A message from Rand Stowell, president of Friends of Maine's Mountains:
Anybody who opposes industrial wind in Maine is familiar with hearing one-sided stories. Unfortunately, another one ran yesterday. One thing we've learned through the years: try to tell the truth about the industrial wind lobby, and you attract attention. Even from the state's top law enforcement official.
As Founder and current President of Friends of Maine’s Mountains (FMM), I write to thank our supporters who saw recent news accounts and contacted us to ask questions. Below you will read the answers to your questions. FMM has enjoyed support from a broad group of people, and it still does. Since the unfortunate Attorney General matter was closed your reception has been heartwarming. FMM is pleased to be stronger than ever.
In early 2014 FMM was asked by the Maine Attorney General’s (AG) office to cooperate with an inquiry into FMM’s business practices. FMM is a 501(c)(3) non-profit corporation registered in Maine. The AG oversees non-profit corporations in the state. FMM fully cooperated, providing every available record ever generated; all of our books, files, bank statements, emails, legal records, meeting minutes…everything. It was more extensive than an IRS audit, and it clearly showed that there was no wrongdoing.
After ten months FMM and the AG agreed to a few changes in FMM’s bylaws, and a major distraction and drag on our resources was put behind us.
Why did FMM come under the AG’s scrutiny? At least one former ally, seeking to discredit FMM, contacted the AG with sensational stories of wrongdoing.
FMM’s enemies had apparently hoped to see the Attorney General press charges for supposedly heinous offenses. It was an exhausting exercise, but now that FMM has defended the attack and finally put it behind us, we are eager to resume our important work.
There will always be voices of dissent. Dissent must be aired, and aired constructively. But it is not ok for dissent to come destructively, especially from our own side. This recent unfortunate story was instigated by enemies of FMM to undermine and sabotage FMM. That was not dissent; it was destruction.
Today I will write just this once to set the record straight and to correct the malicious and destructive criticism that some of FMM's one-time allies sadly decided to levy.
"Malicious" not only toward FMM, but also malicious to individuals engaged in conducting FMM's business.
"Destructive" of FMM, its mission, and our personal/professional reputations.
Considering the vitriol that came last year from these former allies, both directly to us and to the public, one might have thought that FMM had injured someone or something, when in fact, it had done neither. On the contrary, it was FMM’s detractors who intended to cause harm, as I will share here.
Malicious and destructive are strong terms, but there is no other description for the attack.
FMM is a corporation. I was one of its founders, and I have served as a director and officer since 2009. Directors and officers of a corporation have a fiduciary duty to the corporation under the Maine Non-Profit Corporations Act (Title 13-B). Moreover, FMM is not a membership organization or a democracy. While it is highly sensitive to the needs and wants of its supporters, its duty is to itself and its mission.
Other than FMM’s vendors, no person engages in FMM affairs for personal financial gain. In fact, many (if not most) of FMM's vendors also contribute to the cause when those vendors perform work at discounted fees, and some have even written-off portions of their bills. Chris O'Neil is one of those vendors who provide professional services to FMM at a deep discount. Through discounts (and also write-offs) he has donated tens of thousands of dollars to the corporation. I am retired but I am an attorney. I do not charge FMM for my volunteer service, but if the hours I have donated to FMM had been billed, it would have cost FMM hundreds of thousand of dollars. The work is gratifying and I do not write to receive accolades.
“Paying bills” brings us to why I write today, as it is central to the recent attack on FMM.
My former home sat on the north shore of picturesque Webb Lake in Weld. When I learned that a developer called “Patriot Renewables” had plans to build a wind project on the opposite shore, atop Saddleback Ridge and another mountain, I did what most people do: I got interested, got educated, and got involved.
In 2009 I teamed up with a few colleagues and we incorporated FMM. While the focus of FMM as a 501(c)(3) was to be educational and statewide, FMM also engaged in litigation opposing the specific Saddleback Ridge project. This was (and is) in addition to all the statewide work that FMM does. Over the years we have opposed and litigated numerous projects at all levels of Maine government. Saddleback Ridge was ultimately permitted and it is now under construction, but it was a long fight.
Through four years in the Saddleback Ridge saga, FMM opposed, lost, appealed, opposed, lost, appealed…over and over. In the first round of permitting, Saddleback Ridge Wind did what customarily is done in litigation: they approached the opposing party (FMM) to discuss if a negotiated settlement would allow the project to advance.
No actual offer was made, yet FMM was firm: "No way. FMM will take this all the way to the Supreme Court if necessary."
