In this June 22, 2021, file photo, Waldo County Superior Court Justice Robert Murray, center, is flanked by the lawyers, surveyors and other interested parties who went on a field trip earlier this summer to a disputed intertidal property that is the subject of a civil lawsuit in Belfast. The City Council voted Thursday to seize access to land key to Nordic Aquafarms' planned salmon farm. Credit: Abigail Curtis / BDN

BELFAST, Maine — The civil lawsuit to determine the true owner of a hotly disputed Belfast mudflat is now in the hands of the superior court justice charged with deciding the case.

Written closing arguments were filed by lawyers for each side of the dispute recently, as were responses to each side’s closings.

Ownership of the mudflat is critical because it’s where a Norwegian aquaculture company wants to bury the outfall and intake pipes to get from its planned $500 million land-based fish farm to Penobscot Bay. The right, title and interest lawsuit is seen as a critical part of the case against building the fish farm that opponents have mounted.

Now, Justice Robert Murray will deliberate before making a decision about whether the intertidal zone in question belongs to defendants Janet and Richard Eckrote and Nordic Aquafarms, to whom they sold an easement, or to plaintiffs Jeffrey Mabee, Judith Grace and the Friends of the Harriet L. Hartley Conservation Area.

As had been the case during the courtroom phase of the trial, held in June, the written closing arguments focused in part on the differing interpretations of old deeds that were made by the surveyors called as expert witnesses for each side.

One of the questions the surveyors sought to answer was whether landowner Harriet L. Hartley had intended to keep the intertidal land for herself when she began to subdivide and sell her waterfront property in 1946.

In their closing arguments, attorneys for both the plaintiffs and the defendants attempted to cast doubt on the findings of the surveyor used by the other party. In their brief, David Perkins and Kimberly Ervin Tucker, attorneys for the plaintiffs, argued that the testimony of their expert surveyor, Donald Richards of Rockport, “far outweighs” the testimony of surveyor James Dorsky of Camden.

“On the one side, Donald Richards used his greater experience and knowledge to interpret in a rational and harmonious manner the Intertidal Land ownership issues, based on the facts, surveying standards, and well-established Maine law,” they wrote. “James Dorsky, on the other side, created a series of conflicting opinions set out in his surveys.”

For their part, David Kallin, Melissa Hewey, Andre Duchette and Gregg Frame, attorneys for the defendants, argued that Dorsky had a better understanding of both surveying techniques and Maine law.

“At trial, Plaintiffs expended a great deal of effort trying to cast doubts on Mr. Dorsky’s credibility because, they claimed, he changed his opinion,” the defendants’ attorneys wrote in their post-trial brief. “In fact, however, Mr. Dorsky’s opinion of the location of relevant boundaries on the face of the earth (the core area of expertise of a surveyor) has never changed. The same cannot be said for Mr. Richards.”

The attorneys for the defendants also wrote that property owners on both sides of the lawsuit agree that the suit “seeks to upset the long-settled understanding of ownership in this area.” In his testimony, Mabee told the court that for 25 years, he never believed he had any ownership of the intertidal zone in front of the Eckrotes’ cottage, located one lot away from his land. That changed when he was approached by the legal team for Upstream Watch, a local non-profit organization founded to oppose Nordic Aquafarms, the lawyers wrote in their brief.

“Janet Eckrote testified that her family had rented (since 1885) or owned (since 1946) property understood to include this shore,” the attorneys for the defendants wrote.

At the time that Hartley sold the lot to Fred Poor, Janet Eckrote’s grandfather, the Poor family owned a cottage that sat directly on the edge of the water, with a porch that extended into the water at high tide and resembled a pier, according to the brief written by attorneys for the defendants.

“That location of the cottage is strong evidence that Harriet L. Hartley referenced the high tide mark of Penobscot Bay as a convenient place of measurement not as a property boundary severing the Poor Cottage itself,” they wrote.

But in the response to the defendants’ post-trial brief, Perkins and Tucker worked to rebut that idea, arguing that the location of the old Poor Cottage was neither proven to be that close to the water nor convincing evidence of Hartley’s intentions about the intertidal zone.

“The scant and unsupported testimony from Mrs. Eckrote regarding the high water running under the porch of the cottage in the old days (prior to 1975) is not probative of Harriet Hartley’s intention with respect to the 1946 Hartley-to-Poor Deed,” they wrote. “The location of the old cottage, near the bank and above the high-water, does not prove in any way that Harriet Hartley intended to convey the intertidal land to Fred Poor.”

The plaintiffs also asked to have their costs, including attorneys fees, paid for in the decision.

The court has yet to take action on the motion. It’s not known when Murray will make a ruling in the case.

In a recent turn of events, the Eckrotes sold their upland property to Nordic Aquafarms, which then gave it to the city of Belfast in exchange for an easement to cross the intertidal zone.

Tucker and Perkins also last month filed a motion with the court to add the city of Belfast to the lawsuit, substituting the city for the Eckrotes and for Nordic Aquafarms. In the motion, they argued that the Eckrotes and Nordic Aquafarms “concealed their lack of standing to the court and opposing parties” during the trial. A deed filed at the Waldo County Registry of Deeds showed that on June 23, 2021 — during the three-day trial — the Eckrotes conveyed to the city of Belfast all their “claimed right, title and interest” in the property.

It was unclear how either action might impact the court decision.

 

Meanwhile, city officials have taken steps to pursue eminent domain action to clear the title to the intertidal zone. A public hearing on that action is scheduled for 6:30 p.m. Thursday, Aug. 12 at Belfast City Hall. Immediately after the hearing, the council will vote on whether to move forward with the eminent domain action.