MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2022	ME 19 Docket: Cum

- 21

- 113 Argued: November	3,	2021 Decided: March	31,	2022

Panel: STANFILL,	C.J.,	and	MEAD,	JABAR,	HUMPHREY,	HORTON,	and	CONNORS,	JJ.

MAQUOIT	BAY,	LLC,	et	al.

v.
DEPARTMENT	OF	MARINE	RESOURCES	et	al.

STANFILL ,	C.J. [¶1] Maquoit	Bay,	LLC,	and	its	sole	members , Paul	and	Kathleen Dioli , (collectively,	 the	 Diolis)	 appeal	 from	 a	 judgment	 of	 the	 Superior	 Court (Cumberland	 County, McKeon,	 J. )	 affirming	 the	 Department	 o f	 Marine
Resource s ’	(DMR)	decision	to	grant	an	aquaculture	lease	to	Mere	Point	Oyster Company,	LLC	(MPOC)	in	Maquoit	Bay

. We	affirm.
I.		BACKGROUND [¶ 2 ] In February	 2018,	 MPOC	 applied	 for	 a	 ten

- year	 standard aquaculture	lease	 for	a	site	in	Maquoit	Bay	located	approximately	1,250	 feet
from the Dioli s ’ shorefront	property	on	Mere	Point in	Brunswick .		The	Diolis participated as	 limited	 intervenors in	 DMR’s	 revi ew	 of	 MPOC’s	 application

.2
S ee 13

- 188	 C.M.R.	 ch.	 2,	 § 2.20( 3 ) (B) ( effective	 Oct.	 17,	 2013 )

. 1 T he	 Diolis argued	to	DMR that	the	proposed	lease	would	unreasonably interfere	with	the ingress	to	and	egress	from	their	property as	well	as	their navigation	routes	in the	 bay. After	 a	 public	 hearing, DMR	 approved	 MPOC’s	 application	 in
December 2019	 over the objections of the	 Diolis	 and	 other	 community members,	 finding	 that	 the	 lease	 would	 not	 unreasonably	 interfere	 with the ingress	 and	 egress	 of	 riparian	 owners or	 with navigation,	 fishing,	 and	 other existing	uses	in	and	around	the	lease	site. See 12	M.R.S.	§ 6072	(7

- A) ( 2021) ;
1 3

- 188	C.M.R.	ch.	2,	§ 2.37(1)(A). [¶ 3 ] The	 Diolis	 filed	 a	 Rule	 80C	 petition	 requesting	 review	 of	 DMR’s decision	 and	 joining	 independent	 claims	 that	 challenged	 various	 aspects	 of MPOC’s	application	and	 the	 regulations	 that	DMR	 followed	in	 reviewi ng	and approving	it. See M.R.	Civ.	P.	80C(a),	(i). They	also	joined	a claim against	MPOC
owner	and	Brunswick	Harbormaster	Dan	Devereaux individually. DMR moved
to	 dismiss the Diolis’	 independent	 claims	 and	 to	 sever the claim against
Devereaux. On	April	17,	2020,	t he c ourt	order ed th at	the case would proceed

1 DMR	regulations	governing	aquaculture	leases,	currently	codified	at	13

- 188	C.M.R.	ch.	2	(2022) , have	been	amended	in	various	ways	since	2018.		In	this	opinion,	we	interpret	the aquaculture lease regulations as	 they	 existed	 when	 MPOC	 submitted	 the	 contest ed	 lease	 application	 to	 DMR	 in February	2018	and	generally	do	not	discuss	the regulations as	they	are	now	codified.3 as	an	administrative	appeal	and	deferr ed judgment	on	DMR’s	motion	to	dismiss until	after	oral	arguments. [¶ 4 ] The court affirmed	DMR’s	approval	of	MPOC’s	lease	application	on January	14,	2021.		The	court	also	dismissed all independent	claims	joined	with the	Rule	80C	petition except	for	the	cl aim	against	Devereaux .	M.R. Civ.	P.	80C(i).
The	 Diolis	 filed	 consented

