MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2022 ME	58

Docket: BCD-21-257

Argued: May	10,	2022

Decided: November	29,	2022

Panel: STANFILL,	C.J.,	JABAR	and HORTON,	JJ.,	CLIFFORD,	A.R.J. and	HUMPHREY, A.R.J.*

RUSSELL	BLACK	et	al.

v.

BUREAU	OF	PARKS	AND	LANDS et	al.

PER	CURIAM

[¶1]	 NECEC	 Transmission	 LLC, Central	Maine	 Power	 Co.	 (collectively,

CMP1),	 and	 the	 Bureau	 of	 Parks	 and	 Lands	 appeal	 from	 a	 judgment	 of	 the	

Business	and	Consumer	Docket	(Murphy,	J.)	entered	in	favor	of	the	plaintiffs2

(collectively	Black),	vacating the	Bureau’s	lease	of	public	reserved	land	to	CMP	

for	construction	of	a	high-capacity	transmission	line.		Black	cross-appeals	from	

*		Justice	Humphrey	sat	at	oral	argument	and	participated	in	the	initial	conference	while	he	was	

an	Associate	 Justice	and,	as	directed	and	assigned	by	the	Chief	 Justice,	is	now	participating	in	this	

appeal	as	an	Active	Retired	Justice.

1		As	did	the	trial	court,	we	refer	to	defendant-appellants	Central	Maine	Power	Co.	and	NECEC	

Transmission	LLC	collectively	as	“CMP”	for	the	sake	of	consistency	with	prior	orders	in	this	case.		

2		The	plaintiff-appellees are	Senator	Russell	Black,	Senator	Richard	A.	Bennett,	former	Senator	

Thomas B. Saviello,	 former	 Representative	 Kent	 Ackley,	 former	 Representative	 Seth	 Berry,	

Representative	 Chad	 Grignon,	 former	 Representative	 Denise	 Harlow,	 Representative	 Margaret	

O’Neil,	Representative	William	Pluecker,	Edwin	Buzzell,	Greg	Caruso,	Charlene	Cummings,	Robert	

Haynes	o/b/o	Old	Canada	Road	National	Scenic	Byway,	Cathy	Johnson,	Ron	Joseph,	John	R.	Nicholas	

Jr.,	 George	 A.	 Smith,	 Clifford	 Stevens,	 Todd	 Towle,	 and	 the	 Natural	 Resources	 Council	 of	 Maine	

(NRCM).		
2

the	trial	court’s	decision	not	to	address	the substantive	question	of	whether	the	

Bureau	had	the	constitutional	authority	to	lease the	public	reserved	land.		Black	

later	moved	to	dismiss	all	appeals	on	the	ground	that	a	citizen’s	initiative,	which	

purported	to	retroactively	require	approval	of	leases like	the	ones	at	issue	here	

by	a	vote	of	two-thirds	of all	members	elected	to each	House of	the	Legislature,	

rendered	the	appeals	moot.

[¶2]	 	 The	 broad	 questions	 we	 answer	 are,	 in	 order, (1)	 whether	 the	

United	 States Constitution	 permits	 a	 citizens’	 initiative	 to	 retroactively	

invalidate	 the lease at	 issue; (2)	 what	 procedure,	 if	 any,	 the	 public-lands	

provision	of	the	Maine	Constitution	and	its	implementing	statutes required	the	

Bureau	to	follow	before leasing	the	public	reserved	lands;	and	(3)	whether	the	

Bureau’s	 lease of	 the	 public	 reserved	 lands exceeded	 the	 Bureau’s	

constitutional	or	statutory	leasing	authority.		

[¶3]	 	 We	 determine	 that	 this	 case	 is	 justiciable,	 vacate	 the	 judgment	

rendered	 for	Black, and	remand	for	entry	of	judgment	in	 favor	of	the	Bureau	

and	CMP.
3

I.	 BACKGROUND

A. Constitutional	and	Statutory	Background

[¶4]		Public reserved	lands	existed	before	Maine	was	a	state.		“At	the	close	

of	the	Revolutionary	War,	the	Commonwealth	of	Massachusetts	owned . . . vast	

amounts	 of	land,	including	most	 of	what	is	 now	 the	 state	 of	Maine.”	 	 Lee	M.	

Schepps,	Maine’s	Public	Lots:	The	Emergence	 of	a	Public	Trust,	26	Me.	L.	Rev.	

217,	219	(1974).		When	Maine	became	a	state	in	1820,	it	came	to	own	that	land	

through	 the	 agreement	 that	 granted	 it	 independence—the	 Articles	 of	

Separation.		Id. at	220-21.		

[¶5]		Beginning	in	the	1970s,	public	concern	about	the	sale	of	public	lands	

to	private	persons	or	entities precipitated	efforts	to	preserve	public	lands	for	

future	generations.		The	culmination	of	these	efforts	was	a 1993	amendment	to	

the	Maine	Constitution:

State	park	land,	public	lots	or	other real	estate	held	by	the	State	for	

conservation	or	recreation	purposes	and	designated	by	legislation	

implementing	 this	 section	 may	 not	 be	 reduced	 or	 its	 uses	

substantially	altered	except	on	the	vote	of	2/3	of	all	the	members	

elected	 to	 each	House.	 	 The	 proceeds	 from	 the	 sale	 of	 such	land	

must	be	used	to	purchase	additional	real	estate	in	the	same	county	

for	the	same	purposes.

Me.	Const.	art.	 IX,	§	23.		During	 the	several	years	 following	 the	amendment’s	

ratification,	 the	 Legislature	 enacted	 implementing	 legislation.	 	 See,	 e.g.,	
4

12 M.R.S.	§§ 598 to	598-B (2022) (Designated	Lands); 12	M.R.S.	§§	1801-1900

(2022) (establishing	 the	 Bureau	 of	 Parks	 and Lands and	 prescribing	 its	

authority).

[¶6]		The	Designated	Lands	statutes apply the	requirements	of	article	IX,	

section	23	 to	certain	 types	 of	public	lands	held by	 the	Department	 of	 Inland	

Fisheries	and	Wildlife;	under	the	care,	custody,	control,	and	management	of the	

Bureau;	managed	by the	Baxter	State	Park	Authority; and	gifted	to	the	state	or	

acquired	 by	 referendum.	 	Id. §	 598-A(1),	 (2-A),	 (4)-(6).	 	It	 applies	 to	 public	

reserved	lands	and	prevents	those	lands	 from	being	reduced	or	substantially	

altered	without	 two-thirds	legislative	approval.		Id. §§ 598-A, 598-A(2-A)(D),

1801(8) (defining	“public	reserved	lands”).		“‘Reduced’ means	a	reduction	in	

the	acreage	of	an	individual	parcel.”		Id. §	598(4).		“‘Substantially	altered,’ in	the	

use	 of	 designated	 lands,	 means	 changed	 so	 as	 to	 significantly	 alter	 physical	

characteristics	in	a	way	 that	 frustrates	 the	essential	purposes	 for	which	 that	

land	 is	 held	 by	 the	 State.”	 	 Id. § 598(5).	 	“The	 essential	 purposes	 of	 public	

reserved	 and	 nonreserved	 lands	 are	 the	 protection,	 management	 and	

improvement	of	these	properties	for	the	multiple	use	objectives	established	in	

section	1847.”		Id.		
5

[¶7]		In	turn,	section	1847	declares that	it	is	in	the	public	interest “that	

the	public	reserved	lands	be	managed	under	the	principles	of	multiple	use	to	

produce	 a	 sustained	 yield	 of	 products	 and	 services	 by	 the	 use	 of	 prudent	

business	 practices	 and	 the	 principles	 of	 sound	 planning	 and	 that	 the	 public	

reserved	 lands	 be	 managed	 to	 demonstrate	 exemplary	 land	 management	

practices,	 including	 silviculture,	 wildlife	 and	 recreation	 management	

practices.”		Id. §	1847(1).		The	statutory	definition	of	“multiple	use” includes	

“[t]he	 harmonious	 and	 coordinated	 management	 of	 the	 various	 resources	

without	impairing	 the	 productivity	 of	 the	land	and	with	 consideration	 being	

given	to	the	relative	values	of	the	various	resources.”	 Id. §	1845(1)(D).		And

“‘[s]ustained	yield’ means	the	achievement	and	maintenance	in	perpetuity	of	a	

high-level	 regular	 periodic	 output	 of	 the	 various	 renewable	 resources	 of	 the	

public	 reserved	 lands	 without	 impairing	 the	 productivity	 of	 the	 land.” Id.	

§ 1845(2).	 	 The	 Bureau	 effectuates these	 principles through	 the	 creation	 of	

comprehensive	management plans and	specific	action	plans.		Id. §	1847(2).

[¶8]		“[C]onsistent	with	the	management	plans,” and	the	above	statutory	

provisions,	the	Bureau,	through	its	director, is	authorized	to	“take	actions	on	

the	public	reserved	lands.”	Id. §	1847(3).		For	example,	the	Bureau	is authorized	

to	sell	resources	on	public	reserved	lands,	including	timber,	grass,	wild	foods,	
6

and	sand	and	gravel	for	use	in	the	construction	of	public roads,	id. §	1848(1),

and	to	lease	public	reserved	land	for	both	private	and	industrial	uses,	such	as	

campsites, mills,	 or dams,	 id. §	 1852(5),	 (6).	 	 Relevant here,	 until	 2021	the	

Bureau was authorized	 to lease	 the	right	 to	“[s]et	and	maintain	or	use	poles,	

electric	 power	 transmission	 and	 telecommunication	 transmission	 facilities,	

roads,	 bridges	 and	 landing	 strips”	 on	 public	 reserved	 lands.	 	 12	 M.R.S.

§ 1852(4)(A) (2021).

3

B. Project	Background	and	Procedural	History

[¶9]		In	December	2014, the	Bureau	leased	part	of	the	Johnson	Mountain	

and	West	Forks	Plantation4 public	reserved	lands to	CMP,	 to	accommodate	a	

small	portion	of a	high-capacity	electric	 transmission	line	known as the	New	

England	 Clean	Energy	 Connect	 (the	Project).	 	 The	proposed	Project is	 145.3	

miles	long,	with 0.9 miles	of	the	line	crossing the	leased	portion	of	the	Johnson	

3 The	 law as	 later	 amended by	 the	 citizens’	 initiative expands	 the	 language	 to	 include	

“transmission	lines	and facilities”	and	provides that	“[a]ny	such	.	.	.	transmission	lines	.	.	.	are	deemed	

to	 substantially	 alter	 the uses	 of	 the	 land[,] .	 .	 .	 and	 a	 lease	 or	 conveyance	 for	 the	 purposes	 of	

constructing	and	operating	such	. . . transmission	lines	.	.	.	may	not	be	granted	without	first	obtaining	

the	 vote	 of	 2/3	 of	 all	 the	 members	 elected	 to	 each	 House	 of	 the	 Legislature.”	 	 12	 M.R.S.	

§ 1852(4)(A)(2022);	see	I.B.	2021,	ch.	1,	§	1	(effective	Dec.	19,	2021)	(emphasis	added).		

4 The	West	Forks	Plantation	public	reserved	lands	are comprised of	four	individual	lots	in	the	

Upper	Kennebec	Region:	 the	Northeast,	Northwest,	 Central,	and	Southwest	lots.	 	 The	West	 Forks	

Plantation	Northeast	lot	 adjoins	 with	 the	 Johnson	Mountain	 public	 reserved lands,	 and	is	 the	lot	

described	 by	 the	 parties	 simply	 as	 the	 “West	 Forks	 Plantation” public	 reserved	 lands.	 	 For	

consistency,	we	will	follow	suit.
7

Mountain and	 West	 Forks Plantation public	 reserved	 lands.	 	 The	 area	

encompassed	by	the	lease amounts	to	2.6%	of	the	combined	1,241	acres	of	the	

Johnson	Mountain	and	West	Forks Plantation public	reserved	lands.		

[¶10]		In	2020,	CMP	and	the	Bureau	realized	that	the	2014	lease	violated	

a	Maine	statute	because	the	Bureau	had	leased	the	public	reserved	land before	

the	 Maine	 Public	 Utilities	 Commission	 had	 granted	 a	 Certificate	 of	 Public	

Convenience	 and	 Necessity	 (CPCN)	 authorizing	 CMP to	 proceed with	 the	

Project.		See	35-A M.R.S.	§ 3132(13)	(2022)	(barring	any	lease	of	public	land	for	

the	purpose	of	constructing	a transmission	line	unless a	CPCN	has	been issued).		

