Wawenock, LLC v. Department of Transportation

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 83 Docket: BCD-17-490
Argued: May 15, 2018
Decided: June 28, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
WAWENOCK, LLC, et al.
v.
DEPARTMENT OF TRANSPORTATION
GORMAN, J.
[¶1] Wawenock, LLC; Bermuda Isles, LLC; 48 Federal Street LLC; and
32 Middle Street LLC (collectively, the LLCs) appeal from a judgment on the
pleadings entered in the Business and Consumer Docket (Mulhern, J.) in favor
of the Department of Transportation on the LLCs’ complaint seeking
declaratory and injunctive relief regarding the Department’s plan to widen
Route 1 in Wiscasset. The LLCs argue that the court erred by determining that
the Sensible Transportation Policy Act (STPA), 23 M.R.S. § 73 (2017), affords
them no private right of action. We affirm the judgment.
I. BACKGROUND
[¶2] On February 14, 2017, the LLCs—four entities that own property in
Wiscasset—instituted the present litigation in the Superior Court (Lincoln
2
County)1 against the Department, seeking declaratory and injunctive relief
regarding the “Wiscasset Downtown Improvement Project” (the Project) for
the widening and alteration of Route 1/Main Street in Wiscasset.2 By amended
complaint, the LLCs advanced nine counts claiming that the Department
violated various constitutional, statutory, regulatory, and municipal provisions
in planning and designing the Project. In particular, in Count 1, the LLCs alleged
that the Department violated the STPA by failing to allow public participation
in the planning and design of the Project.3
[¶3] The Department moved for a judgment on the pleadings pursuant
to M.R. Civ. P. 12(c), arguing that the complaint was nonjusticiable on a variety
of grounds. By judgment dated September 11, 2017, the court granted the
motion and entered a judgment on the pleadings in favor of the Department on
all counts. As to Count 1, the court concluded that the STPA affords no private
right of action and that the LLCs were therefore precluded from seeking relief
1 The matter was accepted by the Business and Consumer Docket on the LLCs’ request. See M.R.
Civ. P. 131.
2 The LLCs named the Town of Wiscasset as a party in interest. The Town participated in the
proceedings before the trial court but takes no position in this appeal.
3 The LLCs also alleged in Count 1 of the complaint that the Department violated 23 M.R.S. § 651
(2017), but they do not pursue that argument in this appeal and we do not address it further.
3
on that basis. The LLCs appeal from the denial of their motion for
reconsideration.4 See M.R. Civ. P. 7(b)(5), 59(e).
II. DISCUSSION
[¶4] The LLCs challenge only that portion of the court’s judgment
determining that the STPA affords them no private right of action and entering
a judgment on the pleadings as to Count 1 on that basis. When, as here, a motion
for a judgment on the pleadings is filed by the defendant pursuant to M.R. Civ. P.
12(c), “only the legal sufficiency of the complaint is tested.” Cunningham v.
Haza, 538 A.2d 265, 267 (Me. 1988). In such circumstances, the “[d]efendant’s
motion for judgment on the pleadings is nothing more than a motion under M.R.
Civ. P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which
relief can be granted.” Cunningham, 538 A.2d at 267. We review the grant of a
judgment on the pleadings de novo, Faith Temple v. DiPietro, 2015 ME 166, ¶ 26,
130 A.3d 368, by “assuming that the factual allegations are true, examining the
complaint in the light most favorable to plaintiff, and ascertaining whether the
complaint alleges the elements of a cause of action or facts entitling the plaintiff
4 While the appeal was pending, the LLCs filed a motion for a preliminary injunction seeking an
order enjoining the Department from commencing construction on the Project pending the outcome
of the appeal. We denied the motion after oral argument based on the LLCs’ failure to demonstrate a
likelihood of success on the merits of their appeal. See Bangor Historic Track, Inc. v. Dep’t of Agric.,
2003 ME 140, ¶ 9, 837 A.2d 129.
4
to relief on some legal theory,” Cunningham, 538 A.2d at 267 (quotation marks
omitted).
[¶5] The sole issue before us is whether the STPA provides for a private
right of action such that the LLCs may seek its enforcement through the court.
A statute may provide for a private right of action by express language or by
implication. Larrabee v. Penobscot Frozen Foods, Inc., 486 A.2d 97, 101
(Me. 1984).
[¶6] When a private right of action exists, however, it is most often
created by express language: “[I]f our Legislature had intended that a private
party have a right of action . . . , it would have either expressed its intent in the
statutory language or legislative history or, more likely, expressly enacted one.”
