STATE OF MAINE SUPERIOR COURT HANCOCK, SS. CIVIL ACTION DOCKET NO.: AP-04-08 r-I - _ 4 . ' ? + I _- i d ,
AlWE HANNUM,
Petitioner
V. DECISION
MAINE BOARD OF ENVIROhTMENTAL PROTECTION,
Defendant
and
MILLICENT GUPTILL-HIGGINS, ET AL.,
Parties-In-Interest
Before this court is the petitioner, Anne Hamum's (Hannum) 80C Appeal which seeks reversal of the Maine Board of Environmental Protection (BEP) denial of her application for a permit under the Natural Resources Protection Act (NRPA). Edward Bearor, Esq. appeared on behalf of the petitioner Hannum, Margaret Bensinger, Assistant Attorney General appeared on behalf of the Maine Board of Environmental Protection, James Nixon, Esq. appeared on behalf of the Friends Of Acadia, and Douglas Chapman, Esq. appeared on behalf of the parties-in-interest, Higgins and Horsman. Procedural Historv On November 1, 1999, Hannurn filed a permit application with NRAP seeking approval to construct a 90-foot long and 5-foot wide private dock on her 62-acre parcel that has 1200 feet of frontage on the Maine coast. A p ~ ~ b lhearing ic was held on June 15, 2000 and July 6, 2000. BEP granted intervenor status to Ruth Higgins Horsman, Millicent Higgins, Thonlas Watt, and the Friends Of Acadia. The record contained objections to the permit in the form of testimony given by Steve Pelletier, wildlife biologist, Dr. Jolm Anderson, an ornithologist, Thomas Schaffer, Dr. James Gilbert, a wildlife biGlogist, Patrick Keating, and Daniel Chalmers. The board also received a letter from Leslie Cowperthwaite. The record also indicates that the Army Corp. of Engineers determined that the project would not adversely impact any essential fish habitat and that the project was eligible for approval. The United States Environlnental Protection Agency, the United States Fish and Wildlife Service, and the National Marine Fisheries Service all reviewed the proposed project and did not object to it. The Maine Department of Inland Fisheries and Wildlife also approved the project. On May 21, 2001, BEP denied the application. This decision was appealed to the Maine Superior Court; the BEP decision was upheld. Hannum then appealed to the Maine Supreme Judicial Court. On October 15, 2003, the Maine Supreme Judicial Court vacated the superior court's decisioil and remanded the case back to BEP for further proceedings because the factual findings relied upon by the BEP were not supported by evidence in the record. Upon the remand, BEP decided not to reopen the record to allow the submission of additional evidence. The Board made new findings on the evidence that existed in the record as of May 11,2001. On June 3,2004, BEP once again denied Haimum's permit stating three reasons for the denial. These reasons are set out in paragraphs A, D, and J of their decision. Hamuin filed this 80C Appeal of this most recent denial by BEP. Discussioil The starting point of any analysis in this case begins with Hannum's common law right to wharf out from her coastal real estate. This colnmon law right is subject to reasonable regulation. The regulation in question is the NRPA. The Maine Board of Environrnellta! Protection is responsible for ad~~~inistering the NRPA. This case came before the BEP for a secoild time following the Maine Supreme Judicial Court's remand. The BEP did not receive any additional evidence when considering this matter on remand. The three findings, which justify their denial of the application, are set out in the following findings colltained on page 12 of the decision:
(A) The proposed activity would umeasoiiably interfere with existing scenic and aesthetic uses in that the project would cause and unreasonable adverse impact to aquatic life and the aquatic habitat supporting seals and terns in the cove and would unreasonably interfere with the existing public viewing of those wildlife species;
(D) The proposed activity would unreasonably harm aquatic habitat and other aquatic life in that the permanent pier would increase boat traffic in the cove, which will disturb the existing tern and seal co1onies;and
(J) The proposed activity does not meet the avoidance, minimal alteration, and no unreasonable iillpact requirements articulated in the Wetland Protection Rules, chapter 3 10, sections 5A, 5B, and 5D, in that the applicant has reasonable and practicable alterilatives to coilstructiilg a permanent pier; and the construction and use of the dock wou.ld liltely disturb an endangered species.
