Block v. Beal

• Court: Superior Court of Maine
• Decided: July 15, 2024
• Docket: KENap-23-11
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEG, ss. CIVIL ACTION Docket No. AP-23-11

SIDNEY BLOCK, ELEANOR DANIELS,

ee EILEEN WOLPER, and ANIMAL

ee OUTLOOK,

ee ee Petitioners, Vv.

ee ee9 AMANDA BEAL, Commissioner of Maine ORDER (MLR. CIV. P. 80C)

ee Department of Agriculture, Conservation,

ee and Forestry,

ee= ee and ee ee

MAINE DEPARTMENT OF ee

AGRICULTURE, CONSERVATION, AND Nee

FORESTRY, ANIMAL WELFARE eee

PROGRAM, Nee

Respondents. Nowe

Pursuant to M.R. Civ. P. 80C, Petitioners Sidney Block, Eleanor Daniels, Eileen Wolper,

and Animal Outlook! (collectively,

Failure or Refusal to Act against Respondents Maine Department of Agriculture, Conservation,

and Forestry and Commissioner Amanda Beal (collectively,

allege that DACF has (1) failed to act in response to a citizen petition for rulemaking submitted

by 150 registered voters and (2) has abdicated its responsibility to administer, implement, and

enforce animal cruelty laws in aquaculture facilities. For the following reasons, the Rule 80C

Petition is denied.

' Animal Outlook formerly went by the name

The events giving rise to this appeal began in 2019 when DACF9s Animal Welfare

Program (

organization dedicated to improving the welfare of animals. The complaint accused Cooke

Aquaculture hatchery of committing acts of animal cruelty in the processing and harvesting of

fish at the facility. R. 446-49,

DACF subsequently commenced an investigation into the complaint, though it

acknowledged that to date it

[s]almon,= and Maine did not have best management practices (

agriculture. R. 446-47. At the conclusion of the investigation, DACF determined that Cook

Aquaculture had taken appropriate action to improve training and operations in the facility and

closed the complaint. R. 449. DACF recommended

aquatic animals look into developing oversight in animal care at this type of [a]quaculture

facility to ensure proper compliance with BMPs in the future.= R. 449.

Unsatisfied with DACF9s response, Animal Outlook submitted a Citizen Petition to

Initiate Rulemaking pursuant to 5 M.R.S. § 8055, demanding that the agency:

(1) develop BMPs for animal husbandry in aquaculture facilities; and

(2) issue a policy statement confirming DACF9s commitment to ensuring that fish kept in aquaculture facilities be properly cared for and outlining training and inspection protocols specific to aquaculture facilities.

R. 1. The rulemaking petition contained the signatures of over 150 registered Maine voters,

including those of Petitioners Sidney Block, Eleanor Daniels, and Eileen Wolper.

* DACF is statutorily charged with

provide proposed rule text and (2) the policies requested were not judicially enforceable and

thus, inappropriate for rulemaking. Jd.

On February 22, 2023, Petitioners filed a Petition for Review of Agency Failure or

Refusal to Act pursuant to M.R. Civ. P. 80C and a Complaint for Declaratory Relief pursuant to

5 M.R.S. § 8058. Counts I-IV of the Rule 80C Petition challenge the agency9s denial of the

Citizen Petition to Initiate Rulemaking, and Count VI alleges that DACF has failed to fulfill its

duty to enforce animal cruelty laws in aquaculture facilities. Count V4which sought declaratory

relief based on the agency9s failed to adopt rules required by law4was dismissed by prior order,

as the Court concluded that DACF was not legally obligated to adopt the rules envisioned by

Petitioners. Having previously disposed of the Complaint for Declaratory Relief, see M.R.S. §

8058, the Court now addresses what remains: Petitioners9 Rule 80C claims.

STANDARD OF REVIEW

Petitioners characterize their Rule 80C Petition as one seeking judicial review of DACF9s

failure or refusal to act. Under 5 M.R.S. § 11001(2), <[a]ny person aggrieved by the failure or

refusal of an agency to act shall be entitled to judicial review thereof in the Superior Court.=

decision within a time certain.= Jd. The Law Court has construed the language in Section

11001(2) to mean that with respect to failure-to-act claims, the

available [is] an order, in the nature of mandamus, requiring the [agency] to act by a date

certain.= Doe v. Bd. of Osteopathic Licensure, 2020 ME 134, Ff 22, 24, 242 A.3d 182.

