Dubois v. Maine Department of Agriculture

STATE OF MAINE SUPERIOR COURT

YORK, ss. Civil Action

DOCKET NO. AP-17-0019

MARCEL DUBOIS, )

)

RICK DUBOIS, )

) ORDER ON RESPONDENT'S

SOL FEDDER, ) MOTION TO DISMISS

)

and )

)

RANDY DUBOIS )

)

Petitioners, )

)

V. )

)

MAINE DEPARTMENT OF )

AGRICULTURE, CONSERVATION )

AND FORESTRY, )

)

Respondent.· )

I. BACKGROUND

This action arises out of a 2015 investigation by respondent Maine Department of

Agriculture, Conservation and Forestry ("DACF") into odor complaints against Dubois Livestock,

Inc. ("Dubois Livestock"), a compost facility in Arundel, Maine. Petitioners Marcel Dubois, Rick

Dubois, Randy Dubois, and Sol Fedder (collectively, the "Petitioners") allege that the DACF failed

or refused to meet regulatory notice requirements during the investigation.

Petitioners filed the instant Petition on July 28, 2017. They allege that the DACF failed or

refused to act independently from the Maine Department of Environmental Protection ("DEP")

while investigating the complaints; failed to protect their right to farm under the Maine Agriculture

Protection Act, 7 M.R.S. Chapter 6; and committed an obstruction of justice by failing to

"decline ... to act in concert with [the DEP]" in the creation of a letter sent from the DACF to

Dubois Livestock on January 19, 2016.

Specifically, Petitioners reference a hearing in this court on December 14, 2016 pertaining

to a separate case, AP-16-21, where they found out that the DACF had received numerous

complaints, but not notified Petitioners of them. (Pet. ,r 5.) The Petition further alleges that the

DACF failed to notify the Petitioners of"complaints [the DACF] received from November 1, 2014

through July 26, 2017," two days before the Petition was filed. (Pet. ,r,r A, B, C, 5.)

On August 10, 2017, respondent filed the instant motion to dismiss, arguing that the appeal

is untimely and that, even if the appeal was timely, the claims, aside from those related to the

DACF's failure to comply with notice requirements, are unreviewable enforcement decisions.

Accompanying this motion, respondent submitted the affidavit of Matthew Randall, the

Agricultural Compliance Supervisor for the DACF. On September 5, 2017, Petitioners opposed

the motion, and also moved to strike the affidavit. Respondent then replied to Petitioners'

opposition, asserting that it was untimely and that Petitioners had waived all objections to their

motion to dismiss.

II. STANDARD OF REVIEW

In reviewing a motion to dismiss, courts "consider the facts in the complaint as ifthey were

admitted." Bonney v. Stephens Mem. Hosp., 2011 ME 46, ,r 16, 17 A.3d 123, 127. The complaint

is viewed "in the light most favorable to the plaintiff to determine whether it sets forth elements

of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal

theory." Id. (quoting Saunders v. Tisher, 2006 ME 94, ,r 8, 902 A.2d 830). "Dismissal is warranted

when it appears beyond a doubt that the plaintiff is not entitled to relief under any set of facts that

he might prove in support of his claim." Id.

III. DISCUSSION

a. Timeless of Petitioners' Opposition

Rule 7(c)(2) of the Maine Rules of Civil Procedure provides that a party opposing a motion

must file an opposition no later than 21 days following the filing of the motion. M.R. Civ. P.

7(c)(2). Petitioners argue that an additional three d~ys is added to this period under Rule 6(c). This

Rule provides, "[w]henever a party has the right or is required to do some act or take some

proceedings within a prescribed period after the service of a notice or other paper upon the party

and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed

period." M.R. Civ. P. 6(c). However, this Rule does not apply to Rule 7(c)(2) because that Rule

begins the time period at the time of filing, not of service. See Scott Dugas Trucking & Excavating

v. Homeplace Bldg. & Remodeling, 651 A.2d 327,329 (Me. 1994) ("The instant case, however, is

not a situation in which the prescribed period runs from the date of service. Rather, Rule 4B(c)

requires trustee process to be 'served within 30 days after the date of the order approving the

attachment.' The plain words of this rule lead us to conclude that the additional three days after

service by mail ... does not apply to this situation." (emphasis in original)).

A party that files an untimely opposition is deemed to have waived all objections to the

motion. M.R. Civ. P. 7(c)(3). Thus, "[w]hen a motion is unopposed, the court need not reach the

merits of the motion because, under Rule 7(c)(3), the adverse party has waived any objection to

it." Petit v. Lumb, 2014 ME 117, ,r 8, 103 A.3d 205 (citing Giguere v. Great At!. & Pac. Tea Co.,

526 A.2d 1383, 1385 (Me. 1987)). However, this waiver "does not obligate the court to act

favorably on the motion." Id.

In the instant case, respondent's motion was filed on August 10. Thus, Petitioners were

required to file an opposition by August 31, 2017, 21 days following the time of filing. Because

Petitioners did not file their opposition until September 5, it is untimely. Consequently, Petitioners

have waived all arguments related to respondent's motion to dismiss. Thus, this court need not

address the merits of respondent's motion and hereby dismisses the instant petition.

b. Timeliness of Petitioners' Appeal

The Maine Administrative Procedure Act, 5 M.R.S.A. §§ 8001 et seq. ("AP A") governs

judicial review of agency action. M.R. Civ. P. 80C. Pursuant to Section 11002 of the AP A, an

aggrieved individual has 40 days from the date of an agency decision to file a petition for review.

