Fox Islands Wind Neighbors v. Maine Dep't of Envtl. Protection

STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss CIVIL ACTION

DOCKET NO. AP-11i42;.

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FOX ISLANDS WIND NEIGHBORS, et al.,

Petitioners,

v. ORDER ON RULE 80C

PETITION

MAINE DEPARTMENT OF ENVIRONMENTAL

PROTECTION, et al.,

Respondents.

Before this Court are: 1) Rule 80C Petition filed by Fox Island Wind Neighbors (the

"Petitioners" or the "Neighbors") seeking review the "Condition Compliance Order" (the

"CCO") issued on June 30, 2011 by the Department of Environmental Protection (the "DEP");

and 2) a motion to dismiss the Neighbors' Petition on mootness grounds filed by Party-in-

Interest, Fox Island Wind, LLC ("FIW").

PROCEDURAL BACKGROUND

On July 28, 2011, the Neighbors and various individual residents of Vinalhaven, Maine

filed a Rule 80C Petition for review of the CCO issued on June 30, 2011 by the DEP, which

approved a "Revised Operating Protocol" submitted by FIW in response to the DEP's

determination that FIW violated 06-096 C.M.R. ch. 375, §10 (2001) while operating a small-

1

scale wind energy project located on the island ofVinalhaven. 1 In their Petition, the Neighbors

asserted that the ceo was the product of political intervention, which undermined the judgment

ofthe DEP's professional staff and consultants. (Pet. 19.) The Petition further argued that the

ceo was in violation of statutory provisions requiring wind energy projects to be regulated to

prevent excessive noise, in excess of statutory authority, unsupported by substantial evidence,

arbitrary and capricious, and affected by abuse of discretion. (Pet. 21-22.)

This case has a complex procedural history and the Court has issued multiple orders. On

March 20, 2012 the Court denied a Motion to Dismiss brought by FIW and the DEP who

claimed that this Court lacked jurisdiction as the CCO at issue was "certification" would not be

judicially reviewable by statute. 35-A M.R.S.A §3456(2). The Court found that because the

ceo at issue was better characterized as "enforcement" -- if for no other reason than the

certification of this wind project occurred on June 5, 2009 and the complaints of violations of the

noise rules arose over a year later after certification (on July 17 and 18, 2010). Moreover, the

Court found that prior to the final agency action at issue, the DEP had included in the

certification enforcement mechanisms by establishing operational and complaint protocols which

would have to be followed if complaints were made and validated regarding noise levels after the

turbines began spinning.

Nine days later, the DEP filed a Motion to Reconsider the order denying the motions to

dismiss, adding a new argument not raised in the initial briefing, namely whether the Neighbors

had standing to challenge the DEP's enforcement of violations ofthe CCO. The Court first noted

that the DEP had previously conceded that if the CCO at issue constituted enforcement then the

1

The license, Certification# L-24564-ES-A-N, to operate a small scale wind energy project, issued by

the DEP to FIW, contained a finding that FIW's turbines satisfied noise control rules pursuant to 06-096

C.M.R. ch. 375, § 10 (2001), but was subject to conditions, including sound monitoring and an

amendment of certification if violations occur. It included special condition #8 in the certification, and a

mandatory amendment process if noise standards were exceeded.

2

Court had jurisdiction to review the agency action but only if the dispute was between the

Department and the developer. The Court rejected the DEP's argument that no Maine citizen

who lives adjacent to a small-scale wind development has the right to seek judicial review of

even post-certification actions of the Department, and the argument that the only remedy for

abutters to wind projects would be to pursue and prevail in a common law claim for nuisance

against the developer. The Court rejected the Respondents' reliance upon Great Hill Fill &

Gravel v. Board of Environmental Protection, 641 A.2D 184 (Me. 1994) and relied instead upon

the Law Court's decision in Friends of Lincoln Lakes v. Department of Environmental

Protection, Maine Supreme Judicial Court, Mem. Docket No. BEP-10-554 (June 6, 2011), as

well as general principles of standing in denying the motion to reconsider. Lindemann v.

Comm 'non Governmental Ethics and Election Practices, 2008 ME 187, 961 A.2d 538.

On April13, 2012, the Neighbors filed an amended petition, which added two additional

claims for relief under the United State Constitution and 42 U.S.C. 1983: Count III alleged that

the CCO violated the Neighbors' right to petition the DEP protected by the First Amendment;

and Count IV alleged that the CCO discriminated against the Neighbors in violation of the

Fourteenth Amendment's Equal Protection Clause by depriving them of the right to be protected

from excessive noise that is available to any other Maine resident in close proximity to a wind

project. FIW and DEP then filed motions to dismiss the independent claims, which were granted

by the Court on November 1, 2012. The Court found that the Neighbors had available to them a

means to obtain direct judicial review of the agency action through the Maine Administrative

Procedure Act, and that review under Rule 80C could provide adequate remedies for the

Neighbors if they prevailed. The Court also noted that constitutional arguments could be made as

part of the Rule 80C proceeding and issued a Consent Order addressing this issue and other

3

matters on November 27, 2012. The consent order allowed the Neighbors to include their

constitutional arguments in their Rule 80C brief on the merits pursuant to 5 M.R.S.A. §

11007(4)(C)(1). The parties proceeded to brief the merits ofthe Rule 80C proceeding, and oral

argument was conducted on July 15,2013. Just before oral argument, the Court met with counsel

to the parties to· suggest a judicially-assisted settlement conference with another Superior Court

Justice.

On July 19, 2013, FIW moved this Court to dismiss the Neighbors' 80C Petition on

mootness grounds. FIW argues that the Petition is now moot because of the DEP's May 7, 2013

findings that FIW is operating in compliance with the DEP' s noise regulation as a result of FIW

having installed serrated fins on its turbine blades and thereby having decreased noise by 2-4

dB A.

The parties agreed in late summer of2013 to participate in multiple sessions of judicially-

assisted settlement conferences, but the undersigned Justice was notified in November of 2013

that settlement efforts were unsuccessful. The Court then took the matter under advisement.

FACTUAL BACKGROUND

On March 24, 2009, FIW applied with the DEP to build and operate a small-scale wind

energy development project on Vinalhaven, Maine. (Br. of Pet. 5.) On June 5, 2009, the DEP

issued FIW a Certification pursuant to 35-A M.R.S.A. § 3456 approving the project. (Petitioners'

Rule 80C Brief Appendix 10.i Condition No.8 of the Certification provided:

If the compliance data indicates that, under most favorable conditions for sound

propagation and maximum amplitude modulation, the proposed project is not in

compliance with Department standards as described in Finding 3, within 60 days

of a determination of non-compliance by the Department, the applicant shall

submit, for review and approval, a revised operation protocol that demonstrates

2

Hereinafter, record materials cited in Petitioners' Rule 80C Brief Appendix containing most relevant

documents from the record will be referred to as "Pet. App."

4

that the project will be in compliance at all the protected locations surrounding the

development.

In other words, according to Condition No.8, ifFIW's turbines were to produce noise in

excess of applicable standards, FIW would be required to implement a noise-reduction operation

plan using a "revised operation protocol."

On November 30, 2009, the DEP approved the Operational Sound Measurement

Compliance Protocol (OSMCP), which specified the conditions and procedures under which

FIW would be required to measure sound and demonstrate compliance with the Certification.

(Pet. App. 39.) The DEP additionally required that "[c]ompliance testing ... must be submitted

to the Department following any noise-related complaints after the commencement of operations,

with consideration for the required weather, operations and seasonal constraints." (Pet. App. 44.)

Soon after the project began operations, the Neighbors began complaining about noise

generated by the turbines. The Neighbors hired an attorney and an acoustical consultant, who

conducted sound measurements beginning in March 2010. (Br. of Pet. 10-12.) Starting at the

end of April 2010, the Neighbors submitted numerous noise complaints to the DEP and

requested that the DEP compel FIW to submit compliance assessment data as required in the

November 2009 OSMCP. (Br. of Pet. 10-12.) Among these complaints were the Neighbors'

complaints for the nights of July 17 and 18, 2010 alleging violations of the noise control rules. 3

On November 23, 2010, the DEP issued a formal non-compliance letter to FIW based on

one specific complaint the Neighbors had previously filed relating to noise infractions on July 17

and 18, 2010. (Pet. App. 59.) The letter found FIW to have exceeded the 45 dBA nighttime

sound limit and instructed FIW to submit within 60 days a "Revised Operation Protocol," as

3

As of March 27, 2007, the Wind Ordinance in effect required compliance with state noise regulations,

and limited sound levels at a neighboring property line to be no more than 45 dBA (day or night), and

also required a lowering of sound by 5 dB A for "repetitive impulsive sounds," and also regulated low

frequency noise. (Br. of Pet. 5 n.5.)

