The opinion
STATE OF MAINE SUPERIOR COURT
and
HANCOCK, ss. CIVIL ACTION
DOCKET N NO. AP-01-3_
\4 od ipa!
ANNE S. HANNUM, )
)
Petitioner )
) OONBLOL. GAPBRE CHT
v. LAW? LE (Re RAR
MAINE BOARD OF ) DECISION .
ENVIRONMENTAL PROTECTION, _ ) NOV 19 ae
)
Respondent )
) We
)
)
)
MILLICENT GUPTIL HIGGINS, et al.,
Intervenors
Pending before the court is Anne S. Hannum’s (the “Petitioner”) petition for
review of the Maine Board of Environmental Protection’s (the “Board”) decision denying
her application for a permit under the Natural Resource Protection Act (“NRPA”).
Edmond J. Bearor, Esq., and Luke M. Rossignol, Esq., for the Petitioner. Lucinda E.
White, Assistant Attorney General, and Margaret Bensinger McCloskey, Assistant
Chapman, Esq., and Eileen McGlinchey, Esq., for the Intervenors, Millicent Guptil
Higgins and Ruth Higgins Horseman. James S. Nixon, Esq., for the Intervenor, Friends
of Acadia. For the following reasons the Maine Board of Environmental Protection’s
decision is affirmed.
Background
The Petitioner is the beneficiary, and one of the two named trustees, of the
Revocable Deed of Trust of Anne Stroud Hannum. The trust owns a sixty-two acre
parcel of land with 1200 feet of frontage on Long Cove. On November 1, 1999, the
Petitioner filed a permit application with the Maine Department of Environmental
Protection (“DEP”) pursuant to the NRPA to construct a ninety-foot long and five-foot
wide private recreational dock.
The Army Corps of Engineers, the United States Environmental Protection
Agency, the United States Fish and Wildlife Service and the National Marine Fisheries
Service reviewed the project and did not object. The Maine Department of Inland
Fisheries and Wildlife also approved the project finding specifically that the project
would not impact essential wildlife habitats occupied by bald eagles or roseate terns
because of the distance between the proposed pier and their nests.
The DEP determined that there was “credible conflicting technical information”
regarding the licensing criteria and recommended the Board hold a public hearing on the
proposal. The DEP also recommended the Board assume jurisdiction over the
application because it had generated more than local concern and was likely to be of
significant public interest.
The Board granted Millicent Higgins, Ruth Higgins Horsman, Dr. Thomas Watt,
and the Friends of Acadia intervenor status. On June 15, 2000, the Board conducted a
site visit and held a public hearing. They reconvened the hearing on July 6, 2000. The
DEP recommended approval but the Board ultimately denied the application. The Board
determined the proposed activity would unreasonably interfere with existing scenic and
aesthetic uses, finding the project would cause an unreasonably adverse impact to
wildlife in the cove and unreasonably interfere with the public viewing of wildlife.
Further, the proposed activity would unreasonably harm significant wildlife habitat
because the pier would increase boat traffic, disturbing existing seal and tern colonies,
and finally the proposed activity did not meet the avoidance and minimal alteration
standards because the Petitioner had reasonable and practicable alternatives to
constructing a permanent pier.
Arguments
The Petitioner contends the legislature engaged in an unconstitutional delegation
of authority because they failed to provide adequate guidance to the DEP under the
NRPA. Second, the Petitioner argues the standards contained in the NRPA and the
Wetlands Protection Rules (the “Rules”), which the Board developed pursuant to the
NRPA, are unconstitutionally vague because they cause reasonable people to guess at
their meaning. Finally, the Petitioner argues the Board committed errors of law when
they applied their regulations. The Board interpreted the NRPA to include certain factors
the Legislature did not explicitly list and when applying the Rules the Board considered
alternatives requiring the Petitioner to abandon the project.
The Board contends Legislature provided sufficient guidance in the NRPA.
Further, the Board argues the NRPA standards and the Rules are not unconstitutionally
vague. Lastly, the Board contends they correctly interpreted and applied the relevant
statutes and rules.
Discussion
Delegation of Authority
The Petitioner contends the Legislature engaged in an unconstitutional delegation
of authority because they did not provide well-defined, specific and clear guidelines to
the DEP. The Petitioner points out that vague regulations permit an agency to engage in
policy-making, lead to selective enforcement, and fail to adequately guide public
conduct.
