Block v. Beal

STATE OF MAINE SUPERIOR COURT
KENNEBEG, ss. CIVIL ACTION
Docket No. AP-23-11

SIDNEY BLOCK, ELEANOR DANIELS,

ee
EILEEN WOLPER, and ANIMAL

ee
OUTLOOK,

ee
ee
Petitioners,
Vv.

ee
ee9
AMANDA BEAL, Commissioner of Maine ORDER (MLR. CIV. P. 80C)

ee
Department of Agriculture, Conservation,

ee
and Forestry,

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ee
and
ee
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MAINE DEPARTMENT OF
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AGRICULTURE, CONSERVATION, AND
Nee

FORESTRY, ANIMAL WELFARE
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PROGRAM,
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Respondents.
Nowe

Pursuant to M.R. Civ. P. 80C, Petitioners Sidney Block, Eleanor Daniels, Eileen Wolper,

and Animal Outlook! (collectively, <Petitioners=) have filed a Petition for Review of Agency

Failure or Refusal to Act against Respondents Maine Department of Agriculture, Conservation,

and Forestry and Commissioner Amanda Beal (collectively, <DACF=). Specifically, Petitioners

allege that DACF has (1) failed to act in response to a citizen petition for rulemaking submitted

by 150 registered voters and (2) has abdicated its responsibility to administer, implement, and

enforce animal cruelty laws in aquaculture facilities. For the following reasons, the Rule 80C

Petition is denied.

' Animal Outlook formerly went by the name <Compassion Over Killing.=
BACKGROUND

The events giving rise to this appeal began in 2019 when DACF9s Animal Welfare

Program (<A WP=) received an animal cruelty complaint= from Animal Outlook4a nonprofit

organization dedicated to improving the welfare of animals. The complaint accused Cooke

Aquaculture hatchery of committing acts of animal cruelty in the processing and harvesting of

fish at the facility. R. 446-49,

DACF subsequently commenced an investigation into the complaint, though it

acknowledged that to date it <had no experience investigating land-based aquaculture or

[s]almon,= and Maine did not have best management practices (<BMPs=) in place for this type of

agriculture. R. 446-47. At the conclusion of the investigation, DACF determined that Cook

Aquaculture had taken appropriate action to improve training and operations in the facility and

closed the complaint. R. 449. DACF recommended <that another state agency that specializes in

aquatic animals look into developing oversight in animal care at this type of [a]quaculture

facility to ensure proper compliance with BMPs in the future.= R. 449.

Unsatisfied with DACF9s response, Animal Outlook submitted a Citizen Petition to

Initiate Rulemaking pursuant to 5 M.R.S. § 8055, demanding that the agency:

(1) develop BMPs for animal husbandry in aquaculture facilities; and

(2) issue a policy statement confirming DACF9s commitment to ensuring that fish kept in
aquaculture facilities be properly cared for and outlining training and inspection
protocols specific to aquaculture facilities.

R. 1. The rulemaking petition contained the signatures of over 150 registered Maine voters,

including those of Petitioners Sidney Block, Eleanor Daniels, and Eileen Wolper.

* DACF is statutorily charged with <investigat{ing] complaints of cruelty to animals and
enforc[ing] cruelty-to-animal laws.= 7 M.R.S. § 3906-B(11); see also 7 MLR.S. § 3902.
By letter dated September 1, 2022, DACF denied the petition on grounds that it was

<incomplete and defective.= R. 444-45. DACF cited two deficiencies: (1) Petitioners did not

provide proposed rule text and (2) the policies requested were not judicially enforceable and

thus, inappropriate for rulemaking. Jd.

On February 22, 2023, Petitioners filed a Petition for Review of Agency Failure or

Refusal to Act pursuant to M.R. Civ. P. 80C and a Complaint for Declaratory Relief pursuant to

5 M.R.S. § 8058. Counts I-IV of the Rule 80C Petition challenge the agency9s denial of the

Citizen Petition to Initiate Rulemaking, and Count VI alleges that DACF has failed to fulfill its

duty to enforce animal cruelty laws in aquaculture facilities. Count V4which sought declaratory

relief based on the agency9s failed to adopt rules required by law4was dismissed by prior order,

as the Court concluded that DACF was not legally obligated to adopt the rules envisioned by

Petitioners. Having previously disposed of the Complaint for Declaratory Relief, see M.R.S. §

8058, the Court now addresses what remains: Petitioners9 Rule 80C claims.

