Nestle Waters of North America’s ongoing lawsuit against Fryeburg - the small Maine community that doesn’t want Nestle to build a 24/7 truck loading station in a residential area - opens its next saga on Tuesday, January 13.

After filing a lawsuit and four subsequent appeals, Nestle’s never prevailed against the town, but clearly that hasn’t stopped them from trying, and on Tuesday, the case returns to the Maine Supreme Court.

It’s an example of Nestle’s heavy-handed legal approach to small rural towns - one that belies their frequent protestations that they’re good corporate neighbors (via the Water in the News blog):

Jan. 13 (Portland, ME) Nestle Waters v. Fryeburg

Maine Supreme Judicial Court
142 Federal Street, Portland, ME
Oral Argument Schedule
Tuesday, January 13, 2009, 3:00 pm
Nestle Waters North America v. Town of Fryeburg et al. (Oxf-08-419)
Maine Supreme Judicial Court - Clerk’s Office

Matthew Pollack, Esq., Clerk (207) 822-4146
Sally A. Enoch, Esq., Staff Attorney (207) 822-4266

Nestle’s profit motive here must be sizable; not only have they incurred a lot of legal expenses (this is their second trip to the Maine Supreme Court on this issue), they’ve also created the bottled water equivalent of the Alamo - a very real warning to other small rural towns about the risks of involving yourself with the world’s largest food & beverage company.

The long and tortured history behind the Fryeburg mess is covered in Elizabeth Royte’s excellent Bottlemania book, though you’ll have to fill in the more recent events right here on the Internet.

It’s not a pretty picture; at one point Nestle’s lawyers argued their right to grow market share superceded the town’s right to say no:

Like the citizens of Fryeburg - especially those who don’t adore the idea of trucks driving through residentially zoned areas all day and night - we anxiously await the outcome.

Nestle’s record of interfering in small town politics is well known, and we’re seeing it yet again in Shapleigh, where the voter-mandated water extraction ordinance - clearly intended to limit the impact of extraction on the town - is being written by a consultant that Nestle referred to the Board of Selectman.

From the Water in the News blog:

The last draft made available for review, did not have any language limiting the amount of water allowed to be extracted or any hours of operation which have been asked for repeatedly by citizens at past hearings. A new addition to the ordinance is allowing existing water extraction activities to continue for three years before applying for a permit. I sure hope this is not what it sounds like. Remember the 16 borewells in Vernon Walker Game Management Area? Guess we will need to ask what this means for those well heads.

Mr. Tewhey has been hired by the Shapleigh Selectpeople to write the towns Large Scale Water Ordinance which in its current state is very biased in Nestle Corporation’s favor. Mr. Tewey was referred to the selectmen by Nestle.

Who’s ordinance is this? Nestlé’s or Shapleigh’s?

It’s vintage Nestle. They’re practiced at interfering in small town politics, and repeatedly refer consultants with strong connections to the water bottling giant.

That citizen concerns aren’t met, but Nestle’s are - a powerful reason why small towns can’t trust the food & beverage giant.

The Water in the News blog mentioned a citizen’s protest I wish I’d seen - anti-Nestle Waters of North America activists in Maine dumped bags of empty plastic water bottles in front of Nestle/Poland Spring’s law firm (Pierce Atwood).

On Friday, November 14, 2008, Maine youth teamed with Native Forest Network and Defending Water for Life to protest a Portland law firm for its role in the commodification of Maine’s groundwater.

People from across Maine brought trash bags full of empty plastic water bottles to Pierce Atwood to demonstrate the physical ramifications of the corporate bottling industry for Maine’s landfills.

The Portland-based law firm represents both Nestlé Waters North America and the Nature Conservancy in their water acquisition projects throughout Maine.

Now the law firm - a fixture in the lawsuit-plagued town of Fryeburg - can also “enjoy” what town landfills all over Maine experience on a daily basis - piles of plastic waste generated delivering something that flows into almost every house.

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It’s rare when a Nestle Waters of North America spokesperson speaks in a public forum where their conclusions can be questioned, but Nestle/Poland Spring operative Mark Dubois posted several comments to this Maine blog - including one where Nestle’s spin plays out in all its glory.

He positions Poland Spring as a Maine company (it’s been a Nestle “brand” since the company was purchased by Nestle), and mischaracterizes opposition to the Fryeburg loading station thusly:

Any suggestion that Fryeburg has repeatedly said no to a truck loading station ignores the fact that the planning board approved our application in 2005 after a lengthy process and thoroughly written decision after numerous public hearings. The appeal of that decision by
a small number of opponents in town is what has triggered the series of appeals since that time. The matter is now pending in the Maine Law Court and everyone is hoping that the Court’s decision will put this matter to rest.

