Opinion
Civil Action AP-2012-03
04-10-2014
FRIENDS OF BLUE HILL BAY Petitioner v. PATRICK C. KELIHER, STATE OF MAINE DEPARTMENT OF MARINE RESOURCES Respondent
DECISION
Kevin M. Cuddy, Justice
This matter is before the Court on a Petition for Review of Final Agency Action with regard to the granting of an experimental aquaculture lease to Terrell Gray, pursuant to 12 M.R.S. § 6072-A.
A Public Hearing was held on October 18, 2011, in Surry, Maine, before Aquaculture Hearing Officer Diantha Robinson and transcribed (167 pages and 15 Exhibits). That Transcript and Exhibits were included in the Record on Appeal reviewed by this Court. The Commissioner issued a decision on April 5, 2012, granting the application for an experimental lease. This timely appeal followed. Briefs, Responsive Briefs and Reply Briefs were thereafter submitted to the Court.
This matter was brought to the Court's attention for decision in March of 2014.
Legal Standard on Appeal
In an appeal to the Superior Court from final agency action pursuant to M.R. Civ. P. 80C, the decision of the Superior Court is governed by 5 M.R.S. 11007 §2 and 4. The Superior Court acts as an intermediate appellate court and the Law Court reviews the administrative agency's decision directly for "legal errors, abuse of discretion, or unsupported factual findings." Nelson v. Bayroot, LLC, 2008 ME 91, ¶17, 953 A.2d 378. "In reviewing an agency's interpretation of its own rules, regulations, or procedures, we give considerable deference to the agency and will not set aside the agency's interpretation unless the regulation or rule compels a contrary interpretation." Id. The party attempting to vacate the agency's decision bears the burden of persuasion. Town of Jay v. Androscoggin Energy, LLC, 2003 ME 64, ¶10, 822 A.2d 1114. If the agency's decision was committed to the reasonable discretion of the agency, the party appealing has the burden of demonstrating that the agency abused its discretion in reaching the decision. See Sager v. Town of Bowdoinham, 2004 ME 40, ¶11, 845 A.2d 567. "An abuse of discretion may be found where an appellant demonstrates that the decision maker exceeded the bounds of the reasonable choices available to it, considering the facts and circumstances of the particular case and the governing law." Id; Forrest Ecology Network v. LURC, 2012 ME 36, ¶28, 39 A.3d 74.
Discussion
By Statute, 12 M.R.S. §6072-A(13), the decision of the Commissioner requires that he be satisfied that the project:
A. Will not unreasonably interfere with ingress and egress of riparian owners;
B. Will not unreasonably interfere with navigation;
C. Will not unreasonably interfere with fishing or other uses taking into consideration the number and density of leases;
D. Will not unreasonably interfere with the ability of the lease site to support existing ecologically significant flora and fauna;
E. Applicant has demonstrated an available source of organisms to be cultured at the lease site;
F. Lease will not unreasonably interfere with public use and enjoyment of municipally, state or federally owned beaches and parks or docking facilities.
In his decision, the Commissioner referenced the Site Report prepared by Department staff together with the information presented at the public hearing. Appellant argues there was no competent evidence to support the findings and conclusions of the Commissioner. A review of the Record on Appeal, including the hearing transcript and attachments, confirms that there was conflicting evidence presented on some of the statutory decision requirements, such as interference with fishing and navigation. The Statute requires that there not be "unreasonable" interference. This is a case where the decision was committed to the reasonable discretion of the agency. The Court finds that there was competent evidence in the Record on Appeal to support each of the six findings and conclusions made by the Commissioner, notwithstanding the presence of conflicting evidence on some of those points presented at the public hearing. Appellant has not demonstrated that the Commissioner has abused that discretion. It is not for this Court to substitute its judgment for the Commissioner simply because there is conflicting evidence. Id.
Failure to Adopt Rules
Appellant argues that the Commissioner's decision approving the experimental lease application is fatally flawed due to the failure of the Department of Marine Resources to adopt Rules as required by statute.
They reference 12 M.R.S. § 6072-A(10) which requires the Commissioner to adopt rules establishing a method for conducting an assessment of the proposed lease on commercially and ecologically significant flora and fauna. The rules (1) must establish levels of assessment appropriate to the scale or potential environmental risk posed by a proposed limited purpose lease activity; and (2) provide a method to establish a baseline to monitor the environmental effects of limited purpose lease activity.
Appellant's reference in their brief to 12 M.R.S. § 6072-A(10) and 12 M.R.S. § 6072 provides no guidance on whether the Commissioner had adopted Rules as required by the former which deals with limited purpose leases for commercial and scientific research and the latter which deals with research and aquaculture leases. The former contains the mandatory 'shall' and the latter contains the discretionary 'may'. At best this reference creates a fog rather than clarity.
As the parties seem to agree, the pertinent regulations adopted by the Commissioner are found in the Code of Maine Regulations at 13-188 CMR ch.2 §64. Sec, 64 is identified as "Experimental Aquaculture Lease".
Section 3 of those rules, under the heading of Department Site Review, provides an outline of information the Department needs to acquire as part of the Department's review process. Appellant argues that its interpretation of Sec. 6072-A(10) requires the Department to have a rule allowing quantifying levels of assessment of risks posed by potential environmental risk and a baseline to monitor environment effects of lease activity.
The Department has elected to interpret Sec. 6072-A{10) as directing the acquisition of information with regard to the lease activity that would permit a determination of the potential environmental risk and thereby determine a baseline to permit monitoring of the environmental effects of a lease activity. In light of the statutory scheme involving aquaculture leases the Court finds that the Rules promulgated by the Department pursuant to Sec. 6072-A(10) are reasonable and consistent with the legislative direction to promulgate rules found in Sec. 6072-A(10). Conservation Law Foundation, Inc. v. DEP, 2003 ME 62, ¶23, 823 A.2d 551. This Court defers to the interpretation of a statutory scheme by the agency charged with its implementation. Id.
The hearing transcript refers to the ecological area to be leased for study as a depauperate area. (Tr. 68, 74.) This term is defined in Oxford Dictionaries as an ecosystem that is lacking in numbers and variety of species, often because it lacks enough stored chemical elements required for life. By using this term to describe the collected information gathered pursuant to Rule Ch. 2, 64(3) and Sec. 6072(10), the Department was able to define the baseline given the limited-purpose lease activity. This allowed both an evaluation of environmental risks and monitoring future effects of the proposed lease activity as required by Sec. 6072-A(10).
Available at http://www.oxforddictionaries.com/us/definition/american_en glish/depauperate.
The Court is satisfied not alone that the rule found in CMR Ch. 2, Sec. 64 is authorized by and consistent with the statute, but also that it reflects a reasonable interpretation and application of the authorizing statute.
The granting of the experimental lease to Terrell Gray by the Commissioner of Marine Resources is AFFIRMED.