The Frates Dairy Milk Bottle, Raynham, Mass.

This is a fairly recent picture of the Frates Dairy Milk Bottle on Route 138 in Raynham, Mass. The milk bottle was going to be torn down a few years ago but thankfully some folks decided not to.

As a kid, it made perfect sense to stop and get an ice cream cone at a 60 foot high milk bottle.

Thanks, Frates Dairy.

Some Background on our Maine Atlantic Salmon Lawsuit

Kennebec River Atlantic salmon, October 1996.

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The following (written in op/ed-ese) for the Waterville, Maine Morning Sentinel quickly scopes the salient issues:
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Breaking the Law is Different from Obeying the Law

By Douglas Watts
Augusta, Maine

Public documents going back 20 years show that hydroelectric dam owners on the Kennebec River have been aware that fish are sucked into their turbines and are killed and maimed. This happens because the intakes of the turbines are open and unscreened, like a window fan with no protective mesh.

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Atlantic salmon are killed at hydroelectric dams by the same mechanism as shown above for American eels.

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In June 2009 the few dozen remaining Atlantic salmon in the Kennebec were declared an endangered species under the U.S. Endangered Species Act. It is a federal crime to kill a Kennebec River Atlantic salmon. If you or I did it, we would go to jail.

Kennebec dam owners continue to leave their turbines open and unscreened and allow Atlantic salmon to swim through them, leading to their death.

Because these dam owners have failed to take prompt action to protect the few Atlantic salmon left in the Kennebec, myself and Friends of Merrymeeting Bay and Environment Maine are suing these dam owners in federal court to stop this killing.

Putting in the turbine screens will cost the dam owners a minuscule fraction of their annual profits. Turbine screening has been done now for half a decade at the Benton Falls Dam in Benton and the American Tissue Dam in Gardiner with no effect on their ability to generate electricity.

The Kennebec River is owned by us; not out-of-state dam owners. Using a public river for private gain is a privilege, not a right, and with it comes a responsibility to not interfere with our rights to the river and our right to expect that all laws will be obeyed and endangered species will not be harmed or killed or go extinct. This is why we pass laws.

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News item, Kennebec Journal, July 1880.

Hey !!! A big business law paper covered our Maine Atlantic Salmon lawsuit.

This piece is by subscription only, but cuz I was sent a copy by a subscriber and it's about me, I am going to let you read it:

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Green Groups Sue Maine Dam Operators Over Salmon

By Bibeka Shrestha

Law360, New York (February 1, 2011) -- Two conservation groups have sued NextEra Energy Resources Inc. and other hydroelectric dam operators on the Kennebec and Androscoggin rivers in Maine, accusing them of harming the endangered Atlantic salmon population by allowing the fish to pass through turbines.

Friends of Merrymeeting Bay and Environment Maine filed four complaints on Monday against NextEra, Brookfield Renewable Power Inc., Topsham Hydro Partners Limited Partnership, Miller Hydro Group, Merimil Limited Partnership and several affiliates in the U.S. District Court for the District of Maine, alleging violations of the Endangered Species Act and the Clean Water Act.

The lawsuits target the owners and operators of four dams on the Kennebec River and three dams on the Androscoggin River, alleging these dams are killing or injuring migrating salmon that try to pass through spinning turbine blades, and are otherwise impeding the salmon's ability to travel upstream and downstream on the rivers.

The dam operators have violated the Endangered Species Act by preventing Atlantic salmon from reaching a significant amount of spawning and rearing habitats and significantly impairing the salmon population's essential behavior patterns, according to the complaint.

Merimil, NextEra, Brookfield and their affiliates are also violating the Clean Water Act by not conducting a required study to prove that allowing downstream-migrating adult salmon to pass through their dams' turbines is safe, the complaint said.

These companies are allegedly violating water quality certifications, which require them to conduct site-specific quantitative studies in consultation with the the U.S. Fish and Wildlife Service or the National Marine Fisheries Service to show that passage through the turbines does not result in significant injury or death.

Atlantic salmon were officially designated as endangered under the Endangered Species Act in June 2009, the same month the NMFS designated the Kennebec and Androscoggin rivers as critical habitats, according to the complaint.

The rivers, which share a common estuary at Merrymeeting Bay, historically enjoyed the largest Atlantic salmon runs in the country, estimated at more than 100,000 adults annually, according to the groups.

