Bayley's Campground Inc. v. Mills, No. 2:20-cv-00176-LEW

• Decision Date: 29 May 2020
• Docket Number: No. 2:20-cv-00176-LEW
• Citation: 463 F.Supp.3d 22
• Parties: BAYLEY'S CAMPGROUND INC., FKT Resort Management LLC, FKT Bayley Limited Partnership, DMJ Parks LLC, Curtis Bonnell, Dolores Humiston, and James Boisvert, Plaintiffs, v. Janet MILLS, Defendant.
• Court: U.S. District Court — District of Maine

463 F.Supp.3d 22

BAYLEY'S CAMPGROUND INC., FKT Resort Management LLC, FKT Bayley Limited Partnership, DMJ Parks LLC, Curtis Bonnell, Dolores Humiston, and James Boisvert, Plaintiffs,

v.Janet MILLS, Defendant.

No. 2:20-cv-00176-LEW

United States District Court, D. Maine.

Signed May 29, 2020

Gene R. Libby, Keith P. Richard, Tyler J. Smith, Libby O'Brien Kingsley & Champion, LLC, Kennebunk, ME, for Plaintiffs.

Kimberly L. Patwardhan, Office of the Attorney General Six State House Station, Christopher C. Taub, Office of the Attorney General, Augusta, ME, for Defendant.

ORDER ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION>

Lance E. Walker, UNITED STATES DISTRICT JUDGE

In response to the nationwide spread of Novel Coronavirus 2019, Governor Janet Mills, like many other governors around the country, has issued a series of executive orders designed to slow the rate of infection. One aspect of Governor Mills' executive orders is a warning to people from away that, unless they own or can rent property in Maine where they can quarantine themselves for 14 days, they will find no shelter here. Meanwhile, the Governor has reopened hotels, inns, and campgrounds to Maine traffic, meaning members of the traveling public who – supposedly – have already completed a 14-day quarantine inside Maine.

In this action, a group of in-state businesses and out-of-state individuals¹ who want to provide and/or access Maine lodging and campground facilities, contend the Governor cannot impose restrictions that deprive non-Mainers of their fundamental right to travel and participate in the commerce that currently is available to Mainers. Given this focus, the action does not threaten to set aside the entire body of executive measures introduced by Governor Mills and her aides, though, if successful, it would kick open the doors to the State's tourist season, unless the Governor modifies her executive orders to restrict lodging and campground activity in ways that do not have the practical effect of discriminating against people from away.

Following a briefing cycle agreed to by the parties,² the matter is now before the Court, not on the ultimate merits, but on a motion for preliminary injunction.

BACKGROUND

For present purposes, the salient facts are as follows. Beginning on April 3, 2020, Governor Mills imposed an executive order, pursuant to powers vested in her under Title 37-B of the Maine Revised Statutes, Chapter 13, stating that all lodging operations must close as non-essential businesses, subject to certain enumerated exceptions. Executive Order 34. The Order also imposed a self-quarantine requirement on all persons entering the State of Maine. Specifically, as part of the larger mission "[t]o preserve the public health and safety, to ensure the public health and health delivery system are capable of serving all, and to help protect those at the highest risk and vulnerability," the Order required that "any person, resident or nonresident, traveling into Maine must immediately self-quarantine for 14 days or for the balance of 14 days dating from the day of arrival, except when engaging in essential services."³

Violations of Executive Order 34 are punishable as a Class E crime, which carries a penalty of up to six months in jail and a $1,000 fine. Relevant to businesses that provide lodging and campground facilities, Executive Order 34 "may be enforced by any governmental department or official that regulates, licenses, permits or otherwise authorizes the operations of occupancy of buildings, parks and campgrounds[,]" and a violation of the Order "may be construed to be a violation of any such license, permit or other authorization to which pertinent penalties may be assessed."

On April 29, 2020, Governor Mills issued Executive Order 49, which extended the effective dates of Executive Order 34 through May 31, 2020. Executive Order 49 also instituted a "Restarting Plan" to govern the easing of COVID-related restrictions. Governor Mills delegated implementation of the plan to the Department of Economic and Community Development, an agency headed by Commissioner Heather Johnson. The Restarting Plan sets out four stages for reopening Maine's economy.

The first stage, extending through May 31, "contemplates a continued ... 14-day quarantine on people entering Maine[,]" and identifies several businesses that may reopen, so long as they comply with detailed checklists. Lodging operations are not among the businesses that may re-open during Stage 1.

