3 years ago

February 2023: Animal Law Updates that Improved the World for Animals this Month

Author Bio

Jareb Gleckel received his J.D. magna cum laude from Cornell Law School and his B.A.... Read More

Each month, One Green Planet reports on major cases in animal law, ranging from First Amendment actions to shareholder derivative suits—and now to property and land use claims. This month, we’re covering an underdog story from Maine, in which two landowners, Jeffrey Mabee and Judith Grace (“Mabee & Grace”)—supported by Upstream Watch and Friends of the Harriet L. Hartley Conservation Area—prevented a multinational corporation from building an aquaculture facility in Belfast.

Maine’s Aquaculture Industry

Maine’s aquaculture industry has been growing exponentially; in 1988, the state harvested around 1 million pounds of Atlantic Salmon, and by 2010, it harvested 24.5 million pounds. This growth has meant harm to animals, the environment, local communities, and human workers. In 2019, for example, Animal Outlook exposed cruelty at Cooke Aquaculture, in Bingham Maine. At this facility, fish starved to the point of eating each other’s pupils; fish suffocated to death after being left on dry land; workers slammed live fish against random objects and hurled them through the air; and workers improperly applied chemicals and salt to fish tanks, burning their gills.

But Cooke is not the only company involved in Maine aquaculture. Whereas in 2017 the state reported around 110 aquaculture leases, it reported over 180 leases in 2021.

The Nordic Project

Starting in 2018, a multinational aquaculture corporation, Nordic Aquafarms Inc. (“Nordic”), began efforts to build a new land-based salmon aquaculture facility in Belfast. To complete the estimated $500 million project, Nordic demanded access to Penobscot Bay to obtain seawater—and for a place to dump 7.7 million gallons a day of brackish wastewater. Making matters worse, Nordic chose a location on a shallow estuary.

Kim Tucker, the attorney for Mabee & Grace, told One Green Planet:

The estuary stream is really shallow. 35-40 feet deep. In some places it’s around 10 feet. And the intertidal area goes bone dry twice per day, for nearly a quarter mile. Think about how fragile that estuary stream is. It’s an essential habitat for fish species. And Nordic would turn it into a constant pool of wastewater with low salinity, high temperatures, and high nitrogen levels.

But Nordic didn’t care—and neither did the City of Belfast, the Department of Environmental Protection (“DEP”), or the Board of Environmental Protection (“Board”), all of which have supported the project. Sidney R. Block, the President of the Board of Friends of the Harriet L. Hartley Conservation Area, explained:

It was evident from all of the hearings held about this project that the Nordic facility would have been an environmental, ecological and economic disaster for the Belfast Bay area . . . The DEP, BEP and other agencies, including the City of Belfast . . . ignor[ed] the overwhelming evidence presented to them.

Legal Action

Mabee & Grace strongly pushed back on the Nordic permits. They argued, for example, that the Board’s determination that Nordic is not required to do essential sediment testing along the pipeline corridor violates the Clean Water Act. And they argued that political interference tainted the permitting process. As Ms. Tucker acknowledged, however, “fighting these permits is like banging your head against the wall. No matter how wrong the agencies are, their permitting decisions get so much deference.”

So, Mabee & Grace, and their supporters, found a different and more fundamental way to challenge Nordic’s project. They realized, specifically, that Nordic was using land it never had a legal right to use. The owners of the waterfront parcel who had negotiated an agreement with Nordic—Richard and Janet Eckrote—did not actually own rights to the critical piece of intertidal land. That land belonged to Jeffrey R. Mabee and Judith B. Grace. And, unlike challenges to permitting, lawsuits over land ownership avoid major agency deference: they rely on clear deeds and cut and dry black letter law. It helped, according to Ms. Tucker, that the relevant deed was so clearly written.

Still, Mabee & Grace were forced to appeal a confounding Superior Court ruling—that sided with Nordic—before the Maine Supreme Judicial Court reversed and ultimately granted Mabee & Grace their land rights. In doing so, the Supreme Court prevented construction of the Nordic facility.

Coda

As written by Kevin Miller of Maine Public, Belfast Mayor Eric Sanders made a statement that “The City of Belfast continues to Support Nordic Aquafarms on this project . . . I respect all court decisions as a rule, and certainly our use of eminent domain in this situation. I fully expect to be welcoming Nordic to Belfast as a new business.”

Therefore, while the decision is a huge victory for Mabee & Grace, animals, the environment, and the Belfast Bay area, the fight still isn’t over. Per Dr. Block:

While we are joyful and take great satisfaction with the ruling . . . it appears that we may still have to mount a defense against the Belfast City Council’s planned constitutionally and statutorily improper use and abuse of its eminent domain powers to undermine the property rights upheld by the Law Court. . . . How much more taxpayer money needs to be wasted by the City and State?

One Green Planet will provide updates as they occur. Meanwhile, for previous Animal Law Updates on One Green Planet, be sure to read:

Speak Up Tee By Tiny Rescue: Animal Collection

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