Supreme Judicial Court ruling could halt NAF permit proceedings
A July 7th decision by Maine’s Supreme Judicial Court has the potential to halt any further consideration of Nordic Aquafarms’ (NAF) permit applications before the Board of Environmental Protection (BEP)…and all other local and State permitting agencies. In Tomasino v. Town of Casco, the Court held, in part, that: “Whatever minimum ‘right, title or interest’ is required [to have administrative standing to obtain a permit from a regulatory authority] we conclude that, in the face of a dispute between private property owners, that requirement is not met by an easement whose parameters have not been factually determined by a court with jurisdiction to do so.”
Based on the ruling in the Tomasino case, Kim Ervin Tucker, attorney for the Friends of Harriet L. Hartley Conservation Area (Friends) and landowners Jeffrey Mabee and Judith Grace, filed a new Motion to Stay any further BEP proceedings on Nordic’s applications. Tucker filed her motion in Waldo County Superior Court on Monday, July 13th. “The basis of Petitioners’ challenges to the Board’s subject matter jurisdiction,” Tucker points out in her latest filing, “[has] nothing to do with the pending dispute in the Superior Court regarding who owns the intertidal land…on which NAF proposes to place its industrial pipes into Penobscot Bay. [It has] everything to do with the parameters and validity, if any, of the easement between NAF and the Eckrotes.”
“This challenge to NAF’s TRI claims does not require the Board (or any other similarly situated local of State permitting agency) to resolve competing ownership claims by the relevant parties relating to this intertidal land,” Tucker notes. “This challenge does require a determination regarding the plain meaning and parameters of the easement option that NAF obtained from the Eckrotes – the exact issue which the Court in Tomasino stated must be resolved in the Superior Court prior to a permitting authority, like the Board, having subject matter jurisdiction to consider the permit, license and lease applications of the applicant NAF.” (Emphasis in the original filing.)
The Law Court’s July 7, 2020 holding in Tomasino v. Town of Casco, 2020 ME 96, mandates that all permitting proceedings stop, including those in the Board of Environmental Protection, until the Superior Court resolves the factual and legal issues relating to the parameters and validity – if any – of the easement from the Eckrotes to NAF on which NAF bases its claim of title, right or interest and, thus, its administrative standing.
Tucker also informed the Court that she is filing parallel motions to stay and/or dismiss NAF’s permit, license, and lease applications in all other local and State permitting proceedings. Those parallel motions were filed with the Board of Environmental Protection and Bureau of Parks and Lands Monday night. A similar motion will also be filed with the City of Belfast.