The	CPCN	was	not	obtained	until	2019.		On	June	23,	2020, the	Bureau	and	CMP	

executed	a	new	lease for	the	same	public	lands	but	with	an	increase	in the	base	

annual	payment paid	by	CMP.

5		Other	alterations included a	change	in	the	lease	

title	from	“Transmission	Line	Lease” to	“Amended	and	Restated	Transmission	

Line	 Lease”	 and the	 addition	 of	 a reference	 to	the	 2019 CPCN.	 	Because	 the	

2020 lease	explicitly	states that	it	supersedes	the	2014	lease	and	that	the	2014	

5		Pursuant	to	the	2014	lease,	CMP	was	to	make	annual	payments,	with	the	first	payment	due	on	

the	 date	 of	 execution	 of	 the	 lease,	 “adjusted	 each	 year	 in	 accordance	 with	 the	 increase	 in	 the	

Consumer	Price	Index.”		A	2015	lease	amendment increased	the	base	annual	payment from $1,400	

to	$3,680,	and	the	2020	lease	further	increased	the	base	annual	payment	to	$65,000.		
8

lease is	terminated	and	of	no	further	effect,	our	focus	on	review	is	on the	2020	

lease.		

[¶11]		On	the	same	day	that	the	2020	lease	was	executed,	Black	 filed	a	

three-count	 complaint	in	 Superior	 Court	 challenging	 the	2014	lease	 as	 ultra	

vires because	the	 lease	 would	 reduce	 or	 substantially	 alter	 public reserved

lands	and	therefore had	to	be	approved	by a	two-thirds vote	of the	Legislature.		

Black	filed	an	amended	complaint—the	operative	pleading—on	July	17,	2020.		

The	amended	complaint	sought	(1)	a	declaration	that	the	2020	lease	was	also	

ultra	 vires;	 (2)	 an	 injunction	 to	 prevent	 construction	 of	 the	 Project;	 and	

(3) alternatively, judicial review	 of	 the	 Bureau’s	 leasing	 decision,	 see M.R.	

Civ. P. 80C.	 	 The	 case	was	 transferred	 to	 the	Business	 and	 Consumer	Docket	

(Murphy, J.)	on	August	25,	2020.		

[¶12]	 	 The	 Bureau	 and	 CMP	 each	 moved	 to	 dismiss	 the	 counts	 for	

declaratory	judgment	and	injunctive	relief,	arguing that	they	were	duplicative	

of	 the	 Rule	 80C	 count; and	 CMP’s	 motion	 also	 requested	 that	 the	 count	 for	

judicial	review	pursuant	to	M.R.	Civ.	P.	80C	be	dismissed	for plaintiffs’	lack	of	

standing.	 	 While	 those	 motions	 were	 pending,	 the	 trial	 court	 ordered	 the	

Bureau	to	file	the	administrative	record,	which	it	did.		The	record	contained	a	

memorandum dated	 September	 24,	 2020	 (Findings	 Memo),	 included	 “to	
9

facilitate	 judicial	 review,”	 that purportedly memorializes	 the	 Bureau’s	

determination	that	the	2020	lease	would	not	reduce	or	substantially	alter	the	

uses	 of	 the	 Johnson Mountain	 and West	 Forks Plantation public	 reserved	

lands.

6		

[¶13]		In	orders	issued	on	October	30	and	December	21,	2020,	the	trial	

court	denied CMP’s	motion	to	dismiss	the	80C	appeal	for	lack	of	standing and

the	Bureau’s and	CMP’s	motions	to	dismiss the	counts	for	declaratory	judgment	

and	injunctive	relief.		In	response	to	an	argument	made	by	the	Bureau	that,	if	

successful,	would have	been potentially	dispositive	of	the	case,	the	trial	court	

then	issued	an	order,	on	March	17,	2021,	holding	that	utility	leases	granted	by	

6	 	 An	 introductory	 paragraph of	 the	 Findings	 Memo states	 that	 the	“memorandum	 provides	

background	detail and	context	and	memorializes	actions,	considerations,	and	legal	interpretations	

by	[the	Bureau] related	to	the	[Project]	utility	corridor	lease . . . .	 The	lease	was	originally	signed	in	

December	 2014	 (2014	 Lease)	 and	 was	 amended	 and	 restated	in	 June	 2020	 (2020	 Amended	 and	

Restated	Lease).	 In	preparing	this	memorandum,	the	Bureau	consulted	with	former	Bureau	Director	

Willard	Harris	and	 former	Director	of	Operations	Tom	Morrison	 for	additional	detail	and	context	

regarding	the	Bureau’s	memorialized	actions,	considerations,	and	legal	interpretations	with	respect	

to	the	2014	Lease	and	review	process.”		According	to	the	memorandum,	the	Johnson	Mountain	and	

West	 Forks Plantation public	 reserved	lands have	limited	 ecological	 or	 recreational	 value.	 	 Their	

dominant	 use	 is	 timber	 management.	 The timber	 on	 the lots	 was harvested	 in	 1986-1987	 and	

2006-2007,	with	the	next	harvest	scheduled	to	occur	in	2026-2027.		The	abutting	properties were

also historically	managed	as	commercial	timberlands.		An	existing	transmission	line corridor	for the

so-called Jackman	Tie	Line	straddles	 the	border	between	 the	 two	lots and	is	 three	miles	long	and	

100 feet	wide.		The	memorandum	states	that,	although	the	Bureau	did	not	reduce	the	determination	

to	 writing,	 the	 Bureau,	 before	 granting each	 lease,	 first	 determined	 that	 the	 Project	 does not	

substantially	alter	the	Johnson	Mountain	and	West	Forks Plantation public	reserved	lands	because	

the	primary	use	of	the	property	is	timber	harvesting	(and	the	leases	require	that	the	Bureau	be	paid	

the	value	of	the	trees	cut	for	the	corridor)	and	because	the	presence	of	the	Jackman	Tie	Line	indicates	

that	these	lots	are	a	reasonable	place	for	another	transmission	corridor.		
10

the	 Bureau	 “are	 not	 categorically	 exempt	 from	 application	 of	 Article	 IX,	

Section 23	of	the	Maine	Constitution.”		

[¶14]		The	trial	court	next	addressed,	in	an	order	entered	April	21,	2021,

the	parties’	motions	regarding	the	factual record.		The	trial	court	struck	from	

the	record	the	Findings	Memo proffered	by	the	Bureau.		Finding	that	nothing	in

the record	demonstrated that	the	determinations	in	the	Findings	Memo	were	

made contemporaneously with	 the	 execution	 of	 the	 leases,	 the	 trial	 court	

concluded	that	it	was	barred	from	considering	any	post	hoc	material (i.e.,	any

determination	made	by	the	Bureau	after	the	execution	of	the	lease).		The	trial	

court	also	denied	the	Bureau’s	alternative	motion to	remand the	matter	so	that	

it	could	make	factual	findings	anew	after	accepting	public	comments,	including	

from	the	plaintiffs	here.		From	this	order	the	Bureau	and	CMP	appealed.		This	

Court	(Gorman, J.)	 dismissed that	 appeal as	 interlocutory	 in	 a	 June	 8,	 2021,	

order.		

[¶15]	 	After the	 parties	 filed	motions	 for	judgment	 on	 the	 declaratory	

judgment	count and	briefs on	the	Rule	80C	issues,	the	trial	court	issued	a	final	

judgment	on	August	10,	2021.		It granted	Black a declaratory	judgment,	held

that Black had waived	 the	 request	 for	 injunctive	 relief,	 and	 reversed	 the	

Bureau’s	 decision	 to	 lease	 the	 public	 reserved	 land.	 	 As	 to	 the	 declaratory	
11

judgment,	 the	trial	court	held	 that	 the	Bureau	must	make	a determination	of	

whether	the	leases	would	result	in	a reduction or	substantial	alteration	to	the	

public	reserved	lands by	applying	the	statutory	definitions	of	those	terms	when	

deciding	whether	to	lease	the lands.7		The	trial	court	then	held	that	“the	Maine	

Constitution	requires	that	any	such	determination	must	be	made	pursuant	to	a	

public	administrative	process” and	indicated	that	the	Bureau	needed	to	follow

the	 process	 required	 for	 an	 adjudicatory	 proceeding. Cf. 5 M.R.S.	 § 9051-A	

(2022) (providing	notice	requirements	for environmental	agency	adjudicatory	

hearings).

[¶16]	 	 Addressing	 the	 Rule	 80C	 claim	 next,	 the	 trial	 court	 found	 “no	

competent	 evidence	 supporting	 [the	 Bureau’s]	 assertion	 that	 it	 made	 the	

requisite	public,	pre-execution	findings	that	the	2020	lease	would	not	reduce	

or	substantially	alter	the	uses	of	the	lands.”		It declined	the	Bureau’s	request	to	

remand	without	vacating	the	lease, in	part	because	it	could	not,	“as	a	matter	of	

separation	of	powers,”	create	an	administrative	process	for	the	Bureau.		

7		In	so	holding,	the	trial	court	rejected	the	Bureau’s	argument	that	management	plans	prepared	

pursuant	to	12	M.R.S.	§	1847(2) (2022) suffice	for	a determination	regarding substantial	alteration.		

These	plans	require	the	Bureau	director	to,	among	other	things, “compile	and	maintain	an	adequate	

inventory	of	the	public	reserved	lands,	including	not	only	the	timber	on	those	lands	but	also	the	other	

multiple	use	values	for	which	the	public	reserved	lands	are	managed.”		Id.
12

[¶17]		The	Bureau	and	CMP	timely	appealed	three	days	later, and	Black

cross-appealed.	 	 See	 M.R.	 App.	 P.	 2A,	 2B(c)(1),	 2C(a)(1)-(2).	 	On	 August	 24,	

2021,	 Black moved	 to	 lift	 the	 automatic	 stay	 pending	 the	 appeal.	 	 See	 M.R.	

Civ. P. 62(g);	M.R.	App.	P.	10.		After	agreement	of	all	the	parties at	a	conference,	

this Court	 (Jabar,	J.)	ordered	CMP	 “to	refrain	 from	all	construction	activities,	

including	vegetation	removal”	on	the	leased	lands	pursuant	to	M.R.	Civ.	P.	62(g).		

[¶18]		On	November	2,	2021,	 the	people	of	Maine	voted	 to	approve	an	

initiated	bill (the	Initiative) that changed the	law	governing	the	permitting	of

electric	transmission	lines	and	restricting	where	they	can	be	constructed.

8		I.B.	

2021,	ch.	1,	 §§ 1-6 (effective	Dec.	19,	2021).

9 The legislation enacted	by	 the	

Initiative requires that	 all	 “high-impact	 electric	 transmission	 lines”	 receive	

legislative	approval	in	addition	to	a	CPCN and	bans	outright	such	lines	from	“the	

8		On	November	2,	2021,	fifty-nine	percent of	Maine	voters	approved	the	Initiative,	which	took	

effect	on	December	19,	2021,	and	effectively	halted	the	Project.		I.B.	2021,	ch.	1,	§§	1-6; see	NECEC	

Transmission	LLC	v.	Bureau	of	Parks	and	Lands,	2022	ME	48,	¶¶ 18-23,	281	A.3d	618.		The	effective	

date	of	the	Initiative	was	approximately four	months	after	the	trial	court	issued	its	final	judgment.		

The	trial	court,	therefore,	analyzed	the	relevant	law as	it	existed	before	the	Initiative took	effect.		See

12	M.R.S.	§	1852(4)	(2021).

9 Bills	introduced	through	the	initiative	process	are	assigned	I.B.	(“Initiated	Bill”)	designations.		

See Maine	State	Legislature,	Votes	on	Initiated	Bills,	https://legislature.maine.gov/lawlibrary/voteson-initiated-bills-1910/9204/	(last	visited	Aug.	30,	2022).		An initiative	is	a	type	of	referendum	that	

allows	voters	to	propose	to	the	Legislature	any	bill,	resolve,	or	resolution.		Me.	Const.	art.	IV,	pt.	3,	

§ 18.		The	Secretary	of	State	must	verify	the	validity	of	 the	requisite	number	of	signatures	on	 the	

petition.		See	id.	§	18(2);	21-A	M.R.S.	§	905(1)	(2022).		The	Legislature	may	then	pass	 that	law	as	

submitted	or refer	the	initiated	measure	to	the	people	for	a	referendum	vote.		Me.	Const.	art.	IV,	pt.	3,	

§	18(2)-(3).		
13

Upper	Kennebec	Region,”	both	retroactively	to	September	16,	2020.	 Id. §§	2-6.

