help! I’d also like to thank our lawyer, Randy Creswell who did such a good job representing us in Bankruptcy court. Finally, and last but by no means least, I must mention my wife Margaret Fergusson who steadfastly helped and supported me (and put up with me!) throughout this challenging time. Thank you all!

It’s sure been an interesting 24 hours. Yesterday, as most of you know, was the last day of the 14 day stay of the September 28th Bankruptcy Court Order approving the free and clear sale of the Clary Lake dam to us. The 2 week period was to provide Richard Smith and/or Aquafortis Associates LLC with an opportunity to appeal that Order, if they wished. Finally, about 4:30 PM yesterday afternoon and on the last day available, they did just that, through their attorney Dennis Carrillo. Mr. Carrillo did not file a motion for a stay of the Order however. As a result, today, with the appeal period over and thanks to the 363(M) protections afforded us by the Court as Good Faith buyers, their appeal is moot, and the Order stands as issued.

Notice of Appeal

We finally closed on the dam this morning. The deed has already been recorded electronically at the Lincoln County Registry of Deeds, and checks mailed to Medius L3C and to the Trustee. What happens to appeal now is not our problem. I’m guessing the Trustee will file a motion to dismiss next week. In any case, it’s not our concern.

Our work is just beginning. Now that we own the dam, it’s time to get busy on repairing it and restoring Clary Lake. I’m so ready for this 🙂

12 October 2018: Fundraising Update

One week ago today the Board mailed out yet another fundraising letter to our Membership, other Clary Lake shore owners, and friends of Clary Lake in the surrounding community. I had hoped to post a fundraising update before sending that letter, explaining where we stand financially, what we’ve spent money on so far, and why we need to raise more money, but the past couple of weeks since receiving the favorable bankruptcy court ruling have been unbelievably busy and I just haven’t found the time to sit down and address the matter. Until now. A few people have reached out to me recently with questions about the need for additional fundraising, so here I go, better late than never. A lot has been on hold this summer, pending receipt of the Clary Lake dam and we’re now trying to make up for lost time. First and foremost is getting the dam repaired as soon as possible. I’ll update everyone about that effort in a separate post. Continue reading →

10 October 2018 Lincoln County News: Countdown On for Sale of Clary Lake Dam

A nice article in the Lincoln County News by staff reporter Jessica Clifford. It was going to be in last week’s paper but it got bumped:

Countdown On for Sale of Clary Lake Dam

The article states: “The covenants were established to prevent damage to the mill building from water flowing downstream.” We all know the real reason the covenants were placed on the dam property.

Here’s an archived copy:

Countdown On for Sale of Clary Lake Dam

06 October 2018: Dam Purchase Update

Now that we own the dam (or will, in a few days) we’ve got a lot to do! One of the first on the list of things to do is starting up the process of transferring the Clary Lake Water Level Order from the current licensee (Pleasant Pond Mill LLC or PPM) to the Clary Lake Association (CLA). The application has to be filed with the Maine Department of Environmental Protection within 2 weeks of the transfer of the property, and the first step is to send out a public notice of our intent to file the transfer application, and the approximate date. We originally sent this notice in early July when we anticipated owning the dam later that month, but court delays prevented that from happening. So here we go again. If you’re a littoral or riparian land owners around Clary Lake or someone who owns land directly across a road from the lake, you should have received your public notice earlier this week. There was also a notice in this week’s Lincoln County News. We’ve also started a second and final fundraising initiative to raise money needed to complete repairs to the dam; I’ll talk more about this in a separate post. Additional steps to be taken real soon include filing the underground tank registration form and the Permit By Rule notice required to work on the dam.

We’re one step closer to owning the dam! In accordance with the recent Order approving the sale of the Clary Lake dam to the Clary Lake Association, the Bankruptcy Trustee has filed evidence of compliance with paragraph 2 of the order, that being the transfer of the Clary Lake dam from PPM to Paul Kelley’s bankruptcy estate, from whence it will be eventually conveyed to us. The deed, dated September 28, 2018 was recorded by the Trustee at the Lincoln County Registry of Deeds on October 3, 2018 in Book 5311, Page 46. In other words, PPM no longer owns the Clary Lake dam. This has been a long time coming, and brings a smile to my face 🙂

Finally, more than a few people have expressed some concern about the 14 day appeal period, wondering what it means and worried that Paul Kelley will try and appeal the recent ruling. This is an understandable concern given past history with these parties, but it is not a valid one: as the debtor, Paul Kelley himself does not have standing to file an appeal; the only parties who do have standing to appeal are Richard Smith and Aquafortis Associates LLC. However, filing an appeal would be a waste of time and money because the judge granted us Good Faith protections under Section 363(M) of the U.S. Bankruptcy Code meaning that any appeal becomes moot when we close on the property. If an appeal has been filed by the time we close, a simple motion to dismiss is all it will take to make it go away.

