Judge orders Tremont to release campground emails held in secrecy by town attorney

Other news: Salmon farms are the new Big Tobacco, book says; Quietside Cafe for sale; Sawyer's Market opens

TREMONT, July 16, 2022 - Maine Business Court Judge Michael A. Duddy this week ordered the town attorney to release emails from lawyers for Acadia Wilderness Lodge with whom he secretly negotiated a settlement for multiple violations by the campground.

The released emails and accompanying documents showed the extraordinary latitude town attorney James Collier gave AWL, as he let stand most of the campground’s admitted malfeasance so it could open for business in time for this season’s tourist season.

The new revelation brought a sharp rebuke from a citizens group suing the town for its handling of the permitting of the campground.

“The significance of this recent ruling goes beyond the apparent collusion and scheming taking place between Town leadership and a developer,” stated resident Cindy Lawson, leader of Concerned Tremont Residents. “It is deeply troubling in light of the manner in which the public has been deliberately excluded from the process and kept in the dark about decisions being made by local government.”

Among the revelations in the April emails:

• The consent decree was drafted by lawyers for Eaton Peabody, which represents AWL in late March.

• AWL’s lawyers also wrote the official Notice of Violations (kinda like writing your own speeding ticket and handing it to the police officer who stopped you.)

• The lawyers completely marginalized the code enforcement officer who was told exactly what to do and when to it, according to the wishes of AWL’s lawyer in his emails.

• AWL lawyer Andy Hamilton repeatedly applauded Collier’s efforts to keep the negotiations a secret and even coached Collier on what not to say in public.

• Collier’s only significant change to AWL’s proposal was to include a defense of town manager Jesse Dunbar’s actions as then code enforcement officer.

Without taking the matter back to the planning board for review, Dunbar made several decisions in the field which Collier deemed minor and CTR maintained as significant changes to the original approved plan and constituted the basis for its lawsuit.

CTR first brought to light last year that AWL changed the campground from cabins to yurts, doubled the square footage of each unit, relocated two yurts in violation of the town’s new ordinance for a 50-foot setback, and eliminated a stand-alone office building.

“AWL did not actually build the project in accordance with any site plan approved by the Planning Board (in 2019) or by the CEO (in 2020 and 2021), but instead built a totally different plan that had not been approved by the Town,” Cindy Lawson wrote.

“According to the Tremont land use ordinance, minor changes due to field conditions can be approved by the code enforcement officer. However, significant changes must be brought back to the Planning Board for approval. The first change approved by the CEO was a change from cabins to yurts. The CEO was told by the developer’s engineer, Greg Johnston, that the yurts would be ‘about the same size’ when they were in fact double the size of the original plan.”

AWL admitted it violated the square footage, and agreed to build eight yurts instead of 11. Owner James Hopkins and engineer Johnston publicly apologized.

The documents released by the judge this week showed the extent to which Collier worked to appease AWL, even hiring another lawyer to meet Hamilton’s demand to deliver the consent decree in time for the owners to open by mid-May.

“Our time crunch is that Kenya and James want to have this squared away before they open the 8-yurt W campground in May 2022,” Hamilton wrote to Collier. The Hopkinses are the owners.

The emails also showed Hamilton’s extraordinary ease at telling town boards and officials what to do, including managing exactly how Code Enforcement Officer John Larson should engage the Notice of Violation which Hamilton wrote.

“I’m hoping that we can keep the NOV (to issue from John Larson) right alongside the final draft of the ACA,” he wrote Collier. “So let's allow you to finalize the ACA and then we can cause the NOV to work alongside that.” ACA is the administrative consent agreement.

“You agree that it makes sense to start with the ACA draft? Let's discuss between counsel before there is any discussion in any public meeting,” Hamilton wrote Collier.

“I defer to you as to when we talk next given Jesse's quiet scheduling of this for executive session with you and Jesse and the Select Board on April 11 (or later if you think that would be sensible),” Hamilton wrote to Collier.

The QSJ asked Dunbar what Hamilton meant by “quiet scheduling.” He answered that executive sessions allow boards to keep certain matters private. “Of course any settlement discussions that may take place in Executive Session may place the town at a disadvantage if discussed in open session, the other party to any settlement is not present during the Executive Session, It is just between the Board and the Town Attorney.”

But the “other party (Hamilton)” not only knew exactly what the board was discussing, he was the primary architect of the secret agreement. Dunbar said that was an inaccurate description but did not answer when asked what was inaccurate.

Lawson stated, “In the emails, Mr. Hamilton endorses the town manager’s ‘quiet scheduling’ of an executive session in early April as part of what appears to be a joint effort by the developer and the Town to keep abutters to the project and the public in the dark about what was actually going on with the violations and approvals for this campground project.”

