Acadia expansion legality doubted

ACADIA NAT’L PARK — The legality of Acadia’s acquisition of property on the Schoodic Peninsula, including the new Schoodic Woods campground, is being questioned by some members of the park’s own citizens’ advisory panel and local government officials.

They assert that any expansion of the park’s boundary requires an act of Congress.

The National Park Service (NPS) posted a notice in the Federal Register on Nov. 17 that, as of that date, Acadia’s boundary was modified to include 1,441 acres adjacent to the existing Schoodic section of the park. The notice stated that the boundary change was made “pursuant to appropriate authorities.”

In response to the Islander’s query about those “appropriate authorities,” Rachel McManus, deputy realty officer for the NPS’s northeast region, cited a provision of the 1929 federal law that changed the name of Lafayette National Park to Acadia.

The law states, “The Secretary of the Interior is authorized, in his discretion, to accept in behalf of the United States lands, easements and buildings as may be donated for the extension of the Acadia National Park, lying within the bounds of Hancock County,” as well as certain Knox County islands in Penobscot Bay, including Isle au Haut.

However, those who question the legality of last month’s boundary extension maintain that the 1929 law was superseded by the 1986 law that established Acadia’s boundaries.

That position is consistent with the legal concept of “implied repeal,” which holds that when a legislative act is in conflict with an earlier one, the earlier act is, in effect, repealed. Courts must decide whether the concept of implied repeal applies in specific cases.

According to Acadia’s own General Management Plan, the 1986 law “defined a permanent boundary and gave the National Park Service authority to acquire lands, but only within the designated boundary.”

Dexter Lee, a longtime Swans Island selectman, was among those who testified at a congressional hearing in 1986 in support of the “permanent boundary” law.

“We fought to establish a boundary back then because the feeling locally was that Acadia park was taking over everything,” Lee said last Tuesday at a meeting of the Acadia-area League of Towns.

“I have no objections whatsoever to the Schoodic area addition except for the method of acquiring it. It seems to have been done by executive fiat, when it requires an act of Congress, I believe.

“It seems quite high-handed to do it otherwise and probably illegal, in my opinion,” Lee added.

Matt Horton, one of Bar Harbor’s representatives on the Acadia Advisory Commission, said in an email to Lee last Friday, “You have my full agreement.”

He expressed confidence that if a bill to amend the park’s boundary were to be introduced in Congress, it would quickly pass.

“Let’s do it right so [Acadia] and our government remain above reproach,” Horton wrote.

Steve Katona, chairman of the Acadia Advisory Commission, told the Islander Tuesday, “I am confident that the annexation is legal, because the Department of the Interior’s Office of the Solicitor reviews all actions very, very carefully, and it is extremely unlikely that they would take an illegal action.

“That said, the National Park Service could gain better trust from local towns and citizens by providing a thorough explanation of the authority used so that questions of process do not tarnish this once-in-a-lifetime opportunity for Acadia.”

Katona said that adding the Schoodic Woods land to Acadia would benefit “park visitation, general tourism, local economies and conservation.”

Katherine Heidinger, an Acadia Advisory Commission member who lives in Winter Harbor, said of questions about the park’s acquisition of Schoodic Woods, “There certainly are issues that I get my dander up about; this just isn’t one of them.”

She said Sheridan Steele, who recently retired as Acadia’s superintendent, kept the Winter Harbor and Gouldsboro communities “fully apprised of the process,” adding that she has heard no criticism about the method of acquisition from town officials or other Schoodic residents.

“This is a phenomenal addition to the Schoodic section of Acadia National Park, one that was in the works for many years,” Heidinger said. “So, it is no surprise that there has been an official acquisition. It apparently took some people by surprise that it just appeared in the Federal Register.”

Acadia Deputy Superintendent Mike Madell said at the League of Towns meeting that he had not been involved in the “legal analysis” of the Schoodic boundary extension. But, he said, “counsel has assured us that modifying the boundary is allowed under the 1929 act.”

Invoking the Freedom of Information Act, the Islander has submitted a request to the NPS for the legal opinion upon which the Schoodic boundary change was based, as well as all correspondence among NPS personnel related to that action.

Lee said that if the 1986 boundary law does not trump the 1929 law, then theoretically, Acadia could annex all of Hancock County.

“There go Lamoine’s gravel pits,” he joked.

Fred Ehrlenbach, chairman of the Trenton Board of Selectmen and a member of the Acadia Advisory Commission, agreed with Lee that only Congress can extend the park’s boundaries. He said enlarging the park by invoking the 1929 law sets a bad precedent.

“Because if you do it over at Schoodic, you can do it anywhere and just ignore the ’86 legislation,” he said.

The 1986 law that established the park’s boundaries also authorized creation of the Acadia Advisory Commission, whose members are residents of towns adjacent to or in close proximity to the park. The commission typically meets three times a year to discuss and advise park officials on various plans and activities.

Lee told his fellow League of Towns members that he planned to contact Maine’s Congressional delegation to express his view, as a member of the Advisory Commission, that Acadia’s boundary can be changed only by Congress.

Last Wednesday, the day after the League of Towns meeting, Lee and the two other Swans Island selectmen signed a letter to McManus, the NPS realty officer, expressing concern about the method by which Acadia’s boundary was expanded.

“Many of us fought for years to establish this boundary and do not believe the action taken … is legal,” the letter states. Copies of the letter were sent to Maine’s U.S. senators, Susan Collins and Angus King, and to Reps. Bruce Poliquin and Chellie Pingree.

Several members of the League of Towns board, including the Mount Desert, Southwest Harbor and Tremont town managers, said last week they would ask their towns’ elected officials if they wanted to formally object to the manner in which the Schoodic property is being annexed.

That property was part of a larger parcel 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.

The campground, which opened Sept. 1, was built to National Park Service standards, and Acadia has been operating the campground and managing the land as if they were part of the park. This summer, Schoodic Woods LLC donated the property to the National Park Foundation, a nonprofit partner of the National Park Service, with the understanding that ownership ultimately would be transferred to Acadia.

The NPS’s expansion of Acadia’s boundary, announced Nov. 17, paves the way for that transfer to occur.

In 2013, Acadia accepted a conservation easement on the Schoodic Woods property, a move that the Advisory Commission endorsed at the time. A conservation easement allows an entity, such as Acadia, to manage and protect land in perpetuity without actually owning it.

Tremont Town Manager Dana Reed, who was Bar Harbor’s town manager from 1986 to 2014, said at the League of Towns meeting last week that Acadia’s boundaries have been “effectively expanded” over the years by the acquisition of easements.

“I don’t know whether towns are concerned about that, but I know it was a huge issue in ’86 when the boundary bill was passed,” Reed said.

He recalled that area municipal officials, with the support of Acadia’s leadership at the time, lobbied Congress in support of the bill.

“So, there was a meeting of the minds then about what the boundaries of the park should be,” he said.

Lee said the NPS’s expansion of the boundaries not only “makes the park look bad,” but could have more far-reaching effects.

Proponents of the proposed Maine North Woods National Park “should take note of what happens when the NPS gets control,” he said in an email to the Islander.

Dick Broom

Dick Broom

Reporter at Mount Desert Islander
Dick Broom covers the towns of Mount Desert and Southwest Harbor, Mount Desert Island High School and the school system board and superintendent's office. He enjoys hiking with his golden retriever and finding new places for her to swim. [email protected]
Dick Broom

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