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required by Condition No. 8 of the Certification. (Pet. App. 60.) The Revised Operation Protocol

was required to "demonstrate[] that the development will be in compliance at all protected

locations surrounding the development at all times .... " !d.

On April11, 2011, FIW submitted a Revised Operation Protocol, which committed to

reduce the sound level from the FIW turbines only when the meteorological conditions are

identical to the conditions observed on July 17 and 18, 201 0-the wind direction is between

200° and 250°, or blowing in the south southwesterly direction. (Pet. App. 75.) However, the

DEP determined that FIW's submission was inadequate, and drafted a counterproposal, which

set forth provisions that the DEP staff, working with Assistant Attorney General Amy Mills and

Warren Brown, believed were necessary to ensure compliance of future operations with the

Noise Rule. This counterproposal consisted of a CCO, but also included "Appendix A," which

was modeled after another small-scale wind project that the DEP was working on at Pisgah

Mountain. (Pet. App. 103.) FIW objected to the inclusion of Appendix A.

On or about June 20, 2011, Patricia Aho took over as Acting Commissioner ofthe DEP.

Ms. Aho began working at the DEP as Deputy Commissioner in early 2011 directly after leaving

employment as a lobbyist for Pierce Atwood, the same firm representing FIW. (Br. of Pet. 20.)

Ten days after becoming Acting Commissioner, on June 30, 2011, Commissioner Aho, in

addition to limiting noise-reduction requirements to the exact meteorological conditions of July

17 and 18, 2010, 4 chose to issue the CCO without Appendix A.

4

Specifically, the Revised Operation Protocol pledged to use a new "Noise Reduced Operations

configuration" between 7:00PM and 7:00AM whenever the wind direction is between 200° and 250°

and the wind shear measures a 10-minute average wind speed of 6 mph or lower (i.e., when the conditions

ofJuly 17 and 18, 2010 exist).

6

STANDARD OF REVIEW

Under 5 M.R.S.A. § 11007(4)(C), the Superior Court may reverse or modify an agency

decision ifthe administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by bias or error oflaw;

(5) Unsupported by substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion.

5 M.R.S.A. § 11007(4)(C)(l)-(6). See also Thacker v. Konover Dev. Corp., 2003 ME 30, ~ 14,

818 A.2d 1013 (mandating that the Court will review the agency decision for an abuse of

discretion, error of law, or findings of fact unsupported by substantial evidence in the record);

Seider v. Bd. of Examiners of Psychologists, 2000 ME 206, ~ 8, 762 A.2d 551. The "review of

state agency decision-making is deferential and limited." Friends of Lincoln Lakes v. Bd of

Envtl. Prot., 2010 ME 18, ~ 12, 989 A.2d 1128. A party seeking to vacate a state or local agency

decision bears the burden of persuasion on appeal. Bizier v. Town ofTurner, 2011 ME 116, ~ 8,

32 A.3d 1048.

In applying the "substantial evidence" standard, the Court does not weigh the merits of

evidence, but rather determines whether there is "any competent evidence in the record to

support a finding." Concerned Citizens to Save Roxbury v. Bd. of Envtl. Prot., 2011 ME 39, ~ 24,

15 A.3d 1263. "Upon review of an agency's findings offact we must examine the entire record

to determine whether, on the basis of all the testimony and exhibits before it, the agency could

fairly and reasonably find the facts as it did." Id (quoting Friends of Lincoln Lakes, 2010 ME

18, ~ 13, 989 A.2d at 1133). An agency's findings of fact will be vacated "only ifthere is no

competent evidence in the record to support a decision." !d.

7

An action is arbitrary or capricious "when it can be said that such action is unreasonable,

has no rational factual basis justifying the conclusion or lacks substantial support in the

evidence." Cent. Maine Power Co. v. Waterville Urban Renewal Auth., 281 A.2d 233,242 (Me.

1971 ). See also Kroeger v. Dep 't of Envtl. Prot., 2005 ME 50, ~ 8, 870 A.2d 566 (holding: "[w]e

do not find that an administrative agency has acted arbitrarily or capriciously unless its action is

'willful and unreasoning' and 'without consideration of facts or circumstances."'); Help-U-Sell,

Inc. v. Maine Real Estate Comm 'n, 611 A.2d 981, 984 (Me. 1992); CarlL. Cutler Co. v. State

Purchasing Agent, 472 A.2d 913, 916 (Me. 1984).

Likewise, "[a]n abuse of discretion may be found where an appellant demonstrates that

the decisionmaker exceeded the bounds of the reasonable choices available to it, considering the

facts and circumstances of the particular case and the governing law." Sager v. Town of

Bowdoinham, 2004 ME 40, ~ 11, 845 A.2d 567. However, "[i]t is not sufficient to demonstrate

that, on the facts of the case, the decisionmaker could have made choices more acceptable to the

appellant or even to a reviewing court." !d.

The Court reviews constitutional questions, i.e. Petitioners' First Amendment and equal

protection claims, de novo. Newton v. LePage, 700 F.3d 595, 601 (1st Cir. 2012) (citing Ridley v.

META, 390 F.3d 65, 75 (1st Cir.2004)); Mekhoukh v. Ashcroft, 358 F.3d 118, 129 (1st Cir.

2004). "Judges, as expositors of the Constitution, must independently decide whether the

evidence in the record is sufficient to cross the constitutional threshold." Newton, 700 F.3d at

601 (quoting Bose Corp. v. Consumers Union ofUS., Inc., 466 U.S. 485, 511, 104 S.Ct. 1949,

80 L.Ed.2d 502 (1984)).

8

DISCUSSION

Should the Neighbors' 80C Petition be dismissed as moot?

As a threshold matter, this Court must decide whether the Petition is now moot as a result

of the DEP's May 7, 2013 findings that FIW is operating in compliance with the DEP's noise

regulations. The finding of compliance was made on the basis of the CCO challenged by the

Petition at hand. If as a result of a remand or reversal by this Court, the DEP were to revise the

CCO, it could also revise or even invalidate its May 7, 2013 finding of compliance by FIW. For

that reason, the Neighbors' Petition is not moot.

First Amendment Claim

As basis for their First Amendment claim, Petitioners allege that the DEP retaliated for

the exercise by the Neighbors of their right to petition the government for redress of grievances.

The rights to complain to public officials and to seek administrative and judicial relief are

protected by the First Amendment. Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194-95 (2d Cir.

1994) (citations omitted). Retaliation by a public official for the exercise of a constitutional right

gives rise to an actionable constitutional claim. Mt. Healthy City School Dist. Bd. of Education v.

Doyle, 429 U.S. 274 (1977).

The parties agree to the three prima facie elements that the Neighbors must establish to

make out a claim for First Amendment retaliation: (1) Petitioners' conduct is protected by the

First Amendment; (2) a public official took an adverse action against Petitioners; and (3) the

adverse action was motivated or substantially caused by Petitioners' exercise of their First

Amendment rights. Nestor Colon Medina & Sucesores, Inc. v. Custodia, 964 F.2d 32,40-43 (1st

Cir. 1992); Gagliardi, 18 F.3d at 194; Am. Civil Liberties Union of Maryland, Inc. v. Wicomico

Cnty., Md., 999 F .2d 780, 785 (4th Cir. 1993).

