Politics Trumps History
| 01 June 2009
When Harpswell's town meeting last March gave its approval to reopen the issue of the boundary between Harpswell and Brunswick, the Carrying Place Assembly wasted no time. The ad hoc committee, made up of three former selectman, a local attorney, and a life-long resident, contacted representative Leila Percy for her help in crafting a bill to be considered by the legislature. Since the Maine legislature is the body that settles border disputes between municipalities, they enlisted Percy to be the sponsor of a bill to reexamine the border between the two towns.
Percy says she agreed to sponsor the bill because of the thoroughness of the committee's research. Also she says that as the representative of Harpswell and Phippsburgh, she recognizes the importance of such issues to the residents.
"Being a legislator representing rural communities, I know it's about the integrity and history of the community. I know how important that is," says Percy.
While the gears in Augusta were coaxed into action, the committee continued its research. The evidence presented at Town Meeting by the Carrying Place Assembly had not convinced everyone that a border agreed to in 1998 should be overturned. Much of the evidence they presented was anecdotal-referring to clam leases and taxes paid to one town or another-and the description of the boundaries of the town at the time of its incorporation in 1758 is frustratingly vague.
Former selectman Gordon Weil was one who said that Harpswell should consider the matter settled. Weil negotiated the agreement to the border dispute after conflicts erupted over the rights to clam flats at the head of Middle Bay. He related how the towns approached the legislature with an agreement already crafted, which was readily adopted. Honoring that agreement is the right thing to do, Weil argued at the time. Despite his and others' objections, the measure passed, giving the Assembly permission to bring the matter back to the legislature.
A few on the Carrying Place Assembly, such as Malcolm "Laddie" Whidden, have been investigating this issue for over a decade. Whidden has compiled stacks of faded maps and photocopies of eighteenth-century papers, some of which were recorded in barely decipherable handwriting. As of March, even Whidden had no idea that he was at last close to finding a compelling and perhaps conclusive piece of evidence in their argument.
On May 6, the Committee on State and Local Government held an open hearing where the Carrying Place Assembly made their presentation and gave copies of their research to the committee members. A Brunswick representative also attended but provided no opposing information. As is not uncommon, according to Percy, fewer than half of the committee members were present at the hearing. In such cases, it is up to committee members to read the supporting documents so that when they meet again in workshop to examine the issue they are prepared.
"The Carrying Place did a phenomenal job of bringing forth the information. They were very well prepared," says Percy.
It was clear that at the committee's workshop a week later, Percy reports, not all the members had read the documents. The Assembly was about to be dealt a serious setback.
The day after the open hearing, Laddie Whidden drove to Boston in search of a piece of evidence that had eluded him for a decade.
"It was like a puzzle. I knew there was a piece missing. I could see where it should go. But we couldn't find it," Whidden says.
Whidden was speaking of the description of the northern boundary of Harpswell, but he might have been speaking literally. For indeed there was a piece missing-there was a piece of land missing. When Brunswick was incorporated as a town in 1739 it drew its southern boundary "by the shore", which means at the high tide line, along Mere Point and the head of Middle Bay. This created a wedge of land between Brunswick and North Yarmouth (of which the future town of Harpswell was part)-a piece of land that neither town owned. Commonly called a "gore", this wedge of land was not referred to in any of the references to Harpswell's incorporation that Whidden had found. So Whidden and the Carrying Place Assembly could only assume that when Harpswell was incorporated in 1758, its drew its northern boundary along Brunswick's preexisting border.
But assumption isn't law.
So Whidden visited the Massachusetts Archives to find the official record of the creation of the Second Parish of North Yarmouth (which would soon petition to become Harpswell). In a history book, Whidden had found a reference to the creation of the Second Parish, but its boundaries were not clearly defined. He knew the date of the petition, so it didn't take him long to find what he was looking for.
Whidden found that in 1749 the government of Massachusetts passed an order granting the petition of the inhabitants Merriconeag Neck and the islands adjacent it to become the Second Parish of North Yarmouth. Furthermore, the order includes those lands "togather (sic) with the Gore of Land so called Lying between North Yarmouth & Brunswick with the Northeast Part of the Island called great Sebascodegan [Great Island]."
Whidden was sure he had found his puzzle piece.
The gore of land between North Yarmouth and Brunswick was clearly included in the creation of the Second Parish of North Yarmouth, which in turn in 1758 became the town of Harpswell.
Unfortunately, history is an art not a science, and nothing is ever crystal clear. Former Selectman Weil contends that the 1758 Incorporation redraws the border (albeit vaguely) along the western side of the islands in Middle Bay and no further, leaving yet another gore of (in this case) water between Harpswell and Brunswick.
Carrying Place Assembly Member and attorney, John Loyd has a different opinion. In a letter to the Committee on State and Local Government, Loyd says that "it is inconceivable that the General Court would have intentionally or inadvertently created a gore between Brunswick and Harpswell when it incorporated Harpswell by taking away from Harpswell what had been ceded to it by North Yarmouth in 1749."
But Weil says that, intentional or not, the last legislative act (e.g., Harpswell's incorporation) takes precedent over any prior legislative acts. In other words, what matters is not history, but law.
As expected, Loyd respectfully disagrees with Weil, saying that the Articles of Incorporation must be read in the context of the prior actions creating the Second Parish of North Yarmouth. He goes on to say that the vague nature of the description of Harpswell's boundaries in the Articles of Incorporation, compels one to look backward into the record to the last clear description, which is, in the Assembly's opinion, the formation of the Second Parish.
Armed with this new information, Whidden and Loyd, along with fellow assembly members Sam Alexander, Gareth Anderson, and Amy Haible, returned to Augusta to attend the Committee on State and Local Government's legislative workshop on May 13.
Haible fears most on the committee had made up their minds without even reading the information presented to them a week earlier.
"Brunswick gave them a packet with a USGS map, which is meaningless in terms of legal boundaries, and old 1998 newspaper articles. Their point was that this has been decided, that the Legislature had heard all this information, this is old information and you should let sleeping dogs lie," says Haible.
The committee voted 10-3 Ought Not to Pass. According to Percy, however, the Minority Report written by those who voted in favor of the bill suggests the bill ought to be carried over to the next session of the Legislature. They also suggested that since Brunswick had not seen the new evidence, the two towns should begin discussion of the issue this summer, the hope being presumably that the towns will settle the dispute themselves. While not wildly optimistic, Percy is at work trying to convince representatives and senators to vote to carry the bill over. This would give the Carrying Place Assembly another shot at making their case.
Former Selectman Weil says that he does not dispute that the Assembly might be right, but that it is now a matter of honoring an agreement with the Town of Brunswick.
"We made a deal. We shook hands with Brunswick. We voted-they voted to make that deal. We went to the Legislature together and the Legislature passed a bill to create the boundary." Then Weil adds: "In a way [the new information] is irrelevant. I never said they were wrong-I said that it wasn't possible. It's a question of what is possible, which is why I was opposed at town meeting to backing out a deal we made."
The Assembly concedes that changing minds in the Legislature will be difficult.
"The natural tendency [of the legislature], having been through it once, is to say, You had your bite of the apple, you know, you're done. That's very difficult to overcome. And there we were not being the town, but being this little group made it doubly difficult," says Loyd.
Sam Alexander, another former selectmen, says that despite the setback, the Assembly is not finished.
"We're going to keep on because we know we are right. We know where the boundary was. And we're absolutely convinced that the 1998 decision was a mistake. We're not going to give in when a lot of the committee didn't even read it. And we're not going to let the more politically powerful town have their way by submitting newspaper articles and hearsay," Alexander says.