Id.; see In re Wage Payment Litig., 2000 ME 162, ¶ 7, 759 A.2d 217 (stating that
“when the Legislature deems it essential that a private party have a right of
action, it has expressly created one” (quotation marks omitted)).
[¶7] To determine whether the STPA provides for a private right of
action, we interpret the statute de novo to effectuate the legislative intent.
Foster v. State Tax Assessor, 1998 ME 205, ¶ 7, 716 A.2d 1012. The first and best
indicator of legislative intent is the plain language of the statute itself. Id. If the statute is unambiguous, we interpret the statute according to its unambiguous
5
language, “unless the result is illogical or absurd.” MaineToday Media, Inc. v.
State, 2013 ME 100, ¶ 6, 82 A.3d 104 (quotation marks omitted). If the
language is ambiguous, we will “consider the statute’s meaning in light of its
legislative history and other indicia of legislative intent.” Id. “[I]f a statute can
reasonably be interpreted in more than one way and comport with the actual
language of the statute, an ambiguity exists.” Me. Ass’n of Health Plans v.
Superintendent of Ins., 2007 ME 69, ¶ 35, 923 A.2d 918.
A. Plain Language
[¶8] The STPA was enacted by a citizens’ initiative in 1991. I.B. 1991,
ch. 1, § 1 (effective Dec. 20, 1991); L.D. 719 (referred to the voters, 115th Legis.
1991); see Me. Const. art. IV, pt. 3, § 18. It provides,
§ 73. Transportation policy
1. Short title. This section may be known and cited as the
“Sensible Transportation Policy Act.”
2. Purposes and findings. The people of the State find that
decisions regarding the State’s transportation network are vital to
the well-being of Maine citizens, to the economic health of the State
and to the quality of life that the citizens treasure and seek to
protect.
The people also find that these decisions have profound,
long-lasting and sometimes detrimental impacts on the natural
resources of the State, including its air quality, land and water.
6
The people further find that substantial portions of the state
highway system are in disrepair and improvements to the State’s
roads and bridges are necessary to provide a safe, efficient, and
adequate transportation network throughout the State.
The people further find that the State’s transportation network is
heavily dependent on foreign oil, that such reliance is detrimental
to the health of the State’s economy and that the health and
long-term stability of the State’s economy require increased
reliance on more efficient forms of transportation.
The people further find that improvements to the transportation
network are necessary to meet the diverse transportation needs of
the people of the State including rural and urban populations and
the unique mobility requirements of the elderly and disabled.
The people further find that the decisions of state agencies
regarding transportation needs and facilities are often made in
isolation, without sufficient comprehensive planning and
opportunity for meaningful public input and guidance.
3. Transportation policy. It is the policy of the State that
transportation planning decisions, capital investment decisions
and project decisions must:
A. Minimize the harmful effects of transportation on public
health and on air and water quality, land use and other
natural resources;
B. Require that the full range of reasonable transportation
alternatives be evaluated for all significant highway
construction or reconstruction projects and give preference
to transportation system management options, demand
management strategies, improvements to the existing
system, and other transportation modes before increasing
highway capacity through road building activities;
7
C. Ensure the repair and necessary improvement of roads
and bridges throughout the State to provide a safe, efficient
and adequate transportation network;
D. Reduce the State’s reliance on foreign oil and promote
reliance on energy-efficient forms of transportation;
E. Meet the diverse transportation needs of the people of the
State, including rural and urban populations and the unique
mobility needs of the elderly and disabled;
F. Be consistent with the purposes, goals and policies of the
Comprehensive Planning and Land Use Regulation Act; and
G. Incorporate a public participation process in which local
governmental bodies and the public have timely notice and
opportunity to identify and comment on concerns related to
transportation planning decisions, capital investment
decisions and project decisions. The department and the
Maine Turnpike Authority shall take the comments and
concerns of local citizens into account and must be
responsive to them.
4. Rulemaking. The Department of Transportation shall
adopt a rule within one year of the effective date of this Act, in
coordination with the Maine Turnpike Authority and state agencies
including the Department of Economic and Community
Development, the Department of Agriculture, Conservation and
Forestry and the Department of Environmental Protection, to
implement the statewide comprehensive transportation policy.
The rule must incorporate a public participation process that
provides municipalities and other political subdivisions of the State
and members of the public notice and opportunity to comment on
transportation planning decisions, capital investment decisions,
project decisions and compliance with the statewide
transportation policy.
