Lance Tapley
Portland Phoenix news story
Eminent domain!
The government’s ability to seize land for a public purpose strikes terror into the hearts of many landowners. This has been a bigger fear since 2005 when the United States Supreme Court, in its Kelo decision, allowed land to be seized by the government to benefit a private developer.
This year, the Cianbro corporation’s CEO, Peter Vigue, has been making headway with his proposal for a corporate-developed and -owned, 220-mile, 2000-foot-wide East-West Highway and “communications and utility corridor” crossing Maine from Calais to Coburn Gore. A major selling point is how it supposedly won’t involve the taxpayers, except in the tolls that trucks, tourists, and Maine residents will pay to the owner to travel on it.
But Vigue may be looking to the public to help him in many ways — with cash, with its legal muscle, and by shrouding plans for the highway in secrecy.
Already Vigue has gotten taxpayers to chip in. He recently got the Legislature and Republican Governor Paul LePage to assign $300,000 of the Maine Department of Transportation (MDOT) current budget to an East-West Highway feasibility study, for the purpose of attracting investors. The department and LePage are unconcealed cheerleaders for the project.
Other taxpayer dollars clearly would be needed if the highway were to be constructed, including a big new federal border crossing at Coburn Gore in Maine’s western mountains. Canadian taxpayers would be asked to significantly upgrade the 60-mile road from the border to Sherbrooke, where the expressway to Montreal begins.
And now it turns out that Vigue is keeping open the possibility of state government aiding him in a crucial way — by confiscating land for the highway.
In an April 24 interview at a Canadian-American “Economic Integration in the Northeast” conference at the University of Maine, in Orono, Vigue told the Phoenix that, while eminent domain is “not a consideration now,” he “can’t forecast going forward” whether it would be used or not.
Similarly, the MDOT said, in the words of Ted Talbot, its spokesman, that while the department hopes it wouldn’t be necessary, eminent domain remains “a last choice.”
Eminent domain, however, is “an explosive reality” for the highway, said Peter Didisheim, a lobbyist for the Natural Resources Council of Maine (NRCM), the state’s most prominent environmental group and a highway opponent.
“How else,” asked Didisheim, “would you secure and guarantee that the corridor would be available for this massive purpose — unless the state seizes that vast stretch of property, potentially affecting hundreds of property owners?”
A nearly-half-mile-wide, 220-mile-long corridor through Maine would directly occupy 53,333 acres or about 83 square miles. The history of far smaller real-estate developments is rife with tales of people who refused to sell at any price. And the exercise of eminent domain can be thorny. Although property owners whose land is taken by the government are supposed to be paid fair compensation, determining what’s fair can trigger extensive court battles.
3PS: PUBLIC-PRIVATE PARTNERSHIPS
Eminent domain is referred to in a little-known law, Title 23, Section 4251, of the state statutes, that the Legislature approved in 2010. It establishes a template for a “public-private partnership” for transportation purposes. Designed for the kind of project Vigue is promoting, it passed without opposition, roll-call votes, or news-media coverage.
MDOT, Talbot confirmed, “absolutely” is using this public-private partnership law as a guide in furthering the East-West Highway. In the law, through an exemption to the state’s Freedom of Access Act, much of the planning for the highway will be done in secret.
In the Orono interview, Vigue said he was “not familiar” with this law. But in March he promoted the highway at a public meeting in St. Stephen, New Brunswick, where MDOT commissioner David Bernhardt told the group, “We have public-private partnership legislation in place” for the highway, according to the Bangor Daily News.
And in a speech to the Orono conference Vigue referred to the East-West Highway as a “public-private partnership” or “3P.” (3P is a buzzword for government-corporate financing schemes, more often used in Canada and Europe than in the US.)
The sponsor of the bill that created Maine’s only 3P law, W. Bruce MacDonald, a Democratic representative from Boothbay, said the East-West Highway was not on his mind when he introduced it. He said he was interested in pushing the long-discussed possibility of a Route One bypass of Wiscasset.
But highway lobbyists and MDOT helped him write it, he said. And the long list of cosponsors reads like a Who’s Who of Democratic and Republican movers and shakers, including then-Speaker of the House Hannah Pingree, of North Haven, a Democrat, and Republican Representative Stacey Fitts, of Pittsfield, now chairman of the Energy, Utilities, and Technology Committee.
Cianbro, a construction company with national reach, is headquartered in Pittsfield. When the 3P law passed, Cianbro had already presented to MDOT, in 2008, its plan for the highway. (Other plans for an East-West Highway stretch back decades.)
Maine’s 3P law also provides guidelines for government-corporate financial sharing. In the interview Vigue insisted that highway financing will be entirely private. The cost is projected at $2 billion. He said he’s now interviewing prospective financers.
Before such a transportation project can go forward, the law requires that “the private entity must provide a traffic and revenue study.” Reversing itself, the Legislature has now authorized taxpayer funds to pay for it. The law also requires the Legislature to approve a project before it can be built.
In the law, the exception to the Freedom of Access Act reads: “All records, notes, summaries, working papers, plans, interoffice and intraoffice memoranda or other materials prepared, used, or submitted in connection with any proposal considered . . . are confidential and not subject to public review” until the proposal is accepted or rejected by MDOT.