There is a strong presumption of Constitutionality and the - Petitioners bear the
burden of proving the legislation is unconstitutional. Town of Baldwin v. Carter, 2002
ME 52, 99, 794 A.2d 62. In assessing the constitutionality of a legislative delegation of
authority to an administrative agency, the court reviews the entire relevant legislative
scheme. Ogunquit Sewer Dist. v. Town of Ogunquit, 1997 ME 33, 16, 691 A.2d 654.
The courts look to see if the legislation delegating authority contains sufficient standards
to guide agency decision-making. Id. The Court in Lewis v. State Department of Human
Services, 433 A.2d 743, 748 (Me. 1981) found the legislature accomplished this goal
when they clearly revealed the purpose of the regulations, defined what the agency can
regulate and suggested degrees of regulation. Northeast Occupational Exchange Inc. v.
State, 540 A.2d 1115, 1116 (Me. 1988).
38 M.R.S.A. §341-A provides for a Department of Environmental Protection
consisting of the Board of Environmental Protection, and a Commissioner of
Environmental Protection. The department shall:
prevent, abate and control the pollution of the air, water and land and preserve,
improve and prevent diminution of the natural environment of the State. The
Department shall protect and enhance the public’s right to use and enjoy the
State’s natural resources and may educate the public on natural resource use. 38
MLR.S.A. §341-A(1-2).
The Legislature specifically charged the Board with the authority to engage in
rulemaking, pursuant to the Maine Administrative Procedures Act, to interpret,
implement and enforce any provision of law the Department administers. 38 M.R.S.A.
§341-D(1). The Legislature further charged the Board with ruling on applications for
permits pursuant to 38 M.R.S.A. §341-D(2).
In the NRPA, the Legislature found the State’s various environmental resources
were a substantial asset and their destruction would cause damage to the state’s economy
and the health, safety and general welfare of the state’s citizens. 38 M.R.S.A. 480-A.
The Legislature further noted:
“there is a need to facilitate research, develop management programs and
establish sound environmental standards that will prevent the degradation of and
encourage the enhancement of these resources. It is the intention of the
Legislature that existing programs related to Maine’s rivers and streams, great
ponds, fragile mountain areas, freshwater wetlands, significant wildlife habitat,
coastal wetlands and sand dunes systems continue and that the Department of
Environmental Protection provide coordination and vigorous leadership to
develop programs to achieve the purposes of the this article. The well-being of
the citizens of this State requires the development and maintenance of an
efficient system of administering this article to minimize delays and difficulties
in evaluating alterations of these resource areas. .
The Legislature further finds and declares that the cumulative effect of frequent
minor alterations and occasional major alterations of these resources poses a
substantial threat to the environment and economy of the State and its quality of
life.” 38 M.R.S.A. §8480-A. .
For these reasons the Legislature prohibited various activities in, on or over any
protected natural resource, including coastal wetlands, without a permit. 38 M.R.S.A.
$480-C. Pursuant to this statute, an individual must apply for a permit in ordér to
construct any permanent structure, such as a pier. Id. The legislature established various
standards that any person seeking a permit must meet before the DEP approves the
application. 38 M.R.S.A. 480-D. Acting pursuant to 38 M.R.S.A. §341-D, the Board
established rules to assist them in implementing and interpreting the standards the
legislature included in 38 M.R.S.A. 480-D. 06-096 CMR 310 §1.
The Legislature authorized the Board to engage in rule-making to carry out their
duties under the statutes they implement. The Board established the Rules to assist them
in implementing the NRPA, 38 MLR.S.A. §§480-A through 480-Z. The Legislature
Clearly defined the NRPA’s purpose, limited what conduct and in what areas it would
apply to, and established a variety of standards to guide the Board in the implementation
of the NRPA. Further, the Board must promulgate regulations or rules subject to the
Maine Administrative Procedures Act, 5 M.R.S.A. 375 (I-A) and its rule making
procedures, which provide additional procedural safeguards.
The cases the Petitioner relies upon are distinguishable from the present matter.
In Kosalka v. Town of Georgetown, 2000 ME 106, 752 A.2d 183, the court struck down
an town zoning ordinance requiring campgrounds to “conserve natural beauty” in order to
be allowed as a conditional use and the court in Wakelin v. Town of Yarmouth, 523 A.2d
575 (Me. 1987) struck down a zoning ordinance that gave the local ZBA discretion to
deny certain applications if the use was not “compatible with the existing uses in the
neighborhood”. Those cases did not involve administrative agencies acting pursuant to a
statute. The Court has recognized the substantial difference in delegations from
municipalities to local boards permitting discretion and delegations from the Legislature
to state agencies bound by statute. Lewis, 433 A.2d at 748. Itis not always in the best
interest of the legislature to create precise standards themselves, especially when dealing
with a highly technical and scientific area such as the environment, and the additional
procedural safeguards present in legislative delegations of authority can adequately make
up for the lack of precise standards. Id- With the petitioner’s burden and the
presumption of constitutionality in mind, the legislature
unconstitutional delegation of authority.
