McCue v. Bradstreet

• Decision Date: 30 July 2014
• Docket Number: Civil Action No. 1:12–cv–00204–JDL.
• Citation: McCue v. Bradstreet, 36 F.Supp.3d 169 (D. Me. 2014)
• Court: U.S. District Court — District of Maine
• Parties: Carl D. McCUE, Plaintiff, v. Seth BRADSTREET, III, Defendant.

36 F.Supp.3d 169

Carl D. McCUE, Plaintiff

v.Seth BRADSTREET, III, Defendant.

Civil Action No. 1:12–cv–00204–JDL.

United States District Court, D. Maine.

Signed July 30, 2014.

David G. Webbert, Johnson Webbert & Young LLP, Augusta, ME, for Plaintiff.

Christopher C. Taub, Office of the Attorney General, Augusta, ME, for Defendant.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JON D. LEVY, District Judge.

This matter is before the court on the Motion for Summary Judgment filed by the defendant, Seth Bradstreet, III(ECF No 38).After careful review, I conclude that Bradstreet's motion for summary judgment should be GRANTED.

I.INTRODUCTION

Carl McCue claims that in 2006 and 2007, Bradstreet, then the Maine Commissioner of Agriculture, retaliated against him for constitutionally-protected speech.¹He seeks relief pursuant to 42 U.S.C. § 1983.SeeComplaint, ECF No. 1.

McCue is a dairy farmer with a history of allegations that he engaged in poor animal waste management at his farm in Dixmont, Maine, made by local residents and officials of the Maine Department of Agriculture(“DOA”).ECF No. 1at 3;ECFNo. 37–1at 1.Despite his record, McCue alleges that for years, the DOA took no enforcement action against him and even protected him from enforcement action by the Maine Department of Environmental Protection(“DEP”).Pl.'s Stmt. of Undisp.Mat.Facts, ECF No. 57at 85, ¶ 200.McCue further alleges that shortly after Bradstreet became the DOA's Commissioner in March 2006, the DOA abruptly changed its protective posture toward him and allowed the DEP to proceed with enforcement action.ECF No. 1at 1.McCue asserts that he and Bradstreet shared a bitter personal history arising out of a dispute that preceded Bradstreet's appointment as DOA Commissioner.The dispute centered on a federal crop subsidy that both men competed for, and which was the subject of a successful appeal that McCue filed with the U.S. Department of Agriculture(“U.S.D.A.”).ECF No. 57at 88, ¶¶ 210–215.McCue further alleges that, as a result of his successful appeal to the U.S.D.A., Bradstreet was required to repay approximately $7,000 to the U.S.D.A. shortly after he took office as Commissioner of Agriculture, and that an angry and retaliatory Bradstreet subsequently caused his subordinates at the DOA to “give up” McCue to the DEP for enforcement.ECF No. 45at 1–2.This enforcement action allegedly caused McCue to lose financing he had secured for upgrades and equipment on the farm, ultimately leading to his loss of the farm altogether.ECF No. 57at 98–99, ¶¶ 241–244.

II.FACTUAL BACKGROUND

A brief overview of the agricultural and environmental regulation of cow manure in Maine is necessary in order to put the full record in context.

Although manure is a valuable resource as a natural fertilizer, it can also degrade environmental quality if not properly managed, particularly if a farm that produces animal waste is located near a body of water.Def.'s Stmt. of Undisp.Mat.Facts, ECF No. 33at 1, ¶ 1.Due to these environmental concerns, the State requires farms that meet certain statutory criteria to develop and abide by a “Nutrient Management Plan,” a written document that establishes how the farm will store, manage, and use manure.Id. at 1–2, ¶¶ 3, 4 (citing7 M.R.S. § 4204 ).If a farm raises and keeps cows in confined conditions within a small area, then state regulators may determine that the farm qualifies as a “Concentrated Animal Feeding Operation.”Id. at 2, ¶¶ 7, 8.Because such farms have a smaller land area upon which to spread cow manure, Concentrated Animal Feeding Operations pose heightened concerns of manure spilling or seeping into nearby bodies of water.Id.These concerns are compounded further during the winter months, when the ground is frozen and manure that is spread on the ground can run off into nearby bodies of water.ECF No. 57at 110, ¶ 288.

Against this background, the summary judgment record, viewed in the light most favorable to McCue, as the non-moving party, reveals the following facts.

A. McCue's History with the DOA

From 2004 through early 2007, McCue was the sole shareholder of Country Acres Farms, Inc., which owned and operated a dairy farm (“Country Acres” or “the Farm”) in Dixmont, Maine.²ECF No. 1at 3.The Farm, home to as many as 500 cows, generated a significant amount of manure that was stored on-site in two manure storage pits, an “old” one and a “new” one.ECF No. 33at 3, ¶¶ 11, 12.The Farm's old manure pit was located approximately 300 feet from Martin Stream, which is classified by Maine statute as a “Class A” waterway, thus signifying that it is suitable for fishing and recreation, as a habitat for fish and other aquatic life, and for drinking water after disinfection.ECF No. 37at 3–4, ¶ 12.

