Maine AG's office: Submerged lands bill is unconstitutional
Hadley Barndollar hbarndollar@seacoastonline.com @hbarndollar
KITTERY, Maine � State Rep. Deane Rykerson has tabled his bill that would designate submerged lands beneath impounded waters as state-owned, after a work session this week merited a letter from the attorney general's office stating the bill "raises constitutional questions."
LD 723, "an act to enhance resource management of submerged lands beneath impounded waters," sponsored by Rykerson, D-Kittery, would dub all lands beneath the mean low-water mark of waters impounded prior to Jan. 1, 1997, as state-owned, held in trust for the benefit of the people of Maine.
Rykerson's submission of the bill has drawn criticism from certain Kittery town officials and residents, as it hit the Legislature while a mirroring situation locally awaits judgement. A 3.67-acre experimental aquaculture lease application from Spinney Creek Shellfish currently lies with the Department of Marine Resources after months of hearings and testimony.
Spinney Creek was impounded in 1938 with the Department of Transportation�s installation of the flood gate, and landowners opposing Spinney Creek Shellfish's proposed oyster farm expansion have asserted property rights to the middle of the creek itself. Whether the creek is subtidal or tidal has also been at the center of debate, since it's manually been closed off from the normal ebb and flow of the Piscataqua River.
If determined intertidal, the town of Kittery would have local jurisdiction over the body of water, because the town has a shellfish conservation program in place. Spinney Creek is split between the towns of Kittery and Eliot, but the proposed aquaculture lease is on the Kittery side.
Kittery residents James and Filomena Knowles, property owners on the creek who have been fighting the aquaculture proposal, said Rykerson's bill was a backdoor way to "circumvent" the active decision-making process at the DMR.
In a letter dated March 12 to the chairs of the Committee on Agriculture, Conservation and Forestry, Assistant Attorney General Lauren Parker wrote that Rykerson's bill "would declare certain privately owned lands without compensating the affected private landowners."
"Impoundments do not change property boundaries," she wrote. "... Assuming that LD 723 is for public use and in response to a public exigency, LD 723 does not provide any mechanism for compensating the owners of the private property that would be taken by the state."
Parker said "absent a compensation mechanism and a funding source," Rykerson's bill "may well violate Article I, Section 21 of the Maine Constitution."
Following a work session Tuesday, Rykerson decided to table the bill for a couple weeks in hopes he can convene local stakeholders to reach a middle ground on the issue. He said he plans to proceed with the bill if Spinney Creek Shellfish and its opponents can't reach a compromise.
"The level of discourse has become somewhat shrill," Rykerson said of the controversy, adding it's his desire to arrange a public meeting in the near future, outside of the DMR process, so both sides can be heard, if parties are willing, that is.
At a Feb. 28 hearing in Augusta, 22 items of public testimony were submitted to the committee, split largely between several Kittery residents opposing the bill, and supporters of Lori and Tom Howell, owners of Spinney Creek Shellfish, the more than 35-year-old oyster company in Eliot.
In her letter to the committee, Lori Howell wrote, "We have run into a serious snag; claims of ownership of the bottom of the creek by upland owners. This threatens to derail our business, reduce our staff numbers, and interfere with the next generation taking over our business."
Howell said "no one owns submerged waters," and if the state allowed upland owners to claim ownership of submerged lands, it would prevent aquaculture in places where farmers are already working, and prevent new farms from being established.
Rep. Michele Meyer, D-Eliot, in supporting the bill proposal, wrote, "Inasmuch as the matter of who owns the land under the water of Spinney Creek is currently under debate within my district, I support the need for coherence and unambiguity."
She continued, "The possibility exists that, lacking clarity around the issue of the ownership of land submerged by impoundment, similar scenarios will develop in other Maine communities, placing homeowners and aquaculture businesses similarly at odds."
Several Kittery officials, including town councilors, have questioned Rykerson's motives in submitting the bill, considering heavy opposition from his constituents, and were upset he didn't notify anyone at Kittery Town Hall of its existence until it was already set for a hearing.
At the Kittery Town Council's Monday meeting, Councilor Cyrus Clark said Rykerson, "circumventing the DMR," should be "ashamed." Town Councilor Ken Lemont previously said the bill would not only affect Spinney Creek, "but the entire coast of Maine," and he felt the town should have had an opportunity to weigh in.