Downeast Coastal Press
September 19, 2006
Op-Ed
Environmentalists, Green Legislators and the Baldacci Administration Are Incrementally Stealing Our Land
The Baldacci administration is now demanding that private property along about 10 miles of Lubec shoreline be treated as "Resource Protection Zones" in which the state takes control of land 250 feet from the shore. Additional areas are targeted for more controls. Lubec town officials requested a meeting with the Department of Environmental Protection (DEP) after it began intimidating a Lubec property owner, using new state authority that neither town officials nor anyone else knew about. The controversy is now surfacing in other towns as well.
At the August 31 meeting in Lubec a nervous DEP spokesman said he was only a "messenger"; the "Legislature," he said, is responsible for the severe new restrictions now being imposed on private property owners by the Baldacci administration.
Yet no one can find any legislator who knew anything about this. Legislators knew about the controversial "vernal pool" part of new regulations controlling land around seasonal mud puddles – they scaled them back from what the DEP and the environmental lobby had tried to impose. But no one was aware that the DEP intended to use the new rules – Section 11 of Chapter 335 [pdf] in particular – to impose Resource Protection Zoning on residential private property based on an obscure reference to shorebirds [pdf].
Surely the DEP and the Baldacci administration had a responsibility to tell the legislature this since they knew that the significant rule changes were already controversial and required legislative approval as "major substantive rules." It appears that DEP was deliberately avoiding controversy in order to slip new powers through without opposition.
So it seems that the DEP is now trying to have it both ways: They didn't want the controversy revealed and debated before legislation passed and now that they got what they wanted they are claiming our local legislators are responsible for something they didn't know about.
One has to suspect that Natural Resources committee chairman Theodore Koffman (D–Bar Harbor) – together with his cohorts in Maine Audubon and Natural Resources Council of Maine (NRCM) – knew it all along. A state legislator told me that Koffman pushed through legislation authorizing major new DEP rules in the first session on behalf of NRCM, using his powers as Natural Resources Committee chairman, but that the bill was amended in the second session to scale back the controversial "vernal pool" regulations. The amendment passed almost unanimously because without it the new regulations would have been much worse and the enviro lobby was too powerful for legislators to prevent the new rules entirely. But no one noticed how section 11, unrelated to "vernal pools," could be used to harm private property owners.
Koffman is an Audubon "honorary trustee" and the NRCM credited him with "vot[ing] their preferred position 100 percent of the time" on legislation "most important" to it in 2004. Koffman is also actively involved with many other activist viro causes. Gov. Baldacci has appointed top viro lobbyists to high level positions in his administration and these groups work directly with their counterparts employed in state agencies. Land trust and other viro activists around the state began rhapsodizing on "vernal pools" coordinated with the drive for the new rules. Audubon and NRCM, along with local land trust activists, have been promoting controlling private property for "habitat" throughout rural Maine for several years and this is only one part of what they want. They failed in their initial repeated attempts at a sweeping Greenline park takeover several years ago but have been incrementally imposing Greenline controls piecemeal out of the public's view ever since.
New Maps – New Controls
New DEP GIS maps are now starting to circulate for Lubec and a few other towns – they are hard to get; DEP says they are "online" but not available to the public on the Web. Large blotches of red areas dominating the new maps depict the latest expansion of designated "coastal waterfowl/wading bird habitat." The red splotches obscure other boundaries for different targets.
Copies of an older map, "Lubec Significant Wildlife Habitats," with smaller out–of–date designations, were distributed at the Lubec meeting but were light copies literally unintelligible. But there are so many designations and boundaries of different colors on top of each other that no one could make sense of the color version anyway as it was briefly passed around.
Of immediate concern is a region whose boundaries are obscured by the red blotches in the GIS map: the "shorebird staging habit" where DEP is imposing Resource Protection Zoning on about 10 miles of residential Lubec shoreline. This zone was the controversy that led to the meeting. To even see this zone you need a third map, "Lubec Shorebird Areas," where you find revealed with brown boundaries the full extent: from the Campobello bridge to Quoddy Head, and then to Wallace Cove, with another few miles in northwest Lubec. (Light copies were distributed at the meeting but no one could tell what town it was, let alone what it meant.) The brown boundaries on this map do not include the 250–feet of upland Resource Protection Zone the DEP is now imposing so you have to add that. Comparing those boundaries with the Lubec tax maps shows about 150 mostly residential owners affected – so far.
DEP claimed that the regions of red splotches on the new GIS maps apply "only" to the shoreline and out into the water, not the upland: It affects marine operations like wharves, docks, weirs, moorings of lobster boats and drainage, but they have not yet said if or when they will expand their control upland for these regions or just what else they will do to restrict and control marine activities now and in the future. They have no written guidelines, only subjective authority to interfere.