- to	motions	 for	 final	 partial	 judgment,	 M.R.	 Civ.	 P. 54(b)(1),	 and	 to	 stay	 further	 proceedings on	 the	 claim	 against	 Devereaux during the	pendency	of	th eir anticipated appeal	to us .		M.R

. Civ.	P.	62(e).		The

court granted	those	motions	on	March 22,	2021,	certifying	the	partial	judgment as	a	final	judgment, 2 directing	entry	of	judgment	against	the	Diolis	on	their	Rule 80C	 petition	 and	 the	 six	 independent	 counts	 that	 had	 been	 dismissed,	 and staying the	claim	against	Devereaux .		The	Diolis	timely	appealed. See M.R.	App. P.	2B(c)(1); 5	M.R.S.	§ 1100 8(1) (2021).
II.		DISCUSSION [¶ 5 ] In	an	appeal	from	a	Superior	Court judgment on	a	Rule	80C	petition, we	review	the	underlying	administrative	agency	decision	directly	for	abuse	of discretion,	errors	of	law,	or	findings	unsupported	by	substantial	evidence in the

2 The	court	properly	certified	 the	partial	 final	judgment	because	it	made	specific	 findings	and provided	a	 reasoned	statement	explaining	i ts	decision. See	Guidi	v.	Town	 of	Turner, 2004	M E 42, ¶¶ 8

- 10,	845	A.2d	1189;	M.R.	Civ.	P.	54(b)(1).4 record. Somerset	C n ty.	v.	Dep’t	of	Corr. ,	2016	ME	33,	¶	14,	133	A.3d	1 006.		The party	 challenging	 the	 agency	 decision	 bears	 the	 burden	 of	 persuasion on appeal

. Id.
A. “Riparian	Owner” [¶ 6 ] The	Diolis contend that	DMR	exceeded	its	authority	by	adopting	a definition	 for	 “riparian	 owner”	 that	 conflicts	 with	 the	 plain	 language of
12 M.R.S.	§ 6072 (7

- A)(A) and	is	illogical	in	the	context	of the broader	statutory
scheme.	 	 That definition ,	 the	 Diolis	 argue,	 led	 DMR	 to	 improperly	 disregard their	 concerns	 when	 considering	 whether	 MPOC’s	 proposed	 lease	 would unreasonably interfere	with	the	ingress	and	egress	of	riparian	owners.		Though
DMR’s regulatory definition is in consistent	with 12	M.R.S.	§ 6072(7

- A)(A) ,	we
affirm	because the	agency ’s	decision ultimately complied	with the	statute. [¶ 7 ] We	begin	our	review	of	an	adm inistrative	agency’s	interpretation	of a	statute	by	determining	de	novo	whether	the	plain	meaning	of	the	underlying statute	is	ambiguous. NextEra	Energy	Res.,	LLC	v.	Me.	Pub.	Utils.	Comm’n ,	2020 ME	34,	¶ 22,	227	A.3d	1117. S ection 60 72 (7

- A)	establishes conditions that a proposed	 lease	 must	 meet	 before DMR may	 grant an	 aquaculture	 lease application ,	including the	following :5
A. The lease will not unreasonably interfere with the ingress and egress of riparian owners.
B. The lease will not unreasonably interfere with navigation.
C. The lease will not unreasonably interfere with fishing or other uses of the area.
. . . D. The lease will not unreasonably interfere with significant wildlife habitat and marine habitat or with the ability of the lease site and surrounding marine and upland areas to support existing ecologically significant flora and fauna.
E. The applicant has demonstrated that there is an available source of organisms to be cultured for the lease site.
F. The lease does not unreasonably interfere with public use or enjoyment within 1,000 feet of a beach, park or docking facility owned by the Federal Government, the State Government or a municipal governmental agency or certain conserved lands.

