Jul 18, 2011

Saving the Gulf of Maine by simply Standing

In Huber v. BPL, I challenged the state decision to let the University site its offshore wind test center off Monhegan's Lobster Cove. Against the strenuous opposition of the State and University of Maine, Judge Jeffrey Hjelm ruled that   Ron Huber indeed posessed the lawful standing and right as party to bring his case against the DeepCwind siting decision.

From:  Knox Superior Court
CIVIL ACTION Docket No. AP-10-2   ORDER ON APPEAL.       Link to the complete decision
Decision filed June 27, 2011

Ronald C. Huber,
Maine Department of Conservation
Bureau of Parks and Lands,

Pursuant to 5 M.R.S. §§ 11001—11008 and M.R.Civ.P. 80C, plaintiff Ronald C. Huber appeals from a decision issued by the Bureau of Parks and Lands, Department of Conservation  (Department), acting under the authority of 12 M.R.S. § 1868 (2010), identifying a site approximately two miles south and seaward of Monhegan Island as one of three offshore wind energy test areas and as the Maine Offshore Wind Energy Research Center. Huber’s appeal is opposed by the Department and by The University of Maine System, which appears here as an intervenor based upon its role as the lead member of DeepCwind Consortium. The Consortium, a public-private partnership that has already secured federal funding for the project, intends to apply for a permit in order to develop the Monhegan site.
For the reasons that follow, the court concludes that Huber has standing to appeal the Department’s decision, because the statutory characterization of the agency action must be seen to allow him to pursue a challenge even at this early stage of the prospective development. The court concludes, however, that the Department’s decision is supported by the evidence and is not otherwise unlawful.


Standing and Party Status
The court will address Huber’s standing first because the existence of standing is a threshold issue and a predicate to the consideration of the merits of his appeal.
A. Standing
As applied to state court proceedings in Maine, the notion of standing is prudential and rests on the expectation that the parties who are "best suited to raise a particular claim" are those who should be entitled to promote or oppose that claim in court. R00p v. BeUast, 2007 ME 32, jl 7, 915 A.2d 966, 968 (citation and internal punctuation omitted). Therefore, "Maine courts are only open to those who meet this basic requirement." Lindemann v. C0mm’n on Governmental Ethics and Election Practices, 2008 ME 187, jl 8, 961 A.2d 538, 541 (citation and internal punctuation omitted).

7 The petitioner objects to the assignment of a "‘Low Quality’ viewshed rating" for the Monhegan site. The court construes this as a reference to the Department’s assessment of a "low" level of concern about the effect of the test area on the Monhegan viewshed. R. 80.

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As a general matter, the determination of standing is not subject to a specific formula. Roop, 2007 ME 32, p7, 915 A.2d at 968. However, in appeals from agency action, the right to seek review is governed by statute. Lindemann, 2008 ME 187, p 9, 961 A.2d at 542. The Legislature has characterized an administrative identification of an "offshore wind energy test area" as "final agency action." See 12 M.R.S. § 1686(4). The course of Huber’s appeal is therefore governed by the provisions of 5 M.R.S. § 11001 et seq. which provides the exclusive method for judicial review of "final agency action." Lingley v. Maine Workman's Compensation Bd 2003, A.2d 327, 330. Huber’s standing to obtain judicial review of the Department’s decision therefore depends on whether he has standing under these procedural statutes.

As described in his brief on appeal, Huber’s involvement with the Penobscot Bay area, including Monhegan Island, is long—standing. He notes that he has workedsince 1993 to protect the environment and the wild inhabitants of Penobscot Bay, motivated by a sense of spiritual obligation. He refers to his involvement in litigation from 1994 through 1996 as head of a non-governmental organization and related to construction on coastal Ducktrap Mountain in Northport. He asserts that in the mid-1990’s, he participated in the DEP’s oil tanker and oil port rules task force, which was involved in the development of rules to protect marine life from oil spills. Huber states that he was involved in additional DEP proceedings in 1998 and 2006 because of a proposed development’s potential harm to aquatic environment, ecology and scenic resources. In 2005 and 2006, he headed a citizens’ group that worked with the DEP on matters relating to the environmental effects of cement dust piles.

In addition to his history of environmental advocacy, Huber writes that he has a specific connection to Monhegan Island, which he visits and enjoys while pursuing his faith—based stewardship of the entire Penobscot Bay region. While on Monhegan Island, Huber uses the pedestrian trail to get to Lobster Cove, where he appreciates the "complex and unspoiled vista" of the gulf of Maine. He is one of many ornithologists who travel from all over the world to observe the birds and other wildlife on Monhegan Island. See also R. 65.

