The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC , ss. DOCKET NO. AP 03-19
LD SKE, CTL. KE, Ag? \ 0 \/e tes u
HAROLD A. KROEGER,
Petitioner
v. DECISION ON APPEAL
STATE OF MAINE, mir -ornEgHT
DEPARTMENT OF DONA oy
ENVIRONMENTAL PROTECTION, Lavo
Respondent JAN 29 2006
This matter comes before the court on the petitioner’s request for review of final
agency action by the Department of Environmental Protection (DEP) pursuant to MLR.
Civ. P. 80C. Petitioner Kroeger applied for a permit to construct a pier in front of his
property on Somes Sound in the town of Mount Desert. Kroeger appeals both the DEP
denial of that application and the DEP’s return to him of an application submitted
pursuant to another administrative route. Both appeals will be denied.
Procedural Background
On March 25, 2002, the petitioner submitted an application to the DEP pursuant
to 38 M.R.S.A. §§ 480-A-Z (Natural Resources Protection Act, hereinafter NRPA). The
proposed wooden pier would have been 160 feet long and six feet wide with a 48 foot
long and four foot wide aluminum ramp leading to a 48 foot long and 14 foot wide
wooden float. This proposed pier would have rested on three granite cribs as it
extended into the tidal waters. This application was opposed by the neighbors and the
town of Mount Desert.
Sometime after May 7, 2002, the petitioner submitted a revised application that
would have reduced the pier to 145 feet in length. In a letter dated June 13, 2002, the
DEP passed on to the petitioner the concerns of nine neighbors who had written in
opposition, along with a request that the petitioner consider alternatives to construction
of a pier or reduction of the size of the project. On September 12, 2002, the petitioner
submitted a second revised plan reducing the pier to 110 feet in length and eliminating
one granite support.
By letter dated January 30, 2003, the petitioner’s present attorney entered his
appearance before the DEP and, expecting an imminent draft decision from the
Department, requested until February 28, 2003, to comment upon the draft order. That
draft order was conveyed by cover letter dated February 4, 2003.’
While the period for comment on the draft order was still in effect, on February
20, 2003, the DEP received from Mr. Kroeger a “Permit By Rule” application to
construct a pier of the same dimensions but supported by piling rather than granite crib
work. On February 8, 2003, petitioner Kroeger submitted his comments on the draft
decision. On March 3, 2003, the DEP returned Kroeger’s application and application fee
for the Permit By Rule, noting that the Department was still reviewing his first
application and that there was credible evidence that the project may not meet the
standards of the NRPA. On March 5, 2003, the DEP issued its decision denying the
application for the private recreational pier on Somes Sound. Kroeger filed a timely
appeal from this decision and from the denial of processing of his application for Permit
By Rule.’
1 The memorandum is mistakenly dated February 4, 2002.
2 By letter dated March 6, 2003, the petitioner attempted to withdraw his application for the granite crib-
supported pier. The reason for the attempted withdrawal is unclear other than to attempt to avoid the
impending denial. However, the withdrawal was too late to be effective since the application was denied
on the day before. The court does not find that the attempted withdrawal affects the petitioner’s right to
appeal.
Discussion
Motions to Strike
Before considering the merits, it is necessary to consider the motions by
intervenor/respondent Butt to strike a photograph and newspaper article that the
petitioner attempted to present as part of his brief. Respondent Butt argues that the
photo and article are an attempt to introduce new evidence into the record at the
appellate stage. Petitioner Kroeger responds that the aerial photo is merely a visual aid
consistent with M.R. Evid. 616(a). Petitioner may be correct that the photo would have
been admissible, but only if it had been presented at the Department hearing stage
rather than after appeal. The same holds true for the newspaper article. The Rules of
Evidence have nothing to do with attempts to introduce evidence beyond that
contained in the record to which the judicial review generally is limited. M.R. Civ. P.
80C(d). The motions to strike are granted.
Permit By Rule Application
Also as a preliminary matter, the court will consider the petitioner's attempted
appeal of his Permit By Rule application. Petitioner argues that the DEP’s return of his
application without further consideration is final agency action from which appeal
pursuant to Rule 80C should be allowed. On the other hand, the Department argues
that no final decision was made and an appeal would be premature.
