Petition for Writ of Certiorari — Friends of Merrymeeting Bay, et al., Petitioners v. Central Maine Power Company

App. 1

APPENDIX A

MAINE SUPREME

JUDICIAL COURT

Reporter of Decisions

Decision No. Mem 22-4

Docket No, BCD-21-43

FRIENDS OF MERRYMEETING BAY et al.

v.

CENTRAL MAINE POWER COMPANY

Argued October 6, 2021

Decided January 11, 2022

Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR,

HUMPHREY, and HORTON, JJ.

MEMORANDUM OF DECISION

Friends of Merrymeeting Bay, Kathleen McGee,

Ed Friedman, and Colleen Moore (collectively, FOMB)

appeal from a judgment entered by the Business and

Consumer Docket (Murphy, J.) dismissing their nuisance claims against Central Maine Power Company

(CMP) based on its conclusion that the claims were

preempted by federal law. FOMB asserts that lighting

installed on CMP’s utility towers in Bath and Woolwich in compliance with Federal Aviation Administration (FAA) standards constitutes an actionable nuisance

under Maine’s common law and 17 M.R.S. § 2701

(2021). Contrary to FOMB’s contentions, the court did

not err in concluding that FOMB’s state law claims

are preempted because they are based on CMP’s compliance with FAA standards that occupy the field of

App. 2

aviation safety.1 See, e.g., Bieneman v. City of Chicago,

864 F.2d 463, 471-73 (7th Cir. 1988) (concluding that

state law tort remedies are available for claims asserting a violation of FAA standards occupying the field of

aviation safety but are not available for claims based

on compliance with such standards); Mut. Pharm. Co.

v. Bartlett, 570 U.S. 472, 488-89 (2013).

The entry is:

judgment affirmed.

-----------------------------------------------------------------------

Bruce M. Merrill, Esq., Law Offices of Bruce M. Merrill,

Portland; and William Most, Esq. (orally), and David

Lanser, Esq., Law Office of William Most, New Orleans,

Louisiana, for appellants Friends of Merrymeeting

Bay et al.

Gavin G. McCarthy, Esq. (orally), and Matthew Altieri,

Esq., Pierce Atwood LLP, Portland, for appellee Central Maine Power Company

Business and Consumer Court docket number CV-2020-36

FOR CLERK REFERENCE ONLY

1

We are not persuaded by FOMB’s argument that its allegations concerning the rate at which the lights flash are sufficient

to assert a separately-actionable nuisance claim based on noncompliance with FAA standards. Cf. Leppla v. Sprintcom, Inc.,

806 N.E.2d 1019, 1023-25, 1023 n.1 (Ohio Ct. App. 2004).

App. 3

APPENDIX B

STATE OF MAINE BUSINESS & CONSUMER COURT

CUMBERLAND, ss. DOCKET NO. BCD-CV-2020-36

FRIENDS OF

MERRYMEETING BAY,

KATHLEEN MCGEE,

ED FRIEDMAN, and

COLLEEN MOORE

Plaintiffs,

v.

CENTRAL MAINE

POWER COMPANY

Defendant.

)

)

COMBINED ORDER

)

ON THE ENVIRON)

MENTAL HEALTH

)

TRUST’S MOTION

)

FOR LEAVE TO FILE

)

AMICUS CURIAE

)

BRIEF AND DEFEND)

ANT’S MOTION

)

TO DISMISS

)

)

Before the Court are the Environmental Health

Trust’s (the “EHT’s”) motion for leave to file an amicus

curiae brief, and Defendant Central Maine Power

Company’s (“CMP’s”) motion to dismiss Plaintiffs’ complaint for failure to state a claim upon which relief can

be granted in accordance with M. R. Civ. P. 12(b)(6).

In its motion for leave to file an amicus curiae

brief, the EHT asserts that neither the Maine Rules of

Civil Procedure, nor the Business and Consumer

Docket Procedure Rules prohibit the filing of an amicus brief by a non-party. For this reason, and because

the EHT asserts it has a substantial and compelling

interest in the case, it requests leave from the Court to

file its brief. The Court denies EHT’s motion.

App. 4

Separately, CMP moves to dismiss the Plaintiffs’

complaint asserting that the nuisance claim is preempted by both Federal Aviation Administration

(“FAA”) and Federal Communications Commission

(“FCC”) regulations. Conversely, Plaintiffs assert that

the FAA’s guidance to CMP constitutes a legally unenforceable recommendation rather than a set of requirements, and that the FCC regulations cited by CMP are

inapplicable to the facts of this case. The Court finds

Plaintiffs’ nuisance claims subject to preemption, and

thus grants CMP’s motion to dismiss in its entirety.

Plaintiffs are represented by Attorneys Bruce Merrill,

William Most, and David Lamer. CMP is represented

by Attorneys Gavin McCarthy and Matthew Altieri.

The Environmental Heath Trust is represented by Attorney Scott Sells.

