We are pleased to announce that the Department of Environmental Protection has approved the transfer of the Clary Lake Water Level Order from Pleasant Pond Mill LLC to the Clary Lake Association. There was never really any question that the Department would approve the license transfer given that the State openly endorsed our effort to purchase the dam from Kelley’s bankruptcy estate, but it is nonetheless very nice to have this matter behind us. The WLO which was appealed right after it was issued in late January 2014, was upheld by the Lincoln County Superior Court in a ruling issued February 26, 2016. Now, if someone complains about how we’re managing the lake level, we will simply say we’re obeying the Order and if they don’t like it, they can take it up with the DEP.
Since closing on the dam property back on October 13th, the Clary Lake Association Board has been out straight trying to get the dam repaired, the old underground storage tank removed, and the Water Level Order transferred over to the Clary Lake Association. The repairs are underway, the tank is gone, and the license transfer is moving forward.
We submitted the license transfer application to the Department of Environmental Protection (DEP) back on October 22nd and it was accepted for processing by the Department on October 26th. Anyone with a good reason had until the end of the day on November 16th to file a request with the Department for a public hearing on the application. Not surprisingly, two parties did make such a request: Richard Smith (on behalf of Aquafortis Associates LLC) and Butch Duncan. Also not surprisingly, we received word today that both requests for a public hearing have been denied:
The outcome of these attempts to interfere with the transfer of the Clary Lake Water Level Order from PPM to CLA was never in question, and I expect a satisfactory decision on our license transfer application in the near future.
Oral arguments of the Final Sale Motion hearing took place today before U.S. Bankruptcy Court Judge Michael Fagone. Trustee Jeffrey Piampiano was represented by attorney Kaitlyn Husar, the Clary Lake Association [CLA] was ably represented by attorney Randy Creswell, and Richard Smith and Aquafortis Associates LLC [AQF] were represented by attorney Louis Carrillo. The Trustee and CLA were to receive 40 minutes combined to present their arguments in support of the Sale Motion, which time was to be split roughly equally between them. Attorney Carrillo was to be given 40 minutes to present his arguments supporting Smith’s and AQF’s objections to the Sale Motion. Finally, the Counsel for the Trustee was to be given 10 minutes for rebuttal. In fact, each party went over their time limits a little bit. Also present at the hearing representing the Maine DEP was Assistant Attorney General Scott Boak and co-counsel Kevin J. Crosman. The hearing started promptly at 10 AM and lasted about 2 hours. No ruling was issued today: after hearing the oral arguments, Judge Fagone took the matter under advisement and said he will issue his Decision and Order just as soon as he can. While I had hoped for a ruling from the bench today, the Judge was presented numerous cases to review and that was far more than he could be expected to do today.
I thought counsel for the Trustee and counsel for the CLA did a GREAT JOB of presenting their arguments, and I thought counsel for Smith and AQF was way out of his comfort zone did an incredibly lousy job of presenting his arguments, but don’t take my word for it, listen to the hearing audio and decide for yourself. Continue reading →
I had hope to be able to tell everyone today that the U.S. Bankruptcy Court had approved the sale of the Clary Lake dam to the Clary Lake Association, but that announcement is going to have to be postponed for a few weeks. Thanks to objections raised by Richard Smith and Paul Kelley, today’s hearing which should have resulted in a quick decision approving the sale instead turned into a day-long evidentiary hearing with numerous parties taking the stand and testifying, and being cross examined. Court started at 9 AM and finally adjourned at 4:30 PM. A hearing for oral arguments will scheduled sometime the week after next (the week of July 16th) at a time and place to be announced. While there is little question whether the judge will eventually approve the sale to the CLA, there are questions regarding the restrictive covenants which need to be answered. Smith’s and AQF’s objections to the sale and to the scraping of the covenants provided a considerable diversion today, but ultimately I have no doubt that we’ll end up owning the dam. Patience people. We’ve been waiting 7 years for this. A few more weeks won’t hurt.
I wanted to get something posted as soon as possible because I know there are lots of people anxiously awaiting word after today’s hearing. I’ll provide additional details about today’s hearing at a later date and will post an audio transcript of today’s hearing when it becomes available.
