The opinion
STATE OF MAINE SUPERIOR COURT
HANCOCK, SS. CIVIL ACTION
DOCKET NO.: AP-04-08
r-I - _
4 .
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_- i d ,
AlWE HANNUM,
Petitioner
V. DECISION
MAINE BOARD OF ENVIROhTMENTAL PROTECTION,
Defendant
and
MILLICENT GUPTILL-HIGGINS, ET AL.,
Parties-In-Interest
Before this court is the petitioner, Anne Hamum's (Hannum) 80C Appeal which
seeks reversal of the Maine Board of Environmental Protection (BEP) denial of her
application for a permit under the Natural Resources Protection Act (NRPA).
Edward Bearor, Esq. appeared on behalf of the petitioner Hannum, Margaret Bensinger,
Assistant Attorney General appeared on behalf of the Maine Board of Environmental
Protection, James Nixon, Esq. appeared on behalf of the Friends Of Acadia, and Douglas
Chapman, Esq. appeared on behalf of the parties-in-interest, Higgins and Horsman.
Procedural Historv
On November 1, 1999, Hannurn filed a permit application with NRAP seeking
approval to construct a 90-foot long and 5-foot wide private dock on her 62-acre parcel
that has 1200 feet of frontage on the Maine coast. A p ~ ~ b lhearing
ic was held on June 15,
2000 and July 6, 2000. BEP granted intervenor status to Ruth Higgins Horsman,
Millicent Higgins, Thonlas Watt, and the Friends Of Acadia. The record contained
objections to the permit in the form of testimony given by Steve Pelletier, wildlife
biologist, Dr. Jolm Anderson, an ornithologist, Thomas Schaffer, Dr. James Gilbert, a
wildlife biGlogist, Patrick Keating, and Daniel Chalmers. The board also received a letter
from Leslie Cowperthwaite. The record also indicates that the Army Corp. of Engineers
determined that the project would not adversely impact any essential fish habitat and that
the project was eligible for approval. The United States Environlnental Protection
Agency, the United States Fish and Wildlife Service, and the National Marine Fisheries
Service all reviewed the proposed project and did not object to it. The Maine Department
of Inland Fisheries and Wildlife also approved the project.
On May 21, 2001, BEP denied the application. This decision was appealed to the
Maine Superior Court; the BEP decision was upheld. Hannum then appealed to the
Maine Supreme Judicial Court. On October 15, 2003, the Maine Supreme Judicial Court
vacated the superior court's decisioil and remanded the case back to BEP for further
proceedings because the factual findings relied upon by the BEP were not supported by
evidence in the record.
Upon the remand, BEP decided not to reopen the record to allow the submission
of additional evidence. The Board made new findings on the evidence that existed in the
record as of May 11,2001. On June 3,2004, BEP once again denied Haimum's permit
stating three reasons for the denial. These reasons are set out in paragraphs A, D, and J
of their decision.
Hamuin filed this 80C Appeal of this most recent denial by BEP.
Discussioil
The starting point of any analysis in this case begins with Hannum's common law
right to wharf out from her coastal real estate. This colnmon law right is subject to
reasonable regulation. The regulation in question is the NRPA. The Maine Board of
Environrnellta! Protection is responsible for ad~~~inistering
the NRPA. This case came
before the BEP for a secoild time following the Maine Supreme Judicial Court's remand.
The BEP did not receive any additional evidence when considering this matter on
remand. The three findings, which justify their denial of the application, are set out in the
following findings colltained on page 12 of the decision:
(A) The proposed activity would umeasoiiably interfere with existing scenic and
aesthetic uses in that the project would cause and unreasonable adverse impact to
aquatic life and the aquatic habitat supporting seals and terns in the cove and
would unreasonably interfere with the existing public viewing of those wildlife
species;
(D) The proposed activity would unreasonably harm aquatic habitat and other
aquatic life in that the permanent pier would increase boat traffic in the cove,
which will disturb the existing tern and seal co1onies;and
(J) The proposed activity does not meet the avoidance, minimal alteration, and no
unreasonable iillpact requirements articulated in the Wetland Protection Rules,
chapter 3 10, sections 5A, 5B, and 5D, in that the applicant has reasonable and
practicable alterilatives to coilstructiilg a permanent pier; and the construction and
use of the dock wou.ld liltely disturb an endangered species.
A. Scenic and Aesthetic Uses
D. Increased Boat Traffic
The court is discussing these two findiilgs together because ultinlately they focus
on the same factor, iilcreased boat traffic. In the finding contained in (A) ,the BEP
focuses on illtcrference with existing scenic and aesthetic uses by indicating that the
project would have an ui~reasonableadverse impact on aquatic life and habitat; therefore
there wouldn't be ally aquatic life or habitat to view. The project itself would not directly
impact the scenic or aesthetic uses of the area, however; they state that the problem is the
harm to aquatic life and habitat caused by the iilcreased boat traffic. The findings in
paragraphs (A) and (D) focus on the consequeilces on the increased boat activity.