My response to Nestle’s spin?

First, the original permit was issued in a way that suggests poor public process (which follows Nestle around like a shadow). It was written by one person on the planning commission - the same person who later secretly advised Nestle what was happening in the town via email - a relationship Nestle/Poland Spring (wasn’t it you, sir?) denied even
existed before a reporter produced the emails.

The original appeal was hardly the work of a “small number of opponents” (the same characterization used by Nestle elsewhere to minimize opposition). Those opponents “won” that appeal because a truck loading station doesn’t belong in a residentially zoned area, and further, that victory didn’t somehow “trigger” a string of appeals - Nestle/Poland Springs filed a lawsuit and four subsequent appeals (the fourth is being heard right now).

And yes, Nestle has lost every one.

If anyone wishes to see YouTube video of Nestle/Poland Spring’s lawyers arguing before the Maine Supreme Court that their right to grow market share superceded the town’s right of local control, then simply go here.

Finally, Mr. Dubois, as for your statement that: “The matter is now pending in the Maine Law Court and everyone is hoping that the Court’s decision will put this matter to rest.”

This could have been put to rest a long time ago if Nestle hadn’t tried bully the town of Fryeburg through legal means, and yet you act as if your multinational corporation somehow has no choice in the matter.

This could all end right now, Mr. Dubois - if only Nestle/Poland Spring would drop its lawsuit. Nobody’s forcing your multinational to continue its lawsuit, and what’s clear is that Nestle is willing to use extraordinary legal means to deny Fryeburg the right to say “no” to a truck loading station in residentially zoned areas.

If anyone has anything to add to Mr. Dubois’ perspective, feel free to visit Seavey’s blog, read the string of comments, and leave one of your own (respectful) comment.

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In yet another chapter of small-town Maine’s battle to retain local control of water supplies in the face of Nestle/Poland Spring’s expansion plans, voters in Wells (ME) recently passed a water extraction moratorium.

Designed to give the town breathing room to craft a local water extraction ordinance, the moratorium is temporary, and the hard work of crafting an ordinance is just beginning

In an email conservation between StopNestleWaters.org and Ms. El-Shafei of Save Our Water (an activist leading the charge for an ordinance), she said:

“We realize that this victory will be short-lived unless we can write an ordinance which will protect our groundwater from corporate exploitation, a rights-based ordinance, as opposed to a regulatory ordinance.

Simultaneously, we will be educating the community about just what a rights-based ordinance is and try to persuade them that this is the only way to go. That will not be an easy task as this is a conservative community. But people only have to look at the case of Fryeburg, Maine where citizens have been entangled in a costly legal battle for years, as the regulatory laws favor corporate rights over the rights of the citizens.”

In a less-pressured environment, a moratorium wouldn’t even be necessary, though it does reveal a certain mistrust of Nestle/Poland Spring among Mainers, who have witnessed a few too many lawsuits and “negotiated-in-secret” surprises.

Now, a process for developing that moratorium is becoming clear::

The process appears most likely to fall to a newly minted committee in Wells. Known as the Ordinance Review Committee, it was created in the fall to take a critical look at all of the town’s ordinances.

Officials indicate the committee will be charged with coming up with a draft water extraction ordinance, although the Board of Selectmen has not made a formal decision on the matter.

“We established the new committee,” said Joan Mooney, selectmen chairwoman. “They have a long list of ordinances they need to get done. (The water extraction ordinance) will be one of their priorities.”

Mooney said she expected the committee would look at samples of ordinances that other towns have already crafted as a basis for their work. “Then they’ll work with selectmen to get an ordinance written to take to the public.”

Good luck to the citizens of Wells, who clearly voted to retain control of their water and economy.

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This was forwarded to StopNestleWaters.org from a Fryebrug resident (city next to Denmark), and touches on a recurring theme: how do small towns write ordinances capable of protecting themselves from extractive industries like Nestle/Poland Spring.

It asks tough questions that every town should answer when they’re being courted by Nestle/Poland Spring.

*********

This is an open letter to all the citizens of Denmark who will be attending the “Open Town Meeting” on November 22nd at town hall.