5 M.R.S.A. § 11002(3). When a petition concerns agency inaction, the petition must be filed within

six months of the time within which the action should have occurred. Id. 1

These time limits for are jurisdictional Fournier v. Dep't ofCorr., 2009 ME 112, ,r 2, 983

A.2d 403 (citing Davric Me. Corp. v. Bangor Historic Track, Inc., 2000 ME 102, ,r 11, 751 A.2d

1024). Additionally, the limits "must be applied uniformly and consistently to parties represented

by counsel and self-represented parties alike." Id. (citing Brown v. Thaler, 2005 ME 75, ,r 8, 880

A.2d 1113).

A motion to dismiss on the -basis of noncompliance with the statute of limitations is a

"'facial challenge to the timeliness ofplaintiffs complaint,' and is properly considered under M.R.

Civ. P. 12(b)." Chiapetta v. Clark Assocs., 521 A.2d 697, 700 (Me. 1987) (quoting Patten v.

Milam, 468 A.2d 620, 621-22 (Me. 1983)). Thus, the sufficiency of the complaint, including the

allegations of time, is adequately tested under the usual motion to dismiss standard. Id. (citation

omitted).

11

Petitioners claim that DACF actions can be reviewed at any time before the commissioner officially resolves the

matter to his or her satisfaction. (Pet. Opp. Resp. Mot. Dismiss 4.) However, this court declines to accept such a broad

reading of the statutory standard.

Chapter 10.3.2 of the Agricultural Compliance Rules provides the following notice

requirement:

As soon as practicable following the receipt by the Department of a complaint concerning a farm or

farm operation, the Department shall make a good faith attempt to contact the responsible party, by

telephone or in person, in order to provide notification of the complaint. In the event the department

is unable to contact the responsible party by telephone or in person, the department shall provide

written notification to the responsible party by certified mail to the last known address.

Because the Petition references complaints made up until July 26, 2017, it is not entirely

untimely on its face. Petitioners rely on Matthew Randall's affidavit for the proposition that the

DACF received odor complaints in May 2015, and at other various times in the year. (Resp. Mot.

Dismiss 4.) However, notwithstanding the potential use of this evidence in a decision on a motion

to dismiss and Petitioners' motion to strike, the affidavit does not state that these are the only

complaints the DACF has received and of which it has failed to notify Petitioners. Consequently,

the affidavit is insufficient to prove that the Petition is facially untimely.

To the extent that the Petition concerns complaints that may be outside the statute of

limitations, however, the issue may be raised again on summary judgment after the relevant

evidence has been developed.

c. Petitioners' Other Claims

In addition to alleging that the DACF failed to notify them of complaints, Petitioners allege

that the DACF failed or refused to act independently, or not "in concert" with the DEP while

investigating complaints (Pet. ·,r,r C, F.); did not protect their right to farm under the Maine

Agriculture Protection Act (Pet. ,r,r D, F.); and failed "to decline ... to act in concert with [the

DEP]" in the preparation of a letter sent by the DACF to Dubois Livestock on January 19, 2016

(Pet. ,r,r E, F.). Respondent contends that these claims do not challenge final agency actions and

consequently, this court lacks jurisdiction to hear the claims. (Resp. Mot. Dismiss 6.)

Judicial review of "final agency actions" under the AP A is a jurisdictional issue. Tomer v.

Me. Human Rights Comm'n, 2008 ME 190, 18, 962 A.2d 335. A "final agency action" is defined

as "a decision by an agency which affects the legal rights, duties or privileges of specific persons,

which is dispositive of all issues, legal and factual, and for which no further recourse, appeal or

review is provided within the agency." 5 M.R.S. § 8002(4). Generally, the issue of whether an act

is a "final agency action" arises when the petitioner is also the complainant at the agency level.

See Tomer, 2008 ME 190, 112, 962 A.2d 335. Here, however, the Petitioners are challenging the

DACF's actions in relations to complaints it received about Dubois Livestock and in subsequent

litigation in this court.

The DACF's decision to coordinate investigations with the DEP is an enforcement decision

that is not reviewable under the AP A.

Finally, the DACF argues that its coordination with the DEP is unreviewable under the

separation of powers doctrine. (Resp. Mot. Dismiss 7.) The separation of powers doctrine is

founded on the principle that:

The Constitution, in distributing the powers of government, creates three distinct and separate

departments . . . . This separation is not merely a matter of convenience or of governmental

mechanism. Its object is basic and vital, [citations omitted], namely, to preclude a commingling of

those essentially different powers of government in the same hands.

State v. St. Regis Paper Co., 432 A.2d 383,384 (Me. 1981) (quoting O'Donoghue v. United States,

289 U.S. 516, 530 (1933). This separation is necessary so that "the persons intrusted with power

in any one of these branches shall not be permitted to encroach upon the powers confided to the

others, but that each shall by the law of its creation be limited to the exercise of the powers

appropriate to its own department and no other." Id. at 385 (quoting Kilbourn v. Thompson, 103

U.S. 168, 191 (1880)) (emphasis in original).

The coordination of executive branch departments is an exercise of executive branch

authority. This court will not interfere with executive branch operation under the separation of

powers doctrine. Consequently, Petitioners have not stated a reviewable cause of action.

IV. CONCLUSION

For the reasons set forth above, the respondent's motion to dismiss is granted.

The clerk shall make the following entry on the docket:

Defendants' motion to dismiss is hereby GRANTED.

SO ORDERED.

DATE: JANUARY a2g2018

John O'Neil, Jr.

Justice, Superior Court

ENTERED ON THE DOCKET ON: / /;t:i / f