Backer v. State of Maine Dep't of Marine Resources

• Court: Superior Court of Maine
• Decided: September 27, 2016
• Docket: KENap-15-41
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss. CIVIL ACTION DOCKET NOS. AP-15-40 AP-15-41

ANN MUDGE BACKER et. als., Petitioners

V. DECISION AND ORDER

STATE OF MAINE DEPARTMENT OF MARINE RESOURCES et. als., Respondents

This matter was argued to the undersigned on June 3..,, 2016 with r sp "Ct to the "Petition For Review Of Final Age ncy A tlon with Indepen dent Oaims for Relief" in Docket No. AP-15-41 filed by P titian · rs R b cca Jan Pir zzoL ­ M llowes, Persona l R pr s n tative of the Estate of Jack h.. Pirozzol and Christopher ddu, as well as with respect to the "Petition For Review Of Final Ag ncy Action Pursucnt T M. R. Civ . P. SOC" filed by Petitioners Ann Mt1dge Back · r, Nicholas Sichterrnan, and Marial1 Iughs in Dock t No. AP-15­ 40.• Aft r reviewing Lhe w ritten and oral arguments of coun el as well as having an pportunity to rev iew the R ord on appeal c nsisting of 11 vo1w:nes of material, th Cou r t enters th following Deci sion and OrdeI" based upon th reasons stated below:

I. Parties' Motions to Supplement and Correct the Record:

1. Respondent has requested permission to correct the record pursuant to Rule SO(d) of the Maine Rules of Civil Procedure as well as 5 M.R.S. § 11006(2). Specifically, during a hearing a witness testified that he heard the Department's Commissioner state:

We cannot allow, I'm trying to be politically correct bul I'm not ure if I can be, we cannot allow people from away who have big dollar summer hOL1ses here to dictate whether there is going to be an oyster farm in their viewsh d .

(R. Vol III, 145:6-12.)

'These m atters w ere consolida te d by agreement by Order d ated 6 / 29/1 5. 2. However, the Commissioner's full statement, which has not been admitted as part of the record, was:

We cannot allow, I'm trying to be politically correct bu t I'm not sur if I can b , we cannot allow people from away who have big d llar summ r h u s s here to dictate whether there is going to be an oyster fa rm in their viewshed. That is on component and one component that Ls part of law that we need to consider, but it is not the only component that we need to consider.

It is the role of this Department to make a determination that the use is proper, that there are no ecological impacts, and there is [sic] no additional use impacts whether it's navigation or access to an area and how does it pertain to the view sh d. And those are all the issues that we need to look at, that we need to address head on ....

(Resp.'s Br., Appendix Cat 1; Resp.'s Br. at 25 .)

3. The Department has moved to correct the record by suppl menting the record with the Commissioner's full statement. (Resp.'s Mot. at 1.) The Department cited to M.R. Civ. P. 80(d), presumably meaning 80C(d), and 5 M.R.S. § 11006(2). (Resp. M t. at 1.) The D partment argued "[t]he information is necessary for a c rre t and c ntextually accurate record in this , pp al and is dire tJ.y rel vant to" Petition r P-M's claim that Conunission r Kel:iher's approval of th · lease was affecte by bias. (Resp. Mot. at 1-2.)

4. The Department asked the Petitioners if they bad any objections. (Resp. Mot. at 3.) Petitioner Backer had no objection. (Resp. Mot. at 3 .) Petitioner P-M would not object if the Department allowed lition r P -M to add evidence to the record, which the Department r j cted. (R sp. Mot. t 3.)

5. Petitioner P-M argued this ourt hould deny lh, Depaitm -nl's motion b cause it is untimely and procedurally improper. (P t. P-M's Opp . a l 4.) Sp cificaliy, Petitioner argu d that th Department sh u ld hav moved w1.der M.R. Civ. P. 80 (e) to add evidence within 10 days aft r the agency fil d the Department filed the Record with the c urt. (Pet. P-M's Opp. at 5. ) But th Department did not do so.

