2014 memo details Schoodic legal tack



ACADIA NATIONAL PARK — Two years ago this month, National Park Service (NPS) officials, including Sheridan Steele, then superintendent of Acadia, received a memo outlining steps that the park needed to follow to annex 1,441-acres of donated land on the Schoodic Peninsula without congressional approval.

In fact, according to NPS lawyers, the Schoodic Woods property had come under control of the park with the acceptance of a conservation easement in September 2013.

The Mount Desert Islander has obtained a copy of the seven-page opinion issued by the acting assistant solicitor for the NPS’s Northeast Regional Office and dated Jan. 24, 2014.

The NPS apparently relied on that memo in posting a notice in the Federal Register on Nov. 17, 2015, that its authority to acquire the Schoodic property was in effect.

In the opinion of the solicitor’s office, the NPS could annex the property that includes the new Schoodic Woods Campground under a 1929 law that allowed the U.S. Secretary of the Interior to accept “donations for the extension or improvement of Acadia National Park.”

However, a number of public officials and others in the Acadia area, including members of the Acadia Advisory Commission, argue that the 1929 law was superseded by the 1986 law that authorized the NPS to acquire lands “only within the designated boundary.”

The NPS lawyers wrote that the 1986 law barred only the “purchase” of property outside the boundary. Unlimited donations to increase the size of the park would be allowed.

Annexation of the Schoodic Woods property marks the first time the park’s boundary has been expanded beyond the specific list and map included in the 1986 “permanent boundary” legislation.

Members of the Acadia Advisory Commission, which is composed of representatives of surrounding communities, have expressed strong support for extending the boundary to include Schoodic Woods. The boundary extension also seems to have widespread public support.

The only questions being raised by some on the commission, and others, concern the legality of the way in which the park’s boundary was expanded and whether the park could acquire additional land in the future without congressional action.

The 1986 boundary legislation, crafted by then-U.S. Senator George Mitchell, was passed in large part because people in surrounding towns feared there was nothing to keep Acadia from continuing to annex land and erode the tax base.

The Schoodic Woods property was purchased in 2011 by Schoodic Woods LLC. That corporation, established by Lyme Timber Company and a private family foundation, built the campground, along with four miles of hiking trails and more than eight miles of bike paths.

In September 2013, Schoodic Woods LLC conveyed a conservation easement on the property to the NPS. Then, last summer, the property, along with a 100-site campground and bicycle paths, was donated to the National Park Foundation, a nonprofit partner of the NPS, with the understanding that ownership would be transferred to Acadia.

“The donor … would like it to become part of Acadia, and I’m trying to start to put the wheels in motion to do that,” Steele, who retired as superintendent last fall, said in July.

The wheels actually had been in motion for at least two years, according to the January 2014 solicitor’s office memo to Steele and Mike Caldwell, director of the NPS’s Northeast Regional Office. That memo began, “Over the past six months, we have worked with staff from Acadia National Park to structure a phased donation and review draft legal documents for the donation of lands on the Schoodic Peninsula.”

In a footnote to that memo, the lawyers wrote, “You have asked whether the 1986 statute repealed the 1929 statute … by implication, or whether the earlier authorities survived.”

The answer, they said, is that differences in the two laws “suggest” the latter was not intended to replace the former.

The lawyers noted that the 1986 law authorizes the secretary of the interior “to acquire conservation easements on lands outside of the park’s ‘permanent boundary,’ including lands on the Schoodic Peninsula,” while the 1929 law allows the acceptance of land donations outside the park in Hancock and parts of Knox County.

“We believe that acceptance of the easement under [a section of the 1929 law] automatically extended the boundary of the park to include the easement lands,” the lawyers wrote. “That section of the 1929 act … refers to the acceptance of donated lands and easements as an ‘extension’ of the park, not merely an acquisition.”

The lawyers acknowledged that “this sort of automatic boundary extension is unusual and does not include the sort of public and Congressional notice that usually [accompanies] park boundary extensions … .”

They noted that more recent legislation requires “public information and consultation efforts” when the NPS revises a park boundary.

“While these efforts are not required here by statute, we think it would be a good idea to voluntarily consult with local units of the government, conduct public information efforts and notify the applicable congressional committees.”

It also recommends publishing public notices “in local newspapers.”

No record of any notices being placed can be found.

Documents sought

BAR HARBOR — As the Islander reported last week, three members of Maine’s congressional delegation, Sens. Susan Collin and Angus King and 2nd District Rep. Bruce Poliquin, have asked NPS Director Jonathan Jarvis to cite the legal basis for the expansion of Acadia on the Schoodic Peninsula.

Meanwhile, the NPS had denied the Islander’s request under the federal Freedom of Information Act for a copy of the legal opinion supporting the boundary extension, as well as any correspondence among NPS personnel regarding the acquisition.

The Islander is appealing that denial.

Schoodic DEP permit opposed

AUGUSTA — Dexter Lee, a Swans Island selectman and member of the Acadia Advisory Commission since it was created by the 1986 act that established the park’s permanent boundary, has been one of the most outspoken critics of the way in which the boundary on the Schoodic Peninsula was extended.

On Jan. 13, he sent a letter to the Maine Department of Environmental Protection (DEP) asking that the NPS’s application to transfer the site location permit for the Schoodic Woods Campground from Schoodic Woods LLC to Acadia “not be approved at this time.”

“Serious issues exist regarding the legality of the National Park Service’s ability to acquire lands outside the boundaries outlined in the 1986 legislation … ,” Lee wrote. Lee has stated he believes Schoodic Woods should become part of the park.

“It is the hope of all involved that the Congress of the United States can legislate a new boundary that will allow the addition of the Schoodic Woods area to Acadia National Park.”

Lee said he wrote to the DEP as an “interested party” and not as a selectman or a member of the Acadia Advisory Commission. – Dick Broom

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