Court to rule on Winterport dam

WINTERPORT – The Maine Supreme Judicial Court has been drawn into the battle over the fate of the West Winterport Dam.

Lawyers for the towns of Winterport and Frankfort and the dam’s owners appeared before the law court last week to debate the merits of a temporary restraining order that halted the dam’s demolition. Superior Court Justice Andrew Mead issued the order last fall.

After the arguments, the court’s seven justices took the matter under advisement and will hand down their decision at a later date. Lawyers for both sides said they expected the ruling to be made within a few weeks.

West Winterport Dam owner John Jones and the conservation group Facilitators Improving Salmonid Habitat, or FISH, want to remove the dam on the Marsh Stream.

Jones, who had a hydroelectric station at the dam for 20 years, has gotten out of the electricity business and does not want the liability of maintaining the dam. FISH wants the dam removed to improve the habitat for spawning fish such as Atlantic salmon, alewives and blueback herring.

Residents of Winterport and Frankfort, on the other hand, want the dam to remain standing. They have argued that the dam’s 40-acre impoundment provides a reservoir of water for fire protection.

They also contend that the dam protects homes downstream from floods during the spring runoff and has been a traditional recreation area for residents of both towns. Marsh Stream forms the boundary between the towns.

After a lengthy hearing process that the towns contested from the beginning, Jones and FISH obtained the federal and state permits needed to remove the dam.

When the parties announced their intention to begin demolition of the dam last September, the towns obtained a temporary restraining order.

Justice Mead imposed the order because FISH and Jones had failed to obtain a shoreland zoning permit from the towns. FISH and Jones appealed that ruling to the supreme court.

It was the position of FISH and Jones that the state and federal permits superseded the need to obtain municipal permits. Mead disagreed and issued the restraining order.

When lawyers for both sides argued their case before the law court in Portland last week, it quickly became obvious that the justices were concerned about the permits granted by federal and state agencies.

“Even though the dam is not generating power, it certainly generated a lot of interest from the court,” Bangor attorney Jon Haddow said last week.

Haddow represented FISH and Jones before the law court and said all of the justices were “very interested” in the argument that the federal government, under the Federal Energy Regulatory Commission, had the overall authority in matters dealing with hydroelectric dams.

“I think that their overarching concern was federal,” Haddow said of the court. “They are very interested in the matter of federal pre-emption.”

Bangor attorney Charles Gilbert, who represents the towns, agreed with Haddow’s assessment of the tone of the law court hearing. Gilbert said the justices wondered aloud on more than one occasion whether federal authority could pre-empt the local shoreland zoning ordinance.

“They were interested in FERC and federal government’s power,” said Gilbert. “It was a fairly lively argument and they looked at things outside the court records. It called attention to the fact that this was a small part of a much larger beast.”

Gilbert was referring to the fact that four other legal challenges are waiting to be heard in Waldo County Superior Court. The most prominent of those cases is the towns’ decision to take the dam by eminent domain, which FISH and Jones have appealed.

Although the court gave no indication when it would issue its ruling, Gilbert predicted that the justices would likely send the case back to the Superior Court. If that happens, he said, he was prepared to argue that the matter be consolidated with the other cases.

“It’s certainly a complicated case,” he said. “The key issue to be dealt with is the taking.”

Haddow speculated along similar lines.

“In this case I don’t know whether they will move quickly or not,” said Haddow. “If they don’t act on the appeal, I think we’ll be right back in Superior Court.”