STATE OF MAINE, JANET T. MILLS, ATTORNEY GENERAL, BUREAU OF PARKS AND LANDS, and LAND USE PLANNING COMMISSION, Plaintiffs
MOOSEHEAD MOUNTAIN RESORT and OFLC, INC., Defendants and CARMEN REBOZO FOUNDATION, INC., Party-in-Interest
DECISION AND ORDER
William R. Stokes, Justice.
matter is before the court on the motions of Defendant
Moosehead Mountain Resort (MMR) for judgment on the pleadings
and for summary judgment as to Counts II, III, IV and V of
the complaint. Party-in-Interest Carmen Rebozo Foundation,
Inc., has joined in the motion for summary judgment. The
Plaintiffs have informed the court that they are no longer
pursuing Count IV of the complaint alleging breach of
contract, and the court considers this cause of action
action was commenced by the Plaintiffs on August 1, 2016
with the filing of a five-count complaint seeking to enforce
what are described as "deed restrictions" and
"public servitudes" that allegedly burden the land
of MMR on Big Moose Mountain (f/k/a Big Squaw Mountain) in
Greenville. The land in question was formerly owned by the
State of Maine and was conveyed to MMR's predecessor in
title in 1986. The complaint also seeks monetary damages.
alleges that Defendants MMR and OFLC, Inc., conducted timber
harvesting within a General Development subdistrict without
first obtaining a permit from the Land Use Planning
Commission. Count I is not included in MMR's motions.
II alleges that MMR conducted timber harvesting in violation
of certain deed restrictions applicable to the land owned by
MMR, which were imposed for the benefit of the State of
III alleges that MMR has failed to comply with certain public
servitudes imposed on the property owned by MMR, including
that designated ski trails and lifts be subject to
"continued public use."
seeks damages on a theory of unjust enrichment.
filed a timely answer and counterclaim on August 25, 2016. In
its counterclaim MMR alleges that the deed restrictions do
not apply to it because they "do not run with the
December 27, 2017, MMR moved for summary judgment and for
judgment on the pleadings. The Plaintiffs filed their opposition
on February 28, 2018. Amicus Curiae Town of Greenville and
Moosehead Lake Region Economic Development Corporation filed
their joint opposition brief on March 26, 2018. MMR's
reply was filed on April 5, 2018. Oral argument on the
motions was held on April 6, 2018.
following undisputed factual description is based upon the
summary judgment record.
Moose Mountain (f/k/a Big Squaw Mountain) began operating as
a ski resort in 1963. Scott Paper Company purchased the ski
area in 1970 and operated it until approximately 1974. In
late 1974 the ski area was transferred to the Moosehead
Resort Corporation (MRC), which was wholly owned by the State
of Maine. In 1975 MRC conveyed the ski area to the State of
Maine and the Bureau of Parks and Recreation (n/k/a Bureau of
Parks and Lands).
State of Maine owned the ski area for over ten years. In May
1986 a request for proposals was issued and advertised for
the sale of the ski area and resort. Only one proposal was
submitted, from the Big Squaw Mountain Corporation (BSMC). On
October 17, 1986 then Governor Joseph E. Brennan approved
Financial Order 04350 F6 authorizing the Director of the
Bureau to convey the ski area and resort to BSMC. The
"Statement of Fact" accompanying the Financial
Order acknowledged that "[e]xtensive repair and
improvements of the resort facility are necessary to keep it
available to the public and assure its viability as an
attractive and safe resort, benefiting the people of
Financial Order described State policy at the time as
recognizing that private capital was "the most
appropriate and feasible means of assuring that the needed
repairs and improvements are made in the future."
Accordingly, it was deemed necessary that the property,
including the ski area and resort, would be held in private
ownership and that the State's conveyance of the property
(and an option to purchase additional property) "is
being done exclusively for public purposes."
sale to BSMC involved the payment to the State of Maine of
$300, 000 (well below its market value at the time of between
$3.5 million to $4 million). The buyer (BSMC) was required to
invest $700, 000 in improvements to the facility. Moreover,
the Financial Order provided:
The resort and ski area will be sold with restrictions on
timber harvesting to prevent waste, a requirement for
continued public use of the ski area, and a restriction
preventing subdivision and alienation of the shoreland parcel
on Moosehead Lake from the resort property.
Agreement to Purchase between the State of Maine and BSMC
dated November 5, 1986 recited that the deed to the "Ski
Area and Resort" would contain the
"restrictions" referred to above. The Release Deed,
also dated November 5, 1986, is at the center of this
litigation. The deed emphasizes that the conveyances of the
property and the options to BSMC were "done exclusively
for public purposes." To drive home this point, the deed
Without limiting the definition of 'public purposes,'
it is expressly understood that 'public purposes'
shall include the maintenance, expansion, and operation of
the Ski Area and Resort on the premises hereby conveyed, and
the construction of transient accommodations and vacation
homes for lease or sale.
deed conveyed the land, buildings and improvements as
described in Schedule A. The restrictions mentioned in the
Financial Order and Agreement to Purchase were described in
greater detail in the Release Deed as follows:
Timber shall not be harvested from parcels FIRST and SECOND,
hereby conveyed, except (1)where necessary for trails, lifts,
snow-making facilities, construction of transient
accommodations and vacation homes for lease or sale, and all
related improvements, including roadways, serving the same
and the Ski Area and resort, (2) for firewood or lumber for
such resort and improvements, and (3) for the harvest of dead
or dying timber and blowdowns.
This conveyance is conditioned upon the continued public use
of the Ski Area highlighted on attached Schedule B, which Ski
area includes only the ski trails and lift lines in existence
as of the date ...