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Bills repeal use of eminent domain in Maine

by Scott Thistle, State Politics Editor | The Maine Sun Journal

March 5, 2013

View Original Article.

AUGUSTA — A quiver of bills before the state Legislature’s Judiciary Committee make it nearly impossible for private companies to benefit from the state’s ability to take private lands for public use, including economic development.

One of the measures, LD 58, would ask voters to change the state’s constitution so the government couldn’t use its power to take lands for the public good and turn those lands over to private businesses.

“This bill does not propose to eliminate the use of eminent domain as some fear,” state Sen. Doug Thomas, R-Ripley, said. “Government would still be able to widen the road or use this power for another use as long as it was a public project.”

Thomas, the bill’s sponsor is also the sponsor of another measure, LD 165, which would prohibit the use of the power in conjunction with a public-private partnership aimed at creating a transportation facility.

Both the measures stem largely from concern over a proposed east-west highway project in northern and central Maine.

And while highway proponents, including Cianbro Corp. of Pittsfield,  have vowed eminent domain would not be used and that the road would be privately owned and financed, many landowners in the proposed project area still fear their lands will be taken, Thomas said.

Thomas said the project may not even be started for another 10 years.

“Who knows what happens over the next 10 years,” Thomas said. “Do we want property owners to live under this cloud for a decade?”

Some of those property owners were in attendance Tuesday to testify before the committee. Interests in the bills seemed substantial as the committee’s audience spilled over into two nearby committee rooms that were opened up by to accommodate the overflow.

Charles Peabody, the owner of Crab Apple Whitewater in the Forks, said he heard about the bills Tuesday morning and decided to attend the meeting.

He said his 30-year-old whitewater rafting business, including a restaurant, lodge, cabins and a hotel, employs 12 people year-round and more than 70 during the summer rafting season.

Partners with his son, Peabody said his hopes are to allow the business to continue but he fears there could be a time when his business is under the threat of eminent domain.

He said uncertainty about the proposed highway’s route has many people in the potential path nervous.

“I think a road taken by eminent domain for state purposes or for a state-funded or federally-funded project is a different story from a highway built for Canadian truckers to go east,” Peabody said. “This bypass would have to cross land that I own and allows me to do my business and I’m not interested in selling quite frankly and having the way I’ve done business for the last 30 years wiped out.”

Elaine Heuiser of Casco also spoke to the committee, urging them to support the bills offered by Thomas.  Quoting from a Supreme Court case, Heuiser said the committee needed to carefully consider what a public use is compared to public purpose.

“It’s not just putting in a library or road or whatever,” Heuiser said. “It’s taking private property for economic improvement whether or not it’s actually for the public.”

Roger Ek of Lee told the committee the story of Flagstaff Lake in Eustis and how eminent domain was used to create a hydropower dam at Long Falls on the Dead River.  Entire villages were taken by eminent domain and wiped out, Ek said.

“You people are out of here, get out of your homes, get out of your farms, shut down your sawmills and your general stores and town halls and your churches,” Ek said. “You’re gone, you’re out of here people and we are going to pay you what we want to pay you.”

Mark Armstrong, a licensed forester from Lisbon, said he’s worked on private land all over Maine since 1974.

“And whether you are a large landowner or a small landowner, people’s property is precious to them,” Armstrong said.

The committee also heard testimony on another bill, LD 311, that would prohibit the use of eminent domain for the creation of an energy infrastructure corridor, which has also been proposed as part of the east-west highway, but could also impact the development or expansion of power lines in Maine.

While many spoke in support of the bills only two people spoke in opposition during the more than three hours of hearing.

Jim Cohen, an attorney representing Bangor Hydro Electric Co. and Maine Public Service, said his clients were opposed to the infrastructure corridor bill. He also said he wasn’t sure the bill did what its supporters believed it would do.

He said Bangor Hydro had not used the powers of eminent domain since the 1970s and also noted the company could only do so after a power line project had been approved by the Public Utilities Commission.

Maine law allows for the creation of energy infrastructure corridors because the federal government said it would create the corridors if states did not, Cohen said.

He said the PUC only establishes a corridor to serve the purposes of keeping the lights on or ensuring that power can be delivered at an affordable rate.

“In order for an electric line to be established there is a tremendous amount of process,” Cohen said. “This bill does not effect, at all, that process by which an electric line is built, sited and whether or not eminent domain is used or not.”

Also speaking against the bills was Ann Mitchell on behalf of the Maine Municipal Association. She said the MMA’s 70-member legislative policy committee voted to oppose both LD 165 and LD 311.

She said current restrictions on the use of the power, “expressly and effectively protect its use for the purposes of developing road and utility infrastructure networks that are necessary for public welfare and safety and to support economic development.”

But Bob Celeste of Harrison said the Legislature was the only protection regular landowners had against corporate interests. “You are our protection against them,” Celeste told the committee. “If they wanted to come and take my land, I can’t pay a lawyer for the first two days, never mind what they can keep me tied up in court for – you guys are our protection.”

The committee will vote later this month on its recommendation on whether the full Legislature should pass the bills into law or not.


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