03 September 2015: DEP files their response to petitioner’s opposition to dismiss and motion to amend

On August 21st attorneys for Pleasant Pond Mill LLC and Aquafortis Associates LLC (“Petitioners”) filed their opposition to the State’s July 6th motion to dismiss, and another motion to amend the original 80C petition (see PPM/AQF file opposition to State’s motion, amend original petition). The DEP had 2 weeks to respond. Today, one day early, lawyers with the Attorney General’s Office fired back, filing their reply to Petitioner’s objections to their motion to dismiss and in a separate filing, their opposition to Petitioner’s motion to amend the original appeal. The State’s filing includes considerable supporting documentation including documents obtained from the Secretary of State’s Interactive Corporate Services website, a letter dated January 16, 2015 from Assistant Attorney General Thom Harnett to Paul Kelley accompanying a DRAFT Notice of Violation (NOV) prepared by DEP, another letter dated March 3, 2015 from AAG Harnett to Paul Kelley regarding his Petition for release from dam ownership or water level maintenance, and some relevant case law.

The State maintains that PPM must be dismissed from the 80C action, that PPM was cancelled on March 26, 2015 and has never been (nor can be) revived for purposes of maintaining this action. According to state law, once an LLC is in dissolution it cannot file suit or maintain an action in court, and once an LLC is canceled, it cannot be revived except under certain special circumstances and then only for a specific purpose, and for a specific period of time. The State maintains that the steps Paul Kelley took to revive his company are not allowed by law and were therefore ineffective. The State also opposes Petitioner’s motion to amend the original 80C action for the same reasons: PPM doesn’t exist can’t engage in litigation.

If the judge in the case agrees with the DEP that PPM no longer exists and cannot maintain an action in court (and the evidence that this is so appears overwhelming), then PPM will be removed from the proceedings and the case will continue with only Aquafortis Associates LLC pursuing the appeal. This would be interesting since Aquafortis does not own the dam, which is the subject of the Clary Lake water level order.

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