Bay Ferries, LTD v. Board of Commissioners for the Port of Portland

Opinion

( ( f'ACJ

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. AP-17-36 BAY FERRIES, LTD., ) ) Plaintiff ) ) ORDER ON DEFENDANT V. ) PORTLAND PILOTS' MOTION FOR ) FURTHER FINDINGS AND BOARD OF COMMISSIONERS FOR ) CONCLUSIONS OF LAW AND THE PORT OF PORTLAND ) RELIEF FROM ORDER ON ) PLAINTIFF'S MOTION FOR and ) PRELIMINARY INJUNCTION ) PORTLAND PILOTS, INC., ) ) Defendants. )

Before the Court is Defendant Portland Pilots' ("Pilots") motion for further findings and

conclusions of law and relief from Order on Plaintiff Bay Ferries' ("Bay Ferries") motion for

preliminary injunction. Pilots urges the Court to reconsider its March 14, 2018 injunction.

Although the Court still finds cause to grant the preliminary injunction, the Court will amend its

May 14, 2018 Order in accordance with Pilots' request, as outlined below.

In support of the grant of the preliminary injunction, the Court makes the following

findings of fact and conclusions of law. A party seeking a preliminary injunction bears the burden

to demonstrate that "(l) it will suffer irreparable injury if the injunction is not granted; (2) such

injury outweighs any harm which granting the injunctive relief would inflict on the other party;

(3) it has a likelihood of success on the merits (at most, a probability; at least, a substantial

possibility); and (4) the public interest will not be adversely affected by granting the injunction."

Bangor Historic Track, Inc. v. Dep 't ofAgric., Food & Rural Res., 2003 ME 140, ~ 9, 837 A.2d

129. srAH::Ot-(~~i: r.nmAAn'lMi ~ C/srk s Offtee JUN l 1 2018 ~ '. 3oAN\ Plaintiff- Matthew Warner, Esq. and Harold Pachios, Esq. Defendant Portland Pilots-Twain Braden, Esq. RECEIVED Defendant Board of Commisioners-Jennifer 1 of 4 Thompson, Esq. ( 1

The Court finds Bay Ferries has demonstrated it will suffer irreparable harm if a

preliminary injunction is not granted. The Court's finding is based primarily on Pilots' March 8,

2018 letter threating to arrest The Cat and to file a Notice of Claim of Lien with the National

Vessel Documentation Center. If Pilots chooses this strategy to enforce the lien it claims to have

for unpaid pilotage fees, Bay Ferries has no adequate remedy at law. Such actions would deprive

Bay Ferries of the vessel it requires to conduct its business and would likely result in damage to

Bay Ferries' credit, as well as cause harm to Bay Ferries' public reputation.

The Court fmther finds the harm Bay Ferries will suffer if the injunction is not granted is

greater than the harm which granting the injunction will inflict on Pilots. If Defendants succeed on

the merits of this appeal, the injunction will be lifted, and Pilots will be free to pursue collection

of unpaid fees due under the May 201 7 rate. As is desired by both parties, a preliminary injunction

will merely preserve the status quo until this Court rules on the merits of this appeal.

The Court finds Bay Ferries has demonstrated a likelihood of success on the merits. The

Board of Harbor Commissioners ("Commission") sets pilotage fees by rule, and the Commission

is required to follow the rulemaking procedures detailed in P. & S.L. 1981, ch. 98, § 6, as amended

by P. & S.L. 1993, ch. 34, when setting fees. The Court finds it likely that Plaintiff will succeed in

demonstrating the Commission failed to follow proper rulemaking procedures when it purported

to increase the minimum pilotage fee on May 11, 201 7. The rulemaking procedures as outlined in

the statute provide, in relevant part:

The commission may not adopt any rule other than as an emergency without fost presenting the rule to the Department of Transportation for review and comment. The commission shall send any proposed rules to the councils of [Portland and South Portland] at the same time the proposed rules are sent to the Department of Transportation.... The rules are effective 45 days from the date on which notice of such rulemaking is sent to the city managers of Portland and South Portland, addressed to the city councils of the cities ....

