Mar 31, 2009

Port Plan Flameout as Huber pulls MDOT's plug.

MDOT misses all four critical deadlines. Huber Wins by Default?

ROCKLAND. The Sears Island partition plan may be history, depending on how a Superior Court judge rules on a motion filed March 31, 2009 by environmental activist Ron Huber in response to efforts by private attorneys hired by Maine Department of Transportation. Huber's motion:

"...moves this Honorable Court to find that MDOT failed to file both its Motion to Stay Production of Record and its Motion to Dismiss in a timely manner, and to exclude these motions from consideration in the Court's review of Huber's Petition for Review of Agency Action."

See all motions filed in the case by all five sides

"I have faith that Judge Hjelm will agree with my motion, rule MDOT to be loser-by-default,'' said Ron Huber "and send the agency off to carry out the environmental impact reviews under state law required for such a gigantic project as the world class containerport the agency wants."

WHAT HAPPENED. Not only did MDOT's hired guns miss EVERY deadline set by the court, they tried to obscure the fact by altering their and Huber's filing dates in the motions they filed with Knox County Superior Court.

Said Huber, "for a prestigious Maine law firm's perhaps most prestigious attorney - former state bar association president, a list of commendations long as a windmill's arm, known to revel in being called "superlawyer" - for this officer of the court to miss her every response deadline regarding the Huber vs Maine DOT case before Knox County Superior court is ...well...fine with me."

For indeed, not a thing sent in to Knox County Superior Court for the Huber vs MDOT docket by Superlawyer Rebecca H. Farnham and her barely-out-of-law-school sidekick Jason Donovan, Esq, arrived before the deadline was long past

Not MDOT's Motion to Dismiss. Not MDOT's Motion to Stay Production of the Record. MDOT's Motion to Consolidate not only missed the deadline, it never even reached Knox County Courthouse.

As anyone who practices law on either side of the bench, or gets law practiced for or against them knows, deadlines in legal proceedings are near-immutable forces of nature, no more capable of being tweaked this way or that by a tardily responding lawyer than an iceberg is by a penguin. Of course there are exceptions - but only for those who 'fess up to the Court before that deadline smacks them, and receive the Judge's blessing to try try again.

But that didn't happen. Huber's Motion states:

"In their motions to this Court, MDOT erroneously asserts that Huber filed his Petition for Review of Agency Action on February 20, 2009. MDOT further erroneously asserts that it filed its responses to Huber's Petition on March 23, 2004. A review of the date stamps on Huber's petition and on MDOT's response motions in the Knox County Superior Court's docket files reveals that Huber actually filed his petition on February 19, 2009, while MDOT actually filed its two response motions on March 24th, 2009."

Huber goes on to observe that:

"Whether these errors are attributable to carelessness or to an attempt by the Defendant to appear to have filed its response in a timely manner is unknown. The fact remains that the Defendant has failed to respond in a timely fashion as required by 5 MRSA §11005 Responsive Pleading; filing of the record, which says in pertinent part:

"The agency shall file in the reviewing court within 30 days after the petition for review is filed, or, within such shorter or longer time as the court may allow on motion, the original or a certified copy of the complete record of the proceedings under review." A review of the docket reveals that no such motion requesting a "longer time" was filed was filed with the Knox County Superior Court within the 30 day period set by MRSA 5 § 11005."

"Courts have got to be merciless with deadlines;" Huber said. "Else they face docket gridlock. Superior Court Judges are busy enough endlessly untying or slashing the Gordian Knots of Law brought before them. Extensions stop up the process."

Huber's February 19, 2009 Petition for Review of Final Agency Action asks the Maine Superior Court:

"to rescind the Jan. 22, 2009 conservation easement until the MDOT has fully complied with the requirements of the Maine Sensible Transportation Policy Act and the Maine Site Location of Development Law."

"These are important laws that protect Maine's most important natural and wild places for their irreplaceable scenic, recreational and ecological resources." Huber said. "Sears Island is a wild Noah's Ark holding representatives of most of the coastal plant and animal species that Almighty God blessed Maine's coast with. Its not right for MDOT to just barge in and start clearcutting, bulldozing and dredging this precious remnant."

# # #

For more information:
Ron Huber
tel: 207-691-7485

Mar 27, 2009

Sears Island Smackdown! Chief Justice won't accept MDOTs motions: wrong court!

It is as though MDOT's hired guns, attorneys Rebecca Farnum and her sidekick Jason Donovan of Thompson and Bowie LLP, had purposely set out to insult the Maine Superior Court Judges of three counties.

