Black v. Bureau of Parks & Lands
| Decision Date | 29 November 2022 |
| Docket Number | Docket: BCD-21-257 |
| Citation | 288 A.3d 346,2022 ME 58 |
| Parties | Russell BLACK et al. v. BUREAU OF PARKS AND LANDS et al. |
| Court | Maine Supreme Court |
Aaron M. Frey, Attorney General, Lauren E. Parker, Asst. Atty. Gen. (orally), Scott W. Boak, Asst. Atty. Gen., and Laura E. Jensen, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellant Bureau of Parks and Lands
Nolan L. Reichl, Esq. (orally), Jared S. des Rosiers, Esq., and Kyle M. Noonan, Esq., Pierce Atwood LLP, Portland, for appellants and cross-appellees Central Maine Power Company and NECEC Transmission LLC
James T. Kilbreth, Esq. (orally), David M. Kallin, Esq., Jeana M. McCormick, Esq., and Sara P. Cressey, Esq., Drummond Woodsum, Portland, for appellees and cross-appellants Russell Black, Richard A. Bennett, Thomas B. Saviello, Kent Ackley, Seth Berry, Chad Grignon, Denise Harlow, Margaret O'Neil, William Pluecker, Edwin Buzzell, Greg Caruso, Charlene Cummings, Robert Haynes o/b/o Old Canada Road National Scenic Byway, Cathy Johnson, Ron Joseph, John R. Nicholas Jr., George A. Smith, Clifford Stevens, Todd Towle, and the Natural Resources Council of Maine
Timothy C. Woodcock, Esq., and Jonathan A. Pottle, Esq., Eaton Peabody, Bangor, for amicus curiae Maine Forest Products Council
Orlando E. Delogu, amicus curiae pro se
P. Andrew Hamilton, Esq., and Casey M. Olesen, Esq., Eaton Peabody, Bangor, for amicus curiae H.Q. Energy Services (U.S.) Inc.
Sigmund D. Schutz, Esq., Anthony W. Buxton, Esq., and Jonathan Mermin, Esq., Preti Flaherty Beliveau & Pachios LLP, Portland, for amicus curiae Joshua Reynolds
James G. Monteleone, Esq., Bernstein Shur, Portland, for amici curiae Troy Jackson, Ben Chipman, Eloise Vitelli, Craig Hickman, Chloe Maxmin, Scott Cyrway, Paul Davis, Patrick Corey, and Jennifer Poirier
Panel: STANFILL, C.J., JABAR and HORTON, JJ., CLIFFORD, A.R.J. and HUMPHREY, A.R.J.*
[¶1] NECEC Transmission LLC, Central Maine Power Co. (collectively, CMP1 ), and the Bureau of Parks and Lands appeal from a judgment of the Business and Consumer Docket (Murphy, J. ) entered in favor of the plaintiffs2 (collectively Black), vacating the Bureau's lease of public reserved land to CMP for construction of a high-capacity transmission line. Black cross-appeals from the trial court's decision not to address the substantive question of whether the Bureau had the constitutional authority to lease the public reserved land. Black later moved to dismiss all appeals on the ground that a citizen's initiative, which purported to retroactively require approval of leases like the ones at issue here by a vote of two-thirds of all members elected to each House of the Legislature, rendered the appeals moot.
[¶2] The broad questions we answer are, in order, (1) whether the United States Constitution permits a citizens’ initiative to retroactively invalidate the lease at issue; (2) what procedure, if any, the public-lands provision of the Maine Constitution and its implementing statutes required the Bureau to follow before leasing the public reserved lands; and (3) whether the Bureau's lease of the public reserved lands exceeded the Bureau's constitutional or statutory leasing authority.
[¶3] We determine that this case is justiciable, vacate the judgment rendered for Black, and remand for entry of judgment in favor of the Bureau and CMP.
[¶4] Public reserved lands existed before Maine was a state. "At the close of the Revolutionary War, the Commonwealth of Massachusetts owned ... vast amounts of land, including most of what is now the state of Maine." Lee M. Schepps, Maine's Public Lots: The Emergence of a Public Trust , 26 Me. L. Rev. 217, 219 (1974). When Maine became a state in 1820, it came to own that land through the agreement that granted it independence—the Articles of Separation. Id. at 220-21.
[¶5] Beginning in the 1970s, public concern about the sale of public lands to private persons or entities precipitated efforts to preserve public lands for future generations. The culmination of these efforts was a 1993 amendment to the Maine Constitution:
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.