FACTUAL BACKGROUND

In 2019, CMP replaced two utility towers that

support power lines across the Chops Passage of the

Kennebec River as the river flows into Merrymeeting

Bay. While the old towers were 195-feet-tall, the new

towers reach approximately 240-feet-tall. The towers

are outfitted with flashing safety lights, aimed at alerting aircraft of their presence. Additionally, in response

to concerns from Plaintiffs and other members of the

public about the frequency of flashing lights, the towers will include an Active Aircraft Detection Lighting

System (the “Radar System”) that uses radar to trigger

the flashing lights when aircraft are detected within

approximately 3.5 miles of the towers.

App. 5

In accordance with FAA regulations, CMP filed

public notice of the proposed tower construction with

the Secretary of the FAA. In response, the FAA issued

a “determination of no hazard to air navigation” with

respect to the towers on March 12, 2018. (Pl.’s Ex. A).

The no hazard determination explained that the FAA

had conducted an aeronautical study, which “revealed

that the structure does not exceed obstruction standards and would not be a hazard to air navigation,

provided certain conditions are met. Id. The FAA’s determination was conditioned on the structure being

“marked/lighted in accordance with an FAA Advisory

Circular.1

On March 25, 2020, in response to a revised submission by CMP to cover the use of the Radar System,

the FAA issued a new determination of no hazard,

again conditioned on the marking of the towers and

utilization of a lighting system. In issuing its determination, the FAA provided that the towers are subject

to the licensing authority of the FCC. Next, on July 21,

2020 the FCC issued CMP a radio station authorization permitting the towers to broadcast using frequencies of 9.2-9.5 GHz. Plaintiffs requested the FCC

conduct an environmental assessment, but the FCC

declined, apparently finding that the Radar System

did not cause RF exposure exceeding the FCC’s safety

standards. See 47 C.F.R. § 1.1306(c)(2) & 1.1307.

1

See FAA Circular 70/746001 L Change 1, Obstruction

Marking and Lighting, a med-dual system—Chapters 4, 8,(MDual),&12” (“The FAA Safety Lighting Standards”)

App. 6

LEGAL STANDARD

Two motions are before the Court in this matter:

1) the EHT’s motion for leave to file amicus curiae, and

2) CMP’s motion to dismiss the complaint for failure to

state a claim under M. R. Civ. P. 12(b)(6).

First, the term amicus curiae implies “the friendly

intervention of counsel to remind the Court of some

matter of law which might otherwise escape its notice

and in regard to which it might go wrong.” Hamlin v.

“Perticuler Baptist Meeting House”, 103 Me. 343, 69 A.

315, 318 (Me. 1907). Unlike appeals, the Maine Rules

of Civil Procedure neither authorize nor prohibit the

filing of an amicus brief by a non-party in the Business

and Consumer Court when it serves as a trial court.

Though not applicable at the trial court level, the Rules

of Appellate Procedure permit amicus curiae briefs to

be filed if parties to the appellate proceeding consent,

“or by leave of the Law Court.” M.R. App. P. 7A(e)(1)(A).

Maine Trial Courts have previously considered

amicus filings under limited circumstances. See e.g.

United States Bank NA. v. Cozzone, 2019 Me. Super.

LEXIS 109, *4. However, the First Circuit Court of Appeals has urged caution with respect to the federal

trial courts: “We believe that a district court lacking

joint consent of the parties should go slow in accepting” an amicus brief. Strasser v. Doorley, 432 F.2d

567, 569 (1st Cir. 1970).2 As such, the Court will grant

2

The First Circuit has also noted that “the prime if not sole,

purpose of an amicus curiae brief is what its name implies,

App. 7

an amicus curiae brief only where there is good reason

to believe it can assist the Court reach a correct legal

conclusion.

Second, when reviewing a motion to dismiss under

Rule 12(b)(6), the Court “consider^] the facts in the

complaint as if they were admitted.” Bonney v. Stephens Mem. Hosp., 2011 ME 46, If 16, 17 A.3d 123. 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, ¶ 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 [it] might prove in support of [its]

claim.” Id.

DISCUSSION

I.

EHT’s Motion for Leave to File an Amicus

Curiae Brief

In support of its motion for leave to fde an amicus

curiae brief, EHT asserts that it has a substantial and

compelling interest in the case, and can aid the Court

in addressing the unique and significant harm suffered

by those who cannot seek relief from federal agencies.

Specifically, EHT describes the light and radio frequencies emitted from the Towers as “needless” and believes

namely, to assist the court on matters of law.” Banjeree v. Bd. Of

Trustees, 648 F.2d 61,65 n.9 (1st Cir. 1981).

App. 8

there is a likelihood of harmful health and environmental effects stemming therefrom. “As a leader in

state-of-the art scientific research into the areas of

harm alleged,” EHT asserts it can ensure a “complete

and plenary” presentation of the issues before the

Court, (EHT’s Mot. at 4).