A. Scenic and Aesthetic Uses D. Increased Boat Traffic The court is discussing these two findiilgs together because ultinlately they focus on the same factor, iilcreased boat traffic. In the finding contained in (A) ,the BEP focuses on illtcrference with existing scenic and aesthetic uses by indicating that the project would have an ui~reasonableadverse impact on aquatic life and habitat; therefore there wouldn't be ally aquatic life or habitat to view. The project itself would not directly impact the scenic or aesthetic uses of the area, however; they state that the problem is the harm to aquatic life and habitat caused by the iilcreased boat traffic. The findings in paragraphs (A) and (D) focus on the consequeilces on the increased boat activity. BEP refers to coillplaillts made by Ms. Cowperthwaite and some of the experts presented by the intervenors whereby they indicate that iilcreased boat activity will create problems for the wildlire iin the area. However, the record does not attempt to quantify the amouilt of boat traffic or rclate the anlouilt of boat traffic emanating from the pier to other boat traffic in the area. This concern of iilcreased boat traffic in the area may be a legitimate concern, but preveiltillg a laildowiler from putting a dock into the water does not directly address the problem. BEP 112s no control over the boat traffic in Long Cove, whether from Halmum's doclt or other doclts. Tlie request is not for a commercial dock, but for a dock anticipated to be used during tlie short summer montlis by a woman and her family. All of the \vitnesses wlio testified o~jectiiigto tlie project emphasized the impact of increased boat traffic ill tlie area and how that would affect the habitat in the area. They make a gigantic leap without any supporting evidence as to liow one dock will increase boat traffic to sucli an extent tliat it will daiiiage aquatic life in the area. This same unsupported coiiclusio~iis also present in tlie next paragraph (9. It also focuses on the problem of increased boat traffic.
(J) Alternatives Tliis court finds and co~icludestliat tlie evidence in this record does not support BEP's finding tliat tllcre was a practicable alternative. Once again tlie issue seems to be increased boat traffic. Paragraphs (A), (D), and (J) all focus on the same anticipated problem. In its findings, tlie BEP spends a great deal of time talking about the various alternatives tliat E-Ia~nuiii has with regards to getting access to the Maine coast. They talk about Ms. EIannum using other doclts as well as using a 3-point pulley system just off her shoreline. 1-liis a i a l y ~ i sdelilollstrates the problem with BEP's thinking tlrcoughout its decision. It is not the iioclt that is the problem; it is the use of tlie boats tliat constitutes the proble~ii.If there were frequent boats in tlie vicinity of Long Cove from other areas, BEP would have no way of preventing this boat traffic. If BEP is concerned about the use of boats in the area. tlieii \vhy are tiley stating that tlie 3-point pulley system is a good alternative? The 3-point pulley systeni assullies thzt there will still be tlrcee boats available to Ms. Hal~n~lin froiii her propel-ty.
