The legal battle over the future of Sears Island continued this week as a portion of a Sept. 8 decision by Superior Court Justice Jeffrey Hjelm has been appealed to the Maine Supreme Judicial Court.

Ron Huber of Rockland filed an appeal to Hjelm’s decision at Knox County Superior Court Sept. 29.

Sept. 8, Hjelm dismissed a total of three long-running civil lawsuits that had been launched against the Maine Department of Transportation by Huber, Harlan McLaughlin of Searsport and Douglas Watts of Augusta. Hjelm’s decision was based on his finding that the damages claimed by each of the plaintiffs were based on a development that has not, and may not, happen.

Huber, McLaughlin and Watts filed civil suits in February 2009, after the execution of a conservation easement on about 600 acres of Sears Island in January of the same year. As part of a joint-use agreement, the remaining 340 acres of the island were set aside for possible transportation development in the future.

Huber, McLaughlin and Watts each claimed that a Jan. 22, 2009, executive order from Gov. John E. Baldacci ordering the DOT to “actively and aggressively” work to market — and potentially develop — a port on Mack Point and Sears Island would have harmed their continued enjoyment of an undeveloped island. Huber also claimed that the order affected his freedom of worship, as he stated in his complaint that he was charged in 1992 “by Almighty God with stewarding and restoring; in particular the brackish water nurseries and diadromous fish shelter habitats surrounding Sears Island in Searsport Harbor.”

The suits additionally claimed that the conservation easement between DOT and the Maine Coast Heritage Trust violated state law as well as Maine’s Sensible Transportation Planning Act.

In a telephone interview this week, Huber stated that he is going it alone on the appeal, and that McLaughlin and Watts do not plan to appeal Hjelm’s decision to dismiss their cases.

Speaking about his appeal of Hjelm’s decision, Huber contended that “constitutional issues were raised, and acknowledged, just not addressed.”

Huber’s latest complaint states that the exercise of Public Law Chapter 277 “An Act Regarding the Management and Use of Sears Island” by the Maine Legislature’s Transportation Committee violates the section of the Maine Constitution dealing with the distribution of powers. More specifically, Huber stated, the violation is in the application of the law by the committee to approve the division of the island into protected area and marine port zone.

Huber said while Hjelm ruled against his standing regarding the impacts of the conservation easement for the island, the judge was silent on the issue of Huber’s standing on the Transportation Committee’s application of Public Law Chapter 277.

“There are completely different sets of standards and criteria for evaluating standing on this constitutional question than [what] Judge Hjelm used in his ruling on the review of the conservation easement itself,” Huber said.

Huber noted that Public Law 277, which was passed in 2005, requires DOT  “…to bring before the joint standing committee of the Legislature having jurisdiction over transportation matters for review and approval, any proposal that would alter the current land use, ownership or jurisdiction of lands owned by the state within the Port of Searsport presently under the jurisdiction of the department.”

But, Huber said, Article 3 of the Maine Constitution limits what may and may not be done by each of Maine’s branches of government, and according to state law governing joint committees, the power to approve or disapprove of land use decisions is not vested in the Maine Legislature’s joint committees. That law states that the Legislature’s joint committees exist solely to collect information and provide recommendations about legislation to the full House of Representatives and Senate.

“It is a usurping of executive branch decision-making authority by a single legislative committee,” Huber said.

Huber added that this was demonstrated Nov. 18, 2008, when the Legislature’s Transportation Committee voted unanimously to bar MDOT from signing a conservation easement with Maine Coast Heritage Trust until after a Sears Island container port applicant received all necessary state permits.

In Jan. 2009 Senator Dennis Damon, D-Hancock, forced a revote of the committee’s decision, and the resulting split decision allowed for signing of the conservation easement without acquisition of permits by a port applicant. This allowed the executive branch to move ahead with the easement, Huber said in his complaint.