NRCM Blog

Plum Creek update: our day in court

Thursday, Feb. 24, 2011, NRCM finally got its day in court on our appeal of the Land Use Regulation Commission's (LURC) approval of Plum Creek’s Concept Plan for three resorts including 2,000 house lots in the Moosehead Lake region. The hearing was held in the old courthouse in Portland. NRCM was represented by our wonderful and committed lawyer, Russ Pierce, of Norman, Hansen and DeTroy. FEN and RESTORE were represented by their lawyers Phil Worden and Lynn Williams.

Of course, there was a long line up of lawyers on the other side – the Assistant Attorney General, Jerry Reid, representing LURC, and lawyers representing Plum Creek, the Piscataquis County Economic Development Commission, The Nature Conservancy and Forest Society in Maine. Altogether, there were three lawyers on our side and seven on their side. 

The Judge, Justice Thomas Humphrey, was very well prepared. He clearly had read the briefs and LURC’s Comprehensive Land Use Plan and LURC’s procedural rules. He had lots of questions for the lawyers. 

While there are a number of issues included in the appeal and the briefs, the hearing focused primarily on two issues: 1) whether NRCM and FEN/Restore had “standing” to appeal, and 2) whether LURC had followed the right process in approving the Concept Plan.

The State had challenged NRCM’s standing (or legal right) to appeal in spite of the fact that LURC had granted us intervenor status and we had participated in every phase of the Plum Creek process. Frankly, we were outraged at the State’s challenge since the law on this issue is quite settled. The law says that if our members use and enjoy the region and will be harmed by the approval, NRCM has standing to appeal. We filed five affidavits from five members showing clearly that they use the region and will be harmed by the decision.  Fortunately, when the Judge started questioning the State’s lawyer, he quickly folded his cards, essentially abandoning his argument. I am very optimistic that the Judge will rule in our favor on this question.

On the question of whether LURC had followed the right procedure, the debate was more complicated. The Judge was trying to figure out whether the Plum Creek process was a rulemaking process or an “adjudicatory” process because different procedural rules apply to each. LURC had shifted gears after the public hearings and tried to transform what had started as an adjudicatory process into a “prospective planning” rulemaking process so that they could rewrite Plum Creek’s plan. 

After much back and forth, our lawyer Russ Pierce summed it up best. He said that it doesn’t matter what name you put on the process, the fact is that after following the written process (Chapter 5 process - used by LURC for 35 years to evaluate these types of applications) all the way through the public hearings, LURC abandoned that process and adopted a new, unwritten “ad hoc” process. The new “ad hoc” process deprived the public of the opportunity to fully explore the new proposals (paid for conservation, a new resort at Moose Bay, etc.) that then became part of the approved plan. 

When the State’s lawyer asserted that the whole proceeding was basically a prospective planning process allowing LURC to follow whatever process it wanted, our lawyers pointed out that prospective planning considers all the land in a region, not just the land of one owner.

The Judge made no decisions yesterday, but was clearly listening carefully, and I am cautiously hopeful. If he rules in our favor on both questions, LURC’s approval of Plum Creek’s plan would be vacated and the case would likely be sent back to LURC for further proceedings. If the Judge rules against us, we will strongly consider appealing to the Law Court. We could hear from the Judge any time in the next few months. Stay tuned!

- Cathy Johnson, NRCM North Woods Project Director and Senior Staff Attorney

To learn more about our work to protect the Moosehead Lake region, visit our website.

Winter Thoughts on the Recent Duck Season

By Nick Bennett, NRCM Staff Scientist & Watersheds Project Director  (and avid duck hunter!)

Duck season has been over for six weeks, and I am finally recovering from my post-season depression.  I think most hunters know what I am talking about.  For three months, I knew exactly what I would be doing with every second of free time, and even car trips for work or other tasks had an additional sense of purpose: scouting.  My eyes often wandered from the road looking for ducks and always hoping for a new spot to hunt (of course, I don’t recommend this method of scouting while driving, but I can’t help it).

Waterfowl hunting provides me with so many ways to enjoy the glory of Maine, from the warm, September days of early goose season ponds in Central Maine through bitter, dark December mornings in Casco Bay.  There is nothing quite like the power of life that duck hunting allows me to see.  One early morning in October, I got up around 4 am to pouring rain and wind, not the most fun to hunt in, and at least in my experience, not great weather for ducks (many say the snottier the weather, the better the hunting, but I wonder about this).  I went to a small pond near where I live in Hallowell, and my partner for the morning, who rarely if ever hunts in the rain, didn’t show.  His loss.