The purpose of this meeting is for Poland Spring/Nestle to gain the approval for the renewal of their “Permit Application for Water Extraction” and to amend this permit to include an additional borehole and well house. There are many concerns and questions about this permit renewal and our current water ordinance. Since our ordinance is a work in progress, we feel that it would be a great opportunity to share with you some thoughts and ideas for improving our ordinance.

• We need to move the authority for this ordinance and permitting process back to, our voter elected, Planning Board where it rightfully belongs. Every other town water ordinance we reviewed squarely gives responsibility to their Planning Board. We are the only town where the selectmen have taken control of the ordinance and water permitting application process.
• We need to add language to address and protect the environmental issues and ecological systems. Our current ordinance addresses neither of these.
• We need to have a bond or other security posted prior to approval of a water extraction permit, so residents can know the amount of coverage.
• Alert and Action levels need to be clearly defined and set prior to approval of any permit. Exactly what water levels indicate an adverse effect?
• If we hit a pre-determined Action level and the applicant refuses to stop extracting water, what is our recourse? Should we be assessing a monetary penalty in our ordinance?
• Our code enforcement officer should not need to make an appointment to visit the extraction site.
• We need to know where the load out facility will be located prior to the renewal of the permit. Will it be in Denmark?
• We need to have effective, strong language in our ordinance that would govern hours of operation, noise levels, and glare from lights, increased traffic, and similar potential for nuisance. Our ordinance currently says that these nuisances are unlikely, but since we don’t know where the load out facility will be located, these may be very likely.

Our town officials have developed a great ordinance. However, in three years time, things have changed. Many towns have used Denmark’s water ordinance as a starting point. They have added stronger language to their water ordinances. Since our ordinance is a work in progress, we need to make some additional changes to our ordinance as well.

Please come to the hearing Nov,22 at 9:00 am held at the Denmark Town office.

– Natural Resource Defenders

In an attempt to protect its up-for-reneweal well permit in Denmark, Maine (the town next to Fryeburg and the source of the water Nestles wants to pump to a Fryeburg loading station), Nestle/Poland Spring have taken to running regular advertising, a close look at which is illuminating:

Note the use of “local” throughout the ad. It’s a recurring theme with Poland Springs: “We’re a Maine company” or “we’re a local company” messages abound, ignoring the fact that Nestle is the world’s largest food and beverage corporation.

Make no mistake; the profits from the sale of the water extracted in Denmark don’t stay local - they flow directly to corporate headquarters, and the town’s water resource is practically given away in return for… well, not even jobs in this case (it’s a well).

Defining $26,000 as “significant” tax revenue is a stretch, even by
small town standards. In truth, wells and loading stations deliver few
benefits to local economies (unless you define truck traffic, noise and
diesel pollution as “benefits”).

Our pick for “Nestle’s Most Astonishing Doublespeak of the Day?”

Given that one town away - in Fryeburg - Nestle/Poland Spring are actively trying to usurp local control through extraordinary legal means (they’ve sued/appealed the Fryeburg Planning Commission’s “no” decision five times).

At one point they argued that their right to grow market share superseded the town’s right to say “no.”

Respecting local control?

Only when it’s Nestle pulling the strings.

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The citizens of Wells, Maine approved a water extraction moratorium, buying the town the time to craft a water use ordinance. From the Seacoastonline.com site:

They also approved a six-month moratorium on large scale water extraction in Wells, culminating a citizen uprising that began last summer in opposition to the Kennebunk, Kennebunkport and Wells Water District’s negotiations with Poland Spring/Nestlé.

The water moratorium passed by a 3,773 to 1,765 margin. In an e-mail, Jamilla El Shafei, a leader with the Save Our Water group that spearheaded opposition to KKW’s involvement with Poland Spring, said the Wells vote was “an important victory and an issue which people in our area care about deeply about.”

Towns are voting in moratoriums to give them the “breathing space” to craft local water use ordinances, largely as a result of several Nestle/Poland Spring projects which didn’t appear on the public’s radar until they were almost signed.

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Though everybody said it was a dead issue, the idea of Clinton selling Wekepeke water to Nestle was raised again at the Clinton Selectmen meeting.

Like a zombie rising from the grave to eat the brains of the living, this is a bad idea that simply won’t go away:

From the Worcester Telegram & Gazette News:

The loss of $250,000 in state money to fix deteriorating earthen dams at the Clinton-owned Wekepeke Reservoir in Sterling last night prompted a discussion among selectmen of revisiting selling Wekepeke water to Nestlé Waters North America for bottling.

A contract between the town and Nestlé allowing the bottling company access to the 564-acre parcel for testing will expire in March.