Relevant	here,	the	Initiative	also	amends the	statutes	authorizing the	Bureau	to	

lease public	reserved	land for	construction	of	transmission	lines	by	requiring	

that	 such	 leases first receive	 two-thirds	 legislative	 approval.	 	 Id. §	 1.	 	 That

provision applies	 retroactively	 to	 September	 16,	 2014,	 and	 therefore	 would	

govern the	2014 lease as	well	as	the	2020	lease.		Id.		On	December	23,	2021,	

Black	moved	 to	dismiss	all	pending	appeals	as	moot in	light	of	 the	 Initiative.

After	the	Bureau	moved	to	enlarge	the	time	to	respond	to	Black’s	motion,	this

Court	(Horton,	J.),	ordered	that	the	motion	to	dismiss	would	be	considered	with	

the	 merits	 of	 the	 appeal,	 and the	 Bureau	 and	 CMP	 filed	 oppositions	 to	 the

motion	shortly	thereafter.	 See M.R.	App. P.	4(d),	10.		

II.	 DISCUSSION

[¶19]	 	 Before	 turning	 to	 the	 merits	 of	 the	 appeal,	 we	 address	 the

threshold	 issues of	 jurisdiction	 and standing,	 and	 also the	 issue	 of	 the	

retroactive	application of	section	1	of	the	Initiative to	both the	2020	lease	and

its	2014	predecessor.		We	determine	that	the	Superior	Court	had	jurisdiction	

pursuant	to	the	Maine	Administrative	Procedure	Act	and	Rule	80C	of	the	Maine	

Rules	of	Civil	Procedure, that	certain	plaintiffs	have	standing	to	bring	the	claims	
14

presented, and	that	section	1	of	the	Initiative cannot	constitutionally	apply	to

the	2020 lease or	its	2014	predecessor.		

[¶20]		We	then	address	Black’s	contention	that	article	 IX,	section	23 of	

the	Maine	Constitution and	the	Designated	Lands	statutes required the	Bureau	

to	make	a	formal	determination, before	granting the	2014	lease	and	the	2020	

lease, that	neither	lease	would	reduce	or	substantially alter	public	lands. We	

conclude	 that the	Bureau’s	grant of	leases	of	public	reserved	lands were not	

adjudicatory	 acts because	 the	 Legislature	 had	 granted	 the	 Bureau	 broad	

authority	 to	 grant	 leases	 that	 did	 not	 reduce	 or	 substantially	 alter	 public	

reserved	lands,	without	requiring	any	formal	findings,	notice,	hearing, or	other	

administrative	 or	 adjudicative	 process.	 	Therefore,	 we	 conclude	 that,	 by the	

very	 act	 of	 granting the	 leases,	 the	 Bureau	 determined that	the	 leases	 were	

within	its	constitutional	and	statutory	authority.		

[¶21]	 	We	 further	 conclude	 that,	 because	 the	 Bureau’s lease of	 public	

reserved	land is a	contractual	act	limited	only	by	the	Legislature’s	broad	grant	

of	leasing	authority to	the	Bureau,	the	grant of	the	2020	lease	is	reviewable	only	

to	 determine	 whether	 the	 Bureau	 exceeded	 its	 statutory	 or	 constitutional	

authority and	therefore	acted	ultra	vires.	 Lastly,	based	on	the	undisputed	facts	

regarding	the	nature,	location,	uses, and	extent	of	the	2020 lease and	the	public	
15

reserved	lands it	concerns, we	conclude	that	the	2020	lease does	not cause	the	

public	 reserved	 lands, of	 which	 it	 concerns a	 very	 small	 portion, to	 be	

“substantially	 altered” for	 purposes	 of	 the	 Maine	 Constitution	 and	 the	

Designated	Lands statutes.		Me.	Const.	art.	IX,	§	23;	12	M.R.S.	§	598(5).		Because	

the	2020	lease	concerns the	same	portion	of	the	same public	reserved	lands	as	

the	2014	lease,	our	conclusion	necessarily	applies	to	both.

A. Jurisdiction

[¶22]		The	parties	disagree	about	the	basis	of	jurisdiction	both in the	trial	

court	and	here.		The	Bureau	and	CMP	maintained, in	their	motions to	dismiss	

Black’s	ultra	vires	claim	in	Count	1 and	the	injunction	claim	in	Count	2 of	the	

first	 amended	 complaint,	 that	 jurisdiction	 exists	 solely	 under	 Rule	 80C,	 and	

they	repeat	the	argument	here,	citing	to	our	decision	in	Fair	Elections	Portland	

v.	 City	 of	 Portland,	 2021	 ME	 32,	 ¶¶ 19, 21	 n.7, 252	 A.3d	 504—precedent	 in	

which	 we	 approved	 the dismissal	 of	 independent	 claims	 as	 duplicative	 of	 a

Rule 80B	appeal.		Black	responds	 that	 the	purpose	of	Count	1 was	 to	seek	“a	

declaratory	 judgment	 that	 signing	 the	 2014	 and	 2020	 leases	 without	 first	

obtaining	a	 two-thirds	vote	of	each	House	violated	Article	 IX,	Section	23	and	

was	therefore	ultra	vires.”		Neither	argument	is	wrong, and	our	decision	in	Sold,	

Inc.	v.	Town	of	Gorham helps explain	why.		2005	ME	24,	868	A.2d	172.
16

[¶23]	 	 In	 Sold,	 seven	 subdivision	 developers	 brought	 a	 declaratory	

judgment action—not	 a	 Rule	 80B	 appeal—challenging	 certain	 impact	 fee	

requirements in	 the	 conditional approvals	 the	 town	 planning	 board	 had	

granted.		Id. ¶¶ 1,	3.		We	held	that	their	appeal	was	barred	by	the	exclusivity	

provisions	of	Rule	80B	because	the	actions	appealed	from	were	not	outside	the	

planning	board’s	authority	and	could	not	be	the	basis	for	an	ultra	vires	claim:

All	of	the	subdivisions	at	issue	in this	action	were	approved,	subject	

to	 a	 condition	 requiring	 payment	 of	 the	impact	 fee.	 There	is	 no	

dispute	 that	 none	 of	 the	 conditional	 approvals	 given	 to	 the	

plaintiffs’ subdivision	 applications	 were	 challenged	 within	 the	

thirty-day	period	required	by	M.R.	Civ.	P.	80B(b).	 When	the	time	to	

file	 an	 appeal	 expired,	 the	 conditional	 approvals,	 including the

impact	 fee	 requirements,	 became	 final,	 and	 were	 not	 subject	 to	

challenge.

A	 declaratory	 judgment	 action	 cannot	 be	 used	 to	 create	 a	

cause	 of	 action	 that	 does	 not	 otherwise	 exist.	 	 A	 declaratory	

judgment	 action	 may	 only	 be	 brought	 to	 resolve	 a	 justiciable	

controversy.		Thus,	a	declaratory	judgment	action	cannot	be	used	

to	revive	a	cause	of	action	that	is	otherwise	barred	by	the	passage	

of	time.		The	declaratory	judgment	law,	14	M.R.S.A.	§§	5951-5963	

(2003),	does	not	provide	a	 self-help	device	 for	parties	who	have	

failed	to	timely	appeal	a	municipal	administrative	decision	to	gain	

an	extension	or	revival	of	the	time	to	appeal	and	reopen	a	decision	

that	has	otherwise	become	final.

The	plaintiffs	assert	 that	 they	may	appeal	by	a	declaratory	

judgment	 action,	 after	 the	 normal	 time	 period	 for	 appeal	 has	

expired,	if	the	challenged	action	of	the	municipality	is	ultra	vires	as	

being	beyond	the	lawful	statutory	or	constitutional	authority	of	the	

Town	to	act.	 If	the	plaintiffs’ view	of	the	law	is	correct,	then	there	

would	be,	in	effect,	no	time	limit	to	appeal	any	action	of	a	municipal	
17

government—or	 the	 state	 government	 for	 that	 matter—that	 is	

alleged	 to	 be	 inconsistent	 with	 a	 statutory	 or	 constitutional	

requirement. Our	 law	 does	 not	 countenance	 such	 a	 wholesale	

deviation	 from	 explicit	 provisions	 requiring	 timely	 appeals	 to	

promote	finality	of	administrative	actions.

Subject to equitable defenses including laches, a

governmental action may be challenged at any time, as ultra vires,

when the action itself is beyond the jurisdiction or authority of the

administrative body to act. Thus, municipal or state actions may be

collaterally attacked as outside the jurisdiction or authority of an

agency, when it is claimed that the ordinance or statute under

which the administrative agency purported to act was

unconstitutional on its face, thus rendering the administrative

action beyond the lawful authority of the challenged agency.

Here,	 there	 is	 no	 dispute	 that	 the	 Planning	 Board	 had	

authority	to	consider,	approve,	and	attach	conditions	to	approvals	

of	 subdivisions.	 Plaintiffs	 only	 challenge	 one	 condition	 of	 the	

subdivision	 approval	 as	 inconsistent	 with	 statutory	 and	

constitutional	 requirements. Such	 challenges	 are	 the	 essence	 of	

matters	 that	 must	 be	 brought	 pursuant	 to	 Rule	 80B	 to	 question	

whether	the	particular	action	of	a	municipal	administrative	agency	

is	consistent	with	the	requirements	of	law.

Id. ¶¶	9-13 (citations	omitted).		

[¶24]		Our	decision	in	Sold illustrates the	principle	that	ultra	vires	claims	

constitute	a	narrow	exception	to	the	Rule	80B	(and	Rule	80C) exclusivity	rule,	

but	only	if	Rule	80B	(or	Rule	80C) review	is	unavailable.		Applied	to	this	case,	

that	 principle leads	 us	 to	 conclude	 that Black’s	 declaratory	 judgment	 count

applies	only to	the	2014	lease and	is	duplicative	as	to	the	2020	lease.		His	appeal	

of	the	2020	lease	met	the	Rule	80C	time	limits, and	Rule	80C, along with the
18

Maine	Administrative	Procedure	Act, authorizes a	reviewing	court	to	entertain	

claims	that	an	agency	decision	is	“[i]n	excess	of	the	statutory	authority	of	the	

agency.” 5	M.R.S.	§	11007(4)(C)(2)(2022). That	the	2014	lease	was	terminated	

by	the	2020	lease	raises	a	mootness	issue as	to	Black’s declaratory	judgment	

count,	 but	 because	 the	 ultra	 vires	 issue	 is	 the	 same	 as	 to	 both	 leases,	 an	

invalidation	of	the	2020	lease	on	ultra	vires	grounds	would	likewise	invalidate	

the	2014	lease,	were	it	still	in	effect,	rather	than	resurrecting it.		Moreover,	the	

trial	 court’s	 ruling	 that	 the	 Bureau	 was	 required	 to	 make	 a	 “substantial	

alteration”	 determination	 and	 conduct	 an	 administrative	 process	 before	

granting the	 leases	 is	 reviewable	 here	 only	 under	 Rule	 80C	 and	 the	 Maine	

Administrative	Procedure Act because	the	ruling	focused	on	the	procedure	for	

granting the	leases,	not	on the	Bureau’s	substantive	authority	to	grant them.		In	

sum,	Rule	80C	allows	us	to	consider	both	of	Black’s	challenges	to	the	leases—

the	Bureau’s	failure	to	meet	alleged	procedural	requirements	and	the	Bureau’s	

alleged	 ultra	 vires	 action—and	 we	 deem	 Black’s	 Rule	 80C	 appeal	 as	 to	 the	

2020 lease to	be	the	appropriate	focus	of	our	review.			

