The opinion
STATE OF MAINE BUSINESS AND CONSUMER COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. BCD-CIV-2022-00031
i.
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CITY OF LEWISTON, )
)
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;
Plaintiff, )
)
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) ORDER DENYING DEFENDANT'S
v. ) MOTION TO DISMISS AND
) MOTION FOR JUDGMENT ON
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) THE PLEADINGS
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AUBURN WATER DISTRICT, )
)
Defendant, )
)
And )
)
.
INHABITANTS OF THE TOWN )
'OF TURNER, et al., )
"
)
Parties-inInterest. )
INTRODUCTION
Before the court is the Defendant Auburn Water District's (the "AWD") Motion to Dismiss
and Motion for Judgment on the Headings conceming Plaintifi' the City of Lewiston's
("Lewiston") Complaint for Declaratory Judgment in the above-captioned matter. The court heard
argument on AWD's motion on May 31, 2023. For the reasons discussed below,
AWD's motion
is denied.
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BACIiGROUND
The court accepts the following facts, as pled by Lewiston in its Complaint, as true and
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construes them in the light most favorable to Lewiston for the limited purpose of deciding AWD's
motion.
Lewiston supplies drinking water and water for other residential and commercial uses to
its residents through its utility the Water & Sewer Division of the LewistOn Public Works
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Department. (PL's Compl. 1['[[ 3-4.) AWD is the water utility that provides drinking water and
water for other uses from the local public water supply, Lake Auburn, to the City of Auburn and
the Town of Poland. (P1. 's Compl. {[117-8, 18.) It was chartered by the State. of Maine Legislature,
and it operates according to its charter and bylaws. (Pl.'s Compl. llll 5-6.)
On June 29, 1989, the Environmental Protection Agency ("EPA") published the Surface
|Watei' Treatment Rule pursuant to the Safe Drinking Water Act, which rule requires disinfection
and filtration for all public water systems that draw from waters that are under-the direct influence
of surface water (the"'Filtration Requirements"). (P1.'s Compl. 'll 25.) Systems with demonstrable
compliance with the rule's most stringent wate'r quality criteria could qualifil for avoidance
of its
Filtration Requirements and obtain a waiver. (P1.'s Compl. 1[ 26.)
The Maine Drinking Water Program notified Lewiston that the surface water of Lake
Auburn required filtration before June 19, 1992. (P1.'s Compl. 1] 27.) Lewiston believes that AWD
received the same netification. (PI.'s Compl. 1[ 28.) Compliance with the Filtration Requirements
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would cost the parties' ratepayers tens of millions of dollars in addition to annual operating costs.1
(P1.'s Compl. 11 29.) On August 14, 1989, Lewiston, through its water utility,
andAWD agreed to .
share the costs of a water quality study to determine the need for, cost and benefit of improved
[water' treatment, as well as. the availability of a waiver-exemption from the Filtration
l Requirements. (P133 Compl. ll 30.)
The engineering firm retained to lead the study recommended thatthe parties enter into an
interlocal agreement- regarding oversight and control of the watershed, that AWD adopt new
water quality and
bylaws, and that Lewiston and AWD make capital improvements .to improve
wrote to
reliability.. (PL's Compl. 1[ 31.) On March 21, 1991, the Maine Drinking Water' Program
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' with projected
During 1991, it was estimated that compliance would cost up to approximately $24,000,000,-
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additional annual operating costs between $1,500,000 and $2,000,000. (PL's Compl. 1H 29, 44f.)
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hewiston, copying AWD, and stated that "for a filtration waiver to be granted, it will take the
to assure the continuing success of watershed protection." (Pl.'s
leommi'tment of both communities
'Compl. 1] 32.)
'On August 27,*1991, AWD adopted the Bylav'vs for Protection ofthake Auburn. (Pl.'s
the Maine Drinking Water
ICOmpl. 1[ 34.) Shortly thereafter AWD submitted an application to
Program for an exemption to the Filtration Requirements. (PL's Compl. 1[ 35.)
The bylaws and
35d-
application each, in part, described the subject watershed and-its boundaries. (PL's- Compl. 1"]
6, 36a-b.) They also described AWD's powers and responsibilities flowing from its original
lcharter.
(PL's Compl. 1m 35 ac, 36c-e.) Around this same time, Lewiston submitted a separate but
identical application for the waiver. (Pl.'s Compl. 1! 37.) Each party's application'was approved
orr December 30, 1991, on the condition, among others, that each conduct watershed control
activities consistent with the EPA's avoidance requirements outlined in the application. (PL's
Compl. fl 3 8.)
