At the Clary Lake Association Annual Meeting back on August 1st I provided an update on the Clary Lake water level order and where things stand (see post: “2015 Clary Lake Association annual meeting a great success). During that discussion I described a July 24th filing in Lincoln County Superior Court by dam owner Paul Kelley which I had only learned about the day before. The filing consisted of an appeal of a recent DEP decision to dismiss his petition for release from dam ownership, and a request for mediation. At that time I suggested that the appeal might be dismissed because Mr. Kelley filed it himself without the benefit of counsel. As it turned out, at a conference held on August 4th, Lincoln County Superior Court Judge Daniel Billings did dismiss the appeal stating “Because the filing in this matter was made on behalf of an LLC by a non-attorney, this matter is DISMISSED without prejudice.” One would have thought Mr. Kelley would have known that a lawyer is required when a Limited Liability Company (LLC) is involved in litigation in Superior Court. He certainly does now.
This most recent appeal is NOT to be confused with Mr. Kelley’s appeal of the Clary Lake water level order which was filed back in February 2014 by PretiFlaherty attorney Anthony Buxton; that is a separate 80C proceeding which is still active. If you’re confused about what is going on, you’re probably not the only one.
For those of you who were not at the Clary Lake Association annual meeting and didn’t receive the update, this is likely the first you’ve heard about this latest development. Here’s a little background information to bring you up to speed.
Back in May the Maine Department of Environmental Protection returned Paul Kelley’s petition for release from dam ownership or water level maintenance in part because of a filing to DEP made by Clary Lake Association counsel Ronald Kreisman in early April claiming that Pleasant Pond Mill LLC (PPM) had ceased to exist after Kelley had taken the decisive step of cancelling the company with the Secretary of State. Based on this action, Mr. Kelley clearly lacked the corporate “good standing” required by DEP rules to maintain an action before the Department. Mr. Kelley’s decision to cancel his company gave DEP all the reason they needed to throw out his petition. There were other reasons cited for their rejection of his petition, but that was the main one.
In the Clary Lake Water Level News update included in the 2015 Summer Clary Lake Clarion I stated “We need to be prepared for the threat of Kelley’s petition for release from dam ownership resurfacing, either under appeal or as a new petition.” Sure enough, having realized his mistake in cancelling his company, Mr. Kelley attempted to revoke the cancellation by filing a “Statement of Correction” with the Secretary of State, believing this would place PPM back in “Administrative Dissolution”. A few days later he appealed the DEP action on his petition to the Board of Environmental Protection (BEP). The BEP declined to hear the appeal on the basis that the Department’s rejection of his petition for release from dam ownership or water level maintenance was a procedural action and did not constitute “final agency action” by DEP. The BEP only hears appeals of final agency actions. At this point, Mr. Kelley had several options. He chose to file an appeal of the Department action in court.
On Friday July 24, 2015 Mr. Kelley filed a 63 page brief (caution: large file) with the Lincoln County Superior Court consisting of 1) a request for mediation under the Court Administrative Dispute Resolution Service (CADRES) and 2) a Petition for Relief of Final Agency Action. As stated above, this appeal has been dismissed but it is likely not the last we’ll hear of it.