A March 15 plan shows the proposed route of Nordic Aquafarms’ pipeline and the disputed tidal flats it crosses. (Source: Maine Bureau of Parks and Lands)
A March 15 plan shows the proposed route of Nordic Aquafarms’ pipeline and the disputed tidal flats it crosses. (Source: Maine Bureau of Parks and Lands)
In a recent Facebook post, Nordic Aquafarms made what appeared to be a staggering admission, that in contrast to prior claims, the company doesn’t have the necessary land rights to run critical water pipes between its proposed $500 million land-based salmon farm and Penobscot Bay. The company then accused opponents of being unneighborly for noticing.

The unsigned post, which appeared on May 8, came in response to claims by the opposition group Upstream Watch that Nordic’s water pipes would trespass on a strip of intertidal land owned by a neighbor.

“As far as the intertidal challenge is concerned, we are comfortable,” the post from Nordic read. “What we find most interesting is that [Upstream Watch] and one resident have attempted to claim a conservation easement in the intertidal across two other shoreline properties without speaking to the involved shoreline property owners.”

That happened on May 1 when Kim Ervin Tucker, an attorney representing Upstream Watch and Maine Lobstering Union, submitted documents to the Bureau of Parks and Lands showing that the intertidal zone — the area between the high- and low-tide marks — was excluded from the deed of a key property in the Nordic plan when the land was subdivided from a larger parcel in 1946. The bureau is considering Nordic’s application for a submerged-lands lease for the portion of the pipeline that would run along the floor of the bay. That application requires proof of title, right and interest to all upland property related to pipeline. When Nordic applied for the lease in September, it included an easement agreement between the company and Janet and Richard Eckrote, who own the waterfront land that was subdivided in 1946. The easement supposed that the Eckrotes owned the land one would assume to come with any coastal property, all the way to the low tide line. But the documents produced by Upstream Watch showed that the intertidal mudflats remained with another part of the property, now two houses down at the mouth of Little River.

Nordic wasn’t obviously bothered by this move. Speaking to The Free Press on May 6, Marianne Naess, commercial director for Nordic Aquafarms, said nothing had changed on her end.

“I guess they’re claiming they own the land and they put a conservation easement on it and of course that will be disputed when they claim a neighbor’s land,” she said.

Ervin Tucker and company have made no secret of trying to stop the salmon farm from seeing the light of day, by whatever legal means necessary.

If the moves and countermoves of Nordic and its opponents over the last year were annotated like a chess match, there would be a handful of every type of mark — “!” for moves that seize an advantage; “!?” for intriguing moves and “?!” for questionable ones. A later passage in Nordic’s May 8 Facebook post gave Ervin Tucker and company the impression that they’d witnessed the first “??” of the game — the accepted annotation for a blunder:

“They [Upstream Watch] have also in their crusade revealed that some shoreline owners do not own their intertidal, which may be an unpleasant surprise to some owners. We withheld our surveys when we became aware of this situation some months back – it was not our role to reveal such sensitive information to the community and owners. Some of these shoreline owners might have wanted to acquire rights to their intertidal, while Upstream Watch is now trying to take control of them. Is this how fellow citizens treat each other in this town? We think the majority would not.”

Ervin Tucker included the full text of the Facebook post in a letter to Carol DiBello, submerged lands coordinator for the Bureau of Parks and Lands, and Amanda Beal, commissioner of the state Department of Agriculture, Conservation and Forestry, of which the bureau is a part.

“Contrary to Nordic’s assertion in their post, it was in fact their ‘role to reveal such sensitive information,’” Ervin Tucker wrote. “Indeed, it was Nordic’s and their counsels’ duty to reveal this information to the state agencies from which permits were being sought. Instead, Nordic, their counsel and their agents have intentionally misrepresented Nordic’s administrative standing to obtain permits over land in which Nordic and their agents knew they had no title, right or interest, both to State agencies and the public.”

DiBello replied that the comment period for Nordic’s application closed on May 8, but said there would be another 30-day comment period when the bureau issues its Preliminary Findings and Decision. Ervin Tucker fired back arguing that the statement on Facebook should be enough to halt the process in its tracks. “Considering the truth should supersede any artificial deadlines,” she wrote, “… [the Department of Agriculture, Conservation and Forestry] cannot possibly say it will ignore evidence that became available after 5 p.m. on May 8 but prior to May 16, and was posted in a public Facebook page by Nordic itself.”

In the midst of these exchanges, Nordic put another note on Facebook:

“For anyone wondering about the continued attacks from Kim Tucker — our project is staying on track regarding permitting requirements and our next May 16th deadline to BPL. Our position remains unchanged — the claim that we have misled the public is untrue as will become clear.”

Jeffrey Mabee, who, along with Judith Grace, owns the contested intertidal strip, according to opponents, said he learned only about a month ago that his land includes not only the tidal area adjacent to the property, but a panhandle of mud running some 600 feet up the coast, and passing right between the Eckrotes property and the bay. “When I looked at my deed I said, What? Can this be true?” he said. Mabee and Grace gave a conservation easement to the intertidal strip to Upstream Watch at the end of April to block the pipeline.

