MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2024 ME	10

Docket: Ken-22-418

Argued: June	7,	2023

Decided: January	30,	2024

Panel: STANFILL,	C.J.,	and MEAD,	JABAR,	HORTON,	LAWRENCE,	and	DOUGLAS, JJ.

HANS	UTSCH	et	al.

v.

DEPARTMENT	OF	ENVIRONMENTAL	PROTECTION

STANFILL,	C.J.

[¶1]	 Hans	 Utsch	 and	 Julia	 H.	 Merck	 appeal	 from	 a	 judgment	 of	 the	

Superior	Court	(Kennebec	County,	Stokes,	J.)	denying	their	Rule	80C	petition	for	

judicial	review	of	an	email	from	the	mining	coordinator	of	the	Department	of	

Environmental	Protection.		Because	we	conclude	that	the	email	that Utsch	and	

Merck	 challenge is	 not	 a	 final	 agency	 action,	 we	 vacate	 the	 Superior Court’s	

judgment	and	remand	for	dismissal	of	the	petition.		

I.		BACKGROUND

A. Introduction

[¶2]		Harold	MacQuinn,	Inc., and	its	owner, Paul	MacQuinn	(collectively,	

MacQuinn), own	some	property	in	Hall	Quarry,	a	neighborhood	in	the	Town	of	

Mount Desert.		A	quarry	was	being	operated	on	that	property	by 1967,	but	the	
2

quarry	 ceased	 operations sometime	 thereafter.	 	 Starting	 around	 2012,	

however,	MacQuinn	raised	the	possibility	of	restarting	the	quarry	and	reached	

out	to	the	Department	of	Environmental	Protection	to	see	whether	he	needed	

any	permits	to do	so.		

[¶3]	 	 Quarry	 operations	 in Maine must	 comply	 with	 performance

standards	in	order	to	prevent major impacts to	wildlife	habitat,	groundwater,	

natural	 resources,	 roads,	 and	 waste.	 	 See 38	 M.R.S.	 § 490-Z	 (2023).	 	 Those	

intending	to	operate	a	quarry must	file a	“notice	of	intent	to	comply”	(NOITC)

with	 these	 performance	 standards.	 	 See 38	M.R.S.	 §	 490-Y	 (2023).	 	Whether	

MacQuinn	is	required	to	file	a	NOITC	is	the	subject	of	the	email	that	Utsch	and	

Merck	challenge.		

B. Events	from 2012 to	2015

[¶4]		The	following	facts	are	drawn	from	the	administrative	record.		See

Fair	Elections	Portland,	Inc.	v.	City	of	Portland,	2021	ME	32,	¶	11	&	n.3,	252	A.3d	

504;	see	also	Francis	Small	Heritage	Tr. v.	Town	of	Limington,	2014	ME	102,	¶	2,	

98	A.3d	1012.		

[¶5]		In	June	2012,	the	mining	coordinator	of	the	Department’s	Bureau	of	

Land	Resources	wrote	 to	MacQuinn and	 advised	 him	 that	 he	did	 not	 need	 a	

“permit” to	comply	with	performance	standards	for	excavations for	his	quarry.		
3

See	38	M.R.S.	 §§ 490-W	 to	490-FF	(2012). Upon	 further	inquiry,	 the	mining	

coordinator clarified	that	because	the	quarry	operated	prior	to	1970,	MacQuinn	

did	not	need	to	file	a	NOITC with	performance	standards.		

[¶6]		From 2012	to 2015,	the mining	coordinator responded	to various	

inquiries from	the	Town	of	Mt.	Desert,	MacQuinn,	and	members	of	the	public	

concerning whether	 MacQuinn	 needed	 to	 file	 a	 NOITC,	 and he consistently	

replied that	a	NOITC	is	not	required	because	the	Department’s	jurisdiction	does	

not	extend	to quarries that	pre-dated	January	1,	1970.	 He	explained	that	the	

Site	Location	of	Development	Law	(Site Law),	enacted	in	1970, grandfathered	

“any	 development	 in	 existence	 or	 in	 possession	 of	 applicable	 state	 or	 local	

licenses	 to	 operate	 or	 under	 construction	 on	 January	 1,	 1970” into	 the	

performance	standards	for	quarries.		See P.L.	1969,	ch.	571,	§	2 (effective	May 9,	

1970)	(codified	at	38	M.R.S.A. §	488	 (Supp.	1970)).		In	1995,	 the	Legislature	

added	 small	 road	 quarries	 to	 the	Site	 Law	and	created	a	 separate article	 for	

performance	 standards for	 them.	 	 See P.L.	 1995,	 ch.	 287,	 §§	 5,	 18	(effective	

June 23,	 1995)	 (codified	 at	 38	 M.R.S.A. §§	 488(16),	 490-P	 to	 490-V	 (Supp.	

