page last modified June 9, 2015   56550.

Legal standing

Water rights on Penobscot River

The East-West Corridor would cross most of Maine's major rivers, and its potential impact on them will likely be a factor in whether the Corridor project can proceed. The Penobscot River runs through the center of the State and has an expansive watershed. The section from Indian Island north to its source is part of the Penobscot Nation's Territory, but in a move to rescind the Penobscot Nation's rights to the River, Attorney General Janet Mills and the LePage administration recently declared that no part of the River is part of the Penobscot Indian Reservation. The State is also battling the federal Environmental Protection Agency over water quality in Indian Territory and resisting an order to clean up the Penobscot to meet the Penobscot's inherent right to sustenance fishing. A law suit to protect Penobscot Ancestral territory and fishing rights on the River (Penobscot Nation v. Mills) is being pursued. STEWC's steering committee has agreed to focus on the Penobscot River watershed and support of the Tribe as part of our strategy to stop the Corridor.

"The Historical Continuum"

by Maria Girouaud [148 kB]).

Maine's Sensible Transportation Policies Act

Maine has a well-reasoned legal foundation in its "Sensible Transportation Policies Act," including recent (2011) revisions. (See the Act, a handbook about its implementation, and further links on the Documents (PDFs) page under Legal Documents.)

It affirms policy that speaks against not only the statutory context for the East-West Corridor but for other transportation projects that might fall under the guise of a Public-Private Partnership (PPP). A few excerpts below show that support for this highway by any State officials is unjustified. Commissioner Gebhardt's public enthusiasm for Vigue's Highway and his public celebration of the legislature's direction for the state to spend $300k on a study of the roadway flies directly in the face of this policy.

In short, the Sensible Transportation Policies Act establishes that highway expansion is not the cornerstone of Maine's transportation policy for three principal reasons: (1) harm to the environment, (2) expanding dependence on foreign oil, and (3) the inefficiency of highways for moving goods and people. It says that a new highway can be considered only after all other possibilities have been examined and that all investments in infrastructure must be strategic and driven by consideration of public benefit---in particular by supporting economic expansion.

The main part of the act was adopted in 1991 and contains a clear framework for all transportation policy:

"2. Purposes and findings. The people of the State find that decisions regarding the State's transportation network are vital to the well-being of Maine citizens, to the economic health of the State and to the quality of life that the citizens treasure and seek to protect.

The people also find that these decisions have profound, long-lasting and sometimes detrimental impacts on the natural resources of the State, including its air quality, land and water.

The people further find that substantial portions of the state highway system are in disrepair and improvements to the State's roads and bridges are necessary to provide a safe, efficient, and adequate transportation network throughout the State.

The people further find that the State's transportation network is heavily dependent on foreign oil, that such reliance is detrimental to the health of the State's economy and that the health and long-term stability of the State's economy require increased reliance on more efficient forms of transportation.

The people further find that improvements to the transportation network are necessary to meet the diverse transportation needs of the people of the State, including rural and urban populations and the unique mobility requirements of the elderly and disabled.

The people further find that the decisions of state agencies regarding transportation needs and facilities are often made in isolation, without sufficient comprehensive planning and opportunity for meaningful public input and guidance.

"3. Transportation policy. It is the policy of the State that transportation planning decisions, capital investment decisions and project decisions must:

A. Minimize the harmful effects of transportation on public health and on air and water quality, land use and other natural resources; [RR 1991, c. 2, 88 (COR).]

B. Require that the full range of reasonable transportation alternatives be evaluated for all significant highway construction or reconstruction projects and give preference to transportation system management options, demand management strategies, improvements to the existing system, and other transportation modes before increasing highway capacity through road building activities; [RR 1991, c. 2, 88 (COR).]"

My further research on Maine's stautes and on other legal and widely accepted standards for "private roads" adds further certainty that

  1. There is no statutory authority for Vigue's "private highway" outside of the PPP. A private road can exist only for access by an owner, e.g., and specifically for forestry or other private uses or to serve a small group of owners who do not have direct access to public roads (e.g., for a subdivision). This is true not only for Maine statutes but is the common principal for "private roads." It is commonly understood that only the state or federal governmnet can own and operate a pubic thoroughfare outside of the very special circumstances of temporary ownership/control afforded through a PPP in exchange for publicly guaranteed private investment.
  2. There is no statutory authority for a private entity to use public air rights (except by statute muncipalities may lease air rights over state highway by specific permission of the State and the procedures attending air rights for interstate highways).

In other words, all the issues and concerns that thousands across the state have raised in connection with Vigue's E/W Highway are already official state policy by law, not by discretion of the Comissioner or even the Governor. Under law all public officials have a duty to uphold and further these principals.

And in light of this policy, a resolution directing the MDOT to invest no further resources or time in the E/W Highway is not even needed; all that is needed is a call for enforcement of what is already law, a course correction by MDOT to bring its own actions in compliance with statutory policy.

See also Rights-Based Ordinances

We, the citizens of Maine, love the place we call home. Our sense of place is what defines us. When it's gone, it's gone forever.