Watts v. Dep't of Marine Res.

• Court: Superior Court of Maine
• Decided: June 2, 2014
• Docket: KENap-13-41
• Status: Unpublished

Opinion

£ NI ERED OCT 2 9 2014

STATE OF MAINE SUPERIOR COURT KENNEBEC, SS. CIVIL ACTION DOCKET NO. AP-13-41

l@/1-{lL;f y DOUGLAS WATTS, ~tA)-DtJM- o&-O;A-1Lf Petitioner v. ORDER

DEPARTMENT OF MARINE RESOURCES et al.,

Respondents

Before the court is a petition pursuant to M.R. Civ. P. 80B and 80C seeking

review of a decision of the Commissioners of Department of Marine Resources and the

Department of Inland Fisheries and Wildlife. Petitioner alleges that in February of 2012

he and two other parties asked the defendant "Fisheries Commissioners" to initiate an

adjudicatory fishway proceeding at the Gardiner Paperboard Dam on Cobbosseecontee

Stream in Gardiner, Maine, pursuant to the Maine Fishway Law, 12 M.R.S. § 12760. The

Petitioner asserts that "the Commissioner's decision is dispositive to all relevant legal

and factual issues and the Petitioner has no other recourse, appeal or review provided

within the agency."

Citing 12 M.R.S. § 12760(4), Initiation of Fishway Proceedings, Petitioner argues

the Commissioner's obligation to initiate proceedings to consider construction, repair,

or alteration of fishways in existing darns whenever the Commissioners determine that

fish passage will improve access to sufficient and suitable habitat or is necessary to

protect rare, threatened or endangered fish species. The Petitioner argues that the plain

language of subsection 4(A) mandates the Commissioner to consider "suitable habitat

anywhere in the watershed." The petitioner goes on to assert that the Federal relicensing process at the upper stream dam has begun and 1the Commissioner's

interpretation of the fishway law defeats its legislative purpose

On July 6, 2012, the Commissioner of the Department of Inland Fisheries and

Wildlife, referencing 12 M.R.S. § 12760, Gardiner Paperboard Dam, advised the

Petitioner that fish passage at the dam "will not result in a substantial commercial or

recreational fishery for anadromous fish species based on passage ordered at this site."

The Commissioner noted that fish passage or passage agreements do not exist at any of

the dams above the dam in question, including a dam licensed by the Federal Energy

Regulatory Commission. The Commissioner further opines that "the amount of habitat

between the first and second impoundments is not sufficient to support significant

populations of commercial or recreational fish species." Referring to the draft Fishery

Management Plan relied upon by the Petitioner, the Commissioner concludes that

"there is no evidence presented in the Draft Fishery Management Plan that construction

of the fishway to Gardiner Paperboard Dam is necessary to protect or enhance rare,

threatened or endangered fish species."

Petitioner asks the court to vacate the Commissioner's interpretation of section

4(A) of 12 M.R.S. § 12760 as arbitrary, capricious, and opposite the plain language of

statute. Petitioner further asks the court to order the Commissioner of the Department

of Inland Fisheries and Wildlife and the Department of Marine Resources to initiate an

adjudicatory fishway proceeding on the Gardiner Paperboard Dam pursuant to 12

M.R.S.A. § 12760(5) within thirty days.

Citing 12 M.R.S. § 6721, the Respondents argue that the Commissioners have the

discretionary authority to require a fishway to be erected in Maine waters. The 1 . The fishway law does not require a "standing" order for fishways of upstream dams.

2 Respondents argue that they declined to orc::l.er the fishway based on their determination

that the circumstances did not warrant the initiation of a fishway proceeding based

upon the facts known to them at the time. Noting the language cited by the Petitioner

that under the fishway law the Commissioners are required to initiate proceedings, the

Respondents emphasize that the provision goes on to state that this mandate is

"whenever the Commissioner determines" that certain conditions exist. They argue

that in the case at hand, the Commissioners did not find, as a matter of fact, that either

condition existed. Commissioners noted that fish passage at the dam in question would

not result in a substantial commercial or recreation fishery because there is no fish

passage at any of the dams upstream of the Gardiner Paperboard Dam, and most

importantly, the American Tissue Hydropower Project, which is the next dam in line, is

not required to have fish passage. Further, the Commissioners found as a matter of fact

that the limited amount of available habitat between the dams is not sufficient to

support significant populations of commercial or recreational fish. Further, they note

that the Department of Marine Resources Draft Fishery Management Plan for the

Cobbosseecontee Stream (December 2002), did not identify this small section of the

stream as a significant spawning or nursery area.

The Respondents' cite facts supporting their decision to conclude that the species

of native anadromous fish utilizing the small habitat area on that stretch of the river

would not provide significant spawning or rearing habitat for the species known to

utilize that body of water. Further, the Respondents note that the upstream dam is a

hydroelectric dam licensed by the Federal Energy Regulatory Commission which has a

license that does not include any requirements for the construction of fish passage.

Finally, Respondents argue that they correctly interpreted and applied 12 M.R.S. §

6121(3) and 12760(4).

3 The scope of review required of this court is whether the agency abused its

discretion, committed an error of law, or made findings not supported by substantial

evidence on the record. The burden of proof rests on the Petitioner. If the agency

exercised reasonable discretion, the Petitioner has the burden of proving abuse of that

discretion in reaching its decision. The agency is entitled to great deference in its

interpretation of a statute administered by it and must be upheld unless the statute

plainly compels a contrary result. Finally, the court may overturn a finding of fact by

an administrative agency only upon a showing that the findings were unsupported by

substantial evidence on the whole record. The court may not substitute its own

judgment for that of the agency merely because the evidence would give rise to more

than one result. The court must also give deference to the expertise of the agencies in

question.

Citing legislative history and permissive language of the existing statute, the

Law Court in Dumont v. Spears, 245 A.2d 151 (Me. 1968), determined that the delegation

by the legislature of discretionary power to the Commissioner of Inland Fisheries and

Game to determine expediency of a fishway in a given dam was not an invalid

delegation of legislative power and that the statute was permissive, not mandatory, as

to the Commissioner. There is nothing in the present statutory framework to require

the Commissioners to order a fishway if the fact-finding operation by the Commissioner

does not form a basis for the requirement. The court finds no evidence that the agency

has not made proper findings of fact or misinterpreted its statutory authority.

Accordingly, the entry will be:

Relief requested in the petition for judicial review is DENIED.

DATED: JUNE 2, 2014

Donald H. Marden 'J