In 2010, however, 10 adult salmon returned to the Androscoggin and five adult salmon returned to the Kennebec, the groups said.

“These dams are pushing an iconic Maine fish to the brink of extinction," said Emily Figdor, director of Environment Maine, in a statement Tuesday. "With the number of Atlantic salmon perilously low, the need for action to protect the fish and their habitat is urgent."

The groups are asking the court to order the dam owners and operators to conduct a biological assessment to determine whether their actions are adversely affecting the salmon population.

They also hope to block the dam owners and operators from allowing salmon to swim through operating turbines unless they receive authorization through an incidental take permit or incidental take statement, which would require them to minimize and mitigate the impacts of harming the endangered fish to the "maximum extent possible," the complaint said.

The groups claim the dam owners can implement simple measures, such as installing effective devices to divert salmon from turbines and stopping the turbines during salmon migration season.

"The salmon population is nearly extinct, and the dam owners and operators need to take immediate steps to implement measures to protect the salmon," said David Nicholas, an attorney representing the conservation groups, on Tuesday. "If they don't, we're facing an extinction possibility."

NextEra declined to comment on the lawsuit on Tuesday.

Attorneys or representatives for Miller, Topsham and Brookfield did not immediately respond to requests for comment on Tuesday.

The environmental groups are represented by Joshua R. Kratka and Charles C. Caldart of the National Environmental Law Center and David A. Nicholas and Bruce M. Merrill of Law Offices of Bruce Merrill PA.

Nancy Skancke of Law Offices of GKRSE is representing Miller and Topsham.

Counsel information for the other defendants was not immediately available Tuesday.

The cases are Friends of Merrymeeting Bay and Environment Maine v. Miller Hydro Group, case number 2:11-cv-00036; Friends of Merrymeeting Bay and Environment Maine v. NextEra Energy Resources Inc. et al., case number 2:11-cv-00038; Friends of Merrymeeting Bay and Environment Maine v. Topsham Hydro Partners Limited Partnership, case number 2:11-cv-00037; and Friends of Merrymeeting Bay and Environment Maine v. Brookfield Renewable Power Inc. et al., case number 1:11-cv-00035, all in the U.S. District Court for the District of Maine.

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Bibeka Shrestha
Reporter

Portfolio Media, Inc.
Publisher of the Law360 Newswire
860 Broadway, 6th Floor
New York, New York 10003

Direct: (646)783-7147
bibeka.shrestha@law360.com
www.law360.com

Maine Public Radio on our Kennebec and Androscoggin River Atlantic Salmon Lawsuit

From Feb. 1, 2011.

This piece written by Scott Monroe of the Waterville, Maine Morning Sentinel; and this piece by David Sharp of the Associated Press as reprinted by Bloomberg News cover the basics.

Redfin Pickerel in the Brooks of Easton, Mass.

The redfin pickerel (Esox americanus) is the smallest and least known member of the pickerel and pike family, which contains the more well known and much bigger chain pickerel, northern pike and muskellunge. Chain pickerel (Esox niger) and redfin pickerel are the two species of the family native to Massachusetts.

Redfin pickerel are very small, usually less than 5-6 inches, and only rarely up to 10 inches. Since they are quite similar in appearance to chain pickerel, most people who have seen a redfin pickerel assume it is a very small chain pickerel.

Redfin pickerel occupy a fairly unique niche along the Atlantic seaboard: very small first and second order brooks. In some areas, such as northern New England, this niche would be occupied by the brook trout (Salvelinus fontinalis). Unlike redfin pickerel, native brook trout are extremely intolerant to water temperatures much above 65 F.

Easton is unusually situated at the very top of the divide between the Neponset and Taunton River watersheds. For this reason, especially in North Easton, most of the brooks are truly first order streams, meaning they rise directly from isolated marshes, bogs, seeps and springs. In contrast, a second order brook is one formed by the joining of two first order brooks. Nearly all of the brooks in Easton are first or second order, meaning they are very small and have a very limited watershed. Brooks of this type have some very unusual attributes, including, unfortunately, that they can periodically dry up during prolonged droughts.

Prior to 1978-1979, an enormous tract of woods existed from Holmes Street and Linden Street in North Easton all the way to Stoughton and the Stoughton Fish and Game club. It was bordered by North Main Street on the west and Washington Street on the east. Around 1979 a large chunk of this land was turned into subdivisions.