They also have dark blue areas on the GIS map designating the upland version of "waterfowl wader habitat" that DEP says will be put into Resource Protection Zones later. There are also quarter–mile circles around designated eagles' nests for more control.
What does this splash of bureaucratic color, graphical obfuscation and ever–expanding boundaries mean up here in reality? DEP distributed at the Lubec meeting a two–page outline called "Essential Habitats and Significant Wildlife Habitats in Lubec" [pdf image]. (There are similar documents for other towns.) They state that these designations will be controlled as Resource Protection Zones. For the brown zone in particular the outline says,
"Shorebird Areas Outline shown in brown on maps
Additional 250 foot upland protection zone (not included on map)
Upland areas treated as Resource Protection (for now)"
For other areas the DEP outline says that "Shoreland Zoning rules require Resource Protection ... by July 2008."
After a couple of weeks of public controversy, DEP Commissioner David Littell now says,
"a group is putting out emails claiming the DEP is forcing Towns to rezone tidal habitat as Resource Protection back 250'. That's obviously inflammatory and more importantly it's untrue..."
I have no idea what group or emails he is talking about, but the above quotes came directly from the agency he oversees.
The Shoreline Zoning Guidelines describe a Resource Protection Zone as "severely limited residential and recreational uses may be allowable upon review" [emphasis added].
Upcoming new shoreland zoning restrictions and the political process that has been used to impose them are therefore related to the most recent DEP rule changes. In the meantime, where does DEP get the authority to "treat" the brown zones as Resource Protection Zone without such zones actually implemented in these areas? Why were the property owners not notified? Why were there no local public hearings on such drastic changes to the zoning laws?
Yet they have already put a real estate sale within a long stretch of homes in South Lubec into limbo by threatening that the land is unbuildable under their new powers. Inland Fisheries and Wildlife "recommended" to DEP in July that "no development be permitted within the 250–foot upland zone" for this parcel. The implications for everyone else are clear: They want the entire residential region controlled and managed as a wildlife preserve.
Meanwhile, if the potential new owner dares to proceed he will contend with costs over $1,500 to complete an application with well over a hundred pages of paperwork. Then there is a long wait for DEP to respond–depending on what they think is politically expedient. DEP says it isn't sure yet whether mowing the grass would be allowed in this region even if a home is allowed.
Eminent Domain
DEP is imposing these powers with no written standards, "playing it by ear" in accordance with what they think they can get away with. They acknowledged the lack of written rules at the meeting in Lubec: Not only is there no objective justification for these controls being imposed in the name of "science," there are no written standards for people to read to see what they can and cannot do. The DEP is imposing and threatening land–use prohibitions based on whatever someone in DEP says. What happened to the "rule of law" and not "rule by men"?
One suspects that DEP is deliberately vague in part because it wants arbitrary authority to do what it feels like as it goes along and in part because it wants the "flexibility" to control as much as it can while heading off takings claims under Lucas vs. South Carolina and other Supreme Court cases: The Court has said that property cannot be substantially taken through regulation prohibiting all practical use without compensation, i.e., such regulatory takings constitute eminent domain and must be paid for.
A DEP "Fact Sheet" [pdf image] says that if DEP issues a permit allowing an owner to use some part of his land within 250 feet of the shore "it may be necessary" for the owner to "compensate" the birds. But they say nothing about compensating landowners for taking their land.
They want to forcibly prevent people from using their own land within 250 feet of the shore, but know that if someone only owns 250 fet or less, then the regulations clearly mean a taking under the Constitution, so they say they will "work with" the landowner, i.e., tell him what he can use where (as little as they can get away with). But if you own more than 250 feet then they want to pretend they haven't taken anything when they prohibit use of your own property within 250 feet of the shoreline.
How could they ever put such an inequitable political standard into writing and claim it is based on the "scientific" requirements of the birds (which none of this is for anyway)? It is clearly political expedience for whatever they think they can get away with.
Two hundred and fifty feet is almost as long as a football field; prohibiting an owner's use of his land in such a large area on the shore clearly devalues the property to its owner both personally and financially. This should not be tolerated whether or not the state and the viros think they can finesse their agenda around the Constitution.
Ordinary people across the country are more than fed up with eminent domain imposed on behalf of special interests with political pull – with or without "compensation" (for the owner, not the birds). The Baldacci administration and the viros want neither to pay for what they take nor to have to acknowledge they are taking property from people. But everyone knows that as a practical matter this is environmentalist pressure groups and the state stealing our land.
Copyright © 2006 Erich Veyhl, All Rights Reserved
More on the “habitat” land control agenda for Maine: www.moosecove.com/propertyrights/index.shtml#habitat