Supreme Court No. 2013

- 197

- Appeal. (PC 97

- 592)
Janet Coit, in her capacity as Director of the Rhode Island Department of

Environmental Management :

v. : John H. Tillinghast et al. :

NOTICE : This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Tel. 222

- 3258 of any typograp hical or other formal errors in order that corrections may be made before the opinion is published.- 1

- Supreme Court
No. 2013

- 197

- Appeal. (PC 97

- 592 )

Janet Coit , in her capacity as Director of the Rhode Island Department of

Environmental Management :

v. : John H. Tillinghast et al

. 1 :

Pres ent: Sut tell, C.J., Goldberg, Flaherty, Rob i nson, and Indeglia, JJ. O P I N I O N Justice Flaherty, for the Court . Bow dish Lake Camping Area is located in the bucolic northwest corner of Rhode Island. Unfortunately, however, a long

- simmering dispute between the parties in this case has been in marked contrast to the tranquil natural environment. The
p laintiff, Janet Coi t, named in her official capacity as director of the Rhode Island Department of Environmental Management (DEM) , appeals from an order of the Superior Court in favor of the defendants, John , Alfred, and Anna Tillinghast adopting the report of a master and o rder ing that the master ’s findings be implemented. 2 The root of the dispute arises from the operation of the

1 At the time the present action was filed in Superior Court, Timothy R.E. Keeney was the director of the Rhode Island Department of Environmental Management (DEM). The caption has been revised to reflect the current director pursuant to Rule 25(d) of the Superior Court Rules of Civil Procedure. 2 In their opposition to the contempt motion in the Superior Court, defendants claimed that Alfred Tillinghast had passed away “several years” previously . The defendants also disclosed that John Tillinghast had not been a signatory to th e “Consent Agreement” that is at issue in this case. Nonetheless, we shall continue to refer to the parties as “defendants” or “the Tillinghasts.”- 2

- Bowdish Lake Camp ing Area in Glocester and Burrillville, and more specifically, from the establishment of five camp sites located in Burrillville near Wilbur Pond. To assist in ameliorating the contentious relationship between the parties , a justice of the Superior Court appointed a master to resolve the issues in dispute , issues that stem from a consent agreement signed by the parties in 1998

. Th is case came before the Supreme Court for oral argument on May 13, 2014, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the arguments and examining th e memoranda filed by the parties, we are of the opinion that cause has not been shown, and we proceed to decide the appeal at this time without further briefing or argument. For the reasons set forth in this opinion, we deny and dis miss the appeal because it is not properly before us.
Facts and Travel
A ccording to defendants, in the early 1970 s the Tillinghasts worked with the United States Soil Conservation Service to develop Bowdish Lak e Camping Area

. The facility, consisting of 400 campsites in Glocest er and Burrillville , opened in 1973. From that point on, however , the sailing was less than smooth. In 1975, storm clouds fir st appeared after DEM issued the first of many notices of violations to defendants for alleged transgressions of G.L. 1956 § 2

- 1

- 21 , a statute within the Freshwater Wetlands Act

. 3 Over a twenty

- five

- year period, a

3 General Laws 1956 § 2

- 1

- 21 s ays , in relevant part, “(a)(1) No person, firm, industry, company, corporation, city, town, municipal or state agency, fire district, club, nonprofit agency, or other individual or group may excavate; drain; fill; place trash, garbage, sewage, highway runoff, drainage ditch effluents, earth, rock, borrow, gravel, sand, clay, peat, or other materials or effluents upon; divert water flows into or out of; dike; dam; divert; change; add to or take from or otherwise alter the character of any fresh water wet land as defined in § 2

- 1

- 20 without- 3

- pattern developed whereby DEM would notify the Tillinghasts of alleged environmental violations, both formally and informally, defendants would respond with an explanation, and DEM would not take further action for several years. On February 5, 1997, after defendants alleged ly violated a DEM

