Waterkeeper Alliance, Inc. v. Md. Dep't of Agric.

• Decision Date: 18 July 2014
• Docket Number: No. 87,Sept. Term, 2013.,87
• Parties: WATERKEEPER ALLIANCE, INC., et al. v. MARYLAND DEPARTMENT OF AGRICULTURE et al.
• Court: Maryland Court of Appeals

439 Md. 262

96 A.3d 105

WATERKEEPER ALLIANCE, INC., et al.

v.MARYLAND DEPARTMENT OF AGRICULTURE et al.

No. 87, Sept. Term, 2013.

Court of Appeals of Maryland.

July 18, 2014.

Tarah Heinzen (Leah Kelly, Environmental Integrity Project, Washington, DC), on brief, for Petitioners.

Kevin P. Lee, Esq., Washington, DC, for Amicus Curiae brief of Sierra Club in support of Petitioners Waterkeeper Alliance, Inc.

Thomas F. Filbert, Asst. Atty. Gen. (Craig A. Nielsen, Asst. Atty. Gen., Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondents.

Margaret M. Witherup (Gordon Feinblatt, LLC, Baltimore, MD), on brief, for Respondents.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, ADKINS, LAWRENCE F. RODOWSKY (Retired, Specially Assigned) and IRMA S. RAKER (Retired, Specially Assigned), JJ.

HARRELL, J.

“ There's many a slip ‘twixt’ the cup and the lip.”

—Old English proverb

Although the parties have spent considerable time presenting, for our benefit, the substantive law pertaining to the merits of the case, none ensured that the procedural posture of the appeal was proper. For the forthcoming reasons, this Court must dismiss the present appeal for lack of jurisdiction.

I. BACKGROUND

The controversy giving rise to the present appeal began in the summer of 2007, when Waterkeeper Alliance, Inc. (“WKA”) submitted to the Maryland Department of Agriculture (“MDA”) a pair of requests for certain public records. In those requests, WKA sought to obtain the specific nutrient management plans (“NMPs”) of various private farming operations on Maryland's Eastern Shore, along with any supporting documentation related to the NMPs. WKA submitted the requests pursuant to the Maryland Public Information Act (“PIA”), Maryland Code (1984, 2009 Repl.Vol.), State Government Article, §§ 10–601 to 10–628, ¹ which allows generally for the inspection and receipt of copies of public records. The MDA denied WKA's requests, on the basis that § 10–615(2)(i) ² of the PIA exempted disclosure of the NMP inspection records, citing Md.Code (1973, 2007 Repl.Vol.), Agriculture Art., § 8–801.1(b)(2)³ as the operative excepting statute.

On 4 February 2008, WKA and eight other environmental advocacy groups filed an action (“WKA action”) against the MDA and three of its executives in the Circuit Court for Anne Arundel County (“Anne Arundel Circuit Court”) to obtain the recordsWKA sought.⁴ WKA's Complaint alleged four legal grounds, which it labeled “Causes of Action,” upon any of which the court should order the MDA to produce the records:

[1] On its Face, Md.Code Ann., Agric. § 8–801(b)(2) [sic] Constitutes a Violation of the Rights Conferred on Citizens by Article 6 of Maryland's Declaration of Rights....

[2] Md.Code Ann., Agric. § 8–801(b)(2) [sic] is a “Special Law” That Violates Article III, § 33 of the Maryland Constitution....

[3] Md.Code Ann., Agric. § 8–801(b)(2) [sic] Constitutes a Violation of the Rights Conferred on Citizens by the First Amendment to the U.S. Constitution....

[4] The Denial of Access to Nutrient Management Plans Violates the Maryland Public Information Act.

To remedy the alleged violations, the Complaint pressed six distinct, but at times overlapping, prayers for relief:

The Waterkeepers pray that this [c]ourt:

(1) declare[ ] Md.Code Ann., Agric. § 8–801(b)(2) [sic] unconstitutional under the Maryland and United States Constitutions;

(2) enjoin[ ] the defendants from withholding the public records sought by Waterkeeper;

(3) order[ ] the defendants to produce the public records improperly withheld;

(4) order[ the] defendants to pay actual and punitive damages for the failure to disclose public records;

(5) order[ the] defendants to pay reasonable attorney fees and other litigation costs, including attorney and expert fees; and

(6) grant[ ] other relief as the Court deems appropriate.

Following WKA's filing of the Complaint, the parties engaged in discussions as to what specific information the MDA might be required to disclose. No apparent settlement was reached, and the case remained “live.” After the discussions concluded, WKA filed on 16 May 2008 a third request with the MDA for information, which the MDA approved tentatively.