6. The Department is now styling its motion as one to supplement and correct; however, under the plain meaning of the APA and the rules, "motions to make a 'correction' to the record are only appropriate where a party is seeking to remedy some fault or error in an existing part of the record, not to 'supplement' the record with new evidence." (Pet. P-M's Opp. at 6.) Moreover, neither the APA nor the rules define "correction," but the dictionary defines it as "substitute something in place of what is wrong." (Pet. P-M's Opp. at 6.) Simply put, there is no mistake or problem to correct. (Pet. P-M's Opp. at 7.)

7. In th alternative, if this CoLLrt grants the Department's motion, then Petitioner P-M r -quests to supplem nt and correct the record with a letter from Town of Surry Selectmen Dale Sprinkle to David Kallin, which "provides

2 important context regarding information about the water quality in Morgan Bay that was in DMI 's possession during the revi w of Mr. Porada's appli ation, but whid1. is not adequately re.fleeted in the record." (Pet. P-M's Opp. at 8. )

8. Th Department argtt d this Court shouJd d ny Petitioner P-M's cross­ motion to add vidence because it is untimely and it does not me t any of the exceptions to th · g ne.ral rule under 5 M.R.S. § 11006(1)(A)-(D). (Resp . Opp. at 3.)

9. Allhough the Department did not stylize its motion as a motion for this Court to take additional evidence, the Court denies that argument because the Department did n t file that motion within 10 days as required under Rule 80C(e). The Court applies Rule 80C(e) literally and finds that the D parlm nl violated the 10-day deadline. Mor ovec tl1 circumstances of thls case do not warrant this Court to deviate from the rule because the Department had the Commissioner's complete quote, but did not attempt to add it to the record until after the Petitioners filed their SOC briefs.

10. M )r over, th · D partm nt is not 11 correcting" anything1 but instead is seeking to ·nte.r additional vidence. In this case the plain meaning of 11 correction" means substituting on thing for another. The Department is not substituting one thing for another, but is adding evidence. Although it is adding evidence to give context to the Commissioner's statement, the Department is not correcting a mistake. The Commissioner made that statement. The Department could have put the Commissioner's statement in context during the hearing. It did not. The Respondent's Motion To Supplement and Correct the Record is denied.

11. For the same reasons above, the undersigned denies Petitioner P-M's cross-motion.

II. Petitioner's Motion For Summary Judgment on Independent Claims:

12. In Docket No. AP-15-41 the Petitioners filed two independent claims. One sought a declaration that the Department lacked the authority to issue any exp .ri.ITI.ental aqua ulture leases until su ch time as it ha promulgated rules ptusuan t to 12 M.R. . § 6072-A(lO) estq blishing a method to e. tablish an environmental baseline as well ass ki.J.1.g a l daration from the C l.ITT that the final d cision appealed from was ultra vires cmd vojd, The other claim sought a declaration from the Court that commercial aquaculture leasing statutes and regu lations were unconstitutional to the extent that they allow t]1e Department to issu private citizens exclusive rights to us submerged lands _in a way that is unrelated to any public trust uses and would impede th public's constitutionally protected rights to use those lands. Petitioners also sought a ruling that the Department lack d authority to issue any such exclusive commercial aquaculture leases, tJ1 at the decision below authorized a four acre Lease Area that unreasonably interfered with the public trust uses of the submerged lands, and finally that the decision below was void. See Counts II and III of the aforementioned petition.

3 13. The Respondent entered a general denial to the petition and also contended that the claims failed to state a claim upon which relief could be granted as well as the independent claims constituted a collateral attack on the Department's actions that should be pursued instead consistent with Rule BOC of the Maine Rules of Civil Procedure as well as consistent with the Maine Administrative Procedure Act, see Answer of Respondent for more details.