Me. Const. art. IX, § 23. During the several years following the amendment's ratification, the Legislature enacted implementing legislation. See, e.g. , 12 M.R.S. §§ 598 to 598-B (2022) (Designated Lands); 12 M.R.S. §§ 1801 - 1900 (2022) ().
[¶6] The Designated Lands statutes apply the requirements of article IX, section 23 to certain types of public lands held by the Department of Inland Fisheries and Wildlife; under the care, custody, control, and management of the Bureau; managed by the Baxter State Park Authority; and gifted to the state or acquired by referendum. Id. § 598-A(1), (2-A), (4)-(6). It applies to public reserved lands and prevents those lands from being reduced or substantially altered without two-thirds legislative approval. Id. §§ 598-A, 598-A(2-A)(D), 1801(8) (defining "public reserved lands"). " ‘Reduced’ means a reduction in the acreage of an individual parcel." Id. § 598(4). " ‘Substantially altered,’ in the use of designated lands, means 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." Id. § 598(5). "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." Id.
[¶7] In turn, section 1847 declares that it is in the public interest "that the public reserved lands 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 silviculture, wildlife and recreation management practices." Id. § 1847(1). The statutory definition of "multiple use" includes "[t]he harmonious and coordinated management of the various resources without impairing the productivity of the land and with consideration being given to the relative values of the various resources." Id. § 1845(1)(D). And " ‘[s]ustained yield’ means the achievement and maintenance in perpetuity of a high-level regular periodic output of the various renewable resources of the public reserved lands without impairing the productivity of the land." Id. § 1845(2). The Bureau effectuates these principles through the creation of comprehensive management plans and specific action plans. Id. § 1847(2).
[¶8] "[C]onsistent with the management plans," and the above statutory provisions, the Bureau, through its director, is authorized to "take actions on the public reserved lands." Id. § 1847(3). For example, the Bureau is authorized to sell resources on public reserved lands, including timber, grass, wild foods, and sand and gravel for use in the construction of public roads, id. § 1848(1), and to lease public reserved land for both private and industrial uses, such as campsites, mills, or dams, id. § 1852(5), (6). Relevant here, until 2021 the Bureau was authorized to lease the right to "[s]et and maintain or use poles, electric power transmission and telecommunication transmission facilities, roads, bridges and landing strips" on public reserved lands. 12 M.R.S. § 1852(4)(A) (2021).3
[¶9] In December 2014, the Bureau leased part of the Johnson Mountain and West Forks Plantation4 public reserved lands to CMP, to accommodate a small portion of a high-capacity electric transmission line known as the New England Clean Energy Connect (the Project). The proposed Project is 145.3 miles long, with 0.9 miles of the line crossing the leased portion of the Johnson Mountain and West Forks Plantation public reserved lands. The area encompassed by the lease amounts to 2.6% of the combined 1,241 acres of the Johnson Mountain and West Forks Plantation public reserved lands.
[¶10] In 2020, CMP and the Bureau realized that the 2014 lease violated a Maine statute because the Bureau had leased the public reserved land before the Maine Public Utilities Commission had granted a Certificate of Public Convenience and Necessity (CPCN) authorizing CMP to proceed with the Project. See 35-A M.R.S. § 3132(13) (2022) (). The CPCN was not obtained until 2019. On June 23, 2020, the Bureau and CMP executed a new lease for the same public lands but with an increase in the base annual payment paid by CMP.5
Other alterations included a change in the lease title from "Transmission Line Lease" to "Amended and Restated Transmission Line Lease" and the addition of a reference to the 2019 CPCN. Because the 2020 lease explicitly states that it supersedes the 2014 lease and that the 2014 lease is terminated and of no further effect, our focus on review is on the 2020 lease.
[¶11] On the same day that the 2020 lease was executed, Black filed a three-count complaint in Superior Court challenging the 2014 lease as ultra vires because the lease would reduce or substantially alter public reserved lands and therefore had to be approved by a two-thirds vote of the Legislature. Black filed an amended complaint—the operative pleading—on July 17, 2020. The amended complaint sought (1) a declaration that the 2020 lease was also ultra...
To continue reading
Request your trial
-
Upstream Watch v. City of Belfast
...record here clearly establish Upstream's status as an aggrieved person as a matter of law. See Black v. Bureau of Parks &Lands, 2022 ME 58, ¶¶ 26, 288 A.3d 346 ("We review standing de novo as a question of law and may raise the issue sua sponte; therefore, we are not bound by the trial cour......