Ownership of intertidal zone, industrial pipes at issue

Nordic Aquafarms faces second lawsuit from Belfast residents 

Thu, 07/25/2019 - 9:00pm

    BELFAST — The Norwegian company working to build a large-scale land-based salmon farm in Belfast is facing a second lawsuit filed in Waldo County Unified Court. 

    Two Belfast residents filed suit against Nordic Aquafarms, Inc., over their claimed right to use the intertidal zone on waterfront property located off Northport Avenue. 

    Nordic Aquafarms, Inc., already faced a lawsuit from two different Belfast residents, Eleanor Daniels and Donna Broderick, who questioned whether the proper procedures were followed during the planning and permitting stages of the project, among a number of other issues. A Waldo County Superior Court judge found in favor of the city last month in that case. 

    The new suit brought against Nordic alleges that the Plaintiffs are the true owners of the intertidal zone where NAF plans to place three industrial pipelines, including two 30-inch intake pipes and one 36-inch outfall/discharge pipe, according to court documents.

    The plaintiffs for the case are Jeffrey R. Mabee and Judith B. Grace, both individually and as joint tenants of certain real property that is subject to the action. 

    Attorneys for Grace and Mabee filed a Complaint for Declaratory and Injunctive Relief July 15, which names Nordic Aquafarms, Inc., Janet Eckrote, Richard Eckrote, and “unknown heirs of Genevieve Hargrove and/or Harriet “A.” Hartley and/or Harriet “L.” Hartley as defendants in the case. 

    Dana F. Strout and Kimberly J. Ervin-Tucker, counsel for the Plaintiffs, wrote that the motion “is a civil action seeking declaratory judgment to quiet title to certain intertidal lands owned by the Plaintiffs in fee simple, and to obtain injunctive release” to prohibit NAF and the other named codefendants, from continuing to claim title, right or interest in the Plaintiffs’ intertidal land. 

    The motion also seeks injunctive relief to: “seek, obtain or use leases and/or permits from any local, State or federal agency or board allowing Defendant NAF, or its agents or assigns, to use, damage or develop Plaintiffs’ intertidal land contrary to the interests of the Plaintiffs and contrary to the conservation easement on the Plaintiffs’ intertidal property;

    “Enforce Plaintiffs’ rights as assigns and beneficiaries of a 1964 deed covenant which limited the use of the Eckrotes’ upland lot (Tax Map 29, Lot 36), to ‘residential purposes only’ in the absence of express agreement of the assigns, which Plaintiffs are; and

     “Enforce a recorded Conservation Easement that protects Plaintiffs’ intertidal land in its natural condition,” according to the Motion. 

    The Motion further states that the “uncontroverted evidence presented herein, which includes the final judgment in the 1970 Ferris v. Hargrave quiet title action (Waldo County Superior Court Docket No. 11,275, J. Silsby) regarding this property, as well as multiple deeds recording in the Waldo County Registry of Deeds -- definitively establish” that Richard and Janet Eckrote do not own the intertidal zone on which their lot fronts and therefore they cannot grant NAF an easement to use this intertidal land for placement of its industrial pipelines. 

    According to the document, the true owners of the intertidal land in question are Mabee and Grace, who placed the portion of their intertidal land in question under the protection of a recorded Conservation Easement April 29, which preserves the intertidal land in its “natural condition.” 

    The document states that NAF was “placed on notice that Defendants Janet and Richard Eckrote did not own the intertidal land on which their lot fronts, at least as early as April 2, 2018.” Instead, “all recorded deeds in the Eckrotes’ chain of title back to 1946, including the October 15, 2012, deed as modified by the August 31, 2012, Good Deeds survey, state that the Eckrotes only own down to the high water mark on their lot.”

    Upstream Watch, a group of vocal opponents of NAF, are listed as an Interested Party named as the Holder of the Conservation Easement, which was done to “preserve the intertidal flats of this fragile estuary, in perpetuity, in their “natural condition” and to give further notice to the Defendants of Plaintiff’s ownership of this intertidal land.” 

    Mabee and Grace claim that despite knowing that “neither the Eckrotes nor their predecessors-in-interest had any ownership interest in the intertidal land on which the Eckrotes’ lot fronts,” NAF continued to develop plans and submit permit and lease applications with the relevant regulatory agencies. 

    According to court documents, the current planned pipeline routes are the third proposed by NAF after the first two were abandoned after interested parties objected.

    Mabee and Grace discovered that NAF was “attempting to misappropriate their intertidal land for its profit without [their] consent” when they evaluated the proprietary of NAF’s third proposed route. 

    The Motion also alleges that NAF has taken actions to “cloud [the] Plaintiffs’ title.” 

    Some of these alleged actions include fabricating “Release Deeds” and other documents in asserting title, right and interest; withholding surveys from State regulators, Plaintiffs and the public that demonstrate that the Eckrotes have no ownership interest in the intertidal land on which their property fronts; and making public claims of title, right and interest in Plaintiffs’ land to local, State and federal regulators, the press and public.

    Lawyers for Grace and Mabee wrote that in permit and lease applications, filings and administrative proceedings, NAF has alleged that “it has an easement to install industrial and commercial pipes over the Eckrotes’ property.” and that “it has acquired rights over the Plaintiffs’ intertidal land in front of the Eckrotes’ lot and Lot 25 through unrecorded, heavily-redacted Release Deeds from undisclosed persons claiming to be “heirs of Harriet A. Hartley” (someone who was never in the chain of title).”

    Mabee and Grace argue that if the local, state and federal leases are granted they “would wrongfully authorize commercial use of Plaintiffs’ intertidal land. 

    If granted, such leases and permits would allow Defendant NAF to permanently alter, damage, befoul and/or destroy all of Plaintiffs’ intertidal lands, even those not in dispute, according to court documents, which note that if the relevant leases and applications are granted, it would allow NAF to:

    1. Dredge deep, wide trenches in the Plaintiffs fragile intertidal estuary land (at least 10-feet deep and 10-feet wide), from the shore out to the State’s submerged lands beyond the low water mark, extending out almost a mile into Belfast Bay and Penobscot Bay;
    2. Blast ledge in the Plaintiffs’ intertidal land; and
    3. Place three large industrial pipelines on, over and under the Plaintiffs’ intertidal land. 

    The Motion concludes with the Plaintiffs asking the Court to enter a judgment in their favor and against each of them jointly and severally, entering an injunction that:

    1. Declares Plaintiffs Conservation Easement serves the public interest;
    2. Prohibits Defendants, or their agents’ and/or assigns’ request, from taking any actions in the Plaintiffs’ intertidal land contrary to the express provisions in the Conservation Easement;
    3. Enforces the protections and purposes of the Conservation Easement that Plaintiffs imposed on their intertidal land against all persons and private government entities, in perpetuity. 
    4. For Costs, interest, expert witness fees and such other and further relief as the court deems just and proper.

    Close to 20 complaint exhibits have been submitted for the case including the Eckrote-NAF Easement Agreement, pictures, a 1963 Belfast tax map, and redacted “Release Deeds” from an unidentified person among 17 other listed items. 

    Erica Thoms can be reached at news@penbaypilot.com