The opinion
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 114
Docket: Ken-12-574
Argued: October 8, 2013
Decided: December 24, 2013
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
JABAR, JJ.
THANKS BUT NO TANK et al.
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION
JABAR, J.
[¶1] Thanks But No Tank and several individuals (collectively, TBNT)
appeal from a judgment entered in the Superior Court (Kennebec County, Mills, J.)
affirming the decision of the Department of Environmental Protection to grant
DCP Midstream Partners, LP, a permit to construct a liquefied petroleum gas
terminal in Searsport. See 5 M.R.S. § 11007(4)(A) (2012); M.R. Civ. P. 80C.
After the Superior Court entered its judgment, DCP voluntarily surrendered the
permit that is the subject of this appeal and filed a motion to dismiss this appeal as
moot, which we granted on May 9, 2013. See 38 M.R.S. § 344(10) (2012)
(providing that a licensee may voluntarily surrender a permit with Department
approval); 2 C.M.R. 06 096 002-10 § 23 (2013). TBNT argues that we should
vacate the Superior Court’s judgment because it is now moot. Additionally, TBNT
argues that it is a prevailing party pursuant to 14 M.R.S. § 1501 (2012) and is
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therefore entitled to recover the costs of its appeal. We disagree and dismiss this
appeal without awarding costs.
I. BACKGROUND
[¶2] In May 2011, DCP applied to the Department of Environmental
Protection for a permit to construct a liquefied petroleum gas terminal near
Searsport. According to the Department’s findings, the $40 million-project
proposal featured the installation of a 22.7 million-gallon propane storage tank, a
pier equipped to ship up to about 2.5 million barrels of liquefied petroleum gas
annually, and stations for loading fuel trucks and railcars. To complete the project,
DCP sought a permit from the Department pursuant to the Natural Resources
Protection Act to construct a pipeline over a portion of coastal wetland, alter about
two acres of forested freshwater wetland, and install a culvert to divert a stream on
the property. See 38 M.R.S. §§ 480-D, 480-X (2012); 2 C.M.R. 06 096 310-1,
-3 to -6 §§ 2, 4-5 (2009). DCP also applied for the Department’s approval of the
project pursuant to the Site Location of Development statute, see 38 M.R.S.
§§ 482(2), 483-A(1) (2012), and sought a water quality certification pursuant to the
Clean Water Act, see 33 U.S.C.A. § 1341 (West, Westlaw through P.L. 113-52).
[¶3] In October 2011, the Department approved the permit. Landowners
and residents of Searsport and neighboring Stockton Springs, some of whom
formed the group “Thanks But No Tank,” sought review of the Department’s
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decision in the Superior Court, raising numerous issues relating to the
Department’s conclusions that (1) DCP had met the visual impact standards;
(2) projected impacts on natural resources from potential accidents met statutory
requirements; (3) the project would meet air emissions standards, despite the
Department’s failure to consider auxiliary emissions sources; and (4) the project
would meet noise standards. DCP countered that at least nineteen of the
twenty-one members of TBNT were not abutting property owners and thus lacked
standing to challenge the permit.
[¶4] The Superior Court noted in its November 13, 2012, decision that the
evidence in the record was “insufficient to allow the court to determine whether
TBNT has standing,” and it dismissed the case with respect to the disputed
nineteen individuals. However, the court concluded that the standing issue was not
“fatal” to its review of the merits with respect to the two undisputedly abutting
landowners. The court affirmed the Department’s decision, concluding that the
Department did not err in making its factual findings or in applying the relevant
statutory standards and regulations. TBNT timely appealed pursuant to 5 M.R.S.
§ 11008 (2012) and M.R. App. P. 2(b)(3).
[¶5] On April 5, 2013, four months after TBNT filed its notice of appeal,
DCP petitioned the Department to surrender the permits that are the subject of this
case. See 38 M.R.S. § 344(10); 2 C.M.R. 06 096 002-10 § 23. In its petition for
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surrender, DCP stated, “[T]he Town of Searsport Planning Board has indicated that
it will not approve the Project as currently configured. As a result DCP has
withdrawn its municipal application and determined not to proceed with the
Project.” The Department granted DCP’s petition, noting that DCP had not yet
commenced any on-site activities.
