Brian M. Bailey v. Department of Marine Resources , 2015 Me. LEXIS 139 ( 2015 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2015 ME 128
Docket: Kno-14-458
Argued: September 17, 2015
Decided: October 6, 2015
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
BRIAN M. BAILEY
v.
DEPARTMENT OF MARINE RESOURCES
ALEXANDER, J.
[¶1] Brian M. Bailey appeals from a judgment of the Superior Court
(Knox County, Billings, J.) dismissing his M.R. Civ. P. 80C appeal from a decision
of the Maine Department of Marine Resources (DMR) setting his 2014 elver1
fishing quota at four pounds. See 12 M.R.S. §§ 6505-A(3-A), 6575-K (2014). The
basis for the quota was stated in a March 25, 2014, letter and confirmed by
issuance of a 2014 elver transaction card following a personal meeting between
Bailey and DMR officials on March 31, 2014.2
[¶2] No appeal was filed within thirty days after Bailey’s March 31 receipt
of the 2014 elver transaction card. See 5 M.R.S. § 11002(3) (2014) (requiring that
1
Elvers are recently hatched eels that populate some Maine rivers in the spring and are in demand as
a delicacy in Asian seafood markets.
2
The record indicates some uncertainty as to whether the elver transaction card was issued after a
meeting on March 31 or April 30, 2014. At oral argument, counsel confirmed that the meeting occurred
and the elver transaction card was issued on March 31, 2014.
2
appeals of State administrative decisions must be filed within thirty days after
receipt of notice of final agency action). Instead, on May 1, 2014, Bailey, through
counsel, sent a letter to the Commissioner of Marine Resources requesting an
explanation of the quota decision. After the Commissioner responded, and after
the close of the 2014 elver season on May 31, 2014, Bailey filed this appeal on
July 10, 2014.
[¶3] Before reaching the merits, we must examine whether this appeal is
moot because, regarding the 2014 elver season, there remains no “real and
substantial controversy, admitting of specific relief through a judgment of
conclusive character.” See Anthem Health Plans of Me., Inc. v. Superintendent of
Ins., 2011 ME 48, ¶ 5, 18 A.3d 824. Bailey contends that we must reach the merits
of the appeal because his 2014 quota will govern quotas assigned in future elver
seasons and because the 2014 elver transaction card lacked specific findings
beyond his catch limit, and thus did not constitute final agency action to start the
running of the time to file an appeal.
[¶4] There are three generally recognized exceptions to the mootness
doctrine that may justify addressing the merits of an otherwise moot issue on
appeal. Thus we may address the merits of an otherwise moot case if (1) sufficient
collateral consequences will result from the determination of the questions
presented so as to justify relief; (2) there exist questions of great public concern
3
that we address in order to provide future guidance; or (3) the issues are capable of
repetition but evade review because of their fleeting or determinate nature.
In re Christopher H., 2011 ME 13, ¶ 11, 12 A.3d 64. Because the 2014 quota may
govern quotas Bailey is allowed in 2016, and because the issue of whether the
elver transaction card constitutes final agency action is an issue capable of
repetition but evading review because of the short length of each elver season, the
issues before us present an exception to the jurisprudence that would ordinarily
require us to dismiss this appeal, and we proceed to the merits.
[¶5] Pursuant to 5 M.R.S. § 8002(4) (2014), “final agency action” is defined
as an agency decision affecting 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.” Bailey contends
that this definition requires that the agency decision include specific fact-findings
on the issues. All the definition requires, however, is that the agency decision,
here the elver fishing quota, resolve “all questions necessarily involved in the
underlying subject matter.” Wheeler v. Me. Unemployment Ins. Comm’n,
477 A.2d 1141, 1146 (Me. 1984). In setting the quota for Bailey’s elver catch, the
decision reflected in the March 31 elver transaction card was dispositive of all
relevant legal and factual issues.
4
[¶6] Contrary to Bailey’s assertion, DMR’s issuance of Bailey’s 2014 elver
transaction card on March 31, 2014, constituted a final agency action, and Bailey’s
appeal was, therefore, not timely filed. The Superior Court properly dismissed the
action.
The entry is:
Judgment affirmed.
On the briefs:
Joseph W. Baiungo, Esq., Belfast, for appellant Brian M. Bailey
Janet T. Mills, Attorney General, Emily K. Green, Asst. Atty.
Gen., and Mark A. Randlett, Asst. Atty. Gen., Office of the
Attorney General, Augusta, for appellee Maine Department of
Marine Resources
At oral argument:
Joseph W. Baiungo, Esq., for appellant Brian M. Bailey
Emily Green, Asst. Atty. Gen., for appellee Maine Department
of Marine Resources
Knox County Superior Court docket number AP-2014-17
FOR CLERK REFERENCE ONLY