MAINE SUPREME JUDICIAL COURT                                              Reporter of Decisions
Decision: 2014 ME 116
Docket:   BEP-13-413
Argued:   September 4, 2014
Decided:  October 21, 2014

Panel:          SAUFLEY, C.J., and SILVER, MEAD, GORMAN, and JABAR, JJ.



                    PASSADUMKEAG MOUNTAIN FRIENDS et al.

                                              v.

                  BOARD OF ENVIRONMENTAL PROTECTION et al.

JABAR, J.

         [¶1]      Passadumkeag Mountain Friends (PMF), a Maine nonprofit

corporation, Alexander F. Cuprak, and Rhonda Cuprak appeal from a decision by

the Board of Environmental Protection (the Board) granting Passadumkeag

Windpark, LLC, (PW) a permit to develop a wind farm on property owned by

Penobscot Forest, LLC, (PF) located on Passadumkeag Ridge in Grand Falls

Township. The Board’s decision followed PW and PF’s appeal from the decision

of the Department of Environmental Protection (the Department) denying the

requested permit. PMF and the Cupraks contend that we should treat the decision

of the Department, rather than the decision of the Board, as operative for purposes

of appellate review. The Cupraks also contend that, even if the Board’s decision is

reviewed on appeal, the record does not support that decision, and that they were

denied due process because of ex parte communications between the Board, PW,
2

and PF during the application process. We disagree with these contentions and

affirm the Board’s decision.

                        I. ADMINISTRATIVE PROCESS

        [¶2] In February 2012, PW applied to the Department for an expedited wind

energy development permit pursuant to the Natural Resources Protection Act, 38

M.R.S. §§ 480-A to 480-HH (2012). See 35-A M.R.S. § 3451(4) (2013); 38

M.R.S. § 480-C. It also applied for the Department’s approval of the project

pursuant to the site location of development statute. See 38 M.R.S. §§ 482(2)(A),

483-A (2013). Through these applications, PW sought approval to construct a

wind farm on Passadumkeag Ridge in Grand Falls Township. The project features

fourteen 140-meter-high turbines, access roads, a crane path, a meteorological

tower, and electrical collection infrastructure including an electrical substation, an

operations and maintenance building in Greenbush, and a 17-mile transmission

line.

        [¶3] While considering PW’s application, the Department’s staff made two

site visits and held two public meetings. The Department did not hold a public

hearing, concluding that there was insufficient “credible conflicting technical

information” that would warrant a public hearing. See 38 M.R.S. § 345-A(1-A)

(2013); 2 C.M.R. 06 096 002-3 § 7(B) (2013).             During the meetings, the

Department heard concerns from numerous members of the public, whom it
                                                                                 3

labeled “interested persons,” including the Cupraks, and several individual

members of PMF. See 2 C.M.R. 06 096 002-1 § 1(J) (2013).

      [¶4]    The Department ultimately denied the application, finding that

construction on Passadumkeag Ridge would dramatically change the undeveloped

view of Passadumkeag Mountain from Saponac Pond, and concluding that the

project would have an unreasonable adverse impact on the scenic character and

existing uses related to the scenic character of Saponac Pond, a scenic resource of

state or national significance (SRSNS). The Department also concluded that, with

the exception of an unreasonable adverse impact on the scenic character and

existing uses of Saponac Pond, the applicant had met all permit criteria. After

denial of the application, PW, the applicant, and PF, the owner of the land on

which the wind park would be built, both filed timely notices of appeal to the

Board. See 38 M.R.S. § 344(2-A) (2013). The Cupraks then filed a letter with the

Board stating their objections to the application and the appeal.

      [¶5] While it was reviewing the Department’s decision, the Board sent

several letters to PW regarding the issues and evidence that it would consider,

without sending copies to the Cupraks or other interested parties. At its March 21,

2013, meeting, the Board heard arguments from PW, PF, the Department’s staff,

and the Cupraks, but it did not take any additional evidence or augment the

administrative record.
4

         [¶6] On August 20, 2013, the Board issued “Findings of Fact and Order on

Appeal.” In it, the Board stated that the scenic consultants hired by PW and the

Department “agree that the project will not have an unreasonable adverse impact

on the scenic character of Saponac Pond,” and that it found these assessments

credible. Based on this determination, the Board granted the permit. Both PMF

and the Cupraks timely appealed. See 38 M.R.S. § 346(4) (2013); M.R. App. P.

2(b)(3).