Finally! After 4 long years of legal wrangling, yesterday Justice Billings issued his Decision and Order in the matter of Aquafortis Associates LLC [AQF] vs Maine Department of Environmental Protection, denying AQF’s Rule 80C appeal and fully AFFIRMING the Clary Lake Water Level Order. All of AQF’s arguments were denied. ALL of them. The document is 17 pages long and totally worth reading fully. Each argument is addressed separately and in great detail:
The Decision did come sooner than I had anticipated; I was figuring we’d be lucky to get a ruling before April or even May. I’ve been saying all along that I fully expected the court to uphold the Order so this was not really an unexpected outcome, but that doesn’t make it any less noteworthy, or exciting. I can hardly contain myself 🙂
I attended the hearing for oral arguments on the Clary Lake water level order appeal yesterday in Lincoln County Superior Court (case AP 2014-1, Aquafortis Associates LLC [AQF] v. Maine Department of Environmental Protection [DEP or Department]). I was accompanied by my wife. In addition, Clary Lake Association President Malcolm Burson and Board member David Knight were there along with 3-4 people from DEP, a few people I did not know, and a couple of reporters. Paul Kelley and Richard Smith were also there. AQF was represented by attorneys Timothy D. Connolly and R. Benjamin Borowski; Attorney Anthony Buxton was NOT there; I don’t know if his decision to not show up is significant or not, but I was quite surprised by his absence. The State was represented by Assistant Attorney General Scott Boak. The purpose of the hearing was to give counsel for each side an opportunity to verbally present their case to the Judge. Their oral presentations closely followed their respective briefs (see: 10 October 2017: Aquafortis Files Rule 80C Brief, 16 November 2017: State files Response Brief, and 05 December 2017: Aquafortis Associates Replies to State Brief). You’ll find a few more pictures from the hearing in the new Winter 2018 photo gallery. Continue reading →
A quick reminder that a hearing for oral arguments in the Clary Lake Water Level Order Appeal is scheduled for tomorrow, Tuesday February 6th at 1:30 PM at the Lincoln County Courthouse in Wiscasset. The hearing is expected to last about 1 hour. I wrote about this in a Water Level Order Appeal Update post back on January 11th. The hearing will be in the Superior Court Room on the second floor of the Lincoln County Courthouse building. If you’re going to attend, plan to show up at least 30 minutes early; on court days, parking can be hard to find and there is a metal detector to pass through which slows down people entering the building. You’ll want to be on your best behavior and should leave your attitudes at the door: there will be no opportunity to speak, and disruptions of any sort will likely not be tolerated by the Judge. So no clapping, hooting, booing, or general mayhem; this is an opportunity to listen; pay attention and you’ll probably learn something. Make a scene and the lot of us will probably be thrown out of the court room 🙂
Assistant Attorney General Scott Boak will be there representing the Department of Environmental Protection. Attorney Anthony Buxton and likely several other lawyers from PretiFlaherty will be there representing Aquafortis Associates LLC.
A hearing for oral arguments has been scheduled in Lincoln County Superior Court for Tuesday, February 6, 2018 at 1:30 PM. The hearing is expected to last approximately 1 hour. The purpose of the hearing is to provide an opportunity for the parties to speak in support of their written briefs which have previously been submitted to the court. The hearing is open to the public and Margaret and I plan to attend. I expect some CLA Board members will be there as well.know.
On Monday December 4th, counsel for Aquafortis Associates LLC [AQF] filed their reply to the State’s brief which the State filed with the Court on November 15th. This latest filing brings the briefing schedule of the Clary Lake Water Level Order [WLO] appeal to a close. Next up, the Court will schedule a hearing so the parties can present their oral arguments. I expect this will be sometime early in the new year.
This final reply brief (only 11 pages) addresses the arguments presented by the State in support of the WLO and the procedures DEP used to establish it, and reiterates AQF’s arguments against the WLO that were put forth in their original brief. I consider most of AQF’s arguments to be categorically specious i.e., superficially plausible, but actually wrong. For example, AQF argues that 38 M.R.S.A. § 841(1) implies that DEP can’t issue a WLO on a breached dam (see page 4). Nice try. First, the statute says nothing of the kind and second, DEP doesn’t believe the Clary Lake dam is breached and neither do I, and for that matter, neither does MEMA. Nonetheless this doesn’t stop AQF from making that claim. They also continue to demonstrate their lack of understanding of the difference between a water level and a water elevation by arguing that the DEP didn’t establish a water level based on evidence solicited at the Public Hearing.