24 March 2017: State files 2 Motions in Aquafortis v. Maine Department of Environmental Protection WLO Appeal

On March 20, 2017 the State on behalf of DEP made two filings in Lincoln County Superior Court in their defense of the Clary Lake Water Level Order. These filings were made pursuant to the Court’s February 21, 2017 Order which (among other things) set the 3/20/17 deadline for the filing of “any additional motions concerning discovery or the course of future proceedings.” The first filing was a “Motion For Consideration Of Extra-Record Evidence For [the_tooltip text=”Mootness” tooltip=”In the legal system of the United States, a matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law.” url=”” background=”” color=””] and [the_tooltip text=”Justiciability” tooltip=”Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing” url=”” background=”” color=””] Purposes” and the second filing was the State’s “Opposition to Petitioner’s Motion for Taking of Additional Evidence and Discovery.” Both of these motions pertain to issues going to last August when the State submitted the Administrative Record and as far back as a year ago when Aquafortis Associates LLC [AQF] filed their amended petition (and the amended petition was required because the Judge threw Paul Kelley and his canceled company Pleasant Pond Mill LLC out of the case; see: 30 January 2016: Superior Court grants State’s Motion to Dismiss“).

Here are the latest filings- these really are fascinating documents and are well worth reading:

While I find all this material fascinating, it is quite challenging just keeping track of everything that been taking place, let alone actually understanding what it all means. In very simple layperson’s terms, after AQF filed their amended petition last spring and the State filed the Administrative Record last summer, AQF wanted to supplement the Administrative Record with additional evidence. For their part, the State asked to be allowed additional discovery so as to address certain matters raised in AQF’s amended petition. Normally in an 80C proceeding where the Court has been asked to review an Agency action (such as a Water Level Order) the Administrative Record is generally all that is necessary (or allowed) to defend that Agency action. Last November the Judge heard (and ruled against) the State’s request for additional discovery (see: “18 November 2016: Update on the Clary Lake Lawsuits“).

With that as background, here’s what the two latest filings are all about:

The two issues addressed by the State in their Motion for Consideration of Extra-Record Evidence for Mootness involved objections AQF has to certain parts of the Water Level Order [WLO]. AQF’s challenges to the WLO include allegations that DEP failed to set a specific water level in the WLO and that that DEP did not have the authority to require specific dam repairs so as to comply with the WLO. DEP has addressed both these issues by stating in their Motion for Consideration that they have no plans to “rely on or enforce language requiring specific dam repairs in WLO Special Condition 3.”

As for the water level matter, Special Condition 4 of the WLO requires the owner of the Clary Lake Dam to retain a surveyor and to submit a surveyed plan setting out the height of the water level required by the WLO. The State’s Motion for Consideration points out that Mr. Paul Kelley submitted a survey to DEP in March 2016 pursuant to the WLO and based on that submitted information, DEP staff assigned an height of 151.17′ to be the elevation of the Normal High Water Mark. I wrote about this last fall (see “04 November 2016: DEP Establishes Clary Lake High Water Elevation“). Respondent’s Motion includes a copy of the letter at pages 9 and 10. I agree with and have fully adopted the Department’s elevation of the high water mark for my own water level measurements.

Earlier this winter counsel for AQF filed a “Motion for Taking of Additional Evidence and Discovery” requesting 5 categories of discovery. I did not bother to try and get a copy of this filing. The categories of information requested included engineering opinions and assessments regarding the alleged “breach” of the Clary Lake dam, legislation regarding the Water Level Act, Pleasant Pond Mill’s separate “Petition for Release” matter, and information pertaining to the Branch Mills Flour and Grain/Branch Pond Dam case.

The State’s Opposition to this motion asserts that none of the information requested are relevant to the Court’s review of the WLO on appeal nor do they meet the standards for the taking of additional evidence and discovery. The State concludes by requesting that the Court deny AQF’s Discovery Motion in its entirety.

I expect counsel for AQF will be filing a response to Respondent’s Opposition and Opposition statements within the next 3 weeks at which point this matter will be fully briefed and ready for the Judge to consider. I will be very surprised if AQF’s request for additional discovery is granted.

4 thoughts on “24 March 2017: State files 2 Motions in Aquafortis v. Maine Department of Environmental Protection WLO Appeal

  1. Colin Caissie

    Since when does the DEP decline to enforce special condition 3 re: repair? What does that mean?


    1. George Fergusson Post author

      Well when the Order was issued even I raised an eyebrow when I read special condition 3 which states in part:

      “The owner of the dam shall repair or modify the Clary Lake Dam to an operational state, such that the dam is capable of holding water at full capacity and capable of consistently managing water levels in accordance with the provisions of this Order. The water level outlined in this Order shall not be implemented until dam repairs have been completed and the dam has reached an operational state or on October 1, 2014, whichever comes first.”

      The fact is that DEP lacks the authority under the Water Level Law to tell a dam owner to repair their dam. They can however specify a water level regime to be adhered to. So the complaint of “You can’t make me fix the dam.” is valid. What the DEP should have said is “Here’s the water level regime you must comply with. Have a nice day.” Then if the dam owner has to fix the dam to comply, well that’s their problem isn’t it. What DEP was trying to do was assure that the dam was in good operational order before the dam owners would be expected to comply with the water level order.

      Another case of PPM and AQF nitpicking over details rather than complying with the Order.

    2. George Fergusson Post author

      The Clary Lake Water Level Order contained a few mistakes when issued, and despite the fact that none of them were particularly egregious or compromised the intent of the Order, Paul Kelley nonetheless was quick to exploit them in an attempt to short circuit the WLO implementation.

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