STANDARD OF REVIEW

Petitioners characterize their Rule 80C Petition as one seeking judicial review of DACF9s

failure or refusal to act. Under 5 M.R.S. § 11001(2), <[a]ny person aggrieved by the failure or

refusal of an agency to act shall be entitled to judicial review thereof in the Superior Court.=

<The relief available in the Superior Court shall include an order requiring the agency to make a

decision within a time certain.= Jd. The Law Court has construed the language in Section

11001(2) to mean that with respect to failure-to-act claims, the <only remedy potentially

available [is] an order, in the nature of mandamus, requiring the [agency] to act by a date

certain.= Doe v. Bd. of Osteopathic Licensure, 2020 ME 134, Ff 22, 24, 242 A.3d 182.

Petitioners bear the burden of demonstrating that they are entitled to relief. See Anderson v. Me.

Pub. Emp. Ret. Sys., 2009 ME 134, 43, 985 A.2d 501.
DISCUSSION

This Rule 80C appeal asks the Court to resolve two primary issues: (1) whether DACF

erred by failing to initiate rulemaking and by denying the rulemaking petition and (2) whether

DACF has abdicated its responsibility to administer, implement, and enforce animal cruelty laws

in aquaculture facilities. These issues are addressed below.

I. Failure to Initiate Rulemaking and Denial of Rulemaking Petition

Petitioners contend that DACF was obligated to initiate rulemaking because their petition

was supported by the signatures of more than 150 Maine voters as required by 5 M.R.S. §

8055(3). See id. (stating that <[w]henever a petition to adopt or modify a rule is submitted by 150

or more registered voters of the State, the agency shall initiate appropriate rulemaking

proceedings within 60 days after receipt of the petition=). Petitioners furthermore challenge

DACF9s justifications for denying the petition.

Before reaching these contentions, however, the Court must address DACF9s threshold

challenge to the timeliness of the Rule 80C Petition as it relates to Counts I-IV. According to

DACEF, Petitioners filed their Rule 80C Petition more than 4 months after they received notice of

DACF9s decision to deny the rulemaking petition4well outside the 30-day window set forth by

5 M.R.S. § 11002(3). Moreover, DACF rejects Petitioners9 attempt to characterize their claim as

a challenge to the <agency9s failure or refusal to act,= which claims are deemed timely if <filed

within 6 months of the expiration of the time within which the action should reasonably have

occurred.= 5 M.R.S. § 11002(3). To accept Petitioners9 reframing, DACF argues, would ignore

the fundamental dispute set forth in the Rule 80C Petition for Review as well as the reality that

the agency <acted= when it denied the rulemaking petition.
Thus, to resolve the timeliness issue, the primary question the Court must answer is

whether DACF9s conduct constituted an <act=4in which case, Petitioners would be subject to a

30-day filing deadline, rendering the Rule 80C Petition untimely4or a <failure or refusal to

act=4in which case, Petitioners would be subject to a 6-month filing deadline and the Petition

would be timely. See 5 M.R.S. § 11002(3). The Court concludes that the agency9s conduct is

more appropriately characterized as the latter.

The Law Court9s decision in Lingley v. Maine Workers' Comp. Bd., provides useful

guidance. 2003 ME 32, 819 A.2d 327. That case arose before the Law Court after the Superior

Court dismissed the appellants9 Rule 80C petition as untimely, and on appeal, the Lingley Court

considered whether the appellants were entitled to judicial review of their challenge to the

Worker9s Compensation Board9s failure to adopt a proposed rule. /d. 1-2, 6-9. In doing so, the

Law Court rejected the appellants9 contention that review was available under the APA provision

governing an agency9s <failure or refusal to act.= Jd. § 9. It determined that the Board, which

voted against the rule9s adoption, had engaged in an <act4not a refusal or failure to act.= Jd.