Pursuant to section 11001(1), "any person who is aggrieved by final agency action shall be entitled to judicial review thereof in the Superior Court in the manner provided by this subchapter? The record must therefore establish that Huber has been "aggrieved" in a way that is sufficient to give him standing to pursue this appeal. Further, Huber also must show that he was a party during the underlying administrative proceeding. See, e. g., Friends 0f Lincoln Lakes

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v. Town of Lincoln, 2010 ME 78,1111, 2 A.3d 284, 288; Lindemann, 2008 ME 187,j] 17 n. 9, 961 A.2d at 543-44; Hammond Lumber C0. v. Fin. Auth. ofMe., 521 A.2d 283, 286 n.5 (Me. 1987). Here, the court first considers whether the record shows that Huber has party status from the agency level, and it next addresses the sufficiency of his alleged injury as an element of standing.

(1) Party status
The Law Court has "interpreted the term party broadly so as to mean any participant in the proceedings who is aggrieved by the action or inaction of the zoning board of appeals." Norris Family Assocs., LLC v. Town ofPhippsburg, 2005 ME 102, il 16, 879 A.2d 1007, 1012 (emphasis in original; citation and internal punctuation omitted).8 See also In re Lappie, 377 A.2d 441, 443 (Me. 1977) (". . .the legislative rationale is that one who is adversely affected by the entry of an administrative order, whether a formal party to the administrative proceeding or A not, is more likely to be aware of the details of the administrative proceeding than are members of the public generally. Such persons are more likely to seek judicial review to assure that the administrative body acts consistently with the standards prescribed by the statute."). The Court has recognized that administrative proceedings are conducted less formally than judicial proceedings, and so “an appellant need not have formally appeared as a party as long as it participated throughout the process." Lincoln Lakes, 2010 ME 78, {1 12, 2 A.3d at 288. Thus, to qualify as a party, the person’s participation in the administrative process may be "formal or informa1." Norris Family Assocs., 2005 ME 102, 11 16, 879 A.2d at 1013 (citation and internal punctuation omitted).

Here, the Department suggests that Huber attended one of its public meetings.9 (Br. of Resp. at 13.) This is a sufficient acknowledgement to support this element of Huber’s standing claim.

8 Cases such as Norris Family Associates that address appeals from municipal boards include discussions of the concept of “party status." That principle has the same purpose as it carries in the context of appeals pursued under the Administrative Procedure Act, and so the court considers the former cases in analyzing this part of the standing issue in this action.

9 The University argues that the record does not reveal any participation by Huber in the  administrative proceeding. Because the Department takes a contrary position, the court decides the issue favorably to Huber.

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Beyond this suggestion that Huber was a participant in the agency’s process, the record also reveals that concerns generally echoing those that Huber advances here were raised at the Rockport public meeting held in September 2009. R. 132-37.10   Several written comments, which are not attributed to named persons, mirror Huber’s arguments about the effect of the test area on Monhegan’s unique scenic assets. R. 272-73. One letter in particular focuses on the visual impact of wind energy development on the southern end of Monhegan Island, which is the location of Lobster Cove — a prime focus of Huber’s claims here. R. 288.

This demonstrates that Huber apparently attended a public meeting and that during the course of the administrative process, the concerns he raises here were brought to the agency’s attention. The court finds that this combination of circumstances is a sufficient basis on which toview Huber as a party participant.

(2) Particularized injury
To complete a demonstration that he has standing, Huber must also show that the agency’s action has caused him particularized injury —- "that is, if the agency action operated prejudicially and directly upon the party’s property, pecuniary or personal r ghts." Nelson v.Bayroot, LLC, 2008 ME 91,j]10, 953 A.2d 378, 382. See also 5 M.R.S. § 8002(4) ("‘Final agency action’ means a decision by an agency which affects the legal rights, duties or privileges of specific persons, which is dispositive of all issues, legal and factual, and for which no further recourse, appeal or review is provided within the agency ."‘). This requires consideration of whether Huber has suffered a legally recognized injury and whether any such injury is a particularized one.

First, Huber contends that he has sustained damage because of the prospects of development to a site that holds particular aesthetic and religious meaning to him.“ The University argues that Huber has not been injured by the mere designation of a location as an  offshore wind energy test area and as the Maine Offshore Wind Energy Research Center. No  actual development has occurred yet in the designated offshore wind energy test area and 10. The record does not reveal who was present at that hearing, R. 130, or at the October 2009 meeting held on Monhegan Island itself, R. 162-64. Huber was not among those who received public notice by mail of the Monhegan Island meeting. R. 266-71.

