Annicchiarico v. StateAnnicchiarico v. State
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- Before:
- Horton
These appeals have been consolidated for briefing and argument before this court. Each concerns regulations promulgated by the commissioner of the department of safety under the ski craft act,
Lynn Annicchiarico, along with the New Hampshire Personal Watercraft Association, Hooksett Kawasaki, Inc., and four other plaintiffs, brought a petition in superior court seeking a declaratory judgment, injunctive relief, and other equitable relief against procedures enacted by the commissioner, pursuant to the ski craft act, governing ski craft hearings. See N.H. Admin. Rules Saf-C 411. They alleged that the procedures violated provisions of both the State Administrative Procedure Act (APA), RSA chapter 541-A (Supp. 1991), and the ski craft act by not providing for adjudicative hearings and by depriving the appellants of an opportunity for a fair hearing. The superior court rejected the petition, as well as subsequent motions for reconsideration and for a new hearing. This appeal followed.
The Appeal of Toczko represents a consolidated appeal from decisions by the commissioner banning or restricting the use of ski craft on fourteen lakes and ponds in New Hampshire. In each case, the appropriate motions were filed to bring the decisions directly to our attention by way of administrative review.
After the legislature enacted the ski craft act, the commissioner promulgated emergency procedural rules and conducted thirty-one hearings pursuant to these rules. These rules and decisions are not at issue. On October 5, 1989, the commissioner filed a final permanent rules proposal with the office of legislative services. Although *484the joint legislative committee on administrative rules voted to object to these final rules, they were subsequently promulgated by the commissioner. On November 17,1989, the joint legislative committee officially issued a final objection to the rules, contending that they were contrary to the legislative intent and inconsistent with the APA. See
Under the APA, the joint legislative committee’s formal objection to the final rules shifts to the commissioner the burden of demonstrating that the rules are “within the authority delegated to the agency, [are] consistent with the intent of the legislature, and [are] in the public interest.”
As a preliminary matter, the State argues that the petitioners’ failure to raise in their pleadings the issues of the delegated authority or the public interest forecloses these issues from the declaratory judgment. This argument ignores the impact of the APA, which shifts to the commissioner the burden of proving that the rules are within the agency’s delegated authority, consistent with the legislature’s intent, and in the public interest. See id. Because the petitioners pled the fact that the joint legislative committee objected to the proposed rules, the commissioner must now allege and establish these three issues as a rebuttal. The petitioners carry no burden of pleading issues which might be raised by the agency as a defense. We turn now to the merits.
The first element the commissioner was required to prove is that the rules are within the authority delegated to the agency. See id. Under the ski craft act, the commissioner was authorized to “establish[] procedures for the public hearing process.”
The issue of what form ski craft hearings must take falls under the second prong of the three-part APA test, namely whether the rules are consistent with the legislature’s intent. See
The appellants in Annicchiarico claim that ski craft hearings constitute “contested case[s]” within the meaning of the APA, which provides as follows:
“An agency shall commence an adjudicative proceeding if a matter has reached a stage at which it is considered a contested case or, if the matter is one for which a provision of law requires a hearing only upon the request of a party, upon the request of a party.”
In addition, ski craft hearings affect the public generally rather than a particular “party.” See id. New Hampshire courts have distinguished cases affecting private rights, which require adjudicative hearings, from those affecting public rights, which require only legislative hearings. See Petition of Boston & Maine Corp., 109 N.H. 324, 327, 251 A.2d 332, 335-36 (1969). The appellants in Annicchiarico will suffer no harm to their legal rights, duties, or privileges different from that suffered by the general public. While the appellants claim that ski craft hearings are directed toward “a specific, identifiable segment of the general public” that uses ponds or lakes, leaving unaffected the rights of other members of the general public, this argument simply is not true. The commissioner’s decisions do not single out the appellants by their terms. Moreover, the decisions cannot be deemed as facially affecting all persons, while having an adverse impact on a limited, identifiable group. See 2 K. DAVIS, ADMINISTRATIVE Law Treatise § 7.2, at 8 (2d ed. 1978). Those barred *486from using a particular pond or lake might range from land owners to occasional visitors. As such, this class must be considered fluid, and not limited or discernible enough to require adjudication. See id. Ski craft hearings do not fall within the category of “contested case[s]” that, under the APA, must be resolved by adjudicative hearings.
We also reject the Annicchiarico appellants’ claim that the APA’s alternative condition, that a hearing must be commenced upon the request of a party, applies in this case. It is true that under the ski craft act, where “[a]ny group of 10 or more residents or property owners of a town in which a lake, pond, or river is located ... petition the commissioner to prohibit or restrict the use of ski craft,” the commissioner must “hold a public hearing to determine whether to grant a petition . . . .”