On May 19, 1993, Lewiston, through its water utility, and AW]_) entered into a purchase
and sale agreement-(the "P&S Agreement"). (Pl.'s Compl. 11 40.) The P&S.Agreement quantified
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the area of the Watershed, and it acknowledged that land use activities within the watershed could
.compro'mise Lalre Aubuirn's water quality and the necessity of control
measures to abate such
impacts. (Pl.'s Compl. 1H] 40ab.) The P&_S Agreement also. memorialized (1) Lewiston's
that said
purchase, for $750,000,, of a one-half interest in AWD's land within the watershed, (2)
interest. was to be conveyed to the Lake Aubum Watershed Protection Commission, (3) that
Lewiston otherwise conveyed to said commission the entirety of its interest in lands within the
watershed, (4) that an additional $31,800 was paid by AWD to the commission,
and_ (5) that
Lewiston granted a tenyear lease for a water main at a below-market rate. (PL's Compl. 11 40c.)
Apart from'the "transactional content, the P858 Agreement also delineated commitments
Undertaken by the parties. Foremost and consistent with the Maine'Drinking Water Program's
guidance, the P&S Agreement Contemplated the parties' execution of an interlocal agreement.
l(Pl.'s Compl. 1] 40d.) The interlocal agreement would establish the Lake Auburn Watershed
Protection Commissidn. (PL's Compl. 1[,40d.) Moreover, the interlocal agreement would oblige
EAWD to use its charter authority to protect the Latte Auburn Watershed and to ensure that the
parties maintain their exemptions from the Filtration Requirements. (PL's Compl. 1i 40e.)
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On June 29, 1993, Lewiston, AWD, and Partyin-Interest the Town of Turner entered into'
the Interlocal Agreement for Lake Auburn "Watershed Protection (the "Basic Agreement"),
pursuant to the P853 Agreement and in accordance with 30-A M.R.S. §§
2201-2208 (1989). (PL's
Compl.- 1H] 10, 42.) The Basic Agreement created the Lake Auburn Watershed Protection
Commission, whichpwns approximately 1,600 acres of the local. Lake Auburn. watershed that
Poland. (PL's Compl. '[HI
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comprises much of the public water supply for Lewiston, Auburn, and
ill,' 13, 40c-d, 41, 44g-.h.). It also formally established. the total area of the watershed
and the:
parties' rights to use it to supply'drinking water. (PL's Compl. 1[ 44b-c.)
Regarding the-Filtration Requirements, the Basic Agreement.acknowledged.i that land use
within the
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rand, activities within the watershed could impact water purity; that land use controls
watershed are.therefore essential to securing and maintaining the exemption to the Filtration
Requirements; and that the parties' consumers will bear the .cost of compliance.
with the Filtration
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Requirements if an-exemptionitherefi'om is not obtained or maintained; (PL's "Compl. '[i 44d-f.)
also delegated the Lake Auburn Watershed Protection Commission a concturent authority to
enforce applicable laws andordinancesfor the purpose of preserving water purity throughout the
watershed. (Pl. 's Complt 1[ 44L). In delineating AWD..'s powers thereunder;a thelBasic Agreement
prdvides, "in relevant part:
"The [AWD] pledges,- covenants, and agrees,.. .to consider recommendations fiom
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the [Lake Auburn Watershed Protection Commission1 and also to exercise its
regulatory autho1ity over the Lake and watershed pursuant to its Charter and law
and to enact, amend, or repeal those lawful by-laws, regulations, orders, or
ordinances in such manner and to such extent as is required or advisable to control
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and protect the watershed or waters of Lake Auburn in order for both parties to
maintain their exemptions from filtration requirements under the surface water
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treatment rules adopted under the Safe Drinking Water Ac ."
Comp1.1[ 45; Ex. L § 7.)
1(Plfs
Nearly thirty years after execution of the Basic Agreement and various related.
agreements, on November 13, 2020, Auburn published a request for proposals
for an
Evaluation of Ordinances Applicable to the Protection of the Lake Auburn Watershed.
(PL's Compl. 11 50.) That request made no mention of the BasicAgreement. (PL's Compl.
if 52.) One initiative proposed in response to the request, and that was subsequently
the watershed's
adopted during March lof 2022 by Auburn's City Council, modified
boundaries and reduced its area. (PL's Compl. Till 58-63.) That modification to the
watershed was approved by AWD. (PL's Compl.1]1[ 64-67.)
A second proposed initiative involved revisionsI to Aubum's septic design standard
and adoption of portions-of the Maine Subsurface Wastewater Disposal, Rules. (Plfs
Compl. 1] 69.) In 2022, the Auburn Planning Board approved the proposed septic
ordinance, which permitted construction on new sites within the watershed where
construction wasnot permissible prior to the approval of the new septic ordinance. (PL's
Compl. iiii 69-70.)
. On April 15, 2022, the State of Maine Department of Environmental Protection
notified Lewiston by letter that, concerning the septic ordinance, "additional land use
controls and off-site mitigation would be needed to mitigate" new pollutants loading
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into Lake Auburn. (PL's Compl. 1] 71.) The Director of the Maine Drinking Water Program
'sent
a similar letter to Auburn. (Pl.'s Compl. '[[ 72.) Each of Lewiston and AWD were
1copied to each communication. (Pl.'s Compl. m] 71-72.)