2 of 4 ( (

P. & S.L. 1981, ch. 98, § 6, as amended by P. & S.L. 1993, ch. 34. Pursuant to the statute, the

Commission should have notified MDOT of the proposed fee increase for review and comment,

and the new fee could not become not legally effective until 45 days after the Commission sent

notice of the new fee to the city councils of Portland and South Portland.

The record is without evidence that such notice was ever sent to MDOT or to the city

councils. Pilots disputes this fact but has presented no evidence on this issue to date. Responses to

FOAA requests from Plaintiff to the City Clerks of Portland and South Portland appear to confirm

the cities were not given notice of the proposed rate increase. Because the statute requires notice

of the proposed rule to the cities of Portland and South Portland in order to trigger effectiveness

of the rule, and because it appears such notice was not given, the new fee purportedly established

by the Commission on May 11, 2017 likely never took effect.

Furthermore, in its March 14, 2018 Order denying Defendants' motions to dismiss, this

Court found Plaintiff has standing to bring this claim due to a denial of due process by the

Commission. Bay Ferries, Ltd. v. Bd. of Comm 'rs for the Port ofPortland, CUMSC-AP-2017­

0036 (Me. Super. Ct., Cum. Cty., Mar. 14, 2018). That denial of due process further supports Bay

Ferries' likelihood of success on this appeal.

Finally, the Court finds the public interest will not be adversely affected by granting the

injunction. Neither party has argued this issue extensively, and the Court finds no reason to deny

the injunction in the public interest.

As explained in the Court's May 14, 2018 Order, Plaintiff has shown good cause to waive

the Rule 65(c) requirement that it provide security, because Defendants are unlikely to incur

damages by the issuance of this injunction. As discussed above, the fee approved by the

Commission on May 11, 2017 is not legally effective until 45 days after the Commission sends

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notice of the new fee to the city councils of Portland and South Portland. Because the record

contains no evidence that the Commission has sent notice to the cities of Portland or South

Portland, the fee is likely not effective.

The preliminary injunction requested by Bay Ferries has been granted based on the

foregoing. However, the Court is persuaded that its original order granting the injunction is

unnecessarily broad, and a more narrowly tailored order will suffice to maintain the status quo as

the parties have requested. Therefore, the Court's May 14, 2018 Order is amended to provide as

follows:

Plaintiffs Motion for a Preliminary Injunction is GRANTED. The Board of

Commissioners and Portland Pilots, Inc. are enjoined from enforcing against Bay Ferries, Ltd. the

$1200 pilotage fee established by the Board of Commissioners on May 11, 2017, pending the

conclusion of Bay Ferries' Rule 80B appeal, docket number AP-17-36. In the event that Bay

Ferries' Rule 80B appeal is denied, this injunction will be lifted and the minimum pilotage fee

established by the Board of Commissioners on May 11, 2017 will apply to all applicable pilotage

services rendered in 2017.

Furthermore, the M.R. Civ. P. 65(c) requirement that Plaintiff provide security is hereby

waived.

The Clerk is directed to incorporate this Order into the docket by reference pursuant to

M.R. Civ. P. 79(a).

Dated: -----'ff=--4-'/f ~/_._. [1._·____ . Walker, Justice Maine Superior Court

4 of 4 ( MJ;) STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. AP-17-36 BAY FERRIES, LTD., ) ) Plaintiff ) ) v. ) ) ORDER ON DEFENDANTS' BOARD OF COMMISSIONERS FOR ) MOTIONS TO DISMISS THE PORT OF PORTLAND ) ) STATE OF J\,111 and ) Cumber1c1nd c~~v-,INJ.: ) , S&, ,erl(ls Office PORTLAND PILOTS, INC., ) MAR 14 2018 Defendants. ) ) R~CW~ Before the Court are Defendants Board of Commissioners for the Port of Portland

("Board") and Portland Pilots' ("Pilots") motions to dismiss Plaintiffs Rule SOB appeal. A

hearing was held on these motions on February 5, 2018. For the following reasons, Defendants'

motions to dismiss are granted in part and denied in part.