The Permit By Rule program is created under the NRPA (06-096 CMR 305.1) to
allow streamlined processing of applications for permits for certain types of activities
meeting certain standards listed in the regulations. The end product — the permit - is
the same whether it is issued pursuant to the Permit By Rule or as the result of a full,
individual NRPA application. In setting up the streamlined Permit By Rule procedure,
the regulations reserve to the DEP the discretionary authority to require the applicant to
use the full individual permit application process instead of the rule process if there is
“credible evidence” that the activity might violate standards of the NRPA, lead to
significant environmental impact or adversely impact a resource of special concern. 06-
096 CMR 305.1(d). In exercising this discretion, by returning petitioner’s Permit By
Rule application, the DEP was not denying a permit for construction of the revised pier,
but merely returning the application in the event that the petitioner should want to
pursue the full application process. Given the fact that the Department was still
considering and had indicated concerns about violation of the standards of the NRPA
with regard to the application for the granite crib-supported pier in the same location,
this decision to require the full process was not an abuse of discretion. As a result, there
was no final agency action, and the attempt to appeal the Department's return of the
application will be dismissed.
Merits
Some of the petitioner’s arguments on the merits attack the constitutionality of
the legislative delegation authority to the DEP to administer the NRPA and the
resulting regulations on constitutional bases. Respondent Butt argues that the
constitutional issues were never raised before the DEP and therefore should be
dismissed for failure to preserve them before the agency. New England Whitewater
Center, Inc. v. Department of Inland Fisheries & Wildlife, 550 A.2d 56 (Me. 1988). Kroeger
responds that the New England Whitewater holding should be limited to constitutional
issues such as due process and should not include other constitutional arguments, such
as the validity of statutes over which the agency would have no jurisdiction. While
Kroeger’s argument has merit, the New England Whitewater decision contains no such
refinement, and this court concludes that the failure to preserve this constitutional issue
should lead to its dismissal on appeal. However, since this issue is not entirely clear
cut, the court will consider the merits in the alternative.
- Delegation of Authority
The petitioner first argues that the delegation of authority by the legislature to
the DEP contained in 38 M.R.S.A. § 480-D(1) & (3) — the authority used by the DEP in
this case — is unconstitutional. In support, petitioner argues that when delegating
authority, the legislature must provide adequate guidance for the exercise by the
agency of its discretion. Kosalka v. Town of Georgetown, 2000 ME 106, { 11, 752 A.2d
183, 186. Those portions of the statute require the DEP to determine first whether the
“activity will not unreasonably interfere with existing scenic, aesthetic, recreational or
navigational uses” (480-D(1)) or whether “the activity will not unreasonably harm any
significant wildlife habitat, .. . estuarine or marine fisheries or other aquatic life.” (480-
D(3)). The petitioner fails to find any sort of guidance, particularly for terms
“unreasonably interfere” and “unreasonably harm” necessary to make the delegation
constitutional.” "On the contrary, when one looks at the delegations in context,
considering the standards which are given in combination with the entire statutory
scheme and procedural safeguards, it is clear that the legislature has provided
reasonable guidance. Murphy v. BEP, 615 A.2d 255, 259 (Me. 1992). Statutes are
presumed to be constitutional. Town of Baldwin v. Carter, 2002 ME 52, ¥ 9, 794 A.2d 62;
Kenny v. Dept. of Human Services, 1999 ME 158, { 7, 740 A.2d 560, 563 (Me. 1999). The
key is to look at the legislative scheme as a whole to determine whether there is
sufficient guidance in the nature of direction that the agency act according to basic
policy determinations by the legislature and safeguards to prevent the agency from
exercising its discretion arbitrarily. Lewis v. State, 433 A.2d 743 (Me. 1981). In the
present case, the legislature’s purpose is clear from the preamble and context of the act
and review procedures are built into the statute and regulations. Therefore, the
delegation of authority to the DEP was not unconstitutional.
Regulatory Vagueness
The petitioner also argues that the regulations promulgated by the DEP in
accordance with the NRPA are constitutionally void for vagueness. Here, the petitioner
points to Kosalka and Stewart v. Town of Sedgwick, 2002 ME 81, 797 A.2d 27, for the
proposition that laws and regulations requiring permit applicants to demonstrate some
general purpose, such as conserving natural beauty, are void for vagueness. In the
present case, the petitioner points specifically to regulations requiring “unreasonable
harm” and “unreasonable interference” as being vague because the term
“unreasonable” is not defined. In another example, the petitioner argues that the term
“practicable alternative” is undefined. However, broadening the focus of examination
from the individual term to the entire legislative and regulatory scheme and its
intended public policy, the court finds that these terms, as used, are susceptible of
common understanding and are not vague. ~
Substantial Evidence
Finally, the petitioner argues that the DEP’s decision was not supported by
substantial evidence in the record and was arbitrary and capricious. With regard to this
argument, it is helpful to state the standard of review. “An administrative decision will
be sustained if, on the basis of the entire record before it, the agency could have fairly
and reasonably found the facts as it did.” Seider v. Board of Examiners of Psychologists,
2000 ME 206, { 9, 762 A.2d 551, 555. In reviewing the decisions of an administrative
agency, the court should “not attempt to second-guess the agency on matters falling
within its realm of expertise” and the court’s review is limited to “determining whether
the agency’s conclusions are unreasonable, unjust or unlawful in light of the record.”
