MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2023 ME 61 Docket: And-22-396 Argued: June 7, 2023 Decided: September 5, 2023
Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and DOUGLAS, JJ.
DANIEL WOOD
v.
DEPARTMENT OF INLAND FISHERIES AND WILDLIFE
DOUGLAS, J.
[¶1] Daniel Wood appeals from a judgment of the Superior Court
(Androscoggin County, Stewart, J.) affirming the decision of the Commissioner
of the Department of Inland Fisheries and Wildlife to revoke or suspend Wood’s
hunting license for three years and his guide license for one year. He argues
that the Commissioner misinterpreted a statute as requiring a mandatory
revocation of his hunting license; that the statute governing revocation of
hunting licenses is unconstitutionally vague; and that Department rules
establishing standards of competency, which the Commissioner relied upon in
revoking his guide license, result from an unconstitutional delegation of
authority by the Legislature. We affirm the judgment. 2
I. BACKGROUND
[¶2] Based on an incident in November 2018, the State charged Wood
with discharge of a firearm or crossbow near a dwelling (Class E), 12 M.R.S.
§ 11209(1)(A), (2) (2023).1 Through a subsequent plea agreement, Wood was
charged with, and pleaded guilty to, reckless conduct (Class D), 17-A M.R.S.
§ 211 (2023),2 and the State dismissed the initial charge. On January 6, 2022,
the court (Lawrence, J.) signed the judgment and commitment, ordering Wood
to pay a $1,000 fine.
[¶3] By letter dated January 25, 2022, the Commissioner notified Wood
that pursuant to 12 M.R.S. § 10902 (2023) his “privilege to obtain a hunting
license and [his] right to apply for or obtain a hunting license from the Maine
Department of Inland Fisheries and Wildlife [was] revoked effective
1Although this statute was amended after the conduct at issue here, we cite the current statute because the amendment was merely syntactical to accommodate an additional paragraph and did not make any substantive change to the offense charged. See P.L. 2021, ch. 74, § 2 (effective Oct. 18, 2021) (codified at 12 M.R.S. § 11209(1)(A) (2023)). The statute provides, with certain exceptions not relevant here, that “[a] person may not . . . discharge a firearm . . . or cause a projectile to pass as a result of that discharge within 100 yards of a building or residential dwelling without the permission of the owner or, in the owner’s absence, of an adult occupant of that building or dwelling authorized to act on behalf of the owner.” 12 M.R.S. § 11209(1)(A). 2 “A person is guilty of reckless conduct if he recklessly creates a substantial risk of serious bodily
injury to another person.” 17-A M.R.S. § 211(1) (2023). “A person acts recklessly with respect to a result of the person’s conduct when the person consciously disregards a risk that the person’s conduct will cause such a result.” 17-A M.R.S. § 35(3)(A) (2023). “[T]he disregard of the risk, when viewed in light of the nature and purpose of the person’s conduct and the circumstances known to the person, must involve a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation.” Id. § 35(3)(C). 3
01/06/2022 to 01/06/2025” because of his conviction for reckless conduct.
The letter explained that the one-year period from January 6, 2022, to
January 6, 2023, represented a mandatory revocation under section 10902 and
that the additional, three-year, concurrent suspension period ending on
January 6, 2025, was nonmandatory and was being imposed in the discretion
of the Commissioner. In a second letter of the same date (January 25, 2022),
the Commissioner notified Wood that his “privilege to obtain a guide license
and [his] right to apply for or obtain a guide license from the Maine Department
of Inland Fisheries and Wildlife [were] revoked effective 01/25/2022 to
01/25/2023” because of the same conviction. See 12 M.R.S. §§ 10902, 10908
(2023). Both letters informed Wood of his right to an administrative hearing if
requested in writing within thirty days “after receipt of notice” of the decision
to revoke or suspend the license.3
3 By statute, the hunting license could be revoked for a mandatory one-year period upon the conviction of a crime that was committed “while . . . in the pursuit of wild animals,” 12 M.R.S. § 10902 (4)(A) (2023), but it could also be suspended for a nonmandatory period, id. § 10902(1), whereas the guide license could be either revoked or suspended based on a violation of standards of competency, 12 M.R.S. § 10908 (2023).
