Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 1 of 28 UNITED STATES DISTRICT COURT DISTRICT OF MAINE

Transcription

1 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 1 of 28 UNITED STATES DISTRICT COURT DISTRICT OF MAINE SCARBOROUGH CITIZENS PROTECTING ) RESOURCES, an unincorporated association; ) DAVID T. PAUL, an individual; PAUL AUSTIN, ) an individual; and SUSAN DEWITT WILDER, an ) individual; ) ) Plaintiffs, ) COMPLAINT FOR INJUNCTIVE ) AND DECLARATORY RELIEF v. ) ) CIVIL ACTION NO. U.S. FISH AND WIDLIFE SERVICE; MARVIN ) MORIARTY, in his official capacity as Northeast ) Regional Director, U.S. Fish and Wildlife Service; ) JOHN E. BALDACCI, in his official capacity as ) Governor of Maine; ROLAND MARTIN, in his ) official capacity as Commissioner of the Maine ) Department of Inland Fisheries and Wildlife; ) DAVID P. LITTELL, in his official capacity as ) Commissioner of the Maine Department of ) Environmental Protection, ) ) Defendants. ) COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF For their complaint, Scarborough Citizens Protecting Resources ( Scarborough CPR ), an unincorporated association, David T. Paul, an individual, Paul Austin, an individual, and Susan Wilder, an individual, allege as follows: I. Introduction 1. The Eastern Trail in Scarborough, Maine is a former railroad line that has been converted into a rare and much-treasured multi-use public recreational trail that spans the length of the Town of Scarborough, and is part of a connected system of public trails that extends the

2 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 2 of 28 length of the Atlantic Seaboard. The portion of the Eastern Trail relevant to this litigation is approximately 32 acres (3.15 miles) owned by the State of Maine and is generally located between Black Point Road and Old Blue Point Road in Scarborough, Maine. (See Exhibit 1.) This property is part of the Scarborough Marsh Wildlife Management Area ( Scarborough Marsh WMA ). 2. The purpose of this litigation is to stop State Defendants Gov. Baldacci and Commissioners Martin and Littell (collectively as State Defendants ) from committing further violations of the Pittman-Robertson Wildlife Restoration Act of 1937 (the PR Act ) in connection with the conveyances of easements and permits authorizing non-wildlife and nonrecreational uses of this 32-acre segment of the Eastern Trail. Even though this section of the Eastern Trail was purchased with funds acquired under the PR Act and thus may only be used for wildlife purposes in perpetuity the State Defendants have executed easement deeds and issued permits authorizing development and non-wildlife uses of the Eastern Trail by individuals, developers, and municipal entities. Moreover, although both the State and Federal Defendants admit that these actions violate the PR Act, Federal Defendants U.S. Fish and Wildlife Service ( USFWS ) and USFWS Northeast Regional Director Marvin Moriarty have continued to allow the State of Maine to receive federal wildlife restoration grants under the PR Act in violation of federal law. II. Jurisdiction and Venue 3. This action arises under the Pittman-Robertson Wildlife Restoration Act of 1937, 16 U.S.C i, and the regulations promulgated thereunder, 50 C.F.R. Part 80; and the National Environmental Policy Act ( NEPA ), 42 U.S.C. 4321, et seq

3 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 3 of This court has subject matter jurisdiction over the claims set forth in this complaint by virtue of 28 U.S.C (federal question jurisdiction); 28 U.S.C. 1367(a) (supplemental jurisdiction); 28 U.S.C (declaratory judgment and further relief); 28 U.S.C (mandamus); 28 U.S.C (equal access to justice); and the Administrative Procedures Act ( APA ), 5 U.S.C. 701 et seq., (judicial review of agency actions). 5. Venue is appropriate in the District of Maine pursuant to 28 U.S.C. 1391(b). III. Parties 6. Plaintiff Scarborough Citizens Protecting Resources ( Scarborough CPR ) is an unincorporated association of citizens who live in the Scarborough, Maine, region; who have in the past regularly used the Eastern Trail and the Scarborough Marsh WMA for sporting, scientific, wildlife enjoyment, recreational, hunting, moral, spiritual, and/or aesthetic purposes; and who intend to continue to enjoy the Eastern Trail and the Scarborough Marsh WMA for these same purposes in the future. The challenged misuse of the Eastern Trail and the Scarborough Marsh WMA will deter and/or prevent the members of Scarborough CPR from using these public lands that were set aside in perpetuity for wildlife and conservation purposes. The challenged misuses will also harm wildlife and the values that the members of Scarborough CPR enjoy. 7. Plaintiff David T. Paul resides in Scarborough, Maine, and is a member of Scarborough CPR. Mr. Paul regularly purchases hunting licenses from the State of Maine. Mr. Paul has purchased 10 firearms subject to federal excise taxes in the past, and regularly purchases and intends to continue to purchase ammunition and other equipment subject to