"So what
if the rules say requests to consolidate 80C cases must be made to the judges of the courts where the petitions were filed? We're MaineDOT's attorneys! We don't need to follow the rules!"

That or something similar must have been rolling through the noggins of T&B's dynamic duo when they decided to go over those judges' heads and ask the Chief Justice of Maine Superior Court to rule on the motion instead.

Chief Justice Thomas Humphrey politely but firmly declined to accept their motion for consolidation on March 26th.  With admirable restraint, Justice Humphrey identified for them the Superior Court judges of Knox, Waldo and Kennebec counties, explained to Farnum and Donovan that  " is best to follow the customary procedure for filing and acting on these civil motions",   returned their motions unread and bade them go practice their craft on the two judges at the courts where the plaintiffs filed.

In the interest of moving this case along, Ms. Farnum and Mr. Donovan are respectfully offered a link to Rule 80C of the Maine Rules of Civil Procedure. Updated to January 2009.

An excellent resource for those lawyers who find themselves still baffled by the mysteries of civil procedure!

Mar 26, 2009

Sears Island litigant calls MDOT's response to suit "encouraging".

Legal actions continue in Maine Superior Court over State's Sears Island Partition Plan.

Rockland. A man suing the Maine Department of Transportation's over its January partitioning of Sears Island into port and conservation easement zones today called the response filed by MDOT's hired private lawyers on March 23rd "encouraging."

"MaineDOT violated the Maine Sensible Transportation Act (STPA) by planning an enormous and enormously destructive container port project, said plaintiff Ron Huber of Rockland, "without taking a single look at the ecological and health consequences of doing so." Huber sued MaineDOT in February (pdf)

"I find their argument - essentially that a containerport is not officially a transportation facility, and thus the Sensible Transportation Act doesn't apply, to be encouraging in its lameness, as it shows the agency has no real defense to the charges I have brought against it."

The state has filed a motion to dismiss Huber's lawsuit, a motion to consolidate his suit with two similar lawsuits and a motion to avoid having to divulge state documents related to the easement.

It is not surprising, Huber said, that MDOT's response to the lawsuit spends so little time defending its actions and so much on challenging his legal standing. "They've got no excuses. Along with the STPA, Commissioner Cole violated Maine's Site Location of Development Act and the Maine Constitution. All he can hope for is that somehow the judge won't allow the case to be heard. But my case and my legal standing to bring it are rock solid, so that's not going to happen."

Huber also said it is very significant that Maine's Attorney General has declined to represent MDOT in the lawsuit.

"MDOT has been hung out to dry," Huber said. "When former MDEP Commissioner Dawn Gallagher got caught having illegal dealings with a polluting company, she too was forced to seek outside counsel for herself and her agency. The blatancy of the lawbreaking here by Maine DOT Commissioner Cole must have been too much for Attorney General Mills to stomach."

"Let's put it this way: the AG's office isn't even on the court's cc list about this case. This is completely unheard of when an agency is in court over violations of state laws and the Maine Constitution."

Huber said he will file his responses to MDOT's filings over the next three weeks..


Mar 20, 2009

Is it your mudflat, my mudflat or our mudflat?

LD 852 An Act To Clarify the Public Ownership of Marine Organisms within the Intertidal Zone

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 1 MRSA §3-A is enacted to read:

§ 3-A. Ownership of marine organisms in the intertidal zone

In addition to the living resources of the seas owned and controlled by the State under section 2, subsection 2-A, the State declares that it owns and controls the harvesting of seaweed, shellfish and other marine organisms on or under lands within the intertidal zone.


This bill declares that the State owns and controls the harvesting of seaweed, shellfish and other marine organisms on or under lands within the intertidal zone.

Exiled Pen Bay Area inmates - bring 'em home - Meeting at Belfast UU Sat Noon

On Saturday, noon to 4pm the Maine Prisoner Advocacy Coalition, or MPAC, is hosting a gathering and potluck at the Unitarian Universalist church in Belfast.

Topics include bringing exiled inmates back to Maine. Lynne Williams about her gubernatorial corrections positions, Volunteers for Hancock Jail Residents (split sentencing bill), Black Bird Legal Collective ( anti-torture legislation) Naughty North Collective ( queer prisoner correspondence project and support for the NJ4) Maine Native Prison Project, Dewey Fagerburg ( NAACP's reentry program).

Organized by the Blackbird Legal Collective, from Portland. Y'all come.

Mar 15, 2009

First Nations' name for Sears Island goes from bright to dark.