. . . G. The lease will not result in unreasonable impact from noise or light at the boundaries of the lease site.
12 M.R.S.	 § 6072(7

- A). T he	 statute does	 not	 define the	 scope	 of “riparian

owne r , ” but the meaning of section 6072( 7

- A)(A)	is clear :	DMR	cannot	approve a	 lease	 that	 will	 unreasonably	 interfere	 with	 the	 ingress	 and	 egress	 of any riparian	owner. [¶ 8 ] Alt hough our	review	of	agency	action	generally	ends	by	applying	an unambiguous	statute’s	plain	meaning, NextEra	Energy	Res.,	LLC ,	2020	ME	34, ¶ 22,	 227	 A.3d	 1117,	 our	 inquiry	 in	 this	 case	 continues	 because section6 6072( 7

- A ) also authorizes DMR to make	rules furthe r	defin ing the conditions	a proposed	 lease	 must	 meet ,	 including what	 constitutes	 unreasonable
interference with	 the	 ingress	 and	 egress	 of	 riparian	 owners

. 12 M.R.S. § 6072(7

- A) ; s ee	 also	 id. § 6072(13)(F)	 ( authorizing DMR	 to	 make	 rules for

“ defining	[lease]	application	requirements,	an	application	review	process	and decision	criteria”)

. But DMR’s rulemaking authority is not limitless; the agency

cannot adopt a rule that “is not in accord with the underlying statute.” Cent.	Me.
Power	Co.	v. Pub.	Utils.	Comm’n ,	458	A.2d	739,	741	(Me.	1983). Pursuant	to	its statutory	 authority,	 DMR	 defines	 “riparian	 owner” for	 all	 purposes	 under
section 6072 as	a	“shorefront	property	owner	whose	property	boundaries	are within	 1000	 feet	 of	 the	 proposed	 lease	 boundaries.”	 	 13

- 188	 C.M.R.	 ch.	 2, § 2.05(1)(C). [¶ 9 ] The Legislature used the term “riparian	owner” ( and, alternatively, “owners	of	riparian	land”) throughout	section	6072 , 3 often with exp l anatory	or limiting	 language.	 	 Indeed,	 t h e re	 are	 several	 instances	 in	 which	 the statute expressly	limits	the class	of riparian	owners to	those within 1,000 feet of a lease

3 The	Legislature	amended	this	statute	after	MPOC	submitted	its	application,	but	we apply the version	in	effect	at	the	time	of	the	application	and	decis ion. See P.L.	2021,	ch.	52,	§§ 1

- 9	(effective Oct.	18,	2021)	(to	be	codified	at	12	M.R.S.	§ 6072(6)(A)

- (C),	(11),	(12),	(12

- A),	(12

- A)(C),	(12

- C),	(13), (15)).7
site

. See,	 e.g. , 12	 M.R.S. § 6072 (5)	 ( notice to	 riparian	 owners when	 an application	is	complete	and	a	hearing	is	scheduled ); id. § 6072(11

- A) (D)	( notice to	 riparian	 owners before DMR assigns a lease ); id. § 6072(12

- A)	 ( notice to riparian	owners when an application for a lease transfer i s complete )

. Applying DMR’s	“riparian	owner”	definition	to	these	provisions	is	redundant

. 4 [¶ 1 0 ] In	other	par t s	of section 6072 , DMR’s “ riparian	owner ” definition is	superfluous	because	the statutory	language itself limits the class	of riparian

owners to	 which	 it	 applies. See 12	 M.R.S. § 6072 (4)(F)	 ( requiring lease application s to include written	permission from every riparian owner	whose
land	to	the	low

- water	mark	will	be	used ); id. § 6072(12

- C) ( A)(3)	(same	with
respect to application s for	lease	expansion ); id. § 6072 (8) (C),	(E) ( establishing an	order	of	preference	when multiple	applicants	seek	to	lease	the	same	area , including “ [f] ourth, to the riparian owner of the intertidal zone in which the
leased area is located” and “ [s] ixth, to the riparian owner within 100 feet of
leased coastal waters” )

.