I. Background

The following facts are primarily drawn from Plaintiffs complaint. Disputed facts are

noted where relevant to the Court's decision. Plaintiff operates a roundtrip ferry service between

Yarmouth, Nova Scotia and Portland, Maine aboard a vessel named HSV Alakai, commonly

referred to as "The CAT." The CAT operates seasonally five days a week. Each time The CAT

enters and departs from Portland Harbor, Plaintiff is required by state law to use a pilot approved

by Defendant Board. For its pilotage services, Plaintiff must pay to Defendant Pilots a minimum

pilotage fee, which is set by Defendant Board. During the 2016 season, this fee was $709.

In a March 23, 2017 letter, Pilots asked the Board to approve an increase in the minimum

pilotage fee from $709 to $1200 per voyage. 1 Pilots also requested a 1.2% increase of the

1 of 10 Plaintiff- Matthew Warner, Esq. Defendant Portland Pilots - Twain Braden, Esq. Defendant Board of Commissioners- Jennifer Thompson, Esq. Consumer Price Index rate and an adjustment to the fuel surcharge. The Board scheduled Pilots'

request to be heard at a public hearing on April 13, 2017. On April 7, 2017, the Board emailed to

Plaintiff's controller an agenda for the April 13 hearing. The items listed on the agenda were:

ITEM ONE: CITGO dredging project at their dock in the Fore River ITEM TWO: Marine Event Application (Teens to Trails) Aug 26th in the upper Fore River (1 to 5 pm) ITEM THREE: Portland Pilot Cost of Living rate increase proposal

The agenda did not include a reference to the proposed minimum pilotage fee increase. The April

13 hearing was cancelled.

On May 4, 2017, the Board emailed Plaintiffs controller with an agenda for a May 11,

2017 public hearing. This agenda contained the same items as the agenda for the April 13

hearing, with a fourth item added for "58 Fore Street Marina Project." The May 11 hearing

occurred as scheduled. Plaintiff was not in attendance. At this hearing, after brief discussion, the

Board orally voted to increase the minimum pilotage fee to $1200. The Board never issued a

written decision containing findings of fact and conclusions of law concerning the pilotage fee

increase. Plaintiff alleges the Board never sent notice of the pilotage fee increase to the Maine

Department of Transportation.or to the city councils of Portland or South Portland.

Ten days after the May 11 hearing, Pilots sent notice to Plaintiff that the Board had

approved a pilotage fee increase to $1200 effective June 1, 2017. On June 1, Pilots began

charging the increased fee and threatened to arrest The CAT if Plaintiff did not pay the new fee.

The parties expressed uncertainty at the hearing before this Court as to whether Plaintiff had

actually paid the increased fee during the summer of 2017, but Plaintiffs complaint alleges it did

' The parties dispute when and how Plaintiff received a copy of this letter. Defendants allege it was mailed to Plaintiff on March 29, 2017. Plaintiff alleges it was obtained pursuant to a Freedom of Access Act request made in July 2017. 2 of 10 pay the increased fee and reserved the right to recoup the difference between the original $1418

fee and the increased $2400 fee per voyage.

Plaintiff filed its complaint for SOB appeal in this Court on August 24, 2017. Counts I and

II allege the Board did not provide proper notice to necessary parties or the public of the hearing

to increase the minimum pilotage fee. Count III alleges the Board did not follow required

rulemaking procedures in establishing pilot compensation, which must be done by rule. Counts

IV and V allege the fee increase is not supported by record evidence or findings and the Board

did not make written findings of fact and conclusions of law. Count VI asserts an independent

claim for relief pursuant to 42 U.S.C. § 1983 alleging the Board's procedure for approving the

increased pilotage fee deprived Plaintiff of due process. Counts VII and VIII allege breach of

contract and unjust enrichment by Defendant Pilots. 2

II. Discussion

A. Standing

Defendant Pilots argues Counts I through V of Plaintiff's complaint should be dismissed

because Plaintiff lacks standing to bring its claim due to its failure to participate at the hearing

when the matter in question was presented to the public and voted upon by the Board. 3 "It is well

established that in order to have standing to file an SOB appeal in the Superior Court, the

appellant must prove (1) that it was a party at the administrative proceeding, and (2) that it

