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Friends of Bay v. Keliher

Superior Court of Maine, Hancock

April 10, 2014

FRIENDS OF BLUE HILL BAY Petitioner
v.
PATRICK C. KELIHER, STATE OF MAINE DEPARTMENT OF MARINE RESOURCES Respondent

DECISION

Kevin M. Cuddy, Justice

This matter is before the Court on a Petition for Review of Final Agency Action with regard to the granting of an experimental aquaculture lease to Terrell Gray, pursuant to 12 M.R.S. § 6072-A.

A Public Hearing was held on October 18, 2011, in Surry, Maine, before Aquaculture Hearing Officer Diantha Robinson and transcribed (167 pages and 15 Exhibits). That Transcript and Exhibits were included in the Record on Appeal reviewed by this Court. The Commissioner issued a decision on April 5, 2012, granting the application for an experimental lease. This timely appeal followed. Briefs, Responsive Briefs and Reply Briefs were thereafter submitted to the Court.[1]

Legal Standard on Appeal

In an appeal to the Superior Court from final agency action pursuant to M.R. Civ. P. 80C, the decision of the Superior Court is governed by 5 M.R.S. 11007 §2 and 4. The Superior Court acts as an intermediate appellate court and the Law Court reviews the administrative agency's decision directly for "legal errors, abuse of discretion, or unsupported factual findings." Nelson v. Bayroot, LLC, 2008 ME 91, ¶17, 953 A.2d 378. "In reviewing an agency's interpretation of its own rules, regulations, or procedures, we give considerable deference to the agency and will not set aside the agency's interpretation unless the regulation or rule compels a contrary interpretation." Id. The party attempting to vacate the agency's decision bears the burden of persuasion. Town of Jay v. Androscoggin Energy, LLC, 2003 ME 64, ¶10, 822 A.2d 1114. If the agency's decision was committed to the reasonable discretion of the agency, the party appealing has the burden of demonstrating that the agency abused its discretion in reaching the decision. See Sager v. Town of Bowdoinham, 2004 ME 40, ¶11, 845 A.2d 567. "An abuse of discretion may be found where an appellant demonstrates that the decision maker exceeded the bounds of the reasonable choices available to it, considering the facts and circumstances of the particular case and the governing law." Id; Forrest Ecology Network v. LURC, 2012 ME 36, ¶28, 39 A.3d 74.

Discussion

By Statute, 12 M.R.S. §6072-A(13), the decision of the Commissioner requires that he be satisfied that the project:

A. Will not unreasonably interfere with ingress and egress of riparian owners;
B. Will not unreasonably interfere with navigation;
C. Will not unreasonably interfere with fishing or other uses taking into consideration the number and density of leases;
D. Will not unreasonably interfere with the ability of the lease site to support existing ecologically significant flora and fauna;
E. Applicant has demonstrated an available source of organisms to be cultured at the lease site;
F. Lease will not unreasonably interfere with public use and enjoyment of municipally, state or federally owned beaches and parks or docking facilities.

In his decision, the Commissioner referenced the Site Report prepared by Department staff together with the information presented at the public hearing. Appellant argues there was no competent evidence to support the findings and conclusions of the Commissioner. A review of the Record on Appeal, including the hearing transcript and attachments, confirms that there was conflicting evidence presented on some of the statutory decision requirements, such as interference with fishing and navigation. The Statute requires that there not be "unreasonable" interference. This is a case where the decision was committed to the reasonable discretion of the agency. The Court finds that there was competent evidence in the Record on Appeal to support each of the six findings and conclusions made by the Commissioner, notwithstanding the presence of conflicting evidence on some of those points ...


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