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.

January 2018 Water Level Chart Archived

1 waterlevelchart_January2018

January 2018

I have archived the January 2018 Water Level Chart (at left) starting us off on another year of sub-par water levels. The most notable feature of the January chart is that the lake level actually made it up into the “allowable” range (for this time of year), reaching a high of -19.08″ below the normal high water mark on January 15th as the result of nearly 2.5″ of heavy rains and snow melt. Gotta love January thaw! I had stopped making measurements on December 31st but the warm weather and rapidly rising lake level made getting down to the lake and actually finding the water surface relatively easy.

Precipitation for the month of January was 3.81″ most of which we received in a big storm in the middle of the month. Average for January is only 2.6″ so already we’re 1.2″ above normal for the year, but the year is just starting.

All told I only made 8 water level measurements for the month of January and I don’t expect to resume measurements on anything like a regular basis until sometime spring. I’ll try and grab a few measurements between now and then if the opportunity presents itself.

15 January 2018: Bruce J. Relyea Has Passed Away

It is with sadness that I inform you of the passing of Bruce Relyea. Bruce was a friend of mine, a faithful steward of Clary Lake, and a long time member of the Clary Lake Association. Bruce and his wife Audrey bought their property on the south shore of Clary Lake in Jefferson from Francis Ward in 1967 and it remains in the family today. Bruce was an early supporter of the Association which was formed not too long before Bruce arrived, in 1960. Bruce served as Association President from 2002 through 2004 and has been a generous benefactor of the Association over the years. He will be missed.  Here’s his obituary from the Fort Worth Texas Star-Telegram:

Bruce J. Relyea 1928 – 2018

Bruce J. Relyea FORT WORTH — Bruce J. Relyea, 90, of Fort Worth, passed away on January 9, 2018. Bruce was born in Cleveland, Ohio to Mildred and Bruce Relyea. He enlisted into the United States Army Air Force at age 18, serving in Japan as a control tower operator, and upon discharge he attended Miami University of Ohio, earning a degree in Business Administration. In 1950, he began his career as an auditor for General Electric Co. in Cleveland. Four years later, he married his wife of 64 years, Audrey Jennison. Bruce was later employed at Penn Central Co., Ebasco Industries, and as Comptroller with Union Pacific. He ended his career as Vice President of Finance at Champlin Petroleum Company in Fort Worth. Not one to sit idly, after retirement, Bruce took up ranching in Grandview before returning to Fort Worth to spend time with his children and grandchildren. Bruce was an avid reader, a talented bridge player, an enthusiastic golfer, and a loving husband, father, grandfather, and great-grandfather. He enjoyed spending summers with Audrey and family at his wild blueberry farm, North Forty, in Jefferson, Maine. Bruce was preceded in death by his infant son, Douglas Edward. SURVIVORS: His wife of 63 years, Audrey Jennison Relyea; children, Robert Bruce Relyea (Jeraldine), Susan Relyea Pardee (Tom), Steven Jennison Relyea (Adrienne), Gregory John Relyea (June); . his sister, Lynda Metzler. 11 grandchildren; and five great grandchildren.

On behalf of the Clary Lake Association Board I wish offer our condolences to his wife Audrey and the family.

13 January 2018: Water Level Chart Updated

The Clary Lake water level charts have been updated for the first time this year. I hadn’t expected to resume water level measurements yet, but heavy overnight rains not only melted all the snow in my yard but also the ice around the edge of the lake making it too easy to obtain a water level measurement. The lake level is now -30.48″ below the normal high water mark having risen 11.76″ from my last measurement back on December 31st. It remains to be seen whether I’m back to a regular, daily measurement routine. Probably not, but ever the opportunist, I’ll snag an occasional water level measurement this winter when the opportunity presents itself.

Tim Chase recorded 2.4″ of precipitation at his Grand Army Weather Station. I for one am glad it wasn’t in the form of snow… 

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:

 

December 2017 Water Level Chart Archived

12 waterlevelchart_December2017I have archived the December 2017 Water Level Chart (at left) bringing us to the end of another year of sub-par water levels. The most notable feature of the December chart is how little the lake level changed over the course of the month despite below average precipitation for the month; the lake level started out the month at -43.32″ below the normal high water mark and ended the month just a hair more than 1″ higher at -42.24″ all in all pretty much flat for the whole month. We only received 2.16″ of precipitation, a good inch less than average. We ended the year at 37.60″ of precipitation, almost 4.5″ less than average. We’ve already got a pretty good snow pack started so I expect ground water supplies will be well replenished come spring. Continue reading →

14 December 2017: Oops! That Goose is a Swan! [UPDATED]

Trumpeter or Tundra SwanWoah. Epic fail on my part: that so-called “domestic goose” I posted about last week appears based on photographs David Hodsdon sent me today to be a Trumpeter or perhaps a Tundra Swan (though still awaiting definitive determination by experts). In my own defense, all I had to work with were a couple of pictures that I took at long-distance showing the back of the Swan. I didn’t get a good side or front view. There are only 3 species of Swan in North America (Trumpeter, Tundra, and Mute) and Maine is not known to be within the range of any of them. Frankly it looks to me like a Trumpeter Swan, but IF&W Wildlife Biologist Keel Kemper took one look at the above picture and believes it is a Tundra Swan, rarely if ever seen in Maine.

