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

First a little background: I have explained in prior posts that when a party requests a Court review a Final Agency Action under Rule 80C of Maine Court Rules (see: 80C Rule of Final Agency Action), the Agency in question (DEP in this case) supplies the Court with the “Administrative Record” which consists of the all the information and materials used by them to arrive at their decision. No more, no less. In a normal 80C proceeding, the Administrative Record is considered sufficient by the Court to defend their action. And it usually is. In the case of the Clary Lake Water Level Order, the Administrative Record was filed on August 17, 2016 and consists of 264 documents with #264 being the actual Water Level Order. The Administrative Record is a public document, and a fascinating trip down memory lane. You can browse through the Administrative Record if you wish.

I never did get a copy of the AQF motion in question requesting Court Modification of the Record; it consisted of TOO MANY pages and I figured if the Motion was granted, then I’d worry about getting a copy of it. Otherwise, I wasn’t going to bother. To make a long story short: DEP says the Motion has no merit and should be denied but they do not object to 3 of the requested documents being added to the Administrative Record. The rest of the documents “were not submitted to, or relied upon or considered by, DEP in the proceedings that resulted in the DEP’s Water Level Order for Clary Lake” and hence are not relevant.


I try not to engage in commentary or interpretation on these court matters other than trying to describe them in laymen’s terms people can more easily understand, but in this matter I will say that I think the State has made a very good case why the Judge should deny the AQF motion to modify the record, and I fully expect the Judge to do just that. At the hearing last November that Margaret Fergusson and I attended, the State made a very compelling case in support of their motion to supplement the record with additional discovery, and the Judge, after due consideration, DENIED their motion. I find it hard to believe that he will now FURTHER COMPLICATE matters by granting AQF their motion to add apparently irrelevant materials to the Administrative Record. We shall see, and we likely won’t have too long to wait; the Court Order issued February 21, 2017 listed 3 possible dates for the next hearing (April 25, 2017; April 27, 2017; April 28, 2017).