4 Other	provisions	in	section	6072	refer	to	“known	riparian	owners.” See 12	M.R.S.	§ 6072 (4)(G) ( requiring lease	 applications to identify	 “ known riparian	 o wners as listed in the municipal tax records”); id. § 6072(6)(A)	( requiring DMR to personally	notify	“known riparian owners”	of	hearings on	lease	applications); id. § 6072(12

- C)(A)(4)	( requi ring	that applications	to	expand	a	lease	identify

“ known riparian owners as listed in the municipal tax records”) .		We	do	not	decide	whether	DMR’s “riparian	 owner”	 definition	 conflicts	 with	 those	 statutory	 provisions;	 it	 is	 possible that some limitation	or definition	may	be	appropriate	in	parts	of	the	statute	other	than section 6072(7

- A)(A)

.8 [¶1 1 ] In	 contrast , DMR’s rule	limiting	 the	 class	 of	 riparian	 owners to
those	within 1,000 feet	of	the	proposed	lease site is	inconsistent	with the	plain language	 of	 the statutory provision central	 to the	 Diolis’	 appeal:	 12	 M.R.S. § 6072(7

- A)(A) .	 	 A	 property’s	 distance	 from a prop osed	 lease	 site	 has little bearing	on	the	question	of whether a lease will unreasonably interfere with the ingress and egress of riparian owners. The class of riparian owners to whom
the statute could apply is finite but could easily include owners whose
shorefront property is more than 1,000 feet from the lease site

. F or example, if

a proposed lease were located near the entrance to a long but narrow inlet , the lease, if granted, could effectively block ingress and egress for any riparian

owner in the inlet regardless of the distance between the lease site and the
shorefront properties

. The L egislature did not say that DMR must consider
whether the lease will unreasonably interfere with the ingress and egress of only some riparian owners , and DMR cannot do so by rule. See	Cent.	Me.	Power
Co. ,	458	A.2d	at	741 (“[R]ules	promulgated	by	subordinate	authority	[that]	tend to	contravene	the	provisions	of controlling	law

. . . are	of	no	effect	and	will	be promptly	declared	invalid.”	(quotation	marks	omitted))

. [¶1 2 ] Relying	 on	 its definition	 of “riparian	 owner , ” DMR	 found that MPOC’s	proposed	lease	would	not unreasonabl y interfere with	the	ingress	and9 egress	 of	 any	 riparian	 owners solely because	 no o ne,	 including	 the	 Diolis, owned	 property	 within 1,000 feet	 of	 MPOC’s	 proposed	 lease	 boundaries. Nonetheless, DMR’s ultimate decision	complied with section	6072(7

- A) even	if
its “ riparian	owner	definition ” was	inconsistent	with	the	statute. See	Kurzon	v.
U.S. Postal	 Serv. ,	 539	 F.2d	 788,	 796	 (1st	 Cir.	 1976)	 (“While	 agency	 decisions must	 be	 sustained,	 if	 at	 all,	 on	 their	 own	 reasoning,	 this	 principle	 does	 not mechanically	compel	rev ersal	when	a	mistake	of	the	administrative	body	is	one that	 clearly	 had	 no	 bearing	 on

. . .	 the	 substance	 of	 the	 decision	 reached.” (quotation	marks	and	citation	omitted)); c f.		M e. Motor	Rate	Bureau ,	357	A.2d 518,	527	(Me.	1976) (limiting	judicial	review of administrative action solely to whether	the	agency’s	grounds	for	decision	were	proper). [¶1 3 ] Specifically,	 d espite	 finding	 that	 no	 individuals	 fit	 its	 “riparian owner”	 definition,	 DMR	 addressed	 the	 concerns that	 the	 Diolis	 and	 other
shorefront property owners on	 Mere P oint raised “ about	 their	 ability	 to navigate	to	their	docks	and	moorings” when the	agency analy z ed whether	the lease	 would	 unreasonably	 interfere	 with	 navi g ation. See 12	 M.R.S. § 6072 (7

