Sears Island suits to proceed separately

PORTLAND (): The state Department of Transportation is dealing separately with three lawsuits targeting the joint use plan for Sears Island, and in the counties where the civil suits were filed.

Superior Court Chief Justice Thomas E. Humphrey notified DOT lawyer Rebecca Farnum and law firm Thompson and Bowie that would be the case in a letter dated March 26.

Justice Humphrey referred to DOT’s motions to consolidate the three cases and approach them simultaneously, as well as DOT’s motion to dismiss the cases.

The judge stated he was uncertain whether the petitioners in those cases, Ron Huber of Rockland, Harlan McLaughlin of Searsport and Douglas Watts of Augusta, had been served with a motion to consolidate.

Justice Humphrey noted there is one judge assigned to Waldo and Knox counties, and one judge assigned to cases in Kennebec County, and that it would be more appropriate to file the motion to consolidate with each of those courts.

“I believe this will trigger the petitioner’s 21-day deadline for responding and will provide each petitioner with an appropriate location for filing a response to the motion,” stated Justice Humphrey.

The judge acknowledged that dealing with the cases independently would be more time consuming, but it was best to follow customary procedures “particularly since the views and responses of each of the petitioners is unknown at this time.”

Chief Counsel and Director of the DOT Office of Legal Services Toni Kemmerle said Tuesday, April 7, the state has followed the direction from Justice Humphrey. “We have filed three motions to dismiss and three motions to consolidate those cases,” said Kemmerle.

Huber, McLaughlin and Watts filed civil suits in February, after the Jan. 22 execution of a conservation easement on about 600 acres of Sears Island.

The suits claim the easement between DOT and the Maine Coast Heritage Trust violates state law as well as Maine's Sensible Transportation Planning Act.

Huber also has since filed a motion in Knox County Superior Court seeking the exclusion of DOT’s responses on the basis they were not submitted to the courts in a timely manner.

Huber’s motion dated March 31 highlights several reasons for his latest filing. He asserts he initially filed his suit at Knox County Feb. 19, and that DOT did not return a response until March 24, which Huber contends exceeded a 30-day deadline to file a response.

Huber said court records show DOT had not filed a motion seeking an extension of the deadline and he accused DOT of fudging filing dates.

“In their motions to this court, MDOT erroneously asserts that Huber filed his Petition for Review of Agency Action on February 20, 2009,” stated Huber’s motion.

“MDOT further erroneously asserts that it filed its responses to Huber’s petition on March 23, 2009. A review of the date stamps on Huber’s petition and on MDOT’s response to the motions in Knox County Superior Court’s docket files reveals that Huber actually filed his petition on February 19, 2009, while MDOT actually filed its two response motions on March 24, 2009.”

In an e-mail to the press, Huber wrote, "I have faith that Judge [Jeffrey] Hjelm will agree with my motion, rule MDOT to be loser-by-default, and send the agency off to carry out the environmental impact reviews under state law required for such a gigantic project as the world class container port the agency wants."

Kemmerle said DOT attorneys disagree with Huber’s assessment.
“We think we’ve done everything we needed to do,” she said. Kemmerle said it is up to the courts in all the three counties to decide where the cases will go from here.