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STATE OF MAINE SUPERIOR COURT HANCOCK, SS. CIVIL ACTION DOCKET NO.: AP-04-08 r-I - _ 4 . ' ? + I _- i d ,
AlWE HANNUM,
Petitioner
V. DECISION
MAINE BOARD OF ENVIROhTMENTAL PROTECTION,
Defendant
and
MILLICENT GUPTILL-HIGGINS, ET AL.,
Parties-In-Interest
Before this court is the petitioner, Anne Hamum's (Hannum) 80C Appeal which seeks reversal of the Maine Board of Environmental Protection (BEP) denial of her application for a permit under the Natural Resources Protection Act (NRPA). Edward Bearor, Esq. appeared on behalf of the petitioner Hannum, Margaret Bensinger, Assistant Attorney General appeared on behalf of the Maine Board of Environmental Protection, James Nixon, Esq. appeared on behalf of the Friends Of Acadia, and Douglas Chapman, Esq. appeared on behalf of the parties-in-interest, Higgins and Horsman. Procedural Historv On November 1, 1999, Hannurn filed a permit application with NRAP seeking approval to construct a 90-foot long and 5-foot wide private dock on her 62-acre parcel that has 1200 feet of frontage on the Maine coast. A p ~ ~ b lhearing ic was held on June 15, 2000 and July 6, 2000. BEP granted intervenor status to Ruth Higgins Horsman, Millicent Higgins, Thonlas Watt, and the Friends Of Acadia. The record contained objections to the permit in the form of testimony given by Steve Pelletier, wildlife biologist, Dr. Jolm Anderson, an ornithologist, Thomas Schaffer, Dr. James Gilbert, a wildlife biGlogist, Patrick Keating, and Daniel Chalmers. The board also received a letter from Leslie Cowperthwaite. The record also indicates that the Army Corp. of Engineers determined that the project would not adversely impact any essential fish habitat and that the project was eligible for approval. The United States Environlnental Protection Agency, the United States Fish and Wildlife Service, and the National Marine Fisheries Service all reviewed the proposed project and did not object to it. The Maine Department of Inland Fisheries and Wildlife also approved the project. On May 21, 2001, BEP denied the application. This decision was appealed to the Maine Superior Court; the BEP decision was upheld. Hannum then appealed to the Maine Supreme Judicial Court. On October 15, 2003, the Maine Supreme Judicial Court vacated the superior court's decisioil and remanded the case back to BEP for further proceedings because the factual findings relied upon by the BEP were not supported by evidence in the record. Upon the remand, BEP decided not to reopen the record to allow the submission of additional evidence. The Board made new findings on the evidence that existed in the record as of May 11,2001. On June 3,2004, BEP once again denied Haimum's permit stating three reasons for the denial. These reasons are set out in paragraphs A, D, and J of their decision. Hamuin filed this 80C Appeal of this most recent denial by BEP. Discussioil The starting point of any analysis in this case begins with Hannum's common law right to wharf out from her coastal real estate. This colnmon law right is subject to reasonable regulation. The regulation in question is the NRPA. The Maine Board of Environrnellta! Protection is responsible for ad~~~inistering the NRPA. This case came before the BEP for a secoild time following the Maine Supreme Judicial Court's remand. The BEP did not receive any additional evidence when considering this matter on remand. The three findings, which justify their denial of the application, are set out in the following findings colltained on page 12 of the decision:
(A) The proposed activity would umeasoiiably interfere with existing scenic and aesthetic uses in that the project would cause and unreasonable adverse impact to aquatic life and the aquatic habitat supporting seals and terns in the cove and would unreasonably interfere with the existing public viewing of those wildlife species;
(D) The proposed activity would unreasonably harm aquatic habitat and other aquatic life in that the permanent pier would increase boat traffic in the cove, which will disturb the existing tern and seal co1onies;and
(J) The proposed activity does not meet the avoidance, minimal alteration, and no unreasonable iillpact requirements articulated in the Wetland Protection Rules, chapter 3 10, sections 5A, 5B, and 5D, in that the applicant has reasonable and practicable alterilatives to coilstructiilg a permanent pier; and the construction and use of the dock wou.ld liltely disturb an endangered species.
A. Scenic and Aesthetic Uses D. Increased Boat Traffic The court is discussing these two findiilgs together because ultinlately they focus on the same factor, iilcreased boat traffic. In the finding contained in (A) ,the BEP focuses on illtcrference with existing scenic and aesthetic uses by indicating that the project would have an ui~reasonableadverse impact on aquatic life and habitat; therefore there wouldn't be ally aquatic life or habitat to view. The project itself would not directly impact the scenic or aesthetic uses of the area, however; they state that the problem is the harm to aquatic life and habitat caused by the iilcreased boat traffic. The findings in paragraphs (A) and (D) focus on the consequeilces on the increased boat activity. BEP refers to coillplaillts made by Ms. Cowperthwaite and some of the experts presented by the intervenors whereby they indicate that iilcreased boat activity will create problems for the wildlire iin the area. However, the record does not attempt to quantify the amouilt of boat traffic or rclate the anlouilt of boat traffic emanating from the pier to other boat traffic in the area. This concern of iilcreased boat traffic in the area may be a legitimate concern, but preveiltillg a laildowiler from putting a dock into the water does not directly address the problem. BEP 112s no control over the boat traffic in Long Cove, whether from Halmum's doclt or other doclts. Tlie request is not for a commercial dock, but for a dock anticipated to be used during tlie short summer montlis by a woman and her family. All of the \vitnesses wlio testified o~jectiiigto tlie project emphasized the impact of increased boat traffic ill tlie area and how that would affect the habitat in the area. They make a gigantic leap without any supporting evidence as to liow one dock will increase boat traffic to sucli an extent tliat it will daiiiage aquatic life in the area. This same unsupported coiiclusio~iis also present in tlie next paragraph (9. It also focuses on the problem of increased boat traffic.
