Maine AG's office: Nordic can't lay pipes until the court gives approval

Sep. 29—BELFAST, Maine — Even though the city of Belfast took eminent domain action to allow an aquaculture company access to a hotly contested strip of mudflat, the city and the company still must obey a conservation easement placed on the land until a court says otherwise.

That's the opinion of Maine Assistant Attorney General Lauren Parker, who this week sent Belfast City Attorney Kristin Collins a letter in response to a request from the city earlier this summer.

The contested mudflat is where Nordic Aquafarms, a company that intends to build a $500 million land-based salmon farm on the inland side of Route 1 in Belfast, wants to bury pipes to get water to and from Penobscot Bay.

This summer, Nordic purchased the shoreland property adjacent to the intertidal land and gave it to the city of Belfast in exchange for a permanent easement for its pipes to get to the bay. Belfast City Councilors unanimously voted in August to use eminent domain to obtain that easement.

"Assuming its validity, the conservation easement remains in effect and prohibits Nordic's use of the disputed intertidal land pursuant to the Nordic easement until such time as a court terminates or amends the conservation easement to allow Nordic's use of the property in an action in which the Attorney General is made a party," Parker wrote.

Landowners Jeffrey Mabee and Judith Grace placed a conservation easement on a wide swath of the intertidal zone north of the Little River in 2019, including the portion whose ownership is disputed. Upstream Watch was named the holder of the conservation easement, and several months later assigned the easement to the Friends of the Harriet L. Hartley Conservation Area.

The easement is intended to preserve the intertidal land in its natural condition, Parker wrote. It expressly prohibits filling, excavating and removing natural materials, altering topography, removing vegetation, industrial and commercial activities and more.

A lawsuit over the contested ownership of the intertidal land where Nordic wants to place its intake and outfall pipes has yet to be decided by Waldo County Superior Court Justice Robert Murray. A separate lawsuit was filed against the city of Belfast in August by Mabee, Grace, Upstream Watch and the friends group after city councilors voted to use eminent domain to get an easement across the mudflat. That lawsuit also remains in process.

Andy Stevenson, secretary of the Friends of Harriet L. Hartley Conservation Area, said Wednesday that the opinion was good news for the group.

"For us, I think it's a very encouraging opinion from the attorney general's office," he said. "It says very clearly that Belfast can't amend or terminate our conservation easement by condemnation, because the only way to terminate it would be by a court order."

For her part, Collins said that Parker's opinion should not be construed as a blow to the city.

"If anything, it's a procedural hurdle but not a legal hurdle," she said. "She is saying there's no reason to feel that the eminent domain exercise was improper by any means."

Rather, Parker's opinion is that the pipes can't be put in place without court approval because doing so would go against the conservation easement.

"It's her belief that once you allow pipes to be installed in this protected area, it constitutes a modification of the conservation easement, and that's what triggers the need for court approval," Collins said.

Marianne Naess of Nordic Aquafarms said Wednesday that the company has faith in the process.

"The city of Belfast is in charge of this process, and Nordic has great confidence in its ability to move forward," she said.

The matter may become moot, based on Murray's pending decision about ownership of the disputed land, Collins said. If the judge finds that Mabee and Grace do not own the mudflat, they would not have had the right to place a conservation easement over the land in the first place, she said.

But if the judge finds that Mabee and Grace do own the land, the city should be able to get the OK from the court to allow Nordic to install its pipes across it, she said.

"We really have no question that the court would grant approval," Collins said. "What better conservation value is there than to have something permanently protected by a city park? That's what the statute is concerned with — that conservation easements aren't just disposed of or modified."

Collins characterized the conservation easement held by the Friends of the Harriet L.Hartley Conservation Area as a "tactical maneuver" made by Nordic opponents.

"It wasn't intended to protect conservation values so much as to block development," she said.

Stevenson did not agree, saying that mid-20th century landowner Harriet L. Hartley clearly demonstrated through deeds and land transactions that she wanted to protect the intertidal zone.

"[Collins] is entitled to her opinion, but that's really all it is at this point," he said. "All of the evidence, testimony and exhibits we've submitted in the court case establish a very strong argument that it was Harriet L. Hartley's original intention to preserve that intertidal zone. That's what we're fighting for."