- A) (B); 13

- 188	 C.M.R.	 ch. 2,	 § 2.37(1)(A)(2). Th ose concerns prompted	DMR	to	move	the	proposed	lease	site	one hundred	feet	westward	to “provide[ ]	additional	navigable	area	between	the	proposed	site	and	Merepoint10 Neck.” 5 DMR	concluded	 that	 the	adjusted	lease	site would	not	unreasonably interfere	with	 navigation	 even	 though	 “the	 proposed	 site	may	 prompt	 some
vessels	to	alter	their	traditional	cour se.” [¶1 4 ] Because	 t he	 lease	 decision	 reflects	 that	 DMR	 specifically considered	 how	 the	 proposed	 lease	 would	 affect	 the	 Diolis’	 ingress	 to	 and egress	from	their	property,	albeit	in	the	context	of	analyzing	the	lease’s	effects on	 navigation , DMR complied	 with section	 6072(7

- A)(A)’s substantive requirements. See 13

- 188	 C.M.R. ch.	 2, §	 2.37(1) (A)(1) (directing	 DMR	 to “examine	whether	the	riparian	owners	can	safely navigate to	their	shore”	when determining	whether	a proposed lease would unreasonably interfere	with	the ingress	 and	 egress	 of	 riparian	 owners	 (emphasis	 added ) )

. In	 other	 words , DMR’s	reliance	on	its	“riparian	owner”	definition	did	not	ultimately	affect	its analysis.
B. Practicable	Alternatives [¶1 5 ] The Diolis	next	contend	that	DMR	erred	as	matter	of	law	by	not requiring	MPOC	 to	assess	whether	 there	were	practicable	alternatives	 to	 the proposed	 lease	 site that	 would	 have	 a less er impact	 on	 existing	 uses.

5 The	lease	site	is	also	bisected	by	a	four

- hundred

- foot,	gear

- free	navigational	corridor	that	gives Mere	Point	residents	an	option	to	access	Maquoit	Bay by	navigatin g through	the	lease	site	in	addition to	navigating around	it

.11 Specifically,	 the	 Diolis	 argue	 that	 the	 existence of	 practicable	 alternative
locations must	 be	 considered to	 meet	 section	 6072’s	 “no	 unreasonable
interference”	 standard. They	 also	 argue	 that	 DMR’s	 refusal	 to	 require	 a practicable

- alternatives	 analysis	 violate s the	 public	 trust	 doctrine. Finding neither	argument	persuasive,	we	affirm	this	aspect	of	the	judgment.
1. Statutory	Requirements [¶1 6 ] The Diolis	rel y on Uliano	v.	Bd.	of	Env ’ t	Prot. ( Uliano	I ) ,	2005	ME	88 , 876	 A.2d	 16,	 to	 support	 their	 argument	 that lease	 applicants	 must	 analyze practicable	 alternatives

. In Uliano	 I ,	 we	 vacated	 a	 Board	 of	 Environmental Protection	decision	after	holding	that	the	Board	misapplied	the Department	of Environmental	Protection’s	(DEP)	rule	 that	“‘no	activity	shall	be	permit ted	if there	is	a	practicable	alternative	to	the	project	that	would	be	less	damaging	to
the	 environment

. ’” 2005	 ME	 88,	 ¶¶ 9, 16

- 17,	 876	 A.2d	 16 (quoting 06

- 096 C.M.R.	ch.	310,	§	5(A)	(200 2 ). 6 Here,	by	contrast,	section 6072	neither	expressly

n or	implied ly	requires	DMR	to	consider	practicable	alternatives	when	making a	lease	 decision,	 and	DMR	 has	 no	 separate	 rule of	its	 own analogous	 to	 any

