Senator Dill, Representative Hickman, and members of the Committee on Agriculture, Conservation, and Forestry:
My name is Nick Bennett and I am the staff scientist for the Natural Resources Council of Maine (NRCM). NRCM is Maine’s largest environmental advocacy group with more than 25,000 members and supporters. I am testifying in support of LD 1893 with some significant amendments.
In November 1993, more than 72% of Maine voters voted to amend the Constitution in order to protect public lands. Specifically, they passed Article IX, Section 23 of the Maine Constitution, which states:
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. The proceeds from the sale of such land must be used to purchase additional real estate in the same county for the same purposes.
In 1994, the Legislature passed several bills to implement this constitutional amendment. It classified Public Reserved Lands as “designated lands.” 12 M.R.S. § 598-A(2-A)(D). The Legislature also passed a bill stating that “designated lands…may not be reduced or substantially altered except by a 2/3 vote of the Legislature.” 12 M.R.S § 598-A. The Legislature defined “substantially altered” as:
Changed so as to significantly alter physical characteristics in a way that frustrates the essential purposes for which that land is held by the State. The essential purposes of state parks, historic sites, public access sites, facilities for boats and the Allagash Wilderness Waterway are the protection, management and improvement of these properties for public recreation, conservation, scenic values, nature appreciation, historic preservation and interpretation, public access and related purposes. The essential purposes of public reserved and nonreserved lands are the protection, management and improvement of these properties for the multiple use objectives established in section 1847.
In turn, section 1847 states that: Public Reserved Lands are to “be managed under the principles of multiple use to produce a sustained yield of products and services by the use of prudent business practices and the principles of sound planning and that the Public Reserved Lands be managed to demonstrate exemplary land management practices, including silvicultural, wildlife and recreation management practices, as a demonstration of state policies governing management of forested and related types of lands.”
In short, what all of this means is that both the Maine Constitution and Maine statute require a 2/3 vote of the Legislature to approve any large-scale industrial, commercial, or utility lease of public lands. In spite of this, the Bureau of Parks and Lands entered into a lease in 2014 with Central Maine Power (CMP) for a 300-foot wide, one-mile-long power line through the Johnson Mountain and West Forks Northeast public lands, both of which are “designated lands,” without asking for a 2/3 vote of the Legislature. In the permitting process for the CMP corridor, NRCM asked the Department of Environmental Protection to allow testimony on this issue so that we could demonstrate that CMP does not have a legal lease across public lands for its corridor. DEP refused to allow this testimony.
Regardless of DEP’s refusal to acknowledge the obvious, we believe that CMP does not have right, title, and interest to allow it to build its power corridor across the public lands in question because of the lack of a 2/3 vote of the Legislature to approve this lease. We believe the Bureau of Parks and Lands erred as a matter of law by entering its 2014 lease with CMP without consulting the Legislature.
To be clear, we acknowledge that under 12 M.R.S. § 1852, BPL has the authority to lease Public Reserved Land for utilities and rights-of-way in order to “[s]et and maintain or use poles, electric power transmission and telecommunication transmission facilities, roads, bridges and landing strips . . .” Id. This authority to lease, however, is limited by the constitutional amendment and Section 598-A requiring approval by two-thirds of the Legislature if any such lease would allow activity that substantially alters the public land, which the CMP power line clearly would. The requirements of the Constitution, section 598-A, and section 1852 could all potentially be met if the Legislature issues a 2/3 vote. See e.g. Melanson v. Belyea, 1997 Me 150, ¶ 4, 698 A.2d 492, 493 (1997) (“Thus we consider the whole statutory scheme of which the section at issue forms a part so that a harmonious result, presumably the intent of the Legislature, may be achieved.”); Rubin v. Bd. of Envtl. Prot., 577 A.2d 1189, 1192 (Me. 1990) (“We must interpret a statute in a manner that preserves the meaning of all of the statute’s parts.”)
Because we are aware that BPL has approved at least one such lease in the past without obtaining the required 2/3 vote of the Legislature, the CMP lease through the Johnson Mountain parcel and the West Forks Plantation Northeast parcel, we support LD 1893 to clarify these requirements both to ensure no situation like this occurs in the future and to remedy the clear failure of the recent past.
We are also submitting with this testimony an amendment to the bill language we think will make it clearer. This amendment removes the provision related to fair market value. Instead, it simply requires that leases or amendments to leases on designated lands for utilities and rights-of-way—other than utilities and rights-of-way for the small structures listed in 12 M.R.S. § 1852(5), such as campsites and garages—and leases or amendments to leases on designated lands for industrial and commercial purposes receive a 2/3 vote of the Legislature for approval. This is appropriate, because it is a reasonable assumption that any leases for large-scale utilities and rights-of-way or industrial and commercial purposes would result in the designated land being “reduced or substantially altered.” Whether or not the price an applicant pays for a lease of designated lands is reasonable, which is clearly not the case for the CMP corridor lease (others will testify to this point), could factor into the Legislature’s decision for any given lease.
Finally, we are also attaching a legal analysis demonstrating why the CMP lease, and other similar large-scale leases, require a 2/3 vote of the Legislature under both the Maine Constitution and Maine statute.
Thank you for the opportunity to testify on this issue. I would be happy to answer any questions.