State of Maine v. Dubois Livestock, Inc.

STATE OF MAINE SUPERIOR COURT

YORK, SS. CIVIL ACTION

DOCKET NO. CV-15-262

STATE OF MAINE and

:tv1A.INE DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Plaintiffs,

v. ORDER

DUBOIS LIVESTOCK, INC., and

RANDRICK TRUST,

Defendants.

I. Background

A. Procedural History

This action was initiated by the Maine Attorney General and the Maine

Department of Environmental Protection ("the DEP") (plaintiffs collectively refened to

as "the State") against Dubois Livestock, Inc. ("Dubois") and the Randrick Trust ("the

Trust"). Dubois operates a composting operation licensed by the DEP. Plaintiffs seek

declaratory and injunctive relief and move for a preliminary injunction ordering the

defendants to allow DEP to conduct an inspection of the composting facility. The DEP

received numerous odor nuisance complaints about the Dubois composting facility

between the spring and fall of 2015, and have received several complaints this year.

1

Before the court is the plaintiffs' motion for preliminary injunction and motions to

dismiss filed separately by Dubois and the Trust. This matter was heard on May 2, 2016.

The parties presented legal arguments, witness testimony, and submitted several exhibits.

Considering admissible evidence submitted and the arguments of counsel, the court finds

and rules as set forth below.

B. Facts

Dubois Livestock, Inc. ("Dubois") is a corporation organized under the laws of

Maine doing business as Dubois Composting Facility ("the composting facility") at 2

Irving Road in Arundel. Dubois composts pursuant to a licensed issued by the Maine

Department of Environmental Protection ("the DEP"). The original conditional license

was granted on December 20, 1999, allowing Dubois to operate a Type I residual

compost facility. (Compl. Ex. A.) 1 The license permitted Dubois to annually compost

1,733 tons of fish waste and 3,467 tons of horse manure on a 50' x 100' concrete pad.

(Id.) The license was most recently amended in January 2013 to process 29,000 total tons

of waste material annually and to add a second 120' x 250' concrete pad. (Compl. Ex. C.)

In May 2015, the Dubois composting facility came to the attention of the DEP

after citizens complained of smells that were believed to be wafting from the property.

On June 15, 2015, DEP Environmental Specialist Carla Hopkins ("Hopkins") emailed

Dubois stating that she and DEP Environmental Specialist Mike Clark ("Clark") would

be conducting a "routine inspection" of the composting facility on June 18, 2015.

(Compl. Ex. E.) Clark is the DEP project manager overseeing the Dubois composting

facility. Dubois requested an alternative inspection date. (Id.) Hopkins and Clark

1

The court may consider the DEP license decisions attached to the complaint because they

are public records referred to in the complaint and their authenticity has not been disputed. See

Moody v. State Liquor & Lottery Comm 'n, 2004 ME 20, ~ 14, 843 A.2d 43 .

2

conducted an inspection on June 24. (Clark Aff. ,r 19.) The DEP received additional

complaints during the summer of 2015 through October 2015. Dubois rebuffed DEP

requests to conduct site visits and inspections. (Compl. ,r,r 20-33.)

II. Discussion

A. Motion to Dismiss

In ruling on a Rule l 2(b )( 6) motion to dismiss, the court deems the facts alleged

in the complaint admitted and construes them "in the light most favorable to the plaintiff'

to determine whether the pleading "alleges facts that could entitle the plaintiff to relief

under some legal theory." Dragomir v. Spring Harbor Hosp., 2009 ME 51, ,I 15, 970

A.2d 310 (citation omitted). The motion shall not be granted unless it is "beyond doubt

that [the] plaintiff is entitled to no relief under any set of facts that might be proven in

support of the claim." Id.