6 At	the	time	of	the Uliano	I decision,	section	5 ( A ) required	DEP	to	deny	applications	for	projects in	 wetland	 areas	 whenever	 a	 practicable	 alternative	 existed	 that	 would	 be	 less	 damaging	 to	 the environment.		DEP has	since amended	section	5 ( A ) such	that	the	agency	can	now	deny	applications only	when	a	pract icable	alternative	with	lesser	environmental	impacts	exists and “the	activity	will cause	a	loss	in	wetland	area,	functions,	or	values.”		06

- 096	C.M.R.	ch.	310,	§ 5(A)	(effective Nov.	11, 2018 ).12 version	 of	DEP’s	 practicable

- alternatives	 standard. Moreover ,	 the	 particular procedure	 that	 the	 Diolis	 say	 is	 neces sary — “an	 alternatives	 analysis demonstrating	that no	other	lease	area	exists with	a	lesser	impact	on	existing and	surrounding	uses”

— would	be	impracticable	 for	applicants	 to	 follow	and for	DMR	to	administer.		(Emphasis	added.) Neither Uliano	I nor	the	statues	and regulations	governing	aquaculture	leases	compel such	an analysis

. S ee Uliano I , 2005	 ME	 88,	 ¶¶ 10

- 11,	 876	 A.2d	 16	 (assessing	 practicable	 alternatives	 to	 a proposed	pier

— not	alternative	locations	for	the	pier

— for	accessing	a	boat	at all	 tides). Therefore,	 DMR	 did	 not	 err	 by	 approving	 the	 lease	 application without	requirin g	MPOC	to	consider	practicable	alternatives.
2. Public	Trust	Doctrine [¶1 7 ] With	 regard	 to	 the	 public	 trust	 doctrin e,	 t he	 Diolis	 assume, incorrectly,	that	DMR	lease	decisions	are	quasi

- legislative	acts	that	demand	a balancing	of	public	and	private	interests	beyond	what	section	6072	requires. Unlike	quasi

- legislative	acts such	as rulemaking,	DMR	lease	decisions	are	not “focused	on	policy	matters	of	general	applicability.” Forest Ecology Network	v

. Land	Use	Reg.	Comm’n ,	2012	ME	36 , ¶ 46 , 39	A.3d	74.		Rather, when	approving or	denying	an	aquaculture	lease	application, DMR	adjudicates	individual	rights based	on	the	statutory	framework	and	evaluation	criteria	that	the	Legislature13 devised. S ee 12	 M.R.S.	 § 6072(6)	 (characterizing as	 an	 “adjudicatory proceeding” the	public	hearing that DMR	must	hold	prior	to	granting	a	lease); 5	 M.R.S.	 § 8002(1)	 (2021)	 (defining	 “adjudicatory	 proceeding”	 as	 “any proceeding	before	an	agency	in	which	 the	legal	ri ghts,	duties	or	privileges	of specific	 persons	 are	 required	 by

. . . statute	 to	 be	 determined	 after	 an opportunity	for	hearing” )

. [¶1 8 ] When,	 as	 here,	 DMR	 approves	 an	 application,	 the	 leased submerged	lands	remain	“subject	to	the	public	trust” because the public	retains certain	rights such	as fishing	and	navigation. Norton	v.	Town	 of	Long	 Island , 2005	ME	109,	¶ 32,	883	A.2d	889.		DMR considered those	rights	by	evaluating whether	MPOC’s	prospective	lease	would	unreasonably	interfere	with	existing uses,	 including	 public	 uses ,	 as	 it	 was	 required	 to	 do