In her decision and her letters to Wood, the Commissioner appears to conflate the terms “revocation” and “suspension” as used in the pertinent statutes. See id. §§ 10902(1), (4)(A), 10908. For example, in her final decision signed on May 27, 2022, she reported that Wood’s hunting license, and right to apply for or obtain a hunting license, had been “revoked” for a three-year period but then specified that she had “imposed a one-year mandatory suspension . . . and an additional [concurrent] three-year non-mandatory suspension” of that license. She later referred to a “three-year, non-mandatory revocation” of the hunting license. Her January 25, 2022, letter to Wood concerning the hunting license bore a heading referencing mandatory and nonmandatory periods of 4
[¶4] Wood timely requested an administrative hearing as to the
Commissioner’s decision on both licenses. At the hearing, held on April 27,
2022, both Wood and the game warden who investigated the November 2018
incident testified; and the Department introduced without objection its file on
the matter, which included the game warden’s report. The following facts are
supported by the record and are not in dispute.
[¶5] Wood, a registered Maine Guide, shot a deer from a public road in
Lewiston. According to the game warden’s report, a witness had observed
“[r]evocation,” but it also referred to a one-year “mandatory minimum suspension period required by State law.” Similarly, the Commissioner’s January 25, 2022, letter to Wood regarding his guide license bore a heading referring to “[r]evocation” of the license, but it also included the following paragraph referring to a “suspension” of that license:
Maine is a member state of the Interstate Wildlife Violator Compact (IWVC) and as such has entered your name and terms of suspension into the IWVC database. Your hunt/fish/trap privileges may be suspended in all member states for the duration of your suspension in Maine. If you wish to hunt/fish/trap in another state during the period of time your Maine hunt/fish/trap privileges are revoked, it is your responsibility to contact that state[’]s fish and wildlife agency to determine your eligibility to purchase a recreational license.
The two terms are not defined in Title 12, but the dictionary definitions of the terms highlight the difference between the two. See Suspend, American Heritage Dictionary of the English Language (5th ed. 2016) (defining “suspend” to mean “[t]o bar for a period from a privilege”); Revoke, American Heritage Dictionary of the English Language (defining “revoke” to mean “[t]o invalidate or cause to no longer be in effect, as by voiding or canceling”). Thus, based on the terms’ ordinary meanings, a suspended license would be returned to active status at the end of the suspension period (unless it had expired according to its original terms), whereas a revoked license would be canceled and the holder required to apply for the license anew after the period of the revocation. Although the distinction between the two terms has not been raised as an issue in this appeal, we endeavor to use the terms consistently with the statutes, and we understand the Commissioner to have revoked Wood’s hunting and guide licenses for one year, though she imposed a nonmandatory period of suspension of the hunting license. 5
Wood’s truck stopped in the roadway, facing in the wrong direction with its
driver’s door open. While leaning on the passenger-side mirror and pointing
his firearm in the direction of a residence, Wood aimed and fired, killing a deer.
Subsequent measurements established that the deer was standing eighty-six
yards from the residence when struck by the bullet fired by Wood.
[¶6] Wood did not dispute that he shot the deer in the manner described
in the game warden’s report or that the deer was within 100 yards of the
residence when it was hit. See 12 M.R.S. § 11209(1)(A).4 He did not dispute
that he pleaded guilty to and was convicted of reckless conduct under 17-A
M.R.S. § 211 based on the same conduct. Rather, he argued that the statutes
and regulations under which his licenses were revoked or suspended are
overbroad,5 vague, and standardless. He further argued that the revocation of
his hunting license would be mandatory only if he were convicted of a crime for
which the act of hunting was an element of the offense.
4 See also 12 M.R.S. § 11208 (2023) (classifying shooting at an animal from any public paved way
as a Class E crime). 5 Wood also contends in his brief here that the statute is overbroad, but he cites no cases on overbreadth. An overbreadth argument is inapposite here because it is grounded in the First Amendment, see State v. Cropley, 544 A.2d 302, 304 (Me. 1988), and nothing in Wood’s conduct involved speech. Accordingly, we consider Wood’s argument on appeal to be based on vagueness. 6
[¶7] In a May 27, 2022, decision, the Commissioner determined that
(1) Wood’s conviction for reckless conduct, 17-A M.R.S. § 211, in these
circumstances “is sufficient grounds for the revocation of Wood’s hunting
license, and of his right to apply for or obtain a hunting license” under 12 M.R.S.
