Utsch v. Dep't of Envtl. Prot.

314 A.3d 125

2024 ME 10

Hans UTSCH, et al.

v.DEPARTMENT OF ENVIRONMENTAL PROTECTION

Docket: Ken-22-418

Supreme Judicial Court of Maine.

Argued: June 7, 2023

Decided: January 30, 2024

Matthew D. Manahan, Esq., and Joshua D. Dunlap, Esq. (orally), Pierce Atwood LLP, Portland, for appellants Hans Utsch and Julia H. Merck

Aaron M. Frey, Attorney General, Robert L. Martin, Asst. Atty. Gen. (orally), and Margaret A. Bensinger, Asst. Atty. Gen., Office of the Attorney General, Augusta, for cross-appellant Department of Environmental Protection

Edmond J. Bearor, Esq., and Jonathan P. Hunter, Esq. (orally), Rudman Winchell, Bangor, for appellee Harold MacQuinn, Inc.

Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, LAWRENCE, and DOUGLAS, JJ.

STANFILL, C.J.

[¶1] Hans Utsch and Julia H. Merck appeal from a judgment of the Superior Court (Kennebec County, Stokes, J.) denying their Rule 80C petition for judicial review of an email from the mining coordinator of the Department of Environmental Protection. Because we conclude that the email that Utsch and Merck challenge is not a final agency action, we vacate the Superior Court’s judgment and remand for dismissal of the petition.

I. BACKGROUND

A. Introduction

[¶2] Harold MacQuinn, Inc., and its owner, Paul MacQuinn (collectively, MacQuinn), own some property in Hall Quarry, a neighborhood in the Town of Mount Desert. A quarry was being operated on that property by 1967, but the quarry ceased operations sometime thereafter. Starting around 2012, however, MacQuinn raised the possibility of restarting the quarry and reached out to the Department of Environmental Protection to see whether he needed any permits to do so.

[¶3] Quarry operations in Maine must comply with performance standards in order to prevent major impacts to wildlife habitat, groundwater, natural resources, roads, and waste. See 38 M.R.S. § 490-Z (2023). Those intending to operate a quarry must file a "notice of intent to comply" (NOITC) with these performance standards. See 38 M.R.S. § 490-Y (2023). Whether MacQuinn is required to file a NOITC is the subject of the email that Utsch and Merck challenge.

B. Events from 2012 to 2015

[¶4] The following facts are drawn from the administrative record. See Fair Elections Portland, Inc. v. City of Portland, 2021 ME 32, ¶ 11 & n.3, 252 A.3d 504; see also Francis Small Heritage Tr., Inc. v. Town of Limington, 2014 ME 102, ¶ 2, 98 A.3d 1012.

[¶5] In June 2012, the mining coordinator of the Department’s Bureau of Land Resources wrote to MacQuinn and advised him that he did not need a "permit" to comply with performance standards for excavations for his quarry. See 38 M.R.S. §§ 490-W to 490-FF (2012). Upon further inquiry, the mining coordinator clarified that because the quarry operated prior to 1970, MacQuinn did not need to file a NOITC with performance standards.

[¶6] From 2012 to 2015, the mining coordinator responded to various inquiries from the Town of Mt. Desert, MacQuinn, and members of the public concerning whether MacQuinn needed to file a NOITC, and he consistently replied that a NOITC is not required because the Department’s jurisdiction does not extend to quarries that pre-dated January 1, 1970. He explained that the Site Location of Development Law (Site Law), enacted in 1970, grandfathered "any development in existence or in possession of applicable state or local licenses to operate or under construction on January 1, 1970" into the performance standards for quarries. See P.L. 1969, ch. 571, § 2 (effective May 9, 1970) (codified at 38 M.R.S.A. § 488 (Supp. 1970)). In 1995, the Legislature added small road quarries to the Site Law and created a separate article for performance standards for them. See P.L. 1995, ch. 287, §§ 5, 18 (effective June 23, 1995) (codified at 38 M.R.S.A. §§ 488(16), 490-P to 490-V (Supp. 1995)). These provisions expired on December 31, 1995, see id., and the performance standards for quarries were then recodified in a different article. See P.L. 1995, ch. 700, § 35 (effective July 4, 1996) (codified at 38 M.R.S.A. §§ 490-W to 490- EE (Supp. 1997)).

[¶7] In March 2015, the mining coordinator learned that when the performance standards for quarries were recodified in a different article, the "prior to 1970" language was not integrated into that different article, but that language was part of the performance standards for excavations. Compare 38 M.R.S. § 490-C (2012) (performance standards for excavations), with 38 M.R.S. § 490-Y (2012) (performance standards for quarries). The performance standards for quarries stated that

a person intending to create or operate a quarry under this article must file a notice of intent to comply before the total area of excavation of rock or overburden on the parcel exceeds one acre.