- issued cease

- and

- desist order by continuing to conduct dredging activity on the lake bed of Bowdish Lake, DEM filed the instant action in Superior Court

. In their answer, defendants asserted that their actions were predicated on a written determination by DEM in 1974 that the dredging d id not violate the Freshwater Wetlands Act. On March 25, in an apparent resolution of the conflict, the parties signed a consent agreement, in which the Tillinghasts agreed that they would “ not undertake any future dredging activity in Bowdish Lake withou t prior application and written approval of [DEM]

. ” Furthermore, the parties agreed that DEM’s February 1974 permit “ as it relate [ d ] to any and all dredging rights, [wa]s [t] hereby null and void.” It is significant that t he March 1997 consent order resol ved only a handful of the many ongoing issues between the parties. In an effort to resolve all the outstanding points of contention , some of which involved controversies that spanned two decades, the parties executed a second consent agreement on August 5, 1998. 4 That agreement addressed four specific alleged violations and outlined the actions the Tillinghasts would take to remedy them. One of those violation s , which is the subject of this appeal, concerned the five campsites at Wilbur Pond. The defenda nts agreed that by June 1999, they would restore the vegetation that had been cleared within a fifty

- foot zone of the pond , unless defendants applied for permission, and received approval, to have the campsites remain within the perimeter . The agreement a cknowledged that defendants had developed the
first obtaining the approval of the director of the department of environmental management. ” 4 The 1998 consent agreement specified that the Superior Court would “retain[] jurisdiction to enforce the provisions of this [ o]rder.”- 4

- campsites “under what [they] believed was a valid permit issued before regulations were enacted.” 5 Unfortunately, the 19 98 consent agreement did not achieve the harmony that it sought . In March 2000, DEM filed a motion to adjudge defendants in contempt for failing to implement certain aspects of the 1998 order. In May of that year , a justice of the Superior Court ordered defendants to restore the vegetation within fifty feet of Wilbur Pond, which was the location of the five campsites, or submit an application to DEM to alter the wetlands as had been agr eed to in the 1998 agreement. In 2008, DEM filed a new motion to adjudge defendants in contempt for failure to comply with the 1998 consent agreement. Fi nally, in September 2009 , the parties executed a new consent order in which they agreed to the appoint ment of Scott Rabideau as master to resolve “all issues relating to and contained in th[e] * * * [c]onsent [a]greement dated July 31, 1998 between the par ties, and [o]rder of May 3, 2000. ” 6 In accordance with the parties’ agreement, t he court appointed the master and ordered him to “ prepare a report and make recommendations to the [ c ] ourt , ” set ting forth findings of fact and conclusions of law , if required

. T he master was further instructed to submit a draft report to both parties for comment before submitting a final report to the court

.

5 Although the General Assembly pas sed G.L. 1956 part 2 of chapter 1 of title 2, the Freshwater Wetlands Act, in 1971, the authority to promulgate regu lations in accordance with the a ct was granted as part of a 1974 amendment. Compare P.L. 1971, ch. 213, § 1 (establishing “Fresh Water Wetlands” Act) with P.L. 1974, ch. 197, § 1 (amending “Fresh Water Wetlands” to include authority to promulgate rules and regulations). 6 The 2009 consent o rder specifically listed the following as issues to be deci ded by the master: “A ll issues raised by Plaintiff in its Motion to Adjudge Defendant in Contempt; effect of the April 4, 1973 let ter issued in application F

- 401, pertaining to clearing swamp and damming streams to create pond; beach maintenance and dredg ing issues including application 01

- 0089 as the same are still in dispute; together with any other issue this [c]ourt deems proper for resolution at this time.”- 5