I’ve got some Maine birders looking into this and will post an update when available.

[UPDATE]: The expert birders have reached a consensus: Tundra Swan. According to this Cornell University site, these birds spend their summers mating along the northernmost fringes the Arctic Tundra of Canada and Alaska and only migrate south into the United States Maine in Winter. Maine is not generally considered part of the Tundra Swan’s migratory range. How exciting to have spotted this bird on Clary Lake!

DSC_5297
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Trumpeter or Tundra Swan
Trumpeter or Tundra Swan
Trumpeter or Tundra Swan
Trumpeter or Tundra Swan

[Show slideshow]

05 December 2017: Anyone Missing a Goose?

DSC_5297There’s been a white domestic goose hanging out on Clary Lake with some Canada Geese this fall. For a domestic goose it was quite shy, it wouldn’t face me at all but started swimming away from me as soon as it saw me whereas the Canada Geese were totally unconcerned. This picture (and one other in the Fall 2017 gallery) was taken a couple of weeks ago, but David Knight told me earlier today that he saw it earlier today down at his end of the lake, again, hanging out with a flock of Canada Geese. In any case, I doubt it can fly so when the lake finally freezes over, it will either get frozen in the ice or make it to shore where it becomes easy prey for a fox or raccoon. I know the folks that bought the old MacDonald place have some geese, it may be one of theirs. I’ve emailed them to see if they’re missing a goose…

Speaking of pictures, I’ve been rather uncharacteristically busy this fall and have a pile of pictures to process and post including some of damage from last month’s wind storm. I’ll get around to it when winter settles in and I have more time. If you have any pictures of downed trees and property damage from that storm, send them to me and eventually I’ll find the time to post them.

05 December 2017: Medius L3C has been Administratively Dissolved

From the For What It’s Worth department: Medius L3C, the low-profit, limited liability company named after your middle finger which currently owns the mortgage on the Clary Lake dam is in administrative dissolution for failure to file it’s 2017 Annual Report. All Maine corporations are required to file annual reports by June 1st every year, in order to maintain their good standing. According to documents available on the Maine Secretary of State’s website, the company was notified of its failure to file its annual report by letter dated June 23rd. The corporation was administratively dissolved on August 28th as per letter from the Secretary of State. A company that has been administratively dissolved continues its corporate existence but may not transact any business in this State except as necessary to wind up and liquidate its business and affairs. Corporations that have been administratively dissolved can reinstate their companies by late-filing the annual report along with the $85 filing fee and a $150 reinstatement fee. Corporations can exist in this administrative limbo for up to 6 years. Continue reading →

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.

Everything you ever wanted to know about Sea Lamprey!

Unfortunately I have another engagement Monday night or I’d be going to this presentation. It sounds fascinating:
Come learn about Sea Lamprey 
with expert Lee Margolin
 
 
Sea Lamprey expert Lee Margolin will be presenting about Sea Lamprey and taking questions at a public meeting on Monday, December 4 from 6-8pm at the Sheepscot Lake Fish & Game Club in Palermo. This is the first of what will be several opportunities to learn about Maine’s native sea-run fish species. 
 
Lee has a PhD in Biology with research focused specifically on Sea Lamprey and over 25 years of experience with the species. Anyone curious to learn more about Sea Lamprey or their impact on other fish species and ecosystems is encouraged to attend. 
 
The Fish & Game Club is located at 19 Leeman Arm Rd, Palermo, just off of Route 3 next to the boat launch. Please direct any questions to Garrison Beck, Midcoast Conservancy Director of Water Conservation, 207-389-5157 or garrison@midcoastconservancy.org. 
 
We hope to see you there!

November 2017 Water Level Chart Archived

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November 2017

I have archived the November 2017 Water Level Chart (at left). The most notable feature of the November chart is… nothing 🙂 There is nothing particularly notable, or remarkable, about November’s water level chart. The lake level managed to rise 3.24″ over the month, ending marginally higher than it started.

Rainfall in November was well below normal but still enough, with a fully-recharged water table, to keep the lake level rising marginally. We received only 2.85″ of rain, 1.52″ less than average for November. This brings us to 35.44″ for the year which is still 3.23″ below normal for this date despite the almost 9″ of rain we received in the end of October.

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 →