4 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 4 of 28 federal excise taxes. Mr. Paul has purchased hunting licenses and paid federal excise taxes on hunting equipment with the expectation that the fees he has paid will be used solely for wildlife and conservation purposes. Mr. Paul has sporting, scientific, wildlife enjoyment, recreational, hunting, moral, spiritual, and/or aesthetic interests in the Eastern Trail and Scarborough Marsh WMA. Mr. Paul maintains two hunting blinds in the Scarborough Marsh WMA and has regularly used and will continue to use the Eastern Trail and the Scarborough Marsh WMA. The challenged misuse of the Eastern Trail and the Scarborough Marsh WMA will deter and/or prevent Mr. Paul from using these public lands that were set aside in perpetuity for wildlife and conservation purposes. The challenged misuses will also harm wildlife and the environmental values that Mr. Paul enjoys. 8. Plaintiff Paul Austin resides in Scarborough, Maine, and is a member of Scarborough CPR. Mr. Austin has purchased firearms that are subject to federal excise taxes in the past, and regularly purchases and intends to continue to purchase ammunition and other equipment subject to federal excise taxes. Mr. Austin has paid these federal excise taxes with the expectation that the fees he has paid will be used solely for wildlife and conservation purposes. Mr. Austin has sporting, scientific, wildlife enjoyment, recreational, moral, spiritual, and/or aesthetic interests in the Eastern Trail and Scarborough Marsh WMA. Mr. Austin has regularly used and will continue to use the Eastern Trail and the Scarborough Marsh WMA. The challenged misuse of the Eastern Trail and the Scarborough Marsh WMA will deter and/or prevent Mr. Austin from using these public lands that were set aside in perpetuity for wildlife and conservation purposes. The challenged misuses will also harm wildlife and the environmental values that Mr. Austin enjoys

5 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 5 of Plaintiff Susan DeWitt Wilder resides in Scarborough, Maine, and is a member of Scarborough CPR. Ms. Wilder regularly purchases and intends to continue to purchase ammunition and other equipment subject to federal excise taxes. Ms. Wilder has paid these federal excise taxes with the expectation that the fees she has paid will be used solely for wildlife and conservation purposes. Ms. Wilder has sporting, scientific, wildlife enjoyment, recreational, moral, spiritual, and/or aesthetic interests in the Eastern Trail and Scarborough Marsh WMA. Ms. Wilder has regularly used and will continue to use the Eastern Trail and the Scarborough Marsh WMA. The challenged misuse of the Eastern Trail and the Scarborough Marsh WMA will deter and/or prevent Ms. Wilder from using these public lands that were set aside in perpetuity for wildlife and conservation purposes. The challenged misuses will also harm wildlife and the environmental values that Ms. Wilder enjoys. 10. Defendant United States Fish and Wildlife Service is the federal agency charged with overseeing and managing Pittman-Robertson monies pursuant to the terms of the Pittman- Robertson Wildlife Restoration Act. USFWS is charged with ensuring that states, including Maine, use funds provided pursuant to the PR Act solely for wildlife and conservation purposes. 11. Defendant Marvin Moriarty is the USFWS Northeast Regional Director. In that capacity, Mr. Moriarty is the federal official responsible for properly implementing the PR Act and its implementing regulations in the northeastern states, including Maine. He is responsible for declaring a state in violation of the PR Act when the state misuses funds provided under the Act for wildlife purposes. Mr. Moriarty is sued in his official capacity. 12. Defendant John E. Baldacci is the Governor of Maine. In that capacity, he has the responsibility of ensuring that the state abides by the terms of the PR Act. Gov. Baldacci is sued in his official capacity

6 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 6 of Defendant Roland Martin is the Commissioner of the Maine Department of Inland Fisheries and Wildlife ( IFW ). In that capacity, he has the responsibility of ensuring that IFW abides by the terms of the PR Act and of properly managing and protecting state wildlife management areas, including the Scarborough WMA. Mr. Martin is sued in his official capacity. 14. Defendant David P. Littell is the Commissioner of the Maine Department of Environmental Protection ( DEP ). In that capacity, he has the responsibility of ensuring that the state abides by the terms of Maine Site Law of Development Act. Mr. Littell is sued in his official capacity. IV. Legal Background A. Pittman-Robertson Wildlife Restoration Act of The Pittman-Robertson Wildlife Restoration Act of 1937 was one of the nation s first environmental protection statutes and benefits wildlife and the public by ensuring that the money spent on purchase of state hunting licenses and the federal excise taxes paid on purchase of hunting and recreational equipment is used solely for wildlife conservation and public recreational purposes. The PR Act sets up a statutory and regulatory scheme that restricts the use of two separate pools of money. First, states that meet certain statutory criteria are entitled to receive federal matching grants ( PR funds or federal aid funds ) that can be used solely for federally approved wildlife purposes. This grant program is funded by federal excise taxes collected under the PR Act. Second, in order to initially qualify for PR funds, states must agree to prohibit the diversion of state hunting and fishing license revenues ( license funds or license revenues ) to any purpose other than administration of the state fish and wildlife agency. 16 U.S.C i

7 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 7 of Federal aid funds can only be used for wildlife purposes approved by the USFWS Regional Director, which may include purchase of areas of land or water for the protection and conservation of wildlife and habitat, and for public use of wildlife resources. 50 C.F.R. 80.5(a), 80.14(a). Real property acquired with federal aid funds ( PR property ) is vested in the state grantee upon acquisition, however it must continue to serve the purpose for which it was acquired or constructed. 50 C.F.R (b). 17. If PR property is used in a way that interferes with approved purposes, the violating activities must cease and any resulting adverse effects must be remedied. 50 C.F.R (b)(2). 18. A state fish and wildlife agency can convey or encumber PR property only upon (1) determination that the property is no longer useful for its original purposes, (2) prior approval of the USFWS Regional Director, and (3) replacement using non-federal aid funds not derived from license revenues with property of equal value at current market prices and with equal benefits as the original property or reimbursement to the granting agency of the current full market value of the interests conveyed. 50 C.F.R (b)(3); 40 C.F.R , If a state fish and wildlife agency loses management control of PR property, control must be fully restored to the fish and wildlife agency, or the property must be replaced using non-federal aid funds not derived from license revenues with property of equal value at current market prices and with equal wildlife benefits as the original property. A state may have up to three years from the date of notification by the Regional Director to acquire the replacement property before becoming ineligible for federal aid funds. 50 C.F.R (b)(1). 20. State license funds and property purchased with state license funds must be used solely for the administration of fish and wildlife agencies in perpetuity. 50 C.F.R This