Before 1979, however, I used to walk these woods quite a bit. They had all been cleared for pasture in the 1800s as evidenced by stone walls running through the woods this way and that. Just to the west of where Whitman Brook crosses the railroad tracks near the Stoughton line I discovered a tiny brook, barely a foot or two across, that stayed wet all year round, and flowed into Whitman Brook. So one day after school I followed its trace.

At some point a century earlier a farmer had a little cart path that crossed the brook and made a tiny bridge over the brook using some flat pieces of glacial rock nearby. It was quite odd seeing such an old, but obviously handmade little piece of construction way out in the middle of the woods. Leaning on my belly on the piece of granite I looked into the water and was surprised to see a tiny pickerel, no more than 3-4 inches long, hovering in the current like a brook trout, head pointed upstream, waiting for a little insect or other bit of food to float by. I watched him for about a half hour.

Now, in hindsight, I'm quite certain I was watching a redfin pickerel, whose ancestors had probably been living in that little tiny brook for the past 8,000 or so years.

Unfortunately, the little brook was destroyed the next year to build Phase IV of a bunch of McMansions.

Too bad.

Logperch in the Brooks of Easton, Mass.

The Logperch is a member of the darter family of fish (Percina). This family also includes the yellow perch, so common to Easton's ponds and deeper, slower streams.

The darters are an incredibly varied and diverse group of freshwater fish, even though most are just a few inches long. The logperch is the largest of the darters, reaching a length of up to about six inches. Darters are unusual in that most lack swim bladders, have wildly outsized pectoral fins and the males display extraordinarily bright colors during mating season.

On the Atlantic coast, Massachusetts is just about the northern limit of darters, although there exist historic reports of the swamp darter in several brooks in York County in southernmost Maine. Interestingly, darters are quite common in the mountain brooks of central Vermont. Those I used to observe as a kid in East Corinth, VT were probably the Johnny Darter, one of the most common and best known of the family.

My experience with the logperch in Easton is limited to a single observation back in the late 1970s when I was in junior high school. We lived just up the street from Whitman Brook where it crosses Elm Street and goes into Langwater Pond and we used to muck about in the brook all the way to the Stoughton/Easton line.

One summer, most likely in 1977 or 1978, we had a particularly nasty and prolonged drought in and around Easton. Every thunderstorm missed us and you could almost hear the ground groan and sigh for lack of moisture. As my uncle Gilbert Heino would say, it was tough.

One day I walked down Elm Street to Whitman Brook and was shocked to find it was completely dried up just before it enters Langwater. Walking in the brook bed I found dozens and dozens of dead fish, lightly covered with mud. Most were about 4-5 inches long, very slender and kind of odd-looking. Coming back home I figured out, to the best of the descriptions in our various fish books, that they were logperch. Apparently what happened is that the drought was so severe that the logperch got stranded in isolated pools in the brook and when those pools finally dried up, the fish died in them.

What struck me then, and still today, is that we never knew these logperch lived in Whitman Brook. Even with all the fishing and wading and exploring we did in the brook during our growing up years, we never saw them. Apparently, they are quite reclusive little fish. Part of this might be due to our familiarity with the centrarchid family, ie. bluegills, pumpkinseeds and largemouth bass in the local ponds, as well as the chain pickerel. The bass and sunfish family are curiously non-shy, to the point that it almost seems they are as curious about you as you are to them, especially if you are swimming, where the sunfish will come up and nibble at your leg hairs. And underwater, with a diving mask, largemouth and smallmouth bass will swim right up to your face to check you out.

So absent further sightings since 1978, I can only surmise that for all those years of wandering about in Whitman Brook, there were logperch aplenty but they kept themselves extremely well concealed. This is the only logical way to explain how during that one very bad summer drought when Whitman Brook dried up there were dozens of logperch lying dead in the brookbed.

As a side note about our native Percina in Easton, many people are not aware that yellow perch engage in a very interesting spawning migration during April. I first encountered this at the back end of Picker Pond off Canton Street in North Easton. Picker Pond is fed by two brooks, one coming from Flyaway Pond and the other from Long Pond which both meet in a marsh before the pond actually starts.

