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Court dismisses Nordic opponents' permitting case against BEP

By Kendra Caruso | Jul 27, 2020
Source: File photo

Belfast — A Waldo County Superior Court judge decided July 14 that intervenors could not object to Nordic Aquafarms’ proof of title, right and interest until after the Board of Environmental Protection made a legal decision on the company’s permits for a land-based salmon farm.

Judge Robert Murray dismissed the motion filed by intervenors Jeffery Mabee and Judith Grace, who claim ownership of disputed intertidal land Nordic intends to develop on, and The Friends of Harriet L. Hartley Conservation Area because there has not been a final decision on the permit applications, and therefore it cannot yet be considered in court.

“Because petitioners seek to circumvent the administrative process, petitioners have not filed a proper petition for judicial review,” he wrote. “There has not yet been a final agency action, and rule 80C is the proper procedural avenue for review when such final agency action has been taken.”

The intervenors’ attorney, Kim Ervin Tucker, argued that the BEP voted down her motion for dismissal for lack of title, right and interest at an April 16 meeting for reasons outside what her clients claimed were in dispute.

Board members said they felt they were being asked to decide who owns the disputed intertidal zone, which they said only a court can do. But Tucker said they were asked to consider the lack of submitted ownership documentation, not who owned the property.

Tucker renewed a motion with the BEP and Belfast Planning Board to suspend permit proceedings for lack of title, right and interest proof by Nordic. BEP Presiding Officer Robert Duchesne said the board accepted comments from interested parties until Monday, July 27, in response to the motion. Belfast Codes and Planning Director Wayne Marshall established a comment period on the issue ending the same day.

After Murray’s ruling, Nordic attorney Joanna Tourangeau requested that the intervenors withdraw their motion or have the BEP and Planning Board dismiss it because of the superior court’s ruling.

She argued that the Planning Board had already decided Nordic’s right, title and interest documentation is sufficient proof for its permits. BEP has affirmed that stance by voting against previous motions to dismiss on the matter. The board and BEP are considering the new requests.

Mabee and Grace claim historic deeds prove they own intertidal land in front of several properties north of theirs. They filed a slander of title lawsuit against neighbors Janet and Richard Eckrote in Waldo County Superior Court because the Eckrotes agreed to an easement with Nordic to place its pipes in the intertidal land in front of their property. The Eckrotes claim a 2012 deed proves they own the property.

Nordic opponents claim insufficient documentation has been submitted to the BEP and Planning Board to prove the Eckrotes own the property and that there is indeed an easement agreement between them and Nordic.

Tucker claims that ambiguous wording in title, right and interest files submitted to the board and BEP makes them not specific enough to be considered sufficient proof.

If the BEP grants Nordic a permit, opponents hope to use a recent case involving a land dispute in Casco as precedent for the judge to side with them. Mark and Valerie Tomasino challenged the town of Casco when it denied them a permit to remove three trees in an easement held with abutting property owners.

The Maine Superior and Supreme courts ruled in favor of the town because the easement between the two property owners was regarding a right of way along their property boundary. The courts found that the easement wording was too vague to allow the tree removals.

Tucker said the ruling means the Planning Board and BEP should stop the permitting process and require Nordic to file a more specifically worded easement that includes where the pipes will run under the Eckrotes’ property and intertidal area and specific uses for their land.

The Planning Board will consider Tucker’s motion at its Aug. 12 meeting. It is unclear when the BEP will discuss the motion.

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