2 Defendant Board has only requested dismissal of Counts I-VI. While Defendant Pilots' motion also purports to move for dismissal of "any independent claims asserted against Pilots" (Pilots Mot. Dismiss 1), its motion does not present any arguments supporting dismissal of Counts VII and VIII. In its reply to Plaintiffs opposition, Pilots only argues that Plaintiffs independent claims for relief will be moot if the 80B appeal is dismissed. Because the 80B appeal will not be dismissed, and any other arguments pertaining to dismissal of these counts have been inadequately briefed, the Court will not dismiss these counts at this time. 3 The Board incorporated each of Defendant Pilots' arguments with respect to dismissal of Counts I-V into its

motion by reference. 3 of 10 suffered a particularized injury as a result of the agency's decision." Norris Family Assocs., LLC

v. Town ofPhippsburg, 2005 ME 102, ,r 11,879 A.2d 1007.

There is little question that Plaintiff has suffered a particularized injury as a result of the

rate increase. Although all parties at the hearing before this Court expressed some uncertainty as

to whether Plaintiff had actually paid anything to Pilots under the new rates, even if Plaintiff has

not paid the increased fee for the summer of 2017, Pilots' continued insistence on collecting the

fee evidences a debt incurred by Plaintiff. Moreover, Pilots has repeatedly threatened to arrest

The CAT if Plaintiff does not pay the outstanding expenses incurred during the summer of 2017.

Plaintiff has suffered a particularized injury as a result of the Board's decision to increase the

pilotage fee.

The more contentious question surrounds whether Plaintiff was a party at the

administrative proceeding. The term "party" means '"any participant in the proceedings who is

aggrieved by the action or inaction of the'" board. Id. ,r 11 (quoting Singal v. City ofBangor, 440

A.2d 1048, 1015 (Me. 1982)). '"Participation' may be formal or informal, in person or through

an attorney, ... and it does not demand that the party have initiated the municipal proceeding for

which appellate review is sought." Id. (internal quotations and citations omitted). There is no

dispute that neither Plaintiff nor a representative of Plaintiff was present at the May 11 hearing,

nor did Plaintiff, by any means, raise an objection to the proposed rate increase prior to the

hearing. Defendants contend Plaintiffs failure to participate in any capacity prior to the Board's

decision deprives Plaintiff of standing to bring this appeal.

While Defendants are correct that "participation in the public hearing process is

essential," (Pilots' Reply to Pl.' s Opp 'n to Defs.' Mot. Dismiss 2), just as essential as a matter of

due process is proper notice. "Notice and opportunity for hearing are of the essence of the due

4 of 10 process of law.... The notice to which one is entitled under ... the Maine Constitution, and to

constitute 'due process' under the federal Constitution is notice that is reasonably calculated to

give him actual notice of the proceedings and an opportunity to be heard." Michaud v. City of

Bangor, 159 Me. 491, 493-94, 196 A.2d 106, 108 (1963) (internal quotes omitted). The Court

agrees with Plaintiff that "[i]f lack of participation-regardless of the reason-was an absolute

bar to standing, interested parties would have no recourse when denied notice and an opportunity

to be heard." (Pl.'s Opp'n to Defs' Mot. Dismiss 7.)

Plaintiff argues that it did not participate in the May 11 hearing because it did not receive

notice of the subject matter of the hearing. The statute establishing the Board and detailing its

powers and duties states, in reference to the Board's rulemaking power: "[T]he commission shall

hold a public hearing, preceded by publication, as to the subject matter of the rule and the time

and place of the public hearing, at least 7 days prior to the hearing." P. & S.L. 1981, ch. 98 § 6.

As detailed above, prior to the hearing originally scheduled for April 13, Plaintiffs

received a hearing notice stating a hearing would be held concerning a "Portland Pilot Cost of

Living rate increase proposal." After the April 13 hearing was cancelled, the notice Plaintiff

received of the rescheduled May 11 hearing was again only for a "Portland Pilot Cost of Living

rate increase proposal." However, in addition to approving the cost of living increase, the

minimum pilotage fee increase was approved at the May 11 hearing. Thus, the notice of the May

11 hearing did not comply with P. & S.L. 1981, ch. 98 § 6 because it did not give notice of the

subject matter of the hearing.