8
The Department of Transportation shall adopt a rule, in
coordination with the Department of Agriculture, Conservation
and Forestry, that establishes linkage between the planning
processes outlined in this section and those promoted by Title
30-A, chapter 187, subchapter 2 and that promotes investment
incentives for communities that adopt and implement land use
plans that minimize over-reliance on the state highway network.
This rule is a major substantive rule as defined in Title 5, chapter
375, subchapter 2-A.
5. Applicability to Department of Transportation.
Transportation planning decisions, capital investment decisions
and project decisions of the Department of Transportation are
governed by and must comply with the transportation policy set
forth in this section and rules implementing that policy.
6. [Repealed.]
7. Priorities, service levels, capital goals and reporting.
The Department of Transportation shall classify the State’s public
highways as Priority 1 to Priority 6 corridors using factors such as
the federal functional classification system, regional economic
significance, heavy haul truck use and relative regional traffic
volumes. The department shall also establish customer service
levels related to safety, condition and serviceability appropriate to
the priority of the highway, resulting in a system that grades each
highway as Excellent, Good, Fair, Poor or Unacceptable.
To provide a capital transportation program that is geographically
balanced and that addresses urban and rural needs, the
department shall include the following goals as part of its capital
improvement plans and program delivery. The goals are to:
A. By 2022, improve all Priority 1 and Priority 2 corridors so
that their safety, condition and serviceability customer
service level equals Fair or better;
9
B. By 2027, improve all Priority 3 corridors so that their
safety, condition and serviceability customer service level
equals Fair or better;
C. By 2017, implement a pavement program for all Priority
4 corridors that maintains their ride quality customer service
level at Fair or better;
D. Continue the light capital paving program on a 7-year
cycle for Priority 5 corridors outside compact areas as
defined in section 754; and
E. By 2015, develop and implement a similar asset priority
and customer service level system of measurement for all
major freight and passenger transportation assets owned or
supported by the department, including capital goals.
The department shall report to the joint standing committee of the
Legislature having jurisdiction over transportation matters by
March 1st of each odd-numbered year quantifying progress
realized and time that has elapsed since the goals were established.
The department shall recommend any remedial actions, including
additional funding or revisions to the goals, that the department
determines to be necessary or appropriate.
23 M.R.S. § 73 (footnotes omitted). In short, the STPA has six primary
components: it lists a series of “[p]urposes and findings” regarding
transportation decisions; sets out seven policies to be integrated into
transportation decisions; and requires the Department to adopt rules to
implement the transportation policy, comply with the transportation policy
and the rules implementing that policy, establish a priority system for state
10
highway improvements, and report to the Legislature on a biennial basis
regarding its progress and plans in meeting those goals. 23 M.R.S. § 73.
[¶9] As the LLCs concede, the plain language of the STPA unambiguously
provides for no express private right of action.5 The LLCs argue, however, that
a private right of action is instead implied by the STPA. We discern nothing in
the language of the STPA that implies the creation of a private right of action.
Contrary to the LLCs’ suggestion, the mere presence of the words “must” and
“shall” in a statute does not mean that a private right of action exists to enforce
it. In Larrabee, for example, one of the statutes at issue provided that “[a]n
employer shall” complete certain acts or else be “subject to a forfeiture of not
less than $50 nor more than $500.” 486 A.2d at 101 & n.6 (quotation marks
omitted). Even given that language, we held that “nothing in the plain language
or legislative history of [the provision] indicates that our Legislature intended
a private party to have a right of action under [the statute].”6 Id. at 101. 5 In other matters in which we have recognized an express statutory right of action, the language
of the relevant statutes has provided, for example, “Any person who . . . suffers any loss . . . as a result
of [the conduct at issue] may bring an action . . . for restitution and for such other equitable relief,
including an injunction, as the court may deem to be necessary and proper.” Bartner v. Carter,
405 A.2d 194, 199 (Me. 1979) (quotation marks omitted) (referring to the Unfair Trade Practices
Act); see Bank of Am., N.A. v. Camire, 2017 ME 20, ¶ 13, 155 A.3d 416 (stating that the Maine Fair Debt
Collection Practices Act affords consumers a private right of action by providing that “any debt
collector who fails to comply with any provisions of this Act with respect to any person is liable to
that person,” 32 M.R.S. § 11054(1) (2017)). The STPA does not contain similar language.