State law states that such executive sessions may be held only “where premature general public knowledge would clearly place the State, municipality or other public agency or person at a substantial disadvantage.”

The only person disadvantaged by premature disclosure would have been Collier, who gave AWL virtually everything it wanted, including a small fine which barely covered the cost of the town’s legal fees. Collier practically ordered the select board to execute the consent decree which it did on May 2. Maine small towns give their town attorneys wide berth, as select members often act like they are the order takers instead of the client. Four of the select members own small businesses, including two in the construction industry.

The emails called into question the legality of the April 11 meeting itself, as the select board discussed content which was not made public but legally should have been.

The lawyer for Eaton Peabody claimed his emails to Collier were “privileged.” Judge Michael A. Duddy disagreed and ordered their release.

This was only Duddy’s first shot across the bow in Tremont, as he has three more lawsuits to adjudicate involving AWL.

The biggest of the suit is AWL’s attempt to reverse the May 5 decision by the appeals board, which found that a second, much larger, phase of Acadia Wilderness Lodge on Tremont Road is essentially the same enterprise as the abutting one on Kelleytown Road, and that the Planning Board must consider them as a single application.

Lawyers for the citizens, who have argued that a 63-yurt campground does not belong in a residential neighborhood, noticed that AWL had connected the two properties on engineering plans even after claiming they were separate.

That explained the consolidation of a single visitors center and the construction of yurts - instead of cabins - in uniformity for the entire project.

True to form, Hamilton wrote Collier an email stating, “I don't want to talk about this on Thursday night, that's for sure (when the Board of Appeals holds their appeal hearing on Attorney Tchao's appeal of the AWL 55-unit campground).” Amy K. Tchao is the attorney for CTR. Presumably, Hamilton was referring to the secret consent decree.

Hamilton declined a request for comment for this article. Select Chair Jamie Thurlow did not reply to a request for comment. Collier declined comment in an email.

Dunbar stated he was pleased the judge ruled that he did not act in “bad faith” and rejected the Lawsons’ demand for lawyer fees to be reimbursed.

This was not Collier’s first time acting more like an executive than “counsel” and taking over a development fight on MDI.

The QSJ reported previously how he negotiated in secret for 18 months with the lawyer for the operator of the quarry in Mount Desert without the knowledge of the Planning Board. Lawyers for neighbors suing to prevent the restart of the quarry decried Collier’s secret negotiations. That case is entering in its eighth year of adjudication. It remains to be seen whether his “fire first, ask for permission later” approach will hurt or benefit his clients, as the case is surely headed to court.

You may read the judge’s decision and the emails by clicking here:

https://drive.google.com/file/d/1e6tGRHQ_Epy7z6D8SZEgTEqkMyIyTRsY/view?usp=sharing

Book equates industrial salmon fishing tactics to Big Tobacco’s

SOMESVILLE - “Salmon Wars,” released this week, is the book event of the year for Coastal Maine, a cautionary tale for the state and its careless management of our most precious natural resource.

It’s a must-read for every employee of the state environmental and marine resources agencies, scientists and marine biologists at every higher education institution, fishers of all species, legislators, marine conservationists and their parent organizations.

Many of the individual stories have been reported previously, but no one has compiled such a precise, encyclopedic view from a global perspective with much original reporting.

Investigative reporters Douglas Frantz and his wife Catherine Collins recount the “gross” aftermath of salmon farming - the animal cruelty, diseased salmon on our dinner tables and massive destruction of the environment below the surface of the oceans.

“The more we dug, the more the salmon-farming industry began to seem like a combination of Big Tobacco and Big Agribusiness. Just as cigarette manufacturers spent decades discrediting critics and concealing research, Big Fish employs counter-science and public relations campaigns to undermine scientists and environmentalists who challenge its practices and products.

“This unchecked expansion occurred because regulation remains weak and because governments tend to promote salmon farming at the expense of the environment and the health of consumers.”

Of relevance to Mainers was the surgical reconstruction of all the offenses committed by Cooke Aquaculture, which operates the largest fish farm in the state.

In an interview with Protect Maine’s Fishing Heritage Foundation, Frantz and Collins pointed to the previously reported die-off of 116,000 salmon five miles south of MDI in August 2021 and how Cooke had plenty of time to clean biofouling of the cages before alerting the state.

“It took Cooke 11 days to report that to the authorities. During those 11 days, according to internal government emails we saw, Cooke cleaned off biofouling,” Frantz said.

“Cooke said those salmon died from low oxygen. Well, one of the ways you get low oxygen is if your nets are fouled and the current can't go through and carry new oxygen.

“So for Cooke to have allowed this biofouling to occur, if in fact they did, is particularly egregious because four years before, in 2017, Cooke lost an entire salmon farm in Puget Sound.”