McCue's manure management practices were alleged to be deficient, as evidenced by a record of complaints lodged by citizens of Dixmont and by scrutiny he received from the DOA over a period of years.ECF No. 36at 2, ¶¶ 7, 8;ECFNos. 34–3, 52, and 37–1 at 1.In February and November 2000, the DOA inspected Country Acres and noted that “[i]t is apparent that you [McCue] continue to ignore recommendations of this Department to comply with Best Management Practices.”ECF Nos. 52 and 52–1.In November 2002, a DOA official inspected Country Acres again and noted that the Farm did not meet most of the requirements of state nutrient management law and recommended against issuing a Livestock Operations Permit.ECFNo. 34–3at 6.A January 2004 inspection by the DOA “revealed that unacceptable progress has been made to lower the [manure] pit to an acceptable level.”ECFNo. 52–2.

While DOA officials may have criticized McCue, there is no indication that they took formal enforcement action against Country Acres, either.In fact, in April 2003, the DOA granted Country Acres a provisional Livestock Operations Permit on the condition that McCue comply with certain specific conditions, including paving the yard in front of the Farm's barn and developing a carcass disposal plan.ECFNo. 34–4at 2.Deputy DOA Commissioner Edwin Porter(“Porter”) testified that it was the DOA's preference to refrain from taking enforcement action against a farmer as long as the farmer was making “significant progress” with regard to manure management requirements.Porter Dep., ECFNo. 30–18at 8.

In July 2005, prompted by complaints from local residents, DEP officials inspected Country Acres and found that manure was leaking into Martin Stream.ECFNo. 37–1at 2.Officials from both the DEP and the DOA then performed a followup inspection in August, after which they met and determined that Country Acres should be jointly licensed by both agencies as a Concentrated Animal Feeding Operation.Doak Aff., ECF No. 35at 2, ¶ 9;ECFNo. 37–1;see alsoECFNos. 36–2and36–3.

The DEP informed McCue of the two agencies' licensing determination in late August 2005, and, in the same letter, it also issued a notice of violation for the deficiencies observed during the recent inspections.ECFNo. 37–1at 1.According to DEP official James Crowley, the notice of violation constituted an enforcement action, which “catalyzed a ‘significant’ inter-departmental conflict” between the DEP and the DOA, notwithstanding their recent joint action.ECFNos. 32–2at 1 and 47–1.The DOA was concerned that taking any enforcement action against McCue might jeopardize funding for Country Acres from the federal Natural Resources Conservation Service (“NRCS”).Seeid.Therefore, just one month after jointly determining that Country Acres should be licensed as a Concentrated Animal Feeding Operation, the two agencies changed tack and decided that the DOA, alone, would oversee the necessary permitting of Country Acres.Id.According to Crowley, the DEP enforcement action would “evaporate.”ECFNo. 30–20.

In October 2005, McCue submitted an application for a Livestock Operations Permit to the DOA (ECFNo. 34–6) as part of the Concentrated Animal Feeding Operation permitting process, but the application failed to document that McCue owned sufficient land on which to spread or store manure, or that he had permission to spread or store manure on someone else's land.ECF No. 34at 7, ¶ 29.Mark Hedrich, the DOA's Nutrient Management Coordinator, wrote to McCue to inform him that the DOA could not process his application until he provided more information.ECFNo. 34–7.McCue did not immediately respond to Hedrich.³Hedrich Aff., ECF No. 34at 9, ¶ 34.

By February 2006, the two agencies were once again receiving citizen complaints about manure-handling practices at Country Acres.SeeECF No. 36at 4, ¶¶ 17–19;ECFNos. 35–7and36–10.Sheila Doak, the director of the DOA's Animal Health and Industry Division, wrote to local Dixmont activist Peter Hickey that McCue was “continuing to work with a representative from the NRCS,” and that “[w]e continue to work diligently with Carl to outline short and long term solutions for these two manure pits.”ECFNo. 30–23.DEP official James Crowley explained to Hickey that “the DEP can't ‘take over’the case, for enforcement or unilateral licensing, unless requested to do so from Agriculture,” and stated that “I'd be willing to bet that there are other similar situations around the state that are in similarly rough shape, but that aren't getting any attention, due to lack of any local guardian angels.”ECFNo. 30–24at 1.

Bradstreet was nominated by Governor John Baldacci to be the Commissioner of Agriculture on March 7, 2006, and took office on March 27.ECF No. 1at 9, ¶ 42.

B.The Crop Subsidy Dispute

Somewhat contemporaneously with the events described above, McCue and Bradstreet entered into and fell sharply out of a business relationship concerning corn.

In October 2004, McCue leased farmland from Bradstreet in order to grow corn to feed his dairy cows, and began planting the first crop during the 2005 season.ECF No. 1at 3–4, ¶¶ 9, 13.This...