6 The LLCs’ reliance on Roop v. City of Belfast, 2007 ME 32, 915 A.2d 966, is misplaced. In that
case, we held that city residents had common law standing to challenge the referendum process by
11
[¶10] The LLCs further argue that the STPA would be a nullity—"a
meaningless exercise”—in the absence of any enforcement mechanism. They
offer no authority for the proposition that a statute is a nullity unless it provides
for a private right of action, however, and indeed, the STPA is similar in effect
to numerous other statutory provisions that set out broad policy objectives, e.g.,
1 M.R.S. § 401 (2017); 9-A M.R.S. § 1-102(2) (2017); 18-A M.R.S. § 1-102(b)
(2017); 22 M.R.S. § 4050 (2017), or require an entity to promulgate rules and
regulations to further effectuate statutory objectives, e.g., 4 M.R.S. § 198 (2017);
10 M.R.S. § 2369 (2017); 22 M.R.S. § 2124 (2017); 32 M.R.S. § 13722 (2017).
That the STPA contains few or no particularities on how its broad
transportation goals and policies are to be executed also indicates that it was
not intended to afford any private right of action. See Barbuto v. Advantage
Sales & Mktg., LLC, 78 N.E.3d 37, 50 (Mass. 2017) (declining to imply a private
right of action where the statute “provides no guidance as to what the
appropriate contours of the implied right of action would be”).
which an ordinance amendment was accomplished. Id. ¶¶ 2-11. We expressly declined to consider,
however, whether the growth management statute—according to which the referendum process was
completed—provided a private right of action because the parties never raised it. Id. ¶ 9 n.2; see
Lindemann v. Comm’n on Governmental Ethics & Election Practices, 2008 ME 187, ¶ 8, 961 A.2d 538 (“[T]he question of whether a specific individual has standing is significantly affected by the unique
context of the claim.”). To the extent Roop may have caused confusion, we take this opportunity to
reiterate that, when there is no explicit language creating a private right of action, the courts should
first determine whether a private right of action is available to enforce a statutory provision.
12
[¶11] The STPA must be interpreted consistently with other provisions
that unequivocally provide the Department with broad authority to manage the
State’s highways as a delegation of Executive Branch power. See 23 M.R.S. § 52
(2017) (describing the Department’s powers regarding “the planning, design,
engineering, construction, improvement, maintenance and use of
transportation infrastructure”). Nothing in the STPA suggests an
encroachment on that authority.
[¶12] We therefore conclude that the plain language of the STPA
unambiguously provides for no implied private right of action. Because the
plain language of the STPA resolves the question before us, we need not look
beyond that language to discern the legislative intent. See Stockly v. Doil,
2005 ME 47, ¶ 12, 870 A.2d 1208. Nevertheless, because the trial court and the
parties focused on the legislative history of the statute, and in the interest of
clarifying the means of determining legislative intent for citizen-enacted
legislation, we address the legislative history of the STPA as well. See id.
B. Legislative History
[¶13] As an initial matter, we address the LLCs’ challenges to the
procedure undertaken by the trial court when it evaluated the legislative
history of the STPA to determine whether it discloses a legislative intent to
13
provide for a private right of action. Contrary to the suggestion underlying
many of the LLCs’ arguments, the legislative intent of any statutory enactment
is determined wholly as a matter of law, not fact; the trial court determines
legislative intent as a matter of law, and we determine legislative intent de novo
as a matter of law on appeal. MaineToday Media, Inc., 2013 ME 100, ¶ 7, 82 A.3d
104; see In re Wage Payment Litig., 2000 ME 162, ¶ 4, 759 A.2d 217 (“If the plain
meaning of the text does not resolve an interpretative issue raised, we then
consider the statute’s history, underlying policy, and other extrinsic factors to
ascertain legislative intent.”); State v. Coombs, 1998 ME 1, ¶ 9, 704 A.2d 387 (characterizing de novo review as “independent review for conclusions of
law”); League of Women Voters v. Sec’y of State, 683 A.2d 769, 773-74 (Me.
1996) (determining legislative intent without any evidentiary presentations);
see also Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 189
(Alaska 2007) (“We also apply our independent judgment to questions of
statutory interpretation and adopt the rule of law that is most persuasive in
light of precedent, reason and policy.” (alteration omitted) (quotation marks
omitted)). Thus, no burden or standard of proof applies, judicial notice is not
implicated,7 “evidence” of legislative history is not offered or admitted, and the
7 Pursuant to M.R. Evid. 201, judicial notice applies to “an adjudicative fact only, not a legislative
fact.” Whereas an adjudicative fact is the “‘who-did-what-and-when’ kind of question that normally
14
court is not limited to reviewing those portions of legislative history that have
been provided by the parties. No matter what materials are directed to a court’s
attention, the court’s review of any and all legislative history information in the
course of its own evaluation of the law is not any more limited than a court’s
review of precedent identified by the parties.