§ 10902(4)(A) and (2) section 10902 “was properly applied” as to the
mandatory one-year revocation. Given the nature of Wood’s actions, she also
found that an additional, three-year, concurrent nonmandatory suspension of
the right to apply for a hunting license was appropriate. She then reasoned that
the revocation of Wood’s guide license was justified because Wood failed to
meet the Department’s standards of competency for a guide, which require,
among other things, that a guide have “experience based judgment” that will
ensure safety and that the guide understand and abide by all laws and rules
involving the licensed activities. 09-137 C.M.R. ch. 24, § 24.08(A)(3), (5)
(effective April 13, 2021).6
[¶8] Wood timely petitioned the Superior Court for review of the
Department’s final agency action. See 5 M.R.S. §§ 11001, 11002 (2023);
6Although section 24.08 has been amended since the 2018 incident that led to the revocation or suspension of Wood’s licenses, the relevant subsections were not affected. Compare 09-137 C.M.R. ch. 24, § 24.08(A)(3), (5) (effective April 13, 2021), with 09-137 C.M.R. ch. 24, § 24.08(A)(3), (5) (effective July 25, 2020). 7
M.R. Civ. P. 80C. After accepting briefs from the parties, the court (Stewart, J.)
entered a judgment on November 21, 2022, affirming the Commissioner’s
decisions. Wood timely appealed. See 5 M.R.S. § 11008 (2023); M.R. App. P.
2B(c)(1).
II. DISCUSSION
[¶9] We begin by summarizing the statutes at issue on appeal, then
address each of the issues Wood raises.
A. Statutes Governing the Revocation or Suspension of Hunting and Guide Licenses
[¶10] Section 10902 of Title 12 of the Maine Revised Statutes sets out
the circumstances under which the Commissioner may revoke or suspend a
person’s hunting license (or the right to apply for a hunting license).7
Subsection 1 provides, in part, that “[a]ny conviction or adjudication for a
violation of this Part is grounds for suspension of any license or permit issued
under this Part. Except where provided by law, the commissioner shall
determine the suspension period.” 12 M.R.S. § 10902(1). Subsection 4
provides:
A person’s license must be revoked under the following circumstances.
7 See supra n.3. 8
A. If a person holding a license or permit under . . . chapter [913] is convicted of the violation of any provision of Title 17-A while on a hunting or fishing trip or in the pursuit of wild animals, wild birds or fish, the commissioner shall revoke the license or permit held by that person for a period of at least one year, except when the killing or wounding of a human being has occurred, in which case the commissioner shall revoke the license or permit for at least 5 years.
Id. § 10902(4); see 12 M.R.S. §§ 10751-10759 (2023) (establishing, in chapter
913, the Department’s authority to issue licenses under part 13 of Title 12,
which governs inland fisheries and wildlife); 12 M.R.S. § 11101 (2023)
(particularly authorizing, within part 13 of Title 12, the issuance of a hunting
license).
[¶11] A person holding a guide license is subject to professional
standards of conduct adopted by the Commissioner through the agency
rulemaking process. See 12 M.R.S. § 12851 (2023); 5 M.R.S. §§ 8051-8064,
8071(3) (2023); 09-137 C.M.R. ch. 24, § 24.08. Section 12851 authorizes the
Commissioner, with the advice and consent of the Advisory Board for the
Licensing of Guides, to adopt rules in several areas, including rules setting out
standards of competency for guides. 12 M.R.S. § 12851(3). Among other things,
the standards of competency that were adopted require a guide to “[h]ave
experience based judgment that helps prevent unsafe situations” and “[f]ully
understand and abide by all state and federal laws and rules involving the 9
activities in the classification(s) for which the Guide is licensed.” 09-137 C.M.R.
ch. 24, § 24.08(A)(3), (5).
