Black v. Cutko

RUSSELL BLACK, et al., Plaintiffs, v. ANDY CUTKO, et al., Defendants.

No. BCDWB-CV-2020-29

Superior Court of Maine, Cumberland

August 10, 2021

Plaintiff Counsel: James Kilbreth, Esq. David Kallin, Esq.

ANDY CUTKO as Director of the Bureau of Parks & Lands, State of Maine, Dept. of Agriculture, Conservation and Forestry Scott Boak, AAG. Lauren Parker, AAG. Office of the Attorney General

Central Maine Power Company Nolan Reichl, Esq. Matthew Altieri, Esq. Pierce Atwood Merrills Wharf

DECISION AND ORDER (14 M.R.S.A. § 5953 &amp M.R. CIV. P. 80C)

In 1993 the people of Maine decided that their public lands were worthy of constitutional protection. Through their ratification of Article IX, Section 23 of the Maine Constitution, designated public lands cannot be "reduced" or their "uses substantially altered" unless two thirds of both houses of the Maine Legislature agree to any such change. The central question presented in this case is whether certain decisions made in 2014 and 2020 by the Bureau of Public Lands ("BPL"), the Executive Branch agency that holds title to the lands for the benefit of all Maine people, complied with this unique and consequential Amendment.

In analyzing this question, a number of significant issues of first impression have been identified by the Court and the parties. The Court therefore encouraged the parties at various stages of this litigation to agree to a Report of at least some of those questions directly to the Law Court pursuant to Rule 24 of the Maine Rules of Appellate Procedure. However, the parties could not agree on a Stipulated Record which would permit the Court to make such a report under Rule 24(a), and BPL decided not to move for such a Report under Rule 24(c) after the Court ruled against it on a potentially dispositive issue.

Plaintiffs in this action challenge BPL's 2014 and 2020 decisions to lease to Central Maine Power Company ("CMP") ^[1] portions of two parcels of public reserved land to construct part of the New England Clean Energy Connect transmission corridor. The lands at issue are located in the Upper Kennebec Region, specifically in West Forks Plantation and Johnson Mountain Township.

Pending before the Court are the parties' respective motions for judgment on Plaintiffs' Declaratory Judgment claim and Plaintiffs' Rule 80C appeal. Both have been fully briefed and are now before the Court for decision. Plaintiffs are represented by Attorneys James Kilbreth, David Kallin, Adam Cote, and Jeana McCormick. Defendants Andy Cutko and BPL are represented by Assistant Attorneys General Lauren Parker and Scott Boak. Defendants CMP and NECEC Transmission, LLC are represented by Attorneys Nolan Reichl and Matthew Altieri.

BACKGROUND

Maine's historical practices regarding its management of public land provide context to the issues presented. A more detailed discussion of that history is outlined in the Court's orders dated December 21, 2020 and March 17, 2021 and are incorporated by reference, but is summarized briefly as follows. After acquiring approximately 7 million acres from Massachusetts upon statehood, Maine sold or gave away all but 400, 000 acres of this land, mostly prior to 1890. The remaining 400, 000 acres of public land were reserved in each of Maine's unorganized townships as approximately 1000 acre lots. Over the years, the State leased these public reserved lands at virtually no cost to camp owners, paper companies, and timber companies. In the early 1970s, a reporter published a series of articles in the Portland Press Herald that called attention to Maine's historical management practices and alleged abuses of the public lot leasing program.

In the years that followed, various legal and political efforts were undertaken to preserve the public reserved lands and to ensure their availability for the public's use for generations to come. The culmination of these efforts legally speaking, was the 1993 Amendment to the Maine Constitution, see Me. Const, art. IX, § 23. The Amendment states as follows: "State park land, public lots or other real estate held by the State for conservation or recreation purposes and designated by legislation implementing this section may not be reduced or its uses substantially altered except on the vote of 2/3 of all the members elected to each House." Id. The legislation implementing the Amendment designated "public reserve lands" for this constitutional protection, and the West Forks Plantation and Johnson Mountain Township parcels fall within this category. 12M.R.S.A. §§ 598-B(2-A)(D), 1801(8).

In addition, the Legislature declared when enacting 12 M.R.S.A. Section 1846(1) in 1997 as follows: "[I]t is the policy of the State to keep the public reserved lands as a public trust and that full and free public access to the public reserved lands to the extent permitted by law, together with the right to reasonable use of those lands, is the privilege of every citizen of the State." Id. (emphasis added).