Aside from the APA, we can find nothing in the ski craft act itself, or in its legislative history, which invokes formal adjudication. The act’s legislative history indicates that the legislature had been restricting certain activities on lakes and ponds by statute, but had become overrun by specific requests for such legislation. In an effort to relieve the legislature of this time-consuming responsibility, these legislative decisions were delegated to the commissioner. The genesis of these hearings is from the legislative model, and we find nothing to indicate that the hearings’ essence has changed from that model.
*487The final element that the commissioner was required to establish under the APA three-part test is that the regulations are in the public interest. See
We turn next to the Toczko appeal, which challenges the commissioner’s decisions restricting or prohibiting the use of ski craft on fourteen lakes and ponds. In his brief, Toczko challenges as inadequate the procedures adopted under the ski craft act for providing public notice of the ski craft hearings. The petitioner, however, did not address this issue in his notice of appeal. New Hampshire Supreme Court Rule 16 requires that questions presented in a party’s brief “shall be the same as the question previously set forth in the appeal document.” Sup. Ct. R. 16(3)(b); see also State v. Peterson, 135 N.H. 713, 714, 609 A.2d 749, 750 (1992). Since Toczko has neither moved for nor received leave of this court to argue this question, we will not consider the question on its merits. See Peterson, 135 N.H. at 715, 609 A.2d at 751.
Toczko further claims that in rendering each of the decisions at issue, the commissioner failed to comply with
“(a) The impact of ski craft on the environment, the shoreline and wildlife.
(b) The surface area of the lake, pond, or river being considered.
(c) The use or uses which have been established on the lake, pond, or river.
(d) The depth of the water.
(e) The amount of water-borne traffic.
(f) The necessity of ensuring access to and use of the lake, pond, or river for all individuals and the right of those individuals to appropriate use of the public waters.
*488(g) Whether a determination is necessary to ensure the safety of persons and property.”
Toczko reads the ski craft act as requiring separate findings of fact as to each of the seven statutory criteria. We do not agree. The plain language of the ski craft act simply requires the commissioner to consider the seven criteria when determining whether to restrict or prohibit the use of ski craft, and to provide a written record of his findings. It does not call for a fact-finding patterned after the statutory criteria. In the present case, each decision contained a written finding of fact setting forth with particularity the commissioner’s justifications for restricting or prohibiting the use of ski craft. These factual findings reflected a reliance on the statutory criteria. Indeed, in twelve decisions, the commissioner specifically noted that the “criteria prescribed by
Toczko next claims that the commissioner’s decisions were both unsupported by, and contrary to, the evidence presented during the ski craft hearings. This substantive challenge to the commissioner’s decisions is controlled by
“[T]he burden of proof shall be upon the party seeking to set aside any order or decision of the commission to show that the same is clearly unreasonable or unlawful . . . and the order or decision appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable.”
Administrative findings of fact are deemed to be prima facie lawful and reasonable. Appeal of Maddox a/k/a Cookish, 133 N.H. 180, 184, 575 A.2d 1, 4 (1990). This court is “not free to substitute its judgment on the wisdom of [an administrative decision]” for that of the agency making the decision. Appeal of Concord Natural Gas Corp., 121 N.H. 685, 692, 433 A.2d 1291, 1296 (1981). We recognize that decisions issued under the ski craft act are subject to re*489view under RSA chapter 541. The commissioner therefore is “‘under an obligation to set forth [his or her] methodology and findings fully and accurately’” in order to allow for a meaningful judicial review of the decision. N.H. Vt. Health Serv. v. Comm’n of Ins., 122 N.H. 268, 273, 444 A.2d 508, 510 (1982) (quoting LUCC v. Public Serv. Co. of N.H., 119 N.H. 332, 341, 402 A.2d 626, 632 (1979)). Nonetheless, in the absence of an erroneous ruling of law, an agency’s decision will be upheld unless this court finds, by a preponderance of the evidence, that the decision is unjust or unreasonable. See Appeal of Peirce, 122 N.H. 762, 765, 451 A.2d 363, 365 (1982);
In this case, we do not find that the commissioner’s decisions were unjust or unreasonable, or so barren of specific findings of fact as to prohibit a meaningful review. As noted, with each order restricting or prohibiting the use of ski craft, the commissioner issued written findings explaining the evidence relied on in making the decisions. This evidence correlated with the factors set forth in
We conclude that the superior court was correct in finding that the commissioner had sustained his burden under
No. 90-125 affirmed;
No. 90-251 affirmed.
All concurred.