While the Court does not question EHT’s substantive experience researching the alleged harms at issue,

it is unclear what legal aid EHT hopes to provide the

Court. It is clear EHT feels well-positioned to weigh in

on “difficult and complex technical issues.” However,

EHT does not allege that Plaintiffs failed to address

any specific legal arguments, or that they cannot represent the relevant issues in this matter. Instead, EHT

repeats the exact harms alleged in Plaintiffs’ complaint, and further expanded on in their opposition to

CMP’s motion to dismiss.

At the motion to dismiss stage, the Court is not

being asked to make factual evaluations, nor to balance competing policy views. Instead, CMP’s motion to

dismiss contends that Congress has exclusively delegated such determinations to the FAA and FCC, and

for that reason Plaintiffs’ claims are preempted. The

Court’s role is to determine, in the light most favorable

to the plaintiff, 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. EHT

has failed to demonstrate how it can aid the Court in

making a correct legal determination. Accordingly,

EHT’s motion for leave to file an amicus curiae brief is

denied.

App. 9

II.

CMP’s Motion to Dismiss

According to the Supremacy Clause of the United

States Constitution, federal law “shall be the supreme

Law of the land; and the Judges in every state shall

be bound thereby, any Thing in the constitution or

Laws of any State to the Contrary notwithstanding.”

U.S. Const, art. VI, cl. 2. “Congress has the power to

preempt state law.” Arizona v. United States, 567 U.S.

387, 399 (2012). Preemption applies equally to all

forms of state law, including civil actions based on state

tort law. See, e.g. Buckman v. Plaintiffs’ Legal Comm.,

531 U.S. 341, 351 (2001). There are three categories of

preemption: 1) express preemption; 2) field preemption; and 3) conflict preemption. Hillsborough Cnty. v.

Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985),

Field preemption occurs where a framework of

federal regulation is “so pervasive that Congress left

no room for the States to supplement it or where there

is a federal interest so dominant that the federal system will be assumed to preclude enforcement of state

laws on the same subject.” Arizona, 567 U.S. at 399.

Courts may infer Congress’s intent to occupy a field to

the exclusion of state law “where the pervasiveness of

the federal regulation precludes supplementation by

the States, where the federal interest in the field is sufficiently dominant, or where “the object sought to be

obtained by the federal law and the character of obligations imposed by it . . . reveal the same purpose.

French v. Pan Am. Exp., Inc., 869 F.2d 1, 2 (1st Cir.

1989) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230 (1947).

App. 10

Conflict preemption occurs “where state law stands

as an obstacle to the accomplishment and execution of

the full purposes and objectives of congress.” Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995); see also

Weaver’s Cove Energy, LLC v. R.I. Coastal Res. Mgmt.,

589 F.3d 458, 472-73 (1st Cir. 2009). Analysis of conflict

preemption requires Courts to examine “the relationship between state and federal laws as they are interpreted and applied, not merely as they are written.”

Jones v. Rath Packing Co., 430 U.S. 519, 527 (1977).

This analysis is a two-step process of first ascertaining

the construction of the [state and federal laws] and

then determining the constitutional question whether

they are in conflict.” Chicago &N.W. Transp. Co. v. Kalo

Brick & Tile Co., 450 U.S. 311, 317 (1981). Courts consider the nature of the activities states seek to regulate, rather than on the method of regulation adopted.

Id. Courts in the First Circuit have taken a “functional

approach” to preemption, focusing “on the effect which

the challenged enactment will have on the federal

plan,” French, 869 F,2d at 2.

A. FAA Hazard Determination and Regulation of Light System

According to the complaint, the operation of the

Lighting System has negatively impacted Plaintiffs’

enjoyment, and the economic value of properties in

Merrymeeting Bay. However, in its motion to dismiss,

CMP contends that Plaintiffs’ nuisance claim is preempted by the Federal Aviation Act (“The Act”). According to the Act, the United States Government has

App. 11

exclusive sovereignty of airspace of the United States.

49 U.S.C, § 40103. The Secretary of Transportation is

authorized to review “structures interfering with air

commerce.” 49 U.S.C. § 44718. The Secretary’s review

begins by requiring adequate public notice, in the

form and way the Secretary prescribes, of the proposed

construction of structures when said notice will promote “(1) safety in air commerce; and (2) the efficient

use and preservation of the navigable airspace.” ZJ.

§ 44718(a).

After receiving public notice, the Secretary determines whether the proposed structure “may result in

an obstruction of the navigable airspace or an interference with air navigation facilities and equipment or

the navigable airspace. Id. § 44718(b)(1). If so, the Secretary must “conduct an aeronautical study to decide

the extent of any adverse impact on the safe and efficient use of the airspace, facilities, or equipment.” Id.

The Secretary must then issue a report disclosing any

adverse impacts on the “safe and efficient use” of the

airspace resulting from the construction of the structure, subject to an aeronautical study. Id. § 44718(b)(2).

The FAA’s statutory obstruction standards “are

supplemented by other manuals and directives used in

determining the effect on the navigable airspace of a

proposed construction or alteration.” 14 C.F.R. § 77.25(c).