Cooke’s nets off Cypress Island in Puget Sound collected so much seaweed and other growth they acted like under-water sails and dragged the entire infrastructure to collapse, allowing hundreds of thousands of fish to escape, according to the book.

The US attorney and state investigators were on the case immediately, unlike Maine regulators who waited for their phones to ring as Cooke is allowed to “self report” problems like the die-off last August.

The QSJ previously reported the state’s marine resources commissioner wasn’t aware of the die-off until 15 days later.

The Washington state legislature has since banned salmon farming in its coastal waters.

It’s difficult to imagine Maine doing anything remotely as aggressive.

The most notorious violation committed by Cooke, the largest private seafood company in the world, occurred in 2009 in New Brunswick, Canada, which led to 33 criminal counts of the Fisheries Act brought against the company and three executives, including its founder.

A tenacious regulator tracked down the use of illegal chemicals in gas cans smuggled into Canada from a supplier in Maine and used in the 15 pens in Kelly Cove, a mile from the US border, to reverse the infestation of salmon disease.

The toxic pesticide cypermethrin was among the chemicals used by Cooke Aquaculture's Kelly Cove Salmon farm and led to the killing of thousands of lobsters. The chemical is not illegal in Maine but requires state approval for each use.

In 2013, the company reached a settlement in Canada and paid a $490,000 fine over the objections of its chief investigator, the book reported.

The book made it clear that any profound change must start with the legislature, to enact regulations and laws with teeth, instead of allowing “self reporting” by a company which already has shown its willingness to ignore the law.

The book also highlighted the need for conservation groups to collaborate instead of dividing their power by focusing only on their narrow concern - such as whether a single company should be permitted to farm salmon in Frenchman Bay, or the fight against Nordic Aquafarm in Belfast.

And the Seattle journalists were much more aggressive than those in Maine. Cooke’s massive die-off last year received scant coverage in the Portland Press Herald and Bangor Daily News.

Without policies and stricter regulations, the criminal mind will continue to plumb Maine’s low hanging fruit which now may be practically picked off the ground.

You may order Salmon Wars by clicking here or by calling Sherman’s in Bar Harbor: https://us.macmillan.com/books/9781250800305/salmonwars

You may listen to the audio of the Protect Maine Heritage interview here: https://drive.google.com/file/d/1IQFGzmBn85HpRjc8-veB9mS7Qif6cyl0/view?usp=sharing

The authors pointed to a previously released investigative video in Bingham, Maine, where Cooke Aquaculture employees were captured on camera abusing the fish.

“What you saw in that video was four minutes long, but it was four minutes of real terror and and it was these workers brutally treating treating salmon,” Frantz said. “We saw them toss salmon after salmon into dry barrels where they suffocated. The state of Maine investigated and who do they blame? They blamed the workers. They didn't blame Cooke. They didn't single them out for for training. They blamed the workers.”

Reeds put up ‘for sale’ sign after 26 years of the Quietside Cafe

SOUTHWEST HARBOR - “I didn’t want to do breakfast and I still don’t,” said Ralph Reed from his perch, a stool at a “high top” table piled with payroll stubs.

Last year, he and his wife Frances made the decision to add breakfast at their new location which became an instant hit with the locals as their go-to morning meeting spot. “It’s for the town, the church groups, the locals,” Reed said of the extra burden of serving three meals a day six days a week.

Someone else will have to assume the responsibility.

Ralph suffered three mini strokes last winter and the couple decided to make health their priority after going nonstop for 26 years. They are beloved in town, having operated SWH’s central ice cream emporium on Main Street before losing their lease the first year of the pandemic.

The shop had evolved into a full service restaurant over the years.

The couple met in Germany, where Ralph was stationed in the late Sixties. He served in Vietnam in 1968, the same year as my father. He retired after 25 years as a master sergeant - regarded as the backbone of the Army.

He and Frances moved back to his birthplace and opened the Quietside Cafe in 1996. Both of their daughters served in the military.

Ralph’s overseas experience helped make a him a pioneer in workplace housing. In 2004, he and the Claremont Hotel were among the earliest businesses on MDI to hire foreign workers under the J1 visa program. He built housing atop the garage on his property to house the workers who came from Jamaica and Eastern Europe.

Many businesses scoffed at the ideas of hiring foreigners at the time.

“Now they are all trying to do it.”

Sawyer’s Market’s ‘soft’ opening under way

The shelves are only about half full but Sawyer’s Market, the heartbeat of Southwest Harbor, re-opened as promised on July 9. Owner Lio Cook said the store will continue to add inventory. It has a robust selection of organic products. The store closed in 2020. The building owner, David Milliken, added new equipment and remodeled the entire property.