Friedman v. Bd. of Environmental Protection
| Decision Date | 09 October 2008 |
| Docket Number | Docket: Sag-07-712.,Docket: Sag-07-711.,Docket: Ken-08-36. |
| Parties | Ed FRIEDMAN et al. v. BOARD OF ENVIRONMENTAL PROTECTION. |
| Court | Maine Supreme Court |
David A. Nicholas, Esq., Newton, MA, Bruce M. Merrill, Esq., Portland, ME, for Ed Friedman and Friends of Merrymeeting Bay.
Douglas H. Watts, Augusta, ME, pro se.
G. Steven Rowe, Attorney General, Janet M. McClintock, Asst. Atty. Gen., Augusta, ME, for Maine Board of Environmental Protection.
Matthew D. Manahan, Esq., Sarah A. Verville, Esq., Pierce Atwood, LLP, Portland, ME, for Parties-in-Interest Hackett Mills Hydro Associates, Hydro Kennebec Limited Partnership, Messalonskee Stream Hydro, LLC, Ridgewood Maine Hydro Partners, L.P., and Rumford Falls Hydro LLC.
Kelly B. Boden, Esq., Verrill Dana, LLP, Portland, ME, for Party-in-Interest Verso Androscoggin LLC.
David Swetnam-Burland, Esq., Stacy O. Stitham, Esq., Brann & Isaacson, Lewiston, ME, for Party-in-Interest Miller Hydro Group.
Jeffrey A. Thaler, Esq., Sarah B. Tracy, Esq., Bernstein, Shur, Sawyer & Nelson, P.A., Portland, ME, for Parties-in-Interest FPL Energy Maine Hydro LLC, Merimil Limited Partnership, and Topsham Hydro Partners, L.P.
Lynne A. Williams, Esq., Bar Harbor, ME, for Amici Curiae Penobscot Bay Watch, The Forest Ecology Network, Peace Action Maine, and Friends of Sebago Lake.
Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, SILVER, MEAD, and GORMAN, JJ.
[¶1] Ed Friedman, Friends of Merrymeeting Bay (FOMB), and Douglas Harold Watts appeal from judgments of the Superior Court (Sagadahoc County, Horton J., and Kennebec County, Jabar, J.) dismissing Friedman's, FOMB's, and Watts's M.R. Civ. P. 80C appeals for lack of subject matter jurisdiction. The appellants' three separate appeals have been consolidated. Appellants contend that the Superior Court erred in holding that the Board of Environmental Protection has nonreviewable discretion to decline to act on appellants' petitions to modify water quality certifications issued to owners of hydropower projects on various Maine rivers by the Department of Environmental Protection. They also contend that the court erred in ruling that Board action on a petition to modify is never "final" because a new petition can be filed at a later date. Finally, they contend that even if the Board's dismissals of the petitions are not final actions, the Rule 80C actions should not have been dismissed because the "no adequate remedy" exception applies.1 We affirm, but on different grounds from those relied on by the Superior Court.
[¶2] Watts submitted a petition to the Board of Environmental Protection to modify the water quality certifications issued for a number of dams on the Kennebec River to provide immediate, safe, downstream passage for various species of fish. On the same day, FOMB filed a similar petition, requesting that the Board modify Maine hydropower permits and water quality certifications for the same dams to provide for immediate, safe, upstream and downstream passage for the same fish species, and also that it modify the dam permits to comply with 38 M.R.S. § 464(10) (2007). Section 464(10) requires existing dams to implement reasonable changes that do not significantly affect existing energy generation and that would result in improvements in habitat and aquatic life. Friedman filed a petition with the Board to modify water quality certifications for a number of dams on the Androscoggin and Little Androscoggin Rivers. Friedman's petition raised the same issues and was based on substantially the same factual basis as those of Watts and FOMB.
