PORTLAND — The Maine Supreme Judicial Court heard arguments Sept. 8 in the first of what may be several cases before the court involving Nordic Aquafarms’ proposed salmon farm in Belfast.

The case before the court on Sept. 8 dealt with disputed intertidal land along the Penobscot Bay that was the subject of a lawsuit originally filed by Jeffrey Mabee and Judith Grace against Janet and Richard Eckrote, who formerly owned the upland property in front of the intertidal zone where Nordic wants to lay its pipes.

The Eckrotes entered into an easement agreement with Nordic so the company could place its pipes in the intertidal area. The upland property has since been bought by Nordic and donated to the city of Belfast.

The case heard on Sept. 8 was a de novo review of a decision made Oct. 27, 2021, by Superior Court Judge Robert Murray, who held that Mabee and Grace do not own the disputed intertidal land in front of the Eckrotes’ property, neighboring property two lots north of the Mabee/Grace property.

The issue revolves around a series of deeds from the original owner of the properties, Harriet Hartley, who owned the original lots in the 1940s.

Plaintiffs Mabee and Grace are asserting that a 1946 deed from Hartley to Frederick Poor, whose property eventually became the Eckrotes’ property, reserved to Hartley the rights to the intertidal land in front of Poor’s property. They further claim that the intertidal land was transferred via a 1950 deed to William and Pauline Butler, of which a portion eventually became the lot owned by Mabee and Grace.

From the outset of the hearing Sept. 8, the court called into question both sides’ basis for claiming ownership to the intertidal land. Chief Justice Valerie Stanfill asked attorney David Perkins, who was one of the two attorneys representing the plaintiffs, even assuming that the plaintiffs were correct and Hartley retained the intertidal land in the original Poor deed, how they claimed ownership of the intertidal land under the Butler deed.

Perkins said that when Hartley transferred the property to the Butlers it was her last piece of land and she intended to transfer all of her ownership interest to anything she owned, including the intertidal land in front of the Poor property.

Stanfill said, however, that the Butler deed described a lot that included the upland and the intertidal only in front of the Butler upland property; it did not include a description of the Butler intertidal land and the land in front of Poor’s property. She noted that the deed also did not include language including any and all rights Hartley had at that time, which could have included the Poor intertidal land.

Nordic attorney David Kallin also argued that the 1950 deed only includes the intertidal land that goes with the upland property relating to that lot, not the intertidal land connected to Poor’s lot. He further argued that while the Poor deed did include a description that seemed not to include the intertidal land below the upland property deeded to Poor, the presumption under Maine law is that the flats or intertidal property is presumed to be owned by the upland owner of the property, in this case Poor.

The justices, though, didn’t seem to quite like this argument either. Justice Catherine Connors challenged Kallin on the specific description given in the Poor deed, which outlined four specific points of call including “along the high water mark.” She suggested that this description removed the intertidal land from the Poor deed and retained ownership of the land to Hartley.

As the judges continued their questioning, it was suggested by at least two of the justices, Standfill and Justice Andrew Horton, that the intertidal land may never have been deeded to anyone and therefore would be considered an “orphan” property, meaning that the heirs of Harriet Hartley under her will, would still retain ownership interest in the property.

Perkins argued that such an interpretation would not make sense because why would Hartley have retained this intertidal piece after transferring all her other property. Kallin said that Nordic had received releases from the heirs for this portion of the property, if the court was inclined to find the property had in fact been orphaned.

The court did not issue a decision on the case Sept. 8 but said the justices would take the matter under advisement and issue a written decision “in due course.”