1995)).	 	 These	 provisions	 expired	 on December	 31,	 1995,	 see	 id.,	 and	 the	

performance	standards	for	quarries	were	then	recodified	in	a	different article.		
4

See	 P.L.	 1995,	 ch.	 700,	 § 35	(effective	 July 4,	 1996)	(codified	 at	 38	 M.R.S.A.

§§ 490-W	to	490-EE	(Supp.	1997)).		

[¶7]	 	 In	 March	 2015,	 the	 mining	 coordinator	 learned	 that	 when	 the	

performance	standards	 for	quarries	were	recodified	in	a	different article,	the	

“prior	to	1970”	language	was	not	integrated	into	that	different article,	but that	

language	was	part	of	the	performance	standards	for	excavations.		Compare 38	

M.R.S.	§	490-C (2012)	(performance	standards	for	excavations), with 38 M.R.S.	

§	 490-Y	 (2012)	 (performance	 standards	 for	 quarries).	 	 The	 performance	

standards	for	quarries stated that

a person	intending	to	create	or	operate	a	quarry	under	this	article	

must	 file	 a	 notice	 of	 intent	 to	 comply	 before	 the	 total	 area	 of	

excavation	of	rock	or	overburden	on	the	parcel	exceeds	one	acre.

38	M.R.S.	§	490-Y (2012).	

[¶8]	 	 The	 mining	 coordinator	 informed MacQuinn	 that	 a	 NOITC is

required	 if	 the	 total	 area	 of	 excavation,	 including	 the	 area	 excavated	 before	

1970, exceeded one	acre.		In	response,	MacQuinn	modified	its excavation plan	

so that	 the	 total	 area	 excavated	 would	 not	 exceed	 one acre.	 	 The	 mining	

coordinator	thereafter	confirmed	that	MacQuinn’s	modified	plan	did	not	trigger	

the	 one-acre	 threshold	 for	 a NOITC.	 	 Following	 the	 mining	 coordinator’s	

determination,	 the	 mining	 coordinator responded	 to	 several inquiries	
5

regarding	the	quarry	and	continued	to	maintain	that	MacQuinn’s	plan	did	not	

trigger	the	one-acre	threshold	for	a	NOITC.		

C. Events	occurring from 2015 to	2021

[¶9]		In	2017,	the	Legislature	passed “An	Act	to	Make	Minor	Changes	and	

Corrections	 to	 Statutes	 Administered	 by	 the	 Department	 of	 Environmental	

Protection.”	 	 P.L.	 2017,	 ch.	 137.	 	 This	 act	 added	 temporal	 language	 to	 the	

performance	standards	for	quarries,	and	the	statute	now	provides that

a person	intending	to	create	or	operate	a	quarry	under	this	article	

must	 file	 a	 notice	 of	 intent	 to	 comply	 before	 the	 total	 area	 of	

excavation	of	rock	or	overburden	on	 the	parcel	exceeds	one	acre

excavated	since	January	1,	1970.		

Id. § A-11	(codified	at	38	M.R.S.	§	490-Y	(2017)) (emphasis	added).	

[¶10]	 	In	 2020,	 some	 area	 residents	 again	 contacted	 the	 Department,	

arguing	that	MacQuinn’s	proposed	area	for	the	quarry	exceeded	one	acre and	

thus	 a	 NOITC	 was	 required.	 	 The	 Department disagreed	 and explained	 that	

under 38	M.R.S.	 §	 490-Y, the	area	excavated	 before	 January	 1,	 1970,	 did	 not	

count	 toward the	 one-acre	 threshold to	 trigger	the requirement	of a	NOITC.		