14. In January of this year the Petitioners filed their brief and Motion for Summary Judgment. With respect to the independent claims the Petitioners sought a declaration from the Court that the Department had failed to promulgate rules as required by 5 M.R.S. § 8058(1) or instead determine the Department's interpretation of its obligations under 12 M.R.S. § 6072-A(lO) was unreasonable and/ or contrary to the plain meaning of the authorizing statute. The Petitioners also sought a declaration from the Court that the statutes and regulations governing commercial aquaculture leases were unconstitutional and violated the public trust doctrine.

15. It is unclear to the undersigned whether summary judgment is available with respect to an independent claim to an BOC appeal. The Law Court has indicated that a Motion for Summary Judgment is inappropriate in a Rule BOC appeal. Martin v. Unemployment Ins. Comm'n, 1998 ME 271.

16. In any event, Petitioner's Motion for Summary Judgment is moot if the independent claims present essentially the same arguments as the SOC appeal. Independent claims may be dismissed as superfluous if the relief sought in the independent claims is available through the BOC appeal. Birks v. Secretary of State Matthew Dunlap, BCD-AP-16-04 at 9-10 (Bus. & Consumer Ct. Apr. 8, 2016, Murphy, J.) (citing Antler's Inn & Restaurant, LLC v. Dep't of Public Safety, 2012 ME 143,

17. The Court in Anthem Health Plans of Me. found that, by granting Respondent's Motion to Dismiss the independent claims, it had rendered moot Petitioner's pending Motion for Summary Judgment on those claims. Id. at 9. 18. Of note in this case is the fact that tl1e Department so ught dismissal of Counts II and III via affirmative defenses but did not separately move to disnuss in writing r rally a t the June 3, 2016 h aring bef r this Court In fact, counsel for th Departrnent stated at th hearing that upon consideration h had sp cificaliy cho en not to seek di missal of the indep nd nt dalms. Regardl ss, this Court chooses to dismiss both o:f the independent claims sua sponte, finding that they are superfluous. The Court takes this action notwithstanding the fact tha t the und rsign d by greement of c unsel signed the Order da ted 12/24/15 allowing the independent cl ims to be submitted for summary judgment.

19. Alternatively, to the extent the Linkage of these independent claims to the Rule SOC appeal is appropriate, and that it is appropriate for the Court to determine the validity of th claims in a si.Lrnmary judgment fa ·um, th - Com·t grants umma.ry judgm nt in favor of th Respondent in this matter. Summary judgment i. · appropriat if, bas d on the parties' staten,ent £ materia] fa ·t and th' cited reco·d, ther is no genuine is ·u of mat ricl .fa t an d the rnoving party is entitled to judgm nt as a me tter of law. M.R. Civ. P. 56( ); Dyer v. Dep't of Trnnsp., 2008 ME 106, 9[ 14, 951 A.2cl 821 . "A material fact is one that om aile t th utcome of th as . A g nuine i.s ue of materi,\l fact xists when the [fact finder] must choose between competing v rsions . f th b:u th." Dyer, 2008 M 106, 'IT 14, 951 A.2d 821 (internal citation and quotation mads omilt d). When deciding a motion for surnmr1ry judgment, the c urt rev iews the eviden in the light most fov rable to the non-moving party. Id.

20. When the plaintiff is the moving party on a motion fo r swnmary judgment, the plaintiff has th e burden to d · monstrate that each lem nt of its claim. is established without dispute as to material fact within the summary­ judgment record. North Star Capital Acquisition, LLC v. Victor, 2009 ME 129, 9I 8, 984 A.2d 1278.

21. Looking at the constitutiona lity of statut s, courts "r view issues of constitutional interpretation de novo." Bouchard v. Dep't of Pub. Safety, 2015 ME 50, 9I 8, 115 A.3d 92, 96 (citations omitted). "A p rson 'challenging the constitutionality of a statute bears a heavy burden of proving uncon stitutionalityL] since all acts of th Legislature are pt surned constitutional.'" Id. (citations omitted). " o pr vail against the pr sumpti n that [a] statute is constitutionat . . . the p art[y J chall nging the stalute[] must demonstrate convincingly that the statu te and the Constitution conflict." Id. (citations omitted). "Further, all reasonc; ble doubts mLLSL be res lv · d in favor of the constituti nality of Lh statute." Id. (citations omitted). In oth r words, courts "must assume that the Legislature acted in ac ord with constitutionaJ requ:irem nts if the statute can reasonably be read in such a way, notwithstanding oth r possibl unconstitutional interpretations of the same s tatut ." State v. Letalien, 2009 ME 130, 'IT 15.

