01 February 2014 [REVISED]: A Letter to the Editor and thoughts on the Water Level Order

I have sent the following missive off to the Editor of the Lincoln County News with the expectation that it will be published in next week’s paper. I’m posting it here, now, because I don’t  want to wait that long to get my opinion out in the open. I also want to get a few more of my thoughts down on paper, so to speak, while it’s all fresh in my mind.

The latest Lincoln County News article “Water Level Order Enacted for Clary Lake” is a great article, but a few things contained in it have been bugging me ever since I read it, especially this statement since it suggests a reason as to why Mr. Kelley has been loathe to offer up the dam to us despite all his posturing to the contrary:

“If it was clear what my company owned and who was likely to sue my company if we sold something that we don’t own, then I would be more inclined to have discussions with the lake association with their interest, their purported interest, in the property,” he said. 

By making this statement to a reporter and having it printed in the paper, it’s now fair to speculate on just what on earth Mr. Kelley is talking about. So I speculate: OK, he’s afraid of being sued if he sells us the dam. Why? What doesn’t he own? Why, the flowage rights of course. He transferred them to Aquafortis Associates back in 2010. Or did he? Recall this gem (emphasis added) from page 6 of 16 of the recently issued FINAL water level order under C. TITLE, RIGHT, OR INTEREST:

Nonetheless, the Department’s position on flowage rights ownership is outlined in Procedural Order #4, and the Department finds that water flowage rights exist with the Clary Lake Dam and have remained with the dam with all prior conveyances. The Department further finds the Water flowage rights reside with the land on which the Clary Lake Dam stands, now and with any future conveyance.

Got that? I should quote the entire Section C because it contains truly beautiful language that I, as a retired land survey, can really appreciate. Though they didn’t specifically reference it, it is little surprise the Department has upheld the findings of the Maine Supreme Court since it is after all the Law of the Land; that court’s landmark 1998 case Dorey v. Estate of Spicer concludes that flowage rights are an appurtenant easement and can’t be separated from the dam they benefit. So the State has in effect said that Mr. Kelley’s 2010 conveyance of flowage rights and submerged lands to Aquafortis Associates is null and void. I have stated the same thing on numerous occasions, also citing Dorey v. Estate of Spicer. Ironically, Mr. Kelley has cited Dorey v. Estate of Spicer himself to justify the transfer of the mill privilege and flowage rights back to Aquafortis Associates in 2010, most recently mentioning them in the ill-conceived Declaration of Restrictive Covenants (see #14, page 4). Well, he got it half right: Mill privilege, yes. Flowage rights and the associated submerged land ah, no. Those still belong to Mr. Kelley whether he likes it or not (for more historical background on this issue, see my dissertation on Great Ponds and Water Boundaries).

Now we know who will be be very unhappy if Mr. Kelley should actually try to rid himself of the dam: his very own (ex?) partner, Richard Smith. If anyone can come up with another suggestion of who might want to sue Mr. Kelley and why, I’m all ears.

To conclude this exercise: Mr. Kelley is on the horns of a dilemma of his own making. Whether Mr. Smith really has a legitimate basis to sue Mr. Kelley over the flowage rights and submerged lands he wants to own so desperately is unclear; I personally don’t think so but certainly Mr. Kelley thinks he can, and will. It is however very clear what the State will do if Mr. Kelley flaunts the water level order. Personally, I’d be more worried about the State slapping fines on me than of any frivolous lawsuit Mr. Smith might try to bring. If I were Mr. Kelley, I know what I’d do, and soon.

So with all this as a back drop, here’s my letter to the editor [note the following is a revision of the letter I originally posted on Saturday, February 1st]:

To the Editor:

I wish to comment on the article that appeared in The Lincoln County News’ Jan.. 29 issue entitled “Water Level Order Enacted for Clary Lake,” by Dominik Lobkowicz.

I take no exception to anything written by Mr. Lobkowicz. He did a great job of reporting the facts. To clarify one small misstatement, I am no longer a board member of the Clary Lake Association; I was until last August when I was elected secretary.

