In light of the recent Superior Court decision affirming the Clary Lake Water Level Order [WLO], people are quite justified in asking “What’s next?” regarding the DEP taking enforcement action. The Water Level Order after all was issued over 4 years ago and we have been waiting way too long for the court case to conclude. Winning this hugely important battle was a crucial step towards bringing the Clary Lake dam into compliance with the WLO, but the war isn’t over yet. While I don’t know exactly how things are going to play out, I do firmly believe (and have believed all along) that we will ultimately prevail in our battle to restore Clary Lake, and I will continue to do everything in my power to bring about a satisfactory resolution of our water level crisis as quickly as possible. But what’s next, and how long do we have to wait for a resolution? Continue reading
The briefing schedule for upcoming filings in the Clary Lake Water Level Order Appeal that was included in the August 15th Court Order (see “Clary Lake Water Level Order Appeal Update“) has been revised by the Court in response to a motion filed by counsel for Aquafortis Associates LLC [AQF] on August 30th. In addition to requesting a change to the briefing schedule, the motion also requested an increase in the number of pages allowed in the filings (Maine Judicial Court Rules specify page limits for different kinds of filings). Counsel for AQF cited conflicts with long-standing vacation arrangements for the requested change in filing deadlines. The motion was consented to by DEP (meaning the State did not object to the motion) and the court subsequently issued an ORDER on September 7th granting AQF’s motion in its entirety.
AQF’s appeal brief was originally due 40 days from August 15th, on or about September 26th. The date for that initial filing is now October 6, 2017. The State’s Response Brief now is due on November 15, 2017 and the Petitioner’s Reply Brief is due December 4, 2017. The ORDER also granted Petitioner’s request for increased page limits.
I was somewhat dismayed (though not particularly surprised) to learn of the change in the briefing schedule since delays seem to be the way this game is played. I was nonetheless glad the filing dates were only pushed out 10 days. What has me scratching my head however is the fact that the MOTION and the ORDER both list Pleasant Pond Mill LLC [PPM] as a petitioner. I assume this is an oversight as PPM was removed from the suit by COURT ORDER on January 25, 2016 and while a few filings in early 2016 listed both PPM and AQF as petitioners, ALL filings in the last year have included only AQF as petitioner.
I don’t expect additional changes to the briefing schedule.
The appeal filed with the Law Court back in late February by counsel for Pleasant Pond Mill LLC (PPM) was dismissed last Tuesday, March 1st because the appeal was deemed to be “interlocutory” which is a term referring to an interim ruling issued before the conclusion of a suit. While it is certainly good news, one shouldn’t try to read too much into this decision: it is not uncommon for a Law Court to dismiss an appeal of a lower court ruling while the underlying suit is still being heard. Consequently, this dismissal isn’t really unexpected but it is interesting that the dismissal was issued so quickly. PPM’s Motion to Stay the appeal, filed last Monday, February 29th, has also been dismissed as moot.
So what all this means is that when the appeal of the Clary Lake Water Level Order in Superior Court resumes at the conclusion of the current stay on March 26th, it will proceed without the benefit of Paul Kelley/PPM being a party to it.
Things do seem to be proceeding at a fast pace.
[dropcap]Last[/dropcap] Monday, February 29th attorneys representing Aquafortis Associates LLC (AQF) and Pleasant Pond Mill LLC (PPM) filed motions requesting a Stay of Proceedings in two pending suits, the February 2014 Water Level Order appeal in Superior Court (No. AP-14-1) and the recently filed appeal of the recent lower court’s ruling in the Maine Supreme Court (No. LIN-16-63). The stay requests are for 30 days and end on March 26th. The Law Court action was initiated when Pleasant Pond Mill LLC appealed the January 25th Superior Court ruling granting the State’s motion to dismiss (see PPM Appeals Superior Court Ruling on Motion to Dismiss).