                                       II. DISCUSSION

         [¶7] Appellants raise three fundamental issues on appeal: (1) whether the

decision of the Department, rather than the Board, is the operative decision on

appeal; (2) whether there is sufficient evidence to support the Board’s decision;

and (3) whether the Cupraks were denied due process as a result of ex parte

communications between the Board, PW, and PF during the application process.1

A.       Operative Decision

         [¶8] PMF and the Cupraks argue that the Board erred in reviewing the

Department’s decision de novo, and that the Department, as fact-finder, issues the

operative decision for appellate review. Appellants base their arguments on the

language of 38 M.R.S. § 341-D (2013), which details the Board’s responsibilities

     1
      Although PF challenges PMF’s standing to seek review of the Board’s decision, we decline to
address this issue because PMF has not raised any issues that were not raised by the Cupraks, for whom
standing is uncontested.
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and duties in reviewing permit applications. Pursuant to section 341-D(4)(D),

which applies specifically to “[l]icense or permit decisions regarding an expedited

wind energy development,” the Board may supplement the record with additional

information at its discretion. Section 341-D(4)(D) does not expressly provide that

the Board is not bound by the Department’s findings, unlike section 341-D(4)(A),

which pertains to other permit and license appeals. PMF and the Cupraks argue

that this omission is an indication of the Legislature’s intent to have the Board give

deference to the Department’s findings.

      [¶9]    However, in Concerned Citizens to Save Roxbury v. Board of

Environmental Protection, we determined that the Board had engaged in an

independent review of the record, which included not only the administrative

record before the Department, but also some supplemental evidence presented by

the parties. 2011 ME 39 ¶ 17, 15 A.3d 1263. Based on that determination, we

concluded that the Board’s decision was the operative decision for our appellate

review. Id. In our discussion, we noted that the Department’s rules for processing

appeals provided that the Board, “is not bound by the [Department’s] findings of

fact or conclusions of law.” Id. ¶ 16 (quoting 2 C.M.R. 06 096 002-12 § 24(B)(7)

(2003)).

      [¶10] Although the Board in this case did not supplement the administrative

record in the course of its review, it engaged in an independent analysis of the
6

record, made factual findings regarding the credibility of various experts, and

concluded that the proposed development would not have an unreasonable adverse

impact on Saponac Pond. See 2 C.M.R. 06 096 002-12 § 24(G) (2013) (providing

that the “Board is not bound by the [Department’s] findings of fact or conclusions

of law”). The Board acted as both fact-finder and decision-maker pursuant to

agency rules, and did not err in so doing. The Board’s decision is the operative

decision for purposes of this appeal.

B.    The Board’s Findings and Conclusions

      [¶11] The Cupraks argue that the Board’s findings regarding the visual

impact of the proposed project were based upon “statistically flawed” evidence.

They also contend that the Board erred as a matter of law in weighing the relevant

criteria for determining whether the proposed project would have an unreasonable

adverse impact on the scenic character and related uses of Saponac Pond.

      [¶12] Our review of administrative agency decisions is “deferential and

limited.” Friends of Lincoln Lakes v. Bd. of Envtl. Prot., 2010 ME 18, ¶ 12,

989 A.2d 1128. When reviewing an agency’s interpretation of a statute that it

administers, we defer to the agency’s construction unless the statute plainly

compels a contrary result. FPL Energy Me. Hydro LLC v. Dep’t of Envtl. Prot.,

2007 ME 97, ¶ 11, 926 A.2d 1197. When reviewing an agency’s factual findings,

we examine the record in its entirety. Concerned Citizens to Save Roxbury, 2011
                                                                                    7

ME 39, ¶ 24, 15 A.3d 1263.         “‘We must affirm findings of fact if they are

supported by substantial evidence in the record, even if the record contains

inconsistent evidence . . . .’” Id. (quoting Friends of Lincoln Lakes, 2010 ME 18, ¶

13, 989 A.2d 1128). We will vacate an agency’s factual findings only if the record

contains no competent evidence to support them. Id.

      [¶13] The statute guiding the Board’s determination of a grid-scale wind

project’s impact on the character and uses of a SRSNS requires the Board to

consider six criteria but does not require it to assign more or less weight to any one

criterion. 35-A M.R.S. § 3452(3) (2013). Because this statute does not compel a

result contrary to that reached by the Board, we defer to the Board’s evaluation.

      [¶14] Although the Cupraks challenge the credibility and significance of

some of the evidence in the record, the Board was free to make its own credibility

determinations with respect to the conflicting evidence before it. See Stewart v.

Town of Sedgwick, 2000 ME 157, ¶ 7, 757 A.2d 773 (explaining that a

decision-maker makes its own credibility determinations when conducting a de

novo review). Its findings regarding the project’s visual impact are supported by

evidence that Saponac Pond is lightly used, that the surrounding area is developed,

and that the project would not have an unreasonable adverse impact on the

viewshed of the pond. The Board’s findings and conclusion are supported by

substantial evidence in the record. We therefore uphold the Board’s decision.
8

C.    Ex Parte Communications

      [¶15] Finally, the Cupraks contend that the Board violated their due process

rights by communicating with PW and PF without including them or giving them

an opportunity to comment on the materials communicated. The Board counters

that 5 M.R.S. § 9055 (2013) prohibits ex parte communications only in an

“adjudicatory proceeding,” which is defined as “any proceeding before an agency

in which the legal rights, duties or privileges of specific persons are required by

constitutional law or statute to be determined after an opportunity for hearing,” 5

M.R.S. § 8002(1) (2013). Because the decision to hold an adjudicatory hearing

was within the Board’s discretion pursuant to 38 M.R.S. § 341-D(4), the Board

argues that the opportunity for a hearing in this case was not a matter of

constitutional or statutory law, and that 5 M.R.S. § 9055 therefore does not prohibit

ex parte communications.