Therefore,	 no	 NOITC	 was	 required	 because	 0.88	 acres,	 see	 infra n.1, of	

MacQuinn’s	 proposed	 activity	 must	 be	 subtracted	 from	 the	 entire	 area	 of	

activity,	leaving	the	area	under	the	one-acre	threshold.	
6

D. The	2021	email

[¶11]		On	March	29,	2021,	Utsch	and	Merck,	who	own	a	home	located	

across	 Somes	 Sound	 from	 the	 quarry, sent	 a	 letter via	 email	 to	 the	 mining	

coordinator requesting	 that the	 Department	“require	 that	 Harold MacQuinn,	

Inc.	(‘MacQuinn’)	must	submit	to	[the	Department]	a	Notice	of	Intent	to	Comply	

(NOITC)	pursuant	to	38	M.R.S.	§	490-Y	before	proceeding	with	MacQuinn’s	plan	

to	restart	operation	of	Hall	Quarry	in	Mount	Desert.”		In	the	letter,	Utsch	and	

Merck	contend	that	MacQuinn	excavated	an	area	of	the	quarry	after	1970,	and	

that	 section	 490-Y	 “does	 not	 include	 any	 provision	 for	 ‘grandfathering’	 of	

pre-1970	excavated	areas	that	are	again	excavated	after	1970.”		

[¶12]		On	April	15,	2021,	the	mining	coordinator	responded	by	email	to	

Utsch	and	Merck’s	letter,	stating	that	MacQuinn	did not	need	to	file	a	NOITC	and	

citing 38	M.R.S.	§	490-Y.		The	mining	coordinator	explained	that	the	Department	

believes	 the	 area	 excavated	 after	 1970	 is	 being	 used	 as	 stockpile	 or	 grout	

storage	and	is	outside	the	area	MacQuinn	wishes	to	excavate.		The	Department	

further	explained that	even	if	MacQuinn	were proposing	to	use	the	post-1970	

excavated	 area,	 it	 is	 below	 the	 one-acre	 threshold	to	 require	 a	 NOITC.1	 	He	

1		The	mining	coordinator	explained	the	following.		MacQuinn	proposes	to	excavate	1.024	acres,

and only	0.144	acres	count	towards	the	one-acre	threshold	to	trigger	a	NOITC	because	0.88	acres	
7

concluded	 the	 email	 by	 stating that,	 unless	 any	 new	 information	 were	 to	

become	available,	the	matter	was	closed.		

E. Procedural	History

[¶13]		On	May	13,	2021,	Utsch	and	Merck	filed a	“Petition	for	Review	of	

Final	 Agency	 Action	 or	 Failure	 to	 Act,” seeking	 review	 of the	 mining	

coordinator’s	email.		See	M.R.	Civ.	P.	80C(a).	 Utsch	and	Merck	claimed	that they	

had standing	to	bring	the	petition	because	they	live	near	the	quarry	and	will	be	

affected	by	 the	noise	when	 the	quarry	is	in	operation.		They	alleged that	the	

Department	“violated	 statutory	 provisions,	 exceeded	 its	 statutory	 authority,	

committed	 errors	 of	 law,	 and/or	 abused	 its	 discretion”	 by	 determining	 that	

MacQuinn	 does	 not	 have	 to file	 a NOITC	 before	 operating	 the	 quarry.	 	 See

5 M.R.S.	§	11007(4)(C)(1),	(2),	(4),	(6)	(2023).	

[¶14]	 	 MacQuinn	 was	 not	 named	 as	 a	 party	 by	 Utsch	 and	 Merck,	 but	

nonetheless	opposed	 their	petition as	a	“party	in	interest.”		The	Department	

and	MacQuinn asserted that	 the	mining	coordinator’s	April	15	email is	not	a

final	agency	action	and	that	Utsch	and	Merck	lack	standing	to	seek	review	of the	

mining	coordinator’s decision.		Utsch	and	Merck	maintained	that	the	email	was	

were	excavated	before	January	1,	1970.		The	area	excavated	post-1970	is	0.51	acres.		0.144	acres	plus	

0.51	acres	equals	about	0.65	acres,	which	is	still	below	the	one-acre	threshold	required	for	a	NOITC.
8

subject	to	review	under	Rule	80C	or,	in	the	alternative,	the	complaint	could	be	

construed	as	a	declaratory	judgment	action.