1. The Trust's Motion to Dismiss Arguments

The Randrick Trust ("the Trust") moves to dismiss on the grounds that the Trust

granted an easement to Dubois to use the Randrick fields and therefore lacks control over

composting facility and is an improper party. 2 Plaintiffs joined the Trust to access

Randrick fields in an effmi to determine the source of odors from the Dubois composting

facility. They maintain the Trust is a necessary party under Rule 19 because without the

Trust, DEP may not be able to fully inspect the composting facility and detennine the

odor source. See M.R. Civ. P. 19(a)(l) (a party is necessary to the action if "in the

person's absence complete relief cannot be accorded among those already parties"). At

2

The Trust's other arguments mirror several of those pressed in more detail by Dubois, and

are more properly addressed in considering the Dubois motion.

,..,

.)

oral argument, the Trust agreed that if DEP has authority to inspect the Dubois

composting facility, then the Trust will not object to an inspection of the fields. If true,

then the Trust's joinder will be um1ecessary in order to afford complete relief, and the

Trust may be dismissed from the case.

2. The Dubois Motion to Dismiss Arguments

Dubois moves to dismiss on the grounds (1) injunctive relief is not a standalone

cause of action, (2) there are no violations of the DEP-issued license or applicable law

that entitle plaintiffs to the injunctive relief they are seeking, (3) DEP cannot conduct an

inspection without consent or an administrative search warrant, (4) the statutory authority

DEP relies upon is an unconstitutional violation of their Fourth Amendment rights, (5)

DEP lacks jurisdiction to regulate compost, and (6) the plaintiffs have failed to join

necessary parties.

3. Injunctive Relief

The complaint alleges two causes of action: Count I seeks declaratory relief that

the plaintiffs have the authority to access defendants' property to conduct an inspection

of the composting operation; Count II essentially seeks injunctive relief restraining

defendants from unlawfully interfering with the DEP's authority as declared in Count I.

(Compl. ,i,i 34-37.) Although an injunction is an available remedy under Count I, nothing

prevents the State from pleading in this fashion and the court is unable to discern any

practical consequence that would flow from dismissing Count II. See Horton &

McGehee, Maine Civil Remedies § 5.5(:f)(2) at 121 (4th ed. 2004) ("The State of Maine

through the Attorney General and its departments and agencies may sue for injunctive

4

relief against violations of statute or regulation.") The motion to dismiss on this basis is

denied.

4. DEP Licensing and Inspection Authority

DEP has authority to enter property to conduct inspections pursuant to the

following statute:

Employees and agents of the Department of Environmental Protection

may enter any property at reasonable hours and enter any building with the

consent of the property owner, occupant or agent, or pursuant to an

administrative search wan-ant, in order to inspect the property or structure,

including the premises of an industrial user of a publicly owned treatment

works, and to take samples, inspect records relevant to any regulated

activity or conduct tests as appropriate to determine compliance with any

laws administered by the department or the terms and conditions of any

order, regulation, license, permit, approval or decision of the

commissioner or of the board.

38 M.R.S. § 347-C; 06-096 C.M.R. ch.2(5). More specific authority appears pursuant to

the Waste Management Act:

4-A. Right of Entry. For the purposes of enforcing any provision of this

Act or of developing or enforcing any rule authorized by this Act, any

duly authorized representative or employee of the department may, upon

presentation of appropriate credentials, at any reasonable time:

A. Enter any establishment or other place which is not a residence, or any

conveyance, where or in which hazardous or solid waste, sludge or

septage is generated, handled or transported.

B. Inspect and obtain samples of any hazardous or solid waste, sludge or

septage, including samples from any conveyance in which hazardous or

solid waste, sludge or septage is being or has been transported, as well as

san1ples of any containers or labels; and

C. Inspect and copy any records, reports, information or test results

relating to hazardous or solid waste, sludge or septage.

5

38 M.R.S. § 1304(4-A)(A)-(C). The regulations adopt similar language. See 06-096

C.M.R. ch. 400(8)-(8)(A) ("Pursuant to 38 M.R.S .A. §§ 347-C and 1304(4-A), any duly

authorized agent or employee of the Department, upon presentation of appropriate

credentials, may enter any property at reasonable hours and may enter any building with

the consent of the property owner, occupant or agent in order to: Inspect the prope11y

and/or inspect or obtain samples of any solid waste including samples from any

conveyance in which solid waste is being or has been transported, as well as samples of

any containers or labels.")

