Utsch v. Department of Environmental Protection
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The case involves Hans Utsch and Julia H. Merck's appeal against a denial of their petition for judicial review of an email from the mining coordinator of the Department of Environmental Protection. The case originates from Harold MacQuinn, Inc.'s intent to restart quarry operations in Hall Quarry, Mount Desert. Under Maine law, quarry operations must comply with performance standards, and those intending to operate a quarry must file a “notice of intent to comply” (NOITC) with these performance standards. The email that Utsch and Merck challenge is about whether MacQuinn is required to file a NOITC.
From 2012 to 2015, the mining coordinator asserted that MacQuinn did not need to file a NOITC, as the quarry operated before 1970 and was thus grandfathered into the performance standards for quarries. In 2017, the Legislature passed an act that added temporal language to the performance standards for quarries, limiting the one-acre threshold to areas excavated since January 1, 1970. MacQuinn modified its excavation plan so that the total area excavated would not exceed one acre, thus not requiring a NOITC according to the mining coordinator.
Utsch and Merck, who live near the quarry, filed a petition for review of the mining coordinator’s email, claiming that the Department violated statutory provisions by determining that MacQuinn does not have to file a NOITC before operating the quarry. The Superior Court denied their petition, on the basis that the email was a final agency action and Utsch and Merck had standing to appeal it.
On appeal, the Maine Supreme Judicial Court vacated the Superior Court’s judgment and remanded for dismissal of the petition. The court held that the mining coordinator’s email was not a final agency action, as it did not affect anyone’s “legal rights, duties or privileges” under the Maine Administrative Procedure Act. The court further held that Utsch and Merck's petition was not ripe for consideration as a declaratory judgment action because it fails both prongs required for ripeness, as their allegations were too uncertain and speculative.
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