[¶6] On April 18, four days after the Department granted the petition, the
Department and DCP moved to dismiss this appeal as moot. TBNT responded,
urging us to vacate the judgment of the Superior Court because it is now moot or,
alternatively, to determine that the Department lacked jurisdiction to accept DCP’s
petition to surrender the permit given the pending appeal from the judicial review
pursuant to 5 M.R.S. § 11008 and M.R. Civ. P. 80C. See York Hosp. v. Dep’t of
Health & Human Servs., 2008 ME 165, ¶¶ 33-36, 959 A.2d 67 (stating that an
agency lacks jurisdiction to make certain modifications to a decision that is the
subject of a pending judicial review). On May 9, 2013, we dismissed this appeal
as moot except with regard to two issues for which we requested briefing: (1)
whether we should vacate the Superior Court’s judgment because DCP’s voluntary
surrender of its permit rendered the case moot, and (2) whether TBNT is entitled to
costs as a prevailing party pursuant to 14 M.R.S. § 1501.
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II. DISCUSSION
A. Vacatur for Mootness
[¶7] TBNT argues that, as a matter of equity, we should vacate the Superior
Court’s judgment without considering the merits of the appeal because this case is
now moot. TBNT urges us to vacate the judgment of the trial court in a case that
has become moot while the appeal was pending as a result of “happenstance,” or a
circumstance outside the control of either party, arguing that this approach has
been adopted by the United States Supreme Court. See United States v.
Munsingwear, Inc., 340 U.S. 36, 40 (1950).
[¶8] In Munsingwear, the federal government had filed two separate
lawsuits alleging that, during two separate time periods, Munsingwear had violated
a regulation that fixed the maximum price of goods that it sold. Id. at 37. In the
first case, the United States District Court concluded that Munsingwear had
complied with the pricing regulations. Id. While the Government’s appeal was
pending, the commodity involved was “decontrolled,” and the appeal was
dismissed as moot. See Fleming v. Munsingwear, Inc., 162 F.2d 125, 127-28
(8th Cir. 1947).
[¶9] Munsingwear then moved to dismiss the second case, arguing that the
judgment in the first case applied to the same parties, involved the pricing of
commodities controlled by the same regulation, and had not been modified, and,
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therefore, it barred the parties from relitigating the merits of whether
Munsingwear’s sales violated the regulations in the second case. Munsingwear,
Inc., 340 U.S. at 37-38. As the Supreme Court later noted, the second case “f[ell]
squarely within the classic statement of the rule of res judicata.” Id. The motion
to dismiss was granted. See id. at 37; United States v. Munsingwear, Inc.,
178 F.2d 204, 209 (8th Cir. 1949) (affirming the District Court’s dismissal).
[¶10] On appeal from that dismissal, the Government urged the Supreme
Court to make an exception to the res judicata doctrine because a change in the
law, an action outside of its control, deprived it of an appeal on the merits.
Munsingwear, Inc., 340 U.S. at 39. The Supreme Court determined that the
appropriate remedy was not an exception to the rule of res judicata but rather
vacatur of the lower court judgment in the first case because it was rendered moot.
Id. at 39-41. The Court noted,
That procedure clears the path for future relitigation of the issues
between the parties and eliminates a judgment, review of which was
prevented through happenstance. When that procedure is followed,
the rights of all parties are preserved; none is prejudiced by a decision
which in the statutory scheme was only preliminary.
Id. at 40.
[¶11] Nearly twenty-five years later, the Supreme Court clarified its
reference to “happenstance,” stating that it “must be understood as an allusion to
this equitable tradition of vacatur. A party who seeks review of the merits of an
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adverse ruling, but is frustrated by the vagaries of circumstance, ought not in
fairness be forced to acquiesce in the judgment.” U.S. Bancorp Mortg. Co. v.
Bonner Mall P’ship, 513 U.S. 18, 25 (1994). However, the Bancorp Court
explained that the party requesting vacatur must demonstrate “more than that”; the
party seeking to vacate a lower court’s judgment must demonstrate “equitable
entitlement to the extraordinary remedy of vacatur.” Id. at 26. The Court indicated
that it would “take account of the public interest” when asked to vacate a court’s
judgment. See id. at 26-27.
[¶12] We agree with this approach and conclude that even if TBNT could
demonstrate that review of this case was prevented through happenstance, it has
not met its burden of demonstrating an entitlement to vacatur. See id. at 26. First,
TBNT has not demonstrated that it would be precluded by the rule of res judicata
from litigating similar issues. Cf. Munsingwear, 340 U.S. at 38. Second, TBNT
has not demonstrated a public interest in vacating the judgment of the Superior
Court. TBNT argues that the court’s decision is “preliminary” because TBNT was
unable to appeal the judgment and, therefore, “the decision [should] be allowed
neither preclusive nor precedential effect.” However, inability to appeal, without
more, is insufficient to warrant a public interest in vacatur of a moot judgment.