[¶15]	 	 On	 September	 27,	 2022,	 following	 oral	 argument,	 the	

Superior Court	 (Kennebec	 County,	 Stokes,	 J.)	 denied	 Utsch	 and	 Merck’s	 80C	

petition,	or	in	the	alternative,	any	request	for	declaratory	relief.		Although	the	

court	concluded	that	the	April	15	email	was a final	agency	action	and	that	Utsch	

and	Merck	had standing to	appeal	it,	the	court agreed	with	the	Department’s	

interpretation	 that	 any	 areas	 excavated	 before	 January	 1,	 1970,	 are	

grandfathered.	 	 Utsch	 and	 Merck	 timely	 appealed	 the	 court’s	 decision.		

M.R. App.	P.	2B(c)(1);	M.R.	Civ.	P.	80C(m);	5	M.R.S.	§ 11008	(2023).	 The	State	

timely	cross-appealed, primarily	on	the	threshold	issues	of	standing	and	final	

agency	action.		See	M.R.	App.	P.	2C(a)(2).		

II.		DISCUSSION

A. Final	Agency	Action	under	the	Maine	Administrative	Procedure	Act

[¶16]		We	review	de	novo	whether	the	mining	coordinator’s	email	was	a	

“final	agency	action”	such	that	the	Superior	Court	had	jurisdiction	to	review	it.		

Tomer	 v.	 Me.	 Hum.	 Rts.	 Comm’n,	 2008	 ME	 190,	 ¶¶	 9-11,	 962	 A.2d	 335;	see	
9

5 M.R.S.	 §	 8002(4)	 (2023);	 M.R.	 Civ.	 P.	 80C(a).2	 	 The	 Maine	 Administrative	

Procedure	 Act (APA)	 provides	 the	 Superior	 Court	 with	 jurisdiction	 to	 hear	

petitions	for	review	of	a	“final	agency	action.”3		See	5	M.R.S.	§	11001(1)	(2023);	

Brown	v.	Dep’t	of	Manpower	Affs.,	426	A.2d	880,	883-84 (Me. 1981).		

[¶17]		The	APA	defines	“final	agency	action”	as “a	decision	by	an	agency	

which	affects	the	legal	rights,	duties	or	privileges	of	specific	persons,	which	is	

dispositive	of	all	issues,	legal	and	 factual,	and	 for	which	no	 further	recourse,	

appeal	or	review	is	provided	within	the	agency.”		5 M.R.S. §	8002(4)	(2023); see	

also	Brown,	 426 A.2d at 883 (discussing	 the	 scope	 of judicial	 review	of final	

agency	actions).		A	final	agency	action	is	not	“limited	to	strictly	adjudicatory”

proceedings,	Brown,	426	A.2d	at	883,	meaning	that “[a]s	long	as	all	questions	

2 Although	there	are	very	limited	circumstances	in	which	one	may	seek	judicial	review	of	a	nonfinal	agency action	(or	seek	review	without	exhausting administrative	remedies,	see	infra note	4),	

none	 are	 applicable	 here. See 5	 M.R.S.	 §	 11001(1)	 (2023) (stating	 that	 non-final	 action	 may	 be	

reviewable	if	“review	of	the	 final	agency	action	would	not	provide	an	adequate	remedy”);	see	also

Ne. Occupational	Exch.,	Inc.	v.	Bureau	of	Rehab.,	473	A.2d	406,	410	(Me.	1984)	(“[R]eview	of	nonfinal	

agency	action	should	be undertaken	only	when	the	parties	face	the	prospect	of	irreparable	injury,	

with	no	practical	means	of	procuring	effective	relief	after	the	close	of	proceedings.”(quotation	marks	

omitted));	Churchill	 v.	 S.	 A.	 D.	No.	 49	 Tchrs. Ass’n,	 380	 A.2d	 186,	 190	 (Me.	 1977) (outlining	 other	

exceptions	such	as	“where	the	questions	involved	are	questions	of	law	[which	only] the	courts	must	

ultimately	decide”	or	“where	the	administrative	agency	is	not	empowered	to	grant	the	relief	sought	

and	it	would	be	futile	to	complete	the	administrative	appeal	process”).

3 “[A]ny	person	aggrieved	by	any	order	or	decision of	the	board	or	commissioner	may	appeal	to	

the	 Superior	 Court,” provided	 that	 the	 appeal	 comports	 with	 the	 Administrative	 Procedure	 Act.		