September 2018 Water Level Chart Archived

September 2018

I have archived the September 2018 Water Level Chart (at left). The water level in September for the most part reversed the downward trend of previous months, remaining pretty much flat for the whole month but for the last week when heavy rains resulted in a modest lake level rise of 1.68″ by the end of the month. Given that we received 5.38″ of rain in September, it’s amazing that it didn’t rise a lot more than that, a clear indication of how depleted the ground water supply has been. The last rain event on September 25 and 26 dumped 2.5″ of rain on Clary Lake which in a normal year should have brought the lake up 10″ resulted in a minuscule 1.56″ lake level rise.

Despite having received way more rain than the normal 3.74″ for September, at only 28.00″ so far we’re still shy almost 2″ of the yearly average of 29.93″ for this date. It’s been dry: I recorded measurable rainfall on only 4 days during September.

Now that we’ve received a favorable ruling from the bankruptcy court, we’re hoping to get started on dam repairs later this fall. I think it’s safe to say you’re never going to see Clary Lake this low again 🙂

28 September 2018 Central Maine Papers: Federal judge OKs Whitefield dam sale

Well that didn’t take long: yet another fine article in the Kennebec Journal and Morning Sentinel by Staff Writer Jessica Lowell.

Federal judge OKs Whitefield dam sale

I find this comment amusing:

Paul Kelley said Friday after the ruling was announced that he doesn’t know “how things are playing out. I do know that parties are generally unhappy.”

I can count the parties that are “generally unhappy” with today’s ruling on the fingers of one hand and have a couple of fingers left over. Everyone else is VERY happy 🙂

A minor correction: the dam cost $80,000 not $32,500

Here’s a link to an archived copy of the article:

Federal judge OKs Whitefield dam sale

28 September 2018: Bankruptcy Judge Approves FREE and CLEAR Sale of Dam!

YES! At a short hearing held today at 10 AM in Bangor at the U.S. Bankruptcy Court, Judge Michael Fagone granted the Trustee’s motion to sale the Clary Lake dam to the Clary Lake Association free and clear of the restrictive covenants under sections 363(F)(5) of the U.S. Bankruptcy code. Gone too is the Medius mortgage under 363(F)(2). Further, the Judge granted the Clary Lake Association Good Faith Protections provided by section 363(M) of the U.S. Bankruptcy code. The Judge declined to allow the immediate sale of the property so we will have to wait to take title to the Clary Lake dam in 14 days at the expiration of the appeal period. Should AQF or Richard Smith (or anyone else) decide to appeal today’s ruling, 14 days from today our attorney will simply file a motion to dismiss and <POOF> the appeal will disappear, thanks to the 363(M) Good Faith Protections. Continue reading →

Road Trip!

So who’s planning on attending the hearing in Bangor this Friday? Who’s thinking of it? I think it would be great for a contingent of Clary Lake people put in an appearance. This is the hearing when the Judge will rule on the Sale Motion and if past hearings are any indication, this one promises to be very interesting! If you’re planning on attending, drop me an email and let me know.

The hearing is at the U.S. Federal Bankruptcy Court at 202 Harlow Street, Bangor Me. See the previous post “Bankruptcy Judge to Issue Ruling in Open Court” for more information.

17 September 2018: Bankruptcy Judge to Issue Ruling in Open Court

We’ve all been anxiously awaiting a decision from the Bankruptcy Court on the Clary Lake Association’s efforts to purchase the Clary Lake dam from Paul Kelley’s bankruptcy estate. This morning Judge Fagone announced his intention of issuing an Oral Ruling on the Trustee’s Sale Motion in open court at a hearing at 10 AM on Friday September 28th at the United States Bankruptcy Court at 202 Harlow Street, Bangor, Maine. The hearing will be open to the public. A date for a ruling is not the same as a ruling, but I’ll take it. At least now we have an end date for the Sale Motion!

Notice Of Hearing

Given how much time has passed since oral arguments back on July 27th, we were all expecting the Judge to issue a written decision but our attorney assures us that Judges issue oral decisions in open court with some frequency. We have every reason to believe the Judge will approve the sale of the Clary Lake dam at that hearing, with the only question being whether he sells us the dam free and clear of the restrictive covenants or approves the sale with the covenants in place. Either way we’ll own the dam. The closing will most likely take place the following week. We have a contingency plan in place to deal with the covenants if the Judge decides not to sell the dam free and clear.