8 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 8 of 28 prevents state legislatures from taking federal wildlife grants on the one hand, while raiding state wildlife budgets or property on the other. 21. If a state diverts state license funds to non-wildlife purposes, 50 C.F.R. 80.4(c), it becomes ineligible to receive any further federal aid funds until the state restores the diverted assets to approved purposes or reimburses the state wildlife agency from non-wildlife funds an amount equal to the current market value of the diverted assets. 50 C.F.R. 80.4(d). B. National Environmental Policy Act 22. Pursuant to the National Environmental Policy Act ( NEPA ), before approving the disposal of PR property, USFWS must determine whether the action will significantly affect the quality of the human environment. 42 U.S.C. 4332(C). 23. The NEPA review requires USFWS to take a hard look at the proposed action, alternatives, and impacts. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21 (1976); see also Sierra Club v. U.S. Army Corps of Eng., 701 F. 2d 1011, 1029 (2d Cir. 1983) (hard look doctrine requires permitting agency to set forth sufficient information for the general public to make an informed evaluation, and for the decisionmaker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action )(quotations and citations omitted). C. Maine Law 24. The Scarborough Marsh Wildlife Management Area, including the Eastern Trail property, is classified by the Maine Legislature as a state wildlife management area ( WMA )

9 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 9 of 28 and must be managed by the IFW Commissioner in accordance with statutorily specified principles of wildlife management. 12 M.R.S.A 10001(73), 12708(1)(A), 12708(1)(B)(39). 25. If it is determined that a property used as a WMA or for public access to inland or coastal waters is no longer needed for wildlife or public access purposes, [t]he Governor, on recommendation of the commissioner [of IFW], may sell and convey on behalf of the State the interests of the State in the unneeded property. 12 M.R.S.A 10109(4). 26. As of the adoption of Article IX, Section 23 of the Maine Constitution in 1994, certain designated lands, including the Scarborough Marsh WMA, may not be reduced or the uses of those lands substantially altered so as to frustrate the essential purposes for which the land is held by the State, except by a two-thirds vote of the Legislature. 12 M.R.S.A 598- A(1)(A). 27. The essential purposes of state WMAs are the protection, management and improvement of those properties for fish and wildlife habitat and propagation, hunting, trapping, fishing, recreation, propagation and harvesting of forest and other natural products and related purposes. 12 M.R.S.A 598(5). V. Factual Background A. Land Conveyances, Easements and Limited Use Agreements 28. On or about March 15, 1961, the State of Maine, through IFW, acquired approximately 32 acres of the abandoned Eastern Route of the Boston and Maine Railroad in the town of Scarborough. (Exhibit 2.) The acquired property, which is now known as the Eastern Trail, extended from the intersection of the Eastern Trail and Old Blue Point Road on the

10 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 10 of 28 western side to 1510 feet east of the intersection of the Eastern Trail and Black Point Road on the eastern side, a distance of roughly 3.15 miles with an average width of 66 feet. (Exhibit 3.) 29. On information and belief, Maine acquired the 32-acre Eastern Trail property with federal aid funds under grant number W-53-L-2 of the Pittman-Robertson Wildlife Restoration Grant Program. (Exhibits 4, 20, and 21.) 30. On information and belief, the federally approved original purpose of the acquisition of the Eastern Trail property was for waterfowl habitat, waterfowl management, and access to waterfowl hunting. (Exhibit 21.) 31. On or about Sept. 5, 1962, with prior approval of the Secretary of Interior, Maine Gov. John Reed conveyed an easement to the Town of Scarborough on that portion of the Eastern Trail beginning at Black Point Road and extending 1,290 feet in a southwesterly direction for the purposes of building an access road to a sewer treatment plant on adjacent town land, to install utilities along the easement route, and to cross the southern end of the easement with underground sewage pipelines. (Exhibit 5.) 32. On or about April 4, 1968, IFW Commissioner Ronald Speers, acting pursuant to an order of the Governor s Executive Council, conveyed two easements on the Eastern Trail to the Town of Scarborough. The first established an easement on the 750 linear feet of the Eastern Trail located northeast of Black Point Road for construction and maintenance of underground sanitary and storm sewage pipelines and to build a roadway for the limited purpose of constructing, inspecting and maintaining the underground pipelines and to access a pumping station. The second established an easement on the northern one half (a 33-foot strip) of that portion of the Eastern Trail extending from Black Point Road in a southwesterly direction for

