25 July 2013: Thoughts on where we are and how this will all play out

rock_and_hard_place2Paul Kelley has fought this water level petition tooth and nail ever since it was filed over a year and a half ago. All his efforts have been futile while costing him a lot of money. Stalling is a fine tactic I guess when it leads to a tactical advantage; when it simply delays the inevitable, then it is just a waste of one’s time and money. He has lost the battle and he knows it. He is now on record saying that he just “wants out” and he’s looking for an exit strategy. What he’s come up with defies understanding: he sees his petition for release from dam ownership or water level maintenance resulting in a breach order from the Department. Once he has that in hand, he hires a backhoe to come in and dismantle the Clary Lake dam and then he just disappears. His development plans thwarted through his own incompetent efforts to ram them through the town planning process, he lashes out leaving destruction and devastation behind him as he departs for greener pastures. What a guy. Well, that scenario will only happen in his dreams. Reality I’m certain has a less pleasant outcome in store for him.

What Kelley doesn’t seem to realize is that the placement of a water level order on the Clary Lake dam is the first crucial step in the only exit strategy that exists for him and that is getting the Clary Lake Association to accept ownership of the dam. He shouldn’t fight the water level order, he should welcome it. The placement of a water level order on the dam will be the catalyst that finally breaks up the logjam that he himself has created. I’m sure he doesn’t see it this way.

I am confident that the Clary Lake Association will end up owning the Clary Lake dam because we’re the only ones that want it: the State doesn’t want it; the towns don’t want it; Kelley doesn’t want it; Aquafortis Associates doesn’t want it. There are however a few crucial things that have to happen for the Association to accept ownership of the dam. The first as I have said is the water level order: we won’t accept the dam without a water level order on it. The second involves the flowage rights: the Association will not accept ownership of the dam without the flowage rights. Perhaps, when there is a water level order on the dam, the owner of Aquafortis Associates, Richard Smith, will decide he doesn’t want to share with the dam owner the substantial liability of living under a water level order on a dam he doesn’t even own, and will consider making the flowage rights available. After all, while Aquafortis Associates has an argument for wanting the mill privilege since they own the mill, their dam doesn’t flood any land so they have absolutely no use for the flowage rights and continuing to own them makes them equally liable for non-compliance with the water level order. We will see if logic and cooler heads prevail; I’d like to think they would. The mortgage on the dam itself is incidental, the Association will take over the mortgage when the other 2 requirements have been met. Until then, we wait. Time is on our side.

In the mean time, Kelley says he will appeal the Department’s water level order to the Board of Environmental Protection. That’s fine, that’s his right, but he should know that the chances the BEP will find the Department decision lacking and send it back for a do-over are slim to none: the presumption is that the Department acted correctly; Department orders aren’t easily overturned. He should also know that he’ll still have to comply with the order even while the State ponders his appeal, a process could take as long as the original petition. The Department will give Kelley some time to come into compliance, the only question is how long. 90 days would be more than generous; I’d give him 30.

So, from Kelley’s perspective the situation must be looking pretty bleak: soon there will be a Department order on the dam specifying a water level regime which he cannot maintain without repairing the dam; he’s not going to get a breach order from the Department because there is a valid offer on the dam (and soon to be a few more I hear) but he can’t just sell it for the “costs of transfer” either because he still owes Art Enos a pile of money for it and Art still wants it, not to mention the fact that the mortgage is secured by the dam. And then as if this wasn’t bad enough, nobody is going to consider owning the dam until the flowage rights are reacquainted with it; and if you can believe Kelley, those rights are no longer under his control. Sounds to me like Kelley is stuck with the dam until his ex-partner Richard Smith decides to put the flowage rights on the table. For Kelley’s sake, let’s hope he does, and soon.

Caught between a rock and a hard place, all brought on by his own actions. Does that about sum it up Paul?

1 thought on “25 July 2013: Thoughts on where we are and how this will all play out

  1. Claryview

    It is sad that Paul Kelley approaches things in such a litigious way. If he had been more open about his goals, perhaps things would not be in the state they are today. For example, approaching lake water level control in a more responsible, community oriented way would have obviated the need for petitioning the DEP to set a water level regime. Even keeping the water level just below the “hole” in the dam might have been acceptable to all!

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