Blue Hill Bay mussel farm opponents lose in court

ELLSWORTH — A Hancock County Superior Court judge has dealt what might be the final blow in the fight by a local conservation group to put a Blue Hill Bay mussel farm out of business.

Last Thursday, Justice Robert Murray dismissed an appeal by Friends of Blue Hill Bay of a decision by Department of Marine Resources Commissioner Patrick Keliher last June to renew an aquaculture lease to Maine Cultured Mussels Inc.

The renewed lease allows the company to continue growing blue mussels on ropes suspended beneath the surface of the water in a group of circular net pens on a 15-acre site east of Hardwood Island in Blue Hill Bay. The renewal extended the lease term for a period of seven years, until March of 2020.

Soon after DMR renewed the lease, Friends of Blue Hill Bay appealed the decision to the Superior Court and asked it to reverse the decision and to vacate the lease renewal.

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

Last October, while the group’s appeal was pending, DMR approved the transfer of the lease from Maine Cultured Mussels Inc., a corporation owned by Erick Swanson of Tremont, to Mussel Bound Inc., owned by Swanson’s sons, Erick Spencer Swanson and Reid Arthur Swanson.

After that approval, Maine Cultured asked the court to dismiss the appeal as “moot,” meaning further legal proceedings could have no effect, because DMR had transferred the lease to a different leaseholder. The court agreed.

“This appeal is moot,” Justice Murray wrote. “The subject of Petitioner’s (Friends of Blue Hill Bay) challenge — DMR’s lease with Maine Cultured Mussels — no longer exists.”

The court’s decision appears to end a battle that began nearly six years ago, late in 2012, when Maine Cultured asked that its current lease be extended until March 2023, the maximum allowable 10-year term, after it expired in March 2013.

When DMR finally renewed the lease last June, the department attributed the nearly five-year delay 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.”

On Monday, Mills said she and her client “respectfully disagree” with the court’s decision and would be evaluating the possibility of an appeal.

The petition raised another issue.

DMR issued two proposed decisions on the lease renewal, one in November 2016 and the other in May of last year. Both contained substantially identical factual and legal conclusions but arrived at different results. The first decision denied the renewal. The second approved it.

Speaking Monday, Mills discounted the difference between lessees given that members of the same family own both corporations.

“It will be interesting to see how it plays out given his (Erick Swanson’s) failure to comply with the first lease,” Mills said. “Now he’s expected to comply with more onerous conditions in a new lease.”

Rebecca Klotzle, the Portland attorney who represents Maine Cultured Mussels, had no comment on the court’s decision, nor did her client.

“His words — ‘silence is golden’,” Klotzle said in an email Tuesday morning.

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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