Category Archives: Court Action

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

13 August 2020: Hearing Scheduled for AQF Appeal

It appears the Aquafortis Associates LLC [AQF] appeal of the Water Level Order Transfer (docket AP-20-4) is going to hearing after all! A one-hour hearing for oral arguments has been scheduled in Lincoln County Superior Court on September 8th at 2:30 PM. The hearing will be held in front of the Honorable Daniel Billings using Google Meet (Google’s version of Zoom). I assume the hearing will be available to the general public but I don’t have information about how to connect yet. When I do I’ll make that information available. The State will be represented by Assistant Attorney General Scott Boak, the Clary Lake Association will be represented by Attorney Randy Creswell who so ably represented us during the Bankruptcy proceedings (and got us the dam!), and  AQF is being represented by Dennis Carrillo. The Clary Lake Association is named as a Party in Interest in the appeal. 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

07 March 2020: AQF Appeal Scheduling Order Issued

With the January 17th Kennebec County Court ruling transferring  Aquafortis Associate LLC’s 80C appeal of the DEP Transfer Order to Lincoln County, we’re essentially starting over in a new jurisdiction. On February 28th Lincoln County Superior Court Judge Daniel Billings has issued a Scheduling Order. The Petitioner (AQF) has 40 days from the date of the Order to file their brief (on or about April 8th) and responses by the State and CLA (if we choose to prepare one) are due 30 days after that. The Petitioner then has 14 days to file their reply brief. After that we can expect a hearing date to be set. Stay tuned folks, and don’t hold your breath.

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

16 December 2019: Update on AQF Appeal of WLO Transfer

You may recall that back in December 2018 Aquafortis Associates LLC (AQF) took issue with the Department of Environmental Protection’s decision to transfer the Clary Lake Water Level Order to the Clary Lake Association, and that they subsequently appealed that DEP decision to the Board of Environmental Protection (BEP). The BEP subsequently denied AQF’s appeal at a June 2019 hearing. Then, in a move that defied understanding, on July 8, 2019 AQF appealed the BEP decision to Kennebec Superior Court, docket no. AP-2019-31. I posted an article about the Superior Court appeal (see “Aquafortis Associates LLC Appeals BEP Ruling“). The Clary Lake Association was named as a Party in Interest in the appeal. I haven’t written anything else about this proceeding since the appeal was filed in Superior Court on July 8th, but that doesn’t mean nothing has been happening.

During the several months following AQF’s July 8th filing of the appeal in Superior Court, there was the usual flurry of filings and by the (3) parties. The State for their part filed the Administrative Record (copies all the documents and correspondence used or reviewed by the DEP and the BEP to arrive at their decision). The State also filed a motion to dismiss independent claims. AQF through their counsel Dennis Carrillo filed a motion to supplement the administrative record, and the Clary Lake Association, through it’s counsel Randy Creswell, filed a motion to transfer the venue from Kennebec County to Lincoln County. All three motions have been “fully briefed” and I believe the motion to dismiss independent claims has been acquiesced to by all parties which leaves the motion to supplement the record and the motion for venue change to be decided by the court.

A hearing has been scheduled on January 10, 2020 at 10:30 AM in Kennebec County Superior Court at which time the Court will address two outstanding motions. Kennebec County Superior Court is located in Augusta at 1 Court St Suite 101. The hearing is open to the public.

08 July 2019: Aquafortis Associates LLC Appeals BEP Ruling

In a move that defies understanding, Aquafortis Associates LLC (AQF) has decided to appeal the June 6th Board of Environmental Protection (BEP) ruling denying their appeal of the DEP transfer of the Water Level Order to the Clary Lake Association (see “06 June 2019: BEP Denies AQF Appeal“). This new Petition for Review of Final Agency Action, Docket No. AP-2019-TBA, was filed today in Kennebec County Superior Court by counsel for AQF Dennis Carrillo. Mr. Carrillo has represented Richard Smith and AQF in both the Paul Kelley Bankruptcy proceeding and the Rubin/Ayer lawsuit. The petition names the Board of Environmental Protection as the Defendant and they will be doing the heavy lifting in this court case. The Clary Lake Association has been named a Party-In-Interest. I am not going to comment further until I’ve had a chance to read the Petition carefully. Without further palaver:

Stay Tuned!