Black v. Andycutko

• Decision Date: 17 March 2021
• Docket Number: BCDWB-CV-20-29
• Parties: RUSSELL BLACK, et al, Plaintiffs, v. ANDYCUTKO, et al. Defendants.
• Court: Maine Superior Court

RUSSELL BLACK, et al, Plaintiffs, v. ANDYCUTKO, et al. Defendants.

No. BCDWB-CV-20-29

Superior Court of Maine, Cumberland

March 17, 2021

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

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 Defendant Counsel

ORDER ON THE APPLICATION OF ART. IX, § 23 OF THE MAINE CONSTITUTION TO THE BUREAU OF PARKS AND LANDS' AUTHORITY TO LEASE PUBLIC RESERVED LOTS

Hon M. Michaela Murphy Justice

Plaintiffs in this action challenge the Bureau of Parks and Lands' ("BPL") decision to enter into two leases^[1] with Central Maine Power Company ("CMP") for two parcels of public reserved land in Somerset County in order to construct part of the New England Clean Energy Connect transmission corridor. After reviewing the parties' filings on Plaintiffs' Motion Regarding Record and Creation of a Factual Record, the Court discerned that the following legal issue raised by BPL^[2]could be dispositive of this case: whether utility leases, pursuant to 12 M.R.S. § 1852(4), are exempt from Article IX, Section 23 of the Maine Constitution. The Court ordered the parties to brief this legal issue and held oral argument via Zoom on February 12, 2021.

After consideration of the parties' arguments on briefs and at hearing, the constitutional provision at issue, the legislation implementing that constitutional provision, and BPL's statutory leasing authority both prior to the constitutional amendment and after, the Court concludes that utility leases (including those for electric power transmission), pursuant to 12 M.R.S. § 1852(4), are not categorically exempt from application of Article IX, Section 23 of the Maine Constitution. BFL has been delegated the authority to manage public lands and it is also required to make a determination whether the leases result in a substantial alteration to the uses of the public land. If they do, the leases must be approved by the Maine Legislature by 2/3 vote of both chambers.

ANALYSIS

The starting point for this analysis must be the constitutional provision itself. Article IX, Section 23 of the Maine Constitution provides:

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.

The key question presented here is how and to what extent this amendment affected the executive branch's authority over "State park land, public lots or other real estate held by the State for conservation or recreation purposes." To determine this, the Court must review what authority had been delegated to BPL by statute before the amendment, and how that authority may have changed after the Legislature and the people of Maine enacted and then ratified this amendment. The Court agrees with the parties that this case implicates the doctrine of separation of powers as provided in the Maine Constitution. The Court also agrees with the parties that it must be mindful about the limits of the authority of the three branches as they play out in this case.

Under Maine's doctrine of separation of powers, the source and extent of authority of the executive branch has been held to be similar to the source and extent of authority of the judicial branch; by comparison, the Legislative authority to legislate is often described as "absolute."

The authority of the executive and judicial departments is a grant. These departments can exercise only the powers enumerated in and conferred upon them by the Constitution and such as are necessarily implied therefrom. The powers of the Legislature in matters of legislation, broadly speaking are absolute, except as restricted and limited by the Constitution. As to the executive, and judiciary, the Constitution measures the extent of their authority, as to the Legislature it measures the limitations upon its authority.

Me. Equal Justice Partners v. Comm'r, 2018 ME 127, ¶ 40, 193 A.3d 796 (Alexander, J., dissenting) (quoting Sawyer v. Gilmore, 109 Me. 169, 180, 83 A 673, 678 (1912)). The Legislature makes the laws of the State; the executive branch enforces those laws. Me. Const art. IV, pt. 3, § 1; Me. Const art. V, pt. 1, § 12. The Supreme Judicial Court and other courts established by the Legislature are vested with the judicial power. Me Const, art. VI, § 1.

The parties seem to agree that, prior to the amendment, the Legislature broadly delegated authority to the executive branch to manage, sell, and lease public lands. Though the agent in charge may have been different or merged into another agency, and the location in the Maine Revised Statutes may have been different, the authority was created by statute as to what actions State agents could take with public reserved lands. Leasing for purposes of setting utility lines was one of those actions. E.g., P.L 1973, ch. 628, § 14 ("The Forest Commissioner may take the following action on the public reserved lands:... Lease the right, for a term of years not exceeding 25, to set poles and maintain utility lines ....").

While the pertinent State agent historically had robust authority over public reserved lands, it is important to note that the Legislature did make changes, some more substantive than others, over time. In 1987, the statutes setting out this delegation were relocated from title 30 to title 12. See P.L. 1987, ch. 737. At that time the Legislature also determined that it was in the best interest of the people of the State of Maine "that title, possession and the responsibility for the management of the public reserved lands ... be vested and established in an agent of the State acting on behalf of all of the people of the State"; that the public reserved lands be "managed under the principles of multiple use to produce a sustained yield of products and services"; and that the public reserved "lands be managed to demonstrate exemplary land management practices, including silvicultural wildlife and recreational management practices .. .." Id. § 2, codified at 12 M.R.S. § 585(1).^[3]

Remaining portions of section 585 figure prominently in the parties' statutory construction arguments.^[4] Section 585(1), as quoted in the preceding sentence, explained the general purpose of the management of public reserved lands, which were to be managed under multiple-use principles. Then section 585(2) defined various terms for use in section 585, including "multiple use" (which the Court quotes in full in footnote 7, infra), "public reserved lands," and "sustained yield." Section 585(3) placed the "care, custody, control and responsibility for the management of the public reserved lands" in the hands of the commissioner of Conservation. It also made the commissioner responsible for "preparing], revis[ing] from time to time and maintain[ing] a comprehensive management plan for the management of the public reserved lands . . . ." These plans were to "provide for a flexible and practical approach" to the management of the lands, and the commissioner was required to "compile and maintain an adequate inventory of the public reserved lands, including... the other multiple use values for which the public reserved lands are managed." Importantly, the management plans had to "provide for the demonstration of appropriate management practices [to] enhance the timber, wildlife, recreation, economic and other values of the lands."

Then, "[w]ithin the context of the comprehensive management plan, the commissioner, after adequate opportunity for public review and comment, [had to] adopt specific action plans for each of the units of the public reserved lands system." These "action plan[s] [had to] include consideration of the related systems of silviculture and regeneration of forest resources and . . . provide for outdoor recreation, including remote, undeveloped areas, timber, watershed protection, wildlife and fish." Section 585 then proceeded in subsection 4 to describe the actions that the director of the (then) Bureau of Public Lands could take on the public reserved lands in the event the actions were "consistent with the management plans . . . ." Section 585(4) was where the provision permitting leasing of public reserved lands for electric power transmission was located (along with many other activities that were permitted before the amendment: setting and maintaining bridges and landing strips; laying and maintaining pipelines and railroad tracks; and, with the consent of the Governor, leasing mill privileges and other rights in land for industrial and commercial purposes, dam sites, dump sites, the rights to pen, construct, put in, maintain and use ditches, tunnels, conduits, flumes and other works for the drainage and passage of water, and flowage rights).

Not too long after the 1987 move to title 12, in 1993, the 116th Legislature proposed a momentous constitutional amendment. The genesis of this amendment is worth highlighting briefly, and the Bureau seems to recognize the constitutional amendment bore at least some legal significance. The following information was taken from the briefs of the Plaintiffs and the Bureau.

Work by an investigative journalist in the 1970s called into question how Maine had administered public reserved lands dating back to the 1800s - which included giving away over time all but 400, 000 acres of the approximately 7 million acres that had originally existed. Of these remaining 400, 000 acres, the...