The idea was initially an unpopular among Sterling residents, where the Wekepeke reservoir is located, and there are some significant legal questions about Clinton’s right to sell the water.

Some even felt the Clinton Selectmen misrepresented the extent of the negotiations with Nestle, and given all the questions and opposition, the whole project was apparently put to rest.

Still, it appears several of the selectmen don’t want to re-open the negotiation, which will hopefully (and finally) put this issue to bed:

After much opposition in Sterling and some legal questions, the town earlier this year turned down a deal with Nestlé that would have included money to repair the four dams, two of which were considered in danger of collapsing. The Wekepeke, with five reservoirs, was once Clinton’s public water supply, but has not been used since the 1960s.

Some Sterling residents have contended all along that Nestlé has not given up on buying Wekepeke water.

Selectman Anthony M. Fiorentino suggested that with the state money for dam repairs cut, the town might look again at the Nestlé proposal.

But Selectmen Mary Rose Dickhaut, Kathleen A. Sheridan, and James J. LeBlanc were against it.

“I think there are too many consequences,” Ms. Dickhaut said. “I thought we had put this to rest.”

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While Nestle’s ads in the local papers refuse to acknowledge what they’re doing in Fryeburg (that’s five lawsuits/appeals and counting), the reality is this: the multinational has behaved badly towards this tiny rural town, which simply said “no” to Nestle’s attempt to build a 100 truck-trips-per-day truck loading station in a residential area.

Nestle responded with a series of suits and appeals, at one point essentially arguing in front of the Maine Supreme Court that their right to grow market share superseded the town’s right to say “no.”

Incidents like this put the lie to Nestle’s newly formulated “we’re a good corporate neighbor” public relations campaign, which is apparently what you do when you’re unwilling to alter your business model for a less predatory stance.

You can see the original post at the Water in News site:

In June of 2005: Nestlé Waters North America submitted an application to the Fryeburg Planning Board to construct a trucking facility in a Rural Residential District. The site would be used to load up to 50 eighteen-wheeler water tanker trucks over a 24 hour period, seven days a week, 365 days a year with water extracted from the neighboring town of Denmark. All trucks would enter onto a section of Rt 302 that is identified by the Maine Department of Transportation as a high crash location.

On October 19, 2005: the Fryeburg Planning Board approved a 16 page result orientated decision drafted by only one member of the board and not shared with all members of the Planning Board until the night of the vote.

A loose knit group on citizens formed, calling themselves “Western Maine Residents for Rural Living.” The group hired an attorney and exercised their democratic right to file an appeal to the Fryeburg Zoning Board of Appeals in regards to the Planning Board’s decision.

On January 27, 2006: the Fryeburg Zoning Board of Appeals denied Nestlé’s permit issued by the Planning Board.

On March 21, 2006: Nestlé Waters North America Inc, as plaintiff, filed suit in the Oxford County Superior Court system against the Inhabitants of the Town of Fryeburg, Maine, the Board of Appeals of Said Town and Western Maine Residents for Rural Living.

On August 9, 2006: Superior Court Justice Roland A. Cole remanded the case back to the Fryeburg Planning Board for additional findings and conclusions on key points brought up by the citizens of Fryeburg in 2005.

On August 24, 2006: Nestlé does not follow Judge Cole’s remand, and instead filed suit in the Maine Supreme Judicial Court. Nestlé Waters North America v. Inhabitants of the Town of Fryeburg and Western Maine Residents for Rural Living.

On July 24, 2007: After numerous filing of briefs and oral testimony by both parties, the Maine Supreme Judicial Court concludes that because the Superior Court’s remand was not acted on by the Planning Board in Fryeburg, the case was not ripe for them to make a decision. The Court dismissed Nestlé’s arguments.

From July 31 to November 13, 2007: The Fryeburg Planning Board addressed the Superior Court remand and on November, 13 2007 denied Nestlé’s permit.

December 2007: Nestlé filed an appeal of the 2007 Fryeburg Planning Board’s decision to the local Fryeburg Zoning Board of Appeals.

On January 28, 2008: The Fryeburg Zoning Board of Appeals upheld the 2007 Planning Board decision and denies Nestlé a permit again.

On March 2008: Nestlé sued the town of Fryeburg again in the Maine Superior Court, Nestle Waters North America Inc v. Inhabitants of the Town of Fryeburg and Western Maine Residents for Rural Living.

On July 31, 2008: Judge Cole of the Maine Superior Court denied Nestlé a permit.

