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July 14, 2015

Department of Marine Resources Commissioner Patrick Keliher has denied requests by two groups of Morgan Bay shorefront property owners to delay an experimental aquaculture lease until a court rules on their appeals of DMR's lease decision.

In September 2011, Joseph Porada applied to DMR for a three-year experimental aquaculture lease to raise oysters and clams in upper Morgan Bay. DMR approved the lease in May. Last month, two groups of landowners filed appeals from that approval in Superior Court and asked DMR to stay issuing the lease while the court considered their appeals.

In a pair of decisions issued last Friday, Keliher said "it strains credulity to believe" that issuing the lease would cause "irreparable harm" to either the landowners or the general public and denied their requests for a stay. According to Keliher's decision, operation of the lease site would have no more than a minimal impact on the rights of the landowners or the public to use Morgan Bay.

Porada's lease site is located in the upper reaches of Morgan Bay, just off the western shore. According to DMR, the bay includes about 2,500 acres. The upper bay, where the lease site is located, is about 200 acres in size.

Under the lease, Porada is allowed to install various bottom and floating bags and cages with a "combined surface area" of about one-fifth of an acre. That represents about 4.6 percent of the lease site and .09 percent of upper Morgan Bay. All of the gear has to be removed from the site between mid-November and mid-April each year.

For DMR to grant a stay, the landowners had to show that they would suffer "irreparable injury" if the lease weren't delayed, that there was a "strong likelihood" that they would win their appeal in court and that it would cause "no substantial harm" to Porada or the general public. According to Keliher's decisions, they failed to meet all of those criteria.

One landowner, Ann Backer, claimed that the lease operations would interfere with her ability to swim in Morgan Bay. According to DMR, she owns about 1,100 feet of shorefront situated to the south of the lease site and "can swim wherever she likes," including the area where she swims on a regular basis.

"She may dislike the sight of the gear or the presence of Mr. Porada, but that does not amount to an irreparable injury," Keliher's decision said.

Landowners Nicholas Sichterman and Maria Hughs, claimed that they would be unable to rent their seasonal shorefront cottage, located just to the north of the lease site, citing two frequent tenants who said they would not return.

Keliher determined that was not the kind of "water-related" use the law requires DMR to consider.

"Many factors affect the rental market," Keliher wrote, and the cottage owners are "no more guaranteed commercial success" than Porada is.

Another group seeking a stay, Christopher Goddu and the Estate of Jack Pirozzolo, raised several issues about the impact of aquaculture operations on their property and on the bay itself. The estate owns property to the north of the lease and Goddu owns two rights of way to the water north of the lease site.

Keliher found those claims unpersuasive.

"Alleging the inability to use a particular portion of the public waters for uses that can otherwise take place in the other 98 percent of the surrounding area cannot be said to constitute a showing of irreparable injury," Keliher wrote.

With the landowners' appeals pending in Kennebec County Superior Court but no stay in place, Porada said he planned to spend part of the weekend setting out gear and shellfish on the lease.

"By the end of the day Sunday, I will have 50K + (50,000-plus) juvenile oysters on site," Porada said in an email addressed to the landowners' lawyers, David Kallin and Sarah McDaniel, among others.

View article online.   

Related Professional

  • David M. Kallin

  • Related Practice Areas

  • Environmental & Natural Resources
  • Land Use & Conservation

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