38 M.R.S.	§	346(1).		The	Administrative	Procedure	Act	provides	that	parties	may	seek	an	advisory	

ruling	or	an	informal	staff	opinion	from	an	agency,	though	such	a	ruling	or	opinion	is	neither binding	

nor	appealable.		See 5	M.R.S.	§	9001(1)-(4)	(2023);	06-096	C.M.R.	ch.	2,	§	4(c)	(effective	Oct.	19,	2015)	

(“Advisory	rulings	are	not	appealable to	the	Board	and	are	not	final	agency	action.”).	
10

necessarily	involved	in	the	underlying	subject	matter are	resolved,	a	review	of	

that	matter	is	not	necessarily	inappropriate,” Wheeler	v.	Me.	Unemployment	Ins.	

Comm’n,	 477	 A.2d	 1141,	 1146 (Me.	 1984).4	 	 Thus, once	 the	 agency	 has

completed	its	decision-making process	and determined	rights	or	obligations,	

its	decision	is	appealable as	a	final	agency	action.		See 5	M.R.S.	§	8002(4);	see

also Bailey v.	 Dep’t	 of	 Marine	 Res.,	 2015	 ME	 128,	 ¶¶	 5-6,	 124	 A.3d	 1125	

(concluding	 that	 the	 Department	 of	 Marine	 Resources’	 issuance	 of	 an	 elver	

transaction	card	was	a	final	agency	action);	1	M.R.S.	§	409(1) (2023)	(stating	

that	 “a	 refusal	 or	 denial	 to	inspect	 or	 copy	a	 record”	is	a	 final	agency	action	

pursuant	to	the	Freedom	of	Access	Act	that	can	be	appealed);	06-096	C.M.R.	ch.	

2,	 §	 24	 (effective	 Oct.	 19,	 2015)	 (outlining	 the	 process	 for	 appealing	 the	

Department	 of	 Environmental	 Protection	 commissioner’s	 final	 licensing

decisions).		

[¶18]		The	mining	coordinator’s	email	is	not	a	final	agency	action.		It	did	

not	 affect	 anyone’s	 “legal	 rights,	 duties	 or	 privileges.”	 	 5 M.R.S. § 8002(4).	

4	 	Before	 a	 party	 can	 turn	 to	 courts	 for	 relief,	 that	 party	must	 first	 exhaust	 all	 administrative	

remedies	before	the	relevant	administrative	agency.		Ne.	Occupational	Exch.,	Inc.,	473	A.2d	at	408-09.		

The	 exhaustion	 principle	 allows	 agencies	 to	 “correct	 their	 own	 errors,	 clarify	 their	 policies,	 and	

reconcile	conflicts	before	[an	aggrieved	party]	resort[s] to	judicial	relief.”		Id. at	409	(quotation	marks	

omitted).		It	also	allows	the	reviewing	court	to	have	a	complete	record	to	be	able	to	effectively review

the	administrative	action.		Id.		The	administrative	agency	should	have	“every	opportunity	to	resolve	

a	matter	in	its	area	of	special	competence	before	its	actions	become	subject	to	judicial	review.”		Id. at	

410.		
11

Although	Utsch	and	Merck	may	be “interested”	in	whether	a	NOITC	is	required,	

5	 M.R.S.	 § 9001(1);	see	 06-096	 C.M.R.	 ch.	 2,	 § 4,	their	 legal	 rights,	 duties,	 or	

privileges	are	not	affected by	 the	email.		Moreover,	the	mining	coordinator’s	

email	 cannot	 affect	 or	 be	 dispositive	 of	 MacQuinn’s	 “legal	 rights,	 duties	 or	

privileges”	to	operate	the	quarry when	MacQuinn	was	not	even	involved	in	the	

action,	i.e., the	email.		See	5 M.R.S. §	8002(4),	(8)	(explaining	that final	agency	

action	is	a	decision	that	affects	“specific	persons”);	see,	e.g.,	Sinclair	Wyo.	Refin.

Co.,	 LLC	 v.	 U.S.	 Env’t	 Prot.	 Agency,	 72	 F.4th	 1137,	 1143-45	 (10th	 Cir.	 2023)	

(concluding	an	email	was	not	a	 final	agency	action	because	the	email	did	not	

determine	 any	 rights);	 AT&T	 Co.	 v.	 E.E.O.C.,	 270	 F.3d	 973,	 975-76	 (D.C.	 Cir.	