BEP refers to coillplaillts made by Ms. Cowperthwaite and some of the experts
presented by the intervenors whereby they indicate that iilcreased boat activity will create
problems for the wildlire iin the area. However, the record does not attempt to quantify
the amouilt of boat traffic or rclate the anlouilt of boat traffic emanating from the pier to
other boat traffic in the area. This concern of iilcreased boat traffic in the area may be a
legitimate concern, but preveiltillg a laildowiler from putting a dock into the water does
not directly address the problem. BEP 112s no control over the boat traffic in Long Cove,
whether from Halmum's doclt or other doclts. Tlie request is not for a commercial dock,
but for a dock anticipated to be used during tlie short summer montlis by a woman and
her family. All of the \vitnesses wlio testified o~jectiiigto tlie project emphasized the
impact of increased boat traffic ill tlie area and how that would affect the habitat in the
area. They make a gigantic leap without any supporting evidence as to liow one dock
will increase boat traffic to sucli an extent tliat it will daiiiage aquatic life in the area.
This same unsupported coiiclusio~iis also present in tlie next paragraph (9.
It also
focuses on the problem of increased boat traffic.
(J) Alternatives
Tliis court finds and co~icludestliat tlie evidence in this record does not support
BEP's finding tliat tllcre was a practicable alternative. Once again tlie issue seems to be
increased boat traffic. Paragraphs (A), (D), and (J) all focus on the same anticipated
problem. In its findings, tlie BEP spends a great deal of time talking about the various
alternatives tliat E-Ia~nuiii
has with regards to getting access to the Maine coast. They talk
about Ms. EIannum using other doclts as well as using a 3-point pulley system just off her
shoreline. 1-liis a i a l y ~ i sdelilollstrates the problem with BEP's thinking tlrcoughout its
decision. It is not the iioclt that is the problem; it is the use of tlie boats tliat constitutes
the proble~ii.If there were frequent boats in tlie vicinity of Long Cove from other areas,
BEP would have no way of preventing this boat traffic. If BEP is concerned about the
use of boats in the area. tlieii \vhy are tiley stating that tlie 3-point pulley system is a good
alternative? The 3-point pulley systeni assullies thzt there will still be tlrcee boats
available to Ms. Hal~n~lin
froiii her propel-ty. Wliat would prevent her from using the
boats as iiiucli as she \\rould use theill if shc had I~erowl1 dock? Boat traffic is boat traffic
whether it results from a laidowner iiioorillg her boats on a pulley systeni or mooring her
boats to a doclt. The concern for the acli~aticlife, wlietlier endangered or not, is a
legitimate coilceril for the iiitervenors, but the record does not support tlie finding tliat
Hannum's use of lier dock for 60-90 daj~seach sumnier will cause a detriiiiental inipact
upon the aqua~iclife i l l tlie area or the vie\\ling of said aquatic life. The record does not
contain any evidence explaining llow the I lculnum wharf will damage the interests in
question any illore tllan boat tsafflc from other doclts in the area or even boat traffic from
Hannum's property if she decided to use a 3-point pulley system.
Conclusion
The potential use of tlle doclt by I-I~LI~IL~II
and her family and the impact it will
have upon Long Cove is speculative. Once again a finding that the doclt in question
would result in increrlsed boat traffic and therefore result in damage to aquatic life and
habitat requires "reasonable extrapolation" fro111 present facts. BEP's finding in this case
suffers from the s a n e short coilli~lgsthat were discussed in Hannum v. Board of
Protection, 832 A.2d 765 (Me. 2003). The Hann~uilcourt in its decision
Environlne~~tal
stated the following:
"Altl~ougl~ the Board could reasonably collclude that the I-Iailnum dock itself
would generate additional boat trnl'fic, there was no evidence that the granting of
this permit would reasollably be a~lticiparedto result in the building of more
doclts." At 770.
court fouild that the BEP could reasoilably conclude that the
Even the I-Ia~~num
dock would result in additional boat traffic; however, it did not sustain BEP's decision
based on their fillding that the Board could, "reasonably conclude" that the dock would
generate additioilal boat traffic. The record fails to make the coilnectio~lbetween the
additional boat trafiic froin the I-Iannum doclt and the harm to aquatic life and habitat.
There is no evidellce as to how tile illcreased boat traffic from the Haml~undock would
harm aquatic life other than general statemeilts made by the experts presented by the
intervenors in this case indicating that ally increased boat traffic would harm the aquatic
life and habitat.
For reasons stated above, this courr fi~ldsand co~lcludesthat the decision of BEP
should hereby be reversed and the BEP be ordered to gr
DATED: d-17-dd
ENTERED
FEB 2 2 2005
SUPERIOR COURT
HANCOCK CBU'NTY