At issue: Nordic Aquafarms outflow pipe path

Belfast residents take neighbors to federal court over real estate ‘slander of title’

Fri, 09/27/2019 - 8:00am

PORTLAND — Belfast residents Jeffrey Mabee and Judith Grace have filed a complaint in U.S. District Court in Portland against their neighbors Janet and Richard Eckrote, alleging that the Eckrotes slandered their property title on a parcel of land that borders Northport Avenue on one side and on the other side, the Little River in Belfast, just where the river enters Penobscot Bay.

The “slandering” consists of, according to the complaint recorded Sept. 19,  “publishing false statements regarding the Defendants’'alleged ownership.”

The Eckrotes own property that also sits between Northport Ave. on one side and Penobscot Bay on the other side. (See map above)

Mabee and Grace filed in federal court because the Eckrotes are residents of New Jersey, and their attorneys, Dana Strout and Kimberly Tucker, wrote, ‘there is complete diversity of citizenship between plaintiffs and defendants, and the amount in controversy exceeds $75,000.’

In response, Camden Law Attorney Sarah Gilbert, who represents the Eckrotes, said Sept. 26 that the federal court filing, “is simply another attempt by the Plaintiffs to intimidate, harass, and increase the cost of litigation for my clients.”

This federal case follows another filing by Mabee and Grace against the Eckrotes in Waldo County Superior Court on July 15. In addition to the Eckrotes, the plaintiffs named Nordic Aquafarms, Inc., the “unknown heirs of Genevieve Hargrove and/or Harriet “A.” Hartley and/or Harriet “L.” Hartley, as defendants in that suit.

This dispute over a small segment of intertidal zone on Penobscot Bay, and who owns it, is significant because Nordic Aquafarms, the Norwegian company that wants to build a $500 million indoor salmon farm on nearby Belfast land, hopes to run three industrial pipelines — two 30-inch intake pipes and one 36-inch outfall/discharge pipe — across the Eckrote property and into Penobscot Bay.

Those pipes are vital to the construction of the large scale industrial aquaculture venture, and now two courts, one federal and one state, are being asked to decide on the matter. Mabee and Grace don’t want the pipes and the Eckortes have, according to court documents, granted Nordic Aquafarms an option to purchase an easement in order to run discharge pipes through their property to the bay.

The pipes would be buried in the intertidal zone.

The dispute has drawn other parties, and the files in Waldo County Superior Court have gotten thicker and taller since mid-summer, while attorneys scour old land deeds, debate deed language, such as what constitutes a boundary line that is referred to as, “along high-water of Penobscot Bay,” and wait for a judge to call a hearing. 

In August, Gilbert filed a motion to dismiss the Mabee/Grace amended complaint in Superior Court, refuting the Mabee/Grace claim that they are in possession of the intertidal zone.

In the federal suit, Mabee and Grace are alleging that since 1991 they have owned the intertidal zone — between the high tide mark and the low tide mark — in front of their property, as opposed to claims made otherwise by the defendants.

“....The Eckrotes have slandered the plaintiff’s title to their property by publishing false statements regarding the defendants’ alleged ownership of intertidal land actually owned in fee simple by the plaintiffs and by actively aiding and abetting Nordic Aquafarms, Inc., in falsely alleging an ownership interest in the plaintiffs’ intertidal lands in order to seek and obtain leases and permits from various local, state and federal agencies and boards.”

Currently, Nordic Aqaufarm’s permit applications are proceeding through the Belfast Planning Board process; likewise, state permit applications are before the Maine Board of Environmental Protection for review under the Site Location of Development, Natural Resources Protection Act, MEPDES/Waste Discharge, and Air Emissions License requirements.

But in their federal suit, Mabee and Grace are arguing that the Eckrote’s deed, filed in 2012 in the Waldo County Registry of Deeds, altered the description of the waterside boundary to include that the Eckrotes ownership extends to the low water mark.

“Whether this erroneous description was intentionally inserted in the deed to create a color of title in the Eckrotes to land owned by the plaintiffs in fee simple or was inserted as the consequent of gross negligence by the individual drafting and recording this instrument,” it clouded the title, wrote attorneys for Mabee and Grace, in the Sept. 19 complaint.

They further contend that the Eckrotes, “and their agents,” have published false statements about the Mabee and Grace ownership of the intertidal land, “on which the Eckrotes’ lot fronts.”

Mabee and Grace maintain that an earlier deed from 1946 indicates that the Eckrotes own only to the high tide mark, and that Mabee and Grace own the intertidal shoreline between the high and low water marks.

But Gilbert, on behalf of the Eckrotes, said: “ I am confident in my clients' position and we dispute the Plaintiffs' ‘interpretation’ of the 1946 Deed. Harriet Hartley's contemporaneous Will described my clients' land as being ‘bounded by Penobscot Bay on the East,’ which has been the boundary for decades and was always intended to be the boundary. The boundary is the bay and we look forward to proving that in Court.”

The Mabee/Grace complaint is asking U.S. District Court to hold a jury trial, of six, to settle the matter.