The opinion
STATE OF MAINE SUPENOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. AP-05-47
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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.