B. Wood’s Appeal
[¶12] Wood challenges (1) the Commissioner’s interpretation of the
statute mandating revocation of his hunting license for one year; (2) the
constitutionality of the statute governing hunting license revocation and
suspension; and (3) the constitutionality of the legislative delegation of
authority to establish standards of competency for licensed guides.
1. Interpretation of Section 10902(4)(A)
[¶13] Wood contends that the revocation of his hunting license was not
required by section 10902(4)(A) because the Title 17-A offense of which he was
convicted did not include as one of its elements that he was engaged in the
pursuit of a wild animal. Wood argues that “while he was convicted of an
offense under Title 17-A, he was not convicted of doing so while hunting, fishing
or pursuing wild animals, as the statute clearly requires.”
[¶14] “[W]hen the trial court has acted in an intermediate appellate
capacity, we review directly the original decision of the fact-finding agency,
without deference to the ruling on the intermediate appeal by the court from
which the appeal is taken.” Black v. Bureau of Parks & Lands, 2022 ME 58, ¶ 25, 10
288 A.3d 346 (quotation marks omitted). We review de novo questions of
statutory interpretation involved in Rule 80C appeals. Ouellette v. Saco River
Corridor Comm’n, 2022 ME 42, ¶ 8, 278 A.3d 1183. In interpreting a statute, we
look to its plain meaning, reading its language in harmony with the entire
statutory scheme in which it appears, and interpret the statutory language “to
avoid absurd, illogical or inconsistent results.” Jackson Lumber & Millwork Co.
v. Rockwell Homes, LLC, 2022 ME 4, ¶ 10, 266 A.3d 288 (quotation marks
omitted).
[¶15] The language of section 10902(4)(A) is very clear. It does not
require that an element of the predicate Title 17-A offense involve the act of
“hunting, fishing or pursuing wild animals” as Wood suggests. Rather, the
statute plainly says that if a licensee “is convicted of the violation of any
provision of Title 17-A while on a hunting or fishing trip or in the pursuit of wild
animals,” a mandatory one-year license revocation is triggered. 12 M.R.S.
§ 10902(4)(A) (emphasis added). In other words, nothing in section
10902(4)(A) requires that the underlying criminal conviction involve the act of
hunting, fishing, or pursuit of wild fish, fowl, or game. A violation of “any
provision of Title 17-A” is sufficient so long as it was committed “while on a
hunting or fishing trip or in the pursuit wild animals, wild birds or fish.” Id. 11
[¶16] This interpretation makes sense in the context of section 10902,
which includes multiple provisions authorizing the Commissioner to revoke or
suspend a license when a licensed person’s conduct while hunting has
threatened public safety. See, e.g., 12 M.R.S. § 10902(5) (authorizing revocation
or suspension if a person “killed, wounded or recklessly endangered the safety
of another human being while hunting”); id. § 10902(6)(B) (requiring
suspension of a hunting license for at least a year when a person is convicted of
hunting while under the influence of intoxicating liquor or drugs). It is also
consistent with the administrative duties and responsibilities of the
Commissioner to enforce fish and game laws in a manner that protects public
safety. See 12 M.R.S. § 10103(2) (2023) (“[T]he commissioner has general
supervision of the administration and enforcement of the inland fisheries and
wildlife laws . . . .”); see also 12 M.R.S. § 10108(1), (6-A) (2023) (requiring the
Commissioner to establish training programs in firearm and crossbow hunting
safety); 12 M.R.S. § 10104(1) (2023) (authorizing the Commissioner to adopt
rules necessary for the enforcement of the laws the Department is responsible
for administering); 09-137 C.M.R. § 16.04 (2023) (requiring those using a
firearm or crossbow to wear articles of hunter orange clothing during
designated seasons). 12
[¶17] Here, Wood does not dispute that the conduct underlying his
Title 17-A conviction for reckless conduct involved his pursuit of a wild animal;
he has admitted that he acted recklessly in shooting a deer. There was
substantial evidence—as required for an administrative determination—to
support the Commissioner’s finding that Wood was convicted of a Title 17-A
offense—reckless conduct under 17-A M.R.S. § 211—and that the underlying
conduct occurred while Wood was engaged in the pursuit of a wild animal.