[¶14] Contrary to the LLCs’ contention, legislative intent is therefore
properly analyzed in the context of a Rule 12(c) motion without any evidentiary
process. Further, although consideration pursuant to Rule 12(c) required the
trial court—and, on appeal, requires us—to make all factual inferences in favor
of the LLCs, they are entitled to no favorable inferences as to the legal
interpretation of the STPA—including the legislative intent as determined
through its legislative history. See Cunningham, 538 A.2d at 267.
[¶15] In evaluating legislative intent using information beyond the
language of the provision, we have relied on a variety of materials, including
the statutory scheme in which the relevant section is found, see Charlton v.
goes to a jury,” legislative facts “are those a court takes into account in determining the
constitutionality or interpretation of a statute.” M.R. Evid. 201 Advisers’ Note to 1976 promul.
(quotation marks omitted). We have also characterized legislative facts as those on which the
Legislature relies as a matter of public policy in fashioning a statute. See Aseptic Packaging Council v.
State, 637 A.2d 457, 460 (Me. 1994); Durepo v. Fishman, 533 A.2d 264, 265 (Me. 1987). As the United
States Supreme Court has held, “a legislative choice is not subject to courtroom fact-finding.” FCC v.
Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993); see State v. $223,405.86, 203 So. 3d 816, 831 (Ala.
2016) (stating that “the testimony of a trial witness as to what legislators intended in voting for a
statute . . . is inadmissible as evidence”).
15
Town of Oxford, 2001 ME 104, ¶ 16, 774 A.2d 366; the history of relevant
codifications, amendments, and repeals, see State v. Legassie, 2017 ME 202,
¶¶ 16-20, 171 A.3d 589; the legislative committee file, including testimony
before a committee and newspaper articles submitted to a committee, see Craig
v. Caron, 2014 ME 115, ¶ 14, 102 A.3d 1175; Bank of Am., N.A. v. Cloutier, 2013
ME 17, ¶ 19, 61 A.3d 1242; Me. Ass’n of Health Plans, 2007 ME 69, ¶¶ 50-51,
923 A.2d 918; scholarly literature available at the time of the enactment, see
Cloutier, 2013 ME 17, ¶ 20, 61 A.3d 1242; “preenactment history, including
circumstances and events leading up to a bill’s introduction,” see Estate of
Robbins v. Chebeague & Cumberland Land Tr., 2017 ME 17, ¶ 24, 154 A.3d 1185 (quotation marks omitted); reports and recommendations from legislative task
forces, committees, and working groups, see Me. Ass’n of Health Plans,
2007 ME 69, ¶ 54, 923 A.2d 918; Darling’s v. Ford Motor Co., 1998 ME 232, ¶ 10,
719 A.2d 111; narrative summaries and statements of fact accompanying
proposed legislation and committee amendments, see Me. Ass’n of Health Plans,
2007 ME 69, ¶¶ 49, 52, 923 A.2d 918; “pronouncements of the legislators
during their initial consideration” of a statute, see id. ¶ 47; legislative debate,
see id. ¶ 55; contemporaneous legislation, see In re Wage Payment Litig.,
2000 ME 162, ¶¶ 9, 12, 759 A.2d 217; Mundy v. Simmons, 424 A.2d 135, 138
16
(Me. 1980); interpretations of federal counterpart statutes, Batchelder v.
Realty Resources Hospitality, LLC, 2007 ME 17, ¶ 20, 914 A.2d 1116;
information from uniform codes from which the provision may have originated,
see Guardianship of Sanders, 2016 ME 99, ¶ 9 n.7, 143 A.3d 795; and the analysis
of legislation by the Office of Policy and Legal Analysis, see McLaughlin v.
Superintending Sch. Comm., 2003 ME 114, ¶ 18, 832 A.2d 782.
[¶16] “Citizen initiatives are reviewed according to the same rules of
construction as statutes enacted by vote of the Legislature.” Opinion of the
Justices, 2017 ME 100, ¶ 59, 162 A.3d 188; see League of Women Voters,
683 A.2d at 771. Interpreting citizen-enacted legislation requires us to
“ascertain the will of the people” rather than the will of the Legislature.
Opinion of the Justices, 2017 ME 100, ¶ 7, 162 A.3d 188 (quotation marks
omitted).
[¶17] Legislative debate and other standard fare for determining
legislative intent may be unavailable for citizen-enacted statutes, but we have
the benefit of additional materials not available for Legislature-enacted
statutes. For example, the Attorney General is required by statute to issue a
“brief explanatory statement that must fairly describe the intent and content
and what a ‘yes’ vote favors and a ‘no’ vote opposes for each direct initiative.”