The State seeks injunctive relief allowing DEP officials to enter the Dubois

property in order to inspect the composting facility and to take samples. The Dubois

motion to dismiss is not rooted in the deficiency of the allegations contained within the

complaint, but rather raises purely issues of law: DEP 's authority as governed by the

foregoing statutes and regulations.

a. Violation

Defendants first argue that in the absence of probable cause a violation occurred,

DEP has no authority to inspect. This contention lacks merit because the unambiguous

language of Section 347-C allows DEP to inspect and test samples "as appropriate to

determine compliance with any lmvs administered by the department or the terms and

conditions of any order, regulation, license, pe1mit, approval or decision of the

commissioner or of the board." 38 M.R.S. § 347-C (emphasis added). A known violation

of the law or license is plainly not a condition precedent to the DEP's authority to inspect

and to take and test san1ples.

b. Whether Entry Requires Consent or a Warrant

6

Defendants' next point has more force : they argue that even if a violation is not

required, DEP must have either consent or an administrative search warrant to inspect.

See 38 M.R.S. § 347-C. The State counters that defendants misconstrue Section 347-C;

consent or administrative search warrants are required only where the DEP seeks to enter

buildings. The State argues the only qualification upon the DEP's authority to enter

property is that the entry must occur "at reasonable hours."

The cardinal rule of statutory construction is to effectuate the legislature's intent.

In re Spring Valley Dev., 300 A.2d 736, 741 (Me. 1973) . The court first examines "the

plain meaning of the statutory language," considering "the language in the context of the

whole statutory scheme, and construe[s] the statute to avoid absurd, illogical, or

inconsistent results." Chadwick-BaRoss, Inc. v. City of Westbrook, 2016 ME 62, ~ 11, _

A.3d _. The court must give meaning to all the words of the statute to avoid

constructions that would "render some language mere surplusage." See Dickau v. Vt. ll1ut.

Ins. Co., 2014 ME 158, 1 22, 107 A.3d 621. "In determining a statute's ' practical

operation and potential consequences, ' [courts] may reject any construction that is

' inimical to the public interest' or creates absurd, illogical, unreasonable, inconsistent, or

anomalous results if an alternative interpretation avoids such results." Id.~ 21.

The analysis begins with the statutory language. Section 34 7-C states :

"Employees and agents of the Department of Enviromnental Protection may enter any

property at reasonable hours and enter any building with the consent of the property

owner, occupant or agent, or pursuant to an administrative search warrant." 38 M.R.S . §

347-C. At first blush, the defendants' interpretation is plausible: DEP inspections must

occur at a reasonable time and with either (1) consent or (2) an administrative warrant.

7

Yet when read more closely and examined together with 38 M.R.S. § 1304(4-A), DEP ' s

authority to enter property without entering buildings or residences is restricted only by

the requirement the entry occur at a "reasonable time." See 38 M.R.S. § 1304(4-A)-(4­

A)(A) ("[A]ny duly authorized representative or employee of the depaiiment may, upon

presentation of appropriate credentials, at any reasonable time . . . Enter any

establishment or other place which is not a residence, or any conveyance, where or in

which hazardous or solid waste, sludge or septage is generated, handled or transported.")

(emphasis added); 38 M.R.S. § 347-C ("Employees and agents of the Depaiiment of

Environmental Protection may enter any property at reasonable hours and enter any

building with the consent of the property owner, occupant or agent, or pursuant to an

administrative search warrant.") (emphasis added).

Under this interpretation, the "and" that appears in the language of Section 347­

C-"may enter any property at reasonable hours and enter any building"- separates the

operative restriction to enter property (a reasonable hour) from the operation restrictions

for authority to enter buildings on the prope1iy (either consent or a wanant). See 1 M.R.S.

§ 71(2) ("The words 'and' and 'or' are conve1iible as the sense of a statute may

require."); see also Liberty Ins. Underwriters, Inc. v. Estate ofFaulkner, 2008 ME 149, ~

17, 957 A.2d 94. A building situated on the property is necessarily part of the property.