11 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 11 of 28 2,030 feet for construction and maintenance of underground sanitary and storm sewage pipelines. (Exhibit 6.) 33. On or about Feb. 17, 1972, the State of Maine, by the Governor and Council, acting on the recommendation of the Commissioner of IFW and pursuant to 12 M.R.S.A 1959 (1972), re-granted to the Scarborough Sanitary District the two sewage pipeline easements originally conveyed by the State to Town of Scarborough in (Exhibit 7.) 34. On or about June 2, 1980, IFW Commissioner Glenn Manuel conveyed to the Town of Scarborough an easement on all of the Eastern Trail property extending northeast of Black Point Road (1,510 feet) for vehicle and pedestrian access, to build a roadway to be used as a town way, and the right to construct utilities deemed necessary for local use. (Exhibit 8.) 35. On or about August 9, 1982, IFW Commissioner Glenn Manuel conveyed to the Town of Scarborough an easement on a portion of the Eastern Trail and the Scarborough Marsh WMA at the intersection of Pine Point Road and the Eastern Trail for construction and maintenance of underground sanitary and storm sewage pipelines. (Exhibit 9.) 36. On or about September 6, 1984, IFW Commissioner Glenn Manuel conveyed to Rachael Demers and Donald Clark an easement on a portion of the Eastern Trail between Blue Point Road and Pine Point Road for ingress and egress of pedestrian and vehicle traffic. (Exhibit 10.) 37. On or about Oct. 7, 1988, IFW Commissioner William Vail conveyed to Evergreen Farms Associates an easement on that portion of the Eastern Trail extending from Black Point Road for 3,865 feet in a southwesterly direction to the southern boundary of the Evergreen Farms subdivision for the right to build and maintain underground sewage pipelines,

12 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 12 of 28 to build a gravel access road to the subdivision not to exceed 22 feet in width, and to allow ingress and egress for pedestrian and vehicle traffic. (Exhibit 11.) 38. On or about Nov. 21, 1996, Richard J. Sullivan conveyed to the State of Maine Department of Inland Fisheries and Wildlife a conservation easement to limit development on about 30-acres adjacent to and north of the Eastern Trail to no more than two single family homes and a single driveway curb cut on the Eastern Trail to access those homes. (Exhibit 12.) 39. On or about Dec. 2, 1996, IFW Commissioner Ray Owen conveyed an easement to the Town of Scarborough on that portion of the Eastern Trail extending from Black Point Road for 3,200 feet in a southwesterly direction to the southern boundary line of property owned by Richard J. Sullivan for the purpose of public ingress and egress for pedestrian and vehicular traffic. (Exhibit 13.) 40. On or about April 29, 2002, IFW Commissioner Lee Perry conveyed an easement to Richard J. Sullivan on that portion of the Eastern Trail extending from Black Point Road for 3,200 feet in a southwesterly direction to the southern boundary line of property owned by Sullivan for the purpose of ingress and egress for pedestrian and vehicular traffic and utilities. The April 29, 2002 easement deed states that the easement is appurtenant to the conservation easement conveyed by Sullivan to the State on Nov. 21, 1996 and preserves to Sullivan the right to build two single family homes accessed by a single driveway curb cut on the Eastern Trail. (Exhibit 14.) 41. On June 20, 2003, IFW Commissioner Roland Martin executed a limited use agreement with the Town of Scarborough and the Eastern Trail Management District providing for use of the Eastern Trail in Scarborough, from the South Portland town line to the Old Orchard Beach town line, as a multi-use pedestrian and bicycle trail. The agreement provided

13 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 13 of 28 that the portion of the Eastern Trail between Black Point Road and the bridge at the Dunstan River crossing shall be limited to pedestrian and non-motorized vehicle access only, except during the months of October, November, and December, when limited vehicular access shall be allowed for the sole purpose of hunting and trapping. (Exhibit 15.) 42. On or about August 18, 2005, IFW Commissioner Roland Martin conveyed an easement to Ballantyne Development, LLC, ( Ballantyne ) on that portion of the Eastern Trail extending from Black Point Road for 766 feet in a southwesterly direction for the purpose of vehicle, pedestrian, and utilities access to the proposed Eastern Village subdivision. The easement further granted Ballantyne the right to construct a street, curbing, sidewalks and landscaping within the easement, such street to be constructed to the Town of Scarborough s street acceptance standards, together with the obligation to maintain said street until and unless it is accepted by the Town as a public street. (Exhibit 16.) 43. As described in Ballantyne s application to Maine DEP for a Site Law of Development permit, the 152-unit Eastern Village development is a high-density residential subdivision on 54.3-acres, consisting of 90 single family homes, 28 apartments, 34 condominium townhouses, up to 5,000 square feet of commercial and office space, and eight open space lots. The application sought authority to construct two primary access roads to the subdivision, including a new road that would be built on the Eastern Trail property. The application further stated that Ballantyne had title to the Eastern Trail property based upon the 2005 access easement granted by IFW. (Exhibit 17-1.) 44. Pursuant to the Town of Scarborough ordinances, a development on a dead end street may include up to six units. Larger planned developments require adequate and safe primary access to the overall site. By granting Ballantyne the right to use the Eastern Trail as the