17
1 M.R.S. § 353 (2017). The Office of Fiscal and Program Review also must
“prepare an estimate of the fiscal impact on state revenues, appropriations and
allocations of each measure that may appear on the ballot.” 1 M.R.S. § 353. The
language of the ballot question for a citizens’ initiative is also an indication of
legislative intent. State v. Brown, 571 A.2d 816, 818 (Me. 1990).
[¶18] We have relied on all such materials in determining legislative
intent in prior matters. Id. (“In the absence of a challenge to the Attorney
General’s official explanation of the amendment, we assume that the voters
intended to adopt the constitutional amendment on the terms in which it was
presented to them . . . .”); League of Women Voters, 683 A.2d at 773-74 (discussing the Attorney General’s explanatory statement attached to a
referendum question); see also Kritz, 170 P.3d at 193 (“[W]hen we review a
ballot initiative, we look to any published arguments made in support or
opposition to determine what meaning voters may have attached to the
initiative.”); People v. Clendenin, 232 P.3d 210, 215 (Colo. App. 2009) (noting
that “the explanatory publication of the Legislative Council of the Colorado
General Assembly, otherwise known as the Blue Book . . . provides important
insight into the electorate’s understanding of [a citizen initiative] when it was
passed and also shows the public’s intentions in adopting the [enactment].”
18
(quotation marks omitted)); Barbuto, 78 N.E.3d at 49 (“[W]e look to the closest
equivalent to legislative history, which is the Information for Voters guide that
is prepared by the Secretary of the Commonwealth and sent to each registered
voter before the election.”).
[¶19] We turn to a review of all such materials relating to the enactment
of the STPA. In 1991, “An Act to Deauthorize the Widening of the Maine
Turnpike and to Create a Sensible Transportation Policy” was first presented to
the Legislature. L.D. 719 (115th Legis. 1991). The bill proposed the enactment
of the STPA as well as the amendment of several other existing statutes within
title 23. L.D. 719 (referred to the voters, 115th Legis. 1991). The Legislature
declined to enact it, 1 Legis. Rec. H-751 (1st Reg. Sess. 1991); 3 Legis. Rec. S-801
(1st Reg. Sess. 1991), and the statute was eventually enacted by citizen
initiative on November 5, 1991.8 I.B. 1991, ch. 1, § 1 (effective Dec. 20, 1991);
8 The “Rule for the Sensible Transportation Policy Act,” promulgated by the Department as
required by the STPA, see 23 M.R.S. § 73(4) (2017), reiterates the policy goals in the STPA; sets out
the “Statewide Long-Range Transportation Plan”; and addresses capital investment and project
development strategies for the Department, the Maine Turnpike Authority, and municipalities.
8A C.M.R. 17 229 103-1 to -18, §§ I-III (2008). Like the STPA, to the extent the rule mandates any
particular action by the Department, it does so only in the broadest of terms; it also places public
participation procedures within the Department’s discretion based on the scope and nature of the
project at issue. E.g., 8A C.M.R. 17 229 103-7 § I(7)(C) (requiring that the Department “initiate a
public participation process commensurate with the scope of [a given] project” and listing examples
of what the “information provided through the public participation process may include”); 8A C.M.R.
17 229 103-7 § I(7)(E) (stating that the Department “may hold a public hearing on the draft strategy
evaluation and analyses”); 8A C.M.R. 17 229 103-9 § I(10)(A) (stating that the Department will
“engage a public participation process” in the “preliminary design of funded projects, at [the
19
L.D. 719 (referred to the voters, 115th Legis. 1991); see Me. Const. art. IV, pt. 3,
§ 18; 21-A M.R.S. §§ 901-906 (2017).
[¶20] The legislative history of the STPA persuades us that the particular
focus of the bill was to prevent the Turnpike Authority from executing its plan
to widen the Turnpike in southern Maine and to diminish the Turnpike
Authority’s ability to accomplish similar plans in the future. The Statement of
Fact accompanying the legislation stated as much in declaring that the
legislation would “ensure that transportation decisions and the substantial
commitments of public funds resulting from them are made in the context of a
comprehensive, statewide transportation policy”; deauthorize the widening of
the Maine Turnpike between Exits 1 and 6-A; require the Turnpike Authority
to obtain the Legislature’s approval for any widening or expansion of the
Turnpike;9 require the Turnpike Authority to transfer surplus funds to the
Department; and make the Turnpike Authority’s budget and expenditures
subject to Legislative approval. L.D. 719, Statement of Fact (referred to the
voters, 115th Legis. 1991); see Office of Policy and Legal Analysis, Joint Standing
Department’s] discretion or if requested by municipal officials”). The rule contains no mention of
any enforcement, right of action, court proceedings, or litigation of any kind.