See 12 M.R.S. § 10902(4)(A); Richard v. Sec’y of State, 2018 ME 122, ¶ 21, 192
A.3d 611 (“Substantial evidence exists when a reasonable mind would rely on
that evidence as sufficient support for a conclusion.” (quotation marks
omitted)). The Commissioner’s interpretation of section 10902(4)(A) was
correct, and her action revoking Wood’s hunting license for the mandatory
minimum one-year period was supported by substantial evidence adduced at
the administrative hearing.
2. Constitutionality of the Statute Governing Hunting License Revocation and Suspension
[¶18] Wood argues that section 10902 is unconstitutionally vague
because (1) it does not convey to a reasonable person that a conviction of
reckless conduct, 17-A M.R.S. § 211, which includes no requirement of a
connection to hunting, can result in a mandatory hunting license revocation 13
(and an additional discretionary license suspension); and (2) it provides the
Commissioner with such wide discretion that individuals, including Wood, can
be targeted arbitrarily for license revocation.8
[¶19] We review issues of constitutional interpretation de novo. In re
Weapons Restriction of J., 2022 ME 34, ¶ 12, 276 A.3d 510. The party
challenging the constitutionality of a statute has “the heavy burden of
overcoming the presumption that the statute is constitutionally valid.” Ford
Motor Co. v. Darling’s, 2014 ME 7, ¶ 33, 86 A.3d 35 (quotation marks omitted).
[¶20] Due process under the United States Constitution, U.S. Const.
amend. XIV, § 1, requires that a statute “provide reasonable and intelligible
standard[s] to guide the future conduct of individuals and to allow the courts
and enforcement officials to effectuate the legislative intent in applying these
laws.” Me. Real Est. Comm’n v. Kelby, 360 A.2d 528, 531 (Me. 1976) (quotation
marks omitted). “[A] statute is vague when its language either forbids or
requires the doing of an act in terms so vague that people of common
intelligence must guess at its meaning, or if it authorizes or encourages
8 Although Wood has, through his case citations, alluded to both the federal Due Process Clause
and article 1, section 6-A of the Maine Constitution, he has developed no independent analysis of the Maine clause. Any reliance on the Maine Constitution to support his claim is therefore waived, and we focus on the federal Due Process Clause, applicable here through the Fourteenth Amendment. See U.S. Const. amend. XIV, § 1; State v. Moore, 2023 ME 18, ¶ 20, 290 A.3d 533. 14
arbitrary and discriminatory enforcement.” Uliano v. Bd. of Env’t Prot., 2009 ME
89, ¶ 15, 977 A.2d 400 (quotation marks omitted). The focus is “on the need
for adequate notice.” Doane v. Dep’t of Health & Hum. Servs., 2021 ME 28, ¶ 17,
250 A.3d 1101.
[¶21] As discussed above, the meaning of section 10902(4)(A) is clear.
If one is convicted of “any” Title 17-A offense while in pursuit of a wild animal,
a license revocation is required. 12 M.R.S. § 10902(4)(A). As applied here,
Wood, a registered Maine Guide, was convicted of a Title 17-A offense that not
only occurred while he was in pursuit of a deer, but the conduct itself—shooting
at a deer near a residence—was the basis for the conviction. See 17-A M.R.S.
§ 211; see also 12 M.R.S. § 10902(4)(A). He admitted to the conduct. A person
of common intelligence, and especially a person in Wood’s position, reading the
statute in the context of the entire statutory scheme, see Jackson
Lumber & Millwork Co., 2022 ME 4, ¶ 10, 266 A.3d 288, would not have to guess
at the statute’s meaning to understand that the Commissioner could make
findings that form part of the basis for Wood’s license revocation, particularly
in the circumstances presented here. See 12 M.R.S. § 10902(4)(A), 10905
(2023). Nor would a person have to guess at whether the statute requires
revocation if a person is convicted of a crime for shooting toward a residence 15
while hunting a deer that was less than 100 yards away from that residence.9
See id. § 10902(4)(A); Uliano, 2009 ME 89, ¶ 15, 977 A.2d 400.
