BELFAST — Saying a privately held conservation easement that spans an intertidal zone on the shores of Penobscot Bay remains valid, Maine Attorney General Aaron Frey filed a complaint Dec. 23 against the City of Belfast and intervenor-defendant Nordic Aquafarms, Inc., entities that have asserted the opposite.
As outlined in the complaint, a present dispute exists between the AG and City of Belfast, as to whether the city’s condemnation of a conservation easement that runs for a short section along the Penobscot Bay shoreline in Belfast near the outlet of the Little River is exempt from state law that allows municipalities to terminate privately held conservation easements.
The Attorney General maintains it cannot without court approval to which the Attorney General is named as a party.
Last summer, the City of Belfast exercised eminent domain authority in an attempt to provide saltwater pipeline access to Nordic Aquafarms, Inc., for its plans to build and operate a large-scale salmon farm a short distance from Penobscot Bay shoreline. The three pipes would run underground and be used for both intake via two smaller pipes, as well as discharge of treated water via one larger pipe.
Belfast and the Belfast Water District have been under an agreement with Nordic Aquafarms for almost four years to proceed with its planned salmon farm. The city maintains the benefits of such an enterprise include funds for the Water District to purchase and build a new facility, revenues to the Water District, and expanded and improved public trail access over the Nordic property.
“These benefits are in addition to the other economic benefits to the city such as job creation and tax revenue that will come from this development opportunity,” the city has said, in a news release issued in August about the eminent domain dispute.
A conservation easement had been conveyed to the nonprofit Upstream Watch in 2019 by Jeffrey Mabee and Judith Grace, who own the intertidal land. Upstream Watch then signed over the easement to the Friends of the Harriet L. Hartley Conservation Area, another nonprofit.
In 2021, the City of Belfast asserted eminent domain over the intertidal land that is part of the easement, and then conveyed an easement over it to Nordic Aquafarms, allowing it access for its pipelines installation and construction.
But on Dec. 23, A.G. Frey filed his objections because, he wrote, the city failed to comply with the state statute governing conservation easements.
More specifically, he cited the 2007 statute language that says: “A conservation easement may not be terminated or amended in such a manner as to materially detract from the conservation values intended for protection without the prior approval of the court in an action in which the Attorney General is made a party. In making this determination, the court shall consider, among other relevant factors, the purposes expressed by the parties in the easement and the public interest. If the value of the landowner's estate is increased by reason of the amendment or termination of a conservation easement, that increase must be paid over to the holder or to such nonprofit or governmental entity as the court may designate, to be used for the protection of conservation lands consistent, as nearly as possible, with the stated publicly beneficial conservation purposes of the easement.”
A.G. Frey’s complaint said that a court may permit termination of a conservation easement or amend an easement, but no court action had been taken by the city that included the Attorney General as a party.
See attached PDF for the full complaint.
Frey acknowledged in his complaint that Belfast, “contends that through condemnation it may terminate a privately held conservation easement such as the conservation easement described in this complaint without obtain court approval in an action in which the AG is a party.”
But he disputed it, questioning the validity of whether the city’s action had legally terminated the conservation easement.
The AG is asking Waldo County Superior Court to declare the conservation easement valid and in effect, and to prevent Nordic Aquafarms from using the disputed intertidal land until the court, “either determines that the conservation easement described in this complaint is not valid or approves an amendment or termination of that conservation easement so as to allow Nordic Aquafarms’ use of the disputed intertidal land in an action in which the Attorney General is a party....”
“We’re pleased to see the Attorney General’s office stepping up to clarify the laws regarding conservation land,” wrote Amy Grant, spokesperson for Upstream Watch, which opposes Nordic’s venture. “We need local decision makers and businesses to follow laws about land use and about protecting our environment. The health of our bay and waterways depends on it.”
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