While the Law Court acknowledged that <the result was the same as a refusal to promulgate the

proposed rule,= it reasoned that <a refusal to take a requested action is not identical to a refusal to

act.= Id. 7 9.

The Lingley Court illustrated the difference with an example: <When an applicant applies

to an agency for a permit or other approval, and the agency refuses to grant the permit or

approval, that refusal is an action.= /d. 4 9 n.7. <If, however, the agency refused to take any

action on the application, the agency has refused to act.= Jd. (emphasis added). It added that a

<typical instance= of agency refusal or failure to act= is illustrated in Eastern Maine Medical

Center v. Maine Health Care Finance Commission, in which the agency failed to issue a
decision in response to the appellant9s application and thus, <did not act on the [] application= at

all. Jd. 9 9 n.7 (citing Eastern Maine Medical Center, 601 A.2d 99 (Me.1992)).

In this case, the Court concludes that DACF9s conduct is more akin to the agency action

in Lingley than the <typical instance= of agency failure or refusal to act in Eastern Maine

Medical Center. Id. DACF declined to commence rulemaking and denied the citizen petition

though the issuance of a written decision setting forth its grounds for refusing to take the action

requested. See R. 444-45 (reasoning that the petition was <incomplete and defective= and <d[id]

not provide for appropriate rulemaking=). Indeed, this is not a case where the agency refused to

take <any action= on the rulemaking petition at all. Lingley, 2003 ME 32, § 9 n.7 819 A.2d 327;

Cf Eastern Maine Medical Center, 601 A.2d at 100. Rather, DACF considered Petitioners9

rulemaking petition and issued an affirmative decision denying it.

Under these circumstances, the Court concludes that DACF9s denial of the petition and

refusal to initiate rulemaking constituted an <act=4not a <failure or refusal to act.= Lingley, 2003

ME 32, 7 9, 819 A.2d 327. Accordingly, Petitioners were subject to the 30-day filing deadline in

Section 11002(3). See 5 M.R.S. § 11002(3).? Petitioners9 claims relating to the rulemaking

3 Even assuming, as Petitioners contend, that the 30-day deadline does not apply because
a decision on a petition for rulemaking is not a <proceeding,= Petitioners offer no persuasive
contention as to why they would not be subject to the <catch-all= provision of Section 11002(3),
which states that <[a]ny other person aggrieved shall have 40 days from the date the decision was
rendered to petition for review.= 5 M.R.S. § 11002(3) (emphasis added). And in any event, the
Court sees no reason to dwell on whether the 30-day or 40-day deadline applies, as Petitioners9
Rule 80C Petition would not be timely under either timeframe. The Court furthermore rejects
Petitioners9 suggestion that neither time limit is implicated because DACF9s decision denying
the rulemaking petition is not adjudicatory in nature. Pet9rs9 Reply Br. 3 n.5. To the extent
Petitioners suggest that DACF9s decision is more akin to rulemaking, the Court disagrees
because <unlike adjudications, which are quasi-judicial determinations of individual rights,
rulemaking is focused on policy matters of general applicability.= Forest Ecology Network v.
Land Use Regulation Comm'n, 2012 ME 36, § 46 & n.11, 39 A.3d 74. Although the rulemaking
petition sought adoption of a rule of general applicability, DACF9s decision denying the petition
petition (Counts I-IV)4which were raised in a Rule 80C Petition filed months after DACF9s

issued its decision4are therefore untimely and must be dismissed for lack of jurisdiction. See

Mutty v. Dep't of Corr., 2017 ME 7, § 8, 153 A.3d 775 (<The time limits set forth in the [APA]. .

. are jurisdictional, meaning that unless the petition is timely filed, the court lacks jurisdiction. If

jurisdiction is lacking, the court must dismiss the petition.= (internal citations and quotation

marks omitted)).

II. Abdication of Duty to Enforce Animal Cruelty Laws in Aquaculture Facilities

Count VI of the Petition for Review asserts that DACF has failed to fulfill its duty to

administer, implement, and enforce animal cruelty laws in aquaculture facilities and seeks an

order requiring the agency to enforce the law accordingly. DACF contends that the Court should

not reach this claim because Petitioners lack standing. Alternatively, DACF asserts that the

record reveals it has complied with its statutory enforcement duties.