Imagineering v. Supt. of Ins., 593 A.2d 1050, 1053 (Me. 1991). The focus on appeal is not
whether the court would have reached the same conclusion as the agency, but whether
the record contains competent and substantial evidence that supports the result reached
by the agency. C.W.C.O., Inc. v. Supt. of Ins., 703 A.2d 1258, 1261 (Me. 1997).
Furthermore, factual determinations must be sustained unless shown to be clearly
erroneous (Imagineering, 593 A.2d at 1053) and “a party seeking review of an agency’s
findings must prove they are unsupported by any competent evidence.” Maine Bankers
Assoc. v. Bureau, 684 A.2d 1304, 1306 (Me. 1996).
In the present case, the DEP has received copious evidence from a variety of
parties including sometimes contradictory consultants’ reports. Based on this plethora
of information, the Department issued a detailed, substantial, seven-page order
covering each of the various considerations and the basis for the Department's
decision. Based on this evidence, the Department could have approved the permit
application and that approval would likely have withstood appeal. However, that is
not to say that the record does not also support the action the Department did take in
denying the application. The petitioner has failed to prove that there is no evidence of
record to support the DEP’s findings and the court finds no abuse of discretion in that
decision.
For the reasons stated above, the entry will be:
(1) | Respondent’s motions to strike are GRANTED.
(2) Petition to review the Department of Environmental
Protection’s decision not to entertain the petitioner’s “Permit By Rule”
application is DISMISSED.
(3) Petitioner’s appeal of his individual full application is
DENIED and REMANDED to the Department.
Dated: January g , 2004 Mika
S. Kirk Studstrup ,
Justice, Superior Court
Date Filed 3/2/03 Kennebec
County
Action 80C Appeal
Harold Kroeger
VS.
Docket No. AP03-19
J. STUDSTRUP
State of Maine,
Depart. of Enviromental Protection
Plaintiff's Attorney.
Gregory Cunningham, Esq.
PO Box 9729
Portland ME 04104-5029
Defendant’s Attorney
—-Margaret Bensinger McCloskey, AAG
6 State House Station
Augusta, Maine 04333-0006
Theodore A. Small, Esq.
-Brian Rayback Esq. (Butt)
One Monument Sq
Portland Maine 04101
Date of
Entry
4/3/03 Complaint-Petition for Review of Final Agency, filed. s/G. Cunningham, Esq
(filed 4/2/03)
5/2/03 Certification of Record, filed. s/McCloskey, AAG
Index to Record, filed.
5/7/03 Notice of briefing schedule mailed to attys of record.
6/12/03 Brief of Petitioner Harold Kroeger, filed. s/Cunningham, Esq.
7/7/03 Motion to Intervene and Incorporated Memorandum of Law with attachments. anc
Proposed Order, filed. s/B. Rayback, Esq.
------- Notice of Appearance of Matthew Manahan, Esq. and Brian Rayback, Esq. on
behalf of party-in-interest Charles Butt, filed.
7/11/03 Letter from attorney Cunningham indicating that the Plaintiff has no
objection to the motion to intervene, filed.
7/14/03 Brief of Respondent Charles Butt, filed. s/B. Rayback, Esq.
7/14/03 Respondent's Motion for Enlargement of Time in Which to File Brief,
filed. s/M. McCloskey, AAG
7/16/03 Brief of Respondent State of Maine, Department of Environmental Protectio1
filed. s/McCloskey, AAG
7/21/03 Exhibit "6" attached to record as requested.
7/21/03 MOTION TO INTERVENE, Studstrup, J.
Movant, Charles Butt, is permitted to intervene for all purposes as a
party-respondent. Mr. Butt's responsive brief shall be filed on or
before July 14, 2003.
Copies mailed to attys of record.
7/21/03 RESPONDENT'S MOTION FOR ENLARGEMENT, Studstrup, J.
Motion granted. One additional day allowed for respondent's brief to
be filed.
‘Copies mailed to attys of record.
7/29/03 Reply Brief of Petitioner Harold A. Kroeger, filed. s/Cunningham, Esq.
Petitioner's Motion for Enlargement of Time in Which to File Brief,
filed. s/Cunningham. Esa.