An appeal in a controversial case involving water rights in Fryeburg and the international company that owns Poland Spring bottling drew such a large crowd on Tuesday before the Maine Supreme Judicial Court that many spectators had to stand.
In the case, Fryeburg resident Bruce Taylor and Food and Water Watch, a national non-profit group, are asking the court to throw out the Public Utilities Commission’s approval of a 25- to 45-year contract between Poland Spring owner, Nestle Waters of North America, and the Fryeburg Water Company.
The contract gives Poland Spring leasing rights to withdraw up to 603,000 gallons of water per day at the same basic rate as Fryeburg residents, though it could pay a lower bulk rate.
The contract approval process before the PUC drew increased attention starting in 2012 because one commissioner recused himself due to a conflict of interest before the proceedings began. Two other commssioners recused themselves due to conflicts after the proceedings began but before the PUC issued a ruling. Gov. Paul LePage appointed two retired state court judges to fill in as commissioners, and they issued the order.
The crowd in the spectator section of the courtroom in the Cumberland County Courthouse in Portland filled all of the 110 available seats in the spectator section with many more standing against walls. The court clerk asked before the hearing began for all attorneys in the room to move within the gated bar section to make more room in the spectator section. But even after the onlooking lawyers moved, more than a dozen people remained standing without a place to sit.
Attorney Bruce McGlauflin, who represents Taylor and Food and Water Watch in the appeal, argued in his introduction that the contract should be rejected because it allows Nestle to withdraw so much water it puts the supply that the Fryeburg Water Company is chartered to oversee at risk.
“Nestle has contracted to bypass that system and therefore the charter’s purpose to take untreated water directly from the aquifer into its tanker trucks for shipping outside Fryeburg’s service area to be resold and sent around the world,” McGlauflin said.
While the appeal focuses largely on the unusual process by which the PUC approved the lengthy contract, the six justices focused their questions mostly on the role of the PUC and the charter under which Fryeburg Water Company operates to supply water to the village and the vicinity.
The justices began questioning McGlauflin as soon as his time for introductory remarks was up, interrupting him mid-sentence.
“It seems to me you are more interested in the amount of water than the price of the water,” Justice Joseph Jabar said, opening the questioning. “Isn’t that really a question for the legislature on the natural resources and the joint committee? Isn’t the PUC only concerned with the pricing?”
McGlauflin responded that the PUC has the regulatory authority to make sure the public interest is protected.
An attorney for the PUC, Jordan McColman, argued that the case is solely about whether the PUC properly approved a contract between Nestle and the water company.
But Justice Jeffrey Hjelm questioned whether Fryeburg Water Company could even negotiate a contract for water being sold for use outside the Fryeburg area specified in its charter.
McColman answered that the water was being sold in Fryeburg to Poland Spring and that the PUC has limited authority over what the company does with it after purchase.
“So the charter means nothing then?” Hjelm asked.
Justice Ellen Gorman later phrased the question
“So, for example, if the Fryeburg Water Company entered into a contact with the city of Flint to become its water source, would the PUC be in the position to say that is not Fryeburg and the vicinity?” Gorman asked, referring to the city in Michigan that has had a drinking water contamination crisis since 2014.
McColman answered that the PUC doesn’t have the authority to challenge whether Flint is in the Fryeburg vicinity.
An attorney for the Fryeburg Water Company, James Costello, argued the PUC “got it right” in this case.
The court adjourned without making any immediate ruling or setting a date by which it will rule on the appeal.