Just as the European colonists and their descendants have given the island at the top of Penobscot Bay a variety of names, so to have the aboriginal peoples of the Penobscot Bay Area and their descendants named and renamed the island. Penobscots, Passamaquoddies and members of other First Nations visited, lived and loved on Sears Island for the ten millenia they lived here in what we call the Midcoast Maine region - before the European occupation.

Going back in time, Sears Island was Brigadier's Island, was Wasumkeag, was Wasa-umkeag, was Awassawamkeak.

Wasumkeag (variant Wassumkeag) has been translated by some as ‘bright sand beach island’ or "Island of the shining shore."

However, an official of the Penobscot Indian Nation recently notified Maine's Natural Areas Program that the Island's name Wasumkeag , in present Penobscot Indian language, now means "Darkly covered island".

Referenced in Maine Natural Areas Program Sears Island report of 2007 (pdf) HTML version

Mar 13, 2009

MDOT may use stimulus money to destroy Searsport's Long Cove Ledge and Sears Island fish nursery to help container ships,

The date was fitting. On Friday the 13th of March, the Legislature's Transportation Committee was given a plan by MDOT Commissioner Cole to use 10.5 million dollars of federal stimulus money to (1) destroy a third of the Wasumkeag Fish Nursery's juvenile cod habitat with dredging, and (2) use explosives to destroy a nearby ledge used by salmon and other fish during their brackish transitions between river and bay.

Here's a 7 minute excerpt Cole and Damon are going back and forth about using a chunk of MDOT $timulus money for dredging near Sears island (mp3 file) And about giving money to Montreal Maine Atlantic railroad, and about blowing up the Long Cove Ledge for easier shipping.

The attack on the estuary would come in two waves: dredging out the the northern most sheltered third of the Nursery shoal, and using explosives to destroy Long Cove Ledge - a shoaling ledge only 1 foot deep near its southern end, used by wild salmon during their Switchover from salt to fresh and vice versa.

Click here for the complete 20 minute recording of Cole and staff talking to the transportation committee about stimulus money for many projects, on March 13, 2009.

Sears Island plaintiffs may subpoena Maine JUPC members

Members of the Joint Use Planning Committee may soon find themselves ordered to appear in Maine Superior Court, after preliminary motions for the cases opposing the partition of Sears Island brought by Harlan Mclaughlin of Searsport, Ron Huber of Rockland, and Doug Watts of Augusta, are resolved.

Sears Island Joint Use Planning Committee members that may be subpoenaed include Coastal Mountain's Land Trust official Scott Dickerson, Maine Sierra Club leader Joan Saxe, Islesboro Island Trust head Stephen Miller, Friends of Sears Island president Jimmy Freeman and Penobscot Bay Alliance chief Becky Bartovics.

It is believed that information will be elicited as to how these environmentalists arrived at a deal with state officials to dismember New England's biggest unprotected wild island into port zone and conservation easement zone without following state laws that require planning for the inevitable environmental damagesuch a project would cause.

"It will be a messy case," Huber said, "but like sausagemaking, what comes out at the end will be worth it."

Mar 8, 2009

Ocean Energy. Maine Fishermens Forum Panel Audio online.

At the 2009 Maine Fishermen's Forum, ocean wind and water energy proponent John Ferland of Ocean Energy Renewable Power Co of Maine held forth on the positives of ocean energy development, followed by a more cautious talk by Maine Marine Resources Commissioner George Lapointe. Both speakers generated many questions.
Listen to the talks and discussions (MP3s ) **** Media Coverage of the session

Mar 2, 2009

Shipping Pollution - can upper Penobscot bay handle all the carbon?

Commercial ships spew half as much particulate pollution as world's cars . Upper Penobscot Bay could become an asthma cluster area if Sears Island is turned into a containerport. The diesel fumes from ships, tugboats, trucks railroad enginees and derricks will create a stinking choking cloud over the upper Bay.

Here's a recent study of the issue of shipping air pollution:

Daniel Lack, a researcher at the National Oceanic and Atmospheric Administration (NOAA)'s Earth System Research Laboratory has just published results of a government study finding that that globally, commercial ships emit almost half as much particulate pollution into the air as the total amount released by cars, according to a new study. Ship pollutants affect both the Earth's climate and the health of people living along coastlines.

"Since more than 70 percent of shipping traffic takes place within 250 miles of the coastline, this is a significant health concern for coastal communities," says lead author Daniel Lack. He and his colleagues reported their findings on 25 February 2009 in the Journal of Geophysical Research – Atmospheres, a publication of the American Geophysical Union (AGU). Read article here