On September 25, 2008: Nestlé Waters North America Inc brings suit again to the Maine Supreme Judicial Court. Nestlé Waters North America Inc appellant v. Town of Fryeburg, Maine and Western Maine Residents for Rural Living, appellees.

As of October 17, 2008: The Supreme Court is awaiting the brief of Western Maine Residents for Rural Living.

At StopNestleWaters.org, we have to ask - is Nestle avaricious beyond all reason, or are they simply inept?

In Fryeburg, they’ve created a PR problem that simply isn’t going to go away - at least not as long as they’re suing the town in an attempt to force their truck loading station on it.

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If a Hollywood movie was ever to be made about Nestle Waters of North America, the tiny town of Fryeburg, ME would nicely fill the role of a compelling underdog - the tiny town that stood up to the predatory multinational.

Nestle has sued the rural town of Fryeburg five times in an attempt to install a truck loading station in a residential area, and while Nestle never intended to do so, they’ve created an Alamo-esque rallying point for those fighting Nestle’s depredations in other areas.

They’ve also created $39,000 in legal costs, $21,000 of which need to be paid off. From the Water in the News blog:

At each and every board or court appearance (click for Timeline), Western Maine Residents for Rural Living has countered Nestlé’s legal army with reply briefs. We are forced by Nestlé to engage them in this arena which by both its complexities, costs and time would be overwhelming for most. We have stood our ground and have stayed the course. We have been fortunate to have one of the best law firms in Maine representing us, Verrill Dana PLLC and its partner Atty. Scott Anderson. Forty months of litigation and no permit issued.

Western Maine Residents for Rural Living have done much more than just fight a local land use issue. Their persistence has brought attention to a nationwide battle with Nestlé. Momentum, resolve, persistence and commitment–whatever you call it–Fryeburg has demonstrated it can be done.

In the past, I’ve suggested that Nestle’s bizarre, over-the-top
string of lawsuits against Fryeburg weren’t so much designed to win a
legal challenge as they were to bankrupt those opposing their
residentially sited truck loading zone - and to serve as a warning to
other small towns thinking of opposing Nestle.

Today, I stick by that analysis, and fear that unless some money is quickly raised, Nestle could win this one.

If you want to help, this is the contact information posted in the original blog post:

Checks should be made payable to: “Verrill Dana, PLLC”
Please note in the memo: “WMRRL”

Mail to:
T.Scott Gamwell
30 Hemlock Bridge Road
Fryeburg, Maine 04037

Thank you. Contacts: (207) 935-3811 and librarianef@hotmail.com (Emily Fletcher, Fryeburg).

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In an ad run in the Bridgton News (no online edition), Nestle Waters of North America tries to pretend its lawsuit and four subsuquent appeals (including a hearing before the Maine State Supreme Court) against the rural town of Fryeburg

I recently posted a story about a residents’ meeting in Denmark, where Nestle’s well permit is up for renewal. (Denmark is the source of the water Nestle wants to pump to a loading station in a residential section of Fryeburg, the permit for which has been repeatedly denied by the town).

Nestle - unhappy with the growing opposition to their wells in Denmark - bought an ad in the newspaper, suggesting they alone had a grasp of the “facts,” while opposition information was “fiction.”

To get a sense of their grasp of the facts, look at #5 in the ad below:

To paraphrase Nestle, “the facts are” that Fletcher’s statement is accurate, if a little forward-looking. Nestle’s permit for a loading station was first approved by Fryeburg’s planning commission, but then rejected because there’s no way you can pretend 100 heavy truck trips per day wouldn’t have a substantial impact on a residential area.

Nestle’s lawsuit and four subsuquent appeals - one of which was argued in front of the Maine Supreme Court - can’t be construed as anything but suing the town five times, and as Fletcher noted, another appeal is likely.

Finally, in #6 in the ad above, Nestle characterized opposition to their loading station as being the work of a “vocal minority” - an assertion which ignores the moratorium on bulk water export passed by Freyburg’s voters 467 to 304.

By what math does 467 to 304 work out to a minority?

Perhaps in Nestle’s corporate world, pretending something isn’t happening is good enough, but rural, small town America has a little more common sense than that.

If any of our Fryeburg/Denmark area readers has feedback about the ad’s reception in either town, feel free to post it in the comments section below. We’d love to hear from you.

We leave you with YouTube video of Nestle/Poland Spring’s argument before the Maine State Supreme Court, where they apparently suggest their right to grow market share supercedes local control of water, planning, noise and traffic:

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