14 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 14 of 28 point of primary access to the Eastern Village development, the IFW easement enabled Ballantyne to substantially increase the size of the Eastern Village development. 45. On information and belief, as consideration for the 2005 easement from IFW, Ballantyne agreed to pay any expenses incurred by IFW in completing the transaction, to pay IFW for four signs on the Scarborough Marsh WMA, and to provide a sidewalk within the easement to compensate for pedestrian traffic displaced by construction of a public street on the Eastern Trail. 46. On information and belief, Ballantyne has not begun road construction on the Eastern Trail. 47. On information and belief, the USFWS Regional Director has not approved any of the above transactions, except the original 1962 sewage pipeline easement to the Town of Scarborough. 48. On information and belief, for all of the above transactions except the original 1962 sewage pipeline easement to the Town of Scarborough and the 2002 easement to Sullivan, IFW has not obtained replacement property that has equal market and wildlife values as the original interests conveyed; nor has it compensated the original granting agency for the current market value of the interests conveyed. B. Agency Actions 49. On or about October 24, 2007, Ballantyne obtained a Site Law of Development Act permit from the Maine DEP to construct the Eastern Village subdivision, which permit included, based upon the 2005 easement deed granted by IFW, authority to construct an access road on the Eastern Trail from Black Point Road extending 766 feet in a southwesterly direction

15 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 15 of 28 to the southern boundary of the Ballantyne property, to be built to conform to the Town of Scarborough s street acceptance standards. (Exhibits 16, 17-1, 17-2.) 50. On or about October 28, 2008, certain Plaintiffs provided by fax and letters to IFW Commissioner Martin and IFW staff regarding the grants of easements on the Eastern Trail to various individuals and developers, which Plaintiffs felt were invalid due to the lack of legislative approval and proper state-level signatures, which involved inadequate consideration, and which frustrated the essential purposes of the Scarborough Marsh WMA. 51. On or about Nov. 7, 2008, IFW informed the U.S. Fish and Wildlife Service that the Eastern Trail was PR property and that over the years since it was purchased IFW had granted several rights of way ( ROW ) over the parcel without the knowledge or approval of the USFWS. IFW further informed USFWS that it had failed to follow proper state procedures in granting certain easements, and that those specific easements may not be legal. (Exhibit 18.) 52. On December 23, 2008, USFWS informed IFW by that by granting ROW without the prior approval of USFWS and without compensating USFWS the current market value of the interest being conveyed, IFW had violated the requirements of the PR Act, 50 C.F.R Specifically, USFWS informed IFW that the grants to Sullivan (2002) and Ballantyne (2005) violated the PR Act and that, assuming IFW will need to re-grant this ROW with proper State-level signatures that it must first obtain federal approval and that it must compensate USFWS based upon current fair market value of the interest being conveyed. (Exhibit 19.) 53. In the December 23, to IFW, USFWS further stated that it had determined that the Eastern Trail property was still needed and useful for its original purpose,

16 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 16 of 28 and that any grant of a new ROW or re-grant of a ROW may not interfere with the original project purpose. (Exhibit 19.) 54. On information and belief, USFWS also informed IFW that it must analyze and disclose the impacts of any such transaction, pursuant to the requirements of NEPA and comply with the Endangered Species Act and the National Historic Preservation Act. 55. On January 29, 2009, IFW internal communications show that it had determined that the Sullivan (2002) and Ballantyne (2005) easements, and likely all other conveyances issued after 1994, were illegal for failure to obtain two-thirds legislative approval as required pursuant to 12 M.R.S.A 598-A(1)(A). (Exhibit 20.) 56. On January 7, 2010, USFWS re-confirmed that the 32-acre Eastern Trail purchase was made with federal aid funding under grant number W-53-L-2 of the Wildlife Restoration Grant Program. (Exhibit 21.) 57. On information and belief, IFW has sought to cure the violations of the PR Act on that portion of the Eastern Trail property located between Black Point Road and the Evergreen Farms subdivision access point by conveying fee title to this section of the Eastern Trail property to the Town of Scarborough. In a Memorandum of Understanding ( MOU ) IFW proposed between it and the Town of Scarborough, IFW has offered to convey to the town fee title to this portion of the Eastern Trail property, with certain restrictions on future uses. As consideration for the conveyance, IFW would credit the town $250,000, which equals the town s prior contribution from town land bond funds towards purchase of the 46.5-acre Gervais property added to the Scarborough Marsh WMA in (Exhibit 22.) 58. The town has refused to agree to IFW s proposed MOU. Pursuant to Scarborough town ordinances and voter-approved referendums, funds from the Scarborough Parks and

17 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 17 of 28 Conservation land bond account can only be used for specified conservation and recreation purposes and cannot be used as contribution towards purchase of a town road to be used for access to private homes and subdivisions. 59. On information and belief, since December 23, 2008, the State of Maine has continued to participate in the PR Wildlife Restoration Grant Program. VI. Claims for Relief A. First Claim for Relief Against the State and Federal Defendants: Violation of 50 C.F.R. 80.4(d), 80.14(b)(1). 60. Plaintiffs hereby incorporate by reference the general allegations and statements made in paragraphs 1 through 59 above as if set forth in full herein. 61. The 32-acre Eastern Trail property was purchased with federal aid funds from the Pittman-Robertson Act Wildlife Restoration Program and is therefore PR property. 62. On or about June 2, 1980, IFW Commissioner Glenn Manuel conveyed to the Town of Scarborough an easement on that portion of the Eastern Trail property extending northeast from Black Point road for vehicle and pedestrian access, to build a roadway to be used as a town way, and the right to construct utilities deemed necessary for local use. 63. The Town of Scarborough thereafter constructed a public roadway on the portion of the Eastern Trail extending northeast from Black Point Road; the roadway was accepted as a public street by the Town of Scarborough, was renamed Eastern Road, and thereby passed from the management control of IFW. 64. By granting the 1980 easement to the Town of Scarborough and allowing all of the Eastern Trail property northeast of Black Point Road to become a Scarborough town street,