B. Standard	of	Review

[¶25]		“When	we	consider	a	judgment	of	the	Superior	Court,	reviewing	a	

decision	of	a	state	administrative	agency	pursuant	to	M.R.	Civ.	P.	80C,	we	follow	
19

the	standards	of	review	governing	administrative	appeals.		Thus,	when	the	trial	

court	has	acted	in	an	intermediate	appellate	capacity,	we	review	directly	 the	

original	decision	of	the	fact-finding	agency,	without	deference	to	the	ruling	on	

the	intermediate	appeal	by	the	court	from	which	the	appeal	is	taken.”		Anderson	

v.	 Me.	 Pub.	 Emps.	 Ret.	 Sys.,	 2009	 ME	 134,	 ¶	 2,	 985	 A.2d	 501.	 	 “Statutory	

construction	 is	 a	 question	 of	 law,	 and,	 therefore,	 we	 review	 [the	 agency’s	

statutory	interpretation]	de	novo.”		Med.	Mut.	 Ins.	Co.	of	Me.	v.	Bureau	of	 Ins.,	

2005	ME	12,	¶	5,	866	A.2d	117.

C. Standing

[¶26]		We review	standing de	novo as	a	question	of	law and	may	raise	the	

issue	sua	sponte; therefore	we	are not	bound	by	 the	 trial	court’s	conclusion.		

Blanchard	v.	Town	of	Bar	Harbor,	2019	ME	168,	¶	8,	221	A.3d	554.		The	plaintiffs	

bear	 the	 burden	 of	 establishing	 standing,	which	is	 determined	 based	 on	 the	

circumstances	that	existed	when	the	complaint	was	filed.		Bank	of	Am.,	N.A.	v.	

Greenleaf,	 2014	 ME	 89,	 ¶	 7,	 96	 A.3d	 700;	 Conservation	 L. Found.	 v.	 Town	 of	

Lincolnville,	No.	 AP-00-3,	 2001	 Me.	 Super.	 LEXIS	 26, at *21 (Feb.	 28,	 2001)

(citing	Sims	v.	State	of	Florida,	862	F.2d	1449,	1458	(11th	Cir.	1989)).

[¶27]		In	Maine,	standing	is	prudential,	not	constitutional.		Roop	v.	City	of	

Belfast,	2007	ME	32,	¶	7,	915	A.2d	966.		Thus,	this	Court	may	“limit	access	to	
20

the	courts	to	those	best	suited	to	assert	a	particular	claim.”		Id.(quotation	marks	

omitted).	 	 “Just	 what	 particular	 interest or	 injury	 is	 required	 for	 standing	

purposes	and	the	source	of	that	requirement—whether	statutory- or	common	

law-based—varies	based	on	the	type	of	claims	being	alleged.”		Greenleaf,	2014	

ME	89,	¶	7,	96	A.3d	700.		Our standing	analysis	in Fitzgerald	v.	Baxter	State	Park

Authority is	 applicable	 because	 the	 plaintiffs	 in	 Fitzgerald,	 like	 those	 here,	

asserted that	a	state	agency	entrusted	with	management	of	public	lands	had

acted	 in	 excess	 of	 its authority.	 	 385	 A.2d	 189, 194, 196-97 (Me.	 1978).	 	In	

Fitzgerald, we	decided	that	users	of	the	public	land	in	question	had	standing	to	

challenge	the	agency’s	action.		Id. at	196-97.

[¶28]	 	 CMP	 contends	 that	 none	 of	 the	 plaintiffs	 here	 “claim	 standing	

based	 on	 traditional	 property	 rights	 or	 a	 nexus	 to	 [the	 Bureau’s	 leasing]	

decision,”	further	noting	that	“most	of	these	plaintiffs	have	not	alleged	any use	

of	either	the	leased	land	itself	or	the	broader	public	lots	in	Johnson	Mountain	

Township	 or	 West	 Forks	 Plantation.”	 	 To	 the	 contrary,	 at least	three of	 the	

individual	plaintiffs	have	sufficiently	demonstrated	standing.		Specifically,	the	

first	amended	complaint	alleges	that	plaintiffs	Edwin	Buzzell,	Clifford	Stevens,

and	Todd	Towle	own	and	operate	outdoor	recreation	and	guiding	businesses	

that	“operate[]	in	and	around	the	public	reserved	lands”	subject	to	the	lease,	
21

and	 that	 they	 have	 hunted	 and	 fished	 in	 the	 area as	 well.	 	 Although	 these

plaintiffs	allege	no	specific	harm	beyond	the	transmission	line’s	mere	visibility,	

their	history	of	use	of	the	public reserved lands, occupied	in	part	by	the	area	

encompassed in the	 original	 and	 subsequent	 leases,	 is	 sufficient to	 confer	

standing.		See	id. at 196-97.

[¶29]	 	 We further	 hold	 that	 NRCM	 has	 associational	 standing.	 	 “An	

association	 has	 standing	 to	 bring	 suit	 on	 behalf	 of	 its	 members	 when	 its	

members	would	otherwise	have	standing	to	sue	in	their	own	right,	the	interests	

at	 stake	 are	 germane	 to	 the	 organization’s	 purpose,	 and	 neither	 the	 claim	

asserted	 nor	 the	 relief	 requested	 requires	 the	 participation	 of	 individual	

members	in	the	lawsuit.”		Friends	of	the	Earth,	Inc.	v.	Laidlaw	Env’t	Servs.	(TOC),	

Inc.,	528	U.S.	167,	181	(2000);	see also Conservation	L. Found., 2001	Me.	Super.	

LEXIS	26,	at	*18-19.

[¶30]		NRCM	satisfies	each	part	of	this	test.		First,	Towle	and	Buzzell	are

members of	NRCM	and	otherwise	have	standing	 to	sue	individually.		Second,	

NRCM	 is	 an	 environmental	 advocacy	 group	 whose	 “mission	 is	 ‘protecting,	

conserving,	and	restoring	Maine’s	environment.’”		The	claims	at	issue	seek	the	

invalidation	of	a	lease	of	public	reserved	lands and	are	undoubtedly	germane	

to	NRCM’s	environmental	conservation	mission.		
22

[¶31]	 	We	 have	never determined whether	individual	members	 of	 the	

Legislature	have	standing	to	challenge	agency	action.		See	Me.	Senate	v.	Sec’y	of	

State,	2018	ME	52,	¶¶	13, 25,	183	A.3d	749	(assuming	without	deciding	that	the	

Maine	Senate	had	standing	to	seek	“declaratory	and	injunctive	relief	to	halt	the	

implementation	of	ranked-choice	voting”);	see also Carson	v.	Comm’r	of	the	Dep’t	

of	Health	& Hum.	Servs., No.	AP-18-48, 2019	Me.	Super.	LEXIS	170,	at	*3,	5-6

(June	27,	2019) (declining	to	determine	whether	a	state	senator	had	standing	

to	bring	a	Rule	80C	petition	because	other	petitioners	had	standing).		Because	

we	have	determined	that	other	plaintiffs	have	standing	to	pursue	these	claims,	

we	need	not	resolve	this	question here.

D. Retroactive	Application of the	Initiative to	the	2020	Lease

[¶32]		After	the	 Initiative went	into	effect,	Black	moved	 to	dismiss	 this	

pending	 appeal	 on	mootness	 grounds,	 contending	 that	 the	 enactment	 of	 the	

Initiative	invalidated	the	2020	lease	as	a	matter	of	law	and	therefore	obviated	

the	need	to	review	the	trial	court’s	judgment.		We	do	not	address	the	merits	of	

moot	cases	absent	exceptional	circumstances, so	before	continuing	our	analysis	

we	need	to	consider	the	effect	of	the	Initiative	upon	the	justiciability	of	this	case.		

See	Mainers	for Fair	Bear	Hunting	v.	Dep’t of	Inland	Fisheries	&	Wildlife, 2016 ME

57, ¶ 7, 136 A.3d 714.	 	 Black contends that	 application	 of	 the	 new	 law	
23

(1) invalidates	 the	 lease	 between	 the	 Bureau	 and	 CMP;	 (2)	 creates	 the	

argued-for	public	process	regarding	substantial	alteration	determinations	by	

requiring	 legislative	 approval	 of	 high-impact	 transmission	 line	 leases;	 and	

(3) eliminates	the	need	for	this	Court	to	determine	if	the	Project substantially	

alters	 the	 public	 reserved	 lands	 at	 issue	 because	 the	 legislation	 makes	 that	

determination	by	fiat.		Whether	section	1	of	the	Initiative	moots	this	appeal, as	

Black	contends,	depends	on	whether	the	Initiative	applies	retroactively	to	the	

2020	lease.	

1. Retroactive Application	Generally

[¶33]		We	begin	our	discussion	of	the	Initiative	by	noting	that	“[t]he	same	

constitutional	 limitations	 on	 legislative	 authority	 apply	 to	 citizen-initiated	

legislation	 as	 apply	 to	 the	 enactments	 of	 the	 Legislature,”	 although	

“citizen-initiated	 legislation	 enjoys	 a	 heavy	 presumption	 of	 constitutionality	

and	should	be	construed	liberally.”	 NECEC	Transmission	LLC	v.	Bureau	of	Parks	

and	 Lands,	 2022	 ME	 48,	 ¶	 35,	 281 A.3d 618 (quotation	 marks	 omitted).		

Section 1	of	the	Initiative amended 12	M.R.S.	§	1852(4)	to require	two-thirds

legislative	approval	before	the	Bureau	may	grant “a	lease	or	conveyance	for	the	
24

purpose	of	constructing	and	operating . . .	transmission	lines	and	facilities”	and	

makes	the	amendment	retroactive	to	September	16,	2014.		I.B.	2021,	ch.	1,	§ 1.10

[¶34]		A new	statute	enacted	by	citizen	initiative	or	by	the	Legislature	can	

apply	 retroactively if	 (1)	 the	 statute	 is	 intended to	 apply	 retroactively	 and	

(2) retroactive	 application	 does	 not	 violate	 any	 provisions	 of	 the	 Maine	

Constitution.		MacImage	of	Me.,	LLC	v.	Androscoggin	County.,	2012	ME	44,	¶¶	21,	

23,	 40	 A.3d	 975;	 State	 v.	 L.V.I.	 Grp.,	 1997	 ME	 25,	 ¶	 9,	 690	 A.2d	 960	 (“If	 the	

Legislature	intends	 a	 retroactive	 application,	 the	 statute	must	 be	 so	 applied	

unless	 the	 Legislature	is	 prohibited	 from	 regulating	 conduct	in	 the	intended	

10		Section	1 provides for	the	statute,	as	amended,	to	state in	full:

4.	 	 Lease	 of	 public	 reserved	 land	 for	 utilities	 and	 rights-of-way.	 	 The

bureau	may	lease	the	right,	for	a	term	not	exceeding	25	years,	to:

A.	 	 Set	 and	 maintain	 or	 use	 poles,	 electric	 power	 transmission	 and	

telecommunication transmission	lines	and	facilities,	roads,	bridges,	and	landing	

strips;

B.	 Lay	and	maintain	or	use	pipelines	and	railroad	tracks;	and

C.		Establish	and	maintain	or	use	other	rights-of-way.

Any	such	poles,	transmission	lines	and	facilities,	landing	strips,	pipelines	and	railroad	

tracks	under	 this	subsection	are	deemed	 to	substantially	alter	 the	uses	of	 the	land	

within	the	meaning	of	the	Constitution	of	Maine,	Article	IX,	Section	23,	and	a	lease	or	

conveyance	for	the	purpose	of	constructing	and	operating	such	poles,	transmission	

lines,	and	facilities,	landing	strips,	pipelines	and	railroad	tracks	under	this	subsection	

may	not	be	granted	without	first	obtaining	the	vote	of	2/3	of	all	the	members	elected	

to	each	House	of	the	Legislature.

Notwithstanding	Title	1,	section	302	or	any	other	provision	of	law	to	the	contrary,	

this	subsection	applies	retroactively	to	September	16,	2014.

12	M.R.S.	§	1852(4)	(2022);	see I.B.	2021,	ch.	1,	§	1.
25

manner,	and	such	a	limitation	upon	the	Legislature’s	power	can	only	arise	from	

the	 United	 States	 Constitution	 or	 the	 Maine	 Constitution.”	 (quotation	 marks	

omitted)).	 	 Cf. Opinion	 of	 the	 Justices,	 103	 Me.	 506,	 508,	 69	 A.	 627	 (1907)	

(“[L]aws	and	regulations	are	to	be	held	valid	unless	there	can	be	pointed	out	

some	 provision	 in	 the	 State	 or	 United	 States	 Constitution	 which	 clearly	

prohibits	them.”).