One such supplementation is the FAA Safety Lighting

Standards, which set forth standards for marking and

lighting obstructions that have been deemed to be a

hazard to air navigation. See FAA Lighting Standards at i. The FAA Lighting Standards recommend

App. 12

minimum standards “in the interest of safety, economy,

and related concerns.” Id. § 2.3. “To provide an adequate level of safety, obstruction lighting systems

should be installed, operated, and maintained in accordance with the recommend standards.” Id.

Case law at the federal level has consistently held

that the Act preempts the field of airspace safety. In

City of Burbank v. Lockheed Air Terminal, the United

States Supreme Court found a municipal ordinance assigning curfew to airplane takeoffs and landings was

preempted by the Act because it had an impact on airspace congestion and therefore safety. 411 U.S. 624,

633 (1973). Likewise, the 1st, 2nd, 3rd, 6th, and 10th

circuits have all indicated that the FAA has exclusive

authority over the airspace of the United States.3

3

See French v. Pan Am Express Inc., 869 F.2d 1, 3 (1st Cir.

1989); Airline Pilots Ass’n Int’l v. Quesada, 276 F.2d 892, 894 (2nd

Cir. 1960)(explaining that the Federal Aviation Act “was passed

by Congress for the purpose of centralizing in a single authority—

indeed, in one administrator—the power to frame rules for the

safe and efficient use of the nations airspace.”) Abdullah v. Am.

Airlines, Inc., 181 F.3d 363, 371 (3rd Cir. 1999) (“Because the legislative history of the FAA and its judicial interpretation indicate

that Congress’s intent was to federally regulate aviation safety,

we find that any state or territorial standards of care relating to

aviation safety are federally preempted.”); Greene v. B.F. Goodrich Avionics Sys., Inc, 409 F.3d 784, 795 (6th Cir. 2005); U.S.

Airways, Inc. v. O’Donnell, 627 F.3d 1318,1327 (10th Cir. 2010)

(collecting cases and concluding “that the comprehensive regulatory scheme promulgated pursuant to the FAA evidences the

intent for federal law to occupy the field of aviation safety exclusively.

App. 13

In light of the FAA’s regulatory framework, read

alongside numerous Supreme Court and Circuit Court

holdings, the Court fords that Plaintiffs’ state law nuisance action is subject to both field and conflict

preemption. As previously stated, field preemption occurs where a framework of federal regulation is “so

pervasive that Congress left no room for the States to

supplement it or where there is a federal interest so

dominant that the federal system will be assumed to

preclude enforcement of state laws on the same subject.” Arizona, 567 U.S. at 399. The comprehensive regulatory scheme promulgated pursuant to the FAA

evidences the intent for federal law to occupy the field

of aviation safety exclusively. U.S. Airways, Inc., 627

F.3d at 1327 (10th Cir. 2010). The FAA has been granted

exclusive regulatory authority over the airspace of the

United States. According to the FAA’s regulations,

when a company like CMP wants to build towers, it

must file public notice with the FAA. Under certain circumstances the FAA must conduct an aeronautical

study. The resulting report is issued to determine

whether the structure being built will be an obstruction, or hazard to air safety. In this case, the report determined the towers were not hazardous, under the

condition the towers are outfitted according to the

FAA’s Lighting Standards. Intuitively, one would read

the no-hazard determination’s conditional language to

mean that, absent lights meeting the FAA standard,

the towers could qualify as a hazard to air navigation.

It would be not only counterintuitive, but directly in

conflict with the FAA’s regulatory scheme to negate

the agency’s safety recommendations. For this reason,

App. 14

the Court also finds Plaintiffs’ nuisance claim subject

to conflict preemption. To punish a party for following

the FAA’s safety standards and explicit recommendations surely creates an obstacle to the accomplishment

and execution of the full purposes and objectives of

Congress. See Freightliner Corp. v. Myrick, 514 U.S.

280, 287 (1995).

Plaintiffs concede that generally, the Act, enforced

by the FAA, preempts state regulation of airspace

safety. However, Plaintiffs contend that the FAA lacks

authority over the towers, and that because the FAA

Lighting Standards take the form of “recommendations”, the FAA is not empowered to sue to enforce

non-compliance with its determinations. For these reasons, Plaintiffs also contend their state tort claim is not

preempted.

Plaintiffs point out that while certain structures,

including CMP’s towers, require notice to be given to

the FAA, because CMP’s towers do not in fact interfere

with air commerce, the FAA lacks jurisdiction over the

safety of the towers. Therefore, Plaintiffs’ contend that

the Act does not apply beyond the notice requirement.

Plaintiffs argument here rests on two related assertions: 1) the Chops Passage where CMP build the towers is not a navigable airway; and 2) the towers are

not an “obstruction to air navigation” according to 14

C.F.R. § 77.17.