22. Looking at the constitutionality of the regu lations, "[t]he standard of review for a challenge to the validity of a rule, whether raised in a declaratory judgment action or a Rule SOC petition, is contained in ~ M.R.S.A. § ~Qt?§.(1)." Conservation Law Found. v. Dcp't c'.f E11vtl. Prat., 2003 ME 62,

5 (citations omitted). Under § 8058(1), "[i]f the rule exceeds the rule-making authority of the agency, it is invalid. Id.

23. The Court finds 12 M.R.S. §§ 6072, 6072-A, and 6072-B to be constitutionally valid. The Court finds further that the aquaculture leasing statute serves a valid public purpose and does not unduly impair the public trust. The Court also finds that the Department has satisfied the rule-making mandate of§ 6072-A(lO). The Court also finds that the Department did not err by not considering spiritual and contemplative uses as "other uses of the area" because such uses are not water-related.

III. Rule SOC Appeal:

24. With respect to Petitioner's contention that the Department's decision was not supported by substantial evidence, the Court may reverse or modify the Secretary's decision "if the administrative findings, inferences, conclusions or decisions are ... [u]nsupported by substantial evidence on the whole record .... 5 M.R.S. § 11007(4)(C)(5) (2015). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support the resultant conclusion." Lewiston Daily Sun v. Unemployment Ins. Comm'n, 1999 ME 90, 9[ 7, 733 A.2d 344 (quoting Crocker v. Maine Unemployment Sec. Comm'n, 450 A.2d 469, 471 (Me. 1982)). "A party seeking to overturn an agency decision bears the burden of persuasion on appeal." Anderson v. Me. Pub. Emples. Ret. Sys., 2009 ME 134, 9[ 3, 985 A.2d 501 (citations omitted). And courts defer to the agency's findings "if they are supported by substantial evidence in the record, even if the record contains inconsistent evidence or evidence contrary to the result reached by the agency." Id. (quoting Friends of Lincoln Lakes, 2010 ME 18, 9[ 13, 989 A.2d 1128).

25. After reviewing the Record, and pursuant to the deferential tandard of review outlined above, the Court finds st1J:ficient evidence in the record to support the Department's findings that there was no unreasonable interference with riparian ingress and egress, navigation, fishing or other uses of the area, or th · ability of the lease site and surrounding areas to support existing ecologically significant flora and fauna. (Resp.'s Br. at 33-46.) Th Lmdersigned finds that the Department's decision is supported by substantial evidence.

26. The Petitioners have also argued that there was institutional bias because the Department's commission er demonstrated prejudgment of the case as well as the fact that the hearing officer was also the aquaculture administrator.

27. "Due process requires a fair and unbiased hearing." Friends of Me. 's Mts. v. Bd. of Envtl. Prat., 2013 ME 25, 9[ 23, 61 A.3d 689, 697-98 (citations omitted). To show bias, a petitioner "must present evidence sufficient to

6 overcome a presumption that the fact-finders, as state administrators, acted in good faith." Id. 9I 23 (citation omitted).

28. "A preconceived position on law, policy or legislative facts is not a ground for disqualification." New England Tel & Tel. Co. v. Pub. Utilities Com., 448 A.2d 272, 280 (Me. 1982). "The federal cases that have found an agency officer disqualified have done so only after a showing of prejudgment on the specific focts subs qu ently presen ted to the agency." Id. (citing Cinderella Career & Finishing Schools, ln c. v . FTC, 138 U.S. App. D.C. 152, 425 F.2d 583 (D.C. Cir. 1970); American Cyanamid Co. v. FTC, 363 F.2d 757 (6th Cir. 1966)).

