Trask v. Public Utilities Comm.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 93
Docket:	PUC-99-14	
Argued:	June 7, 1999
Decided:	June 22, 1999	

Panel:WATHEN, C.J., and RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

GEORGE TRASK

v.

PUBLIC UTILITIES COMMISSION

WATHEN, C.J.

	[¶1]  George Trask appeals from a judgment of the Public Utilities
Commission granting the City of Gardiner and the Towns of West Gardiner,
Richmond, and Litchfield the right of first refusal to purchase the New Mills
Dam property.  Trask argues that the Commission erroneously interpreted
Chapter 691 of its Rules and that the Commission erroneously applied 35-A
M.R.S.A. § 6109 (Supp. 1998) instead of relying exclusively upon the Dam
Abandonment Act (38 M.R.S.A. §§ 901-909) (Pamph. 1998)).  Finding no
error, we affirm.
	[¶2]  The facts may be summarized as follows:  The New Mills Dam
(the "Dam") is located in Gardiner on the Cobbosseecontee Stream.  The
Dam was constructed in the 1840s to provide water to an adjacent mill. 
Pleasant Pond, part of the impoundment area of the Dam, which is abutted
by the City of Gardiner and the Towns of West Gardiner, Richmond, and
Litchfield, served as the primary water source of the Gardiner Water District
(the "District") until the 1950s.  At that time the construction of the Maine
Turnpike degraded the water quality requiring the construction of two
groundwater wells.  The District has used the two wells as the exclusive
source of water supply since 1980.
	[¶3]  In 1974 the District obtained the Dam from the City of
Gardiner, which had operated the Dam for nearly a century.  In 1982, the
District constructed a hydro-electric facility on the Dam site to generate
power.  The Dam operated under a power purchase contract with Central
Maine Power Company from 1983 to 1994.  In 1994 the contract was
bought out by CMP, the Dam's Federal Energy Regulatory Commission
("FERC") license was simultaneously surrendered, and the Dam was no
longer used to generate power.  Since the surrender of the FERC license,
the Dam has been used to maintain the water level of Pleasant Pond.  The
District no longer generates income from the Dam, but continues to incur
maintenance expenses.  
	[¶4]  In September 1997 the District initiated steps to abandon the
Dam pursuant to the Dam Abandonment Act, 38 M.R.S.A. §§ 901-909
(Pamph. 1998). Pursuant to the provisions of that Act, the District filed a
Notice of Intent to File with the Maine Department of Environmental
Protection (the "DEP") and provided notices to various state agencies and
other interested parties.  On October 2, 1997, the District filed a Petition
for Release from Dam Ownership or Water-Level Maintenance.  The filing of
this Petition triggered the 180-day period provided under the Dam
Abandonment Act.  During that period,  the District was required to consult
with municipalities, abutting landowners, lake associations, and various state
agencies to determine whether any of them wished to assume ownership. If
a new owner had not been found during the 180-day period, the DEP would
then have required the specified state agencies to assess the Dam's public
value to determine whether one of them should assume ownership of the
dam or whether the water should be released from the dam.  The 180-day
period was to expire on March 31, 1998.
	[¶5]  As the deadline approached, neither the property owners
abutting the impoundment area, the state agencies, nor any of the four
municipalities definitively offered to assume ownership of the Dam.{1} The
Commission noted, however, that the municipalities were nearing
completion of an interlocal agreement when, on March 27, 1998, the
District received George Trask's offer to purchase the Dam.  An emergency
meeting of the Board of Trustees of the District was held on March 29,
1998, at which the Board discussed and accepted Trask's offer.  Because the
District had found a prospective owner, it withdrew its Petition for Release
from Dam Ownership or Water-Level Maintenance. 
	[¶6] Mary-Ann MacMaster and others filed a complaint with the
Commission pursuant to 35-A M.R.S.A. § 1302.  The complaint requested
the Commission to investigate the transfer of the dam to Trask for various
reasons.  Relying on 35 M.R.S.A. § 6109, the Commission entered an order
stating, inter alia, that the "District's acceptance of the offer of Mr. George
Trask to purchase the New Mills Dam is subject to the rights of first refusal
held by the City of Gardiner, and the Towns of Litchfield, Richmond and
West Gardiner."  Trask appeals. 
	[¶7]  This case turns on the Commission's interpretation of Chapter
691 of its Rules and its interpretation of the interplay between the statute
providing for a sale of land by a consumer-owned water utility (35-A M.R.S.A.
§ 6109) and the Dam Abandonment Act (38 M.R.S.A. §§ 901-909).  Thus, we
review the Commission's decision for errors of law. See Town of Madison v.
Public Utils. Comm'n, 682 A.2d 231, 234 (Me. 1996) (citations omitted).
"The Commission's interpretation of a statute administered by it, while not
conclusive or binding on this court, will be given great deference and should
be upheld unless the statute plainly compels a contrary result." Id. (citation
omitted). When we construe a statute, we give effect to the Legislature's
intent.  See id. (citation omitted). "Intent is ordinarily gleaned from the
plain language of the statute itself.  Such plain meaning will be applied so
long as it does not lead to an absurd, illogical, or inconsistent result."  Id.
(citations omitted). 