18 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 18 of 28 IFW has lost management control of PR property (or in the alternative that state license revenues were used in the purchase, diverted state license funds), in violation of the PR Act and its implementing regulations. Since being made aware of the violation in 2008, IFW has failed to fully regain control and remedy any adverse effects to the PR property or to provide replacement property with equal market and wildlife values and is therefore in continuing violation of the PR Act and its implementing regulations. 65. USFWS has an absolute mandatory duty to notify the State of Maine that it will become ineligible from participating in the PR Wildlife Restoration Grant Program within three years unless the state regains full management control of the entire Eastern Trail or provides replacement property using non-federal funds not derived from license revenues that is of equivalent value at current market prices and with equal benefits as the original property. 50 C.F.R. 80.4(d), 80.14(b)(1). 66. The Federal Defendants failure to notify the State of Maine that it has three years to cure this violation of the PR Act more than 30 years after IFW lost management control of the portion of the Eastern Trail northeast of Black Point Road and almost two years after the violation was discovered is not in accordance with law and is agency action unlawfully withheld and unreasonably delayed under 5 U.S.C B. Second Claim for Relief Against the State and Federal Defendants: Violation of 50 C.F.R (b)(3). 67. Plaintiffs hereby incorporate by reference the general allegations and statements made in paragraphs 1 through 66 above as if set forth in full herein. 68. In each of the following transactions, IFW has violated and continues to violate 50 C.F.R (b)(3) and 43 C.F.R , , by encumbering the Eastern Trail,

19 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 19 of 28 which is PR property, without obtaining the prior approval of USFWS and/or without providing replacement property using non-federal funds not derived from license revenues that has equal market and wildlife values as the original property or without compensating the awarding agency for the current market value of each interest in PR property that has been disposed of by the state: a sewage pipeline easement to the Town of Scarborough, b sewage pipeline easement to the Scarborough Sanitary District, c easement for utilities and a town way to the Town of Scarborough, d sewage pipeline easement to the Town of Scarborough, e access easement to Rachael Demers and Donald Clark, f access easement to Evergreen Farms Association, g access easement to the Town of Scarborough, and h access easement to Richard J. Sullivan. 69. USFWS has an absolute mandatory duty to prevent the State of Maine from participating in the PR Wildlife Restoration Grant Program until the state provides replacement property using non-federal funds not derived from license revenues that is of equivalent value at current market prices and with equal benefits as the original property, or compensates the awarding agency for the current fair market value of each interest in PR property that has been disposed of by the state. 50 C.F.R (b)(3), 43 C.F.R. 1271(c)(1). 70. The Federal Defendants failure to prevent the State of Maine from further participation in the PR Wildlife Restoration Grant Program 40 years after the first violation and almost two years after the violations were discovered is not in accordance with law and is agency action unlawfully withheld and unreasonably delayed under 5 U.S.C

20 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 20 of 28 C. Third Claim for Relief Against the State Defendants: Violation of Maine Laws. 71. Plaintiffs hereby incorporate by reference the general allegations and statements made in paragraphs 1 through 70 above as if set forth in full herein. 72. In 2003, IFW executed an agreement requiring that use of that portion of the Eastern Trail located between Black Point Road southwest to the Dunstan River bridge should be restricted to pedestrian and non-motorized access only, except for limited vehicular access for hunting and trapping during the months of October, November, and December. 73. On or about August 18, 2005, IFW Commissioner Roland Martin conveyed an easement to Ballantyne Development, LLC, on that portion of the Eastern Trail extending from Black Point Road for 766 feet in a southwesterly direction for the purpose of vehicle, pedestrian, and utilities access to a proposed 51-acre mixed use development consisting of more than 150 residential units and 5,000 square feet of commercial and office space. The easement granted Ballantyne the right to construct a street, curbing, sidewalks and landscaping within the easement, such street to be constructed to the Town of Scarborough s street acceptance standards, together with the obligation to maintain said street until and unless it is accepted by the Town as a public street. 74. IFW Commissioner Martin executed the 2005 easement to Ballantyne without obtaining two-thirds legislative approval. 75. The 2005 Ballantyne easement deed is legally invalid and unenforceable because it was not executed by the Governor or with the Governor s express written authority as required by 12 M.R.S.A 10109(4). 76. The 2005 Ballantyne easement deed is legally invalid and unenforceable because it reduced the state s interests in designated lands without the approval of two-thirds of the

21 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 21 of 28 Maine Legislature as required by the Maine Constitution Article IX, Section 23 and 5 M.R.S.A 598-A. 77. The 2005 Ballantyne easement deed is legally invalid and unenforceable because it substantially alters and frustrates the essential purpose of the Scarborough Marsh WMA without the approval of two-thirds of the Maine Legislature as required by the Maine Constitution Article IX, Section 23 and 5 M.R.S.A 598-A. 78. The 2007 Site Law of Development Act permit issued by Maine DEP to Ballantyne is invalid with respect to the authorization to construct an access road on the Eastern Trail, because the developer does not have a legally valid and enforceable right, title or interest in the Eastern Trail. See Maine DEP rules, C.M.R. ch. 372, 9, 12(E) (under the Site Law of Development, a permittee must have and must continuously retain title, right or interest in all property to be developed). D. Fourth Claim for Relief Against the State and Federal Defendants: Violation of 50 C.F.R (b)(2). 79. The fourth claim for relief is stated in the alternative to the third claim for relief. Plaintiffs hereby incorporate by reference the general allegations and statements made in paragraphs 1 through 78 above as if set forth in full herein. 80. In 2003, IFW executed an agreement requiring that use of that portion of the Eastern Trail located between Black Point Road southwest to the Dunstan River bridge should be restricted to pedestrian and non-motorized access only, except for limited vehicular access for hunting and trapping during the months of October, November, and December

