116 A.3d 940
Me.2015Background
- Fox Islands Wind (Fox Island) received DEP certification in June 2009 to build/operate a small-scale wind project in Vinalhaven; certification included condition #8 requiring a revised operation protocol after any DEP noncompliance determination.
- Neighbors organized as Fox Islands Wind Neighbors (FIWN) complained of turbine noise beginning in 2010; DEP issued a notice of noncompliance (Nov. 2010) based on July 17–18, 2010 noise exceedances and demanded a revised protocol.
- Fox Island submitted a revised protocol; DEP issued a Condition Compliance Order (CCO) on June 30, 2011, accepting the protocol and imposing operational limits tied to wind direction (200–250°) and certain wind-shear conditions.
- FIWN petitioned under Rule 80C, alleging the CCO was politically influenced, beyond DEP authority, unsupported by substantial evidence, arbitrary/capricious, and violated federal constitutional rights (First Amendment/§ 1983).
- The Superior Court reversed the CCO, remanded with instructions to address vertical/directional wind shear (not merely wind direction), and dismissed FIWN’s independent First Amendment claim. Parties appealed; the Maine Supreme Judicial Court vacated the judgment and addressed reviewability, CCO merits, and the retaliation claim.
Issues
| Issue | Plaintiff's Argument (FIWN) | Defendant's Argument (DEP/Fox Island) | Held |
|---|---|---|---|
| Whether the CCO is judicially reviewable or is part of the unreviewable certification under 35-A §3456(2) | CCO is effectively an amendment of the original certification (so nonreviewable) | CCO is a post-certification enforcement action and therefore reviewable | Held: CCO is an enforcement action issued after certification and is judicially reviewable |
| Whether DEP’s CCO was supported by substantial evidence (scope: wind direction vs. wind shear) | DEP unreasonably limited CCO to wind direction though wind shear coefficient is the true causative factor | DEP rationally focused on meteorological conditions that produced the documented violations and acted within enforcement discretion | Held: CCO was supported by substantial evidence; DEP reasonably limited the order to conditions linked to the recorded violations |
| Whether remand with specific instructions to DEP violated separation of powers / warranted interlocutory appellate review | FIWN relied on Superior Court remand instructing DEP to adopt particular findings/protocols | DEP argued interlocutory remand with instructions interfered with executive discretion and was not final | Held: Court exercised interlocutory review under the judicial-economy/separation-of-powers exception and determined enforcement action is reviewable; but the Supreme Judicial Court vacated the underlying Superior Court judgment (see opinion result) |
| Whether issuance of the CCO constituted First Amendment retaliation actionable under § 1983 | FIWN: DEP retaliated against petitioning neighbors by issuing the CCO | DEP: CCO binds Fox Island, not FIWN; FIWN suffered no adverse action that would chill petitioning | Held: FIWN’s First Amendment retaliation claim fails—no adverse action against FIWN; CCO binds Fox Island only |
Key Cases Cited
- Forest Ecology Network v. LURC, 39 A.3d 74 (Maine 2012) (recognizing narrow separation-of-powers exception to final-judgment rule for interlocutory appellate review)
- Carrier v. Secretary of State, 60 A.3d 1241 (Maine 2012) (statutory interpretation reviewed de novo)
- Wyman v. Secretary of State, 625 A.2d 307 (Me. 1993) (§ 1983 requires deprivation of federal right under color of state law)
- Heckler v. Chaney, 470 U.S. 821 (U.S. 1985) (agency enforcement discretion and limits on judicial review)