June 17, 2018
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Maine’s highest court to hear Plum Creek case

By Kevin Miller, BDN Staff

The legal battle over Plum Creek’s Moosehead Lake development plan is headed to Maine’s highest court.

Justices on the Maine Supreme Judicial Court will hear oral arguments Tuesday on appeals stemming from the September 2009 decision by the Land Use Regulation Commission to rezone nearly 400,000 acres of Plum Creek land in the North Woods.

The major issue before the justices is whether to uphold or overturn a lower court decision ordering LURC to reopen hearings on the Plum Creek case because of procedural errors. But Plum Creek’s opponents are hoping the high court will delve deeper and invalidate altogether one of the largest, costliest and most contentious rezoning cases in Maine history.

Attorneys won’t have much time to plead their cases, however. Both sides will have just 15 minutes to present their oral arguments and answer justices’ questions, which is standard in cases that reach the Supreme Court.

“We have to triage how we use our time very carefully,” said Phil Worden, an attorney representing the Forest Ecology Network and RESTORE: The North Woods, two groups fighting to overturn the LURC decision.

Plum Creek’s housing and resort plan essentially has been on hold for more than two years due to various appeals, although the company has implemented — on an interim basis — several massive land conservation deals that were key to winning LURC’s blessing.

“Nothing is happening on the ground,” Mark Doty, a spokesman for Plum Creek in Maine, said Friday when asked about the development plan. “We are taking this one step at a time and are focusing on the appeal.”

The Seattle-based company’s Moosehead Lake proposal was historic in multiple respects.

The nearly 1,000 house lots and two large resorts envisioned in the 30-year concept plan represent the largest development plan in state history, although Plum Creek will have to receive additional regulatory approvals for each project.

Before seeking any of those permits, much less dig a single cellar hole, Plum Creek was required to permanently conserve roughly 400,000 acres in the region through a combination of conservation easements and land sales. At the time, that deal ranked as the second-largest conservation package in U.S. history.

Nearly 500 Mainers testified at public hearings across the state and more than a thousand more submitted comments on all sides of the issue. Opponents decried the proposal as an egregious case of “wilderness sprawl” in Maine’s famed North Woods. Supporters, on the other hand, predicted the plan would create construction and tourism jobs, provide predictability to the forest products industry and guarantee public access to vast swaths of land for recreation.

But in April 2011, Maine Superior Court Justice Thomas Humphrey ordered LURC to reopen hearings on the issue, saying commissioners violated their own procedural rules by adopting a substantially rewritten rezoning application without first holding a public hearing. Plum Creek and the Maine Department of Conservation appealed that ruling to the state supreme court.

Humphrey rejected the roughly half-dozen other arguments made by the Forest Ecology Network, RESTORE and the Natural Resources Council of Maine in their appeals of the LURC decision. Those issues may be considered by the Supreme Court, however.

Jerry Reid, the assistant attorney general handling the state’s appeal, declined to comment on Tuesday’s hearing. But the state argued in briefs filed with the court that, contrary to Humphrey’s opinion, LURC’s rules allow the commission to make changes to an application and solicit written comments rather than hold additional hearings.

Rebutting claims made by the three organizations fighting to overturn LURC’s decision, the state’s attorneys also wrote that it makes no sense to require LURC, as a planning agency, to either accept or reject applications without working with the applicants.

“To fulfill its statutory charge the commission must be permitted both to evaluate and then explain [to applicants] what sound planning legally means and requires,” the brief reads. “It did that here by amending Plum Creek’s proposal based on the record to render it a publicly beneficial land-use plan, all according to an open process with abundant opportunities for public participation.”

Although it has been more than two years since LURC rendered its decision, Cathy Johnson with the Natural Resources Council of Maine said people are still upset with the outcome.

“Hardly a week goes by that I don’t hear from people saying, ‘What is going on with Plum Creek?’” Johnson said. “I don’t think the passion has declined at all. I think the day-to-day knowledge of what is going on with Plum Creek has declined.”

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