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Retaliation is actionable because retaliatory actions may tend to chill individuals'

exercise of constitutional rights. Powell v. Alexander, 391 F.3d 1, 17 (1st Cir. 2004) (citation

omitted). "Where there is no impairment of the plaintiffs rights, there is no need for the

protection provided by a cause of action for retaliation." Am. Civil Liberties Union of Maryland,

Inc., 999 F .2d at 785. If a plaintiff fails to show that the public official's conduct adversely

impacted the plaintiffs First Amendment right by chilling, impairing, or denying the exercise of

this right, the Court will dismiss the First Amendment claim. !d. at 786. Mere "inconvenience" in

exercising the right will not suffice to make out a claim for First Amendment retaliation. !d.

Here, Petitioners failed to demonstrate that the CCO, or specifically, the revised

complaint protocol either chilled, or impaired or denied their right to file grievances. First, the

CCO is not binding on the Neighbors. (Pet. App. 96-97.) It is binding on FIW. With respect to

the noise complaint protocol, the ceo provides that "the interested parties are not bound" to it

and that Petitioners should adhere to its data collection requirements "to the extent practicable."

(Pet. App. 97.) The CCO further states that "data collected in a manner contrary to the protocol .

. . will be difficult to effectively analyze and may be discounted by the department." (Pet. App.

97.) During oral argument, the DEP clarified that complaints filed pursuant to the CCO's

complaint protocol and "unsubstantiated" complaints are acknowledged by the DEP. The

"unsubstantiated" ones are monitored to "develop a pattern."

Second, the revised complaint protocol-which was subsequently incorporated by

reference into the CCO-was issued by the DEP on June 23, 2010 and revised on July 8, 2010.

(Pet.~ 38.) This action by the DEP did not prevent the Neighbors from filing their complaints for

July 17 and 18, 2010, the complaints that served as basis for the ceo at issue. It is true that in

response to the revised protocol, the Neighbors had to hire an acoustic expert to collect data for

10

the July 17 and 18, 2010 complaints, but mere "inconvenience" in exercising the First

Amendment right will not suffice to make out a claim for First Amendment retaliation. Am. Civil

Liberties Union of Maryland, Inc., 999 F .2d at 786.

Because Petitioners failed to establish sufficiently adverse impact necessary to a

retaliation claim, they have failed to assert a constitutional violation, and for that reason their

First Amendment claim will be dismissed.

Equal Protection

Petitioners also allege that the CCO discriminates against them in violation of the

Fourteenth Amendment's Equal Protection Clause by depriving them of the right to be protected

from excessive noise that is available to any other Maine resident residing in close proximity to a

wind project. The Maine courts apply "a two-step test to determine whether a statute violates the

Equal Protection clause. First, the party challenging the statute must show that similarly situated

persons are not treated equally under the law." See, e.g., Friends of Lincoln Lakes v. Bd. of Envtl.

Prot., 2010 ME 18, ~ 26,989 A.2d 1128. Then, ifthe challenge does not involve a fundamental

right or suspect class, the test is whether the statute is rationally related to a legitimate state

interest. Id.

Here, the Neighbors challenge the CCO on equal protection grounds as an abridgment of

their fundamental First Amendment right to free speech. See Powell, 391 F.3d at 16 (recognizing

that the right for redress of grievances is "among the most precious of the liberties safeguarded

by the Bill of Rights"). Thus, they maintain that this Court should apply strict scrutiny. Anderson

v. Town of Durham, 2006 ME 39, ~ 29, 895 A.2d 944 ("If government action that is challenged

on equal protection grounds infringes on a fundamental constitutional right, ... it is subject to

analysis under the strict scrutiny standard."). Respondents, on the other hand, take the position

11

that the level of scrutiny to be applied is rational basis because there is no suspect class. !d.

(holding that if the government action does not implicate a suspect class, different treatment

accorded to similarly situated persons need only be rationally related to a legitimate state

interest). Before delving into the analysis of what level of scrutiny is applicable to the facts of the

case at hand, this Court must determine whether Petitioners carried out their burden to

demonstrate that similarly situated persons are not treated equally under the law.

First and foremost, as explained above, the CCO is not binding on the Neighbors. (Pet.

App. 96-97.) It is binding on FIW. Because the CCO is not binding on the Neighbors, the only

question is whether the DEP, in exercising its power to review developers' compliance with the

"no adverse effect on the natural environment" standard ofthe Site Location Law, 38 M.R.S.A. §

484(3), applied that power "with an even hand." In re Laurence T, 403 A.2d 1256, 1259 (Md.

1979). If it did, the Neighbors' equal protection claim will not succeed.

The Neighbors do not argue that either 38 M.R.S.A. § 484(3) or 06-096 C.M.R. ch. 375

(200 1) is unfair on its face or impartial in appearance, but rather, that the enforcement of said

statute and agency rule by the DEP was unfair because it resulted in unjust discrimination of the

Neighbors. In re Laurence T, 403 A.2d at 1259 (quoting Yick Wo v. Hopkins, 118 U.S. 356, 373-

74 (1886); Snowden v. Hughes, 321 U.S. 1, 8-10 (1944)). In support of their position that the

Neighbors are treated differently from residents who are in close proximity to other wind

projects in Maine, Petitioners refer to the certification orders the DEP issued to Spruce

Mountain, Saddleback Ridge, and Pisgah Mountain wind projects and point out how their

compliance protocols are different from the compliance protocol set forth in the ceo.

However, even if the Court disregards the fact that the record is not clear on whether this

is an exhaustive list of wind projects in Maine-evidence necessary to draw an inference that all

12

other wind projects in Maine have a complaint protocol dissimilar to the one established for

FIW, there is still no evidence in the record that de facto, the DEP responds differently to the

Neighbors' complaints than to complaints submitted by the neighbors of Spruce Mountain,

Saddleback Ridge, and Pisgah Mountain wind projects. On the contrary, the DEP purports that it

simply cannot "afford to open an investigation into every anecdotal complaint of noise it receives

regarding wind projects, or any other form of development it permits" suggesting that

unsubstantiated, "anecdotal" complaints received with respect to any licensee could be

disregarded. (DEP Br. 19 n.12.)

Moreover, the courts in the First Circuit have articulated the need to establish a "gross

abuse of power, invidious discrimination, or fundamentally unfair procedures" to succeed on an

equal protection claim arising out of an administrative agency decision. See, e.g., Creative

Environments, Inc. v. Estabrook, 680 F.2d 822, 832 (1st Cir. 1982); Torremo v. Town of

Fremont, 438 F.3d 113, 119 ("[O]nly in 'extreme circumstances' will a land-use dispute give rise

to an equal protection claim.") (quotation omitted). The ordinary state administrative proceeding

involving land use or zoning does not generally present such a situation, regardless ofhow

disappointed the licensee or privilege seeker may feel at being initially turned down. !d. Thus,

where, as here, the question is whether the DEP exceeded or abused its authority by treating FIW

more favorably than other wind projects, and, as a result, imposed a more burdensome complaint

protocol on Petitioners than on neighbors of other wind projects, the Neighbors' equal protection

claim represents nothing more than a claim that the DEP departed from its own procedures or

those provided by the Maine law. See SFW Arecibo, Ltd. v. Rodriguez, 415 F.3d 135, 142 (1st

Cir. 2005) (no equal protection claim when agency simply "departed from its own procedures or

those provided by ... law").

13

For the foregoing reasons, Petitioners' equal protection claim is hereby dismissed.

Did Commissioner Aho properly consider relevant factors or have a rational basis for her

determination that the Revised Operating Protocol should limit noise reduction efforts of FIW

to times when the exact meteorological conditions of July 17 and 18, 2010 are present?

As defined above, abuse of discretion is conduct that "exceed[s] the bounds of reasonable

choices available to [the agency], considering the facts and circumstances of the particular case

and the governing law." Forest Ecology Network, 2012 ME 36, ~ 28, 39 A.3d 74. Additionally,

"[a]n agency's determination is arbitrary and capricious if the agency lacks a rational basis for

making the determination or if the decision was not based on consideration of the relevant

factors." Carcieri v. Kempthorne, 497 F.3d 15,43 (1st Cir. 2007), rev 'don other grounds sub

nom, Carcieri v. Salazar, 555 U.S. 379 (2009). Thus, the question before this Court is whether

there was a rational basis for Commissioner Aho' s determination, or if it was based on

consideration of relevant factors. To address these issues, the Court must review.the information

and evidence before the Commissioner at the time she issued the CCO and agreed to FIW' s

request that Appendix A not be implemented as the complaint protocol which FIW would have

to follow to receive and respond to sound complaints from the Neighbors.