Petitioners bear the burden of demonstrating that they are entitled to relief. See Anderson v. Me.

Pub. Emp. Ret. Sys., 2009 ME 134, 43, 985 A.2d 501. DISCUSSION

This Rule 80C appeal asks the Court to resolve two primary issues: (1) whether DACF

erred by failing to initiate rulemaking and by denying the rulemaking petition and (2) whether

DACF has abdicated its responsibility to administer, implement, and enforce animal cruelty laws

in aquaculture facilities. These issues are addressed below.

I. Failure to Initiate Rulemaking and Denial of Rulemaking Petition

Petitioners contend that DACF was obligated to initiate rulemaking because their petition

was supported by the signatures of more than 150 Maine voters as required by 5 M.R.S. §

8055(3). See id. (stating that <[w]henever a petition to adopt or modify a rule is submitted by 150

or more registered voters of the State, the agency shall initiate appropriate rulemaking

proceedings within 60 days after receipt of the petition=). Petitioners furthermore challenge

DACF9s justifications for denying the petition.

Before reaching these contentions, however, the Court must address DACF9s threshold

challenge to the timeliness of the Rule 80C Petition as it relates to Counts I-IV. According to

DACEF, Petitioners filed their Rule 80C Petition more than 4 months after they received notice of

DACF9s decision to deny the rulemaking petition4well outside the 30-day window set forth by

5 M.R.S. § 11002(3). Moreover, DACF rejects Petitioners9 attempt to characterize their claim as

a challenge to the

within 6 months of the expiration of the time within which the action should reasonably have

occurred.= 5 M.R.S. § 11002(3). To accept Petitioners9 reframing, DACF argues, would ignore

the fundamental dispute set forth in the Rule 80C Petition for Review as well as the reality that

the agency

whether DACF9s conduct constituted an

30-day filing deadline, rendering the Rule 80C Petition untimely4or a

act=4in which case, Petitioners would be subject to a 6-month filing deadline and the Petition

would be timely. See 5 M.R.S. § 11002(3). The Court concludes that the agency9s conduct is

more appropriately characterized as the latter.

The Law Court9s decision in Lingley v. Maine Workers' Comp. Bd., provides useful

guidance. 2003 ME 32, 819 A.2d 327. That case arose before the Law Court after the Superior

Court dismissed the appellants9 Rule 80C petition as untimely, and on appeal, the Lingley Court

considered whether the appellants were entitled to judicial review of their challenge to the

Worker9s Compensation Board9s failure to adopt a proposed rule. /d. 1-2, 6-9. In doing so, the

Law Court rejected the appellants9 contention that review was available under the APA provision

governing an agency9s

voted against the rule9s adoption, had engaged in an

While the Law Court acknowledged that

proposed rule,= it reasoned that

act.= Id. 7 9.

The Lingley Court illustrated the difference with an example:

to an agency for a permit or other approval, and the agency refuses to grant the permit or

approval, that refusal is an action.= /d. 4 9 n.7.

action on the application, the agency has refused to act.= Jd. (emphasis added). It added that a

Center v. Maine Health Care Finance Commission, in which the agency failed to issue a decision in response to the appellant9s application and thus,

all. Jd. 9 9 n.7 (citing Eastern Maine Medical Center, 601 A.2d 99 (Me.1992)).

In this case, the Court concludes that DACF9s conduct is more akin to the agency action

in Lingley than the

Medical Center. Id. DACF declined to commence rulemaking and denied the citizen petition

though the issuance of a written decision setting forth its grounds for refusing to take the action

requested. See R. 444-45 (reasoning that the petition was

not provide for appropriate rulemaking=). Indeed, this is not a case where the agency refused to

take

Cf Eastern Maine Medical Center, 601 A.2d at 100. Rather, DACF considered Petitioners9

rulemaking petition and issued an affirmative decision denying it.

