June 24, 2018
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Supreme court justices maintain poker faces on Plum Creek development plan

By Kevin Miller, BDN Staff

PORTLAND, Maine — Justices with Maine’s highest court offered few clues Tuesday on where they stand on the complicated legal and regulatory battle over Plum Creek’s controversial rezoning proposal for nearly 1,000 houses and two resorts near Moosehead Lake.

Attorneys on both sides were given roughly 15 minutes to argue key points in a case that deeply divided Mainers when it was before the Land Use Regulation Commission. At issue is whether Maine’s Supreme Judicial Court will uphold a lower court ruling that would require LURC to reopen hearings on Plum Creek’s application more than two years after the commission approved the nearly 400,000-acre rezoning petition.

Lawyers for the state and Plum Creek argued that LURC followed all of its rules when it worked with the company — while soliciting feedback from intervenors — to craft a proposal that the commission could approve.

Attorneys representing the groups that appealed the LURC ruling — the Natural Resources Council of Maine, RESTORE: The North Woods and the Forest Ecology Network — argued that the commission violated those rules by substantially rewriting the plan and then voting to approve it without holding additional hearings.

Justices peppered the attorneys with questions focused largely on the regulatory review process and, as expected, avoided any of the emotional issues that made Plum Creek’s development proposal so contentious.

“They really gave no indication of which direction they were leaning,” said Phil Worden, one of two attorneys representing Plum Creek’s opponents.

Plum Creek received LURC approval in September 2009, more than four years after announcing the largest development proposal in state history.

The concept plan that emerged would allow the company to create 975 house lots and two resorts near Maine’s largest lake over a 30-year period, although each project would require additional permits. But the plan also requires the company to protect nearly 400,000 acres of working forestland in the region through easements or land sales, which supporters claim would benefit both the local tourism economy and the forest products industry.

That conservation package — negotiated with The Nature Conservancy, the Appalachian Mountain Club and the Forest Society of Maine — represented the second-largest conservation deal in U.S. history at the time.

The company’s development plans have been on hold, however, because of appeals. In April 2011, Plum Creek’s opponents won a partial victory when a Maine Superior Court justice ruled that LURC violated its own procedural rules when it approved the revised plan after only soliciting written comments. He ordered the commission to reopen hearings on the final proposal.

On Tuesday, supreme court justices pressed Assistant Attorney General Jerry Reid on the state’s position that LURC was not required to hold additional hearings where intervenors would have the opportunity to cross-examine witnesses.

Chief Justice Leigh Saufley pointed out that the concept plan that LURC staff created with Plum Creek will, in effect, serve as a “prospective zoning plan” that will guide development throughout much of the Moosehead region for decades.

“Isn’t it really a good idea to have another hearing before it is finalized?” Saufley asked.

But Reid and Plum Creek’s attorney, Scott Anderson, replied that rules do not require LURC to give intervenors a chance to cross-examine the opponents after every change. They also said opponents had ample time throughout the process to offer feedback — including through written comments on the final plan — and suggested the three groups never explicitly asked for additional hearings after the revised plan was released.

“So the question is who are these mystery witnesses and why was the commission not told about them when the issue was before the commission?” Reid said.

The justices then turned that question on Worden and Russell Pierce, attorney for the Natural Resources Council of Maine.

“Where in the record is there any indication that you requested an evidentiary hearing?” asked Justice Jon Levy. Worden replied that his filings at the time made clear that the Forest Ecology Network and RESTORE objected to the way LURC was handling the application.

Critics of Plum Creek’s plan have argued that LURC should have either accepted or rejected the company’s application on its merits rather than direct commission staff and consultants to work with the company and its supporters to craft a workable plan.

“There should have simply been a denial,” Pierce said.

Attorneys on both sides acknowledged Tuesday that ordering LURC to hold additional hearings on the final changes to Plum Creek’s application could essentially reopen the entire case because the complexity of the plan.

Plum Creek’s opponents view that as another opportunity to reverse the outcome of a decision that they fear could irrevocably change the scenic character of the Moosehead region. Plum Creek and LURC officials, meanwhile, fear reopening a review process that took several years to complete and cost the company millions of dollars.

Responding to a justice’s question about changes at LURC since September 2009, Reid pointed out that most of the commission members who participated in the two-year-long review of Plum Creek’s application since have departed.

As a result, only one member who heard the Plum Creek case would likely still be serving if the commission were forced to reopen the issue.

“That is an incredible burden to impose on this small agency,” Reid said.

The Maine Supreme Court typically renders a decision within three months of oral arguments, although some observers have suggested that this case could take longer because of the complexity of the issue as well as the potential impacts.

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