Plaintiffs first assert that Chops Passage fails to

qualify as navigable airspace because navigable airspace exists “only at and above minimum flight

App. 15

altitudes . . . ” 49 U.S.C. § 40102. The minimum safe altitude for aircraft over a city, town, or settlement is

1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet, and over open water, no aircraft

may be operated closer than 500 feet to any person,

vessel, vehicle, or structure. 49 U.S.C. § 91.119. Because Chops Passage is only 790’ wide, it has been previously labeled by the FAA as a “No Traverseway”, and

Plaintiff asserts that it fails to qualify as navigable airspace. Relatedly, Plaintiffs also assert that the towers

fail to qualify as an obstruction to air navigation. According to 14 C.F.R. § 77.17, objects under 499 feet (like

the towers at issue) are only presumptively obstructions within certain distance of airports, within certain

obstacle clearance areas, or the “surface of a takeoff

and landing area of an airport or any imaginary surface established under §§ 77.19, 77.21, or 77.23.” Plaintiffs assert that the towers do not fall within the

required distance of a takeoff or landing area of an airport or any imaginary structure defined by the regulations. Thus, Plaintiffs argue that because the towers do

not intersect navigable airspace, the FAA’s regulatory

authority fails to reach CMP’s towers.

Plaintiffs’ arguments are, however, inconsistent

with the Court’s interpretation of the regulatory

framework. The FAA has authority over all airspace,

not just navigable airspace. 49 U.S.C. § 40103. CMP

was therefore required to provide public notice of the

construction and did so. The FAA was then required to

conduct an aeronautical study to assess the safety of

the towers and did so. 14 C.F.R. § 77.25(a). Then, the

App. 16

FAA was required to determine, based on that study,

whether the tower was a safety hazard. The FAA concluded that it was not, conditioned on CMP’s compliance with the Lighting Standards. (Pl.’s Ex. A). In

addition to CMP’s compliance with the FAA’s regulatory scheme, the Court notes that the definition of navigable airspace is relative to the “highest obstacle” or

nearest “structure", and therefore this structure could

never actually be in “navigable airspace” as defined.

For this reason, it appears that the regulations presume that structures existing below navigable airspace could be a hazard to air navigation and establish

a process for determining whether they are and providing safety standards. Congress has granted the FAA

discretion to determine whether structures qualify as

hazards to air navigation or obstructions. The FAA has

a codified process for making such a determination,

and in this case the FAA’s recommendations follow directly from that process.

Plaintiffs also assert that because the FAA’s determination included recommendations rather than a legally enforceable order, state court action is not

preempted. Plaintiffs are correct that the FAA’s determinations are phrased as recommendations, and that

the FAA does not claim enforcement authority for its

“no hazard” determinations. Instead of issuing enforceable orders, the FAA relies on other means to

obtain compliance, and the federal statutory and regulatory scheme for managing air safety maintains its

preclusive effect. For instance, a party could seek a

common law remedy in state court for a defendant’s

App. 17

noncompliance with FAA regulations and recommendations. However, the Court concludes that a common

law action brought in state court is subject to conflict

preemption when the injury described is a defendant’s

adherence to FAA guidance. A holding to the contrary

would create an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress. Thus, the Court grants CMP’s motion to dismiss

Plaintiffs nuisance claim relating to the Lighting System.

B. FCC Regulations and Telecommunications Act Preemption of Nuisance Claim

Regarding the Tower’s Radar System

CMP also moves to dismiss Plaintiffs’ nuisance

claim regarding the tower’s radar system. In their

complaint, Plaintiffs contend that installation of the

proposed Radar System would create a potentially injurious impact on the residents of Merrymeeting Bay

and the Bay’s special environment. CMP contends

that, like Plaintiffs’ nuisance claim relating to the

lighting system, a nuisance claim aimed at preventing

the installation of the Radar System is preempted by

the FCC regulatory authority.

The United States government has for over a century, maintained control “over all the channels of radio

transmission.” 47 U.S.C. § 301. Pursuant to this authority, any person seeking to transmit signals by radio

must first obtain a license from the FCC. See Id. The

Federal Communications Act (“FCA”) directs the FCC

App. 18

to regulate, among other things, the “kind of apparatus

to be used with respect to its external effects and the

purity and shaipness of the emissions from each station and from the apparatus therein. Id. § 303(e). The

FCC also has broad authority to develop regulations as

needed to implement the FCA. Id. §§ 154(i), 201(b), and

303(r).