I.  Flowage Rights 

	[¶8]  Trask first argues that the Commission committed an error of
law in applying Chapter 691 of its Rules implementing 35-A M.R.S.A. § 6109
by measuring flowage rights in terms of acreage.  Section 6109 was enacted
for the following purpose:

[to] govern the sale or transfer by a consumer-owned water
utility of land or property owned by that water utility for the
purposes of providing a source of supply, storing water or
protecting sources of supply or water storage, including
reservoirs, lakes, ponds, rivers and streams, land
surrounding or adjoining reservoirs, lakes, ponds, rivers or
streams, wetlands and watershed areas.

35-A M.R.S.A. § 6109 (Supp. 1998).  Section 6109 provides, inter alia, that
"[t]he municipality in which the land is located shall have the right of first
refusal to purchase any land that lies within that municipality's boundaries
and is offered for sale under this section.  That right is assignable by the
municipality." 35-A M.R.S.A. § 6109(5) (Supp. 1998).  Section 6109 also
expressly provides that the "commission may promulgate rules to
implement this section . . . ." 35-A M.R.S.A. § 6109(4) (Supp. 1998).  
	[¶9]  Chapter 691 adopted by the Commission defines the property
rights subject to section 6109 in the following terms:

Water resource land.  "Water resource land" means any land
or real property owned by a water utility for the purposes of
providing a source of supply, storing water or protecting
sources of supply or water storage, including reservoirs,
lakes, ponds, rivers or streams, wetlands and watershed
areas, and contains greater than five contiguous acres. 
"Water resource land" does not include any land on which a
utility has built a facility that is used exclusively for storing
water as part of that utility's transmission and distribution
system.

M.P.U.C. Reg. 65-407, ch. 691, § 1(E) (March 16, 1991) (emphasis added).
	[¶10]  In determining that the New Mills Dam qualified as "water
resource land" within the meaning of the rule, the Commission interpreted
the definition to include flowage rights.  With respect to the five-acre
threshold,  the Commission measured the rights in terms of the acreage of
land affected by the flowage.  The Dam itself, the property on which it sits,
and the areas included within two easements granted for access and egress
to and from the Dam constitute only .71 acres. The Commission found,
however, that the District proposed to transfer not only the Dam, but also
any water or flowage rights that it may possess and that accompany
operation of the Dam on Cobbosseecontee Stream. The Commission
measured the flowage rights in terms of acreage, finding that the surface
area of Pleasant Pond, part of the impoundment area of the Dam, measures
748 acres.{2}
	[¶11]  Trask argues that, because flowage rights are intangible and
have no independent physical existence, they cannot be measured in acres.
Accordingly, he argues that the Commission erred in determining that the
five-acre threshold was met.  We disagree.  
	[¶12]  In a recent case we defined flowage rights as the "private
right to operate a dam and flood [flow] the property of upstream waterfront
landowners." Dorey v. Estate of Spicer, 1998 ME 202, ¶ 9, 715 A.2d 182,
184. Flowage rights "are in the nature of an easement appurtenant,{3}
benefitting the mill site as dominant tenement and burdening the upstream
landowners, collectively, as servient tenement." Dorey v. Estate of Spicer,
1998 ME 202, ¶ 12, 715 A.2d 182, 185-86.  "'[A]n easement that is
appurtenant is incapable of existence separate and apart from the particular
messuage or land to which it is annexed." Id. (citations omitted).
	[¶13]  The Commission interpreted section 6109 and the
implementing rule to include the acreage of flowage rights for the following
reasons:  The Legislature's intent is clear from the language of the statute
itself.  Although not defined in section 6109, "land" is defined by statute in
the general words and phrases section as follows:  "'Land' or 'lands' include
lands and all tenements and hereditaments connected therewith, and all
rights thereto and interests therein." 1 M.R.S.A. § 72(10) (1989).  "Sale" is
defined by commission rules to include "an assignment of a property right, a
land lease of more than twenty years, a grant of an easement or any other
encumbrance of the land, whereby the utility gives up for consideration
rights to the use of a substantial part of the land surface." M.P.U.C. Reg. 65-
407, ch. 691, § 1(B) (March 16, 1991).  Because easements are included in
the definitions of "sale" and "land" and because the rule provides a minimum
threshold determined in acres, it is therefore necessary for the Commission
to measure easements in terms of acreage. Otherwise, based on Trask's
contention that an easement is immeasurable, no easement would fall within
the protection of the statute.  Such an interpretation would be illogical and
inconsistent with the purpose of the statute. 
	[¶14]  Moreover, the legislative history of section 6109 further
supports the Commission's interpretation of the legislative intent. The
section was enacted in 1990. The Statement of Fact states:

	The purpose of this bill is to protect the public interest
in valuable natural resource land and property that has been
acquired by water utilities to serve public purposes.  The bill
requires water utilities to maintain the natural values of land
acquired for public purposes and to ensure that such values
are maintained if the land is deeded to new owners. 

Statement of Fact, L.D. 1982 (114th Legis. 1990), as amended by Comm.
Amend. A to L.D. 1982, No. S-507 (114th Legis. 1990). 
	[¶15]  The Commission determined that inclusion of dams within
the purview of the statute was consistent with the purpose of the statute. It
noted, for example, the situation where a utility owns a dam and the
shorefront property around a lake that is an impoundment area for the dam. 
The Commission concluded it would be inconsistent for the statute to
ensure that the municipality possess the opportunity to preserve public
rights in the shorefront property owned by the water utility, but not in the
dam property.  Without the dam, the public value of the upstream shorefront
property would be diminished if the water were released.
	[¶16] Finally, a review of other jurisdictions demonstrates that
flowage rights have indeed been referred to in terms of acres.  See, e.g., 
Great Hill Lake, Inc. v. Caswell, 11 A.2d 396, 396-97 (Conn. 1940) ("plaintiff
has succeeded to the ownership which its predecessors in title had in fee to
seventeen acres of land, including that on which the dam is located,
together with flowage rights over some seventy-five acres"); City of Allegan v.
Iosco Land Co., 236 N.W. 863, 863 (Mich. 1931) ("project includes the
building of a dam and flowage of over 1,500 acres of land"); Skalicky v.
Friendship Electric Light & Power Co., 214 N.W. 388, 388 (Wisc. 1927)
("prior to 1915 about 3 acres of their said tract had been flowed by reason of
the maintenance of the 10-foot head, and that on such 3 acres 'a flowage
right has long existed . . . .'").  Because the Commission's interpretation is
reasonable and consistent with the language and purpose of the statute, we
find no error.	

II. Interplay Between Statutes

	[¶17]  Trask next contends that the Commission erred in applying
section 6109 instead of the Dam Abandonment Act exclusively. Trask argues
that a conflict exists between the two statutes and that the conflict is
particularly evident with respect to the right of first refusal that is required
by section 6109 but not by the Dam Abandonment Act.  He contends that,
because of the conflict, the Commission should have applied the rule of
statutory construction that the provisions of a more specific statute will be
given precedence over a more general statute. See South Portland Civil
Service Comm'n v. City of South Portland, 667 A.2d 599, 601 (Me. 1995)
(citation omitted).  
	[¶18] Contrary to Trask's contention, however, the Dam
Abandonment Act is not necessarily more specific than section 6109.  There
are differences, but the two statutes need not be read as mutually exclusive
and irreconcilable.   Although conflicting in some respects, the provisions
can be read in harmony, because they serve two distinct purposes. "We
consider 'the whole statutory scheme of which the section at issue forms a
part so that a harmonious result, presumably the intent of the Legislature,
may be achieved.'" Civil Service Comm'n v. City of South Portland, 667 A.2d
599, 601 (Me. 1995) (citation omitted). "We avoid a construction that leads
to inconsistency between two statutes." Id. (citation omitted).  Further,
"[a]mong competing interpretations of a statute, we adopt the interpretation
that avoids a result adverse to the public interest."  Id. (citation omitted).
	[¶19]  The Dam Abandonment Act was enacted in 1996.  The
purpose of the Act was to "provide[] a formal process through which a dam
owner may seek a new owner for the dam and provide[] for the issuance of a
water release order to the current dam owner if a new owner can not be
located for the dam."  Statement of Fact, Comm. Amend. A to L.D. 646, No.
S-484 (117th Legis. 1996). The Act provides a process for a dam owner to
abandon the dam if the owner cannot find a new owner to operate the dam,
with the preference being to locate a new owner. The Act provides that the
owner file a petition for release from dam ownership or water-level
maintenance and, within 180 days of filing that petition, the owner must
consult certain persons and entities to determine whether they wish to
assume ownership of the dam. See 38 M.R.S.A. §§ 901, 902 (Pamph. 1998).{4}
Those persons and entities are limited to the following:

A. Individuals and groups of persons, such as lake
associations, who own property abutting the dam site, the
water impounded by the dam or the waterway immediately
downstream from the dam;
B. The Commissioner of Inland Fisheries and Wildlife, the
Commissioner of Conservation and the Director of the Maine
Emergency Management Agency;
C. The municipal officers of any municipality and the county
commissioners of any unorganized area in which the dam or
impoundment is located; and
D.  Representatives of the tribal governments of Indian tribes
or nations in whose territory a dam or impoundment is
located.

38 M.R.S.A. § 902(3) (Pamph. 1998).

	[¶20]  The Act then provides that if during that 180-day period,
after consulting with these persons and entities and following the requisite
procedures, the owner cannot locate a new owner to continue to operate the
dam, the Department of Environmental Protection will notify the
Department of Inland Fisheries and Wildlife, the Department of Conservation
and the Maine Emergency Management Agency to assess the public value of
the dam and those agencies will report back to the DEP stating whether the
best interest of the public requires any of them to assume ownership of the
dam. See 38 M.R.S.A. § 903 (Pamph. 1998).  If not, then the DEP will issue a
notice and order to the dam owner to release the water from the dam.  See
38 M.R.S.A. §§ 904, 905 (Pamph. 1998). The Act does not contain any
procedure if a person other than those required to be consulted pursuant to
section 902 makes an offer or if more than one party expresses an interest
in assuming the property within the 180-day period.  The Act also does not
provide for the DEP to approve the new owner of the Dam.  As in this case, if
a new owner is located, the petition for abandonment may be withdrawn. 
	[¶21]  Section 6109, on the other hand, deals with the situation in
which a new owner is found and regulates the sale or transfer of water
resource land by a consumer-owned water utility to any person or entity.  It
provides for a right of first refusal to a municipality in order to protect the
public interest in the property.  Thus, the Commission determined that a
reasonable construction of the statutes would provide for the following
procedure when a consumer-owned water utility files a petition to abandon a
dam and a prospective owner is located:  the dam owner follows the
procedures set forth in the Dam Abandonment Act until such time as a
prospective buyer is located and from that point forward section 6109 and
the implementing rule applies.  This construction gives effect to all statutory
provisions and advances the purposes of both statutes.  The Commission's
interpretation is consistent with the purposes of the statutes, allows for both
statutes to be read harmoniously, and avoids a result adverse to the public
interest.  We find no error.
	The entry is:
					Judgment affirmed.
                                                                           
Attorney for appellant:

Mark B. LeDuc, Esq., (orally)
Preti, Flaherty, Beliveau, Pachios & Haley, LLC
P O Box 1058
Augusta, ME 04332-1058

Attorneys for appellees:

Gilbert W. Brewer, Esq., (orally)
Joanne Steneck, Esq.
Public Utilities Commission
18 state House Station
Augusta, ME 04333-0018

FOOTNOTES******************************** {1} . The Commission found that the District had reason to believe that the interest of the municipalities in the Dam was only as a buyer of last resort. {2} . The Commission also stated in its order that: "Additional evidence is presented in Appendix A, which analyzes the extent of flooding due to the New Mills Dam under the most conservative assumptions. Even with such assumptions, the area still exceeds the 5-acre threshold." {3} . "Easement appurtenant" is defined as "[a]n incorporeal right which is attached to a superior right and inheres in land to which it is attached and is in the nature of a covenant running with the land. " Black's law dictionary 457 (5th ed. 1979). {4} . The statute was amended in 1997 to allow a 180-day extension if the municipality applies and demonstrates a need in order to facilitate an agreement for municipal ownership or if the dam owner requests. P.L. 1997, ch. 789, § 1 (effective April 16, 1998) (applicable to petitions pending on or after January 1, 1998) (codified as 38 M.R.S.A. § 902(1-A) (Pamph. 1998)).