- T he master submitted t he draft report in January 2010. Not surprisingly , given the litigious history of this matter, DEM filed various objections. After t he court heard argume nts in February and March 2010, t he trial justice ordered either the Tillinghasts, the master, or both , to restore the wetlands in the vicinity of the fiv e campsites around Wilbur Pond and ordered that the campsites remain closed until the restoration was complete. The master wa s also required to submit his report and recommendation to DEM as an application to alter the wetlands around the campsites. DEM was to consider this application in accord ance with its regulations and render a decision, which would be reviewed by the trial justice . The 2010 order further specified that the Superior Court would retain jurisdiction in this matter “at all times.” On June 10, 2010, the master filed an applica tion with DEM , which included the same analysis and recommendations as the draft report . The application concluded that , because of the limited scope and locatio n of the campsites, a minimum twenty

- five

- foot perimeter of wetland around Wilbur Pond , and th e vegetative cover around and between the campsites, the five campsites did “not represent a random, unnecessary, or undesirable disturbance to state jurisdictional freshwater wetlands.” After conducting its review, DEM denied the application on August, 3 0 , 2011 . DEM concluded that the five campsites were undesirable and against the public interest, and noted that the application did not demonstrate how adverse environmental impacts would be “ avoided to the maximum extent possible. ” The defendants then f iled a motion asking that the trial justice approve the master’s
repor t, and the court heard argument relating to the appropriate burden of proof. The defendants argued that , according to Rule 53(e)(2) of the Superior Court Rules of Civi l Procedure, in nonjury actions, the trial justice “shall accept the master’ s findings of fact unless clearly- 6

- erroneous.” 7 DEM retorted that the master’s submission was not the type of report that resides within the scope of Rule 53 because it was not prepared and fi led with the court, but with DEM, and therefore, it “should be reviewed in accordance with the standa rds of [DEM’ s] regulations and with the [s] tate’s Freshwater Wetlands Act [

. ] ” However, t he trial justice ruled that the master’s application to DEM would be considered as the proposed final report and that DEM would be saddled with the burden to prove that the master’s findings of fact were clearly

erroneous. On August 30 and 31, 2012, the court conducted an evidentiary hearing with respect to the master’ s application. Martin Wencek, a supervisor of DEM’s freshwater wetlands program, testified that he reviewed the master’s application and that he, along with other senior staff, made the decision to deny it

. Wencek said that he had concluded that the five campsites would “ result in loss of wildlife habitat and disturbance to wildlife, ” which “ would change the character of the existing wetland. ” Wencek also testified that the application lacked a substantive exploration of alternativ es that would avoid any impact on the wetlands as required under 12

- 190

- 028 R.I. Code
R. 10.02D. (1) of DEM’s rules and regulations governing the administration and enforcement of the Freshwater Wetlands Act. 8

7 Rule 53(e)(1) of the Superior Court Rules of Civil Procedure says, “The master shall prepare a report upon the matters submitted to the master by the order of reference and, if required to make findings of fact and conclusions of law, the master shall set them forth in the report.” 8 12

- 190

- 028 R.I. Code R. 10.02D.(1) , entitled “Application to Al ter Freshwater Wetland,” includes the following :
“ Avoidance : All persons must satisfactorily demonstrate to the [ d ] epartment in the form of a written narrative that all probable impacts to freshwater wetlands functions and values have been avoided to the maximum extent possible. The written narrative must describe what steps were taken to avoid impacts to freshwater wetlands .” The rule continues to list six minimum areas that the applicant must consider and ad dress.- 7

- Rabideau, the master, testified that the 2010 consent agreement directed him to oversee the restoration of the five campsites and to submit an application to DEM to alter the freshwater wetlands. Rabideau indicated that DEM had availed itself of the opportunity to inspect the restoration and that DE M had determined that the wetlands around the five campsites had been restored to its satisfaction. He also claimed that he had address ed all portions of Rule
10.02D. (1), but he had not include d an alternative