Void for Vagueness
Petitioner also contends the standards themselves are u
did not engage in an
nconstitutionally vague.
The Board denied the Petitioner’s permit based on three separate standards. First, the
Board found the pier would “unreasonably interfere with ex
isting scenic, aesthetic,
recreational or navigational uses” in violation of 38 M.R.S.A. 480-D(1). Second, due to’
increased boat traffic that would disturb the seal and tern colonies, the pier would
unreasonably harm “significant aquatic habitat ...or other aquatic life” in violation of 38
M.R.S.A. 480-D(3). The Board further found the Petitioner was not in compliance with
section 3 10(5)(A) of the Rules, providing “No activity that would cause a loss in wetland
area, functions and values shall be permitted if there is a practicable alternative to the
project that would be less damaging to the environment. Each application must provide
an analysis of alternatives (see Section 9(A)) in order to demonstrate that a practicable
alternative does not exist.”
Concepts of Due Process flowing from both the Fourte
United States Constitution and Article I, 6-A of the Maine C
enth Amendment of the
onstitution require laws
provide notice of what conduct the state will sanction. Town of Baldwin, 2002 ME 52,
ql0. The Court construes statutes in order to preserve their constitutionality and the
Petitioner bears the burden of proving there is no logical, constitutional construction. Id.
at (9. Although the courts apply the “void for vagueness” doctrine most often in criminal
cases, they have applied the doctrine to the civil regulation of conduct. Id. at (10. Courts
apply the doctrine in two situations: first, when statutes purpc
rt to regulate a person's ©
conduct and provide a penalty for non-compliance and; second, when the statutory
prohibitions are clear, but guidelines for enforcement are not sufficiently clear so as to
prevent arbitrary enforcement. In re Bailey M., 2002 ME 12, 19, 788 A.2d 590, 598.
An ordinance, or in this case a regulation, is void when its language is so vague
that people of common intelligence must guess at its meaning. Town of Baldwin, 2002
ME 52, 410. Petitioner relies on the court’s decisions in Kosalka and Wakelin and
Suggests the regulation in the present matter is similar to the regulations the court struck
down in those cases. In Wakelin the court struck down a zoning ordinance because it did
not contain specific standards to guide the zoning board in applying the terms “intensity
of use” and “density of development”. The court found the lack of specific standards
allowed the board to engage in policy-making instead of confining itself to applying
permit requirements. Wakelin, 523 A.2d at 577. Similarly in Kosalka the court held a
zoning ordinance void for vagueness because it did not provide the zoning board with any
guidance on how to properly interpret a requirement calling for developers to “conserve
natural beauty.” The Court held the ordinance contained an unmeasurable quality
“totally lacking in cognizable, quantitative standards.” Kosalka 2000 ME 106, 717.
However, it is important to note, both of these cases’ primarily dealt with an
unconstitutional delegation of legislative authority from a municipality to a town board.
As discussed above, this is not the situation here. While the standards contained in the
ordinances may sound similar, their context is what led the court to determine they were
unconstitutionally vague. The court specifically found “neither developers nor the ZBA
are given any guidance on how to interpret the ‘conserve natural beauty’ requirement.”
Id at (15. The lack of standards allowed the Board to “express a legislative-type opinion
about what is appropriate for the community.” Wakelin 523 A.2d at 577. In the present
case the Board is not free to engage in policy making, nor is there a lack of adequate -
standards to guide their application of the rules.