The data collected by the Neighbors and their expert on July 17 and 18, 2010 were

reviewed by Warren Brown, the DEP's expert, who, in "conclusions" dated September 8, 2010

reported as follows: "FIW exceeded the nighttime noise limit of 45 dB A for 7 -10 minute

intervals during the complaint period." (Pet. App. 53.) He further clarified that "[t]he July 17 &

18 complaint conditions were very similar with regards to surface wind speeds and WTG output

or 80m wind speeds (May data) as FIWN complaints previously submitted for May 1, 4, 5, & 6

all of which reported sound levels between 46-48 dBA" and that "[a]lthough these complaints

were prior to the 'FIW compliance protocol' in timing, nonetheless there exists a significant

14

body of consistent meteorological and sound data indicating sound levels greater than applicable

limits." (Pet. App. 53-54.) In other words, Mr. Brown concluded that: 1) although the May data

were not collected in accordance with the revised compliance protocol, it contained credible

meteorological and sound data; and 2) violations may occur during meteorological conditions

similar to the ones for May and July complaint dates. The May data showed that the wind

direction for May-dated complaints ranged from 169° to 280°, or SSE, SSW, and NW. (Pet. App.

274, 276.) The July data showed that the wind direction for July-dated complaints ranged from

200° and 250°, or SSW. (Br. of Pet. 14.) Mr. Brown's report does not indicate whether a

violation is more likely to occur when the wind is blowing in a certain direction. In fact, it is

silent on whether wind direction played any role in his finding of a violation.

Based on Mr. Brown's report, on November 23,2010, the DEP issued a formal

determination of non-compliance, in which it stated that the "analysis of the operational, sound,

and meteorological data collected ... indicate that ... [FIW] is likely to exceed the required

sound compliance level of 45 dBA when there is a significant vertical and directional shear."

(Pet. App. 59.) (emphasis added). Again, nowhere in the letter does DEP discuss wind direction

or its role in causing the violation.

The first time a wind direction is mentioned in a December 21, 201 0 email from Warren

Brown to James Cassida, the Director ofDEP Division ofLand Resource Regulation. (Pet. App.

61.) In that email, Mr. Brown reiterated that the "increased wind shear" caused the violation of

the noise rule and explained that said "increased wind shear" may happen with "winds ranging

from SSE-NW." (Pet. App. 61.) A better understanding ofwhat factors into an "increased wind

shear" can be derived from an email James Cassida sent to FIW on January 10, 2011, where Mr.

Cassida explained that "[i]t is [the DEP's] expectation that all wind shear conditions are not a

15

problem but at some point, as the wind shear coefficient raises, the level of wind shear present

does affect the sound produced at the protected locations." (Pet. App. 64.) (emphasis added) Mr.

Cassida then clarified that the level of wind shear should be measured by "alpha coefficient,"

which should be used by FIW "as the trigger for a reduced operations mode of operations." With

respect to wind direction, Mr. Cassida stated unequivocally:

While it is commonly understood that wind shear is most possible when winds are

from the south southwest in the golf of Maine it is also possible that wind shear

can be present under other wind directions as well. As a result of this, it is not

acceptable that the trigger simply be based on wind directions alone.

(Pet. App. 64.)

On March 9, 2011, the DEP sent another letter to FIW, in which it emphasized that

"vertical and directional wind shear directly contributed to non-compliance with the noise

standards" and that "the range of wind shear conditions that affects sound power output" need to

be addressed to resolve "the compliance issue." (Pet. App. 70.) (emphasis added) In response to

FIW' s suggestion that the revised condition compliance order require noise reduction operations

when the wind is blowing in the south southwesterly direction only, the DEP responded that

"[w]hile the Department appreciates the fact that FIW can demonstrate compliance under some

conditions that include vertical and directional wind shear it is incumbent upon FIW to

demonstrate compliance under all operational conditions, including those present on July 1ih &

18th and similar periods." (Pet. App. 71.)

The relevant evidence in the record before the agency include the following: 1) FIW was

likely to exceed the required sound compliance level of 45 dBA when there was significant

vertical and directional wind shear; and 2) not all vertical and directional shears appear to be a

problem, but they become a problem when the wind shear coefficient rises. However, the record

16

is quite unclear as to what other factors, or precise meteorological conditions, affect the wind

shear coefficient. 5

To justify Commissioner Aho's decision to limit noise reduction operations to the exact

meteorological conditions of July 17 and 18, 2010, i.e., when the wind direction is between 200°

and 250°, the DEP now argues that the only instance of formal finding of non-compliance

involved SSW winds-the meteorological conditions "where wind shear is most likely to occur."

(Br. of Resp. 10.) The DEP characterizes the record as being "ambiguous" as to the effect of

non-SSW winds, and argues that the Court should affirm Commissioner Aho's decision as she

was basing her decision on what was "certain," as opposed to what was "uncertain." (Br. of

Resp. 12.) But this is where the DEP's argument founders.

Although the record indicates that it may be "uncertain" what factors affect the wind

shear coefficient (including possibly non-SSW wind direction), equally "uncertain" is the

correlation between the SSW wind direction and the increase in the level of wind shear. By

contrast, there is clear and un-rebutted evidence in the record that wind direction is not the main

causative factor, and should not therefore be "the trigger." Winds blowing from other directions

could be just as harmful as SSW winds. The Court concludes that there was no competent

evidence supporting Commissioner Aho's decision to limit the CCO's regulation to only one

factor- wind direction between 200° and 250°- because that factor might, or might not, cause

the wind shear coefficient to rise.

Moreover, the CCO itself does not even attempt to explain the reasoning behind

Commissioner Aho' s decision, not only as to why she chose to focus only on wind direction, but

also as to why she declined the recommendation ofDEP staffthat Appendix A was essential, in

5

In an email to the DEP dated January 19, 2011, Warren Brown attached a graph reflecting wind shear

during the complaint period for May and July. The graph reflects wind direction from SSE to NW and,

besides wind direction, factors in "wind speeds in m/s@ T2 & 30m surface" and "wind shear exponent."

17

the wake ofthe violations, to maintain ongoing compliance with the noise rule. The DEP's

explanation now is that she based her decision on what was "certain," as opposed to what was

"uncertain" and neither Respondent addresses in any direct fashion Commissioner Aho' s

decision to reject Appendix A. But the arguments regarding "certainty" are being proffered post

hoc by the DEP' s legal counsel, and such rationalizations are not ones the Court is allowed to

accept. See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962). See also

Michael Shane Christopher v. Smithkline Beecham, Corp., 132 S. Ct. 2156, 2166 (2012) (stating

that the traditional call for deference to an agency's interpretation of its regulation may be

overridden when such an interpretation is "a post hoc rationalization advanced by an agency

seeking to defend past agency action against attack." (internal citation omitted)).

For the foregoing reasons, the Court concludes that, on the basis of the evidence before

her, Commissioner Aho could not have rationally adopted a CCO that addresses only the

speculative factor of wind direction to the exclusion of the one clear, relevant and uncontested

causative factor: wind shear of a certain coefficient. The Court thereby reverses the Decision of

the Department of Environmental Protection dated June 30, 2011, and remands this matter to the

Department for issuance of a CCO consistent with the findings of the Department's expert.

With respect to the Commissioner's decision to reject, without explanation, the

recommendation of the Department and the Attorney General's Office to require Appendix A to

be part ofthe CCO, that issue will be remanded to the Department. While there could be a very

good reason for her decision in this regard, the Court could find nothing in the agency record

from the Commissioner or anyone acting on her behalf that explains the Department's rationale.

The effect of this silence is of course to embolden somewhat cynical speculation by the

Neighbors as to how and why certain decisions were made. Before the Court can review this

18

aspect of final agency action, the Department is entitled to an opportunity upon remand to

provide its rationale based upon the information and evidence the Department had available to it

at the time the decision was made regarding Appendix A.

Was the CCO a product of bias?