38 M.R.S. § 490-Y (2012).

[¶8] The mining coordinator informed MacQuinn that a NOITC is required if the total area of excavation, including the area excavated before 1970, exceeded one acre. In response, MacQuinn modified its excavation plan so that the total area excavated would not exceed one acre. The mining coordinator thereafter confirmed that MacQuinn’s modified plan did not trigger the one-acre threshold for a NOITC. Following the mining coordinator’s determination, the mining coordinator responded to several inquiries regarding the quarry and continued to maintain that MacQuinn’s plan did not trigger the one-acre threshold for a NOITC.

C. Events occurring from 2015 to 2021

[¶9] In 2017, the Legislature passed "An Act to Make Minor Changes and Corrections to Statutes Administered by the Department of Environmental Protection." P.L. 2017, ch. 137. This act added temporal language to the performance standards for quarries, and the statute now provides that

a person intending to create or operate a quarry under this article must file a notice of intent to comply before the total area of excavation of rock or overburden on the parcel exceeds one acre excavated since January 1, 1970.

Id. § A-11 (codified at 38 M.R.S. § 490-Y (2017)) (emphasis added).

[¶10] In 2020, some area residents again contacted the Department, arguing that MacQuinn’s proposed area for the quarry exceeded one acre and thus a NOITC was required. The Department disagreed and explained that under 38 M.R.S. § 490-Y, the area excavated before January 1, 1970, did not count toward the one-acre threshold to trigger the requirement of a NOITC. Therefore, no NOITC was required because 0.88 acres, see infra n.1, of MacQuinn’s proposed activity must be subtracted from the entire area of activity, leaving the area under the one-acre threshold.

D. The 2021 email

[¶11] On March 29, 2021, Utsch and Merck, who own a home located across Somes Sound from the quarry, sent a letter via email to the mining coordinator requesting that the Department "require that Harold MacQuinn, Inc. (‘MacQuinn’) must submit to [the Department] a Notice of Intent to Comply (NOITC) pursuant to 38 M.R.S. § 490-Y before proceeding with MacQuinn’s plan to restart operation of Hall Quarry in Mount Desert." In the letter, Utsch and Merck contend that MacQuinn excavated an area of the quarry after 1970, and that section 490-Y "does not include any provision for ‘grandfathering’ of pre-1970 excavated areas that are again excavated after 1970."

[¶12] On April 15, 2021, the mining coordinator responded by email to Utsch and Merck’s letter, stating that MacQuinn did not need to file a NOITC and citing 38 M.R.S. § 490-Y. The mining coordinator explained that the Department believes the area excavated after 1970 is being used as stockpile or grout storage and is outside the area MacQuinn wishes to excavate. The Department further explained that even if MacQuinn were proposing to use the post-1970 excavated area, it is below the one-acre threshold to require a NOITC.¹ He concluded the email by stating that, unless any new information were to become available, the matter was closed.

E. Procedural History

[¶13] On May 13, 2021, Utsch and Merck filed a "Petition for Review of Final Agency Action or Failure to Act," seeking review of the mining coordinator’s email. See M.R. Civ. P. 80C(a). Utsch and Merck claimed that they had standing to bring the petition because they live near the quarry and will be affected by the noise when the quarry is in operation. They alleged that the Department "violated statutory provisions, exceeded its statutory authority, committed errors of law, and/or abused its discretion" by determining that MacQuinn does not have to file a NOITC before operating the quarry. See 5 M.R.S. § 11007(4)(C)(1), (2), (4), (6) (2023).

[¶14] MacQuinn was not named as a party by Utsch and Merck, but nonetheless opposed their petition as a "party in interest." The Department and MacQuinn asserted that the mining coordinator’s April 15 email is not a final agency action and that Utsch and Merck lack standing to seek review of the mining coordinator’s decision. Utsch and Merck maintained that the email was subject to review under Rule 80C or, in the alternative, the complaint could be construed as a declaratory judgment action.

[¶15] On September 27, 2022, following oral argument, the Superior Court (Kennebec County, Stokes, J.) denied Utsch and Merck’s 80C petition, or in the alternative, any request for declaratory relief. Although the court concluded that the April 15 email was a final agency action and that Utsch and Merck had standing to appeal it, the court agreed with the Department’s interpretation that any areas excavated before January 1, 1970, are grandfathered. Utsch and Merck timely appealed the court’s decision. M.R. App. P. 2B(c)(1); M.R. Civ. P. 80C(m); 5 M.R.S. § 11008 (2023). The State timely cross-appealed, primarily on the threshold issues of standing and final agency action. See M.R. App. P. 20(a)(2).

II. DISCUSSION

A. Final Agency Action under the Maine Administrative Procedure Act

[¶16] We review de novo whether the mining coordinator’s email was a "final agency action" such...