To accept defendants' interpretation would render the language separately addressing

buildings mere surplusage. See Dickau, 2014 ME 158, ~ 22, 107 A.3d 621. The consent

or administrative warrant requirement therefore applies only to buildings on prope1iy, not

the property as a whole.

8

By statute, DEP officials have the authority to enter property to inspect and ensure

compliance with the solid waste laws and rules provided they do so at a "reasonable

hour." 38 M.R.S. § 1304(4-A); 38 M.R.S. § 347-C. Neither consent nor an administrative

warrant is required by the statutory scheme.

5. Constitutionality

Dubois premises the constitutional aspects of the motion to dismiss upon the

argument that DEP lacks authority to conduct an inspection absent consent or probable

cause of a violation that would support an administrative search warrant. In so far as

those arguments derive from the statutes above, those contentions fail.

The constitutional issues are therefore reduced to (1) the constitutional protection

afforded to the Dubois composting facility and Randrick Trust fields, if any, and (2)

whether the statute, which only limits DEP's property inspection authority to a

"reasonable time" violates the Fourth Amendment.

a. The Constitutional Protection Afforded the Property

"One's claim of protection under the Fourth Amendment depends not upon a

property right in the invaded place or aiiicle of personal property but rather upon whether

the person has a legitimate expectation of privacy in the invaded place or thing."

State v. Philbrick, 436 A.2d 844, 854 (Me. 1981). "Fourth amendment protection extends

not only to the interior of a dwelling but also to the 'curtilage,' that is, to the land

inunediately surrounding and associated with the home." State v. Boyington, 1998 ME

163, ~ 6, 714 A.2d 141. Areas outside the cmiilage, described as "open fields" are

9

entitled to no Fourth Amendment protection at all. See State v. Cayer, 6 17 A.2d 208, 210

(Me. 1992).

The Law Court has enunciated the following factors to determine whether an area

is constitutionally-protected curtilage, none of which are dispositive: "( l ) proximity of

area claimed to be curtilage to the home; (2) whether area claimed to be curtilage is

included within an enclosure surrounding the home ; (3) nature of the uses to which the

area is put; and (4) steps taken by the resident to protect the area from observation by

people passing by." Id. ~ 7.

Defendants argue that the area DEP seeks to inspect is constitutionally-protected

and therefore DEP's request to conduct warrantless inspections is unlawful. Defendants'

arguments are not rooted in assertions about their exnectations of nrivacv in the

- .&.. .&. .I

composting facility, but rather the perceived unconstitutionality of allowing DEP to enter

the property without a warrant. (Def.' s Mot. Dismiss 8-9.) Because the area DEP seeks to

inspect is largely unenclosed and situated far from a residence or an enclosed structure,

the court would conclude that the area is an "open field" outside the constitutional

protection afforded to curtilage. See Dep 't of Envtl. Prat. v. Emerson, 616 A.2d 1268 ,

1271 (Me. 1992) (concluding unenclosed area of landfill covered with tires and debris

was "open field" outside protection of the Fourth Amendment).

But in light of the fact that the Dubois composting facility is a commercial

operation licensed by the state, the court is persuaded that the proper analysis should

examine the nature of the commercial enterprise and the applicable regulatory

framework.

b. Regulated Commercial Properties

10

The U.S. Supreme Court has noted that although businesses can have an

expectation of privacy in the commercial premises, such an expectation "is different

from, and indeed less than, a similar expectation in an individual's home. This

expectation is particularly attenuated in commercial property employed in 'closely

regulated' industries." New York v. Burger, 482 U.S. 691, 700 (1987). "Under Burger, a

warrantless inspection of a pervasively regulated business is permitted if: '(1) there is a

substantial government interest that informs the regulatory scheme pursuant to which the

inspection is made; (2) the inspection is necessary to further the regulatory scheme; and

(3) the statutory or regulatory scheme provides a constitutionally adequate substitute for a

warrant."' State v. Melvin, 2008 ME 118, ~ 8, 955 A.2d 245 (citation omitted).