9 The Turnpike Authority had previously been required to obtain Legislative approval only when
widening the Turnpike to include more than three lanes in each direction between Exit 1 and Exit 6A,
or more than two lanes in each direction elsewhere on the Turnpike. 23 M.R.S.A. § 1965(1)(D),
1968(1) (Supp. 1989); see L.D. 719, §§ 5, 7 (referred to the voters, 115th Legis. 1991).
20
Committee Bill Summaries, L.D. 719 (Aug. 1991). It is notable in this regard
that every portion of the bill except the one enacting the STPA worked
amendments to title 23, chapter 24, the chapter dedicated to the Maine
Turnpike. L.D. 719 (referred to the voters, 115th Legis. 1991).
[¶21] More than forty people testified at a public hearing about the bill
before the Transportation Committee; the overwhelming focus of that
testimony was the Turnpike Authority’s plan to widen the Turnpike in southern
Maine. An Act to Deauthorize the Widening of the Maine Turnpike and to Create
a Sensible Transportation Policy: Hearing on L.D. 719 Before the Comm. on
Transp. (Hearing on L.D. 719), 115th Legis. (1991). The supporters of the bill
cited a host of financial, safety, air pollution, public health, and environmental
concerns raised by the widening. Hearing on L.D. 719 (testimony of Booth
Hemingway, Kittery Coordinator; Marshall Burke, Dir. of the Am. Lung Ass’n of
Me.; Brownie Carson, Exec. Dir. of the Nat. Res. Council of Me.; Elizabeth Lovejoy
for the Me. Audubon Soc’y). Opponents argued that failing to widen the
Turnpike would compromise Maine’s economic prospects for tourism and
other industries, deny residents job opportunities, and create road safety
issues. Hearing on L.D. 719 (testimony of Jerry G. Haynes for the Associated
Gen. Contractors of Me., Inc.; Jon Olson, Exec. Sec’y of the Me. Farm Bureau;
21
David M. Spahn, Chairman of the Gov’t Affairs Comm. of the Sanford-Springvale
Chamber of Commerce; Milton F. Huntington for the Me. Hwy. Users
Conference; Clyde G. Berry, Master of the Me. State Grange). Notably, a handful
of opponents pointed out that proponents of the bill seemed to be unaware that
the legislation would have any lasting effect other than to prevent the widening
of the Turnpike. Hearing on L.D. 719 (testimony of Laurie R. Winsor, Pres. of
the Lewiston-Auburn Chamber of Commerce; Maria Fuentes, Dir. of the Me.
Better Transp. Ass’n; Chuck Roundy for the Econ. Dev. Council of Me.).
[¶22] The LLCs rely on the testimony of the former Commissioner of the
Department, who set out numerous concerns about the bill—among them, “I
also fear that this new policy would give anyone the ability to stop a road
improvement project by intervening or filing endless lawsuits.” Hearing on L.D.
719 (testimony of Dana F. Connors, Comm’r of the Dep’t of Transp.). The
Commissioner’s mention of the potential for litigation was a generalized
statement that does little to suggest that the intent of the bill was to establish
an implied private right of action; the testimony merely sets out the
Commissioner’s fear that others might interpret the bill in that manner.10
10 If a statute is ambiguous, we “will uphold the agency’s interpretation in its field of expertise
unless the statute plainly compels a contrary result.” Me. Ass’n of Health Plans v. Superintendent of
Ins., 2007 ME 69, ¶ 32, 923 A.2d 918 (quotation marks omitted). Whether the legislative intent of a
statute was to create an implied private right of action is not within the Department’s technical
22
Further, although several opponents worried that a new transportation policy
might hinder road improvements, none addressed precisely how, by whom, or
in what circumstances road work could be stymied. Hearing on L.D. 719
(testimony of Fuentes; Paul Violette; Berry; Jack Dexter, Pres. of the Me.
Chamber of Commerce and Indus.) Rather, the opponents warned against a
general anti-growth policy that they feared the enactment of the bill could
signal. Hearing on L.D. 719 (testimony of Roundy, Winsor). Indeed, other than
the Commissioner’s single mention, the testimony contains no reference to a
private right of action or, in fact, any mention of the STPA at all.