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On March 31, 2022, a Lewiston City Administrator requested that AWD honor its
to Lewiston under the Basic Agreement to enact or amend governance and
|commitments
regulatory measures to control and protect the watershed or waters of Lake Auburn in order
for Lewiston and AWD bottl to maintain and benefit from their exemptions to the Filtration
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Requirements imposed by the Safe Drinking Water Act. (P1.'s Compl. 1] 74.).
The Plaintiif here only seeks the parties' rights and obligations under the Basic
Agreement. It does not seek damages or injunctive relief. (Pl. '3 Compl. 'H 81; Pl.'s Resp.
to Def.'s Mot. to Dismiss and for Mot. J. Pleadings, 6). The Prayer for Relief, in paragraphs
A, B, D, E, essentially requests that the court declare the parties' rights. (PL's Compl. 1m
A.-B, D-E.)_ only paragraph C appears to ask the court to find that AWD has breached the
Basic Agreement.2
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LEGAL STANDARD
A motion for_ judgment on the pleadings under Maine Rule of Civil Procedure 12(c) tests
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e legal sufficiency of the complaint}I Cunningham v. Haza, 538 A.2d 265, 267 (Me. 1988).
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When, as here, the defendant is the moving party the motion is treated as "nothing more than a
motion under M.R. Civ. P. i2(b)(6) to dismiss the complaint for' failure to state a claim upon which
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The court was not clear after oral argument whether the Plaintifi' continues to seek that relief and does not
counsel whether that is the case as it would
address it here. Plaintiffirshould inform the court and opposing
impact the course of any remaining discovery or trial.
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Generally, a. court may consider only the..pleadings on a motion. to dismiss. Est. of Robbins 1'7. Chebeague &
pumberl'and Land 7):, 2017 ME 17, 1] n.2,
2 154 A.3d [185 (citing Moody v. State' &
Liquor Lottery Camm'n, 2004
A.2d official documents central to the plaintifi's complaint, and
ME 20, iii 8-9, 843 43). However, public documents,
referred to therein may also be considered in a ruling on a motion to dismiss "without-converting [the]
documents
motion into a motion for summary judgment when the authenticity of such documents is notchallenged." Id.
Mooajl, 2004 ME 20, 1f 10. 843 A.2d 43)..
l(citing . 6
relief can be granted." Wawenoclr. LLC v. Dept of Transp., 2018 ME 83, 1| 4, 187 A.3d 609
(citation omitted). Hence, when reviewing the complaint, the court assumes the factual allegations
are'true, examines the complaint in the light most favorable to the plaintiff, and ascertains whether'
the complaint alleges the elements of a cause of action or facts entitling the plaintift' to relief on
legal theory. Id. (citation omitted).
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DISCUSSION
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Levviston's Complaint is limited to a single count and requests primarily declaratory relief.
(Pls.' Compl. ill 76-81.) Generally, 'it seeks declarations regarding the parties' respective rights
under the Basic Agreement and AWD'S duties flowing fi-om its charter and bylaws.
Notwithstanding the absence of any specific breach or other injury pled by Lewiston, the court is
authorized to grant declaratory relief before the occurrence of a breach of the parties' contract. See
M.R.S. 5955 (2022).
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Here, there is a justiciable dispute. The parties disagree whether the Basic Agreement
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ontains provisions that would impact AWD's ability to change the boundary of the watershed
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iserving Lake Auburn or allow changes to septic regulations.
The court finds that the Basic
EAgreement is ambiguous with respect to the existence and scope
of any contractual obligation it
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lplaces upon AWD. The parties identified a lot of facts that may impact whethei'
these events
implicate any obligation, if any, on AWD. Hence,- it willbe necessary to adduce facts to interpret
the Basic Agreement_ and establish the parties' relative rights and obligations with respect to
oversight of the Lake Auburn watershed and. preservation of the waiVerexemption from
the
Filtration Requirements:1 Given the existence of a dispute and Lewiston's statutory right to ask
the court to determine the right and obligations of the parties to a contract prior to a breach,
f'lhe court may also decline to decide the request for declaratory relief if any court order would not
"terminate the
or controversy giving rise to the proceeding" afier it hears the case. 14 M.R.S. § 595 8 (2022).
uncertainty
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however, the court concludes that Lewiston's Complaint pleads a cause of action for declaratory
relief sufficient to survive AWD's Motion to Dismiss and for Judgmeht on the Pleadings.
The parties should confer and submit a proposed scheduling order or request a conference
'with the court if necessary to inform the future course of these proceedings.
CONCLUSION
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Based on the foregoing, the entry will be: Defendant Auburn Water District's Motion to
Dismiss and Motion for Judgment on the Pleadings is DENIED.
So ordered.
The Clerlr is requested to enter this Order on the Docket, incorporating it by reference
pursuant to Maine Rule of Civil Procedure 79(a):
Date: 5/7 /Z'3 ,4'wzflJ/
Thomas R. McKeon
Justice, Business & Consumer Court
Entered on the docket: 06/09/2023