The second stage – described as "June" – "contemplates a continued ... 14-day quarantine on people entering Maine." Stage two provides that lodging operations and Campgrounds/RV parks may "[o]pen to Maine residents and out-of-state residents who have completed quarantine guidelines." The stage two "checklist" for Campgrounds provides, among other things, "[g]uest visitation restricted to Maine residents and out of state visitors who have met the 14-day quarantine requirement at this time per executive order."

In the third contemplated stage – "July-August" – the 14-day quarantine continues "on people entering Maine." The stage-three list of openings includes, "[l]odging, such as hotels, campgrounds, summer camps, or RV parks for Maine residents and visitors."

Separate and apart from the quarantine provision, on May 8, 2020, the Governor announced a "Rural Reopening Plan" that will apply in Maine's twelve "rural" counties. It orders that "retail stores and restaurants in Aroostook, Piscataquis, Washington, Hancock, Somerset, Franklin, Oxford, Kennebec, Waldo, Knox, Lincoln, and Sagadahoc counties will be permitted to open in-store and dine-in service with enhanced safety precautions," and that remote campsites and sporting camps will also be permitted to reopen "with public health safeguards" in place. The Rural Reopening Plan does not apply to York, Cumberland, Androscoggin, or Penobscot counties.

*

Bayley's Campground, Inc., d/b/a Bayley's Camping Resort, is a corporation organized under the laws of the State of Maine, with a principal place of business in Scarborough. FKT Resort Management, LLC is a limited liability company organized under the laws of the State of Maine, with a principal place of business in Scarborough, Maine, and the management entity of Little River Bar & Grille and the Seaside Square Café. FKT Bayley Limited Partnership is a limited partnership organized under the laws of the State of Maine, with a principal place of business in Scarborough. DMJ Parks LLC, d/b/a Little Ossipee Campground, is a limited liability company organized under the laws of the State of Maine, with a principal place of business in Waterboro. The KKT and DMJ entities want the quarantine lifted so they can cater to a traveling public that includes folks from away who would like to migrate through Maine for vacation purposes.

Curtis Bonnell is an individual who resides in Salem, New Hampshire. Mr. Bonnell and his wife traditionally spend their weekends at Bayley's Camping Resort in Scarborough, "throughout the camping season." Bonnell Decl. ¶ 4. He reports that both he and his wife have already contracted and recovered from COVID-19 infection. Presuming to be "low risk," Mr. Bonnell objects to the lack of any "process to be heard or present evidence to establish they should either be exempted or not subject to prosecution." Id. ¶ 9.

Dolores Humiston is a school teacher who resides in Meredith, New Hampshire. She has been teaching from home for some time now and since March 26, 2020, she has observed precautions consistent with those imposed on Maine residents by the executive orders. She has "not displayed any symptoms" and, to her knowledge, does not have "the COVID-19 disease." Humiston Decl. ¶ 9. But for the executive orders, she would use her camper every weekend until the school year ends, and then spend the summer at, Bayley's Campground.

James Boisvert is an individual who resides in Scarborough. He also owns a home in Venice, Florida, where he has been staying from May 18 through May 29. Mr. Boisvert also has friends in New Hampshire he likes to visit. He thinks he should be able to pursue some process "to challenge or appeal any enforcement action taken against me if I elect not to quarantine upon my return to Maine." Boisvert Decl. ¶ 11. He states, "I travel observing social distancing and CDC guidance and recommendations." Id. ¶ 8.

Together, these entities and individuals (hereafter, "Plaintiffs") challenge the summer-long application of the 14-day quarantine requirement and the Rural Reopening Plan, which they maintain are unlawful restrictions on interstate travel. Compl. Count 1. Plaintiffs also contend the 14-day quarantine is unconstitutional because it deprives all citizens of a fundamental freedom without due process of law, meaning specifically, without regard to the existence of legitimate grounds to conclude that a given person presents an actual risk to public health. Compl. Count 2. Finally, Plaintiffs challenge the Rural Reopening Plan as a violation of due process and equal protection because it discriminates – arbitrarily they say – in favor of businesses in rural counties. Compl. Count 3.

*

Governor Mills asks that the traveling public consider the circumstances before passing judgment on the wisdom of the 14-day quarantine and Rural Reopening Plan. Her opposition to the motion for preliminary injunction relies on the Declaration of Nirav Dinesh Shah, M.D., J.D., Director of the Maine Center for Disease Control and Prevention, and the Declaration of Derek Langhauser, Chief Legal Counsel to the Governor, who, together with Deputy Legal Counsel Linda Pistner, is the "principal author[ ] of the Governor's emergency executive orders." Langhauser Decl. ¶ 3. The following statistics are drawn from the Governor's May 25 submission; they lay out the facts as construed by the Governor and are not reflective of developments since that date.

On January 31, 2020, the United States Department of Health...