At the various permitting stages and subsequent appeals, some victories were gained. FMM assembled over 20 Saddleback neighbors and abutters and arranged to have them named as appellants in the suit. Additionally FMM used this very Saddleback case as the lever in getting the Department of Environmental Protection and Legislature to write new protective statewide wind turbine noise rules. By gaining a deed to an adjacent mountain, FMM also forced the developer to significantly reduce the number of turbines, thereby shrinking the project and protecting that mountain.
During these years the developer, Saddleback Ridge Wind (SRW), was frustrated by FMM's stalwart efforts. SRW gradually reached settlement accommodations with many of the neighbors in the appeal. Some neighbors received cash from the developer, others got noise easement compensation, and some even sold their properties to Saddleback Ridge Wind for above-market prices. Before reaching the final FMM settlement in January, 2014, FMM got in touch with all the remaining individual appellants and advised them that the case did not have a prayer, and it was going to be dismissed, so they would be wise to seriously consider what they had been offered by the wind company.
Settlements are confidential, but FMM estimates that neighbors extracted over a million dollars from the developer. You can rest assured that those people would not have been accommodated had it not been for FMM’s efforts, and none of them would express an opinion that FMM did not fight a good fight. As one of those neighbors who would lose property value, I also received mitigation, and only after everyone else had the opportunity to be compensated.
Concurrently during those years, SRW continued to ask FMM if it was interested in "settling" the case. This is common practice in litigation. But FMM always refused to settle, as long as there was a chance its attorney could find a creative way to stop the project despite our disadvantages under the Wind Siting Law. On several occasions FMM, always struggling to pay for these costly endeavors, asked its attorney to handicap the chances of winning. He was willing to press on, but he always advised that FMM would be wise to settle and salvage something, perhaps recover some of our litigation costs. He was sure that the project would ultimately be permitted and built.
As with all wind projects, our ability to delay can be a victory of sorts. Financing arrangements, one-time Stimulus grants, and the annually expiring Production Tax Credit were all good reasons for FMM to stall the project (and good reasons for the wind company to settle with FMM). Delay also allowed FMM to raise money from contributors, which has always been a difficult chore. That said, our attorney was dedicated and very fair in granting FMM forbearance, discounts, and even write offs as the fees would be incurred in bunches. Many readers of this post have responded to FMM's oft-heard plea: "Please send money. If we can raise $15,000 by Friday, our attorney will reduce his bill by $5,000."
After three years of opposing and appealing and delaying Saddleback Ridge Wind, FMM lost its third appeal, finally at the Board of Environmental Protection (BEP). The next level of appeal would have been a return to the Supreme Court. FMM's lawyer informed us that he would remove himself from the litigation and would not appeal the case to the Supreme Court because the case was “essentially frivolous” and could be “professionally embarrassing” to him, possibly inviting “sanctions” from the Bar Overseers.
FMM, with me temporarily acting as attorney, filed the Supreme Court appeal anyway.
With a month to go until our Supreme Court date, FMM had new Directors (another not uncommon phenomenon, as the work is hard) who had generously promised to both find and fund an attorney. While those promises invigorated FMM's spirits, neither promise was fulfilled. I was suddenly and reluctantly the attorney of record in the Supreme Court case, and like FMM's lawyer, I knew that the case had no merit. I shared it with several attorneys who confirmed the same opinion. None of them would take the case either. I advised the Board that I would be withdrawing as FMM’s lawyer, and if they insisted on going to the Supreme Court they needed to find (and fund) another lawyer. No lawyer was found.
Saddleback Ridge and all our other activities were costly. Importantly, the Saddleback Ridge case was FMM’s way to test the new Wind Law on its various issues. Because we used this case to challenge the Wind Law in every way we could, FMM amassed payables into the six-figures. Hurtling toward the Supreme Court with a hopeless legal position and with an opposing party possibly still willing to "pay our fees" in the case (which is a common outcome in litigation) FMM faced a decision. Abandon the case? Press forward? Settle?
Settling, however prudent, was an obviously unpleasant thought from a public relations standpoint. FMM has been critical of various Maine organizations that accept the wind industry's money and coincidentally SUPPORT the wind industry. Of course FMM is obviously different: there is no question that FMM staunchly OPPOSES the wind industry.
So in the final analysis, given the situation, I decided that FMM had gotten all it could from the Saddleback litigation. With the opposing party prepared to compensate FMM for legal fees I was prepared to consider a settlement offer. Indeed it would have been a breach of my corporate fiduciary duty to NOT consider such a proposal that would pay the bills.