29. Here, the Record shows that the Commissioner Keliher said, "[w]e cannot allow, I'm trying to be politically correct but I'm not sure if I can be, we cannot allow people from away who have big dollar summer houses here to dictate whether there is going to be a [sic] oyster farm in their viewshed." (R. Vol. III, 145:6-12; Resp.'s Br. at 25.) The Department noted that the Commissioner's statement is in the record, but is made by third hand by Jack Pirozzolo asking a witness a leading question that included the Commissioner's statement. (Resp.'s Br. at 24 n. 22.) Moreover, the statement was incomplete, (Resp.'s Br. at 25.), although the Respondent could have moved to supplement the Record in a timely fashion but did not do so.

30. In any event, the Court declines to find based upon one statement made by the Commissioner that the Commissioner had prejudged the case. Nor does the undersigned find that because the hearing officer also was the Department's Aquaculture Program Administrator bias or risk of bias was present so as to vacate the decision below. "A combination of investigative and adjudicatory functions in administrative proc edings gen -rally does no t violate du - pr cess absent some further showing of bias or the lisk of bias." Zegel v. Bd. of Soc. Worker Licensure, 2004 ME 31, 9I 16 n.3, 843 A.2d 18, 22 (citing Withrow v. Larkin, 421 U.S. 35, 52-55, 43 L. Ed. 2d 712, 95 S. Ct. 1456 (1975); see also Fed. Trade Comm 'n v. Cement Inst., 333 U.S. 683, 702-03, 92 L. Ed. 1010, 68 S. Ct. 793, 44 F.T.C. 1460 (1948).

31. Petitioners identified a nmnber of procedural irregularities with regard to Mr. Porada's lease appB a tion. They include (i) ex parte communications b tw e.n Mr. Potada: and the H aring Officer, at least on -' of which was cited in the Department's decision in support of its finding that the l as site was appropriately marked, a.s well as the faHuie of the Departmen t to sanction Mr. Porada for the repeated communications; (ii) the failure of the Department to strictly comply with its own notice requirements; (iii) the failure of Mr. Porada to strictly comply with the Department's site marking requirements; and (iv) the last-minute rule change allowing 4-acre experimental leases.

32. Tak n as a whol , th s- irregularities are troubling to the undersigned; however, at least with respect to the first three listed above the undersigned is un convinced that they should result in a finding of a due process violation and/ or a clear showing of bias by the undersigned. The notice of

7 hearing was off only by one day, and the Department did reopen the hearing a month after the first and second hearing dates in order to accommodat seasonal residents. The Law Court has found notice that it described as "broad and cursory" as well as in contravention of statutory r quire :n nts neveJ-theless insufficient to vacate the decision of a municipality below where th appellants below received notice and attended and fully participated in the hearing b 1 w. Anter's Inn and Restaurant, LLC v. Department of Pub lic Safety, 2012 ME 143. There also has been no allegation by Petitioners that ther was ever a question of wh re the lease was located, even if the markers were not present throughout the pendency of the lease application as required.

33. However, the Court is not convinced that the Department had the authority to grant a 4-acre exp · rimental lease. It seems illogical for the Departm nt to argue that th · rule should have allowed a 4-acre lease and there£ re it did. Th ru l r stri ting experimental lea es to 2 acres did n t ontradict the statute because the s alute only pro cribed experim ntal leases "in exc ss £ 4 acres"; it d icl not require that l ases b 4 acres exactly. The C urt finds the rule in effect at the time of the hearings validly and unambiguously restricted experimental leases to 2 acres, and thus vacates the decision below in part and remands this matter for a revision of the lease to 2 acres. In all other respects, the decision below is affirmed.

The Clerk is directed to incorporate this Decision and Order by reference into the docket for this case, pursuant to Rule 79(a), Maine Rules of Civil Procedure.

RAf ~IJll Date: 9/27/2016

BY Robert E. M1.1llen, Deputy Chief Justice Maine Superior Court