Speaking on May 13, Marianne Naess suggested the company plans to challenge that easement. “There are various interpretations of this,” she said. “As I’ve said previously, if you claim the land, it doesn’t necessarily mean that you own it.”

Naess said she doesn’t know exactly when Nordic found out that some shoreline property owners don’t own their stretch of the intertidal zone — the Facebook post does not name the Eckrotes. Ervin Tucker said there are only two property owners in the vicinty with this problem, and the Eckrotes are one of them. She and other opponents say the company had surveys going back at least a year that would have shown that the Eckrotes didn’t own their mudflats. Asked about the issue with the intertidal land, Naess disputed the terminology. There is no issue, she said. “It depends how you interpret the language. We were not going to disregard any property laws.”

At this point, the burden may be on Nordic to prove it. The company applied for its submerged lands lease in September and has been sent back to the drawing board twice after failing to convince state regulators of its land rights at the shore. Nordic has insisted each time that it has all the land rights it needs for the pipeline. And yet the company has acknowledged problems at various points and made adjustments to its plans that corresponded with problems raised by opponents. When opponents said the pipe route was straying onto neighboring lots within the intertidal zone, including some on the opposite shore in Northport. Nordic changed the shape of the pipe, first bending it into a zig-zag, then straightening it slightly in the most recent design, which was shown at a public information meeting at the University of Maine Hutchinson Center in Belfast on March 28. At that meeting, Elizabeth Ransom, a consultant and engineer for Nordic, described the change from what she called the “southern route” — the Z-shaped pipeline that opponents had taken to calling the “twisted sister” — to the gentler curve of the final design.

“We were able to obtain right, title and interest for this (southern) route through the intertidal zone,” she said. But “from an engineering standpoint,” she said, the sharp bends in the pipeline were “not ideal.” About the final design, she said, “It’s a route for which we have right, title and interest.” A PowerPoint presentation projected behind her displayed a slide with the bullet point “Right, Title and Interest obtained.”

Naess declined to say how Nordic will prove that it has permission to cross the mudflats, but she said the company is not considering alternative routes to bypass the disputed strip. Mabee guessed that Nordic could bring out a 2012 deed for the Eckrote property, which relied on a new survey and included a slightly different description of the boundaries.

Ervin Tucker, in her May 13 reponse to the bureau, alluded to another tack the company might take. The letter contained an excerpt from Nordic’s response to a Dec. 18 bid by Upstream Watch to have Nordic’s Department of Environmental Protection wastewater permit application thrown out for lack of proper title, right and interest. Nordic’s attorney, Joanna Tourangeau, in the excerpt, cites case law for a presumption that the intertidal zone goes with the upland property, “unless the presumption is rebutted by proof to the contrary.”

Tourangeau added, again citing case law, that the bureau doesn’t have the authority or jurisdiction to consider whether a party can rebut the presumption. “Thus, even if Upstream and MLU were correct that other parties have future potential claim to rights in the intertidal or littoral zones,” she wrote, “NAF has shown sufficient right, title or interest in the adjacent upland for purposes of the BPL submerged land lease.”

Nordic officials have promised to show the receipts at the proper time. So far, that’s been a moving target, and Nordic has taken every available minute. On Jan. 22, the state Department of Environmental Protection, in respect to Nordic’s pending wastewater application, gave the company 30 days to prove title, right and interest to the relevant land for the pipeline. Nordic responded by requesting that the project be reviewed by the state Board of Environmental Protection, saying that it would be more efficient to consolidate the wastewater permit with several other applications. But the move effectively extended the deadline, giving Nordic more time to shore up its land claims. The Facebook post marked a change of tone, from the easy confidence and patient rebuttals that the company has become known for, to a cry that the opposition isn’t playing fair. On May 13, Naess returned to a statement that has been the company’s position for several months. “We will have all the necessary information by May 16, which is the deadline,” she said. Naess declined a request for materials that would become public at that time, the day this article is scheduled to appear in print. Nordic did not want to argue with opponents in the press, she said.

“They have hired all kinds of experts and surveyors and biologists and this is so far what they’ve come up with,” she said. “It’s quite annoying. It’s taxpayer money and the city has hired lawyers to refute this and it’s splitting up the community.”

Whether Nordic made a game-changing mistake with its Facebook post or threaded the needle in a complex land ownership dispute remains to be seen. The company has promised that all will be made clear on May 16. In the struggle for public credibility between Nordic and its opponents, someone will lose ground.

Speaking to The Free Press on May 6, Marianne Naess said she was disappointed that Mabee and Grace didn’t approach Nordic before giving the conservation easement to Upstream Watch. Mabee read about it in the paper. He was irate (Jeffery Mabee's letter to the Free Press editor). If she knew, he said, why hadn’t she told him? Mabee hasn’t been outspoken on this subject of the salmon farm. He said he wasn’t always an opponent.

“I was kind of thinking this could be a cool thing to have,” he said, “but they have really not been good neighbors.”