May 6, 2011

Sears Island - Maine Supreme Judicial Court rules on Huber v MDOT.

 The Maine Supreme Judicial Court has sent Sears Island activists back to the starting gate, ruling May 3rd to uphold a 2010 Superior Court decision that litigation is premature until Maine DOT actually accepts an application to build a container port on Sears Island.  

The state has sought to build a variety of facilities on the island since the mid 20th century, but opposition in the 1980s from Sierra Club and other conservationists in the 1990s and early 2000s has kept the island port-free and almost completely undeveloped.


Plaintiff Ron Huber of Penobscot Bay Watch, was disappointed but not surprised by the court's verdict. 

"I knew that the state's failure to attract a port wannabee would influence their decision," Huber said, "but had hoped the Law Court would examine the constitutionality of  Public Law Chapter 277 "An Act Regarding the Management and Use of Sears Island,"  This is the law that gives the Legislature's Transportation Committee veto power over all Sears Island management decisions.  I still strongly  believe it violates the Maine Constitution's Article 3: "Distribution of powers".
"Over the  years" said Huber, who filed his lawsuit as a private citizen, "the state has unsuccessfully sought applicants for one after another ecologically short-sighted schemes.  This latest plan for a container port on Sears Island would convert one of midcoast Maine's top inshore fish nursery shoals (map) for atlantic cod and a wide variety of fishes and shellfishes that inhabit these irreplaceable sunlit shallows, full of eelgrass-rich shoals and intertidal kelp beds west of Sears Island,  into a dredged-out, ecologically  low quality container port harbor," he said.
  Sierra Club's otherwise exemplary history of defending Sears Island has been tarnished by the present day Maine Sierra Club chapter. The chapter leadership, without polling its members, joined with the Baldacci administration in a Joint Use committee  and in , the face of much criticism  in 2009 joined with Maine Coastal Heritage Trust in  accepting a compromise that  surrenders part of Sears Island to port development, provided the rest of the island is kept free of development.  That compromise triggered Huber's lawsuit.

"I've got news for  Sierra Club and for Maine DOT: you can't replace nursery  shoals at the mouth of Penobscot River with anything but more shoals at the mouth of Penobscot River." Huber said. "An industrial port on-island  would be as bad for Penobscot Bay's cod and other saltwater fishes as building a new dam below Bangor would be for salmon, sturgeon and other diadromous fishes that rely on nursery habitats upriver. "

Maine's Supreme Judicial Court  found it could no more get a grip on the ecologically and constitutionally sticky issues raised by  the case than the Knox County Superior Court could, he said.

Huber, who was part of the successful fight to thwart Angus King's port plan for the island  said that the ruling leaves the door open for he or other plaintiffs to file a fresh case if Maine DOT does get an applicant to build a port on Sears Island. 

"I have a message for Maine DOT" he said:  "Go ahead....Make My Day."

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