The MDOT, however, gave the Phoenix the department’s “request for proposals” (RFP) for the feasibility study. Talbot said MDOT is currently evaluating bids from consultants to do the study, which is to be completed by the end of the year.
Chris Buchanan, who leads Defending Water for Life in Maine, a small environmental group focused on opposition to the highway, said the study is “primarily a handout to the private companies that would be invested in this road and corridor.” The developer, though, is required to pay back the state’s expense if the project moves forward.
The study won’t take into consideration the highway’s environmental impact, which the NRCM’s Didisheim said might end up being reviewed under the state’s Site Law; shoreland zoning, storm-water, and Land Use Regulation Commission laws; plus federal wetlands and endangered-species laws as well as the National Environmental Protection Act.
The study also won’t consider alternatives to beef up east-west traffic such as upgrading the rail line that crosses the state from Quebec through Jackman and Vanceboro to New Brunswick — an alternative some East-West Highway critics promote.
According to Chalmers “Chop” Hardenbergh, editor of Atlantic Northeast Rails & Ports, rail advocates have long pointed to the Vanceboro-Jackman line, operated by the American-owned Montreal, Maine and Atlantic Railway and Canadian-owned New Brunswick Southern Railway, as an alternative.
“Upgrading that line would cost far less than creating a 2000-foot-wide animal barrier across Maine,” he said, referring to the highway’s effect on the movements of wild animals. Moreover, “If we could load truck trailers onto railcars for a high-speed rail trip across Maine, we’d see much less diesel burned and much less air pollution than in that corridor.”
In rebuttal to the rail alternative, Vigue asked: “Where’s the critical mass of riders that will support a passenger rail service?” Passenger service ended on the line in 1994. But it has yet to be determined if car and truck traffic on the proposed highway will have a critical mass. The MDOT’s feasibility study will address this question.
A PROMOTIONAL UM CONFERENCE
“We’re quite proud of this foray into Maine boosterism,” said Stephen Hornsby, director of the Canadian-American Center, the economic-integration conference’s host in Orono, as he introduced Vigue.
The two-day university conference frankly promoted the highway. The subject was the broader topic of economic relations between the two countries, but much of the morning of April 24 was given over to the highway proposal. Vigue gave a speech and later participated in a panel with American and Canadian officials.
Vigue presented the highway as a project of international significance that would connect Maine and the Canadian Maritimes, especially growing Canadian ports, directly to the continent’s industrial heartland. And as Canada develops hydroelectric resources, he sees the corridor becoming a major conduit to the west and south.
Describing the project, too, as a powerful economic change agent for Maine, with the state becoming “the Northeast trade gateway,” he spoke of road or rail connections with the limited-access highway at or near Old Town, Milo, Dover-Foxcroft, The Forks, and Eustis.
Vigue said he didn’t want to reveal a precise route because landowners might be “intimidated or harassed” by opponents. He maintained, however, that, unlike previous East-West Highway proposals, the route he would propose generally would avoid developed areas. He thought the highway could be open for business by 2019.
In answer to a question from the sympathetic audience of about 40 government officials, businesspeople, and academics from both countries, Vigue admitted that bridging the Penobscot and Kennebec rivers presents “a very significant challenge.” He touted another sort of bridge, for wildlife to go over the highway, as a “creative” approach to solving environmental problems.
In panel discussions following his speech, there was extensive talk about the barriers presented to Canadian-American trade by increased border security after 9/11. While Vigue sees his highway bringing more Canadian tourists to Maine — he said Canadians already provide $230 million in tourism income to the state — the US consul in Quebec City, Peter O’Donohue, said Canadians feel “intimidated” by US border controls.
Patrick Binns, the Canadian consul in Boston, said in an interview that the Canadian government hadn’t taken a position on the East-West Highway idea, and it wasn’t much discussed in his country. But he said “as a matter of general principle,” Canada would like to see the “infrastructure” between the two nations enhanced.
The business-oriented conference participants were “in a bubble,” commented Chris Buchanan, the anti-highway activist. Despite the issue’s contentious nature, no one was invited to oppose Vigue. Buchanan paid $50 to attend.
Her group has stressed the development of local economic activity as an alternative to the massive highway project, which opponents see as destructive to Maine’s rural character, forests, mountains, wildlife, water resources, and tourist appeal. They see it mainly benefiting Canadian and American corporations while providing few jobs to Mainers.
In addition to the university, a large Canadian corporation, TD Bank, was a conference sponsor, along with the Maine International Trade Center and the Canadian government.
Other E-W Highway forums
A small group of picketers greeted participants outside UM’s Wells Conference Center on the morning Vigue spoke, carrying signs such as “Vigue’s Dream Is Our Nightmare.”
Besides the St. Stephen forum, Vigue gave a presentation in Augusta on April 12. Protesters were at both (see “Politicos Like the East-West Highway; How about the Public?” by Lance Tapley, April 20, 2012).
Two meetings on the proposal have been scheduled in Dover-Foxcroft, with expected presentations by Cianbro representatives. Both are open to the public. The first, a presentation to the Piscataquis County commissioners, is at 9 am, May 15, in the county courthouse, East Main Street; the second, at 6 pm, May 31, in the Foxcroft Academy auditorium, Route 15. And Vigue is speaking to the Lincoln Chamber of Commerce annual dinner, 5 pm, May 11, Knights of Columbus Hall; tickets are $35.