The contrast was stunning. Rather than address the needs of the Corporation at that critical time, one new Director, who had been elected a few months earlier on his promises of raising “millions” of dollars, chose instead to donate bumper stickers and a new website that made amateurish and non-credible pronouncements in contradiction to FMM's mission/message. This website was called "Saving Maine" and it was subtitled "A project of FMM." I was willing to see what this "project" might do, but from the start it quickly became apparent that Saving Maine was not in sync with FMM's mission, it would not help win Saddleback, and it would not raise money for the pending case.
That Director was steadfast in opposition to SRW and never fully supported settlement on any terms, or even consideration thereof. We joked about his “never surrender / die on this hill” attitude, but it was not a joke. A Director must put the corporation above his own emotions. Still FMM knew that at least three and maybe four of the five Directors understood the situation and would accept a reasonable settlement if it was again offered, as it had been from time to time for the duration of the case. Another new Director, who had, after assessing the SRW case and the chances of winning as weak, said that settling the case with SRW was "a no brainer."
With respected vendors, consultants, lawyers, and other creditors pressing FMM for payment, with new wind project proposals to oppose elsewhere in Maine, with a public communications plan ready to be deployed, and with a new legislative session about to begin, it actually WAS a no brainer to accept funding to cover FMM’s costs in return for abandoning a hopeless case...if the wind company was still willing to pay. Sure enough, to avoid missing the forthcoming construction season, SRW approached FMM with one last offer.
Indeed, any reasonable person who understands business and who understands a Director’s fiduciary duty would have to consider such an offer, given the circumstances. Instead, the first Director above continued to promise "millions" in donations from his Rolodex of "heavy hitters," despite months of this same promise and no results. He even declared to the Board that if he ever attained success fundraising, then "no new monies coming in to FMM will go to pay old obligations," and he actively lobbied other Directors to support the policy wherein “those vendors are not my concern.” He was planning to take FMM “in a new direction.”
Astonishingly, he declared that the payables incurred for FMM’s good work prior to his arrival were not his obligation, and he had no intention to honor those obligations.
I found it to be unconscionable and immoral, and I refused to be part of willfully "stiffing" FMM's good creditors who had been dedicated, generous and patient with us. While this Director’s breach of fiduciary duty which would have driven the corporation to bankruptcy was not the last straw, it could have been.
Meanwhile the second Director (who later was found not to be a Director at all), after colluding with the first Director, suddenly flipped his “no brainer” position wherein he had been amenable to settlement discussions.
What ensued was unfortunate and extraordinary, but these two men formed a seditious faction within the Board, engaging in multiple and egregious breaches of fiduciary duty. They even plotted, in covertly-held Director meetings, conducting illegal secret votes, to remove the Directors who remained open to settlement.
The outcome of their subversive secret meetings was a scheme to remove Chris O'Neil and me from the Board, to “stiff” the vendors, and to steer FMM in a new and ill-advised direction away from its mission (and most certainly into bankruptcy). As founder and President, I was determined that FMM would not be hijacked and crashed by the Saving Maine uprising, where it was assured to wither and die in insignificance and obscurity.
The FMM Executive Committee, which had been officially created by FMM in 2010, acting as the Board, as authorized by Maine Statute, by the FMM Bylaws, and by FMM's Articles of Incorporation, voted to remove the two insurrectionist Directors. The removal of Directors was clearly determined to be "for cause" despite no requirement in the FMM Bylaws or in Maine Law that cause be established as grounds for dismissal.
FMM memorialized this highly extraordinary, albeit necessary and appropriate action in great detail, delineating the "causes" in its Minutes and corporate files. Firings are seldom pretty, but sometimes they simply must happen. The two gentlemen in question were not only a bad fit for FMM, they quickly became a bad fit run amok. In these firings, FMM was muted, professional and courteous. We said and did nothing injurious to the dismissed individuals, and months later FMM even publicly praised their subsequent “Saving Maine” advertising efforts when asked by reporters about them.
FMM simply knew it was time for us to amicably part company and let them pursue their Saving Maine agenda outside of FMM.
As it should be, paramount to the Board was protecting the corporation, extraordinary as dismissal was in this situation. Sadly, those former allies turned on FMM, making slanderous and libelous statements, and as we later discovered, they made sensational accusations to the AG. They were malicious and vindictive despite FMM's causing no harm to them, to FMM, or anyone else that might remotely justify such negative and cannibalistic attacks.
Even the Wind Lobby knows better than to be so abusive of FMM.