The Legislature determined what areas needed protection and what conduct
required a permit when they drafted the NPRA. The Legislature directed the DEP,
including the Board, to implement the Legislature’s stated policy of protecting valuable
environmental resources. They limited and confined the Board’s discretion in a number
of ways. First, the standards the legislature charged the Board with implementing
contained quantifiers. The activity cannot unreasonably interfere with existing aesthetic,
recreational or navigational uses and, the activity cannot unreasonably harm any
significant wildlife habitat. 38 M.R.S.A. §480-D(1,3)(emphasis added). Second, the
legislature limited the Board’s authority in 38 M.R.S.A. §341-B when they clearly
defined the agency’s purpose. The legislature’s purpose in creating the Board was to
“provide informed, independent and timely decisions on the interpretation, administration
and enforcement of the laws relating to environmental protection. ..” 38 M.LR.S.A. §341-
B. The legislature further confined the Board’s discretion by imiting how the Board can
act. The Board may only “fulfill its purpose through rulemaking, decisions on selected
permit applications, review of the commissioner’s licensing and enforcement actions and
recommending changes in the law to the Legislature.” Id. Finally, the Rules, created by
the DEP via the rulemaking process, contain sufficient guidelines and quantifiers to limit
the Board’s discretion. The Board limited the Rule’s purpose and application to 38
M.R.S.A. §480-B. 06-096 CMR §310(1-2). The standards in question in the present
matter contains quantifiers, “No activity that would cause a loss in wetland area,
functions and values sha
project...” 06-096 CMR
Wakelin presented.
“(T]here are limit
specific and manageably b
satisfy those intent on find
person exercising ordinary
Maine Real Estate Comn
standards such as “bad fait
context United States Ci
Carriers, 413 U.S. 548, 5
Constitution nor the Main
certainty, and absolute pre
ME 52, { 9. The words, “1
to clarify the regulations. |]
in a statute via common la
ll be permitted if there is a practicable alternative to the
§310(5)(A). This is a different situation than Kosalka and
ations in the English language with respect to being both
rief, and it seems to us that although the prohibitions may not
ing fault at any cost, they are set out in terms that the ordinary
common sense can sufficiently understand and comply with.”
nission v. Kelby, 360 A.2d 528, 531 (Me. 1976). (finding
h” and “dishonest” not unduly vague) (quoting in an analogous
vil Service Commission v. National Association of Letter
78-79 (1973), 93 S.Ct. at 2897.) Neither the United States
e Constitution requires objective quantification, mathematical
cision in legislative language. Town of Baldwin Carter, 2002
230 66
3
97 66
3
unreasonably”, “practicable”, “significant” and “existing” help
(d at 14. When the court can determine the meaning of words
w or judicial determinations an ordinance is not vague. Id at
{13 (citing State v. Davenport, 326 A.2d 1, 5-6 (Me. 1974). People of common
intelligence need not guess at how to comply with the regulations in question. With the
Petitioner’s burden and the presumption of Constitutionality in mind, the statues and
regulations are not void for vagueness.
Errors of Law
The Petitioner contends the Board committed an error of law when they applied
their regulations to her permit application. Petitioner claims the Board based its
10
conclusions regarding the existing scenic and aesthetic uses, harm to aquatic life, and
alternatives on speculative factors and uses not connected to the dock and on “cumulative
impacts” not specified in the 38 M.R.S.A. §480-D. Further the Board incorrectly applied
the practicable alternative standard by considering alternatives that involved completely
abandoning the project.
The Board contends that in applying their regulations they must engage in a
balancing of the interests including the effects of the project itself. The Rules require the
Board to consider “wetlands beyond the physical boundaries of the project” when
determining the impacts under 38 MLR.S.A. §480-D. 06-096 CMR §310 (5)(D). Further,
since the practicable alternative rule requires the Petitioner to “demonstrate need” the
Board is within its authority to examine alternatives, such as the three point pulley
system, that accomplish the purpose of the proposed project short of actual construction.
Courts review an agency’s decision for abuse of discretion, errors of law, or
findings not supported by the evidence. Connolly v. Board of Social Work Licensure,
2002 ME 37, J6, 791 A.2d 125. Petitioners have the burden to show the Board's decision
was an error of law. Freyburg Health Care Center v. Department of Human Services, .
1999 ME 122, 7, 734 A.2d 1141. The court will show great deference to an agency’s
interpretation of a statute or regulation it administers unless the statute compels a
contrary result. Maritime Energy v. Fund Insurance Review Board, 2001 ME 45, 17, 767
A.2d 812. The Petitioner fails to demonstrate that the statute requires an interpretation
contrary to the one the Board applied to the present matter.
11
THE DOCKET ENTRY IS:
The Maine Board of Environmental Protection’s decision denying Anne S.
Hannum’s application for a permit under the Natural Resource Protection Act is
affirmed.
The clerk is ordered to incorporate this decision into the do
DATED: //-Z-¢9
FILED &
ENTERED
NOV 12 2002
SUPERIOR COURT
HANCOCK COUNTY
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