Trask v. PUBLIC UTILITIES COM'N

• Decision Date: 22 June 1999
• Citation: 731 A.2d 430,1999 ME 93
• Parties: George TRASK v. PUBLIC UTILITIES COMMISSION.
• Court: Maine Supreme Court

731 A.2d 430

1999 ME 93

George TRASK v. PUBLIC UTILITIES COMMISSION.

Supreme Judicial Court of Maine.

Argued June 7, 1999.

Decided June 22, 1999.

Mark B. LeDuc (orally), Preti, Flaherty, Beliveau, Pachios & Haley, LLC, Augusta, for appellant.

Gilbert W. Brewer (orally), Joanne Steneck, Public Utilities Commission, Augusta, for appellees.

Before WATHEN, C.J., and RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

WATHEN, C.J.

[¶ 1] George Trask appeals from a judgment of the Public Utilities Commission granting the City of Gardiner and the Towns of West Gardiner, Richmond, and Litchfield the right of first refusal to purchase the New Mills Dam property. Trask argues that the Commission erroneously interpreted Chapter 691 of its Rules and that the Commission erroneously applied 35-A M.R.S.A. § 6109 (Supp.1998) instead of relying exclusively upon the Dam Abandonment Act (38 M.R.S.A. §§ 901-909 (Pamph.1998)). Finding no error, we affirm.

[¶ 2] The facts may be summarized as follows: The New Mills Dam (the "Dam") is located in Gardiner on the Cobbosseecontee Stream. The Dam was constructed in the 1840s to provide water to an adjacent mill. Pleasant Pond, part of the impoundment area of the Dam, which is abutted by the City of Gardiner and the Towns of West Gardiner, Richmond, and Litchfield, served as the primary water source of the Gardiner Water District (the "District") until the 1950s. At that time the construction of the Maine Turnpike degraded the water quality requiring the construction of two groundwater wells. The District has used the two wells as the exclusive source of water supply since 1980.

[¶ 3] In 1974 the District obtained the Dam from the City of Gardiner, which had operated the Dam for nearly a century. In 1982, the District constructed a hydroelectric facility on the Dam site to generate power. The Dam operated under a power purchase contract with Central Maine Power Company from 1983 to 1994. In 1994 the contract was bought out by CMP, the Dam's Federal Energy Regulatory Commission ("FERC") license was simultaneously surrendered, and the Dam was no longer used to generate power. Since the surrender of the FERC license, the Dam has been used to maintain the water level of Pleasant Pond. The District no longer generates income from the Dam, but continues to incur maintenance expenses.

[¶ 4] In September 1997 the District initiated steps to abandon the Dam pursuant to the Dam Abandonment Act, 38 M.R.S.A. §§ 901-909 (Pamph.1998). Pursuant to the provisions of that Act, the District filed a Notice of Intent to File with the Maine Department of Environmental Protection (the "DEP") and provided notices to various state agencies and other interested parties. On October 2, 1997, the District filed a Petition for Release from Dam Ownership or Water-Level Maintenance. The filing of this Petition triggered the 180-day period provided under the Dam Abandonment Act. During that period, the District was required to consult with municipalities, abutting landowners, lake associations, and various state agencies to determine whether any of them wished to assume ownership. If a new owner had not been found during the 180-day period, the DEP would then have required the specified state agencies to assess the Dam's public value to determine whether one of them should assume ownership of the dam or whether the water should be released from the dam. The 180-day period was to expire on March 31, 1998.

[¶ 5] As the deadline approached, neither the property owners abutting the impoundment area, the state agencies, nor any of the four municipalities definitively offered to assume ownership of the Dam.¹ The Commission noted, however, that the municipalities were nearing completion of an interlocal agreement when, on March 27, 1998, the District received George Trask's offer to purchase the Dam. An emergency meeting of the Board of Trustees of the District was held on March 29, 1998, at which the Board discussed and accepted Trask's offer. Because the District had found a prospective owner, it withdrew its Petition for Release from Dam Ownership or Water-Level Maintenance.

[¶ 6] Mary-Ann MacMaster and others filed a complaint with the Commission pursuant to 35-A M.R.S.A. § 1302. The complaint requested the Commission to investigate the transfer of the dam to Trask for various reasons. Relying on 35-A M.R.S.A. § 6109, the Commission entered an order stating, inter alia, that the "District's acceptance of the offer of Mr. George Trask to purchase the New Mills Dam is subject to the rights of first refusal held by the City of Gardiner, and the Towns of Litchfield, Richmond and West Gardiner." Trask appeals.