- location analysis for the campsites because t he 2010 agreement instructed him to file an application to alter the freshwater wetlands for the specific perimeter where the five campsites were located. On March 20, 2013 the trial justice issue d a bench decision on defendant s ’ motion that he accept th e report of the master. The trial justice concluded that the master’s report and accompanying plans constituted findings of fact that would be upheld unless they were shown to be clearly erroneous , in accordance with Rule 53(e)(2). He asserted that he believed that this

case , distilled to its essence, amounted to a difference of opinion between the master and DEM. He then noted that such a difference , in the c ontext of an administrative appeal, would normally be resolved in favor of the agency. H owev er, the trial justice reasoned that because this was not an administrative appeal, DEM bore the burden of proving that the master’s findings were clearly erroneous , noting that the parties had agreed to the appointment of the master to resolve all issues b etween them. The trial justice held that because DEM ha d failed to satisfy its burden, he would adopt the master’s report, and he ordered that the master’s findings be implemented. The order memorializing the trial justice’s ruling was filed on April 10, 2013. DEM filed a timely appeal to this Court. 9

9 We note that , generally, appellate review of denials by administrative agencies are heard pursuant to G.L. 1956 § 42

- 35

- 15 under the Administrative Procedures Act (APA). The 2010- 8

- The parties came before a single justice of this Court pursuant to Article I, Rule 12A(3) of the Supreme Court Rules of Appellate Pr ocedure on February 10, 2014. As a result of that conference, t he partie s were directed to file supplemental memoranda to specifically address the issue of whether the “[ o ] rder of April 10, 2013 was interlocutory, and thus not appealable.” Before this Court, DEM argues that the order is appealable because the master decided t o address each of the four issues between the parties in turn by publishing separate reports pertaining to each

. DEM also argued that , even if the order were determined to be interlocutory, the Court should decide the appea l nonetheless because the “five

- campsite” issue has sufficient finality and because the 2013 order creates imminent and irreparable harm that may impact other orders in the case. We disagree. For the reasons outlined below, we conclude that the April 2013 order is interlocutory and the refore not properly before us . Discussion
W e must first address whether this appeal is properly before the Court at this time

. The Tillinghasts maintain that it is not; they argue that the appeal is interlocutory because the April 2013 order is not a final judgment , but merely the first action by the master to address the remaining issues between the parties. DEM concedes, both in its written submissions and at oral argument , that there are three outstanding issues pending in Superior Court that the p arties agreed the master would resolve. However, DEM contends that Rabideau ’s decision to handle

eac h of the four issues separately resulted in a final resolution after a hearing on the merits on the campsites issue and that, consequently, the April 2013 order should not be considered interlocutory

.

order said that the Superior Court retained jurisdiction at all tim es; however, the retention of jurisdiction would not have precluded the trial justice from deciding the case under the APA.- 9

- We have held that “[i] nterlocutory orders are those that are provisional or temporary, or that decide some intermediate point or matter but are not a final decision of the whole matter.” Simpson v. Vose , 702 A.2d 1176, 1177 (R.I. 1997) (mem.). “ Generally, interlocutory orders are not subject to review unless the order or decree falls within one of the excep tions set forth in
G.L. 1956 § 9

- 24

- 7 * * * .” 10 Cayer v. Cox Rhode Island Telecom, LLC , 85 A.3d 1140, 1 146 (R.I. 2014) (quoting Chiaradio v. Falck , 794 A.2d 494, 496 (R.I. 2002) )

. Moreover, there is a second type of exception that is “judicial in origin.” Boranian v. Richer , 983 A.2d 834, 837 (R.I. 2009) . This familiar exception says that “ an order may fall within the ambit of our judicially created rule that permits review of an interlocutory order that has such an element of finality as to require immediate review by this Court to avoid poss ible injurious consequences.” Chiaradio , 794 A.2d at 496 (cit ing McAuslan v. McAuslan , 34 R.I. 462, 472, 83 A. 837, 841 (1912)). In those situations, w e will review interlocutory orders “ before the case is finally terminated in order to prevent clearly imminent and irreparable harm.” Town of Lincoln v. Cournoyer , 118
R.I. 644 , 648 , 375 A.2d 410, 412

