Last Friday, attorneys representing Pleasant Pond Mill LLC (PPM) and Aquafortis Associates LLC (AQF) made two filings in Lincoln County Superior Court. The first was an expected objection to the State’s July 6th Motion to Dismiss. The second filing was a motion to amend the original Rule 80C petition (aka the water level order appeal) which was initially filed back in February 2014. The State’s response to the Petitioner’s objections to the motion to dismiss is due September 4th. Presumably then the judge will then rule on the State’s motion to dismiss as well as the petitioner’s motion to amend the original petition.
The motion to amend the original 80C petition was apparently intended to correct or address certain deficiencies in the original filing that had been highlighted in the State’s motion to dismiss. I had wondered if PPM was going to try to join their recently dismissed appeal of Agency action with the water level order appeal but apparently not as there is nothing in the amended motion about it.
In other developments this month, according to a document filed on the State’s Interactive Corporate Services web site date August 14th, PPM has been reinstated as a LLC in good standing. This move was expected: in a 2014 Maine Supreme Court case, the Law Court determined that State law prevents an LLC in administrative dissolution from filing suit in court, they can only defend themselves in court.
Picture of Paul Kelley taken at the 15 October 2013 Lake Shore Owner meeting. Lincoln County News photo
At the Clary Lake Association Annual Meeting back on August 1st I provided an update on the Clary Lake water level order and where things stand (see post: “2015 Clary Lake Association annual meeting a great success). During that discussion I described a July 24th filing in Lincoln County Superior Court by dam owner Paul Kelley which I had only learned about the day before. The filing consisted of an appeal of a recent DEP decision to dismiss his petition for release from dam ownership, and a request for mediation. At that time I suggested that the appeal might be dismissed because Mr. Kelley filed it himself without the benefit of counsel. As it turned out, at a conference held on August 4th, Lincoln County Superior Court Judge Daniel Billings did dismiss the appeal stating “Because the filing in this matter was made on behalf of an LLC by a non-attorney, this matter is DISMISSED without prejudice.” One would have thought Mr. Kelley would have known that a lawyer is required when a Limited Liability Company (LLC) is involved in litigation in Superior Court. He certainly does now. Continue reading →
Paul Kelley standing in front of the Clary Lake dam. Photograph by George Fergusson, 8 August 2007
You will recall that last May the Maine Department of Environmental Protection returned Pleasant Pond Mill LLC’s (PPM) Petition for Release from Dam Ownership or Water Level Maintenance (see 18 May 2015 news post) citing various reasons including questions of right, title and interest in the Clary Lake dam property resulting from provocative statements made by Mr. Kelley in mediation, and the August 18, 2015 dissolution and subsequent March 26, 2015 cancellation of PPM as a Maine corporate entity. The Clary Lake Association (CLA) had recommended such action in a legal brief filed with DEP on April 7th by their attorney, Mr. Ronald Kreisman of Portland. At that time it was expected that Mr. Kelley would appeal the Department action. On June 15, 2015 Mr. Kelley did just that, filing an appeal (along with a request for a public hearing) with the Board of Environmental Protection (BEP). However, in a letter dated June 24, 2015, the chairman of the BEP, James W. Parker, informed Mr. Kelley’s that the Department’s return of PPM’s petition for release of dam ownership or water level maintenance was a “procedural action” taken by the Department during processing of the petition and did not constitute final agency action and as such is not subject to appeal to, or review by, the BEP. The Board chairman went on to say that the owner of the Clary Lake dam “may elect to document its ownership and submit (or re-submit, as the case may be) a petition pursuant to 38 M.R.S.A. § 901(1) for consideration on the merits.“
I have updated the 18 May 2015 post regarding the DEP dismissal of the Pleasant Pond Mill LLC’s petition for release from dam ownership or water level maintenance to include links to the document prepared by CLA attorney Ron Kreisman and submitted to DEP on April 7th. Here’s a link to that revised news post:
There is an article by Paul Koenig in today’s Central Maine Papers (Kennebec Journal, Morning Sentinel) reporting on the ending of mediation of the Clary Lake water level order appeal. The article also mentions in passing the recent dismissal by the DEP of PPM’s Petition for release of dam ownership or water level maintenance. The article offers no new information beyond what we have already reported here in two separate postings (see dismissal of the petition for release and the termination of mediation).
