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Town lawyer: Petitioners' water ordinance illegal

By Ann Fisher, Reporter – The Reporter

SHAPLEIGH, ME (Jan 1): A proposed ordinance that would stop Poland Spring or any corporation from extracting water in Shapleigh should not be included on the town meeting warrant in March because portions are unconstitutional, according to the town attorney.

But in response, one architect of the petition to place the ordinance on the warrant said, if they have to, group members will resort to a civil suit to force a vote.

A petition with more than 200 signatures was submitted to the Board of Selectmen Dec. 16 in response to a water extraction ordinance up for a vote at the March town meeting. The Planning Board drew up the 13-plus page ordinance at the request of the selectmen after residents approved a 180-day moratorium on large-scale water extraction and shot down an article to approve well and aquifer testing by Poland Spring at a special town meeting in November.

The town meeting article submitted by citizen petition would ask residents to prohibit corporations from withdrawing water and selling it outside the town’s borders. Exemptions would include the town, nonprofit organizations or a utility or corporation providing water for town residents.

According to petitioners, the eight-section “Shapleigh Water Rights & Local Self-Government Warrant Article” asserts the rights of residents to have access to water resources and “asserts rights that protect the natural environment …”

Under the Civil Rights Enforcement section, the ordinance would also give residents the right to sue on behalf of “the natural communities within Shapleigh.”

But Ron Bourque, the town’s attorney, said in a Dec. 22 letter to selectmen that “natural communities” such as water do not enjoy rights accorded to people. He also took exception to the overall aim of the ordinance to ban water extraction completely.

Selectmen Bill Hayes and Mike Perro discussed Bourque’s legal opinion at a Dec. 23 selectmen’s meeting. Selectwoman Ruth Ham was recuperating from surgery and unable to attend.

“The proposed ordinance would ban, and criminalize, water extraction for commercial purposes,” said Bourque. “An outright ban on this use conflicts with (Maine state law) which allows the Department of Human Services to authorize the transport of water for commercial purposes beyond the boundaries of a municipality … The Board of Selectmen would be acting reasonably if they refused to place it on the Town Meeting warrant.”

But Shelly Gobeille, chairwoman of the opposition group Protecting Our Water and Wildlife Resources, disagrees with Bourque’s opinion.

“I don’t believe that’s right,” she said last week.

“Legally, they can’t keep it off the ballot,” said Gobeille, because enough valid signatures were submitted. “We’re going to pursue the legal matter as far as our signatures.”

Given Bourque’s interpretation, however, “I don’t see how we can include it on the warrant if it’s illegal,” said Hayes at the meeting.

Perro agreed, saying the proposed ordinance was written for the group by an Pennsylvania attorney who may not be familiar with Maine law.

Gobeille said the measure was not written by just any Pennsylvania lawyer. The attorney, Tom Lindsay, was the author of the Barnstead Ordinance in New Hampshire, which, she said, was the first state to pass a rights-based ordinance like the Shapleigh proposal.

“I’m not surprised” at the selectmen’s actions, said Gobeille. “If we have to, we’ll file a civil suit. People want it on the ballot. At least give them a chance to vote yes or no.”

Hayes said at the meeting that he realizes some Shapleigh residents want a chance to vote “up or down” on whether water extraction would be allowed in town.

But he and Perro both said the town can’t pass something that contradicts state law.

“An outright ban conflicts … with Maine statutes,” Hayes said. “In Maine, the people who own the land own the water under the land.”

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