[¶ 7] This case turns on the Commission's interpretation of Chapter 691 of its Rules and its interpretation of the interplay between the statute providing for a sale of land by a consumer-owned water utility (35-A M.R.S.A. § 6109) and the Dam Abandonment Act (38 M.R.S.A. §§ 901-909). Thus, we review the Commission's decision for errors of law. See Town of Madison v. Public Utils. Comm'n, 682 A.2d 231, 234 (Me.1996)

(citations omitted). "The Commission's interpretation of a statute administered by it, while not conclusive or binding on this court, will be given great deference and should be upheld unless the statute plainly compels a contrary result." Id. (citation omitted). When we construe a statute, we give effect to the Legislature's intent. See id. (citation omitted). "Intent is ordinarily gleaned from the plain language of the statute itself. Such plain meaning will be applied so long as it does not lead to an absurd, illogical, or inconsistent result." Id. (citations omitted).

I. Flowage Rights

[¶ 8] Trask first argues that the Commission committed an error of law in applying Chapter 691 of its Rules implementing 35-A M.R.S.A. § 6109 by measuring flowage rights in terms of acreage. Section 6109 was enacted for the following purpose:

[to] govern the sale or transfer by a consumer-owned water utility of land or property owned by that water utility for the purposes of providing a source of supply, storing water or protecting sources of supply or water storage, including reservoirs, lakes, ponds, rivers and streams, land surrounding or adjoining reservoirs, lakes, ponds, rivers or streams, wetlands and watershed areas.

35-A M.R.S.A. § 6109 (Supp.1998). Section 6109 provides, inter alia, that "[t]he municipality in which the land is located shall have the right of first refusal to purchase any land that lies within that municipality's boundaries and is offered for sale under this section. That right is assignable by the municipality." 35-A M.R.S.A. § 6109(5) (Supp.1998). Section 6109 also expressly provides that the "commission may promulgate rules to implement this section. . . ." 35-A M.R.S.A. § 6109(4) (Supp.1998).

[¶ 9] Chapter 691 adopted by the Commission defines the property rights subject to section 6109 in the following terms:

Water resource land. "Water resource land" means any land or real property owned by a water utility for the purposes of providing a source of supply, storing water or protecting sources of supply or water storage, including reservoirs, lakes, ponds, rivers or streams, wetlands and watershed areas, and contains greater than five contiguous acres. "Water resource land" does not include any land on which a utility has built a facility that is used exclusively for storing water as part of that utility's transmission and distribution system.

M.P.U.C. Reg. 65-407, ch. 691, § 1(E) (March 16, 1991) (emphasis added).

[¶ 10] In determining that the New Mills Dam qualified as "water resource land" within the meaning of the rule, the Commission interpreted the definition to include flowage rights. With respect to the five-acre threshold, the Commission measured the rights in terms of the acreage of land affected by the flowage. The Dam itself, the property on which it sits, and the areas included within two easements granted for access and egress to and from the Dam constitute only .71 acres. The Commission found, however, that the District proposed to transfer not only the Dam, but also any water or flowage rights that it may possess and that accompany operation of the Dam on Cobbosseecontee Stream. The Commission measured the flowage rights in terms of acreage, finding that the surface area of Pleasant Pond, part of the impoundment area of the Dam, measures 748 acres.²

[¶ 11] Trask argues that, because flowage rights are intangible and have no independent physical existence, they cannot be measured in acres. Accordingly, he argues that the Commission erred in determining that the five-acre threshold was met. We disagree.

[¶ 12] In a recent case we defined flowage rights as the "private right to operate a dam and flood [flow] the property of upstream waterfront landowners." Dorey v. Estate of Spicer, 1998 ME 202, ¶ 9, 715 A.2d 182, 184. Flowage rights "are in the nature of an easement appurtenant,³ benefitting the mill site as dominant tenement and burdening the upstream landowners, collectively, as servient tenement." Dorey v. Estate of Spicer, 1998 ME 202, ¶ 12, 715 A.2d 182, 185-86. "`[A]n easement that is appurtenant is incapable of existence separate and apart from the particular messuage or land to which it is annexed.'" Id. (citations omitted).

[¶ 13] The Commission interpreted section 6109 and the implementing rule to include the acreage of flowage rights for the following reasons: The Legislature's intent is clear from the language of the statute itself. Although not defined in section 6109, "land" is defined by statute in the general words and phrases section as follows: "`Land' or `lands' include lands and all tenements and hereditaments connected therewith, and all rights thereto and interests therein." 1 M.R.S.A. § 72(10) (1989). "Sale" is defined by commission rules to include "an assignment of a property right, a land lease of more than twenty years, a...