The owner of Clary Lake Dam filed suit last month in Lincoln County Superior Court, appealing the Clary Lake water level order issued by the Department of Environmental Protection earlier this year.
The lawsuit also includes an application for entering a land-use mediation program to solve the disputes. Preti Flaherty attorney Anthony Buxton filed the suit Feb. 26 in Lincoln County Superior Court on behalf of Pleasant Pond Mill LLC, owner of the Whitefield dam; and AquaFortis Associates LLC, owner of the mill on the other side of Route 218 and a 1-acre strip abutting the dam property.
The suit asks the court to invalidate or modify the water level order or refer parties to the mediation program, as well as award attorneys’ fees, court costs and other relief available.
The department issued the water level order Jan. 27 outlining how Clary Lake Dam must be operated and setting a deadline of October for making repairs to the 110-year-old dam. The dam owner also is required to raise the water level to no more than two feet below the lake’s historical normal high-water line, which must be determined by a professional licensed land surveyor contracted by the dam owner.
Lakefront property owners in Jefferson and Whitefield who filed a petition with the department about a low lake level more than two years ago welcomed the department’s decision, but the manager of Pleasant Pond Mill LLC, Paul Kelley, said his company probably would appeal the decision to the Board of Environmental Protection or superior court.
He said his company filed suit in superior court instead of with the appeals board because it wanted a final ruling on the dispute.
By requesting that the parties enter the land-use mediation program, Kelley said, he hopes to deal with problems that the department failed to address during the procedure or the order.
“I think we might be able to address this in mediation,” he said.
The mediation court is part of the State of Maine Judicial Branch’s Office of Court Alternative Dispute Resolution.
Kelley previously has criticized the department for what he said were procedural errors and inexperience on the department’s part, and much of what the suit claims has been brought up by Kelley during the process.
The suit alleges the department didn’t have jurisdiction or statutory authority to order the water level or for repairs to be made to the dam, and that the water level order is the result of an unlawful procedure.
It also claims that the water level order will force the company to flood permanently or periodically the private property of upstream landowners.
The suit says the order transforms the right to raise and lower the lake level under Maine Mill Act into a permanent obligation to raise and maintain certain levels, at Pleasant Pond Mill’s expense, for use and enjoyment of upstream landowners who have no legal right to Clary Lake.
The spokeswoman for the department, Jessamine Logan, referred questions about the suit to the Maine Attorney General’s Office, which didn’t respond to requests for comment.
Paul Koenig — 207-621-5663