A. Standing

Petitioner Animal Outlook asserts that it has organizational standing to bring this claim,

arguing that it has suffered an injury in its own right.9 See Pet9rs9 Reply Br. 6. Specifically, it

maintains that DACF9s inaction has frustrated its organizational mission and required Animal

Outlook to divert its resources to counteract the harm caused by the agency9s practices.

The right to appeal from an administrative action or inaction is governed by

statute. Nelson v. Bayroot, LLC, 2008 ME 91, 4 9, 953 A.2d 378. <Whether a party has standing

depends on the wording of the specific statute involved.= /d. In this case, the governing statutory

was a quasi-judicial determination of Petitioners9 rights under 5 M.R.S. § 8055(3) and thus,
adjudicatory in nature.
<It does not appear that Animal Outlook is pursuing a theory of associational or
representative standing, which is predicated on an injury felt by an organization's members.
provision is Section 11001(2) of the APA, which states: <Any person? aggrieved by the failure or

refusal of an agency to act shall be entitled to judicial review thereof in the Superior Court.= 5

M.R.S. § 11002(2) (emphasis added). <A person is aggrieved within the meaning of the APA if

that person has suffered particularized injury4that is, if the agency action operated prejudicially

and directly upon the party's property, pecuniary or personal rights.= Nelson, 2008 ME 91, { 10,

953 A.2d 378.

While the parties appear to agree that the Law Court has yet to explore the contours of

organizational standing, it is <well-accepted= in federal courts <that organizations may have

interests of their own, separate and apart from the interests of their members.= Mass. Delivery

Ass'n v. Coakley, 671 F.3d 33, 44 n.7 (ist Cir. 2012). Accordingly, federal precedent has

recognized that a non-profit organization may suffer a legally cognizable injury in its own right

when government action/inaction impedes the organization9s activities, requiring it to divert

resources to counteract the alleged harm. See Havens Realty Corp. v. Coleman, 455 U.S. 363,

379 (1982); Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 919-20 (D.C. Cir. 2015).

For instance, in Havens Realty, the United States Supreme Court held that an

organizational plaintiff had standing where the defendant9s practices <perceptibly impaired [the

plaintiff's] ability to provide [the services it was formed to provide}].= Jd; see also Miami Valley

Fair Hous. Ctr., Inc. v. Connor Group, 725 F.3d 571, 576 (6th Cir. 2013); El Rescate Legal

Services, Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 748 (9th Cir. 1991).

<Such concrete and demonstrable injury to the organization's activities4with the consequent

drain on the organization's resources4constitutes far more than simply a setback to the

° The APA9s definition of <[p]erson= includes an <association or public or private
organization of any character.= 5 M.R.S. § 8002(8).
organization's abstract social interests= and thus, suffices for standing. Havens Realty, 455 U.S.

at 379; People for the Ethical Treatment of Animals v. U.S. Dept. of Agric., 797 F.3d 1087, 1093

(D.C. Cir. 2015) (<PETA=). In other words, organizational standing may be satisfied upon a

showing that an agency9s <inaction injured [the organization9s] interests and, consequently, [the

organization] has expended resources to counteract those injuries.= PETA, 797 F.3d at 1094.

Here, although this case presents a close call, the Court is satisfied that the alleged

agency inaction has operated prejudicially and directly on Animal Outlook9s organizational

interests in a manner sufficient to establish standing. Nelson, 2008 ME 91, ¥ 10, 953 A.2d 378.