[¶3] The Board determined, after holding a public hearing, that it would take no action to modify the certificates at issue under Watts's and FOMB's petitions. The Board, without holding a public hearing, dismissed Friedman's petition and declined to modify the water quality certifications for the dams at issue under his petition.
[¶4] Friedman filed a timely appeal pursuant to M.R. Civ. P. 80C in Superior Court seeking review of the Board's final action. He argued that the Board abused its discretion and requested that the court issue an order for safe and effective eel passage at the dams in question, pursuant to state water quality standards, which, he claimed, were being violated by the Board's current water quality certifications. Friedman requested, in the alternative, an order requiring the Board to hold an adjudicatory hearing on the matter.
[¶5] FOMB filed a similar appeal in Superior Court. FOMB argued, among other things, that the modification of the dams' water quality certifications was required pursuant to 38 M.R.S. § 341-D(3)(E) (2007) and that, as the licenses stood, they violated 38 M.R.S. § 341-D(3)(F) (2007). FOMB argued that the Board's decision was arbitrary, capricious, and characterized by abuse of discretion. FOMB also claimed that the Board's decision was affected by errors of law. FOMB requested, in essence, that the court reverse the Board's decision, order FOMB's petition to be granted, and direct the Board to modify the water quality certifications so as to provide immediate, safe, and effective upstream and downstream passage for eels and fish.
[¶6] Watts also filed an 80C petition for review of final agency action with the Superior Court. Like FOMB, Watts argued that the Board's dismissal of his petition was unsupported by substantial evidence in the record, and was arbitrary, capricious, and characterized by abuse of discretion. He also argued that the Board's decision was affected by errors of law. In essence, Watts requested that the court reverse the Board's decision to dismiss his petition, order the petition to be granted, direct the Board to conduct a public hearing on it, and remand the petition to the Board for a decision that would correct the errors of law made by the Board.
[¶7] The Superior Court (Sagadahoc County, Horton, J.) dismissed Friedman's and FOMB's appeals. As to Friedman's appeal, the court dismissed it for lack of subject matter jurisdiction, "namely the absence of reviewable final agency action for purposes of the Maine Administrative Procedure Act." The court noted that the Board's dismissal of Friedman's petition was not final agency action because Friedman could gather the necessary evidence for a successful petition and petition the Board again. The court also found that the Board's order was not subject to judicial review because it reflected a decision committed to the sole discretion of the Department of Environmental Protection. The court concluded that 38 M.R.S. § 341-D(3) (2007) provides no meaningful standards, and that the statute's language suggests that even if the Board makes findings that allow for modification of a certificate, it is not compelled to act. In its decision on FOMB's appeal, the court adopted the reasoning found in the court's decision in Friedman's case. The Superior Court (Kennebec County, Jabar, J.) subsequently dismissed Watts's appeal.
[¶8] Friedman, FOMB, and Watts appealed to us, and the appeals were consolidated.
[¶9] We review a court's interpretation of a statute de novo as a question of law. State v. Thongsavanh, 2007 ME 20, ¶ 27, 915 A.2d 421, 427. When a statute is not ambiguous, we will interpret the statute without applying rules of construction or examining legislative history or agency interpretation. McGee v. Sec'y of State, 2006 ME 50, ¶ 18, 896 A.2d 933, 939-40; Ashe v. Enter. Rent-A-Car, 2003 ME 147, ¶ 7, 838 A.2d 1157, 1159; Cobb v. Bd. of Counseling Prof'ls Licensure, 2006 ME 48, ¶ 13, 896 A.2d 271, 275. We construe statutes to avoid absurd or illogical results. Dombkowski v. Ferland, 2006 ME 24, ¶ 22, 893 A.2d 599, 604.
[¶ 10] Title 5 M.R.S. § 11001 (2007) provides:
1. Agency action. Except where a statute provides for direct review or review of a pro forma judicial decree by the Supreme Judicial Court or where judicial review is specifically precluded or the issues therein limited by statute, any person who is aggrieved by final agency action shall be...
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