Defendants argue Plaintiff received notice of the subject matter when it received a copy

of Pilots' request letter to the Board in March. 4 This letter contains Pilots' request for a 1.2%

5 oflO Consumer Price Index rate increase, a fuel surcharge reduction, and a minimum piloting fee of

$1200. Even if Plaintiff did receive a copy of this letter in March, it was insufficient to put

Plaintiff on notice of the subject matter of the May 11 hearing. If Plaintiff did indeed receive a

copy of the March letter, it would have been reasonable for Plaintiff to infer that the May 11

notice's exclusion of reference to the minimum pilotage fee was intentional and that the hearing

was only going to address the cost of living increase, leaving the pilotage fee to be addressed at a

later date. At the hearing before this Court, Pilots conceded that a cost of living increase is a

fairly routine matter and typically results in a relatively small rate adjustment. Because the notice

of the May 11 hearing only referenced a cost of living increase, it is unsurprising that Plaintiff

would have declined to attend the hearing and raise an objection.

Because Plaintiff did not receive proper notice of the subject matter of the hearing

wherein the pilotage fee was increased, and because Plaintiff has suffered a particularized injury

due to the fee increase, Plaintiff has standing to bring an appeal based on its deprivation of due

process.

B. Subject matter jurisdiction

Defendant Pilots also argues Plaintiffs complaint should be dismissed pursuant to M.R.

Civ. P. 12(b)(l) because Plaintiff did not timely file its complaint in this Court. Pilots cites M.R.

Civ. P. 80B(b)'s provision stating: "The time within which review may be sought shall be as

provided by statute, except that if no time limit is specified by statute, the complaint shall be

filed within 30 days after notice of any action or refusal to act of which review is sought. ... "

Under this rule, Pilots argues Plaintiffs deadline to file its complaint was, at the latest, June 20,

2017, which is 30 days after Plaintiff received actual notice of the Board's decision.

4 As noted above, Plaintiffs complaint alleges it did not receive this letter until July 2017 in response to a FOAA request. 6 of 10 Pilots also relies on Section 5.3 of the Rules and Regulations of the Board of

Commissioners for the Port of Portland, Maine ("Board Rules") which states: "The time for

taking an appeal from the decision will be computed from the date on which the decision was

received by the applicant, either orally or in writing, whichever occurred first." Calculating the

time for appeal under this provision, Plaintiffs complaint should have been filed within 30 days

after May 11, 2017, the date of the hearing during which the Board orally issued its decision.

Plaintiff did not file its complaint until August 24, 2017.

Plaintiff counters that a further provision of Rule 80B(b) is applicable in this case. That

provision states:

The time for filing of an appeal shall commence upon the date of the public vote or announcement of final decision of the governmental decision-maker of which review is sought, except that, if such governmental action is required by statute, ordinance, or rule to be made or evidenced by a written decision, then the time for filing of an appeal shall commence when the written decision has been adopted. If such written decision is required by statute, ordinance, or rule to be delivered to any person or persons, then the time for the filing of an appeal shall commence when the written decision is delivered to such person or persons.

Plaintiff argues this provision is triggered by Board Rules Section 5.3, which provides:

If an oral decision should be rendered at the hearing, the Commission will provide a written decision within a reasonable time thereafter. The written decision will include conclusions of law and findings of fact that are sufficient to apprise the parties of the basis for the decision and shall specifically state what facts in the record were relied upon by the Commission. A copy of the written decision will be delivered or mailed to the party in interest and to the opponents, but not to proponents nor to persons who were determined to be interested parties but were neither proponents nor opponents.

Because Section 5.3 clearly requires the issuance of a written decision as contemplated by Rule

80B(b), Plaintiff argues its appeal is not foreclosed due to untimeliness because the Board has

yet to adopt or deliver a written decision containing conclusions of law and findings of fact.