[¶22] Section 10902(1)—the authority for the Commissioner’s
discretionary suspension of Wood’s hunting license for an additional two
years—provides that upon adjudication of a violation of an Inland Fisheries and
Wildlife statute, the Commissioner may either suspend a license, id. § 10902(1),
or refuse to issue one, id. § 10902(2). Thus, the Commissioner was authorized,
based on her adjudication that Wood violated section 10902(4)(A), to
determine that Wood would not be eligible to apply for or obtain a hunting
license for a period of time beyond the mandatory revocation period. Although
the Commissioner’s discretion might not be defined with particularity for
purposes of the nonmandatory suspension period, some guidance is provided
by the minimum revocation period of five years that applies when “the killing
or wounding of a human being has occurred.” Id. § 10902(4)(A). Given the
statutory scheme and the circumstances presented here, the discretionary
authority in section 10902(1) to suspend a hunting license for additional years
9 We do not opine on the more ambiguous situation in which a person “on a hunting or fishing trip” commits a crime unrelated to hunting or fishing while on that trip. 12 M.R.S. § 10902(4)(A). Presumably, the Commissioner will not be inclined to revoke a license if a person’s conduct is not connected in any way to activities that a hunting or fishing license regulates. 16
is not so vague as to fail to provide notice or encourage arbitrary or
discriminatory enforcement, id. § 10902(1), (2), (4)(A); see Doane, 2021 ME 28,
¶ 17, 250 A.3d 1101, and the three-year term of revocation and suspension
ultimately imposed on him is consistent with the statutory scheme. Wood has
not overcome the presumption of constitutionality to demonstrate that the
statute is unconstitutionally vague. See Irish v. Gimbel, 1997 ME 50, ¶ 6, 691
A.2d 664.
3. Delegation of Authority
[¶23] The Commissioner revoked Wood’s guide license for violating
standards of conduct that were established through agency rulemaking. Wood
contends that the Legislature unconstitutionally delegated to the
Commissioner its legislative authority to adopt the standards of conduct and
that those standards, as applied, allowed the Department to target Wood
arbitrarily for license revocation.
[¶24] With respect to the regulation of guides, the Legislature conferred
rulemaking authority on the Commissioner:
The commissioner shall, with the advice and consent of the Advisory Board for the Licensing of Guides, adopt rules necessary to administer this chapter. . . . The commissioner shall establish safety standards to provide the clients of guides reasonable protection from hazards. 17
12 M.R.S. § 12851.10 The Legislature specifically authorized the Commissioner
to “establish standards of competency that must be provided to each applicant.”
Id. § 12851(3). Among other standards of competency adopted through the
rulemaking process are the requirements that a guide “[h]ave experience based
judgment that helps prevent unsafe situations” and “[f]ully understand and
abide by all state and federal laws and rules involving the activities in the
classification(s) for which the Guide is licensed.” 09-137 C.M.R. ch. 24,
§ 24.08(A)(3), (5). The question is whether these standards were adopted
through a lawful delegation of authority.
[¶25] “An ‘excessive delegation’ claim is based on the separation of
powers clause of the Maine Constitution, which precludes a statutory
delegation to a regulator so broad or amorphous that it amounts to a surrender
of legislative authority to the executive branch.” Doane, 2021 ME 28, ¶ 17, 250
A.3d 1101; see Me. Const. art. III, § 2. “[L]egislation delegating discretionary
authority to an administrative agency is unconstitutional if it fails to contain
standards sufficient to guide administrative action.” Uliano, 2009 ME 89, ¶ 15,
977 A.2d 400 (quotation marks omitted). “[I]n delegating power to an
10 The Advisory Board for the Licensing of Guides includes four public members in addition to a subordinate officer of the Department, two wardens, and a marine patrol officer of the Department of Marine Resources. See 12 M.R.S. § 10153(1) (2023). 18
administrative agency, the legislative body must spell out its policies in
sufficient detail to furnish a guide which will enable those to whom the law is
to be applied to reasonably determine their rights thereunder, and so that the
determination of those rights will not be left to the purely arbitrary discretion
of the administrator.” Stucki v. Plavin, 291 A.2d 508, 510 (Me. 1972). “[W]hile
the amount of discretion the Legislature can bestow upon a state agency is not
boundless, latitude must be given in areas where the statutory enactment of
detailed specific standards is unworkable.” Doane, 2021 ME 28, ¶ 27, 250 A.3d
1101.