Pursuant to the FCC’s authority under the FCA

and its obligations under the National Environmental

Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321-35, the

FCC began evaluating the potential biological effects

of radiofrequency (“RF”) emissions in the early 1980’s

and adopted standards for RF exposure in 1985. See In

re Responsibility of the FCC to Consider Bio. Effects of

Radiofrequency Radiation, 100 F.C.C.2d 543, ¶¶ 2-3,

24 (1985). The FCC has since engaged in formal rulemaking to determine whether it should revise its

standards regarding RF emissions, and has adopted

RF testing, certification, and emission standards to

“protect the public health with respect to RF radiation

from FCC-regulated transmitters,” In re Guidelines for

Evaluating the Envt. Effects of Radiofrequency Radiation, 11 F.C.C.R. 15123, 15127, ¶ 10 (1996). The FCC

reported that the standards “represent a consensus

view of the federal agencies responsible for matters relating to public safety and health,” Id. at 51 2. In 2019

the FCC reviewed these standards and concluded that

no changes were necessary in light of the existing science. As such, the FCC’s standards regarding limits on

permissible absorption rates of RF emissions are published at 47 C.F.R. § 1.1310, falling under the subpart

App. 19

“Procedures for Implementing the National Environmental Policy Act of 1969.” The FCC requires a person

obtaining a license to operate a radio transmitter to

complete an environmental assessment unless the absorption standards of Section 1.1310 are met. See 47

C.F.R. § 1.1307.

Federal Courts have consistently held that state

law efforts to regulate the health and environmental

health effects of RF emissions are preempted. For instance, in Robbins v. New Cingular Wireless PCS, LLC,

854 F.3d 315 (6th Cir. 2017), the plaintiffs sought to

enjoin the construction of a cell-phone tower by filing

state law tort claims against the telephone service provider. Id. at 318. The plaintiffs claimed the cellular

tower would endanger public health and safety. Id.

However, the trial corn! dismissed the state-law tort

claims because federal law “impliedly preempts claims

based on RF emissions that comply with Federal Communications Commission (`FCC’) standards.” Id. at

319. The Sixth Circuit surveyed the law of conflict

preemption and determined that permitting “RF-emissions based tort suits” would create an “obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress.” Id. Other circuits have come to

similar conclusions. See Farina v. Nokia, Inc., 625 F.3d

97, 126 (3d Cir. 2010) (holding that “a jury determination that cell phones in compliance with the FCC’s . . .

guidelines were still unreasonably dangerous would,

in essence, permit a jury to second guess the FCC’s conclusion on how to balance its objectives). In summary,

Congress lias granted the FCC authority under the

App. 20

FCA and NEPA to regulate RF-emissions stemming

from the transmission of radio signals. Likewise, federal case law has consistently held that RF-emissions

based tort suits are preempted by the FCC’s regulatory

scheme.

Conversely, Plaintiffs contend that their state-law

nuisance claim is not preempted because, while the

Telecommunications Act of 1996 (“TCA”) (the law

governing cell-phone towers) contains a preemption

clause, the broader FCA governing radar systems does

not. Plaintiffs’ argument is unavailing. CMP does not

rely on the preemption provision in the TCA. Instead,

CMP asserts that preemption occurs because the state

tort action interferes with the FCC’s regulation of RFexposure. The FCC’s RF-exposure limits were not issued as part of the TCA and are instead “procedures

implementing the National Environmental Policy Act

of 1969.” See 47 C.F.R. § 1.301, etseq. As CMP points

out in their Reply Brief, the FCC has been regulating

RF emissions since 1985, more than a decade before

the TCA was even passed. In a similar vein, Plaintiffs

assert that the federal cases cited above deal entirely

with cell-phone regulation rather than radar systems.

However, neither of the cases cited above rely on the

TCA’s express preemption, and instead turned on regulation applicable to all radio transmissions.

Plaintiffs’ nuisance claim seeks to prevent the installation of the Radar System to prevent injuiy to the

residents of Merrymeeting Bay, as well as the surrounding environment. (Compl. ¶¶ 147-161). However,

CMP was required to get a license from the FCC to

App. 21

operate the radio transmitter at issue, the tower is

within FCC jurisdiction, and thus the FCC’s RF exposure limits apply to it. Inherent to regulating RFemissions, the FCC engaged in a balancing of interests,

considering impacts on public health and the ability of

radio frequencies to reach consumers, leading to the

established safety standards. The level of RF-exposure

in the towers at issue exists within the range determined safe by the FCC. For this Court to enjoin CMP

from installing the Radar System, it would be required

to substitute its assessment of potential RF-emission

related harms in place of the “consensus view of the

federal agencies responsible for matters relating to

public safety and health", including the FCC. Likewise,

Plaintiffs’ nuisance claim is of the exact type already

held preempted by federal courts. Were the Court to

hold otherwise, it would create an obstacle to the accomplishment and execution of the full purposes and

objectives of Congress. Thus, conflict preemption also

bars Plaintiffs’ state law nuisance action with relation

to the Radar System. Therefore, CMP’s motion to dismiss is granted in its entirety.

CONCLUSION

For the reasons stated above, the Court denies

EHT’s motion for leave to file an amicus curiae brief.

Because Congress has delegated authority to the FAA

and FCC to regulate the Lighting and Radar Systems,

the Court finds Plaintiffs’ nuisance claims subject to

preemption. Accordingly, the Court grants CMP’s motion to dismiss in its entirety.

