Maker v. Keliher

STATE OF MAINE SUPERIOR COURT
Washington, SS. Docket No. AP-20-001

Dana Maker, )
)
Petitioner, )
)
)
v. ) Decision and Orde1'
) (M.R. Civ. P. BOC)
Patrick C. Kelihe1~ Commissioner )
Maine Department of Marine )
Resources, )
)
Respondent. )

Introduction

Pursuant to M.R. Civ. P. SOC and the Maine Administrative Procedure Act,
Petitioner Dana Maker appeals Commissioner Keliher's decision to impose a one-year
suspension of his sea urchin dragger license. The suspension was based on a finding
that Mr. Maker violated 12 M.R.S. § 6957(1)1 which prohibits the operation of a boat
using a drag within 300 feet of floating aquacullure cages. Mr. Maker raises two issues
on appeal. First, he argues the Department of Marine Resources (the Department) failed
to prove that the prohibited area was marked as required by section 6957. Second, he
advances a statutory interpretation argument, asserting that section 6957 requires the
Department to demonstrate that the pertinent aquaculture lease satisfied all statutory
criteria for the issuance of that lease. For the reasons below, the Commissioner's
decision to suspend Mr. Maker's license is affirmed.

Factual and Procedural Background

On December 5, 20191 Marine Patrol Officer Brian Brodie was patrolling an area
near Deep Cove in Eastport, Maine. A.R. 18, He observed a boat operated by Mr. Maker
dragging for sea urchins within a salmon cage aquaculture site, which was marked by a
buoy system. After an additional investigation, Officer Brodie issued Mr. Maker a
summons for operating a vessel using a drag within 300 feet of floating aquaculture
cages in violation of 12 M.R.S. § 6957(1). AR 15. The Departrn.ent initiated proceedings
to suspend Mr. Maker's sea urchin dragger license, and Maker requested a hearing.
A.R. 6, 11-13.
A he,1ring was held on July 30, 2020 at which Mr. Maker was represented by
counsel. During the hearing, the hearing officer heard testimony from various
witnesses, including Officer Brodie and Mr. Maker, and received into evidence a video
and various photographic exhibits that ca_ptured Maker's conduct on the day of the
incident. According to Officer Brodie, the restricted area was "marked by four yellow
balls, which all ha[d] 'private property' marke!'s on [th]em." A.R. 57. Officer Brodie
watched for about 45 minutes as Mr. Maker operated his boat within those markers,
engaging his drag at several points. A.R. 57-58, 65. Officer Brodie further testified he
confinned the buoy markers were 300 feet from the salmon cages by using a range
finder to measure the distance between the markers and the cages. A.R. 62, 80, 88.
While Mr. Maker argued throughout the proceeding that the restricted area was
not properly marked, the hearing officer rejected that argument in a written decision.
A.R. 2-4. The hearing officer found that the markers were appropriately placed as to
"meet the minimuin requirements of the statute" and ultimately concluded that Mr.
Maker committed a violation of 12 M.R.S. § 6957(1). Id. As a result, the Commissioner
suspended Mr. Maker's sea urchin dragge1· license for one year. Maker appealed
pursuant to M.R. Civ. P. SOC.
Standard of Review
Judicial review of administrntive agency decisions is "deferential and limited."
Friends of Lincoln Lakes v. Bd. of Ewvtl. Prot., 2010 ME 18, '[ 12, 989 A.2d 1128.
The court is not permitted to overhu·n an agency's decision "unless it: violates the
Constihition or statutes; exceeds the agency's authority; is procedurally unlawful; is
arbitrary or capricious; cons ti lutes an abuse of discretion; is affected by bias 01· error of
law; or is unsupported by the evidence in the record." I<rogerv. Dep't of Envtl. Prat., 2005
ME 50, 'li 7, 870 A.2d 566. It reviews the agency's decisions for "'legal errors, abuse of
discretion, or unsupported factual findings."' Anglez Behavioral Health Servs. v. HHS,
2020 ME 26, 'Jl 12,226 A.3d 762. "In conducting such a review, [the Court] do[es] not
substitute [its] judgment for that of the agency and will'affirm findings of fact if they
are supported by substantial evidence in the record."' Id. "This standard of review' does
not involve any weighing of the merits of evidence.'" Id. Moreover, "[i]nconsistent
evidence will not render an agency decision unsupported." Seider v, Bd. of Exam'rs of