22 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 22 of Both IFW and USFWS have determined that the portion of the Eastern Trail located southwest of Black Point Road is needed and useful for its original project purposes to protect wildlife habitat and to provide public access to the Scarborough Marsh WMA. 82. On or about August 18, 2005, IFW Commissioner Roland Martin conveyed an easement to Ballantyne Development, LLC, on that portion of the Eastern Trail extending from Black Point Road for 766 feet in a southwesterly direction for the purpose of vehicle, pedestrian, and utilities access to a proposed 51-acre mixed use development consisting of more than 150 residential units and 5,000 square feet of commercial and office space. The easement granted Ballantyne the right to construct a street, curbing, sidewalks and landscaping within the easement, such street to be constructed to the Town of Scarborough s street acceptance standards, together with the obligation to maintain said street until and unless it is accepted by the Town as a public street. 83. If the 2005 Ballantyne access easement deed and the 2007 DEP Site Law of Development Act are found to be legally valid and enforceable, then the 2005 easement to Ballantyne would violate 50 C.F.R (b)(2) by interfering with the accomplishment of the Eastern Trail s federally-approved purposes by allowing a 766-foot section of the Eastern Trail to become a town street that provides year-round vehicular access to a 150-plus unit mixed-use residential and commercial subdivision, with the attendant traffic and other environmental impacts such subdivision would create. 84. If the 2005 Ballantyne access easement deed and the 2007 DEP Site Law of Development Act are found to be legally valid and enforceable, then USFWS has an absolute mandatory duty under 50 C.F.R (b)(2) to order that use of the Eastern Trail as a public

23 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 23 of 28 street and access road to the Eastern Village subdivision cease and any adverse effect from such use be remedied. 85. If the 2005 Ballantyne access easement deed and the 2007 DEP Site Law of Development Act are found to be legally valid and enforceable, and use of the Eastern Trail as an access road to the Eastern Village subdivision is found to not interfere with the accomplishment of the original purposes of the Eastern Trail property, then by encumbering the Eastern Trail, which is PR property, without obtaining the approval of or providing replacement property or adequate fair market compensation to USFWS (the original granting agency), IFW has violated 50 C.F.R and 43 C.F.R , If the 2005 Ballantyne access easement deed and the 2007 DEP Site Law of Development Act are found to be legally valid and enforceable, and use of the Eastern Trail as an access road to the Eastern Village subdivision is found to not interfere with the accomplishment of the original purposes of the Eastern Trail property, then USFWS has an absolute mandatory duty to prevent the State of Maine from participating in the PR Wildlife Restoration Grant Program until the state provides replacement property using non-federal funds not derived from license revenues that is of equivalent value at current market prices and with equal benefits as the original property, or compensates the awarding agency for the current fair market value of each interest in PR property that has been disposed of by the state. 50 C.F.R (b)(3), 43 C.F.R. 1271(c)(1). 87. If the 2005 Ballantyne access easement deed and the 2007 DEP Site Law of Development Act are found to be legally valid and enforceable, then the Federal Defendants failure to order activities that interfere with the Eastern Trail s federal approved purposes to cease and any adverse effect remedied, and/or Federal Defendants failure to prevent the State of

24 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 24 of 28 Maine from further participation in the PR Wildlife Restoration Grant Program is not in accordance with law and is agency action unlawfully withheld and unreasonably delayed under 5 U.S.C E. Fifth Claim for Relief Against the All Defendants: Violation of the National Environmental Policy Act. 88. Plaintiffs hereby incorporate by reference the general allegations and statements made in paragraphs 1 through 87 above as if set forth in full herein. 89. In conveying the 2005 easement to Ballantyne, which required federal approval, State and Federal Defendants violated the National Environmental Policy Act by encumbering the Eastern Trail without first taking a hard look at whether the conveyance will significantly affect the quality of the human environment. VII. Prayer for Relief WHEREFORE, Plaintiffs Scarborough CPR, Paul, Austin, and Wilder pray for the following relief: 1. That this Court declare that, for each of the following transactions, the State Defendants unlawfully encumbered PR property and permitted use of PR property for nonwildlife purposes in violation of 50 C.F.R and 43 C.F.R , : a sewage pipeline easement to the Town of Scarborough, b sewage pipeline easement to the Scarborough Sanitary District, c easement for utilities and a town way to the Town of Scarborough, d sewage pipeline easement to the Town of Scarborough,