(J) Alternatives Tliis court finds and co~icludestliat tlie evidence in this record does not support BEP's finding tliat tllcre was a practicable alternative. Once again tlie issue seems to be increased boat traffic. Paragraphs (A), (D), and (J) all focus on the same anticipated problem. In its findings, tlie BEP spends a great deal of time talking about the various alternatives tliat E-Ia~nuiii has with regards to getting access to the Maine coast. They talk about Ms. EIannum using other doclts as well as using a 3-point pulley system just off her shoreline. 1-liis a i a l y ~ i sdelilollstrates the problem with BEP's thinking tlrcoughout its decision. It is not the iioclt that is the problem; it is the use of tlie boats tliat constitutes the proble~ii.If there were frequent boats in tlie vicinity of Long Cove from other areas, BEP would have no way of preventing this boat traffic. If BEP is concerned about the use of boats in the area. tlieii \vhy are tiley stating that tlie 3-point pulley system is a good alternative? The 3-point pulley systeni assullies thzt there will still be tlrcee boats available to Ms. Hal~n~lin froiii her propel-ty. Wliat would prevent her from using the boats as iiiucli as she \\rould use theill if shc had I~erowl1 dock? Boat traffic is boat traffic whether it results from a laidowner iiioorillg her boats on a pulley systeni or mooring her boats to a doclt. The concern for the acli~aticlife, wlietlier endangered or not, is a legitimate coilceril for the iiitervenors, but the record does not support tlie finding tliat Hannum's use of lier dock for 60-90 daj~seach sumnier will cause a detriiiiental inipact upon the aqua~iclife i l l tlie area or the vie\\ling of said aquatic life. The record does not contain any evidence explaining llow the I lculnum wharf will damage the interests in question any illore tllan boat tsafflc from other doclts in the area or even boat traffic from Hannum's property if she decided to use a 3-point pulley system. Conclusion The potential use of tlle doclt by I-I~LI~IL~II and her family and the impact it will have upon Long Cove is speculative. Once again a finding that the doclt in question would result in increrlsed boat traffic and therefore result in damage to aquatic life and habitat requires "reasonable extrapolation" fro111 present facts. BEP's finding in this case suffers from the s a n e short coilli~lgsthat were discussed in Hannum v. Board of Protection, 832 A.2d 765 (Me. 2003). The Hann~uilcourt in its decision Environlne~~tal stated the following: "Altl~ougl~ the Board could reasonably collclude that the I-Iailnum dock itself would generate additional boat trnl'fic, there was no evidence that the granting of this permit would reasollably be a~lticiparedto result in the building of more doclts." At 770.
court fouild that the BEP could reasoilably conclude that the Even the I-Ia~~num dock would result in additional boat traffic; however, it did not sustain BEP's decision based on their fillding that the Board could, "reasonably conclude" that the dock would generate additioilal boat traffic. The record fails to make the coilnectio~lbetween the additional boat trafiic froin the I-Iannum doclt and the harm to aquatic life and habitat. There is no evidellce as to how tile illcreased boat traffic from the Haml~undock would harm aquatic life other than general statemeilts made by the experts presented by the intervenors in this case indicating that ally increased boat traffic would harm the aquatic life and habitat. For reasons stated above, this courr fi~ldsand co~lcludesthat the decision of BEP should hereby be reversed and the BEP be ordered to gr
DATED: d-17-dd
ENTERED FEB 2 2 2005 SUPERIOR COURT HANCOCK CBU'NTY