New England Whitewater Center, Inc. v. Department of Inland Fisheries and Wildlife

• Citation: 550 A.2d 56
• Parties: NEW ENGLAND WHITEWATER CENTER, INC. et al. v. DEPARTMENT OF INLAND FISHERIES AND WILDLIFE et al.
• Decision Date: 12 October 1988
• Court: Maine Supreme Court

Page 56

550 A.2d 56

NEW ENGLAND WHITEWATER CENTER, INC. et al. v. DEPARTMENT OF INLAND FISHERIES AND WILDLIFE et al.

Supreme Judicial Court of Maine.

Argued June 17, 1988.

Decided Oct. 12, 1988.

Cabanne Howard (orally), Deputy Atty. Gen., Augusta, for Dept. of Inland Fisheries.

Gordon H.S. Scott (orally), Eaton, Peabody, Bradford & Veague, Augusta, for Maine Whitewater-Intervenor.

Rufus E. Brown (orally), Drummond, Woodsum, Plimpton & MacMahon, Portland, for New England Whitewater.

Linda Smith Dyer (orally), Dyer & Goodall, Augusta, for John Palmer.

John Alsop (orally), Poland & Ketterer, Skowhegan, for North Country Rivers.

Before McKUSICK, C.J., ^* and ROBERTS, WATHEN, GLASSMAN,* SCOLNIK, ^** CLIFFORD and HORNBY, JJ.

CLIFFORD, Justice.

The Department of Inland Fisheries and Wildlife (the "Department") and intervenors Downeast Rafting Co., Maine Whitewater, Inc., and Wilderness Rafting Expeditions, appeal from a judgment entered in the Superior Court (Kennebec County; Alexander, J.), sustaining consolidated appeals brought under M.R.Civ.P. 80C by the petitioners-appellees, New England Whitewater Center, Inc. ("New England Whitewater"), John Palmer d/b/a All Outdoors ("Palmer") and North Country Rivers, Inc. ("North Country Rivers"). We affirm the judgment in part and vacate in part.

This case involves a dispute over allocations issued by the Department for commercial whitewater rafting on the Kennebec and Penobscot Rivers. These rivers are extensively used by whitewater outfitting companies. Outfitters run passengers down the rivers on whitewater rafts in return for a fee.

The regulation of whitewater rafting in Maine began in 1983 with the passage of the Commercial Whitewater Rafting Act (the "Act"), P.L. 1983, ch. 502, now codified as 12 M.R.S.A. §§ 7361-7370-A (Supp.1987). The Act's purpose was, in part, to minimize potential despoliation of heavily used rivers by limiting the number of passengers that commercial outfitters could ferry down the rivers. Two of the most popular rivers for whitewater rafting have been the Kennebec and the West Branch of the Penobscot, identified in the statute as West Branch Penobscot ("Penobscot"), because dams on those rivers are opened at pre-arranged times, causing an onrush of water that is ideal for rafting. The Act limits the total number of commercial passengers on those rivers. On weekends, the limit is 800 on Saturdays and no limit on Sundays for the Kennebec River and 560 per day on Saturday and Sunday for the Penobscot River. 12 M.R.S.A. § 7368. ¹

The Act also limits the total number of passengers each outfitter can carry per day to 80. 12 M.R.S.A. § 7369(2). The minimum daily number of passengers allocated to each outfitter, if an outfitter receives an allocation, is 20 for the Kennebec River and 16 for the Penobscot River. 12 M.R.S.A. § 7369(3). The Act further provides that allocations be granted to outfitters by the Department for periods of up to three years. 12 M.R.S.A. § 7369(5).

Applications for the 1988, 1989 and 1990 allocation period were given to outfitters in late 1987. A public hearing was held by the Department on November 16, 1987, after the Department had received completed applications from the outfitters who sought allocations. During the public hearing, a tentative rating system for determining allocations was explained by the Department's Chief Warden, John Marsh. Marsh invited the outfitters present at the hearing to submit additional comments to him for up to 10 days after the hearing, and several outfitters did submit written comments. Preliminary allocations were distributed by the Department on November 27, 1987. In a memorandum dated December 14, 1987, Marsh detailed the scoring methods employed by the Department in determining allocations. This memorandum was followed by a final list of allocations dated December 16, 1987.