When first light came, the rain stopped, the wind picked up, and the sky filled with ducks.  This particular pond is very small, less than a mile long and half a mile wide.  It’s just a guess, but I think there were four hundred ducks over the pond, and they stayed there a long time.  I had many hurtling into my decoys.  I shot worse than any other day last season, getting only one duck for 30 rounds of Hevishot shells. (Duck hunters must use non-toxic shot.  Many use steel, but I prefer Hevishot, which is a tungsten-iron mixture and denser than steel, making it more effective.  It’s also expensive at $2-3 per round!) I think that the ducks — swarming almost like hornets from a disturbed nest — had me completely in awe and totally flummoxed.  They fly in large flocks to distract avian predators, and it works on the human kind as well.  Needless to say, my lab, Percy, was not happy with me and was flummoxed himself as to why so much noise resulted in so few opportunities for him to retrieve.

Seeing ducks is always great, and there is nothing like watching these aerobatic natural fighter jets scream towards you and set their wings.  But even more impressive is the duck swarm — when hundreds of ducks fly in ever rising circles like angry hornets or bees.  Although we all see ducks so commonly that they barely catch our attention, I doubt many have seen the swarm.  I only saw this twice last season, first at the small pond near my house, and then in December on a flat calm, warm day in Maquoit Bay near Brunswick. 

“Flat, calm, and warm” are definitely not good words for duck hunters to hear.  Ducks often move when they need to feed, which they need to do more when it’s cold, or when they want to get out of the wind.  “Flat, calm and warm” means ducks are happy where they are and don’t fly toward hunters’ decoys.  On this particular day, most observers would conclude there were, in fact, very few ducks in Maquoit Bay at all.  I knew differently, and a boat that traversed the far shore from my blind proved the point.  As the boat went by, the ducks swarmed. 

This time, there were thousands of birds in the swarm, slowly circling and filling the sky.  Many had come in the past few days, which had been very cold and finally froze up inland ponds and streams.  Some will still be in Maine waters now and others will have long since flown south.  I was lucky to glimpse a big piece of this huge annual migration.  I wonder how many people around Maquoit Bay get to see the duck swarm and are aware of the massive scale of the migration happening right under their noses.  Not many, I suspect, and most are probably duck hunters.

As I think about last season and readjust to life without duck hunting, I worry a bit about the future.  How many of the ducks I saw this year will be affected by the BP oil spill?  Here in Maine, there are proposals in the Legislature that could harm duck habitat and hunters’ ability to hunt.  One proposal would reduce the shoreland zone from 250 feet to 75 feet along lakes, rivers, wetlands, and the coast.  Other proposals would reduce the buffer around vernal pools, which Wood Ducks use for nesting, and around areas that Inland Fisheries and Wildlife considers especially important habitat for waterfowl. This will allow more development to encroach on places where ducks nest and roost, potentially reducing duck numbers.  Most duck hunting is done from shore and to hunt legally, one must be 300 feet from houses.  If development is pushed closer to the shores of our waters and wetlands, there will be fewer and fewer places for duck hunters to hunt. 

Duck hunting is my true outdoor passion, and a huge part of what makes Maine a wonderful place for me to live.  I don’t want that to change, and I hope there are many other duck hunters out there to help make this point loud and clear to legislators who want to role back protection of the places ducks live and hunters hunt. To stay informed about this legislation and actions you can take to protect Maine's environment, join the Natural Resources Council of Maine's Action Network http://supporters.nrcm.org/Action_Network.

 

Join Us February 14 in Augusta: Notes from the Auburn Hearing

The Regulatory Fairness hearings being held around the state by the Legislative Regulatory Reform Committee are bringing out large numbers of Maine citizens and business owners who want to see Maine’s environmental standards strengthened, not weakened. During the hearings there have been specific suggestions to improve the implementation of particular laws, but generally, little to no call for complete repeal of any laws. 

I attended the Auburn hearing on February 3 that was covered by the Lewiston Sun http://www.sunjournal.com/city/story/981130. During the time I was there, most people spoke about the importance of protecting Maine’s natural resources and the quality of life they provide. Buzz Lamb, a retired computer industry businessman from New Gloucester and NRCM board member, spoke from more than 40 years experience working with industries throughout Maine, including forest products, wholesale, retail, manufacturing, transportation, and health care industries. He challenged the premise put forward by the LePage Administration that regulation was killing jobs, noting instead that the real causes of job loss in Maine have been the rise of big box stores that eliminated healthy downtown retail districts; consolidations in wholesale distribution, banking, insurance and other industries that moved headquarters and jobs out-of-state; global labor rates that drew shoe and textile manufacturing jobs overseas, and the resulting decline of many other supporting jobs in the community. He said, “I find blaming Maine’s business environment on environmental regulation to be very misguided. In fact, it makes me question whether or not the governor’s team has done an adequate job in problem determination.” 

