BELFAST, Maine — Opponents of Nordic Aquafarms filed both a motion for a preliminary injunction and a lawsuit this week against the city of Belfast in response to city councilors’ unanimous decision to use eminent domain to get an easement across a piece of disputed mudflat.
In the motion for preliminary injunction, plaintiffs Jeffrey R. Mabee, Judith B. Grace, the Friends of the Harriet L. Hartley Conservation Area and Upstream Watch are asking the court to prevent the city from doing this.
The new filings, unconnected to a prior legal action, were the latest volleys in a fight that began not long after the Norwegian-owned company announced its plan to build a $500 million land-based salmon farm near the Little River in Belfast in early 2018. The company has received all of its federal, state and local permits to begin construction and operate its plant. But a lawsuit over the contested ownership of the intertidal land where Nordic wants to place its intake and outfall pipes has yet to be decided by Waldo County Superior Court Justice Robert Murray.
When the Belfast City Council last week voted to take the easement by eminent domain, many opponents saw the move as governmental overreach in an effort to smooth the path forward for Nordic Aquafarms.
Before the council even voted on eminent domain, opponents vowed to fight it in court.
In both the injunction and the lawsuit, plaintiffs laid out their case, saying that the city is taking extraordinary action that is unlawful and designed to benefit a private business, not the public good.
“Injunctive relief is necessary here because the City has unlawfully used its extraordinary power of eminent domain to take privately-owned intertidal land for the primary purpose of benefiting Nordic Aquafarms, Inc., … a private, for-profit business entity,” Kim Ervin Tucker, attorney for the plaintiffs, wrote in the 26-page motion. “The proposed taking … violates clear federal and state constitutional protections and is prohibited by Maine statutory law.”
When asked for a response, Belfast City Attorney Bill Kelly on Tuesday said that, to his knowledge, the motions had not yet been served on the city. Last week, prior to voting in favor of using eminent domain to get an easement across the mudflats, Councilor Neal Harkness defended the action by saying it is time to move forward with the project.
“I do not believe that the civil servants at the Department of Environmental Protection and other agencies are incompetent or corrupt,” he said. “Every objection has been heard. The relevant issues have been addressed. The questions have been answered. We have moved beyond concern to obstruction.”
Over the last couple of weeks, Kelly has laid out reasons for taking such a controversial step. Those include reaping the benefits of a 2018 agreement between the city, the Belfast Water District and Nordic Aquafarms that would provide the city with land used for recreation and the water district with a significant new revenue stream — enough to replace antique water infrastructure and bring a new well online.
To finalize the agreement, there needs to be a closing between the water district, Nordic and the City regarding the sale of the water district’s land, Kelly has said. For that to happen, Nordic requires a clear title to get its pipes back and forth to the bay.
But in the injunction, Tucker blasted the city’s defense of such action.
“The taking is for a private benefit, and any purported public benefit is demonstrably pretextual and incidental,” she wrote.
In April 2019 Mabee and Grace placed a conservation easement on a wide swath of the intertidal zone north of the Little River, including the portion whose ownership is disputed. Upstream Watch was named the holder of the conservation easement, and several months later assigned the easement to the Friends of the Harriet L. Hartley Conservation Area.
What the city is doing is expressly prohibited by the conservation easement, Tucker said, describing the intertidal land as “fragile.” She said that “irreparable damage” to the mudflat would occur if Nordic dredges, excavates, trenches and even blasts it in order to bury its seawater and wastewater pipes.
Another point, Tucker wrote, is that Maine law bars the taking of property used for fishing and certain other purposes for industrial or commercial development or for transfer to a for-profit entity. Both fishing and clamming, when the clam flats are open, have taken place on the mudflat, she said.
Digging clams is currently prohibited in the area because of pollution, according to the Maine Department of Marine Resources.
“The taking at issue here, of land used for fishing and which is a portion of a parcel of land that has been long-improved with a residential home … is precisely the type of taking this statute prohibits,” she wrote.
In the 43-page real estate lawsuit, also filed on Monday, Tucker argues that the city’s actions have damaged her clients.
Among other requests, she asked the court to grant judgement in favor of her clients on each of 14 counts, and award damages to her clients on each count. She also asked the court to declare that the exercise of eminent domain by the city of Belfast violates the Maine Constitution, the U.S. Constitution and Maine statutes.
It was not immediately clear if the new motions would impact the expected decision in the right, title and interest lawsuit, which is a separate matter.