. See 12	 M.R.S. §§ 6072(7

- A)(B),	 (C),	 (F).	 	 The	 public	 trust	 doctrine	 does	 not	 impose	 any
addition al burden on	DMR	to	protect	the	public’s	interest	in	submerged	lands, and	DMR	did	not	err	by	balancing	the	interests	of	MPOC	and	the	public pursuant

to section	6072’s express requirements

.14
C. Burden	Shifting [¶ 1 9 ] The	Diolis	 argu e that	DMR	improperly	 shifted	 the	 burden	 from MPOC	to	a	group	of	limited	intervenors	to	prove	that	MPOC’s	proposed	lease would	 not	 unreasonably	 interfere	 with	 commercial	 fishing

. See 12	 M.R.S. § 6072(7

- A)(C). We	 disagree. DMR’s	lease	 decision	 reflects	 th at	 the	agency relied	on	information	 from	multiple	sources

— DMR	staff , three	harbormaster questionnaires , and	 several	 commercial	 fishermen,	 including	 members	 of	 a limited	 intervenor	 group

— in	 finding	 no	 unreasonable	 interference	 with commercial	fishing.		That reliance	is	consistent	with	DMR’s	standard	practice for	developing	the	record that it	uses	to	evaluate	lease	applications. See 13

- 188 C.M.R.	ch.	2,	§ 2.37(1); see	e.g. 12	M.R.S.	§ 6072(5

- A)	( requiring DMR to assess the	 proposed	 site	 and	 surrounding	 areas before	 a	 public	 hearing	 on	 a	 lease application to	 determine	 the	 possible	 effects	 of	 the	 lease	 on	 commercially significant fauna and traditional	 fisheries);	13

- 188	C.M.R.	ch.	2,	 § 2.31(4)

- ( 7 ) ( permitting a broad	 range	 of	 people to	 testify	 at public	 hearings	 on lease application s ); id. § 2.27(2)	 (requiring	 DMR	 to	 request	 information	 from	 the municipal	 harbormaster	 about a proposed	 lease’s	 impact	 on	 existing	 uses, including	fishing).		The	Diolis	have	not	met	their	burden	of	showing	that	DMR’s
f

inding that	 the	 lease	 would	 not unreasonabl y interfere with	 commercial15 fishing	 was	 made	 upon	 unlawful	 procedure. See 5	 M.R.S.	 § 11007(4)(C)(3 ) (2021); Cent.	Me.	Power	Co. v.	Pub.	Ut i ls.	Comm’n ,	2014	ME	56,	¶ 19,	90	A.3d	451.
D. “Non

- discharge”	Designation [¶ 20 ] We	also	disagree	with	 the	Diolis’	contention	 that	DMR	erred by designat ing MPOC’s	 lease	 proposal as a	 “non

- discharge”	 application. See
13

- 188	 C.M.R.	 ch.	 2,	 § 2.10(3)(C)	 (classifying	 applications	 for	 standard aquaculture leases	 as	 either	 “discharge”	 or	 “non

- discharge”).	 	 DMR	 defines “discharge” for	the	purpose	of	its	aquaculture	lease	regulations as	“any	spilling, leaking,	 pumping,	 pouring,	 emptying,	 dumping,	 disposing	 or	 addition	 of	 any pollutant	including,	but	not limited	 to,	 the	addition	of	 feed,	 therapeutants	or pesticides	to	the	waters	of	the	State.”		13

- 188	C.M.R.	ch.	2,	§ 2.05(1)(G).		Because DMR’s	discharge	designation	raises	a	mixed	question	of	 fact	and	law	and	 th e designation	 was	 reasonable ,	 we	 defer to	 DMR’ s	 determination and	 affirm. Cf. La M arre	v.	Town	of	China ,	2021	ME	45,	¶ 16,	n.6,	259	A.3d	764 .		The	Diolis’ argument	 that the	 generators,	 power washers,	 and	 seafood