I would like to offer a little perspective on some statements made by Mr. Kelley which by themselves do not convey the full story. Due to my role in the association and as spokesperson for the Clary Lake petitioners, I am intimately familiar with the circumstances surrounding this issue.

The issuance of the state water level order on Jan. 27 concluded a long and bitter battle, lasting over two years, and yet Mr. Kelley seems unwilling or unable to admit defeat and move on. Instead, he reminds everyone how the Department of Environmental Protection supposedly issued him a permit back in 2011, purportedly allowing him to drain the lake and repair the dam; a permit he claims they have lost, or hidden. The department addressed and dismissed this matter a year and a half ago and bringing it up now suggests Mr. Kelley is grasping at straws.

The following statement by Mr. Kelley requires clarification: “The Clary Lake Association has refused to participate in standard business discussions between a potential seller and a potential purchaser, and went so far as to dismiss the offer of mediation of a Whitefield selectboard member because they continue to rely entirely on the advice of a non-lawyer, non-licensed individual.”

First, let’s name names: I am that non-lawyer, non-licensed individual Mr. Kelley is referring to. By “refused to participate” Mr. Kelley means the Clary Lake Association has declined to sign a non-disclosure agreement in order to enter into negotiations with him.

The fact that I would never sign anything that allowed Mr. Kelley to sue me notwithstanding, we have repeatedly cited our association bylaws which clearly state our membership must consider and vote on any land purchase. In other words, full disclosure of all the details of a proposed purchase must be made to our membership.

I can no more agree to keep the details of our negotiations secret than I can fly. Mr. Kelley knows this, and his insistence we sign a non-disclosure agreement before discussing the purchase of the dam is simply his way of avoiding having that conversation while making it look as though we are the unwilling party. Nothing could be further from the truth.

Yes, I did dismiss the offer of a Whitefield Selectman to mediate, but only after they insisted we accept Mr. Kelley’s condition of a non-disclosure agreement. It should also be pointed out that it was I who suggested the selectman attempt to mediate discussions in the first place. The fact that mediation seemed like a good idea at all shows how far downhill relations between us have progressed. Mr. Kelley has alienated himself from the very people, indeed the only people in a position to help him out of his predicament. We are still ready to sit down and talk but it is Mr. Kelley who needs to take the next step. The following statements are particularly troubling because they show Mr. Kelley has, through his own machinations, managed to complicate and obfuscate the circumstances surrounding his ownership of the Clary Lake dam property to such an extent that he now apparently doesn’t know what he owns, and what he doesn’t own:

“Concerns over legality and which party holds title to what property and/or rights related to the dam, the water, and the land previously submerged by the lake are also playing a role, Kelley said. “If it was clear what my company owned and who was likely to sue my company if we sold something that we don’t own, then I would be more inclined to have discussions with the lake association with their interest, their purported interest, in the property,” he said.”

These are not the statements of a willing seller, they are the statements of someone uncertain over what they own! They clearly show it is Mr. Kelley who is unwilling to have discussions with the lake association, not the other way around, and not for any reasons we have anything to do with. This isn’t about us.

I can assure him our “purported” interest is very real indeed but it sounds like he has other pressing matters on his mind. While he may feel like he’s caught between a rock and a hard place, there is a way out: he can sell us the dam. The Clary Lake Association only wishes to buy what he originally purchased from Arthur Enos back in 2006, no more, no less. Furthermore we will happily accept assignment of the mortgage. Mr. Kelley can walk away free and clear of this mess.

Alternatively, we are willing to discuss assisting him in bringing the dam property into compliance with the water level order but to be honest it will be hard to sell that proposition to our Membership in time to be of much use to him. The state water level order is in effect, and the clock is ticking.

George Fergusson
Whitefield Maine


1 thought on “01 February 2014 [REVISED]: A Letter to the Editor and thoughts on the Water Level Order

  1. Colin Caissie

    Why is it so straightforward, clear and practical when we talk about it? Kelley makes it sound so frustratingly and senselessly impossible.

    Kelley reminds me of General Idi Amin Dada. “Sometimes people mistake the way I talk for what I am thinking.”

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