In the summer of 2014, CMP approached the Governor's Office about its proposed transmission line project and its interest in crossing the West Forks Plantation and Johnson Mountain Township public lots. R. III0001. BPL and CMP proceeded to negotiate a lease agreement. During this process, AAG Lauren Parker, David Rodrigues (BPL's Director of Real Property Management and former Senior Planner), and several others provided input and comments on the various lease drafts, with Mr. Rodrigues at one point inquiring: "Didn't we get a determination from the [Attorney General's] office that a lease is a contract and the legislature should not be able to break an existing contract?" R. III0053.

The lease was ultimately signed on December 15, 2014 ("the 2014 lease"). Under the agreement, BPL agreed to lease to CMP a "three hundred (300) foot wide by approximately one mile long transmission line corridor" (consisting of roughly 33 acres) located on the West Forks and Johnson Mountain public lots. R. 10035-36. The lease specified an initial term of 25 years and established the annual rent at $1400, to be adjusted by an appraisal. ^[2] Id. BPL did not provide notice to the Legislature or to the public of its intentions to enter into the lease; it did not seek or obtain 2/3 legislative approval of the lease; it did not make any contemporaneous written findings as to why it was not seeking legislative approval; and the lease did not come to light until-depending on the version of subsequent events believed by different parties-months or years after it was executed.^[3]

Additionally, CMP did not obtain a Certificate of Public Convenience and Necessity ("CPCN") from the Public Utilities Commission ("PUC") prior to entering into the 2014 lease as required by law. See 35-A MRS. A. § 3132(13). Rather, the CPCN process commenced after the lease was executed, with CMP applying for a CPCN in September 2017. Pis.' R. Add. 30. The PUC ultimately issued a CPCN in May 2019. R. 10002.

During the timeframe in which the CPCN process took place, an issue arose regarding a potential CMP utility line lease that would traverse Cold Stream Forest-a different parcel of public reserved lands. The then-sitting director of BPL asked AAG Parker for an opinion on the prospective lease, inquiring "whether [BPL] ... must obtain 2/3 legislative approval, pursuant to either 12 M.R.S.A. § 598-A [] or 5 M.R.S.A. § 6209(6) [], to lease to Central Maine Power Company (CMP) for a transmission line public reserved lands that were acquired with proceeds from the Land for Maine's Future (LMF) Fund." Pis.' R. Add. 1.

In a memorandum response dated July 25, 2018, AAG Parker explained that "12 M.R.S.A § 598-A [the Designated Lands Act] applies, not 5 M.R.S.A. § 6209(6)" and that the proposed transmission line is "measured against the Bureau's multiple use mandate for public reserved lands and its management objectives for Cold Stream Forest, and not against the purposes of the LMF program." Id. at 1, 4, 7. She further advised that "the Bureau needs 2/3 legislative approval to lease part of Cold Stream Forest for a transmission line if a transmission line will 'substantially alter' Cold Stream Forest." Id. at 6. Thus, AAG Parker concluded that "the Bureau may enter into a valid transmission line lease with CMP if such a lease will not 'substantially alter' the public reserved lands at issue" (id. at 1, 7), i.e., the "transmission line will not alter the physical characteristics of Cold Stream Forest in a way that frustrates the purposes for which the Bureau holds Cold Stream Forest." Id. at 4 (citing 12 M.R.S.A. §§ 598(5), 598-A). On the "substantial alteration issue," AAG Parker explained that there "is no question that a transmission line will alter the physical characteristics of Cold Stream Forest," and identified various factors for BPL to evaluate in deciding whether the proposed lease would effectuate a "substantial alteration" of that land. Id. at 6-7. The record therefore reveals that by late July 2018, BPL seemed to recognize that it was required to conduct a "substantial alteration" analysis pursuant to the Maine Constitution and Maine statute before it entered into a transmission line lease of public reserved lands.

Meanwhile, BPL's management planning process for public reserved lands in the upper Kennebec region (including the Johnson Mountain and West Forks lots) was underway. That process commenced in 2016 and completed on June 25, 2019 with BPL's adoption of the Upper Kennebec Region Management Plan. There is only a brief mention in the plan acknowledging a "new 300-foot wide by mile-long transmission line lease ... executed with CMP in December 2014." R. II0093.

In December 2019, Senator Black and several co-sponsors initiated legislation (L.D. 1893)...