11. Huber also claims that his injury encompasses changes to ocean currents and resulting damage to an animal population over which he claims to exercise a faith—based stewardship. The record, however, does not demonstrate a factual basis for this type of alleged injury.

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research center, and none will occur absent a permit issued under 38 M.R.S. § 480-HH. Until the Department issues a permit, the locations at issue will not change, and Huber’s interests in those  locations are unaffected in fact.

But for the provisions of section 1868(4), the University’s analysis might well carry the day. An injury sufficient to confer standing on a claimant must be more than abstract. Nelson, 2008 ME 91, 11 10, 953 A.2d at 382. And the harm claimed by Huber is presently little more than that. However, in section l868(4), the Legislature has deemed that “[t]he identification of an offshore wind energy test area or areas under subsection 1 or subsection 3 constitutes final agency action." This statute has significance in two ways. First, because the Legislature has established that the type of administrative determination at issue here is "final agency action," it has also established that this type of action "affects the legal rights, duties or privileges of specific persons. . ." because that is the very definition of "final agency action." This syllogism therefore demonstrates that despite the absence of any actual physical development - and even though the state has not even issued a permit that would authorize such development, the Legislature has deemed that the very designation of an offshore wind energy test area results in an injury sufficient to meet the standard that is part of the criterion of "final agency action."12

The second consequence of section 1868(4) is that because the type of action taken thus far by Department is deemed to be “final agency action ," if Huber or others similarly situated to him were precluded from seeking judicial review, he (and they) would be permanently barred from doing so. Huber is now deemed to have been injured by the mere identification of a location as a test area, because the Legislature has declared that such an identification is "final agency action," meaning that by definition it has affected ‘his rights. lf, as the University argues, Huber has no appellate recourse based on that agency action, he would be left without a remedy notwithstanding that legally acknowledged injury

12.  One of the University’s arguments challenging Huber’s standing is that he has not demonstrated that his religious interests would be affected by the Department’s actions. The court need not and does not reach this issue for two reasons. First, as is discussed in the text, the statutory characterization of the Department’s action as "fina1 agency action" supports the notion that that action causes harm to a claimant. Second, harm to aesthetic interests, if particularized, is a sufficient foundation to establish standing. Fitzgerald, 385 A.2d, 189, 196-97 (Me. 1978).

Therefore, even without regard to Huber’s contention that the state action affects his religious interests, the action’s impact on his aesthetic interests is a proper basis to grant him standing.

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Thus, because of the effect of section 1868(4), the court concludes that Huber has
sustained a legally cognizable injury. The next question is whether that injury is a particularized

An injury is "particularized" if it is "distinct from any experienced by the public at large and must be more than an abstract injury." Id. This standard applies to claims based on an alleged injury to public rights, including rights associated with public places. See Friends of  Lincoln Lakes, 2010 ME 78, jj 14, 2 A.3d at 289; Fitzgerald v. Baxter State Park Auth., 385 A.2dat 196-97.

In the context of this case, the court draws guidance from the Law Court’s analysis of the nature of a "particularized injury" as discussed in Nergaard v. Town of Westport Island, 2009 ME 56, 973 A.2d 735. There, the Court rejected a claim of standing by two people who were among more than 1,600 residents who would drive past a challenged development. The Court held that their injury would not be particularized because of the large number of people who would be similarly affected. ld., jj 20, 973 A.2d at 741. The Nergaard Court distinguished that universe of affected people from the one examined in Fitzgerald. In the latter case, standing was conferred on a group of five people who used Baxter State Park and who sought to challenge agency action affecting their aesthetic interests in the park. Because of the small size of that affected group of “actual users," the Court held that they were not members of the "general public" and that the harm they alleged in fact was "particularized." 385 A.2d at 196-97, discussed in Nergaard, 2009 ME 56 p 21, 973 A.2d at 741.

Like the Fitzgerald plaintiffs, Huber’s injury is distinct from that suffered by the public at large because he is an actual user of Monhegan Island, particularly Lobster Cove, which is the area from which the wind energy research test site will be visible and which holds particular aesthetic and spiritual significance for him. The record therefore demonstrates that the agency action at issue here has injured Huber and that his injury is particularized. When those conclusions are combined with his status as a party to the administrative proceedings, his demonstration of standing is complete. The court now addresses the merits of his appeal from that final agency action.

B. Merits of the Huber’s claims on appeal

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