Pursuant to 5 M.R.S.A. § 11007(4)(C)(4), the Superior Court may reverse or modify a

decision by an administrative agency if it is affected by bias. Petitioners concede that there is no

direct evidence of bias, but instead submit that there is substantial indirect evidence that would

allow the Court to find that the decision to issue the CCO was affected by bias.

The Law Court has recently held that direct or indirect evidence of bias has to be

"sufficient to overcome a presumption that the fact-finders, as state administrators, acted in good

faith." Friends of Maine's Mountains v. Ed. ofEnvtl. Prot., 2013 ME 25, ~ 23, 61 A.3d 689.

See also Mallinckrodt LLC v. Littell, 616 F. Supp. 2d 128, 135, 140 (D. Me. 2009) (observing

that there exist "extraordinary circumstances ... in which extreme bias completely renders a

state adjudicator incompetent and inflicts irreparable harm upon the petitioner").

Petitioners present the following indirect support for their bias claim: 1) FIW' s counsel,

George Baker, engaged in a pattern of seeking political influence by obtaining access to

legislators in order to sway decisions adversely affecting FIW; 2) Commissioner Aho (along

with the Commissioners who preceded her in office) was presented with overwhelming support

and justification for the inclusion of Appendix A, but chose to disregard it; 3) the DEP

Commissioner at the time, Darryl Brown, informed his staff that existing DEP regulations were

too burdensome, and subsequently met privately with Mr. Baker and his attorneys; 4)

Commissioner Aho had been employed by Pierce Atwood, the firm representing FIW, shortly

19

before she rendered her decision in the matter; she even emailed personnel at Pierce Atwood to

obtain assurance that she had not actually billed time to the FIW matter.

The Maine Administrative Procedure Act requires that administrative proceedings be

conducted in an impartial manner, but there is no evidence in the record of any specific instances

of partiality or prejudgment on the part of the DEP or its officers. New England Tel. & Tel. Co. v.

Pub. Utilities Comm 'n, 448 A.2d 272, 280 (Me. 1982). The cases that have found an agency

officer disqualified have done so only after a showing of prejudgment on the specific facts

subsequently presented to the agency. !d. (citing Cinderella Career & Finishing Schools, Inc. v.

FTC, 425 F.2d 583 (D.C.Cir.1970) (where a Commissioner after an appeal was filed made public

statements which gave the appearance that he had already prejudged the case and that the

ultimate determination of the merits would move in predestined grooves); American Cyanamid

Co. v. FTC, 363 F.2d 757 (6th Cir. 1966)). After review ofthe record, it appears that what

Petitioners have actually presented in support of their claim of bias is merely communication

across the branches of government, as well as proof that the executive agency-the DEP-

shifted its priorities when Governor LePage was elected. "A preconceived position on law,

policy or legislative facts is not a ground for disqualification." New England Tel. & Tel. Co., 448

A.2d at 280. It is also not lost on the Court that at the beginning of this project, legislators and

interest groups affiliated with the administration of Governor Baldacci were working hard to

expedite the certification of this small wind project and get the turbines spinning.

In addition, the fact that Commissioner Aho was formerly employed by Pierce Atwood,

or the fact that the CCO was issued in terms that highly favored to FIW cannot-by

themselves-be the basis for a finding of bias, as the Law Court has defined that term.

Petitioners can cite to no state or federal law, regulation, or rule of professional ethics for

20

executive branch employees that prohibits Commissioner Aho from leaving her job as a lobbyist

at Pierce Atwood, LLC and move directly into a new position where she is in a position to make

decisions that affect former clients of Pierce Atwood, LLC. From the time line it does appear that

one of her first decisions as Acting Commissioner directly benefited a client of her former

employer. However, in the absence of such law or regulation, as well as the definition of bias

recently articulated by the Law Court, this Court is compelled to reject Petitioners' argument on

bias.

CONCLUSION

Because the Court finds that Commissioner Aho had no rational basis or relevant

evidence before her which justified the issuance of this ceo in that it simply limited noise

reduction requirements to the exact meteorological conditions of July 17 and 18, 2016, the Court

reverses her decision and remands this matter to the DEP for redetermination that the cause of

the violation was significant vertical and directional wind shear, and to issue a ceo that is

capable of fully remedying the violation which the DEP found occurred. Because of the passage

of time, the Department is obviously free to rely upon other relevant data or evidence that has

been generated or obtained since the issuance of the ceo in crafting the new ceo.

In addition, while the Court has not made a finding of bias, it recognizes the difficult

issues created by Commissioner Aho' s continuing participation in this matter in light of her

former affiliation with FIW' s law firm, Pierce Atwood, LLC. That issue, which could have been

avoided, 6 has created an enormous amount of mistrust by the Neighbors as to whether their

grievances can receive fair treatment by the Commissioner and the Department. While this case

6

See Bath Iron Works v. Maine Workers Camp. Ed., No. AP-06-74 (Me. Super. Ct. June 9, 2010)

(although the Court did not address the conflict of interest issue on the merits because it was not ripe, in

dicta, it stated that Paul Dionne should refrain from continued participation in the Board's rulemaking in

light of his dual position as the Executive Director ofthe Board and the Chairman of the Board of Central

Maine Healthcare, a medical facility subject to the fee schedule being promulgated).

21

might not present the "extraordinary circumstances" which must exist for a Court to find "bias"

as that term has been defined by the Law Court, Commissioner Aha's continuing participation in

deciding upon operational and complaint protocols could be viewed as antithetical to the

common notions of impartiality which Maine citizens understandably expect from decision-

makers in Maine agencies. As this matter is being remanded to the Department, the Court trusts

that the Department will consider the wisdom of her continued participation in this process as the

Department reformulates the CCO consistent with this Order, and as it provides the

Department's rationale for the complaint protocol it established or maintains in response to the

violations found by the Department to have occurred.

The entry will be:

The Court DENIES FIW's motion to dismiss the Petition on mootness grounds.

The Court DENIES the Petitioners' claims that their rights to equal protection and their

First Amendment rights have been violated.

The Court REVERSES the Decision of the Department of Environmental Protection dated

June 30, 2011, and REMANDS this matter to the Department for issuance of a CCO

consistent with the findings of the Department's expert that the violation occurred as a

result of "significant vertical and directional wind shear" and is further instructed to

require an operational protocol which would prevent further violations of the noise rules.

Finally, the Court REMANDS this matter to the Department to issue further findings of

fact, or otherwise articulate its rationale as to the complaint protocol implemented or

22

maintained after the Department found violations of the noise standards by FIW. Unless

otherwise agreed by the parties, the Department shall have 90 days from the date of this

order to issue the findings or explanation regarding the ongoing complaint protocol.

23

f

Date Filed _ _7_:_/_2_8.:..._/_11_ __ Kennebec Docket No. _ _A_P_-_1_1_-_4_2_ _ _ _ _ _ _ __

County

Action _ _P_e_t_i_t_i_o_n_F_o_r_R_e_v_i_e_w________

80C J~ Murphy

Fox Islands Wind, LLC (PII)

Fox Islands Wind Neighbors Maine Dept of Environmental Protection

vs.

Plaintiff's Attorney Defendant's Attorney

Rufus Brown, Esq. Catherine Connors, Esq. (PII)

PO Box 7530 Thomas Doyle, Esq. (PII)

Portland, ME 04112-7530 Nicholas Llvesay, Esq.

Merrill's Wharf

254 Commercial Street

Portland Maine 04101-4664

- Amy Mills, AAG

Date of

Entry

7/28/11 Petition For Review Of Final Agency Action, filed. s/Brown, Esq.

8/2/22 Appearance, filed. s/Connors, Esq.

8/8/11 Entry of Appearance, filed. s/Mills, AAG

8/16/11 Motion of Respondent Fox Island Wind, LLC to Dismiss Petition for Review

for Lack of Jurisdiction and Incorporated Memorandum of Law, filed.

s/Connors, Esq.

Proposed Order, filed.

Motion of Respondent Fox Islands Wind, LLC to Stay Proceedings Pending

Disposition of its Motion to Dismiss and Incorporated Memorandum of Law,

filed. s/Connors, Esq.

Proposed Order, filed.

8/26/11 Petitioners' Motion To Extend Time To Respond To Motion To Dismiss,

filed 8/22/11. s/Brown, Esq.