[¶35]	 The	analysis	of the	first	prong	of	the	MacImage retroactivity	test is	

plain: section	 1	 explicitly	 states	 that	 the	 law	 applies	 retroactively	 to	

September 16,	2014.		I.B.	2021,	ch.	1,	§	1.	 The second	prong requires a	more	

extensive analysis.	 	 Black’s	 motion	 to	 dismiss contends that	 retroactive	

application	of	section	1	of	the	Initiative to	the	2020 lease does	not violate	the

Contract	 Clause	 or	 the Due	 Process	 Clause	 of	 either	 the	 United	 States	

Constitution	or	the Maine	Constitution.	 We	disagree and hold	that	retroactive	

application	 of	 section	 1	 of	 the	 Initiative	 violates	 the	 Contract	 Clause	 of	 the	

United	States	Constitution,

11 and,	therefore,	need not	reach	Black’s argument	

regarding	the	Due	Process	Clause’s	vested	rights	doctrine.

11 CMP	and	the	Bureau have	raised no	independent	argument	specific	to	the	Maine	Constitution’s	

Contract	 Clause. We	 have	 never	 stated	whether	 the	 Contract	 Clause	 of	 the	Maine	 Constitution	is	

coextensive	with	that	of	the	U.S.	Constitution.		Because	the	issue	is	not	briefed,	this	case	is	not	the	

forum	to	decide	that	question.		See State v. Chan, 2020 ME 91, ¶ 18 n.10, 236 A.3d 471.
26

2. Section	1	of	the	Initiative and	the	Contract	Clause

[¶36]		The	federal constitution’s Contract Clause	limits the	enactment	of

laws impairing	the	obligation	of	contracts. See U.S.	Const.	art.	1,	§	10,	cl.	1.		Its	

general	purpose	is “to	encourage	trade	and	credit	by	promoting	confidence	in	

the	stability	of	contractual	obligations”	by	“limit[ing]	the	power	of	the	States	to	

modify	 their	 own	 contracts	 as	 well	 as	 to	 regulate	 those	 between	 private	

parties.”	 	 U.S. Tr.	 Co.	 v.	 New	 Jersey,	 431	 U.S.	 1,	 15,	 17	 (1977);	 see	 also	

Rediscovering	the	Contract	Clause,	97	Harv.	L.	Rev.	1414,	1429 (1984) (“[T]he	

reasons	motivating	legislators	to	impair	contractual	obligations	must	relate	to	

a	 diffuse	 public	 interest	 rather	 than	 merely	 to	 narrow	 factional	 ends.	 .	 .	 .	

Moreover,	the	imperative	that	government	accommodate	private	expectations	

by	acting	only	pursuant	to	rules	fixed	and	announced	beforehand	demands	that	

the	legislature’s	discretion	to	repudiate	the	state’s	own	obligations	be	strictly	

constrained.”	 (footnotes	 and	 quotation	 marks omitted)). This	 limitation	

applies	 not	 only	 to	 state legislatures	 but	 also	 to	 voters,	 who “may	 no	 more	

violate	 the	Constitution by	enacting	a	 ballot	measure than	a	legislative	 body	

may	do so	by	enacting	legislation.” Citizens	Against	Rent	Control/Coal.	for	Fair	

Hous.	v.	City	of	Berkeley,	454	U.S.	290,	295	(1981).
27

[¶37]	 	 “Yet	 the	 Contract	 Clause	 does	 not	 prohibit	 the	 States	 from	

repealing	 or	 amending	 statutes	 generally,	 or	 from	 enacting	 legislation	 with	

retroactive	effects.”		U.S.	Tr. Co.,	431	U.S. at	17.		We	therefore	must	determine	if	

a	particular	exercise	of	legislative	power	justifies	the	impairment	of	a	contract.		

Id. at	17,	21-22.

[¶38]	 	To	 do	 so,	 we	 use	 a	 three-step analysis:	 first,	 we	 determine	if	 a	

legislative	act	results	in	a	substantial	impairment	of	a	contractual	relationship;	

if	it	does,	we	next	identify	the	legislative	purpose	of	that	impairing	act;	then,	we	

determine	 if	 that	 purpose	 justifies	 the	 alteration	 of	 the	 contracting	 parties’	

rights	and	responsibilities.		Kittery	Retail	Ventures,	LLC v.	Town	of	Kittery,	2004	

ME	65,	¶	38,	856	A.2d	1183;	see	also	Energy	Rsrvs.	Grp.,	Inc. v.	Kan.	Power	&	Light	

Co.,	459	U.S.	400,	411-13 (1983).		

[¶39]	 	 Under	 the	 first	 step,	 we	 ask	 “whether	 there	 is	 a	 contractual	

relationship,	whether	a	change	in	law	impairs	that	contractual	relationship,	and	

whether	the	impairment	is	substantial.”		Kittery	Retail,	2004	ME	65,	¶	38,	856	

A.2d	1183	(quotation	marks	omitted).		To	determine	the	degree	of	impairment,	

we	 consider	 several	 factors,	 including	 whether	 the	 subject	 matter	 of	 the	

contract	 is	 already	 regulated, whether	 the	 additional	 regulation	 was	

foreseeable, and	 whether	 the	 change	 in	 law	 affects	 the	 contract	 itself,	 as	
28

opposed	to	the	underlying	subject	matter.		Id.	¶¶ 39-41.		We	may	also	consider	

the	value	of	the	contract	and	the	extent	to	which	the	impairing	law	undermined	

the	parties’	contractual	expectations.		See	U.S.	Tr. Co.,	431	U.S.	at	18-21.		

[¶40]		If a	legislative	act	substantially	impairs	a	contract,	we	next	identify	

the	legislative	purpose	of	the	impairing	act.		See Kittery	Retail,	2004	ME	65,	¶ 38,	

856	A.2d	1183;	Energy Rsrvs.	Grp.,	Inc., 459	U.S.	at	411-12;	U.S.	Tr. Co.,	431	U.S.	

at	21-22.		As	long	as	the	State	has	not	contracted	away	an	essential	attribute	of	

sovereignty,12 a public-purpose	 justification	 for	 a	 contractual	 impairment	 is	

required,	 to	 “guarantee[]	 that	 the	State	is	exercising	its	 police	 power,	 rather	

than	providing	a	benefit	to special	interests.”		Energy	Rsrvs.	Grp.,	Inc.,	459	U.S.	

at	412;	see	U.S.	Tr.	Co.,	431	U.S.	at	23.		“We	look	to	the	plain	language	of	a	statute	

to	 discern	 the	 real	 purpose	 of	 the	 legislation.”	 	 Am. Republic	 Ins.	 Co. v.	

Superintendent	 of	 Ins.,	 647	 A.2d	 1195,	 1197	 (Me.	 1994)	 (quotation	 marks	

omitted).		We	do	so “to	reconcile	the	strictures	of	the	Contract	Clause	with	the	

essential	attributes	of	sovereign	power	necessarily	reserved	by	 the	States	 to	

safeguard	the	welfare	of	their	citizens.”		U.S.	Tr. Co.,	431	U.S.	at	21	(quotation	

12 If	 the	impaired	contract	purports	 to	bargain	away	an	aspect	of	state	sovereignty,	 the	focus	

turns	to	“the	State’s	power	to	create	irrevocable	contract	rights	in	the	first	place,	rather	than	[to]	an	

inquiry	into	the	purpose	or	reasonableness	of	the	subsequent	impairment.” U.S.	Tr. Co. v.	New	Jersey,	

431	U.S. 1, 23 (1977).		No party contends	that	the	2020	lease	implicates	a	matter	of	state	sovereignty.
29

marks	and	citation	 omitted).	 	An	impairing	law	 “must	have	a	 significant	and	

legitimate	 public	 purpose	 behind	 [it],	 such	 as	 the	 remedying	 of	 a	 broad	 and	

general	social	or	economic	problem.”		Energy	Rsrvs.	Grp.,	Inc.,	459	U.S.	at	411-12

(citation	omitted).		

[¶41]	 	 Lastly,	 once	 we	 have	 identified	 the	 legislative	 purpose,	 we	

determine	 whether	 that	 purpose	 justifies	 the	 alteration	 of	 the	 contracting	

parties’	rights	and	responsibilities.		See	Energy	Rsrvs.	Grp.,	Inc,	459	U.S.	at	412;	

Kittery	Retail,	2004	ME	65,	¶	38,	856	A.2d 1183;	see also	U.S. Tr. Co.,	431	U.S.	at	

22	(“Legislation	adjusting	the	rights	and	responsibilities	of	contracting	parties	

must	 be	 upon	 reasonable	 conditions	 and	 of	 a	 character	 appropriate	 to	 the	

public	 purpose	 justifying	 its	 adoption.”).	 	 We	 will	 defer	 to	 the	 Legislature’s	

judgment	 as	 to	 the	 necessity	 and	 reasonableness	 of	 economic	 or	 social	

regulation,	unless,	as	here,	the	State	is	a	contracting	party.		See Kittery	Retail,	

2004	ME	65,	¶	38,	856	A.2d	1183	(stating	that	no	deference is	owed if	“the	State	

.	 .	 .	 is	 a	 contracting	 party”);	 see	 also U.S. Tr. Co.,	 431	 U.S.	 at	 25-26	 (“[A]n	

impairment	may	be	constitutional	if	it	is	reasonable	and	necessary	to	serve	an	

important	 public	 purpose.	 	 In	 applying	 this standard,	 however,	 complete	

deference	to	 a	legislative	 assessment	 of	 reasonableness	 and	 necessity	is	 not	

appropriate	[when] the	State’s	self-interest	is	at	stake.”).		
30

[¶42]		We	now	apply	these	principles	to	the	instant	case.		The	contractual	

relationship	 at	 issue	 is defined	 in	the	 2020	 lease.	 	 Before	the enactment of	

section	1	of	the	Initiative, the	Bureau	had	been	delegated	the	authority	to	freely	

lease	public	reserved	land	to	“[s]et	and	maintain”	transmission	lines,	so	long	as

the	 term	 of	 the	lease	 did	 not	exceed	 twenty-five	 years.	 	12	M.R.S. §	 1852(4)	

(2021).		Section	1	retroactively	stripped	the	Bureau	of	that	authority.		See I.B.	

2021,	ch.	1,	§	1.		This	impairs	the	lease	between	the	Bureau	and	CMP	for	two	

reasons.		First, Section 1	essentially	invalidates	the	lease	as	ultra	vires—beyond	

the	 Bureau’s	 authority.	 	 Such	 an	 invalidation	 disrupts	 the	 longstanding	

contractual	expectations	between	the	Bureau	and	CMP.		It	results	in the	total	

destruction	 of	 the	 parties’	 contractual	 expectations and	 is	 therefore a	

substantial	impairment.		See	U.S. Tr.	Co.,	431	U.S.	at	26-27.

[¶43]		Second,	the	new	rule	at	the	heart	of	Section	1	of	the	Initiative—

that	the	Bureau	is retroactively	stripped	of	an	authority	it	possessed	at	the	time	

of	the	granting of	both	the	2014	and	2020	leases—was	not	foreseeable	when	

the	leases were granted.	 	The	management	 of	public	 reserved	lands	and	 the	

construction	 and	 operation	 of	 electric	 transmission	 lines	 are	 regulated	

activities,	 and	 therefore	 any regulations	 modifying	 the	 parties’	 rights	 and	

responsibilities	 under	 the	 lease	 should	 be	 reasonably	 foreseeable.	 	 On	 this	
31

point,	Black	contends	that	a	lease	provision	which	states	that	CMP	“shall	be	in	

compliance	 with	 all	 Federal,	 State	 and	 local	 statutes,	 ordinances,	 rules	 and	

regulations,	 now	 or	 hereinafter	 enacted”	 is	 evidence	 that	 “the	 written	

instrument	underlying	[the	contractual]	relationship	expressly	contemplates”	

retroactive	legislation.		Although	it	may	have	been	reasonably	foreseeable	that	

future	legislation	would	affect the	lease,	it	would	be	unreasonable to	suggest	

that	it	was	foreseeable,	at	the	time	of	the	execution	of	the	lease (June	23,	2020),	

that	 a	 citizens’	 initiative	(approved	 by	 voters	 on	 November	 2,	 2021)	with	 a	

retroactivity	provision	dating	back	seven	years	would	completely	invalidate the	

lease.