- 13 (1977)

. In Ross v. Mencoff , 82 R.I. 461, 465 , 111 A.2d
356 , 358 (1955), the complainant appealed the denial of a contempt motion for failure to produce records to a temporary receiver whom the trial justice appointe d. We held that because the case required further proceedings and did not meet any of the above

- mentioned exceptions , the appeal was not properly before the Court. Id. at 465, 111 A.2d at 358.

10 General Laws 1956 § 9

- 24

- 7 provides as follows: “Whenever, upon a hearing in the [S]uperior [C]ourt, an injunction shall be grante d or continued, or a receiver appointed, or a sale of real or personal property ordered, by an interlocutory order or judgment, or a new trial is ordered or denied after a trial by jury, an appeal may be taken from such order or judgment to the [S]upreme [ C]ourt in like manner as from a final judgment, and the appeal shall take precedence in the [S]upreme [C]ourt.”- 10

- After a thorough review of the record, w e reach a similar conclusion here

. The order that DEM appeal ed is not final ; it is merely an order confirming the master’s report and does not set forth the ultimate resolution of the parties’ disputes

. It is significant that t his report is the first

ac t ion undertaken by the master with respect to the four issues that the parties agreed that he would resolve. We find no precedent, and none is provided by DEM, to support the proposition that because the master decided to address each of these complicate d points separately, the case has somehow become “bifurcated” into separate and distinct cases to such a degree that would render the adoption of his report on the first issue to be the equivalent of a final judgment. In our opinion, t he 2013 order does not possess a sufficient element of finality to be appealable and is thus interlocutory

. In the alternative, DEM invites this Court to invoke the holding of McAuslan because the 2013 order raises the specter of im minent and irreparable harm, and as a result, it should be reviewed now. DEM argues that the master’s decision with respect to the five campsites has an impact on other environmental issues in the case , and it urges that without this Co urt’s review,
DEM w ill not be able to effectively protect Rhode Island’s natural resources at the Bowdish Lake Camping Area. However, DEM offers no explanation of what grave harm might come from the recognition of five campsites that have been in place for nearly four decad es. We can discern no imminent and irreparable harm from the master’s approval of the five campsites because the trees and other vegetation at issue were cleared long ago. In our opinion, there is simply no need to hear this appeal now , and to do so when there are remaining issues between these profusely litigious parties would encourage the sort of piecemeal adjudica tion of disputes that the final

- judgment rule is designed to avoid. See Rhode Island Economic Development Corp. v. The Parking Co., L.P. , 892 A.2d 87, 95 (R.I. 2006)

.- 11

- Conclusion For the foregoing reasons, the appeal of the interlocutory order confirming the master’s report is denied and dismissed. The papers are remanded to the Superior Court.

### R HODE 

### I SLAND 

### S UPREME 

### C OURT 

### C LERK 

### ’ S 

### O FFICE 

### Clerk’s Office Order/O pinion Cover Sheet

TITLE OF CASE: Janet Coit, in her capacity as Director of the Rhode Island Department of Environmental Management v. John H. Tillinghast et al. CASE NO : No. 20 1 3

- 197

- Appeal. ( PC 97

- 592 ) COURT: Supreme Court DATE OPINION FILED: June 9 , 2014 JUSTICES: S uttell, C.J. , Goldberg, Flaherty , R obinson , and Indeglia, JJ

. WRITTEN BY: Associate Justice Francis X. Flaherty SOURCE OF APPEAL: Providence County Superior Court JUDGE FROM LOWER COURT : Associate Justice Michael A. Silverstein ATTORNEYS ON APPEAL : For Plaintiff : Marisa A. Desautel , Esq.
For Defendants : Nicholas Gorham , Esq.