BELFAST — Maine Attorney General Aaron Frey asked Waldo County Superior Court to intervene on behalf of a conservation easement Sept. 30. His request came in conjunction with the lawsuit Belfast property owners Jeffrey Mabee and Judith Grace brought against the city for its action to take certain intertidal land by eminent domain.

Assistant Attorney General Lauren Parker had issued an opinion to the city Sept. 27 that only a court order can terminate or modify the easement.

Frey said in his motion to intervene that the AG’s Office has an “unconditional right to intervene in an action affecting a conservation easement when that action is brought by an entity other than the attorney general.”

Parker tells the city in her letter that its eminent domain taking of the disputed intertidal property, where Nordic Aquafarms wants to lay its intake and outflow pipes, cannot terminate the preexisting easement or amend it “in a manner that materially detracts from the conservation values intended for protection.”

Attorney Bill Kelly, who represented the city at the time, contacted the Attorney General’s Office in July regarding the issue. The City Council then voted to take the intertidal land by eminent domain Aug. 12. The property upland of the intertidal land was given to the city in July by Nordic in exchange for an easement across the land. The land was formerly owned by Janet and Richard Eckrote, who also claimed to own the disputed intertidal land.

Neighboring property owners Jeffrey Mabee and Judith Grace claim historic deeds prove they own that intertidal land and several other intertidal lots in front of neighboring upland properties to the north of theirs.

Mabee and Grace sued the Eckrotes over ownership of the intertidal land. A hearing was held in late June regarding the suit, but Justice Robert Murray has yet to rule in the case.

Mabee and Grace have also sued the city over the eminent domain action in August, claiming the city had no statutory right to take the land by eminent domain. The city issued an easement to Nordic Sept. 3 that allows the company to place its pipes across the upland and intertidal land and also allows the company the option to build a pump house on the upland property, along with a number of other rights to the land, which the city has said it intends to use as a park.

As it stands, the conservation easement prohibits activities involved in placing pipes in the intertidal area. Mabee and Grace first entered into the conservation easement with local environmental group Upstream Watch in 2019; then the easement was transferred to the Friends of Harriet L. Hartley Conservation Area.

Parker’s letter states that a municipality can condemn a conservation easement without court approval if the easement remains intact. Conservation easements can be amended without court approval if the amendment does not materially detract from the conservation values intended for protection.

The Friends of Harriet L. Hartley Conservation Area issued a press release regarding the letter, stating that Parker’s findings validate its claim that the city cannot condemn the conservation easement’s real property interests without a court order.

Nordic issued a press release that said Parker’s letter indicates the city holds the conservation easement now and that opponents misunderstood or misrepresented the facts of the letter. “The City of Belfast is in charge of this process, and Nordic has great confidence in its ability to move forward,” the press release stated.

City Attorney Kristin Collins of Preti Flaherty said the city would continue to discuss this matter with Parker’s office. She said the letter does not suggest the eminent domain action is invalid, adding that the city is prepared to seek court approval to terminate or amend the conservation easement, if necessary.

The city believes the eminent domain action makes it the owner of the property and the beneficiary of the conservation easement. “We feel strongly that the court will grant approval, since the conservation protections that will be placed on the property as a city park will be both stronger and of more public benefit than the conservation easement claimed by Friends of Harriet Hartley,” she said.

Mabee and Grace’s attorney, Kim Ervin Tucker, said Maine strengthened its conservation easement law several years ago because there is so much land placed in conservation easements in the state.

Parker’s letter and the Office of the Attorney General’s motion to intervene validates Tucker’s claim that only a court can terminate a conservation easement, she said. She also thinks that changing the easement holder is amending the easement, and that cannot be done without a court order.

Tucker said the attorney general has the authority to enforce the conservation easement if the holder cannot. With the large amount of land placed in private conservation easements, the state has a vested interest in protecting those easements and enforcing the statute.

“What the city of Belfast has done threatens all that land, and I don’t think anyone wants to see that happen,” Tucker said.

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