Abbott v. Commissioner of Inland Fisheries and Wildlife

• Decision Date: 21 April 1993
• Citation: 623 A.2d 1273
• Parties: John W. ABBOTT v. COMMISSIONER OF INLAND FISHERIES AND WILDLIFE.
• Court: Maine Supreme Court

Page 1273

623 A.2d 1273

John W. ABBOTT v. COMMISSIONER OF INLAND FISHERIES AND WILDLIFE.

Supreme Judicial Court of Maine.

Argued March 3, 1993.

Decided April 21, 1993.

John W. Abbott, pro se (orally).

Cabanne Howard (orally), Deputy Atty. Gen., Augusta, for defendant.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, COLLINS and RUDMAN, JJ.

GLASSMAN, Justice.

John W. Abbott appeals from a judgment entered in the Superior Court (Cumberland County, Brennan, J.) affirming the decision of the Commissioner of Inland Fisheries and Wildlife denying Abbott's petition for a set-aside for noncommercial public use of the recreational use limit for the Kennebec and the West Branch of the Penobscot Rivers pursuant to 12 M.R.S.A. § 7369(6) (Pamph.1992). Abbott contends that the Commissioner erred as a matter of law in concluding that a set-aside is not required under the present conditions on the rivers. We find no error in the record, and accordingly, we affirm the judgment.

Whitewater rafting in Maine is regulated pursuant to 12 M.R.S.A. §§ 7361 to 7370-A (Pamph.1992). The statute establishes maximum recreational use limits on the Kennebec River of 800 commercial passengers on weekends and 1,000 commercial passengers on weekdays and on the West Branch of the Penobscot River of 560 commercial passengers every day between 8:30 a.m. and 5:00 p.m. Id. § 7368(2-A) & (3). Commercial recreational use is allocated every five years among licensed whitewater rafting outfitters. Id. § 7369(3) & (6). Although noncommercial recreational use is not limited, id. § 7368(2-A) & (3), the statute provides for a set-aside of up to 10% of the recreational use limit to accommodate noncommercial public use. Id. § 7369(6).

On October 26, 1990, the deadline established by the Commissioner for applications for commercial recreational use allocations, Abbott filed a petition for a noncommercial public use set-aside. In early November, after reviewing all the applications, the Commissioner announced the preliminary allocation of commercial use and denied Abbott's petition. The Commissioner determined that the Legislature had provided a 200-passenger allocation for noncommercial public rafting on the Kennebec on weekends by the difference in the weekday and weekend commercial use limits; and declined to consider a set-aside until the combined commercial and noncommercial recreational use on weekends reached the higher weekday commercial use limit. As to the Penobscot, the Commissioner determined that no set-aside was necessary because commercial use is declining and noncommercial use of whitewater craft is low.

Abbott requested the Commissioner to reconsider his decision. On December 3, 1990, the Commissioner issued final 1991-95 recreational use allocations that made no provision for the noncommercial public use set-aside sought by Abbott. On January 7, 1991, Abbott filed a complaint, pursuant to M.R.Civ.P. 80C, seeking a review by the Superior Court of the Commissioner's ruling. ¹ Following a hearing, the court affirmed the Commissioner's decision, and Abbott appeals.

On an appeal from an intermediate appellate review of an administrative decision, we review the agency decision directly for abuse of discretion, errors of law, or findings not supported by the evidence. Lewiston Raceway, Inc. v. Harness Racing Comm'n, 593 A.2d 663, 664 (Me.1991). When the dispute involves the agency's interpretation of a statute, although the agency's construction is not conclusive on the court, its interpretation of a statute administered by it is entitled to great deference and will be upheld unless the statute plainly compels a contrary result. Senty v. Board of Osteopathic Exam. & Reg., 594 A.2d 1068, 1072 (Me.1991).

The statutory provision at issue states:

Based on the demand for noncommercial public use, the department shall set aside up to 10% of the recreational use limit on any particular rapidly flowing river for noncommercial public use of whitewater craft.

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