App. 22

The Clerk is instructed to enter this Order on the

docket for this case by incorporating it by reference.

M.R. Civ. P. 79(a).

1/15/2021

/s/ Justice Michaela Murphy

DATE

SUPERIOR COURT JUSTICE

Entered on the Docket: 1/15/2021

Copies sent via Mail Electronically 🗸

App. 23

APPENDIX C

[SEAL] Mail Processing Center

Federal Aviation Administration

Southwest Regional Office

Obstruction Evaluation Group

10101 Hillwood Parkway

Fort Worth, TX 76177

Aeronautical Study No.

2018-ANE-1643-OE

Prior Study No.

2016-ANE-707-OE

Issued Date: 03/12/2018

Benjamin Shepard

Central Maine Power Company

83 Edison Drive

Augusta, ME 04336

** DETERMINATION OF NO

HAZARD TO AIR NAVIGATION **

The Federal Aviation Administration has conducted an

aeronautical study under the provisions of 49 U.S.C.,

Section 44718 and if applicable Title 14 of the Code of

Federal Regulations, part 77, concerning:

Structure:

Location:

Latitude:

Longitude:

Heights:

Tower Section 77 & 277

Woolwich, ME

43-58-59.59N NAD 83

69-49-41.33W

47 feet site elevation (SE)

240 feet above ground level (AGL)

287 feet above mean sea level (AMSL)

App. 24

This aeronautical study revealed that the structure

does not exceed obstruction standards and would not

be a hazard to air navigation provided the following

condition(s), if any, is(are) met:

As a condition to this Determination, the structure is

to be marked/lighted in accordance with FAA Advisory circular 70/7460-1 L Change 1, Obstruction

Marking and Lighting, a med-dual system – Chapters

4,8(MDual),&12.

Any failure or malfunction that lasts more than thirty

(30) minutes and affects a top light or flashing obstruction light, regardless of its position, should be reported

immediately to (877) 487-6867 so a Notice to Airmen

(NOTAM) can be issued. As soon as the normal operation is restored, notify the same number.

It is required that FAA Form 7460-2, Notice of Actual

Construction or Alteration, be e-filed any time the project is abandoned or:

At least 10 days prior to start of construction

(7460-2, Part 1)

X

Within 5 days after the construction reaches its

greatest height (7460-2, Part 2)

See attachment for additional condition(s) or information. This determination expires on 09/12/2019

unless:

(a) the construction is started (not necessarily

completed) and FAA Form 7460-2, Notice of

Actual Construction or Alteration, is received

by this office.

App. 25

(b) extended, revised, or terminated by the issuing office.

(c) the construction is subject to the licensing

authority of the Federal Communications

Commission (FCC) and an application for a

construction permit has been filed, as required by the FCC, within 6 months of the

date of this determination. In such case, the

determination expires on the date prescribed

by the FCC for completion of construction, or

the date the FCC denies the application.

NOTE: REQUEST FOR EXTENSION OF THE EFFECTIVE PERIOD OF THIS DETERMINATION

MUST BE E-FILED AT LEAST 15 DAYS PRIOR TO

THE EXPIRATION DATE. AFTER RE-EVALUATION

OF CURRENT OPERATIONS IN THE AREA OF

THE STRUCTURE TO DETERMINE THAT NO

SIGNIFICANT AERONAUTICAL CHANGES HAVE

OCCURRED, YOUR DETERMINATION MAY BE ELIGIBLE FOR ONE EXTENSION OF THE EFFECTIVE PERIOD.

This determination is based, in part, on the foregoing

description which includes specific coordinates, heights,

frequency(ies) and power. Any changes in coordinates,

heights, and frequencies or use of greater power, except

those frequencies specified in the Colo Void Clause Coalition; Antenna System Co-Location; Voluntary Best

Practices, effective 21 Nov 2007, will void this determination. Any future construction or alteration, including increase to heights, power, or the addition of other

transmitters, requires separate notice to the FAA. This

App. 26

determination includes all previously filed frequencies

and power for this structure.

If construction or alteration is dismantled or destroyed, you must submit notice to the FAA within 5

days after the construction or alteration is dismantled

or destroyed.

This determination does include temporary construction equipment such as cranes, derricks, etc., which

may be used during actual construction of the structure. However, this equipment shall not exceed the

overall heights as indicated above. Equipment which

has a height greater than the studied structure requires separate notice to the FAA.

This determination concerns the effect of this structure on the safe and efficient use of navigable airspace

by aircraft and does not relieve the sponsor of compliance responsibilities relating to any law, ordinance, or

regulation of any Federal, State, or local government

body.

A copy of this determination will be forwarded to the

Federal Communications Commission (FCC) because

the structure is subject to their licensing authority.

If we can be of further assistance, please contact our

office at (202) 267-4525, or david.maddox@faa.gov.

On any future correspondence concerning this matter,

please refer to Aeronautical Study Number 2018-ANE1643-OE.