25 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 25 of 28 e access easement to Rachael Demers and Donald Clark, f access easement to Evergreen Farms Association, g access easement to the Town of Scarborough, and the h access easement to Richard J. Sullivan. 2. That, for each of the transactions listed in paragraph 1 above, this Court enjoin State Defendants from continuing to violate the PR Act and order State Defendants to cure those violations consistent with the requirements of 50 C.F.R and 43 C.F.R , That this Court declare that the 2005 easement to Ballantyne Development, LLC, is null and void and in violation of Maine law because it was not executed by the Governor as required by 12 M.R.S.A 598-A and/or because it was not approved by two-thirds of the Maine Legislature, or, in the alternative, that this court declare that by issuing the 2005 access easement to Ballantyne Development, LLC, State Defendants have: a. Unlawfully allowed the Eastern Trail property to be used for purposes that interfere with the accomplishment of the original project purposes approved by the USFWS Wildlife Restoration program, b. Unlawfully encumbered PR property and permitted use of PR property for nonwildlife purposes in violation of 50 C.F.R (a) and 43 C.F.R , , and c. Violated federal law by failing to provide adequate replacement property with equal market and wildlife values or to compensate the original granting agency with the current market value of the interests unlawfully conveyed in the Ballantyne easement

26 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 26 of That, if the Court finds that the 2005 easement to Ballantyne Development LLC is null and void, this Court enjoin State Defendant DEP Commissioner Littell from upholding the Site Law of Development Act permit authorizing Ballantyne Development, LLC to construct a public street on a portion of the Eastern Trail, or, in the alternative, if the Court finds that the 2005 access easement to Ballantyne Development LLC is valid, this Court order State Defendants to comply with 50 C.F.R (b) by ceasing activities that interfere with the Eastern Trail s approved purposes and remedying any adverse effects, and, for activities that may lawfully continue, providing adequate replacement property with equal market and wildlife values or compensating the original granting agency with the current market value of the interests unlawfully conveyed in the Ballantyne easement 5. That this Court enjoin State Defendant IFW Commissioner Martin and Governor Baldacci from granting or re-granting any interest in the Eastern Trail property unless and until: a. The transaction is approved by USFWS Regional Director, b. The State Defendants and USFWS comply with the National Environmental Policy Act, the Endangered Species Act, and the National Historic Preservation Act, c. The State purchases replacement property of equal value at current market prices and with equal benefits as the original property or compensates the original granting agency the current market value of the interests being conveyed, d. The Maine Legislature approves the transaction by a two-thirds vote, and e. The Governor executes the deed. 6. That this Court order the Federal Defendants to declare that the State of Maine is ineligible to participate in the Wildlife and Sport Fish Restoration Program or to receive funding

27 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 27 of 28 from these programs until the state ceases uses that interfere with the accomplishment of approved project purposes and remedies any adverse effects from those uses, 50 C.F.R (b)(2); and replaces the current fair market value of each of the interests in the Eastern Trail conveyed by the state in violation of 50 C.F.R and 43 C.F.R , That Plaintiffs be granted the costs of this suit and attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412, and other applicable law. 8. That Plaintiffs be granted such other and further relief as the Court deems appropriate. Respectfully Submitted, July 28, 2010 By: /s/ Stephen F. Hinchman Stephen F. Hinchman, Esq., counsel for Scarborough CPR, David T. Paul, Paul Austin, and Susan DeWitt Wilder Law Offices of Stephen F. Hinchman 537 Fosters Point Road West Bath, ME SteveHinchman@gmail.com

28 Case 2:10-cv DBH Document 1 Filed 07/28/10 Page 28 of 28 Scarborough Citizens Protecting Wildlife v. U.S. Fish and Wildlife Service List of Exhibits Attached to Plaintiffs Complaint Exhibit 1 Maps and Google Earth Images of the Eastern Trail Property. Exhibit Deed of Eastern Trail Property from B & M Railroad to Maine IFW. Exhibit Survey attached to Deed from B & M Railroad to Maine IFW. Exhibit 4 Nov. 7, 2008, 3:27 pm from Vaugh Douglas, USFWS to John Pratte, IFW. Exhibit Easement Deed from Maine to Town of Scarborough. Exhibit Easement Deed from Maine to Town of Scarborough. Exhibit Easement Deed from Maine to Scarborough Sanitary District. Exhibit Easement Deed from Maine IFW to Town of Scarborough. Exhibit Easement Deed from Maine IFW to Town of Scarborough. Exhibit Easement Deed from Maine IFW to Demers and Clark. Exhibit Easement Deed from Maine IFW to Evergreen Farms Associates. Exhibit Easement Deed from Sullivan to Maine IFW. Exhibit Easement Deed from Maine IFW to Town of Scarborough. Exhibit Easement Deed from Maine IFW to Richard Sullivan. Exhibit Limited Use Agreement between Maine IFW and Town of Scarborough/Eastern Trail Management District. Exhibit Easement Deed from Maine IFW to Ballantyne Development, LLC. Exhibit 17-1 Excerpts of Ballantyne Development Site Law of Development Application to build the Eastern Village Subdivision. Exhibit 17-2 Maine Department of Environmental Protection Site Law of Development Permit for Ballantyne Development to build the Eastern Village Subdivision. Exhibit 18 Nov. 7, 2008, 2:54 pm from Vaugh Douglas, USFWS to John Pratte, IFW. Exhibit 19 Dec. 23, from Collen Sculley, USFWS to John Pratte, IFW. Exhibit 20 Jan. 29, from John Pratte, IFW to various IFW employees and IFW attorney. Exhibit 21 Jan. 7, from Colleen Sculley, USFWS to John Pratte IFW. Exhibit 22 March 2010 DRAFT Memorandum of Understanding between Maine IFW and the Town of Scarborough