[¶23] When the bill was presented to the voters by referendum, the
ballot question was similarly focused on the broad policies at issue as applied
to the widening of the Maine Turnpike; it asked, “Do you favor the changes in
Maine Law concerning deauthorizing the widening of the Maine turnpike and
establishing transportation policy proposed by citizen petition?” G. William
Diamond, Sec’y of State, Maine Citizen’s Guide to Upcoming Initiative, Bond
Issues, and Proposed Constitutional Amendment (Citizen’s Guide) 3 (1991).
expertise, and therefore we do not defer to the Department’s interpretation of the STPA on that
subject. See Kane v. Comm’r of Dep’t of Health & Human Servs., 2008 ME 185, ¶ 12, 960 A.2d 1196 (stating that deference is afforded only as to matters not within this Court’s expertise); Nichols v.
Cantara & Sons, 659 A.2d 258, 260-61 (Me. 1995) (holding that the calculation of a claim for loss of
consortium is “not within the authority or traditional expertise of [the Workers’ Compensation]
Board”).
23
[¶24] The Citizen’s Guide to the 1991 referendum, published pursuant to
1 M.R.S. § 353, also gave no hint that any private right of action would be
created. Like the Statement of Fact, the Citizen’s Guide stated that the bill would
require the adoption of a new transportation policy, “repeal existing statutory
authority to widen the Maine Turnpike,” require legislative approval of the
Turnpike Authority’s budget, and require that surplus Turnpike Authority
funds be transferred to the Department. L.D. 719, Statement of Fact (referred
to the voters, 115th Legis. 1991); Citizen’s Guide 12.
[¶25] Finally, although the STPA has undergone several amendments by
the Legislature since 1991, in none of them has the Legislature made any
adjustments indicating an intent to allow the enforcement of the STPA by
implied private right of action. See R.R. 1991, ch. 2, § 88; P.L. 2003, ch. 22, § 1
(effective Sept. 13, 2003); P.L. 2007, ch. 470, § B-1 (effective June 30, 2008);
P.L. 2011, ch. 610, §§ B-1, B-2 (effective Aug. 30, 2012); P.L. 2011, ch. 655,
§§ JJ-9, JJ-41 (effective July 1, 2012); P.L. 2011, ch. 657, § W-5 (effective
Aug. 30, 2012).
[¶26] These legislative history sources do not purport to set out the
intent of all—or even most—of the citizens who voted to enact the STPA, but
they do illuminate the context and substance of the statewide conversation that
24
culminated in the citizens’ enactment of the STPA in 1991. See Brown,
571 A.2d at 818 (adopting “a common sense view of the context in which the
voters of Maine adopted [a provision]”). The bulk of that conversation regarded
the widening of the Maine Turnpike, indicating that the STPA was intended to
reset the State’s broad transportation policy goals. Citizen-initiated legislation
must be interpreted liberally to effectuate its purpose, Opinion of the Justices,
2017 ME 100, ¶ 59, 162 A.3d 188, but it should not be interpreted beyond the
scope of the legislative intent underlying its enactment, League of Women
Voters, 683 A.2d at 773 (“It is fundamental that we look to the purpose for
which a law is enacted, and that we avoid a construction which leads to a result
clearly not within the contemplation of the lawmaking body.” (quotation marks
omitted)); see Kritz, 170 P.3d at 192 n.28 (“[T]o imply into statute what is not
apparent on its face would be stepping over the line of interpretation and
engaging in legislation.” (quotation marks omitted)). None of these sources
suggests that the legislative intent in enacting the STPA was to create an
implied private right of action.
[¶27] We conclude that the STPA provides for no implied private right of
action to allow enforcement of its terms and that the Superior Court committed
25
no error in entering a judgment on the pleadings as to Count 1 based on the
nonjusticiability of the LLCs’ claim.
The entry is:
Judgment affirmed.
Robert S. Hark, Esq. (orally), Portland, and Peggy L. McGehee, Esq., and Lauren
B. Weliver, Esq., Perkins Thompson, Portland, for appellants Wawenock, LLC,
Bermuda Isles, LLC, 48 Federal Street LLC, and 32 Middle Street LLC
Nathaniel M. Rosenblatt, Esq. (orally), and Kate J. Grossman, Esq., Farrell,
Rosenblatt & Russell, Bangor, and James A. Billings, Esq., Maine Department of
Transportation, Augusta, for appellee Department of Transportation
Business and Consumer Docket docket number CV-2017-14
FOR CLERK REFERENCE ONLY