App. 27

Signature Control No: 357417092-359408333

David Maddox

Specialist

(DNE)

Attachment(s)

Additional Information

Case Description

Map(s)

cc: FCC

Additional information

for ASN 2018-ANE-1643-OE

In addition to marking and lighting condition above,

Spherical markers approved.

Case Description for ASN 2018-ANE-1643-OE

Replace existing electrical transmission tower, adjacent to the existing tower with a new lattice tower 240'

tall.

App. 28

TOPO Map for ASN 2018-ANE-1643-OE

App. 29

APPENDIX D

§1257.

State courts; certiorari

(a) Final judgments or decrees rendered by the highest court of a State in which a decision could be had,

may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the

United States is drawn in question or where the validity of a statute of any State is drawn in question on the

ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title,

right, privilege, or immunity is specially set up or

claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised

under, the United States.

(b) For the purposes of this section, the term “highest

court of a State” includes the District of Columbia

Court of Appeals.

(June 25, 1948, ch. 646, 62 Stat. 929 ; Pub. L. 91-358,

title I, §172(a)(1), July 29, 1970, 84 Stat. 590 ; Pub. L.

100-352, §3, June 27, 1988, 102 Stat. 662 .)

App. 30

APPENDIX E

49 USC 1301: Establishment of Board Text contains

those laws in effect on March 21, 2022

From Title 49-TRANSPORTATIONSUBTITLE

II-OTHER GOVERNMENT AGENCIESCHAPTER

13-SURFACE TRANSPORTATION

BOARDSUBCHAPTER I-ESTABLISHMENT

Jump To: Source CreditMiscellaneousAmendmentsEffective DateSavings ProvisionConstruction

§1301.

Establishment of Board

(a) Establishment.-The Surface Transportation Board

is an independent establishment of the United States

Government.

(b) Membership.-(1) The Board shall consist of 5

members, to be appointed by the President, by and

with the advice and consent of the Senate. Not more

than 3 members may be appointed from the same political party.

(2)

At all times-

(A) at least 3 members of the Board shall be individuals with professional standing and demonstrated

knowledge in the fields of transportation, transportation regulation, or economic regulation; and

(B) at least 2 members shall be individuals with professional or business experience (including agriculture) in the private sector.

(3) The term of each member of the Board shall be 5

years and shall begin when the term of the predecessor

App. 31

of that member ends. An individual appointed to fill a

vacancy occurring before the expiration of the term for

which the predecessor of that individual was appointed, shall be appointed for the remainder of that

term. When the term of office of a member ends, the

member may continue to serve until a successor is appointed and qualified, but for a period not to exceed one

year. The President may remove a member for inefficiency, neglect of duty, or malfeasance in office.

(4) No individual may serve as a member of the

Board for more than 2 terms. In the case of an individual appointed to fill a vacancy occurring before the expiration of the term for which the predecessor of that

individual was appointed, such individual may not be

appointed for more than one additional term.

(5) A member of the Board may not have a pecuniary

interest in, hold an official relation to, or own stock in

or bonds of, a carrier providing transportation by any

mode and may not engage in another business, vocation, or employment.

(6) A vacancy in the membership of the Board does

not impair the right of the remaining members to exercise all of the powers of the Board. The Board may

designate a member to act as Chairman during any period in which there is no Chairman designated by the

President.

(c) Chairman.-(1) There shall be at the head of the

Board a Chairman, who shall be designated by the

President from among the members of the Board. The

Chairman shall receive compensation at the rate

App. 32

prescribed for level III of the Executive Schedule under

section 5314 of title 5.

(2) Subject to the general policies, decisions, findings,

and determinations of the Board, the Chairman shall

be responsible for administering the Board. The Chairman may delegate the powers granted under this paragraph to an officer, employee, or office of the Board.

The Chairman shall(A) appoint and supervise, other than regular and

full-time employees in the immediate offices of another

member, the officers and employees of the Board, including attorneys to provide legal aid and service to the

Board and its members, and to represent the Board in

any case in court;

(B) appoint the heads of offices with the approval of

the Board;

(C) distribute Board business among officers and employees and offices of the Board;

(D) prepare requests for appropriations for the Board

and submit those requests to the President and Congress with the prior approval of the Board; and

(E) supervise the expenditure of funds allocated by

the Board for major programs and purposes.

(Added Pub. L. 104-88, title II, §201(a), Dec. 29, 1995,

109 Stat. 932, §701; amended Pub. L. 104-287, §5(5),

Oct. 11, 1996, 110 Stat. 3389 ; renumbered §1301 and

App. 33

amended Pub. L. 114-110, §§3(a)(3), (b), 4, Dec. 18,

2015, 129 Stat. 2228, 2229.)

App. 34

APPENDIX F

CONSTITUTION OF THE UNITED STATES

Article. VI.

All Debts contracted and Engagements entered

into, before the Adoption of this Constitution, shall be

as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof; and

all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any state to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of

the United States and of the several States, shall be

bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a

Qualification to any Office or public Trust under the

United States.