2001)	(stating	that	“Letters	of	Determination”	threatening	a	lawsuit	“fall	short	

of	final	agency	action”);	Nat’l	Ass’n	of	Home	Builders	v.	Norton,	415	F.3d	8,	13-17	

(D.C. Cir.	 2005)	 (explaining	 that	 survey	 results	 are not	 final	 agency	 action,	

because	the	survey	results	did	not	bind	the	agency);	Goethel	v.	U.S.	Dep’t	of	Com.,	

854	F.3d	106,	114-16	(1st	Cir.	2017)	(characterizing,	for	purposes	of	time	limits	

for an	 appeal,	 an	 agency’s	 email	 notification	 of	 an	 agency	 order	 as	 an	

unreviewable	 agency	 action	 because	 the	 notification	 did	 not	 result	 from	 an	

agency	adjudication).		
12

[¶19]		Finally,	the	statute	and	the	Department’s	regulations	make	clear	

that	an action	is appealable	only	if	it	is	made	by	the board	or	the	commissioner.		

38	M.R.S.	 §	 346(1);	 06-096	 C.M.R.	 ch.	 2,	 §	 28.	 	Here,	 the	email	was	 from	 the	

mining	 coordinator, and	 thus	 was	 not	 final	 agency	 action	 as	 defined	 in	 the	

statute.		The	email	is	simply	advisory	in	nature,	unreviewable	under	the	APA	

and	Rule	80C.

5		

B. Declaratory	Judgment	Action

[¶20]	 	 Utsch	 and	 Merck	 argue	 in	 the	 alternative	 that	 their	 Rule	 80C	

petition	should be	treated	as	a	declaratory	judgment	action.		We	observe	that	

the	only	count	asserted	in	 the	complaint	is	 for	review	of	 final	agency	action.		

There	is	no	stated	claim	 for	a	declaratory	judgment.		Utsch	and	Merck	never	

sought	to	amend	the	complaint	under	M.R.	Civ.	P.	15,	nor	did	they	seek	to	add	

MacQuinn	as	a	necessary	party	under	M.R.	Civ.	P.	19.	

[¶21]		While	we	have occasionally treated a petition	for	judicial	review	of	

an agency	action as	one	for	declaratory	judgment,	we	have	done	so	only	in	very	

limited	circumstances and	in	the	interest	of	judicial	economy.		See La Bonta	v.	

5		Although	the	email	is	advisory	in	nature, we	note that	Utsch	and	Merck	did	not	in	their	letter	

formally	request	an	advisory	ruling	or	an	informal	staff	opinion.		See 5	M.R.S.	§ 9001(1)-(4).		That	is	

of	no	moment,	because	even	if the	email	was	an	advisory	ruling	or	an	informal staff	opinion issued	in	

accordance	with	the	statute,	it	would	not	be	appealable.		See 5	M.R.S.	§	9001(1)-(4);	06-096	C.M.R.	

ch.	2,	§	4(c)	(“Advisory	rulings	are	not	appealable	to	the	Board	and	are	not	final	agency	action.”).		
13

City	of	Waterville,	528	A.2d	1262,	1264	(Me.	1987)	(explaining	that	a	dismissal	

of	 the	 80B	 appeal “would	 serve	 no	 purpose	 whatever,	 would	 unjustifiably	

elevate	form	over	substance,	and	would	waste	judicial	resources	as	well	as	the	

resources	of	the	parties”).	 We	have	treated	a	petition	for	judicial	review as	a	

declaratory	judgment	action	when	that	was	the	relief	actually	sought	and	it	was	

within	 the	 jurisdiction	 of	 the	 court.	 	 For	 example,	 in Hurricane Island	

Foundation v.	Vinalhaven,	the	plaintiff	sought	review	under	Maine	Rule	of	Civil	

Procedure	80B	of	the	town	tax	assessor’s	denial	of	a	tax	exemption.		2023	ME	

33,	¶	3,	295	A.3d	147.		Addressing	whether	direct	review	was	available	under	

Rule	 80B	 or	 required	 a	 declaratory	 judgment	 action,	 we	 said, “We	 need	 not	

determine	 whether	 review	 under Rule	 80B is	 ‘otherwise	 available	 by	 law’

under	 one	 of	 the	 extraordinary	 writs”	 because	 “the	 court	 nonetheless	 has	

jurisdiction	 when	 the	 complaint	 may	 fairly	 be	 treated	 as	 a	 complaint	 for	

declaratory	 judgment.”	 	 Id. at	 ¶	 13 (quoting	 M.R.	 Civ.	 P.	 80B(a));	 see also