[¶44]	 	Having	 determined	 that	 Section	 1	 of	 the	 Initiative substantially	

impairs	the	lease	between	the	Bureau	and	CMP,	we	next	identify	the	legislative	

purpose	of	that	part	of	the	referendum,	looking	to	the	Initiative’s plain	language

to	do	so.		Section 1	is	a	relatively	short	provision,	and	its	text	reveals	no	clear	

purpose.		The	legal	effect of the	amendment	is	legislative	oversight	of	actions	

the	 Bureau	 had	 previously	 been	 authorized	 to	 take.	 	 Black	 asserts	 that	 the	

purpose	 of	 the	 legislation	 is	 “additional	 environmental	 protections and	

legislative	oversight.”	 We	assume, without	deciding, that	this	is	the	Initiative’s	
32

legislative	purpose.13		Because	the	State	is	a	party	to	the	impaired	contract,	the	

underlying	 legislative	 purpose	 is	 not	 entitled	 to	 the	 usual	 deference.	 	 Black	

argues	that	full	deference	should	still apply	here	because,	although	the	State	is	

a	party	to	the	lease,	it	derives	no	“financial	benefit”	from	the	impairment.	 But	

the	limitation	 on	a	 state’s	ability	 to	impair, through	 retroactive	legislation, a	

contract	 to	which	it	is	a	party applies	 regardless	of	whether	 the	impairment	

benefits	 the	 State	 financially.	 	 “[A]	 State	 is	 not	 completely	 free	 to	 consider	

impairing	 the	 obligations	 of	 its	 own	 contracts	 on	 a	 par	 with	 other	 policy	

alternatives.		Similarly,	a	State	is	not	free	to	impose	a	drastic	impairment	when	

an	evident	and	more	moderate	course	would	serve	its	purposes	equally	well.”		U.S.

Tr. Co.,	431	U.S. at	30-31 (emphasis	added).		There	clearly	was	a	more	moderate	

course	 available	 here	 that	 would	 have	 promoted	 the	 alleged	 goals	 of	

13		The	stated purpose	of	the	Initiative	is	not	specifically to prevent	the	Project from	being	built.

But	see NECEC	Transmission	LLC	v.	Bureau	of	Parks	&	Lands,	No.	BCD-CIV-2021-00058,	2021	Me.	Bus.	

& Consumer	LEXIS	2,	at	*19 (Dec.	16,	2021) (“Proponents	of	the	Initiative	included	a	political	action	

committee,	‘No	CMP	Corridor,’	which	repeatedly	stated	that	the	purpose	of	the	Initiative	was	to	stop	

the	Project.”).		Project	opponents	tried	that direct	approach in	a	2020	initiative	that	impermissibly	

targeted	the	PUC’s	authorization	for	this	Project.		Avangrid	Networks,	Inc.	v.	Sec’y	of	State,	2020	ME	

109,	¶	35,	237	A.3d	882.		The	State has	a	long-standing,	multifaceted	permitting	process	through	

which	several	state	agencies	and	impacted	local	governments	authorize	electric	transmission	lines.		

The	 2021	 Initiative	 did not	 purport to	 reverse a	 particular	 decision	 from	 a	 state	 agency	 or	

commission,	as	the	first	initiative	did.		But	the	2021	Initiative’s language affected no	agency	subject	

to	the	Designated	Lands	statutes other	than	the	Bureau;	affected no	activity	allowed	on	designated	

lands	other	than	the	construction	of	transmission	lines	and	other	linear	projects	on	public	reserved	

lands;	and made section	1 retroactive	to	September	16,	2014—a	date	that	appears	to	have	relevance	

only	 because	 it predates	 the	 execution	 of	 the	 2014	 lease. Opponents	 have	 swapped	 a targeted	

directive in	the	first	initiative for	a	nominally	nontargeted retroactive	mandate in	the	one	before	us	

now.
33

environmental	 protection	 and	 legislative	 oversight—to	 make	 the	 statutory	

change	 prospective	 only	 and	 require	 legislative	 approval	 for	 all	 future	

transmission	line	leases	on	public	lands.		Of	course,	if	the	true	purpose	of	the	

Initiative	was	to	stop	the	Project,	that more	moderate	course	would	not	have	

been	sufficient.

[¶45]	 	 Finally,	 we	 must	 determine whether	 the	 need	 for	 additional	

legislative	oversight	justifies	the	alteration	of	the	contracting	parties’	rights	and	

responsibilities. In	making	 that	determination,	we	must	consider the	 state’s	

authority	to	enter	into	the	agreement	in	the	first	instance. See U.S.	Tr. Co.,	431	

U.S.	at	21-24.		

[¶46]	 	 Black	 has	 offered no reason	 why the Initiative’s	 purpose	 to	

increase	legislative	oversight	and	environmental	protection	of	public	reserved	

lands	justifies	the	invalidation	of	the	parties’	lease and every	other	lease	that	

the	Bureau	has	granted since	2014	for	projects	within	the	scope	of	section	1	of	

the	Initiative.		No	emergency	gave	rise	to	section	1	of	the	Initiative,	nor	does	it	

remedy	any	broad	and	general	social	or	economic	problem.	 Over	the	years,	the	

Bureau	has	granted hundreds	of	leases	and	licenses	of	public	reserved	lands.		

The	 Bureau	 granted all	 these	 leases	 and	 licenses without	 engaging	 in	 any

rulemaking	or	other public	administrative	process.		Through	the	Initiative,	the	
34

legislative	power	has	reached	back	in	time	to	destroy	at	least	one lease and	to	

put	 the	 validity	 of	 hundreds	more	into	 question,	 all	without	 any	 showing	 of	

necessity	for	such	drastic	action.

[¶47] Based	on	the	lack	of	any “significant	and	legitimate”	countervailing	

public	purpose	 to	justify	 the	voiding of	 the	2020	lease,	we conclude	 that	the	

Contract	 Clause	 does	 not	 permit	 the	 impairment	 caused	 by	 section	 1	 of	 the	

Initiative. See	Energy	Rsrvs.	Grp.,	Inc,	459	U.S.	at	411-12;	see U.S. Tr.	Co.,	431	U.S.	

at	26-27;	Me.	Const.	art.	1,	§	11.		Accordingly,	the	2020	lease	was	not	voided	by	

the	Initiative, and	CMP’s	and	the	Bureau’s	appeals	remain	justiciable.		Black’s	

motion	 to	dismiss	 these	appeals	as	moot	is	 therefore	denied.	 	As	a	 result,	in	

addressing	 the	 remaining	 issues,	 we	 apply	 the	 law	 as	 it	 was prior	 to	 the	

Initiative,	codified	at	12	M.R.S.	§	1852(4)	(2021).

E. Requirements	 Applicable	 to	 the Bureau’s	 Granting of	 Leases	 of	

Public	Reserved	Lands

[¶48]		We	now	address	Black’s	contention	and	the	trial	court’s	ruling	that	

article	 IX,	 section	 23	 of	 the	 Maine	 Constitution	 and	 the	 Designated	 Lands

statutes required the	Bureau	to	follow a	“public	administrative	process”	before	

granting the 2020	lease.		
35

1. The	Bureau’s	Leasing	Authority	Generally

[¶49]		Prior	 to	 the	ratification	of	article	 IX,	section	23,	public	reserved	

lands	could	be	leased and were	managed	under	multiple-use	principles	by	the	

Bureau’s	predecessor	agency.		See P.L.	1987,	ch.	737,	pt. B,	§	2	(effective	Mar. 1,	

1989)	(codified	at 12 M.R.S.A. §	585(1),	(2)(A),	(4)	(Supp.	1988)).		That	agency	

realized	these	management	objectives	through	the	creation	of	comprehensive	

management	 plans	 and	 specific	 action	 plans,	 and	 it	 was	 authorized	 to	 lease	

public	 reserved	 lands	 for	 electric	 power	 transmission for	 up	 to	 a	

twenty-five-year term if	that	action	was	consistent	with	the	management	plans	

for	the	leased	area.		P.L.	1987,	ch.	737,	pt. B,	§	2 (effective	Mar.	1,	1989)(codified	

at	12	M.R.S.A. §	585(3),	(4)(C)	(Supp.	1988)).

[¶50]		The	ratification	of	article	 IX,	section	23	in	1993	did	not	directly	

amend this	statutory	scheme,	but	the	Legislature	could	no	longer	delegate to	

executive agencies,	 including	 the	 Bureau, the	 authority	 to	 reduce	 or	

substantially	alter	the	use of	designated	lands.		Furthermore,	as	the	trial	court	

described,	 the	 constitutional	 amendment	 “[took]	 back	 from	 the	 executive	

branch	authority	previously	delegated	to	it	by	the	Legislature. . . . [W]hat	was	

taken	back	was	the	final	say	as	to	whether	public	reserved	lands	could	be	sold,	

and—pertinent	 here—whether	 the	 uses	 of the	 public	 lands	 could	 be	
36

‘substantially	 altered.’”	 	 In	 other	 words,	 the	 executive	 branch	 was	 still	

authorized	 to	 grant utility	 leases,	 but	 only	 if those	 leases	 did	 not	 reduce	 or	

substantially	alter	the	uses	of	designated	land.

[¶51]		After	the	passage	of the	constitutional	amendment,	the	Legislature	

enacted	implementing	legislation,	 the	Designated	 Lands	 statutes,	in	which	it	

defined	the	term	“substantially	altered.”		See 12	M.R.S.	§	598(5).

“Substantially	 altered,” in	 the	 use	 of	 designated	 lands,	 means	

changed so	as	to	significantly	alter	physical	characteristics	in	a	way	

that	frustrates	the	essential	purposes	for	which	that	land	is	held	by	

the	State.

Id.		None of	the	parties	argues that	the	Legislature’s	definition	does	not	comport	

with	 the	 letter	 and	 intent	 of	 the	 constitutional	 term,	 so	 we	 accept	 the	

Legislature’s	definition	for	purposes	of	this	analysis.	 There	are	two	issues	that	

must	be	resolved	when	applying	 this	definition:	(1) whether	a	change	in use	

significantly	alters	the	physical	characteristics	of	the	land	and,	if	so,	(2)	whether	

that	 alteration	 frustrates	 the	 essential	 purposes	 for	 which	 the	 land	 is	 held.		

See id.

[¶52]	 	 The Bureau argues that	 the	 Legislature’s	 statutory	 scheme

reflected	 the	Legislature’s	view	 that no	utility	lease could	ever	be	deemed	 to	

result	in	a	substantial	alteration	of	the	use	of	public	reserved	land—even	if,	for	

example,	a	combination	of	utility	leases occupied	the	entirety	of	a	tract	of	public	
37

reserved	land.		We	cannot logically	assume that the	Legislature	ever	endorsed

this	 view. The	 essential	 purpose of	 public	 reserved	 lands is multiple-use	

management	 that achieves	 a	 sustained	 yield	 of	 products	 and	 services. Id.

§§ 598(5),	 1847(1);	 see	 also	 id. § 1845(1)(D).	 	 Multiple-use	 management	

requires	the	Bureau	to	catalog	the	various	resources	of	a	particular	public	lot;

to	 develop	 a	 management	 plan	 that	 “provide[s]	 for	 the	 demonstration	 of	

appropriate	 management	 practices	 that	 will	 enhance the timber,	 wildlife,	

recreation, economic and other	 values of	 the	 lands,”	 id. §	 1847(2); and to

manage	that	lot	in	such	a	way	that	no	single	purpose	frustrates	the	others and	

impairs	 the	 land’s	 productivity,	 see	 id.	 §	 1845(1)(D),	 (2).	 	 Considering this	

management	 scheme	together	 with the	 requirements	 imposed	 by	 article	 IX,	

section	23,	a lease	could	so significantly	alter	the	physical	characteristics	of	a	

public	lot that it	would	result,	practically	speaking,	in	the	Bureau	managing	the	

land	for	that	purpose	at	the	expense	of	all others.		See	id. §	1847(1)-(2).		Thus,	

the	 Legislature’s	 continued	 delegation	 of	 authority	 to	 grant utility	 leases	 on	

public	reserved	lands	did	not	mean that	the	Legislature	deemed that any	such	

lease	 could	 never result	 in	 a	 “substantial	 alteration”	 of	 use. Instead,	 the	

statutory	 scheme	 requires the	 Bureau	 to	 decide	 on	 a	 case-by-case	 basis	
38

whether it	has authority	to	lease public	reserved	land	for	utility	transmission	

lines.