Buzz argued against the environmental rollbacks proposed by the LePage administration and some current legislators, saying that they will increase long-term costs to both business and government due to the rise in cost associated with toxics clean up, public health, and sprawl. He specifically discussed the legislative proposal to weaken shoreland zoning laws. As the owner of approximately 3000 feet of farm and woodland affected by shoreland zoning, he said the proposal of a 75 foot setback (instead of the present 250 feet) could not be proposed “with a straight face.” He said that 75 feet does not even begin to address the run off issues facing our lakes and streams during spring run off and heavy rains. “Once eutrophication (the introduction of artificial substances to a fresh water system) begins, it is difficult to stop and eventually feeds itself. The long term costs of watershed deterioration will be very high, including clean up costs, land value decline, expensive filtration equipment for public water supplies, and flood damage from faster run off.” He does not find being a good shoreland steward “onerous or difficult.” See Buzz’s full testimony here. 

Comments like these from Buzz Lamb about actual experience with our environmental standards in Maine have been delivered by hundreds of people throughout the hearing process. We hope the Legislature will listen and submit real solutions to real problems, rather than gut environmental laws that continue to serve Maine citizens well. 

If you have not contacted your legislator yet to express your concerns about the proposed environmental rollbacks, I encourage you to do so today. You can learn more at our website, where you can also find contact information for your legislator, at http://www.nrcm.org/stop_environmental_rollbacks.asp.

You can also join us for the final hearing in Augusta in Room 208, Cross State Office Building, Capitol Street, on Monday, February 14 between 9:00 a.m. and 5:00 p.m. to say a few words to the committee. Join us at noon for a rally to protect Maine’s environment in the Hall of Flags at the State House. Hope to see you there!

-Lisa Pohlmann, NRCM Executive Director

Maine People and the Environment: Report from the Roundtable

More than 500 citizens from across the state poured into the Augusta Civic Center on January 20th to participate in the first public meeting with Governor LePage about the importance of environmental protection to Maine's economic and public health. A panel of 28 businesses, sportsmen, health professionals, religious leaders, and youth discussed how the laws that have cleaned up once heavily polluted rivers, have kept Maine's woods and fish stocks intact, have kept our landscapes protected and relatively pristine, and have cleaned up our air - and saved us money -- by conserving energy, are necessary and welcome to those who have chosen to set up businesses in Maine, have worked the land for generations, or visit here to enjoy our quality of life.

NRCM is proud to have sponsored this event with numerous partner organizations and to have seen so many members from the NRCM family across the state in attendance. We have shown once again that the people of Maine are deeply committed to environmental protections and are willing to stand up and fight for them. Please see the extensive news coverage here: http://www.nrcm.org/news.asp

We will soon be posting the remarks of the panelists, as well as video of the event, but today's snow slowed us down a bit. Check our website next week (www.nrcm.org) for more from the Roundtable.

Here are some of the remarks from the panelists, who we thank so much for participating in this event:

William Bennett, Pres. & CEO, of Oakhurst: "After all the cows that produce Oakhurst milk literally eat drink and breathe the Maine environment so it's in everyone's best interest to keep Maine's environment clean, safe and healthy."

Unity College student Deirdre Birbeck also had a chance to speak directly to the Governor. "It seems to me that my generation's future jobs will depend on careful stewarding of our natural resources."
 
“If our coastal waters are not clean, it is impossible for all commercial fishermen, not just clammers, to market the Maine brand,” said Chad Coffin, president of the Maine Clammers Association.

“Regulations aren’t perfect, and some may need fixing,” said Harry Dwyer, a licensed forester and logger who owns Ghost Dance Forestry in Fayette. “But regulations are not the enemy. They are an important tool” to protect resources for future generations.

Horace “Hoddy” Hildreth, a former Republican state senator who is chairman of Diversified Communications, a company with 200 employees, said many of the laws protecting Maine’s air, land and water were enacted by Republican-controlled legislatures responding to the industrial abuses of the 1960s and 1970s.

“Their implementation has from time to time caused frustration and even outrage,” Hildreth said. “But I submit to you that working on the regulations to make sure they are responsive to the plain intent of the statutes is a better way to go than gutting or repealing the laws.”