[¶26] In addition to legislative specificity in a delegation of authority, the
rulemaking process required by Maine’s Administrative Procedure Act
enhances accountability and ensures that the resulting regulations
appropriately limit the authority of the agency and avoid arbitrary standards.11
See Uliano, 2009 ME 89, ¶ 28, 977 A.2d 400 (stating that the rulemaking process
provides “significant protection against abuses of discretion by the Board in
exercising its rule-making authority” and “compensates substantially for the
11Cf. Kosalka v. Town of Georgetown, 2000 ME 106, ¶¶ 5, 17, 752 A.2d 183 (holding that a municipal ordinance provision requiring that proposed campgrounds “conserve natural beauty” was so “totally lacking in cognizable, quantitative standards” that it was arbitrary and amounted to an unlawful delegation of authority (quotation marks omitted)). 19
want of precise legislative guidelines” (alteration and quotation marks
omitted)); see generally 5 M.R.S. §§ 8051-8064. “The possibility of arbitrary
administrative decision-making common to both void-for-vagueness and
excessive-delegation concerns is assuaged by the formal APA rulemaking
process.” Doane, 2021 ME 28, ¶ 22, 250 A.3d 1101. The rulemaking process
includes the provision of notice to the public and pertinent legislative
committees, 5 M.R.S. §§ 8053, 8053-A; a comment period, see id. § 8057-A(3);
and an opportunity for aggrieved persons to seek judicial review, see id.
§ 8058.12
[¶27] Here, the Legislature acted well within constitutional bounds in
delegating authority to the Commissioner to adopt competency standards
through the APA rulemaking process based on the Department’s expertise.
Uliano, 2009 ME 89, ¶ 28, 977 A.2d 400; Doane, 2021 ME 28, ¶ 22, 250 A.3d
1101. The standards are among the authorized “safety standards” that “provide
the clients of guides reasonable protection from hazards.” 12 M.R.S. § 12851.
The standards at issue here—requiring that a guide avoid committing crimes
while hunting and possess “experience based judgment” to prevent unsafe
12 These procedures apply to the “routine technical rules” adopted by the Commissioner here. 12 M.R.S. § 12851 (2023); 5 M.R.S. § 8071(3) (2023) (providing that only subchapter 2 of the APA applies to routine technical rules); see 5 M.R.S. §§ 8051-8064 (2023) (subchapter 2 of the APA). 20
situations, 09-137 C.M.R. ch. 24, § 24.08(A)(3), (5)—are neither arbitrary nor
unreasonable; they are directly related to the safety concerns the Legislature
directed the Commissioner to safeguard through rulemaking. See 12 M.R.S.
§ 12851; Stucki, 291 A.2d at 510. As applied to Wood, the standards were
sufficiently clear to warn of the revocation of his guide license if he either
(1) showed poor judgment by deciding, despite his years of experience, to
create a threat to the safety of others or (2) committed the crime of reckless
conduct, 17-A M.R.S. § 211, in shooting at a deer from a public roadway and in
the direction of a residence. See 09-137 C.M.R. ch. 24, § 24.08(A)(3), (5);
12 M.R.S. § 10902(4)(A); see also Kelby, 360 A.2d at 532 (holding that the
“terms ‘bad faith,’ ‘incompetency,’ ‘untrustworthiness,’ and ‘dishonest,
improper or fraudulent dealings’ are neither so general that persons of
common intelligence must guess at their meaning, nor so indefinite as to defy
evenhanded interpretation”).
The entry is:
Judgment affirmed. 21
Verne E. Paradie, Jr., Esq. (orally), Lewiston, for appellant Daniel Wood
Aaron M. Frey, Attorney General, and Mark Randlett, Asst Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Department of Inland Fisheries and Wildlife
Androscoggin County Superior Court docket number AP-2022-04 FOR CLERK REFERENCE ONLY