8/26/11 Petitioners' Motion For Expedited Action On Motion To Extend Time To

Respond, filed 8/22/11. s/Brown, Esq.

8/26/11 Letter indicating PII Fox Island Winds has no objection to Petitioner's

request for extension to 9/23 to respond to pending motion to dismiss,

filed 8/23/11. s/Connors, Esq.

8/29/11 Motion to Stay Proceeding and Motion for Enlargement of Time to Respond

to Motion to Dismiss, filed. s/Mills, AAG

9/1/11 ORDER, Murphy, J. (8/30/11)

Motion of PII Fox Islands Wind, LLC is GRANTED. All deadlines, including

the filing of the record, shall be suspended pending disposition of FIW's

motion to dismiss. If the Court denies that motion, the record shall be

filed 30 days after the date of that denial, with all subsequent deadlines

in accordance with Rule 80C.

Copy to Attys Brown, Connors, Doyle, and AAG Mills

Date of

Page 2 Docket No. AP-11-42

Entry

9/1/11 ORDER, Murphy, J. (8/30/11)

Petitioners' Motion To Extend Time To Respond To Motion To Dismiss is

GRANTED. Response due 9/23/11.

Copy to Attys Brown, Connors, Doyle, and AAG Mills

9/1/11 ORDER, Murphy, J. (8/30/11)

Petitioners' Motion For Expedited Action On Motion To Extend Time To

Respond is GRANTED.

Copy to Attys Brown, Connors, Doyle, and AAG Mills

9/1/11 ORDER, Murphy, J. (8/30/11)

Department's Motions to Stay and for Enlargement of Time are GRANTED.

Deadline for filing administrative record is suspended pending

disposition of FIW's motion to dismiss. If the Court denies that

motion, the Department shall file the record 30 days after the date of

that denial. The Department's deadline for filing a response to FIW's

motion to dismiss is 9/23/11.

Copy to Attys Brown, Connors, Day, and AAG Mills

9/20/11 Notice of Change of Address of Counsel, filed. s/Connors, Esq.

9/22/11 Return Receipt served on Patricia Aho on 8/1/11

Return Receipt served on George Baker on 8/1/11

Return Receipt served on William Schneider on 8/1/11

Petitioners' Objection to Respondent Fox Islands Wind's Motion to Dismish

s/Brown, Esq.

Authentication of Records, filed.

Authentication of Documents, filed.

Attached Exhibits, filed. (A-N)

ile 2

9/23/11 Department's Memorandum In Response To Motion To Dismiss, filed.

9/28/11 Reply of Respondent Fox Isl~nds Wind, LLC in Support of its Motion to

Dismiss for Lack of Jurisdiction, filed. s/Connors, Esq.

10/13/11 Petitioners' Motion For Leave To File Opposition In Excess Of 20 Pages,

filed 10/7/11. s/Brown, Esq.

10/18/11 ORDER (Motion For Leave), Murphy, J. (10/17/11)

GRANTED.

Copy to Attys Brown and Connors, AAG Mills

1/11/12 Petitioners' Motion For Leave To File A Reply To Memorandum Of Maine

Department Of Environmental Protection, filed. s/Brown, Esq.

1/19/12 Letter regarding Petitioners' Motion For Leave To File A Reply, filed

1/13/12. s/Connors, Esq.

1/27/12 Memorandum of Respondent Fox Islands Wind, LLC in Opposition to

Petitioners' Motion for Leave to File a Reply to the Memorandum of

Maine Department of Environmental Protection, filed. s/Connors, Esq.

1/27/12 Department's Memorandum In Response To Motion For Leave To File

Reply, filed. s/Mills, AAG

1/31/12 Petitioners' Reply To Objections To Petitioners' Motion To File Reply

Memorandum, filed 1/30/12. s/Brown, Esq.

2/2/12 Motion hearing scheduled for 3/8/12 at 9:00 a.m.

Motion list mailed to attorneys of record

Page 3

Date of

Entry

Fox Islands Wind Nei hbors vs. DEP DorkP.t No. APll-42

2/16/12 PETITIONER'S MOTION FOR LEAVE, Murphy, J. (2/15/12)

MOTION Granted over objection.

Copies to attys. of record

Petitioner's Reply to Memorandum of the Maine Department of Environmental

Protection, filed. (1/11/12)

3/12/12 Oral argument held 3/8/12, J. Murphy presiding. Rufus Brown, Esq. for

Petitioner; Amy Mills, AAG, for Respondent; Catherin Connors, Esq. for

PII Fox Island Wind. (On Motion to Dismiss.)

Tape 1484, Index 5483-7160 and Tape 1485, Index 0-1295.

Under advisement.

3/16/12 Petitioners' Motion To Amend Petition And Add Parties, filed. s/Brown, Esq.

3/20/12 ORDER ON MOTION TO DISMISS, Murphy, J.

The Court DENIES FIW's motion to dismiss.

Copy to attorneys of record.

3/21/12 Transcript Order, filed 3/20/12. s/Alan Farago

Copy sent to Electronic Recording office.

3/23/12 Copy of US Supreme Court decision Sackett v. EPA, filed. s/Brown, Esq.

3/30/12 Motion For Reconsideration, filed 3/29/12. s/Mills, AAG

4/3/12 State's Assented-To Motion For Enlargement Of Time In Which To File

Administrative Record, filed 4/2/12. s/Mills, AAG

4/3/12 Memorandum Of PII Fox Islands Wind, LLC In Support Of Motion For

Reconsideration, filed. s/Connors, Esq.

4/3/12 Hearing on Motion For Reconsideration scheduled for 5/9/12 at 10:30 a.m.

Copy of motion list mailed to Attys Brown and Connors, and AAG Mills.

4/10/12 ORDER on Motion For Enlargement Of Time I~ Which To File Administrative

Record, Murphy, J. (4/6/12)

GRANTED. The deadline for filing the administrative record is 5/1/12.

Copy to Attys Brown and Connors and AAG Mills.

4/12/12 ORDER on Petitioners' Motion To Amend Petition And Add Parties, Murphy, J.

No objection having been filed, the motion is GRANTED.

Copy to Attys Brown and Connors, and AAG Mills

4/12/12 Copy of letter from Office of Transcript Production to Alan Farago

regarding receipt of transcript order and estimated cost, filed 4/11/12.

4/13/12 Amended Petition For Review And Complaint, filed. s/Brown, Esq.

4/13/12 Petitioners' Motion For Future Course Of Proceedings, filed. s/Brown, Esq.

'ile 3

4/19/12 Petitioners' Objection To Respondent's Motion For Reconsideration, filed.

s/Brown, Esq.

4/26/12 Reply Memorandum In Support Of Motion For Reconsideration, filed 4/25/12.

s/Mills, AAG

5/8/12 Petitioners' Reply On Motion For Future Course Of Proceedings, filed

5/7/12. s/Brown, Esq.

Date of Page 4

Entry A_P_-_1_1_-_4_2_ _ _ _ _ _ _ _ __

Docket No. _ _ _

5/1/12 Administrative Record, filed. s/Mills, AAG

Partially Assented-To Motion To Omit Raw Data From The Filing Of

Record, filed. s/Mills, AAG

Department's Memorandum In Partial Opposition To Petitioners' Motion

To Specify The Future Course Of Proceedings, filed. s/Mills, AAG

5/2/12 Memorandum Of Party In Interest Fox Islands Wind, LLC In Partial

Opposition To Plaintiff-Petitioners' Motion To Schedule Future Course

Of Proceedings, filed. s/Connors, Esq.

5/4/12 State's Assented-To Motion For Enlargement Of Time In Which To File

Answer, filed. s/Mills, AAG

5/4/12 Letter indicating no transcript will be prepared, filed. s/Cheney,

Admin. Asst., Office of Transcript Production.

5/10/12 Motion hearing held 5/9/12, J. Murphy presiding. Atty Brown, AAG

Reid, and Atty Connors present. Tape 1543, Index 2220-4690.

Under advisement.