      [¶16]     Although section 9055 provides that “[i]n any adjudicatory

proceeding, no agency members . . . may communicate directly or indirectly in

connection with any issue of fact, law or procedure, with any party or other

persons legally interested in the outcome of the proceeding, except upon notice and

opportunity for all parties to participate,” 5 M.R.S. § 9055(1) (emphasis added), we

have not held that there is a bright-line rule that permits ex parte communications

in all nonadjudicatory proceedings. We have instead concluded that the contours
                                                                                 9

of due process in an administrative proceeding, particularly a nonadjudicatory,

fact-gathering proceeding, depend upon the nature of the proceeding, the nature of

the alleged right involved, and the possible burden that additional procedures

would place on the proceeding. Cunningham v. Kittery Planning Bd., 400 A.2d

1070, 1079 (Me. 1979); Duffy v. Town of Berwick, 2013 ME 105, ¶ 16, 82 A.3d

148. Other factors that we take into account include

      the gravity of the ex parte communications; whether the contacts may
      have influenced the . . . ultimate decision; whether the party making
      the improper contacts benefited from the . . . ultimate decision;
      whether the contents of the communications were unknown to
      opposing parties, who therefore had no opportunity to respond; and
      whether vacation of the . . . decision and remand for new proceedings
      would serve a useful purpose.

Duffy, 2013 ME 105, ¶ 19, 82 A.3d 148 (quotation marks omitted).

      [¶17]    The Cupraks have challenged as ex parte the following

communications: (1) a letter sent from PW to the Board chair seeking to exclude

the Cupraks’ responses to PW and PF’s notice of appeal; (2) materials sent by PF

to the Board in preparation for the March 21, 2013, public meeting; and (3) three

letters from the Board to PW, all of which advised PW that it could not supplement

the administrative record with the additional evidence that it sought to proffer on
10

appeal.2 The Cupraks have not argued that these communications between PF,

PW, and the Board harmed them in any substantial way, and there is no evidence

suggesting that the communications resulted in “‘procedural unfairness.’” Id. ¶ 18

(quoting Lane Constr. Corp. v. Town of Washington, 2008 ME 45, ¶ 32, 942 A.2d

1202).

         [¶18] Although the Board did not hold a formal hearing, it gave the Cupraks

the opportunity to participate and the Cupraks have not argued that the proceedings

before the Board were fundamentally unfair. See id. ¶¶ 20-21; Cunningham, 400

A.2d at 1079. We therefore conclude that the communications at issue did not

affect the Cupraks’ due process rights.3

         [¶19] For the reasons stated above, we affirm the decision of the Board.

         The entry is:

                         Judgment affirmed.




     2
     The Cupraks also refer to “numerous other communications” occurring ex parte between the Board
and the PW. However, of the approximately ten separate communications referred to in the Cupraks’
appellate brief, only the three letters are actually included in the administrative record that the parties
provided to us.
     3
      Although it may be good practice for state agencies to send copies of all correspondence to all
parties involved in the application process, it is up to the Legislature to mandate that such practice be
undertaken during the application process.
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On the briefs:

       Alexander F. Cuprak and Rhonda Cuprak, pro se appellants

       Rufus E. Brown, Esq., Brown & Burke, for appellants
       Passadumkeag Mountain Friends et al.

       Janet T. Mills, Attorney General, and Margaret A. Bensinger,
       Asst. Atty. Gen., Office of the Attorney General, Augusta, for
       appellee Board of Environmental Protection

       P. Andrew Hamilton, Esq., Jonathan A. Pottle, Esq., and Ryan
       P. Dumais, Esq., Eaton Peabody, for appellee Penobscot Forest,
       LLC

       Katherine A. Joyce, Esq., and Mary E. Costigan, Esq.,
       Bernstein Shur, for appellee Passadumkeag Windpark LLC


At oral argument:

       Alexander F. Cuprak and Rhonda Cuprak, pro se appellants

       Rufus E. Brown, Esq., for appellants Passadumkeag Mountain
       Friends et al.

       Margaret A. Bensinger, Asst. Atty. Gen., for appellee Board of
       Environmental Protection

       Katherine A. Joyce, Esq., for appellee Passadumkeag Windpark
       LLC



Board of Environmental Protection number BEP L-25597
FOR CLERK REFERENCE ONLY