North Country Rivers, New England Whitewater and Palmer filed complaints for review of final agency action under M.R.Civ.P. 80C, and 5 M.R.S.A. §§ 11001 & 11002 (1979 & Pamph.1987). The complaints set forth a multiplicity of counts. The primary grounds relied on by the plaintiffs were that the Department's procedure in awarding allocations was arbitrary and capricious, violative of due process and illegal. The cases in this matter were consolidated. Maine Whitewater, Inc., Downeast Rafting Co. and Wilderness Rafting Expeditions, Inc., were allowed to intervene as respondents under M.R.Civ.P. 24(a). Briefs were subsequently submitted by the parties and the court orally delivered its decision on March 11, 1988. The court found that the plaintiffs had a protected property interest in their claims to allocations, and that the allocation procedures used by the Department did not afford the plaintiffs the process they were due under article I, section 6A of the Maine Constitution. ²

In March, a hearing was held regarding requests for attorney fees by the prevailing parties. New England Whitewater's request for attorney fees was granted in the amount of $4,000, pursuant to 42 U.S.C. § 1988 (1981). Notices of appeal to this court were thereafter filed by the Department and the intervenors. In addition, North Country Rivers, Palmer and New England Whitewater cross-appealed. North Country Rivers and Palmer specifically appeal the denial of their requests for attorney fees. ³

I.

The Department initially argues that the plaintiffs have not preserved their due process claims, since they did not raise them in the administrative proceedings below. Generally, plaintiffs in a Rule 80C proceeding for review of final agency action are expected to raise any objections they have before the agency in order to preserve these issues for appeal. Issues not raised at the administrative level are deemed unpreserved for appellate review. Oronoka Restaurant, Inc. v. Maine State Liquor Comm'n, 532 A.2d 1043, 1045 n. 2 (Me.1987); Bayside Enterprises, Inc. v. Maine Agricultural Bargaining Bd., 513 A.2d 1355, 1360-61 (Me.1986); Hale v. Petit, 438 A.2d 226, 232-33 (Me.1981). This rule applies even to unpreserved issues implicating constitutional questions. Oronoka, 532 A.2d at 1045 n. 2, (citing Maine Real Estate Comm'n v. Kelby, 360 A.2d 528, 530 (Me.1976)).

Several arguments are raised by the plaintiffs in response to the Department's contention of failure to preserve. Palmer and North Country Rivers argue that the plaintiffs should not be deemed to have failed to preserve the due process questions because it would have been fruitless to raise the issues and because they had no adequate forum in which to raise them. This contention is without merit. Although the Department reminded the parties of the procedural time constraints under which they were operating, the plaintiffs were not denied an opportunity to register legal objections at any time during the allocation proceedings. A full-fledged adjudicatory hearing was not held during the allocation process, ⁴ but a public hearing was held on November 16, 1987, and the plaintiffs were able to comment on the process at the hearing and submit written comments to the Department after the hearing. Moreover, the plaintiffs cite no authority for the proposition that the provision of an adjudicatory hearing was the only way they could have notified the Department of their objections to the procedure employed.

In addition, New England Whitewater and Palmer argue that the Department itself failed to preserve the failure to preserve argument by not raising it at the Superior Court level. However, the record indicates that the failure to preserve issue was brought to the attention of the Superior Court in a timely manner by the intervenors in this case, both in their Superior Court brief and during oral argument. M.R.Civ.P. 24 provides the mechanism for intervention. Rule 24(a) permits intervention when an applicant seeking status as an intervenor claims an interest in the subject of the litigation and asserts that disposition of the action may impair his or her ability to protect that interest. Donna C. v. Kalamaras, 485 A.2d 222, 223 (Me.1984). A person who intervenes in a pending action becomes a party to that action and, as a general rule, has the same rights and liabilities as the original parties. 59 Am.Jur.2d Parties § 170, at 667, § 178, at 677-78 (1987); 67A C.J.S. Parties § 85, at 841 (1978). Once the intervenors in this case were permitted to intervene they became party litigants in the case with the right to raise and litigate independent issues for the Superior Court to consider. Spence v. Boston Edison Co., 390 Mass. 604, 459 N.E.2d 80, 85 (1983) (quoting In re Raabe, Glissman & Co., 71 F.Supp. 678, 680 (S.D.N.Y.1947)); Williams v. Nussbaum, 419 So.2d 715, 717 n. 1 (Fla.App.1982); Teleco, Inc. v. Corporation Comm'n of State of Okla., 649 P.2d 772, 773 n. 2 (Okla.1982). Since the intervenors are aligned with the Department in this case, it was unnecessary for the Department to raise the failure to preserve argument once it was raised by the intervenors in the Superior Court. There is, moreover, no indication that the Department attempted to waive affirmatively or otherwise disassociate itself from the failure to preserve issue once it was raised by the intervenors in the Superior Court. ⁵ Because the Department did not waive the issue once it was raised by the intervenors, the issue was preserved for review with respect to the Department and the intervenors, all of whom, by definition, are party litigants in this case.

New England Whitewater also argues that since the Department was not in a position to conduct any factfinding in this case, the failure to preserve rule should not be applied to the plaintiffs. However, this argument fails to apprehend a significant difference between the rule as it is applied to trial courts and the rule in the context of administrative proceedings. Whereas the former rule is based on a policy of allowing trial courts to narrow the focus of...