5/11/12 Respondents' Answer to Amended Petition For Review And Complaint,

filed. s/Mills, AAG

5/24/12 ORDER On Motion To Reconsider Order, Murphy, J. (5/23/12)

The Department of Environmental Protection's Motion for Reconsidera-

tion filed March 29, 2012 is DENIED. Any party wishing to request

or move for correction or modification of the record must do so by

June 8, 2012. If either the Department or Fox Island Wind, LLC

wish to file a motion to dismiss the amended complaint, any such

motion shall be filed by June 15, 2012. Fox Island Wind Neighbors

will have until July 3 to file any opposition to such motions.

Copy to Atty Brown, AAG Mills, and Atty Connors

5/24/12 ORDER on Petitioners' Motion For Future Course Of Proceedings,

Murphy, J. (5/23/12)

DENIED without prejudice. See Order issued this date on Motion For

Reconsideration.

Copy to Atty Brown, AAG Mills, and Atty Connors

5/24/12 ORDER on Department's Motion To Omit Raw Data From The Filing Of

Record, Murphy, J. (5/23/12)

The Department's motion to omit raw data, as identified in the Index

to the Record, is GRANTED, subject to the Parties' right to request

inclusion of raw dtat upon review of the record.

Copy to Atty Brown, AAG Mills, and Atty Connors

5/24/12 ORDER on Department's Motion For Enlargement Of Time To File

Answer, Murphy, J. (5/23/12)

GRANTED. The deadline for filing the answer is 5/11/12.

Copy to Atty Brown, AAG Mills, and Atty Connors

6/4/12 Application For Transfer To Business And Consumer Docket, filed

6/1/12. s/Connors, Esq.

Copy sent to BCD.

Date of AP-11-42

Page 5 Docket No.

Entry

Fox Islands Wind Neighbors v. DEP

6/5/12 Letter re: Order on Motion to Reconsider Order, taking of additional

evidence and future proceedings, and suggesting conference of counsel,

filed 6/4/12. s/Brown, Esq.

6/5/12 Letter objecting to transfer to Business and Consumer Docket, filed

6/4/12. s/Brown, Esq.

6/5/12 Petitioners' Motion For Modification Of The Record, filed 6/4/12.

s/Brown, Esq.

6/5/12 Letter in response to Attorney Brown's letter re: taking of additional

evidence, filed 6/5/12. s/Livesay, Esq.

6/8/12 Motion of Party-in-Interest Fox Islands Wind, LLC to Correct and Modify

the Record, filed 6/7/12. s/Livesay, Esq.

6/11/12 Respondent's Assented-To Motion For Enlargement Of Time In Which To File

Motions To Dismiss, filed. s/Reid, AAG, (GRANTED 6/11/12. Murphy, J.)

6/12/12 ORDER, Murphy, J. (6/11/12)

The Court has reviewed correspondence from parties FIWN and FIW, LLC of

5/31/12, 6/1/12, and 6/4/12 and agrees that a phone conference shall be

convened to provide mechanism for Court to consider Rule 80C(e) motions.

Clerk to schedule phone conference for June 22, 2012 if counsel are

available, or next available date.

Copy to Atty Brown, AAG Mills, Atty Connors

6/19/12 ORDER, Murphy, J.

The Court conferred with the parties by phone this date. Any party

wishing to file any motion relative to the administraive record with

respect to the Rule SOC counts in this action shall do so no later

than 14 days after the Business and Consumer Docket (Court) acts upon

Fox Island Wind's application or by 8/3/12, whichever occurs first.

Copy to Atty Brown, AAG Mills, Atty Connors

6/26/12 Motion of PII to Dismiss Counts III and IV of the Amended Petition for

Review and Complaint, filed 6/22/12. Request for hearing, filed 6/22/12.

s/Connors, Esq.

6/26/12 Respondents' Motion To Dismiss Independent Claims, filed 6/22/12.

s/Mills, AAG

6/29/12 ORDER, Horton, J. (6/26/12)

The case is NOT ACCEPTED for transfer to Business and Consumer Docket.

Copy to Atty Brown, AAG Mills, Atty Connors

7/3/12 Petitioners' Motion To Extend Time To Respond To Motions To Dismiss,

filed 7/2/12. s/Brown, Esq.

7/13/12 Reply of PII Fox Islands Wind, LLC to Petitioners' Qualified Objection

to• FiW',s' Motion to Modify the Record, filed 7/10/12. s/Connors, Esq.

7/13/12 Petitioners' Revised Additions To The Administrative Record, filed 7/5/12.

s/Brown, Esq. (//144 to 157)

Petitioners' Qualified Objection To FIW's Motion To Modify The Record,

filed 7/5/12. s/Brown, Esq.

Date of

Page 6 Docket No. AP-11-42

Entry

7 I 13/12 Response of PII Fox Islands Wind, LLC in Opposition to Petitioners'

Motion for Modification of the Record, filed 7/5/12. s/Livesay, Esq.

7/13/12 -Cover letter indicating the State has no objection to the relief

requested in the 6/6/12 motion of PII to correct and modify the

record, filed 7/5/12. s/Mills, AAG

-Revised Index to Record, filed 7/5/12. s/Mills, AAG (w/ corrections)

-Respondents' Memorandum of Law in Partial Opposition to Petitioners'

Request to Supplement the Record, filed 7/5/12. s/Mills, AAG

-Respondents' Assented-To Motion to Add Record Documents, filed 7/5/12.

s/Mills, AAG

-Revised Index to Record, filed 7/5/12. s/Mills, AAG

-Record documents 144 to 157, filed 7/5/12. s/Mills, AAG

7/19/12 Petitioners' Additions To The Administrative Record, filed. s/Brown,

Esq.

ile 4

7/19/12 -Petitioners' Objection To Motions To Dismiss Counts III and IV Of

Amended Complaint, filed 7/19/12. s/Brown, Esq.

-Petitioners' Motion For Leave To File Opposition In EX:cess Of 20 Pages,

filed. s/Brown, Esq.

-Petitioners' Response To FIW's Opposition To FIWN's Motion To Modify

The Record, filed. s/Brown, Esq.

7/19/12 ORDER, Murphy, J. (7/18/12) (Petitioners' Motion To Extend Time)

Petitioners have until 7/20/12 to file objection. However, due to

late presentation of this motion to undersigned, further extension

may be granted if requested.

Copy to Atty Brown, AAG Mills, Atty Connors

7/19/12 ORDER, Murphy, J. (Respondents' Motion To Add Record Documents)

The Respondents' unopposed motion to add two additional documents to

the administrative record, as set forth in the Department's revised

Index to the Record, is GRANTED.

Copy to Atty Brown, AAG Mills, Atty Connors

7/19/12 Motion hearing scheduled for 8/8/12 at 1:30 p.m.

Motion list mailed to Atty Brown, AAG Mills, Atty Connors

8/1/12 Respondents' Further Memorandum Of Law In Partial Opposition To

Petitioners' Request To Supplement The Record; Revised Index To

Record 4/20/12; Supplemental Record #158-163~ filed 7/20/12. s/Mills,AAG

8/1/12 Reply Of PII To Dismiss Counts III and IV Of The Amended Petition,

filed 7/25/12. s/Connors, Esq.

8/1/12 Respondents' Reply To Petitioners' Objection To Motion To Dismiss

Independent Claims, filed 7/25/12. s/Mills, AAG

8/1/12 ORDER, Murphy, J. (7/19/12)

Motion For Leave To File Opposition IN Excess Of 20 Pages is GRANTED.

Copy to Atty Brown, AAG Mills, Atty Connors

8/8/12 Motion hearing held. Murphy, J. presiding. Rufus Brown, Esq,

Amy Mills, AAG, and Catherine Connors, Esq. Tape 1579, Index 2140-5276.

Motions under advisement

Date of Page 7

Docket No. AP-11-42

Entry Fox Islands Wind Neighbors v. DEP

8/23/12 -Letter in response to 8/8/12 oral instructions of the Court indicating

the status of enclosed documents and status of remaining documents,

filed 8/20/12. s/Connors, Esq.

-Record Documents Identified for Inclusion by FIW, filed 8/20/12.

s/Connors, Esq.

8/23/12 Letter to update the Court on the parties' progress on resolving the

record issues, filed 8/20/12. s/Mills, AAG

8/24/12 Letter to follow up on letter of FIW dated 8/17/12 and of DEP dated

8/20/12, filed. s/Connors, Esq.

