Sadowski v. Department of Environmental Protection

• Court: Superior Court of Maine
• Decided: November 30, 2005
• Docket: KENap-05-47
• Status: Unpublished

Opinion

STATE OF MAINE SUPENOR COURT CIVIL ACTION KENNEBEC, ss. DOCKET NO. AP-05-47 !: rkj rgrd- 1 !,3bl $. ,

JOSEPH SADOWSKI,

Petitioner

DECISION ON MOTION

DANA MURCH, MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent

This matter comes before the court on the respondent's motion to dismiss this

purported appeal pursuant to M.R. Civ. P. 80C. Because the petition was not timely

filed, the motion will be granted.

Facts

By letter dated July 1,2005, Dana Murch, Dams & Hydropower Supervisor at the

Department of Environmental Protection ("DEP"), notified the petitioner that an earlier

department order awarding ownershp of an abandoned dam to the petitioner is now

void and the DEP intended to convey that dam to the town of Freedom. The letter

concludes, "Ths letter constitutes final agency action. If you wish to appeal tlus action,

you may do so by filing an appeal with the Superior Court within 30 days after receipt

of tlus letter . . ." According to the return receipt, this letter was delivered to the

petitioner on July 7, 2005. On August 8, 2005, the petitioner mailed a response to Mr.

Murch and a copy with a document titled "Affidavit of Service" to the Superior Court.

The affidavit and letter copy were not received until August 10, 2005, 34 days after the receipt of the agency's final action being appealed. Discussion

In accordance with the Maine Administrative Procedure Act, a petition for

judicial review of final agency action must be filed w i h n 30 days after receipt of the

notice of the agency's decision. 5 M.R.S.A. 5 11002(3). Neither the administrative

agencies nor the courts have the inherent power to extend or ignore statutory appeal

periods. McKenzie v. Maine Employment Security Comm'n, 453 A.2d 505 (Me. 1982). The

time limits found in the APA are jurisdictional and cannot be waived. Brown v. State

Dep't of Manpower A#airs, 426 A.2d 880 (Me. 1981); Persson v. D q ' t of Human Services, 2001 ME 124, 775 A.2d 363. In the present case, the petitioner simply failed to meet the

time period by four days. Even if one were to allow an additional three days for service

by mail pursuant to M.R. Civ. P. 6(c), the petition still failed to arrive in time. For &us

reason, the motion must be granted.

The entry will be:

Motion to dismiss is GRANTED and ORDERED that the petition and any independent claim is DISMISSED.

Dated: November ?o ,2005 S. Kirk Studstrup Justice, Superior Court Date Filed 8 / l O & E a a a p k _ _ - _ _ _ _ Docket No. County

Action Petition for Review

Jose h A.F. Sadowski Plaintiff's Attorney Defendant's Attorney Prot & Dams & Hydropower

Joseph A.F. Sadowski, Pro Se Mark A. Randlett, Esq. 30 Murray Road 6 State House Station Hicksville, NY 11801 Augusta Maine 04333-0006

Date of En try

Complaint, filed. s/Sadowski, Pro Se Affidavit of Service, filed. S/Anthony.Russo Service made upon Dana Paul Murch, Dept. of Environmental Protection on 8/8/05 I Respondent's Motion to Dismiss, filed. sl~andlett,AAG Memorandum in Support of Motion to Dismiss, filed. s/~andlett,AAG Affidavit of Dana Murch, filed. s / ~ a nMurch Proposed Order, filed. PETIONER RESPONSE TO MOTION TO DISMISS received and filed 09-13-05 by Joseph A.F. Sadowski, Esq. with Affidavit Of Service by Joseph Sadowski, Esq. Date Served 09-12-05. Notice of setting of motion on 10/26/05 at 1:00 p.m. sent to Pltf. and atty of record. Hearing had, Hon. Kirk Studstrup Presiding. (no courtroom clerk) Arguments made to the court. Court takes matter under advisement.

DECISION ON MOTION, Marden, J. Motion to dismiss is GRANTED and ORDERED that the petition and ORDERED that the petition and any independent claim is DISMISSED. Copies mailed to attys. of record Copies mailed to Deborah Firestone, Donald Goss and Garbrecht Law Library.