We had not counted on this sale process taking so long, and it remains to be seen whether there is enough time this fall to get the dam permanently repaired or whether we’ll need to wait until next summer for that. Needless to say we’ll do everything we can to get the dam repaired and the lake level restored as quickly as possible.

If anyone is interested in attending the hearing and is looking for a ride, get in touch with me about carpooling!

August 2018 Water Level Chart Archived

August 2018

I have archived the August 2018 Water Level Chart (at left). The water level in August continued the slow but steady decline seen in June and July, falling only 3.00″ over the course of the month or about a tenth of an inch per day. Most of the drop now is due to evaporation as there’s virtually no water flowing down the channel and out the dam.

It’s still dry: we received only 2.95″ of rain during August, 0.36″ less than normal. So far this year we’ve received 22.62″ or 3.57″ less than average for this date. According to the National Integrated Drought Information System we’re currently experiencing “Abnormally Dry” which I suppose it about right.

Since posting about finding some Purple Loosestrife growing around Clary Lake last month (see: “Have You Seen This Plant?”) I have continued to find and remove more plants. Many thanks to those of you who have reported loosestrife around the lake. The other day I spotted another group of plants over by the inlet to the lake in Jefferson and plan to go dig them up/pull them out this weekend.

No, I don’t know when the Bankruptcy Judge is going to rule. Patience people. It’ll happen.

13 August 2018: The CLA Annual Meeting Happened

The 2018 Clary Lake Association Annual Membership Meeting was held Saturday afternoon at the old MacDonald farm in Jefferson over looking Clary Lake, now the home of Jessie Spector and Logan Higger and the site of Sowbelly Butchery While attendance was somewhat less than usual, the meeting was nonetheless a great success. The highlight of the meeting clearly was having our bankruptcy attorney Randy Creswell who drove up from Portland, speak about the bankruptcy sale process and answer questions. We had hoped/expected to own the Clary Lake dam before now so it was very helpful for Mr. Creswell to explain the bankruptcy sale process in general, why this particular asset sale was taking so long, and what to expect. We remain optimistic that we will own the Clary Lake dam soon.

Membership is now up to 105, well ahead of where we were this time last year. We’re heading for 150. The 2018/2019 Membership year has started. If you haven’t already joined, please get your dues in as soon as you can!

For some reason I neglected to take any pictures at the meeting. Many thanks to Jessie & Logan for letting us use their barn. It was a perfect venue.

Annual Membership Meeting Reminder This Saturday!

A quick reminder that our 2018 Annual Membership Meeting is this coming Saturday, August 11th at 2:00 PM at Derby Oak Farm in Jefferson (the old John Robert MacDonald farm). Here’s a Google Map showing where it is. If you haven’t already paid your 2018/19 dues, plan to arrive early so you can take care of that before the meeting starts! We’ll have a registration desk set up about 1 PM. Alternatively you can sign up or renew your membership on line via PayPal. Whatever works for you! Our membership goal for this year is 150 and we’re currently at 88.

There will be some seating provided, but consider bringing a folding chair or 2. Also don’t forget there’s a pot luck supper at the conclusion of the meeting so consider bringing something to eat. If you can’t bring food, at least bring your appetite!

In preparation for the meeting (and just in time too!) I have finished the minutes from last year’s 2017 Annual Membership Meeting and also minutes for the Special Membership Meeting held this past April 4th. You’ll find both on the Membership Meeting Minutes page. Both sets of minutes will be presented for review and comment at the annual meeting. Normally I try to get meeting minutes finished and posted sooner but this past year, especially the last 6 months, have been pretty hectic.

We had expected that we would not only own the dam by the time our Annual Meeting arrived but that it would be fixed and impounding water again but it looks like that will not be the case. We’re still waiting for the Bankruptcy Judge to issue his Decision and Order on the Sale Motion after the hearing back on July 27th. Who knew this bankruptcy sale would take to long? While there’s still a chance that the Judge will rule before the end of the day Friday, I’m not going to hold my breath. It will happen when it happens, and I am if anything, patient. I am confident that the Judge WILL rule soon and that we WILL soon own the dam.

Hope to see you on Saturday!

Invasive Milfoil Confirmed in Cobbosseecontee Lake

We really need an invasive plant patrol program here on Clary Lake.

