February 21, 2020
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Judge strikes down effort to stall fish farm project

Abigail Curtis | BDN
Abigail Curtis | BDN
This waterfront spot on Penobscot Bay is where Nordic Aquafarms would like to bury its intake and outfall pipes.

BELFAST, Maine — A Belfast judge struck down a motion aimed at stalling a planned land-based fish farm.

Justice Robert Murray has not made any decisions on the ownership of a contested piece of the intertidal zone that’s crucial for the $500 million Nordic Aquafarms project to proceed, but proponents of the development say the Jan. 24 court ruling moves them a step closer to their goal.

“We look forward to the resolution of costly and time-consuming litigation and continue to move forward with permitting our Belfast project at the local, state and federal levels,” said Marianne Naess, the company’s commercial director.

Access to Penobscot Bay is a critical component of the proposed land-based salmon farm. Nordic has an option to purchase an easement to access the intertidal zone from Richard and Janet Eckrote, who own waterfront property along Route 1. But opponents of the salmon farm argue the Eckrotes cannot legally grant the easement to Nordic, citing a 1946 deed and other legal documents they believe show the couple does not actually own the mudflat.

Neighbors Jeffrey Mabee and Judith Grace maintain they own the intertidal land in question. Last April, they placed the contested property under a conservation easement to protect it from development. It is now known as the Harriet L. Hartley Conservation Area after the waterfront landowner who they say retained the intertidal land for herself when she sold other portions of her properties in the 1940s.

The couple filed a civil complaint against Nordic Aquafarms and the Eckrotes in July 2019 asking the court to grant an injunction to prohibit the developers from seeking permits or leases to run industrial pipelines through the land, among other things.

Courtesy of United States District Court for the District of Maine
Courtesy of United States District Court for the District of Maine
A property tax map sketch that was included in the lawsuit filed recently in federal court.

But Justice Murray ruled these requests were unreasonable. He also dismissed the couple’s efforts to prevent Nordic from making statements regarding ownership of the land, or from seeking or using permits or leases to use the land.

In an order reviewed by the parties this week, he upheld Maine’s anti-SLAPP statute. The acronym stands for Strategic Lawsuits Against Public Participation and many states have adopted it as a means to quickly dismiss meritless or frivolous lawsuits.

According to the Reporters Committee for Freedom of the Press, such suits are an “all-too-common tool for intimidating and silencing criticism through expensive, baseless legal proceedings.” Anti-SLAPP laws typically protect consumers, activists and journalists, but the statute is an equal-opportunity law meant to prevent the stifling of free speech.

In his order, Murray wrote there are two interrelated issues at play in Belfast: the permitting process of Nordic’s facility and the ownership of the intertidal area based on mid-20th-century deeds.

“Mabee and Grace’s claims against [Nordic] that seek to directly impact the administrative proceedings — namely, those seeking to prevent [Nordic] from pursuing the necessary approvals based on claims of sufficient title, right, or interest in the relevant intertidal area — are undoubtedly based on [Nordic’s] petitioning activities before those administrative decisionmakers,” he wrote.

That’s why he dismissed them.

In a separate order, filed last week, Murray denied Nordic Aquafarms’ motion to dismiss the ownership case brought by Mabee and Grace. He also ruled that the couple couldn’t sue the Eckrotes without adding neighboring landowners to their lawsuit.

Sarah Gilbert, the attorney for the Eckrotes, said her clients are happy with the judge’s orders.

“My clients are reassured by the court’s decision to dismiss the plaintiffs’ wrongful and transparent attempt to interfere with lawful permitting procedures,” she said in a written statement. “The plaintiffs continue to misuse the court system in ways that are specifically prohibited by Maine law, and Justice Murray’s December decision recognized that such actions have no place in Maine courts. I look forward to addressing the remaining counts on the merits.”

But Kim Ervin Tucker, one of the attorneys for Mabee and Grace, said anti-SLAPP orders are “supposed to protect people” like her clients who oppose development projects from being penalized.

She said Nordic is “trying to pervert” the goal of the law.

“It is not Jeffrey and Judith’s fault that Nordic is trying to steal their land and filing a lawsuit over it,” she said. “They have a constitutional right to this land. The court system exists to prevent giant corporations from coming here like Bigfoot to steal people’s land.”

Ervin Tucker said that her clients “fought very hard” not to include the other neighbors in the lawsuit, and blames Nordic that they will now incur legal fees.

“That’s yet another thing Nordic did to cost people in Belfast money,” she said. “[Nordic officials] know they don’t own this land. They think they can just bankrupt Jeffrey and Judith over this litigation, and ultimately steal it. But Jeffrey and Judith are not going to let them steal this land.”

Watch: Why so many fish farms are slated to open in Maine

 

Correction: A previous version of this story misstated part of the judge’s order. Justice Robert Murray struck down a part of the suit aimed at blocking the permitting process of the fish farm. He did not bar the plaintiffs from filing other such suits.

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