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!
—by Cathy Johnson, NRCM Forests & Wildlife Director and Senior Staff Attorney