Maine BEP Commissioners Sidestep Tough Decision
– In an April 16th, 9:00 a.m. teleconference call open to the public, four BEP Commissioners heard arguments for and against a motion to dismiss Nordic Aquafarms, Inc. (NAF) pending permit applications, voted not to hold a formal adjudicatory hearing on the question of “TRI” -- Title, Right, or Interest – and denied a motion to dismiss the company’s pending permit applications based on NAF’s lack of TRI. “This Board does not need to rule on who owns this intertidal land – Jeffrey Mabee and Judith Grace or the Eckrotes – in order to rule against NAF’s claim of sufficient TRI,” attorney Kim Ervin Tucker told the commissioners.
Tucker put the case for dismissing Nordic’s claims of “sufficient” TRI in the plainest possible terms. “The record shows that the easement option granted by the Eckrotes to NAF fails to grant NAF any easement in this intertidal land on which the Eckrotes’ lot fronts.” “The burden of proof is on NAF,” she pointed out, “all the way through the permitting process.”
Tucker talked the commissioners and BEP staff through the various easements and agreements between Nordic and the Eckrotes, the chain of deeds, surveyor reports from four surveyors, and the 1970 “quiet title” court decision in favor of Mabee-Grace’s predecessor. The history of ownership documents clearly that the intertidal lands Nordic must cross were never part of the Eckrotes’ property and could not, therefore, be included in any easement agreed to with Nordic. “You can’t convey or grant an easement in land you don’t own,” Tucker concluded.[1]
After 90 minutes of oral argument, the Commissioners decided to leave the decision on TRI to the courts. Hearing chairman Robert Duchesne said that interpreting deeds and surveys was up to the courts, not BEP, and denied the motion to dismiss. The commissioners’ votes clear the way for final decisions by the Board in what has ballooned into a torturous regulatory proceeding and litigation in State and federal court.
The Friends of Harriet L. Hartley Conservation Area is a local, citizen-action organization dedicated to the preservation and protection of intertidal area at the mouth of the Little River on Belfast Bay. Located in Belfast, Maine and working out of The Little River Center, “the Friends” advocates for the preservation, protection, and greater appreciation of shoreline areas and ecosystems throughout the Penobscot Bay. Formed in the fall of 2019, the organization is committed to protecting the conservation area established by Judith Grace and Jeffrey Mabee, creators and owner of the area and the associated shoreline property. The Grace-Mabee property is at the center of the current controversy over plans by Nordic Aquafarms, LLC to build a land-based, commercial salmon-raising factory across the road on a site now owned by the Belfast Water District.