On 18 July 2008, before the MDA could fulfill WKA's third PIA request, the Maryland Farm Bureau, Inc. (“MFB”) and three anonymous farmers filed a related action (“MFB action I”) against the MDA in the Circuit Court for Dorchester County (“Dorchester Circuit Court”). MFB alleged in its Complaint that the “[MDA] received a request pursuant to the Maryland [PIA] for the disclosure of certain [NMP] information[,] ... [including] all [NMPs], plan summaries, and records of inspection or enforcement against poultry operations located in Dorchester, Queen Anne's Somerset, Talbot, Wicomico, and Worcester Counties.” The Complaint asserted two counts-one alleging grounds for a declaratory judgment as to the scope and temporal limitations of Agric. § 8–801.1(b)(2),⁵ and the other alleging grounds for preliminary and permanent injunctions to enjoin the MDA from disclosing confidential information. MFB identified four prayers for relief:

[1] A declaration that Agric. § 8–801.1(b)(2) requires that: (a) the Department maintain nutrient management plan summaries for three years; and (b) the Department maintain all nutrient management plan information in a manner that protects the identity of the individual for whom the nutrient management plan was prepared, without any time limitation;

[2] Preliminary and permanent injunctive relief preventing the Department from disclosing confidential nutrient management information identifying the Farmers or other members of the Maryland Farm Bureau;

[3] Award of plaintiffs' attorney's fees and costs in pursuing this litigation;

[4] Such other and further relief as the Court deems appropriate.

In response to the Scylla and Charybdis effect of the actions against it, the MDA filed a motion in the Dorchester Circuit Court requesting a transfer of MFB action I to the Anne Arundel Circuit Court. On 2 September 2008, the Dorchester Circuit Court granted the MDA's motion. After MFB action I was transferred to the Anne Arundel Circuit Court, the MDA filed in that court a Motion to Consolidate the WKA and MFB actions.

While the Motion to Consolidate was pending, MFB filed a Motion for Summary Judgment with respect to MFB action I, Anne Arundel Circuit Court Case No. 02–C–08–134331, stating that MFB is “entitled to summary judgment declaring the proper interpretation of Agric. § 8–801.1(b)(2).” The MDA filed a Cross–Motion for Summary Judgment in MFB action I. On 17 October 2008, the Anne Arundel Circuit Court granted the MDA's Motion to Consolidate. The court consolidated the dockets of the WKA and MFB actions, and designated MFB action I, Case No. 02–C–08–134331, as the “lead case.” ⁶ WKA filed then a Motion in Opposition to MFB's Motion for Summary Judgment and in Support of the MDA's Cross–Motion for Summary Judgment.

The parties addressed the court on the summary judgment motions and oppositions during a hearing on 8 December 2008 (“the 2008 hearing”). Two months later, the trial judge issued a Memorandum Opinion and, on 10 February 2009, issued an Order (“2009 Order”) in which it granted the MDA's Cross–Motion for Summary Judgment, denied MFB's Motion for Summary Judgment, including the following language in the order:

DECLARED, that the Maryland Department of Agriculture must disclose Nutrient Management Plan Summaries that have been maintained by the Department of Agriculture for 3 years or less pursuant to the Public Information Act with the limitation that the Maryland Department of Agriculture must redact any and all information from the Nutrient Management Plan Summaries that may allow for the identification of the individual for whom the nutrient management plan was prepared; and it is further

DECLARED, that the Maryland Department of Agriculture must disclose Nutrient Management Plan Summaries that have been maintained by the Department of Agriculture for more than three years without any redaction of identifying information unless failure to redact identifying information from Nutrient Management Plan Summaries that have been held for more than three years would allow for the identification of the individual for whom the Nutrient Management Plan was prepared with respect to those Nutrient Management Plan Summaries that have been maintained by the Maryland Department of Agriculture for three years or less; and it is further

DECLARED, that the Maryland Department of Agriculture must redact any information from any documents subject to disclosure under the Public Information Act that are related to Nutrient Management Plans if such information would allow for the identification of the individual for whom the Nutrient Management Plan was prepared with respect to those Nutrient Management Plan Summaries that have been maintained by the Maryland Department of Agriculture for three years or less.

No further litigation activity was reflected on the docket immediately following entry of the 2009 Order.

Over a year later, however, on 2 April 2010, the MDA received another PIA request regarding specific NMP information, this time from Assateague Coastkeeper (“Coastkeeper”), a co-plaintiff in the WKA action. Coastkeeper requested essentially the same information that WKA sought in its PIA requests and the resulting litigation.⁷ Unbeknownst to Coastkeeper, the MDA and MFB engaged in communications to determine which information might be disclosed to Coastkeeper. The MDA told MFB that, among other things, it intended to provide Coastkeeper with an electronic spreadsheet containing information regarding the MDA inspections and enforcement actions involving MFB members. MFB asked the MDA to delay releasing the spreadsheet so that it could “develop a legal strategy” to prevent disclosure of any confidential information within the spreadsheet.

On 13 September...