The ownership of these tidal flats in Belfast matters because it's where Nordic Aquafarms would like to place its intake and outfall pipes to get to and from Penobscot Bay. Credit: Abigail Curtis / BDN

BELFAST, Maine — Nordic Aquafarms has prevailed in a protracted court battle over the ownership of a disputed mudflat seen as the key to the company’s $500 million aquaculture project, according to a judge’s ruling issued late this week.

At the end of his 49-page written decision, which was filed Thursday, Superior Court Justice Robert Murray determined that a 1946 deed did not sever the intertidal flats from the upland property conveyed by Harriet Hartley, who owned a large swath of land along Penobscot Bay before she began to sell it off to other people.

Essentially, that means he found that plaintiffs Jeffrey Mabee and Judith Grace, who were suing Nordic Aquafarms in the right, title and interest civil land-use case, did not have any ownership over the contested tidal flats.

Ownership of the mudflat matters because it’s where the Norwegian-owned company wants to bury its pipes to funnel water to and from Penobscot Bay. Access to the bay is critical for the land-based salmon farm, which the company wants to build on the inland side of U.S. Route 1. After the 1946 deed was discovered, Mabee and Grace placed the contested mudflat into a conservation easement held by a non-profit organization that opposes the construction of the salmon farm.

“Plaintiffs Mabee and Grace have no title, rights or interest in the intertidal flats which are appurtenant to the upland which was once owned by Frederick Poor,” Murray wrote. “The conservation easement that Mabee and Grace conveyed to Upstream Watch and which is now held by Friends of the Harriet L. Hartley Conservation Area is not enforceable to the extent it purports to convey or restrict rights, title, or interest to the intertidal flats appurtenant to the uplands previously owned by Fred Poor.”

The judge heard arguments in the case back in June, including testimony by surveyors and a low-tide field trip to the mudflat.

Marianne Naess of Nordic Aquafarms said Friday that Murray’s decision is very positive for the aquaculture company.  

“We won all the arguments,” she said. “We see it as a complete victory.”

It still doesn’t mean that bulldozers and builders will start work on the fish farm imminently, Naess said. There could be appeals and there is also engineering that must be done before the company can begin construction.

Still, the decision means the company can finally get out of the legal limbo it has been mired in for many months.

“We will be moving forward, and we are looking forward to finally being able to move forward,” she said. “They might try to appeal, but since we won every argument, it’s going to be a steep uphill battle for the opponents to win. It’s going to be basically next to impossible.”

Andy Stevenson of the Friends of Harriet Hartley Conservation Area said Friday that the legal team for the plaintiffs is reviewing the decision, and will have no comments at this time.

The judge’s decision also seems to render moot the city of Belfast’s controversial move this summer to use eminent domain to get an easement to cross the contested mudflat.

Belfast city councilors unanimously voted to pursue eminent domain after Nordic Aquafarms had purchased the property from the Eckrotes and given it to the city with one condition: that the city get a permanent easement for the company to get across the intertidal zone.

City attorney Kristin Collins said Friday that Murray’s decision will negate the lawsuit. It also  means that the conservation easement claimed over the area is invalid, she said.

“We are hopeful that this will lead to the resolution of all pending lawsuits by Mabee, Grace and Upstream Watch and allow the city to proceed with certainty,” Collins said.

Elected officials in the city greeted Murray’s decision as good news.

“I’m tremendously pleased with the result and excited that the project should now be able to move forward,” Mayor Eric Sanders said.

The civil court case is a complex one, involving various claims and counterclaims from Mabee, Grace, Nordic Aquafarms and the Eckrotes. Some remaining counts will be addressed in the second phase of the two-part trial, which will proceed at a later date, Murray wrote. Those include a claim of “slander of title” that Mabee and Grace brought against Nordic and claims of “tortious interference,” which both Nordic and the Eckrotes brought against Mabee and Grace.

In the decision, Murray said that the most consequential matter of the trial’s first phase is Mabee and Grace’s claim to own the intertidal flats next to the Eckrote’s upland property. Because the plaintiffs brought the lawsuit and sought to establish title to the intertidal land, they had the burden of proof on the issue, the judge wrote.

“To prevail, the plaintiffs cannot rest their case merely on the weakness of their opponents’ claims to the disputed property, they must prove both their own title and prove that their title is superior to the defendants’ title,” he wrote.

Murray did not find that the plaintiffs successfully did that. At one point, he said he was unpersuaded by the theory that Hartley intended to split up the intertidal and upland portions of her property in part because it required a “convoluted reading” of the property description in one of the deeds. That 1950 deed from Hartley to William and Pauline Butler used four boundary lines to describe the parcel, Murray wrote.

“This simple description appears on its face to describe a four-sided, roughly rectangular shaped parcel lying between the Bay and the Atlantic Highway,” he said. “Plaintiffs’ theory, however, proposes that the court interpret this deed as instead describing a six-sided parcel, roughly shaped like a shoe.”

As well, when Hartley sold land to Fred Poor in 1946, he had long rented the property and had a cottage situated on the edge of the shore, Murray wrote. In the trial, Janet Ecrote, Fred Poor’s granddaughter, testified that when she visited the property as a child in the 1950s, she remembered that at high tide, water flowed under the cottage’s porch. That fact cast more doubt upon the notion that Hartley intended to sever the upland from the tidal flats, the judge wrote.

“It is highly unlikely that Hartley and Poor would intend to have the property boundary run through Poor’s existing cottage,” Murray wrote. “With these facts in mind, construing the deed as setting the property boundary at the high-water would be nonsensical.”