ORDER ON DEFENDANTS' MOTIONS TO DISMISS
E. Walker, Justice.
the Court are Defendants Board of Commissioners for the Port
of Portland ("Board") and Portland Pilots'
("Pilots") motions to dismiss Plaintiffs Rule 80B
appeal. A hearing was held on these motions on February 5,
2018. For the following reasons, Defendants' motions to
dismiss are granted in part and denied in part.
following facts are primarily drawn from Plaintiffs
complaint. Disputed facts are noted where relevant to the
Court's decision. Plaintiff operates a roundtrip ferry
service between Yarmouth, Nova Scotia and Portland, Maine
aboard a vessel named HSV Alakai, commonly referred to as
"The CAT." The CAT operates seasonally five days a
week. Each time The CAT enters and departs from Portland
Harbor, Plaintiff is required by state law to use a pilot
approved by Defendant Board. For its pilotage services,
Plaintiff must pay to Defendant Pilots a minimum pilotage
fee, which is set by Defendant Board. During the 2016 season,
this fee was $709.
March 23, 2017 letter, Pilots asked the Board to approve an
increase in the minimum pilotage fee from $709 to $1200 per
voyage. Pilots also requested a 1.2% increase of
the Consumer Price Index rate and an adjustment to the fuel
surcharge. The Board scheduled Pilots' request to be
heard at a public hearing on April 13, 2017. On April 7,
2017, the Board emailed to Plaintiffs controller an agenda
for the April 13 hearing. The items listed on the agenda
ITEM ONE: CITGO dredging project at their dock in the Fore
ITEM TWO: Marine Event Application (Teens to Trails) Aug 26th
in the upper Fore River (1 to 5 pm)
ITEM THREE: Portland Pilot Cost of Living rate increase
agenda did not include a reference to the proposed minimum
pilotage fee increase. The April 13 hearing was cancelled.
4, 2017, the Board emailed Plaintiffs controller with an
agenda for a May 11, 2017 public hearing. This agenda
contained the same items as the agenda for the April 13
hearing, with a fourth item added for "58 Fore Street
Marina Project." The May 11 hearing occurred as
scheduled. Plaintiff was not in attendance. At this hearing,
after brief discussion, the Board orally voted to increase
the minimum pilotage fee to $1200. The Board never issued a
written decision containing findings of fact and conclusions
of law concerning the pilotage fee increase. Plaintiff
alleges the Board never sent notice of the pilotage fee
increase to the Maine Department of Transportation or to the
city councils of Portland or South Portland.
days after the May 11 hearing, Pilots sent notice to
Plaintiff that the Board had approved a pilotage fee increase
to $1200 effective June 1, 2017. On June 1, Pilots began
charging the increased fee and threatened to arrest The CAT
if Plaintiff did not pay the new fee. The parties expressed
uncertainty at the hearing before this Court as to whether
Plaintiff had actually paid the increased fee during the
summer of 2017, but Plaintiffs complaint alleges it did pay
the increased fee and reserved the right to recoup the
difference between the original $1418 fee and the increased
$2400 fee per voyage.
filed its complaint for 80B appeal in this Court on August
24, 2017. Counts I and II allege the Board did not provide
proper notice to necessary parties or the public of the
hearing to increase the minimum pilotage fee. Count III
alleges the Board did not follow required rulemaking
procedures in establishing pilot compensation, which must be
done by rule. Counts IV and V allege the fee increase is not
supported by record evidence or findings and the Board did
not make written findings of fact and conclusions of law.
Count VI asserts an independent claim for relief pursuant to
42 U.S.C. § 1983 alleging the Board's procedure for
approving the increased pilotage fee deprived Plaintiff of
due process. Counts VII and VIII allege breach of contract
and unjust enrichment by Defendant Pilots.