Under these circumstances, the Court concludes that DACF9s denial of the petition and

refusal to initiate rulemaking constituted an

ME 32, 7 9, 819 A.2d 327. Accordingly, Petitioners were subject to the 30-day filing deadline in

Section 11002(3). See 5 M.R.S. § 11002(3).? Petitioners9 claims relating to the rulemaking

3 Even assuming, as Petitioners contend, that the 30-day deadline does not apply because a decision on a petition for rulemaking is not a

issued its decision4are therefore untimely and must be dismissed for lack of jurisdiction. See

Mutty v. Dep't of Corr., 2017 ME 7, § 8, 153 A.3d 775 (

. are jurisdictional, meaning that unless the petition is timely filed, the court lacks jurisdiction. If

jurisdiction is lacking, the court must dismiss the petition.= (internal citations and quotation

marks omitted)).

II. Abdication of Duty to Enforce Animal Cruelty Laws in Aquaculture Facilities

Count VI of the Petition for Review asserts that DACF has failed to fulfill its duty to

administer, implement, and enforce animal cruelty laws in aquaculture facilities and seeks an

order requiring the agency to enforce the law accordingly. DACF contends that the Court should

not reach this claim because Petitioners lack standing. Alternatively, DACF asserts that the

record reveals it has complied with its statutory enforcement duties.

A. Standing

Petitioner Animal Outlook asserts that it has organizational standing to bring this claim,

arguing that it has suffered an injury in its own right.9 See Pet9rs9 Reply Br. 6. Specifically, it

maintains that DACF9s inaction has frustrated its organizational mission and required Animal

Outlook to divert its resources to counteract the harm caused by the agency9s practices.

The right to appeal from an administrative action or inaction is governed by

statute. Nelson v. Bayroot, LLC, 2008 ME 91, 4 9, 953 A.2d 378.

depends on the wording of the specific statute involved.= /d. In this case, the governing statutory

was a quasi-judicial determination of Petitioners9 rights under 5 M.R.S. § 8055(3) and thus, adjudicatory in nature.

refusal of an agency to act shall be entitled to judicial review thereof in the Superior Court.= 5

M.R.S. § 11002(2) (emphasis added).

that person has suffered particularized injury4that is, if the agency action operated prejudicially

and directly upon the party's property, pecuniary or personal rights.= Nelson, 2008 ME 91, { 10,

953 A.2d 378.

While the parties appear to agree that the Law Court has yet to explore the contours of

organizational standing, it is

interests of their own, separate and apart from the interests of their members.= Mass. Delivery

Ass'n v. Coakley, 671 F.3d 33, 44 n.7 (ist Cir. 2012). Accordingly, federal precedent has

recognized that a non-profit organization may suffer a legally cognizable injury in its own right

when government action/inaction impedes the organization9s activities, requiring it to divert

resources to counteract the alleged harm. See Havens Realty Corp. v. Coleman, 455 U.S. 363,

379 (1982); Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 919-20 (D.C. Cir. 2015).

For instance, in Havens Realty, the United States Supreme Court held that an

organizational plaintiff had standing where the defendant9s practices

plaintiff's] ability to provide [the services it was formed to provide}].= Jd; see also Miami Valley

Fair Hous. Ctr., Inc. v. Connor Group, 725 F.3d 571, 576 (6th Cir. 2013); El Rescate Legal

Services, Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 748 (9th Cir. 1991).

drain on the organization's resources4constitutes far more than simply a setback to the

° The APA9s definition of <[p]erson= includes an

at 379; People for the Ethical Treatment of Animals v. U.S. Dept. of Agric., 797 F.3d 1087, 1093

(D.C. Cir. 2015) (

showing that an agency9s

organization] has expended resources to counteract those injuries.= PETA, 797 F.3d at 1094.

Here, although this case presents a close call, the Court is satisfied that the alleged

agency inaction has operated prejudicially and directly on Animal Outlook9s organizational

interests in a manner sufficient to establish standing. Nelson, 2008 ME 91, ¥ 10, 953 A.2d 378.

