30 January 2016: Superior Court grants State’s Motion to Dismiss

I must apologize, all the hype and hoopla surrounding the recent foreclosure and auction of the Clary Lake dam property has unfairly eclipsed a much more exciting and significant event that I’m only now finding the time to write about: I learned a couple of days ago that on Monday, January 25th the Lincoln County Superior Court issued a ruling in favor of the State’s motion to dismiss. This is fantastic news and represents a major victory for the Attorney General’s Office, and for DEP and it opens the door for aggressive enforcement action.

The Order itself is quite short and a little hard to understand so I will excerpt and explain as best I can the relevant portions from my lay person’s point of view. If you just want to see the order, scroll to the bottom of the post where I’ve included links to the Order and the briefing documents. First keep in mind that the phrase “motion to dismiss” does not mean that the State has asked the court to dismiss the whole appeal of the water level order, as pleasant a thought as that might be. It means that the State has selectively identified parts and pieces (and in this case, parties) that they feel are not relevant to the case, not applicable under the law, or for some other reason just shouldn’t be in there. Typically when a party files a lawsuit they toss in everything including the kitchen sink. It is the responding party’s prerogative to then ask the Court to cut it down to its essential worthy elements.

From the Order:

All claims asserted by Pleasant Pond Mills, LLC (‘PPM”) are dismissed based upon the doctrines of abandonment, waiver, and/or election as a result of PPM’s actions during these proceedings and related land use mediation proceedings. In addition, PPM must be dismissed as a party because it lost standing to pursue its claims when it was administratively dissolved on August 18, 2014.

PPM has been stripped the right of being a party to their appeal of the water level order. In other words, Paul Kelley has been dismissed from his own court case as a result of his own actions in the court proceedings, in mediation, and by allowing his company to become administratively dissolved in the first place. This leaves Aquafortis Associates LLC (Richard Smith) as the sole party to the lawsuit.

All “independent claims” are also dismissed as duplicative of the Rule 80C appeal that is the exclusive remedy available.

The basis for the appeal filed by PPM and AQF were administrative procedures contained in Rule 80C, “Review of Final Agency Action.” Their appeal also included a lot of claims they lumped together under the heading of “independent claims.” The Judge is saying that the Rule 80C procedures are the only remedy available to them.

Petitioner AquaFortis Associates, LLC is granted 21 days from the date of this order to file an amended petition.

Last summer, attorneys for PPM and AQF filed a motion to amend their original petition (appeal). With the Court’s recent ruling in favor of the State’s Motion to Dismiss and the dismissal of Pleasant Pond Mill LLC from the proceedings, only Aquafortis Associates LLC remains a party to the appeal. Therefore petitioner’s current motion to amend their appeal is no longer relevant. If Aquafortis Associates LLC wants to maintain their action in Court, they’ll have to file an amended petition that doesn’t include PPM. They have 21 days from January 25th (until Monday February 15th) to do so.

Here’s the actual Order:

You might find it helpful to read the original articles posted about the Motion to Dismiss (here, here, and here) and/or the actual briefs associated with the State’s motion.