Under the law a nonprofit corporation’s founder is not allowed to donate funding beyond a certain level. Because of this impediment, in addition to donating to FMM I had also made a zero-interest loan a few years ago when FMM needed to pay an urgent bill. Moreover, Chris O'Neil's company, like other vendors, had some invoices not yet paid. (I will note that without the great efforts of Chris, FMM would not be in business today.) So he and I were among FMM’s creditors and received no special treatment. It was a vast stretch for the enemies to infer that preserving the corporation and paying all the creditors was a conflict, or that it was injurious to any person, entity, or law.
Because it settled the litigation against Saddleback, FMM was able to pay all its creditors and continue its mission. Fiduciary duty was upheld.
For whatever reason, despite suffering no grievance, the former allies instigated a sensational complaint to the Maine Attorney General. For several months in 2014, FMM devoted hundreds of hours to cooperating with the AG, who is compelled to look into allegations levied against a nonprofit. Tens of thousands of emails had to be recovered, categorized, organized, and submitted. Five years worth of records: every letter, every cancelled check, every donation, every Meeting Minutes, every government filing... all of it was gathered and submitted to the AG.
FMM clearly showed the AG that it had never acted in any improper or illegal fashion. In fact, FMM even waived attorney-client privilege during the inquiry because there was nothing in the record that could incriminate. The AG inquiry, while only civil and not criminal, was a massive distraction that cost FMM precious time and money, not to mention damaging public relations for all the good people who support our cause.
I still shake my head wondering why our own allies pursued such acts of vengeance, using both the high office of the Attorney General and the press as tools to discredit a good organization like FMM, and the good people involved in it. Please note that FMM’s compliance with the inquiry was an organizational burden, in that it required hundreds of hours of our time. During that period last spring, by one day FMM missed a filing deadline on a wind project and it was unable to attend a critical hearing in Augusta. It is confounding to think that people on our side were the perpetrators of such mayhem.
If the AG's office once thought that individuals associated with FMM gained some personal benefit by the Saddleback outcome, the civil inquiry has proven that wrong. The 20+ neighbors of the project suffered harm, most commonly property value loss, because of the wind project. All of those individuals and families were offered compensation by SRW for that harm, including this neighbor, me. Most of them eventually accepted something. That compensation to neighbors came in separate transactions from FMM's, and it was not in anyone’s case personal financial gain; it was mitigation for harm, generally property value diminution. Of course, FMM also won lower noise limits for those neighbors who chose to stay in their homes.
FMM's enemies inexplicably fanned the flames of defamation by badgering the AG with sensational claims that we had performed all sorts of heinous acts, harming our own nonprofit corporation, its vendors and the public. A year and tens of thousands of dollars later, with no proof that any such harm had occurred, the AG offered to settle the civil inquiry without charges, without any court action, and without public comment. FMM reluctantly agreed. Our attorneys were certain that no judge would see any merit in the AG’s approach, and that it would be dismissed easily. It was a “no brainer” and we could refocus on mission.
But nobody wants to fight the Attorney General’s office in an expensive court case from which no good can come even in victory, particularly when the instigators of the whole affair seemed intent on discrediting FMM, vindictively feeding the "story" to the press while privately inciting discord among you, FMM’s supporters. Settling with the AG, like settling with SRW, was the right fiduciary decision. Moreover, current events indicate that the AG had much more serious issues going on and did not have the inclination to pursue FMM, and certainly did not want to lose to FMM. This all would have gone away quietly with the AG agreement had it not been for the malicious motives of FMM’s enemies, who acquired the agreement and ran to the press with it the day after we signed it.
The business changes in the AG agreement were generally standard operating procedures for nonprofit corporations, although FMM agreed to some provisions that actually exceeded the law's requirements. Moreover, many of the measures were already in place at FMM. As a vendor to FMM who was occasionally required to recuse himself from voting on his company's relationship with FMM, Chris O'Neil readily volunteered to resign from the Board. Likewise, to show good faith and transparency, I agreed to remain a Director, but step down as President for two years. To inject new Board talent at the AG’s request, FMM is now expanding with the election of additional Directors.
FMM has survived a trying ordeal. We have accomplished much in this era of wind development favoritism. At the end of last year Maine’s statutory goal for wind development was 2000 megawatts. Working together, we held them to just over 400 megawatts. Every week FMM consults with and assists wind opposition groups in Maine. Our public education efforts are daily changing the hearts and minds of citizens and public officials.
This is all good but there is much work to do. We have moved beyond this difficult chapter in our history and we are focused on our common goals, for the good of Maine.
Thank you for your continued support.
Rand N. Stowell, President