The assertion that we should vacate a court’s judgment because it might have been
overturned on appeal is insufficient to warrant the application of this
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“extraordinary” equitable remedy. See Bancorp, 513 U.S. at 26, 28 (“We . . .
assert the inappropriateness of disposing of cases, whose merits are beyond judicial
power to consider, on the basis of judicial estimates regarding their merits.”).
Therefore, we dismiss this appeal and decline to vacate the judgment of the
Superior Court.
B. Costs
[¶13] TBNT argues that it is a prevailing party pursuant to 14 M.R.S.
§ 1501 and M.R. App. P. 13(a) because its actions in opposing the conditional use
permit led to the Searsport Planning Board’s decision to deny the permit, which
ultimately resulted in this appeal becoming moot. Title 14 M.R.S. § 1501 provides
in relevant part: “In all actions, the party prevailing recovers costs unless otherwise
specially provided.” We apply a functional analysis to determine which party
“prevailed.” Flaherty v. Muther, 2011 ME 32, ¶ 89, 17 A.3d 640. “By a
‘functional analysis’ we mean[] that one must look at the lawsuit as a whole to
determine which party was the ‘winner’ and which the ‘loser.’” Dodge v. U.S.
Servs. Auto. Ass’n, 417 A.2d 969, 975 (Me. 1980) (quoting Inhabitants of the Town
of Sabattus v. Bilodeau, 395 A.2d 123, 124 (Me. 1978)). “[T]he determination of a
successful party . . . is to be based upon success upon the merits . . . .” Hoitt v.
Hall, 661 A.2d 669, 674 (Me. 1995) (quotation marks omitted).
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[¶14] This case was mooted pending appeal, and the only evidence in the
record about the reasons that led DCP to surrender the permit are in DCP’s petition
to surrender, where DCP stated that its decision was “a result” of “the Town of
Searsport Planning Board[’s] . . . indicat[ion] that it will not approve the Project as
currently configured.” The connection between the decision by the Searsport
Planning Board to deny a conditional use permit and the merits of this appeal—
concerning the decision by the Department of Environmental Protection to grant an
environmental permit—is too tenuous to sustain an award of costs.1 Rather, TBNT
has “obtained precisely nothing that [it] could not have had without [this]
litigation.” Dodge, 417 A.2d at 975. Therefore, it is not a “prevailing party”
within the meaning of 14 M.R.S. § 1501.
The entry is:
Appeal dismissed and costs denied.
1
We also decline to address the catalyst theory, which provides that a party may be considered
“prevailing” when it “achieved the desired result because [it] brought about a voluntary change in the
defendant’s conduct.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res.,
532 U.S. 598, 600 (2001), superseded by statute on other grounds, OPEN Government Act of 2007,
Pub. L. No. 110–175, § 4, 121 Stat. 2524, 2525 (codified at 5 U.S.C.A. § 552(a)(4)(E)(ii) (West, Westlaw
through P.L. 113-52)); see also Doe I v. Williams, 2013 ME 24, ¶¶ 82-83, 61 A.3d 718 (declining to
address the catalyst theory where a party’s victory stemmed from changes in legislation, rather than as a
result of the litigation).
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On the briefs:
Stephen F. Hinchman, Esq., and Kimberly J. Ervin Tucker, Esq., Law
Offices of Stephen F. Hinchman, LLC, West Bath, for appellants Thanks
But No Tank et al.
James T. Kilbreth, Esq., Drummnd Woodsum, Portland, for appellees DCP
Midstream Partners, LP
Janet T. Mills, Attorney General, and Margaret Bensinger, Asst. Atty. Gen.,
Office of Attorney General, Augusta, for appellee
Maine Department of Environmental Protection
At oral argument:
Stephen F. Hinchman, Esq., for appellants Thanks But No Tank, et al.
Adrianne E. Fouts, Esq., Drummond Woodsum, for appellees DCP
Midstream Partners, LP
Margaret Bensinger, Asst. Atty. Gen., for appellee Maine Department of
Environmental Protection
Kennebec County Superior Court docket number AP-11-58
FOR CLERK REFERENCE ONLY