Animal Outlook is a nonprofit organization whose mission is to <build a better tomorrow for all

animals,= including fish kept for aquaculture. Pet. & Compl. § 22. A key way the organization

accomplishes this goal is through investigating animal cruelty, reporting cruelty to law

enforcement, and supporting state and federal agencies in the enforcement of animal cruelty

laws. Id. The alleged failure or refusal to enforce animal cruelty laws in aquaculture facilities by

DACP, which is charged with investigating complaints and <enforc[ing] cruelty-to-animal laws,=

7 M.LR.S. § 3906-B(1 1), has <perceptibly impaired= Animal Outlook9s mission to improve the

welfare of animals through it normal process of submitting animal cruelty complaints and aiding

subsequent enforcement efforts. Havens Realty, 455 U.S. at 379 (1982); PETA, 797 F.3d at

1093-95; Pet. & Compl. {{ 22, 162. The Court thus concludes that the alleged injury at issue4

the denial of an adequate means by which to seek redress for cruelty to fish4constitutes a

cognizable injury for standing purposes. See PETA, 797 F.3d at 1093-95.

Moreover, Animal Outlook has expended resources to counteract those injuries. Havens

Realty, 455 U.S. at 379; PETA, 797 F.3d at 1093-95. Petitioners allege that as a result of DACF9s

alleged inaction, Animal Outlook has been forced to divert its resources away from supporting
animal cruelty prosecutions to: (1) demanding and reviewing public records; (2) educating the

public about Maine9s absence of animal welfare protections in aquaculture; and (3) attempting to

cure the inaction through its rulemaking efforts, which has included the collection and

verification of signatures necessary to support the Citizen Petition to Initiate Rulemaking. See

Pet. & Compl. J§ 22, 162. Under these circumstances, the Court concludes that Animal Outlook

has suffered a sufficiently particularized injury and has demonstrated that it has been aggrieved

by DACF9s alleged failure or refusal to enforce animal cruelty laws in aquaculture facilities.

B. DACF9s Compliance with its Enforcement Obligations

DACF does not appear to dispute that it has been charged with the duty to enforce animal

cruelty laws in aquaculture facilities. See 7 M.R.S. §§ 3902, 3906-B(11) (the Commissioner of

DACF <shail investigate complaints of cruelty to animals and enforce cruelty-to-animal laws=);

see also id. § 3907(2) (defining <[a]nimal= to mean <every living, sentient creature not a human

being=). It argues, however, that the record does not support Petitioners9 claim that it has

abdicated its duty to do so. The Court agrees.

The record reveals that when the agency received a complaint concerning animal cruelty

in an aquaculture facility (Cooke Aquaculture), it undertook an extensive investigation in

response. DACF9s investigative efforts included observing video footage submitted by Animal

Outlook; interviewing witnesses; reviewing best aquaculture practices promulgated by the

Global Aquaculture Alliance; consulting officials from the Department of Inland Fisheries and

Wildlife and the Department of Marine Resources; and visiting the facility on multiple

occasions. R. 446-49. DACF also expressed its view that it was equipped to handle future

investigations and complaints, noting that it <can deal with circumstances of animal cruelty in

aquaculture facilities under its existing statutes and rules.= R. 445. While Petitioners may
disagree with how the agency resolved the complaint against Cooke Aquaculture and possess

different views regarding how best to enforce animal cruelty laws, the record does not support

Petitioners9 claim that DACF <8consciously and expressly adopted a general policy [of non-

enforcement]9= of animal cruelty laws in the aquaculture context. Pet9rs9 Br. 21-22 (quoting

United States v. Texas, 599 U.S. 670, 682-83 (2023)).

Petitioners emphasize that in DACF9s report addressing the Cooke Aquaculture

complaint, the agency included a <recommendation that another state agency that specializes in

aquatic animals look into developing oversight in animal care at this type of [a]quaculture

facility to ensure proper compliance with BMPs in the future.= R. 449. The Court, however, does

not understand this statement as an expression of DACF9s intent to absolve itself from its

enforcement obligations, but rather, a policy recommendation in favor of a collaborative

approach to ensuring that animals in aquaculture facilities are properly cared for. In sum,

Petitioners fall short of demonstrating the pattern of nonenforcement they claim.

CONCLUSION

The entry is: Petitioners9 Rule 80C Petition for Review of Agency Failure or Refusal to

Act is DENIED.

The clerk is directed to incorporate this order on the docket by reference pursuant to M.R.

Civ. P. 79(a).

c

Date: July9, 2024 <pe. »~
Michaela Murphy es)
Justice, Maine Superior Court

{24 Catered oa the doe Ke+4

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