A superior court justice suggested today that the administrations of Governor Janet Mills and Paul LePage deliberately kept the Legislature in the dark regarding a lease of public lands for Central Maine Power's controversial power corridor through western Maine. The validity of that lease, which is being challenged, could upend the billion-dollar powerline project’s progress.
During a hearing on the issue in Cumberland County Superior Court, Justice Michaela Murphy said a 1993 citizen referendum fundamentally recalibrated the balance of power between the state's executive and legislative branches. The constitutional amendment required that when a lease of publicly-held lands would "substantially alter" their use, it must be approved by a two-thirds-vote of the Legislature.
Murphy said that re-balancing in the Legislature’s favor appears to have been undermined twice in relation to a lease of roughly 33 acres to CMP in the West Forks area. First, in 2014, when the administration of Governor Paul LePage and the office of then-Attorney General Janet Mills kept discussions about the CMP lease under wraps, and again in 2020, when an attorney hired by the Mills administration negotiated a new version of the lease, which was signed by the Bureau of Parks and Lands – without lawmakers' knowledge until after the fact.
“That is certainly the concern of the court, because of recognition that I think the court has made that the legislature is supposed to be a constitutional partner and have the final say in these lands,” Murphy said. “But it seems that there was a concerted effort to keep the Legislature in the dark, both times.”
A lawyer for the group of citizens, lawmakers from both major parties and conservation groups challenging the lease says that’s one of several reasons why the justice should throw it out and force the state to start the process again – this time with proper notice to the legislature and a formal determination about whether the lease would, in fact, substantially alter the lands in question.
In court, Attorneys for the state and CMP argued that a determination on substantial alteration was indeed made, albeit informally, by state land-use specialists, and that absent a specific statute or rule addressing public notice and specifics on how to make such a determination, state agencies met their constitutional requirements.
Murphy is expected to decide whether to send the lease back to the Bureau Parks and Lands to be revised, or to vacate it altogether. All involved expect the case to wind up in the state’s highest court.
In an email, BPL spokesman Jim Britt disputed Murphy’s comments.
“This Administration inherited an undervalued lease that did not sufficiently compensate the State of Maine for the use of the land. To rectify this, the Bureau of Parks and Lands renegotiated the lease to increase annual payments from less than $5,000 up to $65,000 with an agreement that CMP will pay more if an independent appraiser believes that is fair. The Attorney General’s office was informed of the renegotiations during the process and reviewed the amended lease before it was finalized to ensure that it met all legal requirements and standards. Furthermore, the allegation that there was a “concerted effort” to keep the Legislature in the dark is plainly false. It is standard practice for the Bureau of Parks and Lands to negotiate and renegotiate leases to ensure that the State is receiving the best value, and it has the legal authority to do so when there is not a substantial alteration in the use of the land,” he wrote.
“Additionally, the assertion that the Office of then-Attorney General Janet Mills 'kept the discussions about an earlier version of the CMP lease under wraps' is a patently inaccurate characterization. In 2014, the Bureau of Parks and Lands under the previous Administration determined that under the law it did not need legislative approval to negotiate the lease because it believed it did not meet the substantial alteration threshold, in part because the land already has an existing transmission line running through it. The Attorney General’s Office has said that if a lease does not constitute a substantial alteration of the use of the lands, the agency does not need to seek legislative approval.”