The first two Burger prongs are clearly met: the state has a substantial interest in

the regulation of solid wastes to protect human health and the environment, and

inspections are necessary to ensure compliance with statutes, regulations, and the

conditions of a solid waste license. See Afelvin, 2008 ME 118, 1 8, 955 A.2d 245. The

Legislature recognized the need for regulatory authorities to have access to solid waste

facilities during ordinary operations in order to ensure compliance. See State v.

McGillicuddy, 646 A.2d 354, 355 (Me. 1994) ("[W]arrantless inspections without prior

notice have long been standard in heavily regulated industries.").

Constitutionality thus turns on the third Burger prong. The Law Court has stated

"[t]he purpose of the third prong of the Burger test is to ensure that any warrantless

inspection program is sufficiently certain and regular so that a business subject to the

program knows that its prope1iy is subject to periodic inspections undertaken for a

specific purpose, subject to time, place, and manner limitations." Id. ~ 9.

11

Here, Dubois could have foreseen (and in fact experienced) inspections of the

composting facility. By applying for and obtaining a license with a host of laws,

regulations, and conditions that apply to facilities that accept solid waste, Dubois had a

lowered expectation of privacy in the commercial premises. The Legislature did not

confer unfettered power and discretion upon DEP to search property inside and out.

Instead, authorities may carry out lawful inspections for the purposes of enforcing the

statute, regulations, and conditions of a license. The statutes and impose a "reasonable

time" requirement and specifically protect areas on property with a heightened

expectation of privacy, such as residences, 38 M.R.S. § 1304(4-A)-(4-A)(A), and

buildings, 38 M.R.S. § 347-C. Although the statute does not limit inspection frequency,

the Law Court has rejected this as grounds to invalidate an otherwise valid regulatory

inspection program. See McGillicuddy, 646 A.2d at 355.

In sum, the Legislature curtailed the time, place, and manner of the DEP's

authority to conduct inspections, balancing the state's interest in compliance against the

licensee's privacy interest. The defendants have not met their burden to establish that the

wan-antless inspection program is unconstitutional. See State v. Letalien, 2009 ME 130, ~

15, 985 A.2d 4 (stating statutes are presumed constitutional, the burden rests upon the

challenger to establish unconstitutionality, and courts must make every effort to construe

a statute to avoid an unconstitutional interpretation).

6. Regulatory Definitions of "Com.post" and Jurisdiction

Defendants next argue that while DEP has authority over solid waste, it lacks

jurisdiction over compost and therefore cannot inspect the composting facility.

Defendants contend that compost is an "agricultural product" and as such, is subject to

12

the exclusive jurisdiction of the Department of Agriculture. See 7 M.R.S. § 152 (defining

"agricultural products" to include "manure and compost").

Solid waste is defined as follows:

"Solid waste" means useless, unwanted or discarded solid material with

insufficient liquid content to be free-flowing, including, but not limited to,

rubbish, garbage, refuse-derived fuel, scrap materials, junk, refuse, inert

fill material and landscape refuse, but does not include hazardous waste,

biomedical waste, septage or agricultural wastes. The fact that a solid

waste or constituent of the waste may have value or other use or may be

sold or exchanged does not exclude it from this definition.

38 M.R.S. § 1303-C(29).

If pure, finished manure and compost were indeed the only materials present at

the Dubois composting facility , then this argument might warrant further consideration.

The undisputed facts, however, establish that Dubois accepts solid waste that is, through

a particular process, broken down into compost over time. Dubois converts that waste

into compost pursuant to a license issued by the DEP. As the plaintiffs point out, whether

the odors have emanated solely from materials outside the DEP' s jurisdiction cannot be

determined until the DEP has the opportunity to inspect the facility and possible odor

sources.

7. Necessary Parties

Dubois lastly argues that plaintiffs have failed to join necessary parties, namely

Randy Dubois, Rick Dubois, Marcel Dubois, and Sol Fedder, all of whom hold positions

as officers of Dubois Livestock, Inc. The comi is unable to see how their absence from

the present litigation precludes effective relief. See M.R. Civ. P. 19. Those individuals

may wish to intervene if they believe their individual interests are at risk. See M.R. Civ.