- processing equipment that MPOC	plans	 to	use	at	 the	lease	site	will	“inevitably”	result	in discharges is	 speculative	 and does	 not	 persuade	 us	 to	 disturb	 DMR’s
conclusion. See	id

.16
E. Notice	to	DEP [¶ 21 ] We	also	 reject	 the	Diolis’	argument	 that	DMR	 failed	 to	properly give notice to DEP	about	MPOC’s	completed	lease	application. See 12	M.R.S. § 6072(6)(C)	(2018 ) 7 .		The	record	reflects	that	DMR	notified	DEP	about	MPOC’s completed	 application	 on	 February	 15,	 2018,	 which	 defeats	 both	 the	 Diolis’ notice	argument	and	their	related	content ion	that	the	allegedly	improper	notice
undermined DEP’s	ability to	consider the	application	of	the	Natural	Resources
Protection	Act

. 8
F. Conflict	of	Interest [¶ 22 ] Finally,	 contrary	 to	 the	 Diolis’	 contention that	 Devereaux’s involvement	compromised	the	fairness	of	the	proceedings ,	we see no	conflict of	 interest	 arising	 from	 Devereaux’s	 dual	 roles	 as	 an	 MPOC	 owner	 and as
Brunswick Harbormaster .	 	Though	Devereaux	acted	in	 both	 capacities	when MPOC	 initially app roached DMR	 about	 securing	 an	 aquaculture	 lease,	 he
recused	himself	as	harbormaster

— at	DMR’s	insistence

— sixteen	days	after	the

pre - application	meeting,	the	first	step	in	what	amounted	to	a	two

- and

- a - half

7 Since	 the	submission	of M POC’s application,	 this section	of the statute	has	been	amended	 to require	notice	to	the	DEP	only	of	“applications	that	involve	activities	that	have	a	discharge	into	the waters	of	the	State.”		P.L.	2021,	ch.	52,	§ 3	(effective Oct.	18,	2021).

8 We	 also	 note	 that	 the	 Diolis’	 argument	 abo ut	 the	 applicability	 of	 the	 Natural	 Resources Protection	Act	fails	because	they	raise	it	for	the	first	time	on	appeal. See Cyr	v.	Cyr ,	432	A.2d	793,	797 (Me.	1981).17
year	process. See 13

- 188	C.M.R.	ch. 2,	§ 2.07(1).		Competent	evidence	supports the	conclusion	that	Deveraux’s	prompt	recusal	removed	him	from	a	position	of
influence over the	lease	decision

- making	process	and	effectively	eliminated the opportunity	for	him	to taint	the	proceedings	by p lac ing his	personal	pecuniary interests	over	his	duties	as	a	public	servant. See	Tuscan	v.	Smith ,	130	Me.	36, 46,	153	A.	289 ( 1931). The	entry	is: Judgment	affirmed.

David	M.	Kallin,	Esq. (orally) ,	and	Amy	K.	Olfene,	Esq.,	Drummond	Woodsum, Portland,	f or	appellants	Maquoit	Bay,	LLC,	Paul	C.	Dioli,	and	Kathleen	M.	Dioli Aaron	M.	Frey,	Attorney	General,	and	Mark	Randlett,	Asst.	Atty.	Gen. (orally) , Office	 of	 the	 Attorney	 General,	 Augusta,	 for	 appellee Department	 of	 Marine Resources
Patrick	W. Lyons,	Esq,	and	P.	Andrew	Hamilton,	Esq.,	Easton	Peabody,	Bangor, for	appellee	Mere	Point	Oyster	Company,	LLC Jonathan	 W.	 Brogan,	 Esq.,	 and	 Trevor	 D.	 Savage,	 Esq.,	 Norman,	 Hanson	 & DeTroy,	LLC,	Portland ,	for	appellee	Daniel	R.	Devereaux

Cumberland	County	Superior	Court	docket	number	AP

- 2020

- 04 F OR C LERK R EFERENCE O NLY