La Bonta,	528	A.2d	at	1263-64	(noting	 that	 the	“clearly	defined	issue” of	 the	

validity	of	an	ordinance	“was	fully	and	fairly	tried	in	Superior	Court” regardless	

whether	 it	 was	 appropriately	 an	 action	 under	 Rule	 80B	 or	 a	 declaratory	

judgment	action).	
14

[¶22]	 	 The	 Declaratory	 Judgments Act	 (DJA)	 does	 not	 enlarge	 the	

jurisdiction	of	the	courts.		See	14	M.R.S.	§	5953	(2023)	(“Courts	.	.	. within	their	

respective	jurisdictions shall	have	power	to	declare	rights,	status	and	other	legal	

relations	 whether	 or	 not	 further	 relief	 is	 or	 could	 be	 claimed.” (emphasis	

added)); Walsh	v. City	of	Brewer,	315	A.2d	200,	210	(Me.	1974);	Capodilupo	v.	

Town	of	Bristol,	1999	ME	96,	¶	4,	730	A.2d	1257.		On	appeal,	we	may	consider	

whether	 the	Superior	 Court	 had	 subject	matter	jurisdiction	even	if	 the	issue	

was	 not	 raised	 in	 the	 Superior	 Court.	 	 See	 Walsh, 315	 A.2d	 at	 210-11; cf.

Sold, Inc.	v.	Town	of	Gorham,	2005	ME	24, ¶ 10, 868	A.2d	172	(“A	declaratory	

judgment	 action	 cannot	 be	 used	 to	 create	 a	 cause	 of	 action	 that	 does	 not	

otherwise	exist.”).

[¶23]		The	DJA provides:

Any	 person	 .	 .	 .	 whose	 rights,	 status	 or	 other	 legal	 relations	 are	

affected	 by	 a	 statute,	 municipal	 ordinance,	 contract	 or	 franchise	

may	 have	 determined	 any	 question	 of	 construction or	 validity	

arising	 under	 the	 instrument,	 statute,	 ordinance,	 contract	 or	

franchise	and	obtain	a	declaration	of	 rights,	status	or	other	legal	

relations	thereunder.	

14	M.R.S.	 §	 5954	 (2023)	 (emphasis	added).	 	We	 have	indicated that	 the	DJA

“gives	plaintiffs	whose	rights are	affected the	right	to	bring	declaratory	action.”		

Blanchard	v.	Town	of	Bar	Harbor,	2019	ME	168,	¶ 19,	221	A.3d	554.		
15

[¶24]	 	 The	 DJA “may	 be	 invoked	 only	 where	 there	 is	 a	 genuine	

controversy.”	 Id. ¶	20 (quotation	marks	omitted);	see	Wagner	v.	Sec’y	of	State,	

663	A.2d	564,	567	(Me.	1995).		We	have	explained	that	“[a] genuine	controversy	

exists	if	a	case	is	ripe	for	judicial	consideration	and	action.”		Patrons	Oxford	Mut.	

Ins.	Co.	v.	Garcia,	1998	ME	38,	¶	4,	707	A.2d	384.		A	case	is	ripe	if	it	satisfies two

prongs:	“(1)	the	issues	must	be	fit	for	judicial	review,	and	(2)	hardship	to	the	

parties	will	result	if	the	court	withholds	review.”	Blanchard,	2019	ME	168,	¶ 20,	