P. 24 . At this stage, however, DEP is only seeking to conduct an inspection pursuant to a

13

permit issued to Dubois and affecting the Trust properties. Those individuals are

um1ecessary to adjudicate the matter and the motion to dismiss on this ground is denied.

8. Motions to Dismiss : Conclusion

In light of the foregoing, the court will deny the motion to dismiss filed by

Dubois. DEP has authority to inspect pursuant to the statute, which is a constitutional

exercise of the State's regulatory powers. The court will dismiss the Trust conditioned

upon the Trust permitted DEP to access the Randrick fields.

The court next proceeds to the plaintiffs' motion for preliminary injunction.

B. Preliminary Injunction Standard

A party seeking a preliminary injunction "must demonstrate that (1) it will suffer

irreparable injury if the injunction is not granted; (2) such injury outweighs any harm

which granting the injunctive relief would inflict on the other party; (3) it has a likelihood

of success on the merits (at most, a probability; at least, a substantial possibility); and (4)

the public interest will not be adversely affected by granting the injunction." Bangor

Historic Track, Inc. v. Dep't ofAgric., Food & Rural Res., 2003 ME 140, ,! 9, 837 A.2d

129.

By statute, the Attorney General has authority to institute injunction proceedings

to enjoin violations of law or any DEP "order, regulation, license, permit, approval,

administrative consent agreement or decision of the board or commissioner or decree of

the court." 38 M.R.S. § 348(1). Where the Attorney General has such statutory authority

to further public policy and to enjoin violations, the court need neither balance the

equities nor find irreparable harm to grant the injunction. See State v. Sirois, 478 A.2d

1117, 1121-22 (Me. 1984) (citations omitted).

14

The court concludes that granting the injunction will not adversely affect the

public interest. The only consideration is thus whether the State has established a

likelihood of success on the merits. Significant is the fact the plaintiffs only request an

injunction to enjoin the defendants from interfering with DEP's authority to enter,

inspect, collect samples, and test those samples. In opposition to the motion for

preliminary injunction, Dubois raises the same arguments raised in the motion to dismiss:

that injunctive relief is not an independent claim, DEP lacks authority to inspect without

a suspected violation, DEP must have either consent or an administrative warrant to

inspect, DEP lacks jurisdiction to regulate compost, and the plaintiffs failed to join

necessary parties. These arguments fail for the reasons stated in the court's analysis to the

motion to dismiss.

The plaintiffs have established a likelihood of success on the merits and thus the

preliminary injunction will be granted.

III. Conclusion and Order

The comi concludes that notwithstanding the defendants' arguments and

objections, DEP has the authority to inspect, provided the inspection occurs at a

"reasonable time." To date, DEP has made efforts to notify Dubois of inspections in

advance. The objections raised by the defendants lack merit and will not be valid grounds

to deny DEP access to the composting facility. If Dubois continues to resist DEP efforts

to inspect in violation of this court's order, the plaintiffs entitled to commence contempt

proceedings and seek appropriate relief. M.R. Civ. P. 66; see also 3 Harvey, _Maine Civil

Practice , Rule 66 Contempt Proceedings at 341 (3d ed. 2012). In the event of such a

15

proceeding, the court will entertain punitive and remedial sanctions, including, but not

limited to, imposing fines and fees. See id.

The entry shall be:

The motion to dismiss filed by defendant Dubois is DENIED; the

defendant Trust's motion to dismiss is granted on the condition that the

Trust consents to a lawful DEP inspection of the Randrick fields. The

motion for preliminary injunction is GRANTED. DEP has lawful

authority to inspect the composting facility and fields, provided said

inspection occur at a "reasonable hour." Defendants are hereby

ENJOINED from denying DEP access to the prope1iy. Any violation of

this order shall be grounds for Rule 66 contempt proceedings and

sanctions.

SO ORDERED.

DATE: May lL, 2016

(\Q

John O'Neil, Jr.

Justice, Superior Court

16