Black v. Cutko
| Decision Date | 21 April 2021 |
| Docket Number | BCDWB-CV-2020-29 |
| Parties | RUSSELL BLACK, et al, Plaintiffs, v. ANDY CUTKO, et al. Defendants. |
| Court | Maine Superior Court |
Plaintiff Counsel: James Kilbreth, Esq. David Kallin, Esq. Drummond Woodsum
Defendant Counsel: ANDY CUTKO as Director of the Scott Boak AAG. Bureau of Parks & Lands, State Lauren Parker, AAG of Maine, Dept. of Agriculture, Office of the Attorney General Conservation and Forestry Central Maine Power Company Nolan Reichl, Esq. John Aromando, Esq. Pierce Atwood Merrills Wharf
Plaintiffs in this action challenge the Bureau of Parks and Lands' ("BPL") 2014 and 2020 decisions to lease to Central Maine Power Company[1] ("CMP") portions of two parcels of public reserved land in Somerset County to construct part of the New England Clean Energy Connect transmission corridor. The Court has issued a number of procedural and substantive orders in this case. This Order determines the factual record upon which the Court will rely for purposes of the Rule 8OC appeal and addresses the Plaintiffs' request for development of a factual record in the Declaratory Judgment count. Before addressing those issues, a brief review of how the case has reached this point is in order.
On December 21, 2020, the Court denied motions to dismiss filed by BPL and CMP and permitted this case to proceed in Count I as a declaratory judgment action (with some limitations) and as a Rule 8OC action in Count III. At the direction of the Court, Plaintiffs filed an all-encompassing motion regarding the state of the record on January 7, 2021. In that motion Plaintiffs sought to strike from the record as an impermissible post hoc justification a September 24, 2020 memo to the "Public Lands Lease Files" authored by BPL Director Andy Cutko and Director of Real Property Management David Rodrigues. Plaintiffs also sought to add additional documents to the record. BPL and CMP each opposed Plaintiffs' motion on January 15, 2021. The Court viewed an issue highlighted by BPL in its opposition as potentially dispositive of the case and ordered the parties to brief that legal issue.[2]
On March 17, 2021, the Court issued an order on that legal question. It concluded that leases pursuant to 12 M.R.S. § 1852(4) were not categorically exempt from application of Article IX, Section 23 of the Maine Constitution and 12 M.R.S. §§ 598-598-B. The Court also concluded that the Legislature had entrusted to BPL the obligation of making a determination in the first instance whether a proposed action on public reserved land would reduce or substantially alter the uses for which the State holds that public reserved land in trust for the public. That decision was grounded in two conclusions. First, the Court concluded that the language in the Constitution and enabling statute is clear. Second, and no less important, the Legislature's unique constitutional prerogative to have final say over how public lands are used in certain instances does not and cannot be effectuated unless a decision is made - one way or the other - by BPL as to whether a proposed use of designated public lands results in "substantial alteration" as defined by the Legislature.
Following that decision the Court held a conference with counsel on March 24, 2021, and ordered the parties to file by April 2, 2021, their positions supplementing arguments regarding the record and to restate proposed remedies. After reviewing those filings, the Court determined it was necessary to issue an order regarding the state of the record before proceeding to the next stage in this case. This prompted the Court to have another conference with the parties on April 9. Plaintiffs requested an opportunity to object to two documents BPL sought to add to the record as overlooked. Thus, the Court gave Plaintiffs until April 12 to file a brief objection, BPL and CMP until April 14 to respond to the brief objection, and Plaintiffs until April 14 to seek to add anything else to the record that might come across their radar by way of Freedom of Access Act responses from BPL in the interim. After consideration of all filings regarding the state of the record, the Court issues this order.
The Court will first address the issues for the record in the Rule 8OC appeal and it will then address the issues for the record in the Declaratory Judgment count.
The above issues will therefore be the starting point for consideration of the parties' arguments as to what should or should not be included in the record. Cf. FPL Energy Hydro Maine, LLC v. Bd. of Envtl Prot., No. AP-08-15, 2009 Me. Super. LEXIS 53, at *2 (Feb. 9, 2009) ("Although it is premature to delve into the merits of the 80C petition at this juncture, some discussion is necessary to understand the context of the proffered evidence to determine whether it should be added to the record."). Plaintiffs have sought to add information to the record they claim supports their contention that BPL never made a determination regarding substantial alteration. BPL has also sought to correct the record to add a few more documents relevant to the decisions to lease.
The parties seem to agree on one central fact: there exists no contemporaneous written decision or written findings of fact applying the standard of substantial alteration that predate BPL's decision to enter into a lease either in 2014 or 2020. Therefore, the Court will have to determine whether the record contains competent evidence that such a determination was nevertheless made, as BPL continues to insist. Thus, it is necessary for the record to include any information BPL relied on prior to its decision to enter into the leases in 2014 and/or 2020, any information that rebuts or contradicts BPL's assertions about the determination process, and any information that supports or contradicts BPL's assertions that it acted properly within its authority when it entered into the leases with CMP.
Plaintiffs seek to exclude BPL's September 24, 2020 memo on the basis that it is an impermissible post hoc justification for BPL's prior actions. They also seek to add twelve specific exhibits to the record and to provide additional testimony from various individuals (such as the testimony of Director Andy Cutko and David Rodrigues). The exhibits Plaintiffs seek to add include the following:
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