The hearing officer for a water level petition for Clary Lake has denied a motion to dismiss a petition from members of the Clary Lake Association and others to set a water level regime for Clary Lake.
The motion alleging bias or predisposition on the part of Department of Environmental Protection staff was filed by Pleasant Pond Mill LLC and Aquafortis Associates LLC after an Aug. 17 hearing on the petition that lasted five-and-a-half hours and saw presentations from 32 lakeside property owners, represented by petitioner George Fergusson.
More than 70 people attended the August hearing at the Jefferson Fire and Rescue Station.
Attorney Anthony Buxton of Preti Flaherty represents Pleasant Pond Mill and Aquafortis and said he is “not surprised by the result, since agencies tend to be defensive in nature and self-protective.”
On Oct. 2, Buxton wrote to Hearing Officer Heather Parent complaining of “extensive ex-parte communications” between her staff and members of the Clary Lake Association (CLA), the filers of the petition.
He said events and circumstances in the proceedings following the hearing showed “a bias or predisposition of certain of your staff who have managed this case … and perhaps on your part as Presiding Officer on a significant issue, and creates so profound an appearance of impropriety as to deprive PPM and AQF of due process of law.”
“These allegations are generally without factual basis, and reflect a misunderstanding of the governing law,” Hearing Officer Heather Parent states in Procedural Order No. 5, issued March 4.
In an Oct. 2 letter to Parent, Buxton said a posting on the CLA website, describing DEP’s Sept. 21, 2012 data gathering, “shows there had been post-hearing…communications between one or more petitioners and/or CLA and the Department on whether, how and when such a study would be conducted. This conclusion is supported not just by the posting, but also by the apparent participation of one or more petitioners and CLA in the September 21, 2012 study ‘outing’ on Clary Lake.”
Buxton said March 5 that Parent told attendees at an Aug. 17 hearing that she was closing the record of the hearings at that time. While Parent made such a statement, she also agreed to allow time for PPM to provide parties with a 2003 engineering report. She gave all parties seven days, after receipt of the hearing transcript, to submit their closing arguments.
“The next thing I know, I get an email from my client saying the Clary Lake Association website shows the DEP and the Clary Lake Association out on the lake doing a bathymetric study,” Buxton said. He said photographs on the website showed members of DEP staff with CLA member and petitioner George Fergusson “standing on our dam.”
DEP spokeswoman Samantha Depoy-Warren said March 5 that staff were on site in September collecting information that was “needed as part of reaching a thoughtful licensing decision. Ultimately, it’s the department that needs to reach a solution on this matter.” She said all parties should be pleased that DEP is doing due diligence.
“It’s completely appropriate,” she said.
Depoy-Warren said Parent’s decision on the motion was reached with the full support of the Maine Attorney General’s office.
“Our staff is always free to gather whatever information the department needs to reach thoughtful decisions,” she said. “We’re not going to debate the legality of this in the media.” She said DEP’s actions are supported by past practices.
“We respect that not every party is going to appreciate the decision,” Depoy-Warren said.
In her order, Parent denied Buxton’s claim that CLA members were involved with DEP staff in evidence collection.
“CLA did not participate in the collection of additional evidence on September 21, 2012 or at any other time in the process,” Parent wrote.
She said discussions PPM/Aquafortis claimed took place between CLA and DEP staff regarding the methodology used at the hearing never took place.
“Nor did direct or indirect communication occur between either petitioners or intervenors and the hearing officer,” Parent wrote.
According to the order, communication between DEP staff and parties in the case is not unlawful because those staff members do not have authority to make decisions in the matter.
“As the Motion to Dismiss itself makes clear, counsel for PPM/Aquafortis has also engaged in extensive ex parte communications with DEP staff about substantive and procedural issues in this matter,” Parent wrote.
Parent was pointed in her response to a claim by PPM/Aquafortis that DEP staff had at times been uncooperative and difficult to reach, and that it was necessary to involve an upper level manager in order to receive the attention they desired.
“Whatever breakdown in communication occurred between DEP counsel for PPM/Aquafortis was, at least in significant part, brought about by the conduct of PPM/Aquafortis’ counsel himself, who has at times been unprofessional in his dealings with staff,” Parent’s order states. “There is no excuse for disrespectful or otherwise inappropriate conduct, including cursing, in this proceeding.”
“Despite these regrettable incidents, DEP remains fully committed to objective fact-finding and decision making in this matter,” she wrote.
Saying PPM/Aquafortis has not presented evidence of bias or predisposition on the part of DEP staff or herself, Parent denied PPM/Aquafortis’ motion to dismiss.
Buxton said the reference to cursing applies to a phone call he made to DEP last fall.
“We filed the motion after I called to ask the DEP ‘What the hell’s going on with you and the Clary Lake Association?'” Buxton said March 5.
He said he expected a decision on the matter to come fairly quickly and does not understand why it has taken so long.
“I talked unsuccessfully with Beth Callahan and then tried to reach her superior, at her suggestion, who never called me back,” Buxton said.
“I assume if he hadn’t entered his motion to dismiss we would be much further down the road than we are now,” Depoy-Warren said. She said the process is spelled out in state procedures that provide specific time lines.
“We are following that process and the time line to the letter,” she said. “The process was put on hold while this motion was being reviewed. Now that that matter is dealt with and the department’s process was affirmed, now the process moves forward.”
Depoy-Warren said Clary Lake and its dams have been a contentious issue that spans years and it is appropriate for DEP to be “thoughtful” in the matter.
“In the past the department has hoped the parties involved could settle this matter on their own,” she said. “Finally, it’s clear they are not going to reach a resolution and the department has stepped up.” She said DEP is under no legal obligation to participate in the matter.
Parent’s order said data that was gathered in September 2012 would be made available to parties on Wednesday, April 3 and that comments will be accepted until Wednesday, May 8. Requests to reopen the hearing in light of the new data must be made in writing no later than May 8.
For more information contact Project Manager Beth Callahan at beth.callahan@maine.gov or call 446-1586.
