Sep 13, 2010

Sears Island port case - Judge says: sorry, case not ripe yet.

A bird in the hand is worth two in the bush.  but on September 8, 2010, Maine Superior Court Justice Jeffrey Hjelm ruled that  in the case of Sears Island , the birds are still too deep in the bushes for him to rule on the merits of  three lawsuits brought last year by Harlan McLaughlin, Douglas Watts and Ronald Huber.

Following Governor John Baldacci's January 22 2009 executive order empowering MDOT to privatize 2/3 of Sears Island by giving 600 acres of it to Maine Coast Heritage Trust (48 pg pdf) using a conservation easement, the MDOT dfid so. Three litigants appealed to Maine Superior Court , charging that the MDOT's decision to so divide the island into a protected property and a transportation parcel would trigger severe harm to the fish, shellfish and natural beauty of Sears Island.

In his decision dismissing the cases, Justice Hjelm wrote: "It is clear from these allegations that the injuries claimed by the plaintiffs would arise from the development of the Transportation Parcel...As of the present the plaintiffs' interests as described in their complaints have not been damaged. The controversy between the plaintiffs and the defendant is therefore not yet a "real" one."

As the issues are not yet "real" or ripe for review, "Any effort to adjudicate the plaintiff's claims now" Hjelm wrote, "would rest wholly on a hypothetical and speculative assessment of future events that presently are unknown and of any effects flowing from these effects."

" Because of this, even if plaintiffs would be entitled to judicial relief in the context of known circumstances, it would be impossible to craft such relief now,." Hjelm wrote.

Plaintiff Ron Huber was disappointed but not surprised by the verdict.  "Judge Hjelm postponed decision on the case for nearly two years, waiting to see if Maine DOT might find a prospective  port applicant. The state never did.. This left the judge with no recourse but to dismiss the case for lack of a tangible development project that might injure the island and the plaintiffs."

Huber said that the ruling leaves the door open for plaintiffs to file fresh cases  if Maine DOT does get an applicant to build a port on Sears Island.  "We'll be watching them like hawks," he said.  If and when a MDOT's port plan pops out of the bushes,  we'll be ready and waiting."

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