December 13, 2019
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Decoding a 1946 land sale agreement poses the latest twist in Belfast’s fish farm fight

Courtesy of Nordic Aquafarms
Courtesy of Nordic Aquafarms

Officials from Nordic Aquafarms are rejecting the idea that the company’s pending application for a submerged lands lease should be summarily thrown out by the Maine Bureau of Public Lands.

A new point of conflict involves interpretation of a land sale that happened more than 70 years ago.

The lease would allow the company to bury pipes that would bring water from Penobscot Bay to the proposed land-based salmon farm in Belfast and then discharge treated water back to the bay. This access is critical to the $500 million project, and gaining state approval of the lease is one of the hurdles that Nordic Aquafarms must jump as the company works to get all the permits and authorizations necessary to begin construction.

But project opponents, including the groups Upstream Watch and the Maine Lobstering Union, have been working to slow or stop the permitting process entirely. Earlier this month, an attorney for the two groups submitted a brief to the state arguing, among other points, that the easement Nordic has obtained to get to the bay is invalid because the people whose land the pipes would cross do not actually own the intertidal zone adjacent to their property.

However, on Thursday Nordic submitted several documents to Carol DiBello, the submerged lands coordinator for the Maine Department of Agriculture, Conservation and Forestry, that company officials say show that the property claims raised by the opponents are overstated at best and that the lease application should stand — and be issued.

“Nordic Aquafarms’ filings with the [Bureau of Parks and Lands] conclude that Nordic Aquafarms has right, title and interest sufficient for the [bureau] to issue a submerged lands lease,” Marianne Naess, the commercial director for the company, said in a media release issued the same day. “Nordic Aquafarms remains confident in its position and is moving forward with the permitting process.”

DiBello said Friday that it would take some time to review the information submitted by Nordic.

A perusal of the documents shows that Nordic’s surveyor and legal expert do not agree with opponents that the intertidal land in question is actually owned by Jeffrey R. Mabee and Judith B. Grace, Belfast residents who do not consent to the pipelines crossing their property. In fact, they just put the intertidal zone in a conservation easement held by Upstream Watch to prevent that from happening.

One of the essential points of Kim Ervin Tucker, an attorney representing Upstream Watch and the Maine Lobstering Union, is that when waterfront landowner Harriet Hartley sold a portion of her land to Fred R. Poor in 1946, she retained the intertidal land for herself. Hartley did so by inserting language to this end in the deed, Tucker wrote earlier this month, saying that the property boundary of the land she was selling was along the high water mark of Penobscot Bay.

Hartley also included a covenant in this deed that would impose limits on the use of the parcel, specifying that it was to be used for residential purposes only and no business for profit was to be conducted there unless agreed to by herself or her heirs.

“Janet and Richard Eckrote, the owners of the residential upland lot across and under which NAF proposes to place its three industrial accessory pipelines … do not, and never did, own the intertidal land on which their lot fronts and therefore cannot, and never could, grant NAF an Easement to place its pipelines on, over or under this intertidal land,” Tucker wrote in her brief to the state.

But surveyor James Dorsky of Gartley & Dorsky Engineering & Surveying of Camden and David Kallin, a Portland-based attorney for Nordic Aquafarms, disagreed, and said that the deed is not as cut-and-dried as opponents believe or that it is enough to sink the lease application. Kallin said in a letter to DiBello that the “right, title and interest” standard is a low bar.

“The administrative standard for sufficient right, title and interest differs dramatically from an actual determination of property rights,” he wrote. “The mere possibility (such as the arguments created here by project opponents) that applicants do not have the actual rights to use the property as they seek, and that approval might later be revoked, does not deprive applicants of administrative standing or defeat a showing of sufficient right title and interest.”

As well, Kallin argued that the deed is ambiguous and that it is not clear that Hartley meant to keep the intertidal zone for her own use. Maine is one of just a handful of states where coastal landowners own the intertidal zone out to the mean low tide line, in accordance with a centuries-old Colonial Ordinance. In most places in the U.S., the intertidal zone is owned by the state.

The attorney also wrote that a private covenant, such as the one that bars the for-profit use of the land, “cannot destroy administrative standing” with the Bureau of Parks and Lands. Regardless, Nordic has sought and received release deeds from Harriet Hartley’s heirs.

Ownership of the intertidal zone notwithstanding, project opponents also have raised other objections. Those include the idea that Nordic has failed to submit proof that it has sought a permit to cross under U.S. Route 1 with its pipelines and that even if it could, the zoning rules of the city of Belfast prohibit commercial or industrial accessory use in a residential zone. A letter sent to the state by Wayne Marshall, the director of code and planning for the city of Belfast, refutes these concerns.

Naess said that despite opposition, her company remains steadfast in its goal of constructing the salmon farm.

“Our projects require a long-term commitment to the communities we operate in,” she said. “We are staying the course and remain committed to Belfast … Our door is always open to open communication and honest disagreement.”

However, Ervin Tucker, the attorney for the opposition, said that her clients are also dogged in their own goal: stopping the project.

“We see nothing they have submitted that alters the fact that the Eckrotes don’t own this intertidal land and can’t give [Nordic] an easement to put pipes in the intertidal land,” she wrote Thursday in an email. “We will continue to challenge [Nordic’s] Title, Right and Interest.”



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