Some Blue Hill Bay aquaculture back in court

ELLSWORTH — A mussel farm sited off the shore of bucolic Hardwood Island continues to roil the waters of Blue Hill Bay.

In June, in the apparent culmination of a process that began in 2012, Department of Marine Resources Commissioner Patrick Keliher approved renewal of an aquaculture lease for Maine Cultured Mussels Inc., allowing it to continue to grow blue mussels in a group of circular fish pens on a 15-acre site. The renewal extended the lease for a period of seven years, until March of 2020.

Initially, the company asked that the lease be extended for the maximum allowable 10-year term after its expiration in March 2013, until March 2023.

Shortly after approving the lease extension, DMR authorized transfer of the lease from the corporation owned by Erick Swanson of Tremont to Mussel Bound Farms, owned by Swanson’s sons.

At the time, the agency explained that the almost five-year delay in responding to the renewal application was attributable to “numerous factors” including, among others, “the number and complexity of issues surrounding the lease renewal” and “the existence of several other complex lease applications being processed at the same time” while DMR “was undergoing numerous staffing changes.”

Last week, Friends of Blue Hill Bay, a local conservation organization, petitioned the Maine Superior Court for a review of the DMR lease renewal decision.

In the petition for review, Sally Mills, the organization’s Ellsworth attorney, told the court, “In granting the application for renewal, the commissioner has turned a blind eye to egregious and dangerous conditions that are likely to continue.”

According to the petition, Keliher’s renewal of the lease “amounts to a decision affected by bias, and that is arbitrary, capricious and characterized by an abuse of discretion.” The conservation group is asking the court to reverse the DMR decision and to vacate the lease renewal.

“No surprise here,” Swanson said in an email.

“We appealed because we couldn’t see how the commissioner had the authority to do what he did under the statute,” Mills said Monday.

The only question for Keliher, Mills said, was whether the company breached the terms of its lease. If it did, the commissioner could not renew the lease, even if he thought those violations were inconsequential.

“I can’t see where materiality comes into it,” she said. Under the law, “there is no subjective quality to the decision.”

Friends of Blue Hill Bay has raised another issue in its appeal.

Last November, DMR issued two proposed decisions, one last November the other in May. Both contained substantially similar findings of fact and conclusions of law, but the first one denied the lease renewal while the second approved it.

“The recitation of facts between the two decisions is largely the same, yet the conclusions drawn are dramatically different,” the conservation group argues in its petition. “This sequence of proposed decisions further supports petitioner’s contention” that DMR’s final decision “is affected by bias, and is arbitrary, capricious and characterized by an abuse of discretion.”

Farther up Blue Hill Bay, it appears that another controversy over an aquaculture lease may have come to an end.

Earlier this month, the Maine Supreme Judicial Court dismissed an appeal by the estate of a former Surry summer resident from a DMR decision to a approve a three-year limited purpose aquaculture lease that allowed shellfish farmer Joe Porada to grow oysters and quahogs (hardshell clams) in upper Morgan Bay.

In May 2015, DMR approved the limited lease for four acres. After an appeal by several neighbors, in September 2016, the Superior Court in Kennebec County ordered DMR to reduce the lease to two acres, the maximum size permitted for limited purpose leases when Porada first filed his lease application in 2011. Some of the neighbors then appealed the Superior Court decision to the Supreme Judicial Court.

In a decision dated July 6, the state’s highest court dismissed that appeal because DMR’s “decision as to where and how to reduce the lease site…could affect issues and claims in this case….” As a result, the Superior Court’s decision was not considered a “final judgment” that would be subject to appeal.

“The Law Court is saying that because the (neighbors) appealed without waiting for us to downsize the lease, they acted prematurely,” DMR hearing officer Diantha Robinson said in an email to Porada.

While it is possible that the reduced lease might be appealed, Robinson wrote, the good news was that, in the first appeal, the Superior Court upheld DMR’s “decision on all the lease criteria and the granting of the lease, which to me is the big thing; it was just the size issue that was a problem, as I expected it would be.”

In the meantime, Porada has been harvesting oysters from Morgan Bay and planned to visit the site Wednesday.

“For all the time and money spent by everyone involved,” Robinson wrote to Porada, “any oysters or quahogs you produce from that lease site should be gold-plated!”

Stephen Rappaport

Stephen Rappaport

Waterfront Editor at The Ellsworth American
Stephen Rappaport has lived in Maine for nearly 30 years. A lifelong sailor, he spends as much time as possible messing about in boats. [email protected]

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