Corky Ellis, founder and Chairman of Kepware, a software company in Portland, says they could have moved to North Carolina or Texas with lower taxes and minimal environmental regulations, but they wanted to live in Maine. "Please bear in mind that many businesses like ours are here in Maine precisely because of the protected beauty and the conservation efforts of the past."

And MPBN's news story quoted Ernie Hilton, former chair of the Maine Board of Environmental Protection (read and listen to the full MPBN news story here):

Ernie Hilton is a lifelong Republican, an attorney and civil engineer from Madison who previously chaired Maine's Board of Environmental Protection, and whose wife chairs the Land Use Regulation Commission, or LURC.

Hilton says he's worried Maine's quality of place may be threatened as the new administration and Legislature look to relax environmental permitting and reuglations and do away with agencies such as LURC, which governs zoning and planning in Maine's North Woods.

"I'm concerned when I see, as I did yesterday, a list of some of the statutes which are pending before the Legislature dealing with shoreland zoning and with LURC, and it strikes me as being a race to the bottom approach to our environment," Hilton said.

Hilton says it's not environmental rules or regulations that are the biggest impediments to job creation in Maine but rather the high cost of health care. He points out that over the last eight years more than 10,000 permits by rule were issued for small projects, and $5 billion dollars worth of major projects permitted by the Department of Environmental Protection alone.

 
 

Governor-elect Excludes Enviros from Recent Forum

Did you see this front-page story on 12/1/10’s Portland Press Herald and other newspapers?

“Business Leaders Target Red Tape: Advocates for the environment, consumers, public health take no part in meeting”

http://www.kjonline.com/news/businessleaderstargetred-tape_2010-11-30.html

The piece describes how Gov.-elect Paul LePage is asking businesses and industry groups to help him reduce the regulations they believe hinder economic development. Twenty-eight representatives of these groups met with LePage and listed regulations they described as burdensome—issues related to the environment, civil rights, public health, child labor laws and tax policy. Unfortunately, environmental groups, public health advocates, and consumer advocates were not invited to the forum. NRCM Advocacy Director Pete Didisheim was interviewed for the story. "There are many voices that need to be he heard," said Didisheim. "This is not a balanced and fair approach to the policy process."

It does, however, provide insight into the direction the LePage Administration is likely headed regarded his view of protections put in place to protect Maine families and the state’s natural resource-based economy. You can read the full article here.

To stay informed about issues like these that put Maine’s environment at risk, and to hear about ways you can help make a difference, join NRCM’s Action Network.

"Choosing Maine's Next Governor" - watch gubernatorial candidate forum video

On Thursday October 21st, more than 300 citizens flocked to the University of Southern Maine's Portland campus to hear four of Maine’s gubernatorial candidates discuss how they would approach issues like clean air and water, climate change and energy, land conservation and wildlife, and a sustainable economy. The forum was moderated by Susan Sharon of MPBN, hosted by NRCM and more than 20 other groups, and online at, media.usm.maine.edu/~itms/video/Panel/Panel.html.
 

Turning the Page on Paper

NRCM Staff Scientist Nick Bennett is featured as part of this You Tube video that gives an introduction to the global conservation work of members of Environmental Paper Network, a powerful and unique coalition working to advance social and environmental transformation in the pulp and paper industry to safeguard our climate and protect endangered forests and communities. Thank you for giving us a few moments of your time to learn about our important work. For more information visit www.environmentalpaper.org.

See you in court: NRCM appeals Plum Creek decision

Today NRCM filed an appeal in Maine Superior Court of LURC’s decision on the Plum Creek development plan for the Moosehead region.  After spending countless hours reviewing LURC’s decision, and sharing the frustration of Maine people, it became clear that there were substantial grounds for an appeal and a need to do so.

We took on the Plum Creek issue knowing that the odds were stacked against us.  Appeals of this type are an uphill battle.  But we believe we have a strong case, and we are confident in the legal team that is representing us.  And without the strong commitment of our members and activists, we could not be doing this important work. 

We’ve posted information about the appeal on our website.  This includes a detailed position statement, a Question-and-Answer list, and the full text of the appeal for those of you who are interested in the details.

Watch the Video of "The Ballad of Moosehead Lake"

How Walkable is Your House?

Here's a chance to learn about the walking-friendliness of your neighborhood.  If you are looking for alternatives to automobile transportation in your everyday life, check this out:

http://www.walkscore.com/index.shtml

This is a google maps "mash-up" using mapping technology and info about your neighborhood to give you a ranking.  On a scale of 1-100, anything above 70 is a good neighborhood, 90-100 is excellent.

Here's a picture from a home in beautiful downtown Brunswick.  Try it out for yourself at http://www.walkscore.com/index.shtml