Animal Outlook is a nonprofit organization whose mission is to

animals,= including fish kept for aquaculture. Pet. & Compl. § 22. A key way the organization

accomplishes this goal is through investigating animal cruelty, reporting cruelty to law

enforcement, and supporting state and federal agencies in the enforcement of animal cruelty

laws. Id. The alleged failure or refusal to enforce animal cruelty laws in aquaculture facilities by

DACP, which is charged with investigating complaints and

7 M.LR.S. § 3906-B(1 1), has

welfare of animals through it normal process of submitting animal cruelty complaints and aiding

subsequent enforcement efforts. Havens Realty, 455 U.S. at 379 (1982); PETA, 797 F.3d at

1093-95; Pet. & Compl. {{ 22, 162. The Court thus concludes that the alleged injury at issue4

the denial of an adequate means by which to seek redress for cruelty to fish4constitutes a

cognizable injury for standing purposes. See PETA, 797 F.3d at 1093-95.

Moreover, Animal Outlook has expended resources to counteract those injuries. Havens

Realty, 455 U.S. at 379; PETA, 797 F.3d at 1093-95. Petitioners allege that as a result of DACF9s

alleged inaction, Animal Outlook has been forced to divert its resources away from supporting animal cruelty prosecutions to: (1) demanding and reviewing public records; (2) educating the

public about Maine9s absence of animal welfare protections in aquaculture; and (3) attempting to

cure the inaction through its rulemaking efforts, which has included the collection and

verification of signatures necessary to support the Citizen Petition to Initiate Rulemaking. See

Pet. & Compl. J§ 22, 162. Under these circumstances, the Court concludes that Animal Outlook

has suffered a sufficiently particularized injury and has demonstrated that it has been aggrieved

by DACF9s alleged failure or refusal to enforce animal cruelty laws in aquaculture facilities.

B. DACF9s Compliance with its Enforcement Obligations

DACF does not appear to dispute that it has been charged with the duty to enforce animal

cruelty laws in aquaculture facilities. See 7 M.R.S. §§ 3902, 3906-B(11) (the Commissioner of

DACF

see also id. § 3907(2) (defining <[a]nimal= to mean

being=). It argues, however, that the record does not support Petitioners9 claim that it has

abdicated its duty to do so. The Court agrees.

The record reveals that when the agency received a complaint concerning animal cruelty

in an aquaculture facility (Cooke Aquaculture), it undertook an extensive investigation in

response. DACF9s investigative efforts included observing video footage submitted by Animal

Outlook; interviewing witnesses; reviewing best aquaculture practices promulgated by the

Global Aquaculture Alliance; consulting officials from the Department of Inland Fisheries and

Wildlife and the Department of Marine Resources; and visiting the facility on multiple

occasions. R. 446-49. DACF also expressed its view that it was equipped to handle future

investigations and complaints, noting that it

aquaculture facilities under its existing statutes and rules.= R. 445. While Petitioners may disagree with how the agency resolved the complaint against Cooke Aquaculture and possess

different views regarding how best to enforce animal cruelty laws, the record does not support

Petitioners9 claim that DACF <8consciously and expressly adopted a general policy [of non-

enforcement]9= of animal cruelty laws in the aquaculture context. Pet9rs9 Br. 21-22 (quoting

United States v. Texas, 599 U.S. 670, 682-83 (2023)).

Petitioners emphasize that in DACF9s report addressing the Cooke Aquaculture

complaint, the agency included a

aquatic animals look into developing oversight in animal care at this type of [a]quaculture

facility to ensure proper compliance with BMPs in the future.= R. 449. The Court, however, does

not understand this statement as an expression of DACF9s intent to absolve itself from its

enforcement obligations, but rather, a policy recommendation in favor of a collaborative

approach to ensuring that animals in aquaculture facilities are properly cared for. In sum,

Petitioners fall short of demonstrating the pattern of nonenforcement they claim.

CONCLUSION

The entry is: Petitioners9 Rule 80C Petition for Review of Agency Failure or Refusal to

Act is DENIED.

The clerk is directed to incorporate this order on the docket by reference pursuant to M.R.

Civ. P. 79(a).

c

Date: July9, 2024

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