221	A.3d	554.	

[¶25]	 	 Utsch	 and	 Merck’s	 petition	 for	 judicial	 review was	 not	 ripe for	

consideration	 as	 a	 declaratory	 judgment	 action because	 it	 fails	 both	 prongs	

required	for	ripeness.		First,	their	petition is	not	fit	for	review	because	there	is	

no	 certain	 or	 immediate	 legal	 problem	 that	 will	 directly	 and	 continuously	

impact	them.		See Marquis v.	Town	of	Kennebunk,	2011	ME	128,	¶ 18,	36	A.3d	

861,	866;	Johnson	v.	City	of	Augusta,	2006	ME	92,	¶	7,	902	A.2d	855.		Utsch	and	

Merck’s	 allegations	 are	 too	 uncertain	 as	 to	 the	 extent	that future	 quarrying	

activity	 that	 might	 occur	 and	 might	 be	 audible	 at their	 home across	

Somes Sound.		See,	e.g.,	Pilot	Point,	LLC	v.	Town	of	Cape	Elizabeth,	2020	ME	100,	

¶	31,	237	A.3d	200;	Blanchard,	2019	ME	168,	¶	21,	221	A.3d	554.		MacQuinn’s	

quarry	has	not	operated	 for	several	years,	and	it	is	unclear	when or	if it	will	
16

begin	operating.6		Accordingly,	we	cannot	conclude	that,	because	of	the	mining	

coordinator’s	email,	any	noise	generated	by	any	future	quarrying	activity	is	a	

certain	and	immediate	threat	that	will	directly	and	continuously	impact	Utsch	

and	Merck.		

[¶26]	 	 Second,	 Utsch	 and	 Merck	 have	 not	 established	 a	 sufficient	

“hardship.”	 We	 have	 explained	 that	 “the	 hardship	 prong	 requires	 adverse	

effects	on	the	plaintiff,	.	.	.	and	speculative	hardships	do	not	suffice	to	meet	the	

requirement.”	 	Blanchard,	 2019	ME	 168,	 ¶	 22,	 221	A.3d	 554	 (alteration	 and	

quotation	marks	omitted);	see	Johnson,	2006	ME	92,	¶	8,	902	A.2d	855.		Even	

though	the	quarry	has	not	operated	for	some	time,	Utsch	and	Merck	allege	that	

they	 will	 be	 able	 to	 hear	 quarrying	 activity	 from	 their	 residence	 across	

Somes Sound.	 	 This	 alleged	 harm	 is	 too	 speculative	 and	 concerns	 a	 future	

adverse	consequence	that	may	or	may not	occur.		See	Blanchard,	2019	ME	168,	

¶ 19,	221	A.3d	554	(concluding	that	the	declaratory	judgment	action	was	not	

ripe	because	the	“the	property	owners’	rights,	status	or	other	legal	relations	are	

not	yet	affected”	(quotation	marks	omitted)).		“In	simple	terms,	[their] situation	

6		The	parties	indicated	at	oral	argument	that	there	has	been	a	moratorium	on	quarrying	activities	

in	the	Town	and	that	MacQuinn	still	needed	approval	from	the	local	planning	board	before	operating	

the	quarry.
17

before	 and	 after	 our	 review	 would	 remain	 the	 same,	 thus	 rendering	 this	

challenge .	.	.	not	ripe	for	judicial	review.”		Id.	¶	22.

[¶27]		Because	there	is	not	a	justiciable	controversy,	we do	not	consider	

whether	Utsch	and	Merck have	standing.		See	Tomer,	2008	ME	190,	¶ 16,	962	

A.2d	335.		We vacate	the	Superior	Court’s	judgment	and	remand	for	dismissal	

of	the	complaint for	lack	of	jurisdiction.		See	id. ¶	14.

The	entry	is:

Judgment	vacated.	 Remanded	to	the	Superior	

Court	for	dismissal	of	the	petition	for	judicial	

review.

Matthew	D.	Manahan,	Esq.,	and	Joshua	D.	Dunlap,	Esq.	(orally),	Pierce	Atwood	

LLP,	Portland,	for	appellants	Hans	Utsch	and	Julia	H. Merck

Aaron	M.	Frey,	Attorney	General,	Robert	L.	Martin,	Asst.	Atty.	Gen.	(orally),	and	

Margaret	A.	Bensinger,	Asst.	Atty.	Gen.,	Office	of	the	Attorney	General,	Augusta,	

for	cross-appellant Department	of	Environmental	Protection

Edmond	J.	Bearor,	Esq.,	and	Jonathan	P.	Hunter,	Esq.	(orally),	Rudman	Winchell,	

Bangor,	for	appellee	Harold	MacQuinn,	Inc.

Kennebec	County	Superior	Court	docket	number	AP-2021-20

FOR	CLERK	REFERENCE	ONLY