2. The	Bureau’s Authority	to	Grant the	2020	Lease	Without	Any	

Formal	Administrative	Process

[¶53]		In	this	case,	our conclusion	that	the	Bureau	did	not	have	blanket

authority	to	grant a	lease	for	a	utility	transmission	line	without	determining	for	

itself	whether	 the	lease	would	substantially	alter	public	 reserved	lands	does	

not	mean	that	the	Legislature	required	the	Bureau	to	make	that determination	

pursuant	to	any particular	administrative	process.		Neither	article	IX,	section 23	

of	 the	 Maine	 Constitution, nor	 any	 statute,	 nor	 any	 decision	 by	 this	 Court,

explicitly	requires	the	Bureau	to	make	a	determination	regarding	substantial	

alteration	pursuant	to	a	public	administrative	process	before	granting	a	utility	

lease on	public	reserved	lands.		See	Me. Const.	art.	IX,	§	23;	12	M.R.S.	§§ 598 to	

598-B,	1852(4)(A) (2022);	12	M.R.S.	§	1852(4)(A)	(2021).

[¶54]	 	 Indeed,	 the	 Bureau’s	 general	 authority	 to	 “take	 actions	 on	 the	

public	reserved	lands,”	including	granting leases,	could	hardly	be	more	broad	

and	 sweeping:	 “The	 director	 may	 take	 actions	 on	 the	 public	 reserved	 lands	

consistent	with	the	management	plans	for	those	lands	and	upon	any	terms	and	

conditions	 and	 for	 any	 consideration	 the	 director	 considers	 reasonable.”		

12 M.R.S.	 §	 1847(3)	 (emphasis	 added).	 	 The	 delegation	 of	 leasing	 authority	
39

specific	to leases	 for utility	transmission	lines was	equally	broad	prior	to	the

passage	of	the	Initiative.		See	12	M.R.S. §	1852(4) (2021).			

[¶55]	 	 The	 Legislature	 clearly	 could	 have	 constrained	 the	 Bureau’s	

authority	to	grant leases	of	public	reserved	lands	in	the	manner	that	it	has	done	

for	other	agency	action,	such	as	leasing submerged	public	lands. See	12 M.R.S.	

§	 6072 (2022).	 	 The	 Legislature	 has	 required	 the	 Department	 of	 Marine	

Resources	(DMR)	to	follow	an	adjudicatory-type	process	pursuant	to	the	Maine	

Administrative	 Procedure	 Act in	 granting aquaculture	 leases.	 	 Id. § 6072(6)	

(“Prior	 to	 granting	 [an	 aquaculture]	 lease,	 the	 commissioner	 shall	 hold	 a	

hearing.		The	hearing	shall	be	an	adjudicatory	proceeding	and	shall	be	held	in	

the	manner	provided	under	the	Maine	Administrative	Procedure	Act . . . .”);	see	

also	12	M.R.S.	§	6001(13).		Because	the	aquaculture	lease	statute	designates	the	

lease	 procedure	 as	 adjudicatory,	 the	 statute	 requires notice	 and	 a	 written	

decision	and	requires	DMR	to	promulgate	the	rules	under	which	it	will	exercise	

its	leasing	authority.	 See	id.	§§ 6072(6)(B)	(“Under	 the	provisions	of	Title	5,	

section	9052,	the	leasing	procedure	must	require	notice	to	the	general	public.”),	

6072(7-A)	(“In	evaluating	the	proposed	lease,	the	commissioner	shall	take	into	

consideration	the	number	and	density	of	aquaculture	leases	in	an	area	and	may	

grant	the	lease	if	the	proposed	lease	meets	the	following	conditions	as	defined	
40

by	 rule.”),	 6072(10)(B)	 (requiring	 the	 Department	 to	 provide	 notice	 of	 the	

granting	 of	 a	 lease	 to	 riparian	 owners,	 intervenors,	 and	 the	 municipality	 in	

which	the	lease	was	granted).		In the	same	manner,	the	Legislature	has	required	

the	 Bureau	 to	 provide	 notice,	 receive	 comment, and	 hold	 hearings	 in	 other	

public	lands	 contexts.	 	See,	e.g., id. §§	 1814-A (easements	across	 rail	 tracks),	

1837(2) (sale	of	nonreserved	public	lands).

[¶56]		Although	 there	are	such	requirements	now,	at	 the	 time	of	 these	

leases	 there	was no	 similar	 set	 of	 requirements	 for	 the	Bureau’s	granting of	

leases	for	public	reserved	lands.14		See Me.	Const.	art.	IX,	§	23;	12	M.R.S.	§§ 598

14 During	the	spring	of	2022,	the	Maine	Legislature	passed L.D.	1075,	An	Act	to	Protect	Public	

Lands,	which	requires the	Bureau	to	adopt	rules	 for	determining	whether	a	proposed	activity	will	

reduce	or	substantially	alter	the	use	of	designated	lands	under	the	Bureau’s	jurisdiction,	but	the	law	

was	not	in	effect	at	the	time	of	the	execution	of	the	2020	lease.		See	P.L.	2021,	ch.	654	(effective	Aug. 8,	

2022);	L.D.	1075	(130th	Legis.	2022);	Comm.	Amend.	A	to	L.D.	1075,	No.	S-493	(130th	Legis.	2022).		

This	new	law	enacted	12	M.R.S.	§	598-C, which	provides, in	full:

§598-C.		Process	 for	determination	 of	 reduction	 or	 substantially	altered	use	 of	

designated	land

The	Department	of	Agriculture,	Conservation	and	Forestry,	Bureau	of	Parks	

and	 Lands	 shall	 adopt	 rules	 to	 establish	 an	 objective	 evaluation	 process	 for	

determining	if	a	proposed	activity	on	land	designated	under	this	chapter	and	under	

the	jurisdiction	of	the	bureau	would	cause	the	land	to	be	reduced	or	the	uses	of	the	

land	to	be	substantially	altered.		In	adopting	the	rules,	the	bureau	shall	observe	the	

requirements	 relating	 to	 designated	lands	in	 the	 Constitution	 of	Maine,	 Article	 IX,	

Section 23	 and	 ensure	 proper	 exercise	 of	 the	 bureau’s	 public	 trust	 responsibility.		

These	 rules	 must	 also	 include	 provisions	 for	 public	 notice	 and	 comment	 before	

authorizing	any	such	activity	and	for	determining	the	appropriate	instrument	to be	

used	 to	 authorize	 that	 activity,	including	 but	 not	limited	 to	whether	 an	 easement,	

lease,	license	or	other	instrument	should	be	used.		Rules	adopted	pursuant	 to	 this	

section	are	major	substantive	rules	as	defined	in	Title	5,	chapter	375,	subchapter 2-A.
41

to	598–B (2022);	12	M.R.S. § 1852(4) (2021);	cf. 12	M.R.S. §§	1814–A(1),	(4),	

1837(2),	1847(2),	1851(3),	(4) (2022).

[¶57]		More	fundamentally,	a government	agency’s	execution of	a	lease

of	government	property,	including	land,	is	neither	adjudicatory	nor	otherwise	

subject	to	a	formal	administrative	process	unless the legislative delegation of

leasing authority to an agency requires otherwise, as in the case of aquaculture

leases.		See,	e.g., Ala.	Aircraft	 Indus.	v.	United	States, 82 Fed. Cl. 757, 773 n.14

(2008) (“Decisions	by	contracting	officers	are	not	adjudicatory	decisions	to	be	

made	 on	 the	 record	 after	 a	 hearing. Nor	 are	 they	 formal	 rulemakings.”

(quotation	marks	omitted)); Sierra	Club	v.	Comm’r	of	the	Dep’t	of	Envtl.	Mgmt.,

791 N.E.2d 325, 332-33 (Mass. 2003) (agency’s approval of lease modification

was an exercise of legislatively delegated authority, not an adjudication); Flores	

v.	 Bd.	 of	 Land	 & Nat. Res.,	 424	 P.3d	 469,	 479-483	 (Haw.	 2018)	 (agency	 not	

required	to	hold	hearing	on	whether	to	consent	to	a	sublease);	see	also	Haverhill

Manor, Inc. v. Comm’r of Pub. Welfare, 330 N.E.2d 180, 190 (1975) (“The	APA	

provisions	applicable	to	adjudicatory	proceedings	are	.	.	.	inapposite,	since	in	

the	instant	circumstances	a	hearing	is	not	required	by	constitutional	right or	by	

any	provision	of	the	General	Laws.”	(citations	and	quotation	marks	omitted)).		
42

[¶58]	 	 At the time	 the 2020	 lease	 was granted,	 there	 was	 nothing	

requiring	the	Bureau	to	promulgate	rules	for	granting leases of	public	reserved	

lands.		When	the	Bureau	granted the	lease,	it	was	authorized	to	grant leases	of	

public	reserved	land	for	transmission	lines on	any	terms	it	deemed	reasonable,	

so	long	as	the	leases	did	not	reduce	or	substantially	alter	public	reserved	lands.		

[¶59]		Our	conclusion	that	the	Bureau	was	not	required	to	issue	findings	

or	 conduct	 any	 other	 “public	 administrative	 process”	 when	 it	 granted the	

2020 lease	 does	 not	 preclude	 review	 of	 the	 leasing	 decision	 pursuant	 to	

Rule 80C and	the	Maine	Administrative	Procedure	Act.		The	agency	decisions	

reviewable	under	 the	Maine	Administrative	Procedure	Act	are	not	limited	 to	

the	adjudicatory	proceedings	and	decisions	for	which	hearings	and	findings	are	

required.		See	Davric	Me.	Corp.	v.	Me. Harness	Racing	Comm’n,	1999	ME	99,	¶ 11,

732	 A.2d	 289	 (Rule	 80C	 review	 of	 state	 harness	 racing	 commission’s	

nonadjudicatory	decision	 to	certify	election	results). The	Federal	Circuit	has	

observed	 that	 “the	 [federal]	 Administrative	 Procedure	 Act does	 not	 itself	

require	an	agency	to	explain	the	basis	for	its	decision,	unless	an	adjudication	

required	to	be	made	on	the	record	or	a	formal	rulemaking	is	involved. .	.	.	[but]

even	if	the	agency	is	not	obligated	to	provide	reasons,	a	court	may	nonetheless	

order	the	agency	to	provide	explanation	if	such an	explanation	is	required	for	
43

meaningful	 judicial	 review.” Impresa	 Construzioni	 Geom.	 Domenico	 Garufi	 v.	

United	States,	238	F.3d	1324,	1337-38 (Fed.	Cir.	2001);	see also	Citizens	to	Pres.

Overton	 Park,	 Inc.	 v.	 Volpe,	 401	 U.S.	 402,	 417 (1971) (“[T]he Administrative	

Procedure	Act requirements	that	there	be	formal	findings	in	certain	rulemaking	

and	adjudicatory	proceedings	do	not	apply	to	the	Secretary’s	action	here.”)

[¶60]		We conclude	that,	under	the	law	in	effect	in 2014	and	2020,	the	

Bureau	was	legislatively	authorized	to	grant leases	of	utility	transmission	lines	

on	public	reserved	lands	that	would not	reduce	or	substantially	alter the	lands,	

without	giving	public	notice,	conducting	hearings,	adopting	findings	of	fact	and	

conclusions	 of	 law,	 or	 engaging	 in	 any	 of	 the	 other	 attributes	 of	 a	 public	

administrative	process.		

[¶61]		This	delineation	of	the	Bureau’s	leasing	authority	establishes,	in	

turn, that	the	scope	of judicial	review	of	the	grant of	the	2020 lease is	limited.		

No	formal	process	was	required in	connection	with	the grant of	the	2020	lease,	

and	 we	 do	 not	 review	 for	 compliance	 with	 nonexistent procedural	

requirements.		Instead,	our	review	is	limited	to	deciding	whether the	Bureau’s

grant of	 the	 2020	 lease was	 ultra	 vires because	the	 lease would	 result	 in	 a	

substantial	alteration	of public	reserved	land and therefore	had	to	be	approved	

by	the	Legislature.		We	now	turn	to	that	question.
44

F. The	 Validity	 of	 the	 2020	 Lease	 in	 Light of the	 Bureau’s	 Leasing	

Authority	

[¶62]	 	Although	Black’s	 brief frames	 one	 of	 the	issues	 as	 whether	 the	

leases	 reduce	 or	 substantially	alter	 public	 reserved	lands,	the	 brief does	 not	

develop	any	argument that	the	leases reduce	any	public	reserved	lands,	and	in	

fact	notes	 that	 “[t]he	 Bureau	 concedes	 that	 neither	 a	lease	 nor	 an	 easement	

conveys	any	land	and	therefore	the	acreage	in	both	cases	remains	the	same,	as	

it	must.”	 See 12	M.R.S.	§	598(4)	(“‘Reduced’ means	a	reduction	in	the	acreage	

of	an	individual	parcel	or	lot	of	designated	land .	.	.	.”).		Black’s ultra	vires	claim	

argues only	that	the	leases	“substantially	alter,”	and	not	that	they	reduce,	public	

reserved	lands.

