Maine
Supreme Court Validates Dock Permits
Conservation
Law Foundation v. Department of Environmental Protection,
823 A.2d 551 (Me. 2003).
Shannon
McGhee, 2L
On April
29, 2003, the Supreme Judicial Court of Maine upheld the validity
of a permit issued by the Maine Department of Environmental
Protection (DEP), which allowed Edward C. Johnson IV to build
a dock on waterfront property. The court also ruled that the
Maine Board of Environmental Protection (BEP) had statutory
authority to promulgate the regulation under which Johnson’s
permit was issued.
Background
The DEP is the executive agency charged with the protection
of Maine’s natural resources.1 Within
the Department, the BEP has responsibility for rulemaking proceedings,
rulings on certain permit applications, appeals from the grant
or denial of permits and licenses by the DEP Commissioner, and
the revocation of licenses.2
In 2001, the Natural Resources Protection Act (NRPA) was enacted
to protect Maine’s rivers, ponds, wetlands, mountains,
wildlife habitats, and coastal sand dunes.3 The NRPA sets forth standards, requirements, and prohibitions
of certain activities in protected areas. Among other things,
the NRPA requires a permit from the DEP for the construction
of permanent structures on coastal wetlands and requires that
any proposed construction or activity submitted to the DEP for
a permit “[must] not unreasonably interfere with existing
scenic, aesthetic, recreational or navigational uses.”4
Generally, to receive a permit, an application must be filed
with the DEP. The permit process includes notice to the public
and the solicitation of comments from the public. The DEP may
approve a permit, as is or with additional conditions, deny
the permit request, or refer it to the BEP for a decision.5
However, to conserve DEP resources and applicants’ time,
the BEP was given statutory authority to issue permits without
going through the individual application process, known as “permit
by rule,” which may only be utilized if the board finds
the proposed activity “would have no significant impact
upon the environment.”6 Pursuant to this
authority, BEP adopted Rule 13 in 1992, which allows builders
constructing piers or wharves in coastal wetlands meeting the
standards and requirements contained in Rule 13 to bypass the
individual application process. Under Rule 13, the applicant
files a structure form along with photographs of the area with
the DEP. If, within fourteen days of the filing, the DEP does
not notify the applicant of any objections, the applicant may
commence the activity.7 At the end of construction,
the applicant must then send photographs of the completed project
to the DEP.
The Lawsuit
In May 1998, Edward C. Johnson IV was issued a permit by the
DEP under Rule 13 to construct a pile dock on Bartlett Narrows
in Mount Desert, Maine. Subsequently, the Conservation Law Foundation
(CLF) and the Gagnebins, abutting neighbors, filed petitions
with the Superior Court to review the validity of Johnson’s
permit and to obtain a court order for the removal of the dock.
The Superior Court ruled Johnson’s permit invalid because
Rule 13 was arbitrary, capricious, an abuse of discretion and
contrary to law and outside the scope of the BEP’s authority.8
The court, however, denied the request to have Johnson remove
the dock, reasoning there was no private right of action to
enforce the NRPA. Both parties appealed.
Validity
of Rule 13
The court employed two basic principles of statutory interpretation
to determine the validity of Rule 13: “(1) when a statute
or statutory scheme is unambiguous, we ascertain the intent
of the Legislature from the plain language, . . . [and] (2)
when there is ambiguity, however, we defer to the interpretation
of a statutory scheme by the agency charged with its implementation
as long as the agency’s construction is reasonable.”9 The court determined that as the plain language of the statute
gives the BEP express authority to “permit by rule,”
the promulgation of Rule 13 falls within the BEP’s authority.
CLF’s and the Gagnebins’ key argument, however, was
that Rule 13 violates the NRPA standards, which require that
any permitted activity not “unreasonably interfere with
existing scenic, aesthetic, recreational or navigational uses.”10
The statute is silent on whether Rule 13 must comply with the
NRPA standards. Because of this ambiguity, the court looked
at how the DEP and BEP interpret their regulations. The 1992
version of Rule 13 stated that the standards of the Rule were
“designed to insure that piers, wharves and piling projects
will not unreasonably interfere with existing scenic, aesthetic
or navigational uses,” which is identical to the NRPA standard.11
Although this language was omitted from the 1995 version
of Rule 13, similar language was incorporated in Rule 1, which
applies to Rule 13 activities.12 Therefore,
the court concluded that the DEP and BEP intended that Rule
13 standards comply with the NRPA standards. Because the DEP
and BEP administer Rule 13 and reasonably interpret the regulation
as requiring the standards to comply with NRPA, they are given
deference.
The court next relied on the agency’s expertise in determining
whether Rule 13 actually met the NRPA standards. “When
an agency utilizes its expertise in setting policy, as long
as it does not contravene its statutory authority, we defer
to its policy determinations.”13 Because
the DEP and BEP promulgated Rule 13 based on “their knowledge
of the uses of coastal wetlands, to set the standards for piers
and wharves that would not unreasonably interfere with existing
uses and have no significant impact on the environment,”
the agencies did not contravene their statutory authority.14 Furthermore, the requirements of having photographs of proposed
projects, restricting the structure to twenty-five percent of
the channel, limiting the structure to no more than six feet
in width, and not allowing the pier or wharf to extend beyond
the low water mark are standards that prevent permits by rule
from “unreasonably interfering with existing scenic, aesthetic,
recreational or navigational uses.” The court was of the
opinion that Rule 13 may even achieve greater compliance with
the standards of NRPA than an individual permit, because the
Rule provides more narrow criteria for the construction of docks
and wharfs than the statute itself.
CLF and the Gagnebins also argue that Rule 13 is contrary to
law because it violates Maine’s public trust doctrine,
which protects the public’s right of access to the coast.
A coastal property owner’s rights in the intertidal zone
are subservient to the public’s right of access for fishing,
fowling and navigation. The public’s right of access, however,
must yield to the property owner’s right to wharf out,
by means of docks, etc. Finally, an owner’s right to wharf
out is subject to reasonable regulation. As Rule 13 is a reasonable
regulation of the construction of docks and wharfs, it does
not violate the public trust doctrine.
As to the arbitrary and capricious nature of Rule 13 asserted
by CLF and the Gagnebins, the court declared they did not show
that Rule 13 was unreasonable, lacked a factual basis, or lacked
support in the evidentiary record.15
Conclusion
The Supreme Judicial Court of Maine vacated the judgment invalidating
the promulgation of Rule 13 by BEP, and remanded the case to
the Superior Court for entry of judgment affirming the validity
of Johnson’s permit.
Endnotes
1. Me. Rev. Stat. Ann. tit. 38, § 341-A(1)
(2003).
2. Id. at §§ 341-B, 341-D, 344(2-A).
3. Id. at § 480-A.
4. Id. at § 480-D(1).
5. Id. at §§ 344(1), 344(2-A).
6. Id. at § 344(7).
7. 06-096 Code Me R. ch. 305, § 1(C)(1)
(1995).
8. Conservation Law Found. v. Dep’t of
Envtl. Prot., 823 A.2d 551, 557 (Me. 2003).
9. Guilford Transp. Ind. v. Pub. Utils. Comm’n,
746 A.2d 910, 913 (Me. 2000).
10. CLF, 823 A.2d at 460.
11. Id at 560-561.
12. Id. at 561.
13. Id.
14. Id.
15. Id. at 563-564.
