Future dim for Allagash lawsuit Judge: State has power over policy

A federal magistrate has moved to dismiss a lawsuit by two Maine residents upset with the state’s management of the Allagash Wilderness Waterway.

Earlier this year, Charles Fitzgerald of Atkinson and Kenneth Kline of Bar Harbor filed suit in U.S. District Court seeking to nullify a 2006 state law that guaranteed 11 vehicle access points to the river and re-designated six bridges within the waterway as permanent structures.

The two men argued that the 2006 law violated the terms of Maine’s agreement with federal officials to maintain the Allagash as part of the Wild and Scenic River program. The law, LD 2077, was the subject of heated debates among St. John Valley residents concerned about access for day use of the river and those advocating for a limited-access, “wilderness” waterway.

On Monday, U.S. Magistrate Judge Margaret Kravchuk sided with state officials and recommended that Kline and Fitzgerald’s lawsuit be dismissed. U.S. District Court Judge John Woodcock now will consider the recommendation as well as any responses from both sides.

Kravchuk argued that because the Allagash is owned and operated by the state of Maine, not the federal government, state officials have the right to set management policies for the waterway. The Wild and Scenic River Act does not give the federal government the power to pre-empt state control of a state-owned waterway, Kravchuk wrote.

“It certainly seems apparent that the Allagash is no longer ‘a wild, scenic river, generally inaccessible except by trail,’ if it ever was such a river, as it now has eleven motor vehicle access points and six permanent watercourse crossings,” Kravchuk wrote.

“If, as the plaintiffs maintain, the state of Maine through loose stewardship has ‘downgraded’ the Allagash from a wild riverway to a scenic, or perhaps recreational riverway, there is no Congressional enactment that preempts what the state has done.”

Instead, Kravchuk wrote, the entire agreement hinges upon cooperation between the state and the federal government. If federal officials disagree with the state’s management of the waterway, they can either recommend changes to the state or opt to remove the Allagash from the wild and scenic river system, she said.

Jim Crocker, spokesman for the Maine Department of Conservation, said officials there were pleased with the recommendation to dismiss the case. He said the department continues to follow the guidance given on the Allagash by the Legislature in 2006.

Not surprisingly, the plaintiffs disagreed with Kravchuk’s legal interpretation on the balance of state and federal obligations within the wild and scenic river program.

David Nicholas, an attorney for Fitzgerald and Kline, said they do not believe there is a distinction between how state-owned and federally owned land should be managed within the program. Additionally, managers of any wild river are required by the program to make the waterway even “wilder” over time rather than keep the status quo, Nicholas said.

“Congress did not intend to create two tiers of rivers,” Nicholas said. “They are supposed to be protected to the same degree … The states are not allowed to give less protection than the federal government when it comes to wild rivers.”

Nicholas said they have been given 10 days to file a response to Kravchuk’s recommendation. If Woodcock concurs with the magistrate judge’s opinion, the plaintiffs could appeal the decision.

“In general, we’re a little bit mystified by this and we’re going to fight it the whole way,” Fitzgerald said.

The lawsuit is only the latest in a long string of legal and political disputes over access to and use of the Allagash, a 92-mile corridor of rivers and lakes in northern Maine’s commercial forest. Fitzgerald, Kline and other conservationists are also fighting the state’s plans to replace a bridge near Henderson Brook with a new, permanent span.