Category Archives: Board of Environmental Protection

20 October 2020: No Appeal, Transfer Order Stands

Yesterday was the end of the 21 day grace period for Aquafortis Associates LLC to appeal the recent Lincoln County Superior Court ruling on the DEP transfer order. As of this morning, no appeal has been filed. This comes as no surprise. The DEP Transfer Order stands. And that, as they say, is that.

09 October 2020: Water Level Transfer Order Upheld

Following a hearing for oral arguments on September 8th, the Lincoln County Superior Court has issued its ruling on the Aquafortis Associates, LLC [AQF] Rule 80C Appeal of DEP’s December 2018 Order transferring the Clary Lake Water Level Order to the Clary Lake Association. In its discussion, the Court carefully considered all of AQF’s claims and denied or rejected all of them. The Order, issued on September 28, 2020 is subject to appeal, and AQF has 21 days from the date of the Order (deadline October 19th) to appeal the ruling to the Maine Supreme Court, but honestly, in my humble opinion, the Superior Court’s ruling was so unequivocal and final and the appeal so pointless in the first place, that I can’t imagine they will want to waste their money on a Law Court appeal, which they would undoubtedly lose. While this ruling did not come as a surprise to us, it is nice nonetheless to get the official word. The ruling is only 9 pages and well worth reading: Continue reading

09 September 2020: Sour Grapes

The hearing for oral arguments in the matter of Aquafortis Associates LLC (AQF) v. Board of Environmental Protection (docket AP-20-4) took place yesterday afternoon in Lincoln County Superior Court, Judge Daniel Billings presiding. The hearing was held using Google Meet (picture at left) and a few CLA board members including myself joined. I had planned on recording the hearing and making that recording available for viewing, but unlike Zoom meetings (with which I’m more familiar), recording is not an option with Google Meet. I did however take copious notes. Attorney for AQF Dennis Carrillo presented his case first, followed by Assistant Attorney General Scott Boak who represented the Board of Environmental Protection and finally, counsel for the Clary Lake Association Randy Creswell spoke. Judge Billings periodically asked questions. The hearing was scheduled to last 1 hour but it went considerably longer, about an hour and a half. Continue reading

09 July 2020: Aquafortis Associates Files Combined Reply Brief

On Thursday July 9, 2020 Aquafortis Associates, LLC [AQF] filed their reply brief in the matter of AQF v. Maine Board of Environmental Protection [BEP] Docket No. WISSC-AP-20-4, it being an appeal of a Department of Environmental Protection [DEP] Order issued in December 2018 transferring the Clary Lake Water Level Order to the Clary Lake Association. AQF filed their initial brief on May 29th of this year; their reply brief is a combined reply to both the BEP’s brief filed on June 19th and the Clary Lake Association’s brief filed on June 25th. This latest document includes 52 pages but there are a number of attachments; the actual reply brief itself is actually only 16 pages long:

Now that AQF’s petition has been fully briefed, the next step is up to the Court. The judge may schedule a hearing for oral arguments or he may just issue a ruling. I have no idea what to expect or when to expect it. I’m going to refrain from further comment at this time.

26 June 2020: Clary Lake Association Files Brief in AQF WLO Transfer Appeal

On Thursday June 25th the Clary Lake Association through their counsel Randy Creswell timely filed their brief in the matter of Aquafortis Associates, LLC [AQF] v. Maine Board of Environmental Protection [BEP] Docket No. WISSC-AP-20-04. The State of Maine filed their brief a week ago, on June 19th. AQF now has 14 days from the service of these briefs to file their reply briefs. For the State’s brief the deadline is July 3rd and for our brief, the deadline is July 9th. Someone is going to have a fun-filled Fourth of July weekend!

The Clary Lake Association is but a Party in Interest to this appeal and as such we really didn’t need to file a reply to AQF’s brief, especially considering how thorough and irrefutable the State’s brief is. Nonetheless we felt that providing some additional arguments supporting our right, title, and interest in the Clary Lake dam was a worthwhile effort. Continue reading

19 June 2020: State Files Brief in AQF WLO Transfer Appeal

On Friday June 19th the State of Maine timely filed their brief in the matter of Aquafortis Associates, LLC v. Maine Board of Environmental Protection Docket No. WISSC-AP-20-04. The original appeal was filed by AQF in December 2018 in response to DEP’s issuance of an Order transferring the Clary Lake Water Level Order from Pleasant Pond Mill LLC to the Clary Lake Association, after we bought the dam in October, 2018 and it’s taken a convoluted and circuitous route to get where we are today. If you’re wondering WHY Aquafortis Associates LLC decided to spend the time and money appealing the WLO transfer, you’re not alone. You may want to also review Aquafortis Associate LLC’s brief, previously filed on May 27th. Seeing as how this is an ongoing case in which the Clary Lake Association is an interested party, I’m going to refrain from further comment at this time.

29 May 2020: AQF Files Brief in WLO Transfer Appeal

On May 27th Aquafortis Associates LLC [AQF] by their counsel Dennis Carrillo finally filed their brief in their ongoing appeal of the Maine DEP’s December 2018 Order transferring the Clary Lake Water Level Order [WLO] to the Clary Lake Association [CLA]. To remind everyone how we got here: when the CLA purchased the Clary Lake dam in October 2018, DEP rules required we file an application with the Department requesting the Order be transferred from Pleasant Pond Mill LLC (in whose name it was originally issued) to the CLA. We did that, and the DEP approved the transfer request in early December 2018. Later that month AQF appealed the DEP transfer order to the Board of Environmental Protection [BEP] who subsequently denied their appeal at a hearing held in Augusta in June 2019. AQF then appealed the BEP ruling to Kennebec County Superior Court in July 2019. In early February 2020 the Kennebec County Superior Court judge granted a motion to change the venue to Lincoln County. In early March of this year, a scheduling order was issued and AQF has finally filed their brief, which brings to now.

Here’s the AQF brief:

04 February 2020: Kennebec County Judge Rules In AQF Appeal Hearing

We’ve received word that Kennebec County Superior Court Judge William Stokes has issued his ruling on the January 10th hearing in regard the Aquafortis Associates LLC appeal of the Clary Lake water level order transfer. The Order, dated January 17th, DENIES AQF’s motion to supplement the record and GRANTS the Clary Lake Association’s motion to transfer the venue to Lincoln County. This is Good News. We’re hearing about it now because the Court mailed the Order to our lawyer’s old mailing address. Continue reading

10 January 2020: Update on Aquafortis Associates Appeal

Superior_court-1-10-2020The first hearing on the AquaFortis Associates LLC appeal of the Maine DEP transfer of the Water Level Order to the Clary Lake Association took place today. It lasted about an hour and a half. The picture at left, taken before the start of the hearing shows CLA attorney Randy Creswell (left) and Assistant AG Scott Boak discussing strategy. Aquafortis Associates LLC (and Richard Smith) were represented by attorney L. Dennis Carrillo. The Judge handling the case is Justice William Stokes. Continue reading

Aquafortis Associates Appeal Hearing Reminder

The other day I emailed our Membership to remind them of the upcoming hearing on the Aquafortis Associates LLC appeal of the WLO Transfer, scheduled for 10:30 AM on Friday, January 10th. The hearing will be held at the Kennebec County Superior Court, 1 Court St Suite 101, Augusta, ME 04330 (map). I wanted to get notice out soon enough so those who would like to attend have time to make arrangements. If you’re not familiar with this proceeding and it’s history, I’ve posted about it a few times on the CLA website, most recently back in the middle of December. Here’s a link to that post, for more information: Continue reading