Walking the little brook from Long Pond one April I was surprised to see fish in it everywhere -- far more than you would ever expect to see in such a small brook. Upon closer inspection I discovered they were all the yellow perch in Picker Pond. They had swam from the pond into the fast water of the brook to mate and lay their eggs. It was quite a sight.

The Brooks of Easton, Mass.

This is a short medley of some underwater video I took in 2009 and 2010 in a few of the little headwater brooks in Easton, Massachusetts. Rather than wait for the 'full blown' coverage I'd like to do, this will suffice for now.

The first brook has no formal name. We've always called it, unimaginatively, 'the brook.' It's behind the house where I grew up on Linden Street in North Easton. It actually starts not far from Long Pond and flows east behind Canton Street, then between Linden and Holmes Streets, under the railroad tracks then into the Ames estate where it joins Whitman Brook on Elm Street. All of the video looking up at the trees is actually through the water -- that's how clear the water is.

This brook often dries up in the summer during dry spells, except for isolated pools, so its aquatic population is mostly insects, particularly water striders (Jesus bugs) and the occasional crayfish. This is from July 31, 2010, one of the hottest days of the summer. We had just gotten a big thunderstorm so the brook came up a bit from being almost dry. Since it was so hot I went out back of my mother's house and found this one tiny pool that was about a foot deep and took a dip. The water felt unbelievably good -- it was about 65 degrees probly. And clean !!!

The second brook is actually in East Mansfield. It is a little tributary of the Canoe River that comes into Canoe River campground at the 'tenting site' there. It's really pretty. This is about 200 yards up a red maple kind of swampy thing from the border of the campground. We had gotten a big thunderstorm the night before so the water is a bit turbid. This little brook has native bog iron in its bed.

The third brook is Black Brook at the old railroad grade in the Hockomock Swamp in South Easton. Black Brook is aptly named since unless the water is less than six inches deep it is so colored by tannic acid you can't see the bottom. It's not that the water is muddy or murky -- it's crystal clear -- but it is clear like reddish root beer is clear. The last clip is not underwater, but just looking down at the little pool just above the railroad grade with the reflection of the trees overhead.

The still photo at the end is my brother Tim standing above Queset Brook along Sullivan Ave. where it goes underneath the railroad tracks. This is what William Chaffin called "Trout Hole Brook" in his History of Easton from 1888. It is the one brook in Easton which has good, documented evidence of formerly supporting native brook trout (Salvelinus fontinalis). It lost its native brook trout population in the late 1700s when it was dammed up for the Ames Shovel Works, which caused the water to become too warm and polluted to support native brook trout. This section of Queset Brook could support native brook trout again if several of the old dams on it were removed, which they should since they serve no useful purpose except to louse up the brook.

What's interesting is how each brook has a completely different water color. The Linden Street brook is crystal clear; the little Canoe River tributary is cream soda colored and Black Brook is almost ruby red. This is from the varying amounts of tannic acid leaching into the water from decaying leaves.

The music is an excerpt of a little improv song I made up around 1994 on a cheap Casio keyboard. A few months ago I put an electric bass guitar on it which thickens it up a bit. The melody line is a transparent rip-off of the melody line of "Third Stone from the Sun" by Jimi Hendrix with various fake embellishments.

[Note: The compression used by youtube doesn't like underwater video that much; on my computer it looks best at the '360p' setting.]

"No Laughing, No Having Fun" by EZ7.

Even a blind squirrel finds a nut sometimes.

Our song, "No Laughing, No Having Fun," by EZ7. Written by Rick Burns and Greg Hinckley. Recorded live to digital two-track in the Burnsboro Disc Golf pro shop in Vassalboro, Maine, Saturday night, Jan. 15, 2011.

Rick Burns vocals, Mike Fife drums, Pete Burns bongos, Greg Hinckley rhythm guitar, Geoff Hursch wah wah guitar, Mike Southerberg acoustic guitar, Sax Mike on the tenor saxophone, Doug Watts bass and back-up vocals.

Video produced by Doug using footage from the (now demolished) Statler Tissue factory in Augusta, Maine ; the old Cony High School in Augusta; and the Watershed Center for Ceramics in Edgecomb, Maine.

The band's name is a frisbee golf joke for when you throw it into the woods ('that's an easy seven').

The words are about some bitter frisbee golf match between Rick and a guy named Charlie Wilson.