File 5

9/6/12 -Petitioners' Motion For The Taking Of Additional Evidence, filed.

s/Brown, Esq.

-Petitioners' Detailed Statement Of Evidence Intended To Be Taken, filed.

s/Brown, Esq.

9/7/12 Letter indicating Page 4 of Cassida Affidavit was inadvertently omitted,

with copy of Exhibit A to substitute, filed. s/Brown, Esq.

9/19/12 Documents numbered 152-175, with index, for inclusion in the Administrative

Record, filed 9/14/12. s/Connors, Esq.

9/19/12 Letter informing the Court of the status of the Administrative Record for

Counts I and II of the Amended Petition, Petitioners' Third Revised

Additions To Administrative Rec·ord (as of 9/6/12), Index 1fl52-175, filed.

s/Brown, Esq. (all filed 9/14/12)

9/28/12 Respondents' Memorandum In Opposition To Petitioners' Motion For The

Taking Of Additional Evidence, filed 9/25/12. s/Mills, AAG

9/28/12 Memorandum Of Party-In-Interest Fox Islands Wind, LLC In Opposition To

Petitioners' Motion For The Taking Of Additional Evidence, filed 9/26/12.

s/Connors, Esq.

9/28/12 Petitioners' Additions to the Administrative Record (Index, Petitioners'

Third Revised Additions, Exhibits 1-377 in two volumes), filed. s/Brown,Esq

10/4/12 -Petitioners' Reply Memorandum On Motion For The Taking Of Additional

Evidence, filed 10/3/12. s/Brown, Esq.

-Petitioners' Motion For Leave To File A Reply Memorandum In Excess Of

7 Pages, filed 10/3/12. s/Brown, Esq.

11/1/12 ORDER ON MOTIONS TO DISMISS INDEPENDENT CLAIMS, Murphy, J.

The Court DISMISSES Count III and Count IV of the amended petition.

Copy to Atty Brown, AAG Mills, Atty Connors

11/6/12 Motion hearing scheduled for 11/28/12.

List mailed to Atty Brown, AAG Mills, and Atty Connors on 11/2/12.

11/15/12 -Petitioners' Motion To Amend Motion For The Taking Of Additional Evidence,

filed 11/13/12. s/Brown, Esq.

-Petitioners' Motion For Clarification And/Or Reconsideration Of Order

Dismissing Counts III and IV OF Petitioners' Amended Petition For Review,

filed 11/13/12. s/Brown, Esq.

-Petitioners' Motion For Expedited Review, filed 11/13/12. s;Brown, Esq/

Date of AP-11-42

Entry Page S Docket No.

11/15/12 ORDER, Murphy, J. (11/14/12)

Motion GRANTED. (Petitioners' Motion For Leave To File A Reply

Memorandum In Excess Of 7 Pages)

Copy to Atty Brown, AAG Mills, Atty Connors

11/16/12 Respondents' Memorandum In Opposition to Petitioners' Motions For

Clarification And/Or Reconsideration; Expedited Review; And Motion

To Amend Motion For Taking Of Additional Evidence, filed 11/15/12.

s/Mills, AAG;

11/26/12 Proposed Consent Order and letter indicating resolution of several

outstanding issues, allowing appeal to go forward on a briefing of

the merits, filed. s/Mills, AAG

11/27 I 12 CONSENT ORDER, Murphy, J.

On Petitioners' Motions for Clarification and/or Reconsideration;

Expedited Review; Motion to Amend Motion for Taking of Additional

Evidence; Motion for the Taking of Additional Evidence; and Briefing

Schedule.

See Consent Order regarding motions. Hearing on 11/28/12 is canceled.

Briefing deadlines: Petitioners shall file by 1/25/13. Respondents

shall file within 30 days after service of Petitioners' brief.

Party-in-Interest shall file within 10 days after service of Respondents 1

brief. Petitioners may file a reply 14 days after service of the brief

of Party-in-Interest.

Copy to Atty Brown, AAG Mills, Atty Connors

!i'ile 6 1/29/13 Petitioners' Rule SOC Brief, Petitioners' Rule 80C Brief Appendix,

filed 1/25/13. s/Brown, Esq.

2/26/13 Brief of Respondent Department of Environmental Protection, filed

2/25/13. s/Reid, AAG

3/7/13 Brief Of Party-In-Interest Fox Island Winds, LLC, filed. s/Connors, Esq.

Fox Islands Wind LLC's A~pendix, filed.

3/27/13 -Petitioners' Rule SOC Reply Brief, filed 3/25/13. s/Brown, Esq.

-Petitioners' Rule SOC Brief Supplemental Appendix, filed 3/25/13.

s/Brown, Esq.

4/12/13 Letter requesting hearing date for oral argument in June, filed.

s/Brown, Esq.

5/24/13 Oral argument scheduled 7/15/13 at 10:00 a.m.

Copy of motion list and hearing notice to Atty Brown, AAG Mills,

Atty Connors

6/25/13 Motion and Incorporated Memorandum of Law of Party-In-Interest Fox

Islands Wind, LLC to Dismiss Petition for Review on Mootness Grounds,

filed 6/19/13. s/Connors, Esq.

7/10/13 Petitioners Objection to Motion to Dismiss for Mootness, filed. s/Brown

7/15/42 Reply in Support of Motion to Dismiss Petition For Review on Mootness

Grounds, filed 7/11/13. s/Connors, Esq.

Date of

Page 9 Docket No. AP-11-42

Entry

Fox Islands Wind Neighbors v. DeP

7/18/13 Oral argument held 7/15/13, J. Murphy presiding.

Rufus Brown, Esq., Gerald Reid, AAG, and Catherine Connors, Esq. for

parties.

Tape 1725, Index 4039-7462, and Tape 1726, Index 50-503.

Under advisement.

7/24/13 Notice of Setting of Settlement Conference- ORDER, Humphrey, J.

Settlement conference set on 8/14/13 at 9:00 before J. Thomas Humphrey

at the Cumberland County Superior Court.

Copy to all parties by Cumberland County Clerk's Office on 7/23/13.

8/8/13 File #6 and Record filed 8/20/12 and 9/14/12 sent to J. Humphrey.

8/30/13 Notice of Setting of Settlement Conference- ORDER, Humphrey, J.

Settlement conference set on 9/16/13 at 9:00 before J. Thomas Humphrey

at the Cumberland County Superior Court.

Copy to all parties by Cumberland County Clerk's Office on 8/30/13.

9/19/13 Notice of Setting of Settlement Conference- ORDER, Brodrick, J.

Settlement conference set on 10/9/13 at 9:00 before J. Thomas Humphrey

at the. Cumberland County Superior Court.

Copy to all parties by Cumberland County Clerk's Office on 9/17/13.

9/24/13 Settlement Conference held on 8/14/13. To be continued.

9/24/13 Settlement Conference scheduled on 9/16/13 was postponed to October.

10/10/13 Settlement Conference scheduled on 10/9/13 was postponed to 10/16/13 •.

12/5/13 File #6 and Record filed 8/20/12 and 9/14/12 returned from J. Humphrey.

3/11/14 ORDER ON RULE 80C PETITION, Murphy, J. (3/10/14)

The Court DENIES FTW's motion to dismiss the Petition on mootness

grounds.

The Court DENIES the Petitioners' claims that their rights to equal

protection and their First Amendment rights have been violated.

The Court REVERSES the Decision of the Department of Environmental

Protection dated June 30, 2011, and REMANDS this matter to the Department

for issuance of a CCO consistent with the findings of the Department's

expert that the violation occurred as a result of "significant vertical

and directional wind shear" and is further instructed to require an

operational protocol which would prevent further violations of the

noise rules.

Finally, the Court REMANDS this matter to the Department to issue

further findings of fact, or otherwise articulate its rationale as to

the complaint protocol implemented or maintained after the Department

found violations of the noise standards bv- FIW. Unless otherwise

agreed by the parties, the Department shall have 90 days from the date

of this order to issue the findings or explanation regarding the

ongoing complaint protocol.

Copy to Atty Brown, AAG Mills, AAG Reid, Atty Connors.

Copy to Repositories.