DeepCwind Consortium: a Pyrrhic victory?

DeepCwind ruling by Maine Superior Court a  “Pyrrhic Victory” for University of Maine-led industrial consortium - critic.
 
ROCKLAND  In a historic precedent for defense of Maine’s natural  marine resources, the Knox Superior Court has ruled that Maine citizens have the lawful right to sue on behalf of wildlife in the Gulf of Maine.  Read the decision here

“Until now, the courts have rejected efforts by individuals to obtain legal standing to represent non human entities. “ Huber said.  “ Justice Hjelm’s decision, while it allows development of the DeepCwind offshore wind energy test center, also levels the playing field for citizens trying to protect Natural Maine in the face of powerful industrial consortium like DeepCwind. Both in Superior Court and other venues."

Huber was philosophic about the outcome. “We’ve lost one fight here, but the cost to DeepCwind  and other would-be Gulf of Maine ocean energy developers is an end to the ban on citizen representation of wild nature in Maine and the Gulf of Maine,"   Huber said he is exploring his options.

Huber said it reminded him of the tale of King Pyrrhus of Epirus
"One more such victory" fretted the King, following a costly battle with the Romans "would utterly undo him.” ….
“Likewise for the Maine Bureau of Parks and Lands,”  Huber said. “They and the DeepCwind Consortium collectively defied their own natural scientists and oceanographers in order to rush through the permitting of an offshore windpower test center two miles off Monhegan Island.  And while Judge Hjelm had little choice but to defer to the agency for making an ”informed decision,” Huber said, “the justice also signaled his suspicion of the agency’s methods by ensuring that citizens can lawfully challenge efforts by both the DeepCwind Consortium and other big industrial concerns to go around the laws and regulations protecting our irreplaceable natural Gulf of Maine.”

For  a copy of the court’s  decision, Click Here   For more information about the case Click Here


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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."

Sears Island estuary - a teeming autumn fish nursery

An environmental group with a special license from Maine's Department of Marine Resources has discovered a teeming autumn groundfish nursery in upper Penobscot Bay - directly in the path of a state proposal for a containerport and railyard.  Penobscot Bay's larval fish abundance  has been studied in spring and summer (13 pg pdf). On the other hand, fall and and winter abundances in the shallows of the bay are less studied. are less studied.

Rockland-based Penobscot Bay Watch says initial results from their November 1, 2009 survey reveal  juvenile cod, hake, perch, flounder, herring and many other fish, shrimp and crabs abound on Sears Island's shoals, often  in waters less than three feet deep. 
"We don't have final numbers on their abundance, but, extrapolating from the hundreds of fish captured in a single short pass of our beach seine, one could easily estimate more than a million young groundfish are on the 100 acre shoal, feasting on  great swarms of shrimp-like krill" said Ron Huber, executive director of the group. "This is apparently a quite critical habitat area for juvenile Penobscot Bay groundfish."

The nursery shallows adjoin long-disputed Sears Island, a 1,000 acre undeveloped island that shelters a large estuarine complex in the brackish headwaters of Penobscot Bay.  The island is surrounded by Stockton Harbor on its east side and Searsport Harbor on its western side. 

Debate over the island's future has split mainstream and grassroots environmentalists, with Sierra Club's Maine Chapter and Maine Coast Heritage Trust favoring the recent division of Sears Island into port zone and  privately managed conservation area, while fishery activists and  local citizens have filed lawsuits seeking to protect the fish nursery. 

Maine Superior Court Justice Jeffrey Hjelm is reviewing the cases, which ask him to overturn the state's decision earlier this year to grant the Maine Coast Heritage Trust a perpetual conservation easement on two thirds of the island. The plaintiffs contend that the easement is part of a quid pro quo designed to stimulate development of a port on the island's west side, with the "protected" east portion counted as compensatory mitigation "balancing" the dredging and filling of eelgrass beds and the island's forested wetlands that drain into them.  The moderate environmentalists have accepted the compromise, dropping their their decades of opposition to industrial development of the western part of Sears Island.

"If the state moves ahead and builds a containerport on this island, and dredges these shoals, the natural recovery of Penobscot Bay's groundfish will be jeopardized," Huber said.  We very much hope that Judge Hjelm agrees"

Penobscot Bay Watch - People who care about Maine's biggest bay