Nordic’s TRI claims debunked in opponent’s latest court filing

On Friday, Feb. 26th, HLH attorney Kim Ervin Tucker filed a 20-page argument in Waldo County Superior Court that destroyed every defense raised by Nordic Aquafarms (NAF) in its application for a submerged lands lease.  Tucker’s filing revealed that the Maine Bureau of Parks & Lands (BPL) deliberately and repeatedly ignored evidence that Nordic’s agreement with a shoreside landowner was fatally flawed and its application for a lease should have been tossed out.  [A full text of the filing is attached.] 

At the heart of Tucker’s filing are two legal principles.  One: you can’t use an easement to grant rights to property you don’t own.  Two: you can’t seek administrative action concerning land use if you have no interest in the property at issue.  Nordic deliberately trashed the first when it entered an “…easement option agreement…” with the landowners.  And BPL pushed aside the second when it processed Nordic’s application. 

In earlier filings with the court, Nordic and BPL tried to convince the court that the case is one of competing “claims of title.”  “It is not,” Tucker states.  Nordic’s claim of right, title, or interest (RTI) rests on an August 6, 2018 agreement with the landowners that grants the company no rights at all.  She puts the matter plainly: “Indeed, the 8-6-2018 Easement Agreement on which NAF has relied, and continues to rely, to demonstrate RTI in the Bureau proceedings is not even an ‘easement.’  Rather, NAF and the Eckrotes have a contract providing NAF with an option to acquire an easement at a future date.”  [Bold and underline text are as they appear in the filing.] 

Tucker points out that the NAF-Eckrote agreement actually proves neither party has any claim on the intertidal lands at issue!  “[T]he image in Exhibit A attached to the NAF-Eckrote Easement Agreement shows that both the permanent and temporary easements’ waterside boundaries terminate at the Eckrote’s high water mark.” 

The flawed NAF-Eckrote agreement prompted Tucker to challenge the company’s RTI claims in December 2018 and again in early January 2019.  On January 18th, BPL agreed with Tucker’s challenge and told NAF to produce additional proof of its claim by April 18th.  NAF responded with a March 3, 2019 letter from Nordic CEO Erik Heim to the Eckrotes.  In it, Heim acknowledged receiving a Feb. 28, 2019 agreement in which the Eckrotes consent to the terms offered by Nordic project leader Ed Cotter earlier that same month.  But Heim did not include the Ed Cotter message.  The only other ‘letter’ Heim gave BPL had no NAF logo, no date, and no signature. 

Tucker skewered this supposed ‘proof’ in her filing.  “Although this curious letter contains no statement asserting that the Eckrotes own the intertidal land on which their lot fronts and does not amend the boundaries of the easement as shown in Exhibit A of the 8-6-2018 Easement Agreement, NAF represents that this letter clarifies that NAF has the ‘same right’ to site their pipes in the intertidal land on which the Eckrote’s lot fronts that the Eckrotes have.  Of course, neither NAF nor the Eckrotes assert that the Eckrotes actually have any rights at all…in this intertidal zone.” 

And yet, based on NAF’s March 3rd submission to BPL, Bureau officials decided the Nordic application was “complete” and that Nordic has “sufficient RTI” to request a submerged lands lease.  On May 1, 2019, Tucker challenged BPL’s RTI decision and filed evidence that the intertidal land in front of the Eckrote lot is owned by Jeffrey Mabee and Judith Grace. 

What led to BPL’s change of heart?  Tucker plans to examine that question in her next filing the week of March 1st.