Getz v. Walsh

• Court: Superior Court of Maine
• Decided: September 26, 2013
• Docket: CUMap-13-37
• Status: Unpublished

Opinion

~/ STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET AP-1j-37 l/ --cu/J)- ~(d-&> /201~ I . MARJORIE J. GETZ and STATE OF MAINE DAVID M. TOURANGEAU Cumberland. ss Clerk's Office>

Petitioners SEP·2 6 2013 v. ORDER RECEIVED JANIS and PAUL WALSH and MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondents

Respondent Maine Department of Environmental Protection ("DEP") moves the

Court to dismiss the petitioners' appeal pursuant to M.R. Civ. P. 12(b)(1)&(6).

Respondents argue that the Court lacks jurisdiction to hear petitioners' appeal because the

Commissioner of DEP has sole discretion to act or refuse to act in this case.

FACTUALANDPROCEDURALBACKGROUND

Petitioners Marjorie Getz and David Tourangeau petitioned the DEP to revoke the

Walshes' Natural Resources Protection Act (NRP A) permit on March 18, 2013. In a

letter to petitioners dated June 28, 2013, the Commissioner ofDEP declined to initiate

revocation proceedings in response to the petition. On July 8, 2013, the petitioners filed

their appeal under M.R. Civ. P. 80C. They seek review of the DEP's decision dismissing

their petition to revoke the Walsh's NPRA permit. Defendant DEP moved to dismiss the

appeal on August 2, 2013. DISCUSSION

1. Standard of Review

Under M.R. Civ. P. 80C, an individual may petition the court for a "review of

final agency action or the failure or refusal of an agency to act." The Maine

Administrative Procedure Act governs the appeal. M.R. Civ. P. 80C(a). The Court only

has jurisdiction to review agency action to the extent a statute provides for review. Sears,

Roebuck& Co. v. City ofPortland, 144 Me. 250,255,68 A.2d 12, 14 (1949).

2. Is the Commissioner's Decision to Deny the Petition for Revocation Subject to

Judicial Review?

Respondents argue that the decision to act or refuse to act on a petition for

revocation of a permit is committed to the sole discretion of the commissioner of DEP by

statute. Under 38 M.R.S.A. § 342(11-B), "the commissioner may act to revoke or

suspend a license whenever the commissioner finds" that any of eight listed conditions

have been met. The applicable DEP regulation uses similar discretionary language and

allows the Commissioner to dismiss the petition or hold a hearing. 2 C.M.R. 06 096 002-

12 § 25 (2012).

In Friedman v. Board of Environmental Protection, the Law Court construed a

statute that authorizes the DEP Board to modify or correct a license that had already been

issued. Friedman v. Bd. of Envtl. Prot., 2008 ME 156, ~~13-16, 956 A.2d 97. The statue

provided "that 'the [B]oard may modify in whole or in part any license, or may issue an

order prescribing necessary corrective action, or may act in accordance with the Maine

Administrative Procedure Act to revoke or suspend a license, whenever the [B]oard finds

that' any of seven listed standards have been met." Id. ~ 13 (quoting M.R.S.A. § 341 D-3

2 (2007)). The Court pointed to the statutory definitions of shall and may, which "provides

that the use of 'shall' in a statute, indicates a 'mandatory duty, action or requirement,'

and the word 'may' indicates 'authorization or permission to act."' /d. ~ 14 (quoting 1

M.R.S.A. § 71(9-A) (2007)). The Court concluded that, because the Board was not

required to act by statute, "[t]he decision to grant or deny a petition for modification lies

in the agency's sole discretion." Friedman, 2008 ME 156, ~ 16, 956 A.2d 97.

Petitioners attempt to distinguish Friedman on two grounds. First, they argue that

there are significant factual differences between this case and Friedman. While it is true

that Friedman concerned the DEP Board's authority to modify water quality

certifications and not the Commissioner's authority to revoke an NRP A permit, the Law

Court's decision did not tum on specific facts but on statutory interpretation. See

Friedman, 2008 ME 156, ~~ 2, 13-16, 956 A.2d 97. Because the statute in this case uses

the discretionary "may" as opposed to "shall," the Commissioner has sole discretion to

act or not act on the petition.

Second, petitioners argue that the word "may" in a statute can be construed as

"must" or "shall" in some instances. "In general the word 'may,' used in statutes, will be

given ordinary meaning, unless it would manifestly defeat the object of the statute, and

when used in a statute, is permissive, discretionary, and not mandatory." Collins v. State,

213 A.2d 835, 837 (Me. 1965) (internal quotations omitted). In a case involving a

petition for a fishway in a dam, the Law Court explicitly declined to read "may" as

"shall." Dumont v. Speers, 245 A.2d 151, 153 (Me. 1968). In this case, as in Friedman,

the legislature unambiguously intended to give the Commissioner sole discretion to

determine whether to revoke a permit or license. See Friedman, 2008 ME 156, ~ 16, 956

3 A.2d 97. Therefore, the Court will not construe the statute as imposing a mandatory duty

on the Commissioner.

Because the Court finds that the Law Court's reasoning in Friedman applies to

this case, the Commissioner's decision not to initiate revocation proceedings is entirely

discretionary and therefore not reviewable. Accordingly, the DEP's motion to dismiss

must be granted.

The entry is:

The Maine Department of Environmental Protection's motion to dismiss is GRANTED.

Date: September 26, 2013 ~Wheeler Justice, Superior Court

Petitioners-Marjorie J Getz-Pro Se David M Tourangeau-Pro Se Respondents Walsh-Mary Costigan Esq Respondent DEP-Margaret Bensinger AAG