Here’s a link to the article. Because of Centralmaine.com’s subscription policy, free access to articles is limited to 10 per month. In case anyone is unable to access the the article at the above link, here’s a local PDF copy:
Last week, the Maine Department of Environmental Protection dismissed and returned to Paul Kelley and Pleasant Pond Mill LLC (PPM) its pending Petition for Release from Dam Ownership or Water Level Maintenance. The May 13, 2015 letter from Kathy Howatt, Hydropower Coordinator to Mr. Paul A. Kelley Jr. cited numerous reasons for its decision including a statement made by Mr. Kelley in an email sent to mediator John Sheldon on March 26, 2015 that PPM “never in fact owned” the Clary Lake dam, and the fact that Mr. Kelley has dissolved and cancelled PPM as a Maine Corporation (mediation is now officially over, see Mediation Report Filed with Superior Court). The letter further points out that the Department has not made any determination regarding the actual ownership of the dam but they do feel that the petition has either been voluntarily withdrawn through Kelley’s own actions, or no longer complies with statutory and rule requirements to be considered still valid. Here is a copy of the letter which we received earlier today:
Paul Koenig of the Central Maine Papers (Kennebec Journal, Morning Sentinel) has written an article that appeared in this past Saturday’s paper. There has been precious little news in recent months about the Clary Lake water level order and the ongoing mediation. Sadly, while it is good and generally accurate reporting, there’s not a lot of new information in the article.
Paul Kelley has fulfilled the final statutory requirement of his Petition for Release from Dam Ownership or Water Level Maintenance by filing his consultation report detailing the results of his attempts to find a new owner for the Clary Lake dam. This concludes a process that he started over a year and a half ago. He filed the report late last Friday afternoon, 19 September 2014. I obtained copies of the report from the Department of Environmental Protection earlier today. I haven’t had a chance to read these reports yet, but I’m certain he will state that he’s met all the statutory requirements of the law, has found no one willing to assume ownership of the Clary Lake dam:
Of course, it’s a well-known fact that the Clary Lake Association would like to own the Clary Lake dam. However, anyone who has been on the receiving-end of Kelley’s sales pitch can only conclude that he really doesn’t want to sell it at all. Kelley’s petition has been written about numerous times on these news pages; if you want to find them select the category “That Other Petition” in the right side bar, or follow this link.
Remember Paul Kelley’s second Petition for release from dam ownership or water level maintenance, filed back on September 27, 2013? Well probably not! Most people have forgotten about it, and with good reason. After all, it is perfectly clear that Kelley has no intention of selling the dam and equally obvious that he isn’t going to get his desperately wished-for breach order. Nonetheless his petition is still alive, and the clock is ticking: he has until this Wednesday, March 26th, to either conclude the petition by filing a consultation report with the Department of Environmental Protection or file for his one-time, 180 day extension as provided for by statute.
You’d think Kelley was already busy enough with the water level order and it’s looming deadlines to contend with, the upcoming land use mediation to prepare for, and his pending administrative appeal to worry about, that he’d drop this petition charade to concentrate on more important things. However, I fully expect that he will request the 180 day extension just to keep his petition alive for another 6 months. Check back here in a few days to see if I’m right.
At a special Whitefield town meeting tonight, Whitefield residents voted not to pursue ownership of the Clary Lake dam just like they did at a similar meeting held last spring. I don’t know about anyone else, but I certainly didn’t expect a different outcome. At least the meeting was well attended! Jefferson held their own special meeting last night and only about 20 people showed up. They too voted (again) not to pursue ownership of the Clary Lake dam and the meeting was over in less than 5 minutes. It was over so quickly that Paul Kelley, who arrived a few minutes late, was walking into the meeting while everyone else was walking out.
Paul Kelley was at tonight’s meeting as was Richard Smith, Manager of Aquafortis Associates LLC. Ellis Percy, President of the Association stopped by long enough to present Kelley with a revised offer on the Clary Lake dam. So far, attempts to meet with Kelley to discuss the Association’s purchase of the dam have been unsuccessful but we remain optimistic that the Association will end up owning the dam sooner or later.
Tonight’s meeting pretty much wraps up Kelley’s obligations under the statute. Next step is his consultation with the Department of Environmental Protection.