The condition of the “polar circle” fish pens and allegedly missing marker buoys (show here in June) are among the issues the DMR is considering in a hotly contested application to renew a 10-year lease to grow mussels off Hardwood Island in Blue Hill Bay. ISLANDER PHOTO BY STEPHEN RAPPAPORT

Mussel farm fight resumes



TREMONT — If beauty is in the eye of the beholder, so too it seems do the grounds to deny renewal of an aquaculture lease.

Six years ago almost to the day, Maine Cultured Mussels Inc. applied to the Maine Department of Marine Resources to renew its lease to grow mussels on a 15-acre site east of Hardwood Island in Blue Hill Bay. Initially granted in March 2003, the 10-year lease expired on March 24, 2013. In April of that year, the company requested approval to transfer the lease – subject to its renewal – to two sons of the company’s owner, Erick Swanson.

The DMR held a public hearing on the renewal application in August 2015, almost two and a half years after the lease expired, and convened a second session last June. In the interim, the company has continued to operate its mussel farm and grow shellfish on the lease site.

Last month, the DMR issued “Revised Proposed Findings of Fact, Conclusions of Law, & Decision,” prepared by the department hearing officer who ran the public hearing that denied renewal of Maine Cultured’s lease. The decision was based on findings that the company had breached the terms of its lease because it failed to maintain marking buoys required by the Coast Guard and state aquaculture leasing rules, failed to keep the lease site and the surrounding waters and island shores free of garbage and that it generally had “not maintained the lease site in good order.”

In recommending against renewal, the lawyers said, the DMR hearing officer relied on evidence relating to alleged violations that occurred in the years after the lease expired in March 2013 and introduced by the Friends of Blue Hill Bay conservation group.

“The question wasn’t so much whether he (Erick Swanson) had breached the terms of his lease,” Sally Mills, an Ellsworth attorney representing Friends of Blue Hill Bay said last month, “but how seriously and how many times.”

Last week, attorneys from the Portland law firm Curtis Thaxter LLC filed a 31-page document with the DMR contesting the proposed decision. Their argument is that the question facing the DMR is not just how serious and frequent any alleged lease violations might have been, but also when they occurred.

They contend that the company met all of the legal requirements for a lease renewal and that the hearing examiner relied on evidence that was irrelevant to the criteria established by law for a lease renewal and reflected, at worst, only inconsequential problems with the mussel farm’s operation.

DMR Commissioner Patrick Keliher must renew an aquaculture lease, the company lawyers claim, as long as four conditions are met: the lease isn’t held for “speculative purposes;” the renewal won’t result in the lessee controlling more than 1,000 acres; the lessee complied with the lease agreement “during the term of the lease;” and the commissioner determines that the renewal is “in the best interests of the state.”

There was no evidence that Maine Cultured Mussels failed to meet any substantial requirements of its lease agreement with the state during the 10-year lease term, the lawyers argued. According to the record, the DMR never conducted the legally required annual review of the lease during the 10-year term, and during that time, the DMR never notified the company of any purported lease violation.

According to the company lawyers, “no effort was made by the DMR to conduct any annual review … or to put Maine Cultured Mussels on notice that unless certain activities changed,” the company could have its lease revoked.

The only problem during the lease term disclosed in the hearing was a notice from the Marine Patrol that some marker buoys were missing from the water. They were replaced within the required timeframe according to the Marine Patrol.

Even during the nearly four years in which the lease renewal was pending, the DMR never gave the company any notice of alleged noncompliance.

Another objection to the proposed decision voiced by the company’s lawyers is that the hearing examiner used the alleged, post-lease term instances of poor maintenance at the site to find that renewing the lease would not be in the state’s “best interest.”

“In fact,” they said, “the only ‘best interest’ criteria cited” in all of the lease renewal decisions published on the department web site – approximately three dozen – “is whether there are known conflicts with other new or existing uses of the area which the commissioner determines to be a higher use of the area from the perspective of public interest.”

The DMR has given the attorney for Friends of Blue Hill Bay a Dec. 19 deadline to respond to the comments filed by Maine Cultured Mussels’ lawyers. After that, Keliher has 180 days to make a final decision.

Given that the renewal application was filed four years ago, it seems unlikely that he will take that much time.

 

Stephen Rappaport

Stephen Rappaport

Waterfront Editor at The Ellsworth American
Stephen Rappaport has lived in Maine for nearly 30 years. A lifelong sailor, he spends as much time as possible messing about in boats. [email protected]

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