Breaking News From
Maine Department of Environmental Protection
Invasive Milfoil Confirmed in Cobbosseecontee Lake
Rapid response aims to keep plants in check

AUGUSTA, August 7, 2018

– Maine Department of Environmental Protection (DEP) has confirmed growth of Eurasian water milfoil (Myriophyllum spicatum) in the north end of Cobbosseecontee (aka Cobbossee) Lake in Winthrop. The plant was discovered in July by Friends of Cobbossee Watershed (FOCW) plant surveyors. DEP, FOCW and Cobbossee Watershed District have searched for and removed plants since last month’s discovery. Continue reading →

July 2018 Water Level Chart Archived

July 2018

I have archived the July 2018 Water Level Chart (at left). The water level in July continued the steady decline seen in June though at a slightly reduced daily rate, falling only 4.32″ over the course of the month. An indication of how steady the decline was is the “coefficient of determination” (the R² or “R squared” value in the inset box on the chart) which in simple terms is a statistical measure of how close the data points fit a straight line. An R² value of 0.9181 means the data points collected over the month are very close to a straight line (a perfect fit would have an R² of 1.00). Because of the relative drought we’re experiencing, the 3.30″ of rain we received during the month had very little effect on the lake level, which only rose marginally for a few days towards the end of the month. We end the month about where we were this time last year, only 1.68″ lower than on July 31, 2017. Continue reading →

29 July 2018: Have You Seen This Plant? [UPDATED]

Purple Loosestrife (Lythrum salicaria) is a common invasive plant in Maine. The plant propagates by seed and invades many types of wetlands where it crowds out native plants and degrades wetland habitat. We certainly don’t want it getting a foothold around Clary Lake! A little over a week ago while out fishing, I spotted 2 purple loosestrife plants growing on the south shore of Clary Lake. Yesterday afternoon, CLA President Malcolm Burson and trudged across the marsh and dug them up and hauled them off which is the approved method of control for this plant. If you just cut them down, they will regrow from the roots though I know from experience that if you keep cutting them down a few years running, eventually the plant will die. I actually cut this particular plant down last summer and it regrew this year from the root stock. Digging them up is the sure-fire way to rid yourself of this invasive plant. There are a few more pictures in the Spring/Summer 2018 photo gallery. Continue reading →

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 →

26 July 2018: Final Sale Motion Hearing Tomorrow

A quick reminder: oral arguments on the Final Sale Motion are scheduled for tomorrow morning at 10 AM at the U.S. Bankruptcy Court in Portland. This will be the 4th and presumably final hearing on the proposed sale of the Clary Lake dam to the Clary Lake Association. You can read the original post about the hearing for more information (see Final Sale Motion Hearing Scheduled). I will be attending the hearing, and will post the outcome here as soon as I can. Stay tuned.

23 July 2018: Membership Update

Renewals and new memberships for the upcoming 2018/2019 Membership year have been arriving steadily. We’re currently at 79 which is more than half way towards our goal of 150 for the upcoming year, and well ahead of where we were at this time last year. This is very gratifying!

Many people choose to join or renew at the Annual Meeting which is fine, but please keep in mind that the meeting will start promptly at 2:00 PM so if you intend to sign up that day, please arrive early! We’ll have the registration desk setup up at 1:00 PM. This year’s meeting should be pretty exciting. You won’t want to miss it!

16 July 2018: CLA Welcomes Its Newest Water Quality Monitor

Please join me in welcoming our newest Water Quality Monitor, Kelsie French! Kelsie and her brother Jeffrey own a camp over on Duncan Road and have been long time supporters of the Clary Lake Association. Kelsie has been helping out from time to time and last Saturday successfully completed the Lake Stewards of Maine (formerly the Maine Volunteer Lake Monitor Program) training for, and has been certified qualified for taking, Secchi Disk Transparency readings and Total Phosphorus Surface Grabs. Next up is getting certified on the use of our YSI Dissolved Oxygen meter. Ever two weeks from (usually) late April until late October we venture out onto the lake to record water temperature, transparency, and dissolved oxygen data. This information is sent into the VLMP and also gets posted on our Clary Lake Water Monitoring Data page. Transparency data is also posted on the “Near Real-Time Lake Data.”

We now have 4 active water quality monitors on Clary: David Hodsdon (CA# HO-0042), Jack Holland (CA# HO-0551), George Fergusson (FE-2648), and Kelsie French (CA# FR-2497). The pictures on this post were taken back on July 7th.

12 July 2018: Final Sale Motion Hearing Scheduled

The Judge in the Paul A. Kelley Jr. Bankruptcy case has issued an Order and Schedule for oral arguments on the a Final Sale Motion on July 27th, 2018 at 10:00 AM. The hearing will be at the U.S. Bankruptcy Court, 537 Congress Street in Portland Maine. The Order is only 4 pages long and is remarkably easy reading as Court Orders go, and I highly recommend everyone read it through so you’ll have an idea of the issues the court is grappling with. The Order both summarizes the actions taken to date starting with the May 22nd filing of the Motion to Sell up to last week’s July 5th evidentiary hearing, and then lays out 8 questions that the Judge wants the parties to address in their oral arguments before the court. Continue reading →