2
Psychologists, 2000 ME 206, 'l[ 9, 762 A.2d 551. "[I]nstead, [the Court] will vacate an
agency's factual findings' only if there is no competent evidence in the record to
support' the findings." Anglez, 2020 ME 26, 'l[ 12, 226 A.3d 762. The party seeking to
vacate an agency decision bears the burden of persuasion on appeal. Anderson v. Me.
Pub. Emp. Ret. Sys., 2009 ME 134, 'II 3, 985 A.2d 501.
Discussion
Issue I.
Maker argues the Department failed to prove the prohibited area was marked
according to statute. The court's analysis of this argument begins with section 6957(1),
which provides that
a person may not operate a vessel using cu:ags , , , to fish for or take .. , sea
urchins or any other marine organisms within 300 feet of any suspended
culture floating cages, tray racks or other floating equipment authorized
in a lease issued by the commissioner under section 6072, 6072~A or 6072­
B, or a license issued under section 6072-C, if the equipment is marked in
accordance .with subsection 1-A, ·
12 M.R.S. § 6957(1) (emphasis added).
This statute makes clear that a persoi1 violates section 6957(1) only if the
aquaculture gear is properly marked, Id.; State v. Ashby, 1999 ME 188, ~[ 6, 743
A.2d 1254. Next, subsection 1-A sets forth the requirements for marking
aquaculture gear, stating that "[t]he owner of a suspended culture floating cage,
tray rack or other floating equipment shall mark the area in which a vessel is
prohibited under subsection 1 witl, at least 4 anchors, each marked by a yellow
buoy at least 2 feet in diameter." 12 M.R.S. § 6957(1-A) (emphasis added). Thus,
aquaculture gear is properly marked if a minimum of fou1· yellow buoys (at least
two feet in diameter) marks "the area in which a vessel is prohibited"-that is,
the buoy markers must be placed "within 300 feet of any suspended culture
floating cages." 12 M.R.S, § 6957(1)-(1-A); Ashby, 1999 ME 188, 'II 6, 743 A.2d 1254
(strictly construing 12 M.R.S. § 6957's marking requirements).
Here, Mr. Maker challenges the hearing officer's finding that the buoy
markers were properly placed. Specifically, he argues the finding was
unsupported because the Department "proved only [that the buoys] marked the
corners of the [aquaculture] 'lease,'" and "[m]arking the 'lease' area is not the
same as 1narldng the 'area in which a vesse.l is prohibited."' While the court

3
generally agrees that marking the perimeter of an aquaculture lease does
necessarily meet the requirements of 12 M.R.S, § 6957, the court is nevertheless
satisfied that competent and substantial evidence supports the hearing officer's
finding. Officer Brodie testified at multiple points during the hearing that he
used a range find.er to confirm the markers ·were 300 feet from the salmon cages
and thus, marked the prohibited area contemplated by stahtte, See, e.g., A.R. 62
("I went out later and used the range finder to' see exactly how close , , , the
markers were to the salmon cages , , ,, And they we1·e all right around the
hundred yard mark"); A.R. 80 ("I used a range finder to make sm•e [the markers
were] [] 300 feet from the,,. actual cages"); see also, e.g., A.R. 78, 85-86, 88.
Moreover,. although there was evidence that the buoys marked the area of
the lease, it is possible, as the hearing officer found, for the corners of the lease to
also mark the statutorily-designated boundary. And the fact that the hearing
officer did not fully credit certain opposing evidence introduced by Mr. Maker,
such as a Google Map image of the configuration of the salmon cages, is not a
basis to overturn the challenged determination. See Anglez, 2020 ME 26, 'I[ 12, 226
A.3d 762 (judicial review of agency action"' d0es not involve any weighing of the
merits of evidence'"); Seidel', 2000 ME 206, 'I[ g, 762 A.2d 551 ("[i]nconsistent
evidence will not render an agency decision unsupported"). The court: therefore
declines to disturb the Department's finding because substantial evidence
supports a determination that the markers were properly placed.

Issue II.
Mr. Maker further argues that section§ 6957(1) requires the Department
to "prove all facts needed to issue a[n] aquaculture lease." This requirement, Mr.
Maker asserts, is found in the text of section 6957(1), which contemplates that the
prohibitions apply when the aquaculture egufpment is "authorized in a lease
issued by the commissioner under section 6072, 6072-A or 6072-B." While Mr.
Maker concedes there is evidence that a lease was issued, he maintains the
Department failed to prove the lease complied with the applicable statutory
criteria.
The court disagrees with Mr. Maker's interpretation of section 6957(1).
The language of the statute is clear: The Departmei1t need only prove that a

4
"lease [was] issued by the commissioner" under the authority of section 6072,
6072-A, or 6072-B. 12 M.R.S. § 6957(1). There is substantial evidence in the record
revealing that such a lease was issued her.e. See A.R. 41-44 (specifying that the
salmon aquaculture lease was issued pursuant to the Commissioner's authority
under sections 6072 and 6072-A). 1
Conclusion
The entry is:
The Petition for Judicial Review is DENIED, and the Commissioner's decision to
suspend Mr. Maker's sea urchin dragger license is AFFIRMED.

The Clerk may incorporate this Order upon the docket by reference.

DATED: August 28, 2021

l Additionally, the court notes that Mr. Maker did not preserve this issue in the
proceedings before the Department. This failure alone provides a basis to reject
his second issue. New England Whitewater Ctr., Inc. v. Dep't of Inland Fisheries &
Wildlife, 550 A.2d 56, 58 (Me. 1988).

5