[¶63]		A	threshold	question	is	whether	the	current	record	is	sufficient	to	

enable	us	to	resolve Black’s	ultra	vires	claim.		The	Bureau’s	and	CMP’s	briefs

ask	us	to vacate	the	judgment	and	remand	for	entry	of	a	judgment	affirming	the	

Bureau’s	 decision	 to	 grant the	 2020	 lease,	 and	 CMP	 proposes	 several	

alternatives	to	that	outcome.		Black’s	brief	asks	us	to	affirm	the	Superior	Court’s	

decision	vacating	the	2020	lease,	and	alternatively	seeks	a	remand	for	the	trial	
45

court	 “to	 take	 evidence”15 and	 decide	 the	 constitutional	 question	 of	 the	

Bureau’s	authority.		

[¶64]	 	 It	 is	 important	 to	 note	 that	 in	 assessing	 whether	 the	 Bureau’s	

granting of	the	2020	lease	was	ultra	vires, we	are	applying	the	law	as	it	existed	

at	the	time	the	2020	lease	was	granted.		See 12	M.R.S.	§	1852(4)	(2021).		The	

Initiative	and	resulting legislation	effectively	takes	away for	all	future	contracts	

and	leases the	Bureau’s	authority	to	make	a determination	regarding	whether	

a	 lease	 would	 cause	 a “substantial	 alteration,” stating	 that	 “[a]ny	

. . . transmission	 lines	 .	 .	 .	 are	 deemed	 to	 substantially	 alter	 the	 uses	 of	 the	

[public]	land	.	.	.	and	a	lease	or	conveyance	for	the	purpose	of	constructing	and	

operating	 such	 .	 .	 .	 transmission	 lines	 .	 .	 .	 may	 not	 be	 granted	 without	 first	

obtaining	 the	 vote	 of	 2/3	 of	 all	 the	 members	 elected	 to	 each	 House	 of	 the	

Legislature.”		I.B.	2021,	ch.	1,	§	1.		We	held	above	that	applying	the	provisions	

of	the	Initiative	to	the	2020	lease	would	substantially	impair	it and	therefore	be	

in	violation	of	the	Contract	Clause.		See	supra	¶	47.		Accordingly,	we	apply the	

facts	 contained	 in	 the	 record	to the	 law	 in	 effect	 prior	 to	 the	 2020	 lease	 to	

15		Black does	not	specify	what	evidence	he	would	proffer on	remand.	 Elsewhere,	his	brief	asserts	

that	“never	in	any	proceeding	at	any	level	were	Plaintiffs	allowed	 to	 submit	evidence,	 other	 than	

through	existing	public	documents,”	but	the	docket	in	this case	does	not	indicate	that	Black	ever	filed	

any	motion	for	the	taking	of	additional	evidence	pursuant	to	M.R.	Civ.	P.	80C(e).	
46

determine	whether	the	2020	lease	results	in	a	substantial	alteration	of	the	use	

of	the	public	lands	in	question.		We	turn	now	to	that	analysis.

[¶65]		As we	discussed	above,	there	are	two	issues	that	must	be	resolved	

when	 making	 a	 determination	 regarding	 whether	 a	 lease	 would	 cause	 a

“substantial	 alteration”:	 (1) whether	 a	 change	 in	 use	 significantly	 alters	 the	

physical	 characteristics	 of	 the	 land	 and,	 if	 so,	 (2)	 whether	 that	 alteration	

frustrates	 the	 essential	 purposes	 for	 which	 the	 land	 is	 held.	 	 See 12	 M.R.S.	

§ 598(5).		

[¶66]	 	 The	 relevant	 facts in	 the	 administrative	 record are	 free	 of	

ambiguity	 or	dispute.		The	two	 tracts	 of	public	 reserved	lands	in	question—

Johnson	 Mountain	 and	 West	 Forks	 Plantation—occupy	 a	 combined	 area	 of	

1,241	 acres	 in	 the	 Upper	 Kennebec	 Region.	 	 A.R.	 II0014,	 II0093;	 A.R.	

IV0029-38.16 Their	 physical	 characteristics	 include	 water	 bodies,	 wetlands,

and	primarily	standing	timber.		A.R.	II0093,	II0223-24.		There	are	no	unique	

features	 or	 protected	 areas	 on	 either tract.	 	 A.R.	 II0015,	 II0018-19, II0095,	

II0219.		Their	predominant	use	has	been	 for	timber	harvesting every	twenty	

years,	but	there	are	also	recreational	 facilities	and	an	existing	100-foot-wide,	

16 The	 A.R.	 citations	 throughout	 this	 section	 refer	 to	 the	 Administrative	 Record	 filed	 in	

conjunction	with	this	case, which	spans	seven	volumes	and	hundreds	of	pages.
47

three-mile-long utility	transmission	line	on	the	tracts.		A.R.	II0093,	II0235-38.		

The	essential	purposes	of	the	tracts are	to	support	the	multiple	uses	currently	

being	made	of	them	consistent	with	the	Bureau’s	management	plans.

[¶67]		Before	agreeing	 to	grant the	2014	lease,	 the	Bureau	considered	

locating	CMP’s	transmission	line	within	the clearing	that	contains	the existing	

line	on	the	tracts,	but	decided	against	it	because	of	the adverse	environmental	

impacts that	it	would	 cause.	 	A.R.	 III0033.	 	The	 Bureau	 also	 performed	 field	

work	and	persuaded	CMP	to	avoid	stream	crossings	and	reduce	the	total	area	

covered	by	the	lease.		A.R. III0181-82,	III0208-10,	III0233-38.		As	granted,	the	

2020 lease concerns 32.39 acres, or	2.6%	of	 the	combined	area	of	 the	public	

reserved	lands and	would	accommodate	a	0.9-mile-long section	of	the Project.		

A.R.	 I0001,	 I0013;	A.R.	 II0093.		Accordingly,	 the	section	of	the	Project on	 the	

tracts	would	be	wider,	but	shorter,	than	the	existing	transmission	line	corridor.		

The	2020	lease	includes	provisions	limiting	road	construction	and	protecting	

forest	resources	and	vernal	pools.		A.R.	I0004-06.		

[¶68]		Construction	of	a	transmission	line	as	permitted	by	the	2020	lease	

will	 necessarily	 result	 in	 the	 significant	 alteration	 of	 the	 32.39	 acres	 that	 it	

actually	encompasses,	but	that	alone	is	not	the	test.		The	clause “significantly	

alter[s] physical	characteristics in	a	way	that	frustrates	the	essential	purposes	
48

for	 which	 that	land	is	 held”	means that	 the	proposed activity will	 have	 that	

major	 effect either because	it will	 occupy such	 a	 large	 portion	 of	 the	public	

reserved	land or	because	it	will	change	the physical	characteristics of	the	public	

reserved	land	well beyond	the	area	that	it	occupies.		Given the	uses,	physical	

characteristics, and	 essential	 purposes	 of	 the	 Johnson	 Mountain	 and	 West	

Forks	Plantation	tracts,	we	see	no	reasonable	basis for	deciding	that a	second	

utility	 transmission	 line	 occupying	 2.6%	 of the	 combined	 tracts could	

significantly	 alter	 the	 physical	 characteristics	 of	 so	 much	 of	 the	 remaining	

97.4%	that	the	multiple-use	purposes	 for	which	the	tracts are	held	would	be	

frustrated.		

[¶69]	 	 In	 a	 Rule	 80C	 appeal	 we	 review	 the	 agency’s	 actions	 directly,	

without	deference	to	the	trial	court’s	decision,	and	compare	them	against	the	

record	evidence	to	determine	whether	the	agency’s	actions	were	in	excess	of	

their	statutory	authority	and	therefore	ultra	vires.		See	Anderson,	2009	ME	134,	

¶	2,	985	A.2d	501; Sold,	2005	ME	24,	¶	12,	868	A.2d	172.		Because	we	conclude

that	 the	 evidence	 contained	 in	 the	 record	 is	 sufficient,	 we	 see	 no	 reason	 to	

impose	a	further	burden	on	the	parties’	time	and	resources	by	remanding	for	

the	Bureau	to	take	further	evidence. We	conclude	that	the	record	establishes	
49

that	 the	 Bureau	 acted	 within	 its	 constitutional	 and	 statutory	 authority	 in	

granting the	2020	lease.		

The	entry	is:		

Judgment	 vacated.	 	 Remanded	 for	 entry	 of	 a	

judgment,	 consistent	 with	 this	 opinion,	 for the

Bureau	of	Parks	and	Lands,	NECEC	Transmission	

LLC, and	Central	Maine	Power	Co. on	all	counts	

of	the	first	amended	complaint.

Aaron	 M.	 Frey,	 Attorney	 General, Lauren	 E.	 Parker,	 Asst.	 Atty.	 Gen. (orally),	

Scott	W.	Boak,	Asst.	Atty	Gen.,	and	Laura	E.	Jensen,	Asst.	Atty.	Gen.,	Office	of	the	

Attorney	General,	Augusta,	for	appellant Bureau	of	Parks	and	Lands

Nolan	L.	Reichl,	Esq. (orally),	 Jared	S.	des	Rosiers,	Esq.,	and Kyle	M.	Noonan,	

Esq.,	Pierce	Atwood	LLP,	Portland,	for	appellants and	cross-appellees Central	

Maine	Power	Company	and	NECEC	Transmission	LLC

James	T.	Kilbreth,	Esq. (orally),	David	M.	Kallin,	Esq.,	Jeana	M.	McCormick,	Esq.,	

and	Sara	 P.	 Cressey,	 Esq.,	Drummond	Woodsum,	 Portland,	 for	appellees	and	

cross-appellants Russell	 Black, Richard	 A.	 Bennett,	Thomas	 B.	 Saviello,	Kent	

Ackley,	 Seth	 Berry,	 Chad	 Grignon,	 Denise	 Harlow,	 Margaret	 O’Neil,	 William	

Pluecker,	 Edwin	 Buzzell,	 Greg	 Caruso,	 Charlene	 Cummings,	 Robert	 Haynes	

o/b/o	 Old	 Canada	 Road	 National	 Scenic	 Byway,	 Cathy	 Johnson,	 Ron	 Joseph,	

John	 R.	 Nicholas	 Jr.,	 George	 A.	 Smith,	 Clifford	 Stevens,	 Todd	 Towle,	 and	 the	

Natural	Resources	Council	of	Maine

Timothy	 C.	 Woodcock,	 Esq., and	 Jonathan	 A.	 Pottle,	 Esq.,	 Eaton	 Peabody,	

Bangor, for	amicus	curiae	Maine	Forest	Products	Council

Orlando	E.	Delogu, amicus	curiae pro	se
50

P.	Andrew	Hamilton,	Esq.,	and	Casey	M.	Olesen,	Esq.,	Eaton	Peabody,	Bangor,

for	amicus	curiae	H.Q.	Energy	Services	(U.S.)	Inc.	

Sigmund	D.	Schutz,	Esq.,	Anthony	W.	Buxton,	Esq.,	and	Jonathan	Mermin,	Esq.,	

Preti	 Flaherty	 Beliveau	 &	 Pachios	 LLP,	 Portland,	 for	 amicus	 curiae	 Joshua	

Reynolds

James	 G.	 Monteleone,	 Esq., Bernstein	 Shur,	 Portland,	 for	 amici curiae	 Troy	

Jackson,	 Ben	 Chipman,	 Eloise	 Vitelli,	 Craig	 Hickman,	 Chloe	 Maxmin,	 Scott	

Cyrway,	Paul	Davis,	Patrick	Corey,	and	Jennifer	Poirier

Business	and	Consumer	Docket	docket	number	CV-2020-29

FOR	CLERK	REFERENCE	ONLY