Oct 1, 2010

Sears Island case goes to Maine Supreme Judicial Court

The legal dispute continues over the future of  Penobscot Bay's Sears Island, as part of the September 8th decision by Maine Superior Court Judge Jeffrey Hjelm dismissing a long running case against MDOT's division of Sears Island gets appealed to the Maine Supreme Judicial Court.  

Meeting as the Law Court, the justices will consider Penobscot Bay activist Ron Huber's  September 29, 2010 appeal of Hjelm's decision. The complaint states that the exercise of  Public Law Chapter 277 "An Act Regarding the Management and Use of Sears Island" by the Maine Legislature's Transportation Committee, to approve the division of the island into protected area and marine port zone  violates the Maine Constitution's Article 3: "Distribution of powers". 

Huber's appeal of the Huber v MDOT case's dismissal hinges on the fact that, while Judge Hjelm ruled against his standing as regards the impacts of the conservation easement, the judge  was silent on the issue of Huber's standing for the second part of his case - his complaint that Public Law Chapter 277 violates the Maine Constitution's Article 3. "Distribution of powers".   

There are completely different sets of standards and criteria for evaluating standing on this constitutional question, than Judge Hjelm used in his ruling on the review of the conservation easement itself.

Passed in 2005, Public Law 277 requires MaineDOT  "...to bring before the joint standing committee of the Legislature having jurisdiction over transportation matters for review and approval, any proposal that would alter the current land use, ownership or jurisdiction of lands owned by the State within the Port of Searsport presently under the jurisdiction of the department." (Emphasis added)

 But, Huber's appeal notes that Article 3 of the Maine Constitution limits what may and may not be done by each of  Maine's branches of government. Furthermore, according to  MRSA 3 §165  Joint Committees, Authority. the power to approve or disapprove of land use decisions is not vested in the Maine legislature's joint committees. That law states that  the legislature's joint committees exist solely to collect information and provide recommendations about legislation to the full House of Representatives and Senate.  
By giving the Transportation Committee the power to approve or block land use decisions made by the Department of Transportation, Public Law 277 violates both Article 3 of the Maine Constitution and  Maine's statute 3 MRSA §165, It is a  usurping of executive branch decisionmaking authority by a single legislative committee. 

This was demonstrated on November 18, 2008, when the Legislature's Transportation Committee voted unanimously to bar MDOT from signing a conservation easement with Maine Coast Heritage Trust until after a Sears Island container port applicant received all necessary state permits. According to the committee clerk, the final wording of the motion by Senator Christine Savage, R-Knox County, that was then unanimously approved was:

"I move the compromise agreement, including the conservation easement reached by the Sears Island Joint Use Planning Committee, be accepted in principle, but left unsigned by this committee, until a port is permitted on Sears Island. The Transportation Committee will submit a bill to the 124th Legislature, directing the Maine Department of Transportation to move forward with all practical speed to see that a port is permitted on Sears Island. Once that permit is in hand, the agreement before this committee will be signed."

Governor Baldacci and MDOT Commissioner David Cole protested strongly to the Transportation Committee chairs, to no avail.  For two months, Maine's Executive Branch was completely unable to move forward with its planned signing of the Sears Island conservation easement, thanks to Transportation Committee chairman Dennis Damon's use of  PL 277 on the motion from Senator Savage.

But then on January 13th 2009  and on January 16th, 2009  after closed door meetings with the Governor,  Senator Damon forced a re-vote of the committee's  November 18th decision. Many committee members protested reversing a unanimous decision of a few months before. 

The resulting split decision de-linked signing of the conservation easement with acquisition of permits by a port applicant, allowing the executive branch to move ahead  immediately with the easement signing, putting 600 acres of Sears Island's public lands under control of the Maine Coast Heritage Trust, with the explicit understanding that the state would pursue development

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