7 of 10 It is apparent that the time for appeal contained in Section 5 .3 ("The time for taking an

appeal from the decision will be computed from the date on which the decision was received by

the applicant, either orally or in writing, whichever occurred first") conflicts with the time for I appeal contained in Rule 80B(b). Under these circumstances, the Court finds the Board Rules

must yield to Rule SOB. Cf Smith v. Town of Pittston, 2003 ME 46, ,r 24, 820 A.2d 1200

(municipal ordinance is preempted by state statute when ordinance "would frustrate the purpose

of ... state law" and "prevent[] the efficient accomplishment of a defined state purpose" (internal

quotations and citations omitted)).

Rule 80B(b) was amended in 2014 to add the written decisions provision "in response to

the Law Court decision of Gorham v. Androscoggin County, 2011 ME 63, 21 A.3d 115." M.R.

Civ. P. SOB advisory note to 2014 amend., June 2014,

http ://www.com ts.maine.gov/rules admi norders/ru!es/text/MR.CivPPlus/mr civ p 80b plus 20

14-9-1.pdf (last visited March 12, 2018). In Gorham, the Law Court noted written decisions

facilitate important policy considerations by giving notice of the basis of an appeal to aggrieved

parties ("[A] party might not recognize whether a grievance exists until an agency articulates its

findings and rationale in a final written decision. Conversely, an agency's findings and rationale

might persuade the aggrieved party to accept the agency's decision and forego judicial review.")

and by promoting judicial efficiency ("[R]equiring parties with nascent grievances to file Rule

SOB complaints pro forma to prevent losing their right of appeal is not an efficient use of judicial

resources."). Gorham, 2011 ME 63, ,r,r 15-16, 21 A.3d 115.

The Court finds the amendment to Rule 80B(b) preempts the conflicting provision in

Board Rules Section 5.3. See M.R. Civ. P. 1 reporter's notes, December 1, 1959 ("[T]hese rules

. . . are promulgated under the authority of the rules enabling act ... , which expressly provides

8 of 10 that after they become effective 'all laws and rules in conflict therewith shall be of no further

force or effect."'); see also 4 M.R.S.A. § 8 (1977).

It is undisputed that following its May 11 oral decision, the Board failed to issue a written

decision complying with Board Rules Section 5.3 and to date has yet to do so. As such, the Court

agrees with Plaintiff that the time for appeal never began to run, and therefore Plaintiffs

complaint is not subject to dismissal for untimeliness pursuant to M.R. Civ. P. 12(b)(l).

C. Section 1983 claim

The Board argues Plaintiffs section 1983 claim must be dismissed because the 80B

appeal process provides Plaintiff with an adequate state remedy. 5 The Court agrees. "When a

plaintiff has grounded his claims on procedural due process violations and adequate state-law

remedies are available to prevent the alleged deprivation, the claims are not meritorious and must

be dismissed." Belanger v. Comm 'r, Me. Dept. ofHuman Servs., No. AP-00-18, 2000 Me. Super.

LEXIS 197, at *3 (Aug. 31, 2000). In Belanger, the plaintiffs procedural due process claim was

brought in conjunction with an 80C appeal. Id. at *2. The Court dismissed the claim, finding a

right to an 80C appeal was part of the process afforded to a party subject to final agency action.

Id. at *3-4. Similarly, in this case Plaintifrs claim can be fully adjudicated within its 80B appeal,

and therefore Rule 80B provides an adequate state remedy for addressing Plaintiffs grievances.

See Gorham, 2011 ME 63, ,r 22, 21 A.3d 115 ("With respect to independent .claims that are not

subject to Rule 80B, ... when direct review is available pursuant to Rule 80B, it provides the

exclusive process for judicial review unless it is inadequate"). Thus, this claim must be

dismissed.

III. Conclusion

5 Pilots incorporated this argument into its motion by reference. 9 of 10 For the foregoing reasons, Defendants' motions to dismiss are GRANTED as to Count VI

of Plaintiff's complaint (Section 1983 claim) and DENIED as to Counts 1-V (SOB claims) and

M.Z2LJ~ Counts VII-VIII (breach of contract and unjust enrichment). The Clerk is directed to incorporate

::e~rder in:;::~~e;reference pmswnt to Lance ~ J.Walker, Justice

7 Maine .perior Court

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