Mere Point Oyster Co. oysters. Hannah LaClaire / The Times Record
BRUNSWICK — Maquoit Bay LLC, a group opposing a controversial 40-acre oyster farm planned for Maquoit Bay, on Friday appealed the Maine Department of Marine Resources’ approval of the Mere Point Oyster Co. project in Maine Superior Court.
The claim alleges a conflict of interest for Dan Devereaux, who is both co-owner of Mere Point Oyster Co. and Brunswick’s harbormaster, and accuses him of “placing a thumb on the scale of the aquaculture licensing.”
The suit also accuses the state of violating the public trust doctrine and “marginalizing testimony presented on behalf of the complainants from the fishing community.”
Maquoit Bay LLC is made up of Paul and Kathleen Dioli, landowners with shorefront property on Mere Point. The Diloi’s are represented by Drummond Woodsum attorneys David Callin and Amy Olfene.
Their suit alleges Mere Point Oyster Co. asked for “a lease that grants exclusive private commercial use of a public resource,” and therefore “is in violation of the public trust doctrine ensuring access to all and an alienation of public trust rights.”
The appeal also said that the commissioner placed greater weight on the Mere Point evidence and “marginalized information produced by intervenors.”
In December, the department of marine resources approved a 40-acre oyster aquaculture lease in Maquoit Bay, ending more than a year’s worth of debate and waiting.
The new lease is expected to increase the company’s operating space by nearly 160 times, from roughly ¼-acre of limited-purpose aquaculture sites to about 40 acres of professional oyster harvesting, with 12 acres designated as navigable corridors. The company’s annual harvest would increase from 60,000 last year to 1.5 million in the next three years, with as many as 5 million oysters in the water at a given time.
A marathon hearing on Mere Point Oyster Co.’s proposed 10-year lease started in November and wrapped up in mid-January. Waterfront property owners and lobster fishermen spoke out against what they saw as conflicting uses of the bay and the potential infringement on valuable lobstering grounds.
Two groups opposed to the expansion were granted limited intervenor status: One is a group of lobster fishermen, and the other a group of Brunswick residents, largely from Mere Point, known as both the Maquoit Bay Preservation Group and the Concerned Citizens of Maquoit Bay.
The approval dismissed many of the opponents’ concerns, including that the lease would interfere with lobstering grounds, negatively impact eelgrass beds, prevent navigation and recreation and result in too much noise.
After the decision was released, Crystal Canney, spokeswoman for the concerned citizens group announced that the decision would be appealed in court. That appeal came Friday.
The opposition met the “unreasonable interference criteria to have this application denied,” she said in a written statement in December, “but DMR favored aquaculture at the expense of the traditional fisheries.”
Canney also said that despite significant concerns, the department ignored the permitting rules (a process she called “severely broken”) and the will of the people in favor of “a wealthy aquaculture investor and Brunswick’s Harbormaster who has serious conflicts of interest in the project.”
The conflict of interest is the primary focus of the appeal, filed late Friday evening.
When issuing the decision, the department found no conflict of interest with Devereaux, harbormaster and former marine resources officer, largely because other town officials, including Patrol Cmdr. Tom Garrepy and Marine Patrol Officer Curtis Labelle reviewed the material.
“The authority given by law to the DMR to lease subtidal coastal waters for aquaculture is exclusive within the state. It precludes all jurisdictions other than that of the federal government… (and) other state agencies and, with a limited exception not applicable here, municipalities,” according to the decision. “With regard to the lease application in this case, Brunswick municipal officials, including harbormasters, do not have the authority to grant or deny the lease.”
However, in the suit, the group alleges that “in granting the lease, the department placed Dan Devereaux in a situation in temptation to serve his own pecuniary interests to MPOC to the prejudice of interest of the petitioners and those he is sworn to protect in his role as harbormaster.
“The constitutional injuries caused by Dan Devereaux were the result of gross negligence, gross recklessness or bad faith intentional misconduct,” according to the appeal.
The suit also claims that Devereaux used his position as harbormaster to authorize Limited Purpose Aquaculture sites for himself and Niven as well as their children, who are employees.
In March, a Marine Patrol Officer allegedly contacted the department of marine resources to say say “he acted under duress ‘in signing an LPA for which one of the MPOC business partners children had applied.’ Following the conversation, the officer rescinded his signature,” according to the claim, which continues: “This is further evidence (of) Dan Deveraux’s influence on others responsible for law enforcement and regulation in the area of Maquoit Bay.”
Testimony concerning the LPA sites was discounted during the hearings, and according to the decision released by the department, the arguments “are not germane to the proposal under consideration.”
The appellants requested the court judge in its favor against Devereaux “for violation of their procedural and substantive due process rights,” award damages and void the lease.
Devereaux declined to comment on the appeal over the weekend, saying he was in the process of reviewing it with attorneys.
In December, he told The Times Record that he and Niven were pleased with the “rational decision” from the state and that he hoped the opposition would rethink their appeal. Mere Point Oyster Co. stands a good chance given how much time and effort they invested in making sure their application was sound, he said at the time.
“Our personal journey is far from over,” he said. “I think we will be scrutinized for a time to come.”
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