MAINE	SUPREME	JUDICIAL	COURT	                                     Reporter	of	Decisions	
Decision:	 2017	ME	223	
Docket:	   Yor-17-100	
Argued:		  October	13,	2017	
Decided:	  December	7,	2017	
	
Panel:	    ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                              STATE	OF	MAINE	
                                      	
                                     v.	
                                      	
                         DUBOIS	LIVESTOCK,	INC.,	et	al.	
	
	
GORMAN,	J.	

      [¶1]	 	 Dubois	 Livestock,	 Inc.,	 and	 the	 Randrick	 Trust	 appeal	 from	 a	

judgment	 of	 the	 Superior	 Court	 (York	 County,	 O’Neil,	 J.)	 granting	 the	

Department	of	Environmental	Protection’s	request	for	a	permanent	injunction	

prohibiting	 Dubois	 and	 the	 Trust	 from	 denying	 the	 Department	 access	 for	

solid	waste	inspections.		Dubois	and	the	Trust	argue	that	(1)	the	court	erred	in	

concluding	 that	 38	 M.R.S.	 §§	 347-C	 and	 1304(4-A)	 (2016)	 permit	 the	

Department	 to	 enter	 the	 property	 without	 consent	 or	 an	 administrative	

search	 warrant	 and	 (2)	 if	 the	 statutes	 do	 permit	 warrantless	 searches,	 the	

statutory	 scheme	 violates	 their	 constitutional	 right	 to	 be	 free	 from	

unreasonable	searches	and	seizures.		We	affirm	the	judgment.		
2	

                                  I.		BACKGROUND	

	     [¶2]		Dubois	operates	a	composting	business	in	Arundel	on	land	owned	

by	the	Randrick	Trust	and	surrounded	by	fields	the	Trust	also	owns.		Dubois	

conducts	 its	 composting	 operation	 out	 in	 the	 open	 on	 large	 uncovered	

impervious	 pads,	 far	 from	 any	 buildings	 or	 residences.	 	 In	 1999,	 the	

Department	 issued	 a	 solid	 waste	 order	 granting	 Dubois	 an	 “after-the-fact	

license”	 to	 receive	 1,733	 tons	 of	 fish	 waste	 and	 3,467	 tons	 of	 horse	 manure	

annually.	 	 See	 Dubois	 Livestock,	 Inc.	 v.	 Town	 of	 Arundel,	 2014	 ME	 122,	 ¶	 2,	

103	A.3d	 556.	 	 In	 2012,	 Dubois	 requested	 and	 the	 Department	 granted	 a	

license	 amendment	 that	 allows	 Dubois	 to	 receive	 up	 to	 29,000	 total	 tons	 of	

composting	 materials	 annually,	 consisting	 of	 8,000	 tons	 of	 solid	 waste	

residuals,	 including	 fish	 and	 shellfish	 waste,	 and	 21,000	 tons	 of	 additional	

material,	such	as	horse	manure,	cow	manure,	horse	bedding,	and	woodchips.		

See	id.		The	license	amendment	represented	a	fivefold	increase	in	the	volume	

of	composting	material	that	Dubois	could	accept	each	year.		

      [¶3]		Pursuant	to	its	license	and	the	rules	promulgated	pursuant	to	the	

Maine	 Hazardous	 Waste,	 Septage	 and	 Solid	 Waste	 Management	 Act	 (Solid	

Waste	 Act),	 38	 M.R.S.	 §§	 1301	 to	 1319-Y	 (2016),	 Dubois	 is	 required	 to	

“prevent	 nuisance	 odors	 at	 occupied	 buildings.”	 	 2	 C.M.R.	 06	 096	 410-5	
                                                                                                                  3	

§	(4)(E)(1)	 (2015).1	 	 During	 the	 spring	 of	 2015,	 on	 at	 least	 one	 occasion,	

Dubois	spread	compost	material	on	the	Trust’s	surrounding	fields.		Soon	after,	

the	 Department	 received	 multiple	 complaints	 about	 odors	 believed	 to	 be	

emanating	from	Dubois’s	premises	and	the	Trust’s	fields.		In	response	to	these	

complaints,	 the	 Department	 sought	 access	 to	 Dubois’s	 premises	 to	 conduct	

inspections	and	access	to	the	Trust’s	fields	to	inspect	and	take	samples	of	the	

material	 spread	 by	 Dubois.	 	 Dubois	 initially	 permitted	 the	 Department	 to	

enter	the	property,	but	after	additional	odor	complaints	and	follow-up	by	the	




   1		The	version	of	chapter	410	section	4(E)	on	the	Secretary	of	State’s	website	contains	language	

different	 from	 the	 version	 in	 the	 published	 Code	 of	 Maine	 Rules,	 even	 though	 the	 most	 recent	
amendments	to	chapter	410	were	enacted	before	the	official	publication	of	section	4(E)	in	June	of	
2015.		Compare	06-096	C.M.R.	ch.	410,	§	4(E)	(2015),	with	2	C.M.R.	06	096	410-5	§	4(E)	(2015).		The	
version	 on	 the	 Secretary	 of	 State’s	 website	 includes	 language	 from	 amendments	 enacted	 in	 2014.		
Compare	 06-096	 C.M.R.	 ch.	 410,	 §	 4(E)	 (2015),	 with	 2	 C.M.R.	 06	 096	 410-6	 §	 4(E)	 (2014).	 	 The	
version	of	section	4(E)	in	the	published	Code	of	Maine	Rules,	however,	contains	the	same	language	
as	the	version	of	the	rule	in	effect	before	the	2014	amendments.		Compare	2	C.M.R.	06	096	410-5	
§	4(E)	 (2015),	 with	 2	 C.M.R.	 06	 096	 410-5	 §	 4(E)	 (2010).	 	 It	 appears	 that	 the	 Department	 of	
Environmental	 Protection	 “inadvertently”	 proceeded	 through	 the	 rulemaking	 process	 with	
superseded	language	from	chapter	410	and	only	realized	the	mistake	after	the	amendments	were	
adopted	and	filed	with	the	Secretary	of	State	in	April	of	2015.		E-mail	from	Emily	K.	Green,	Assistant	
Att’y	Gen.,	Office	of	the	Me.	Att’y	Gen.,	to	Don	Wismer,	A.P.A.	Coordinator,	Me.	Dept.	of	the	Sec’y	of	
State	 (May	 22,	 2015,	 11:16	 EST)	 (on	 file	 with	 the	 Secretary	 of	 State	 in	 rule	 adoption	 log	 06-096,	
2015-070,	 and	 identified	 as	 the	 “corrected	 filing”).	 	 After	 realizing	 the	 error,	 the	 Department	
requested	that	the	Secretary	of	State’s	office	accept	a	corrected	filing	that	reinserted	multiple	pages	
of	the	2014	language	into	the	newly	amended	rule.		Id.		The	Department,	however,	did	not	go	back	
through	 the	 rulemaking	 process	 regarding	 the	 2015	 amendments.	 	 The	 Secretary	 of	 State’s	 office	
accepted	the	Department’s	corrected	filing	in	May	of	2015,	but	these	“corrections”	to	section	4(E)	
are	 not	 included	 in	 the	 published	 version	 of	 the	 Code	 of	 Maine	 Rules.	 	 While	 this	 series	 of	 events	
may	 affect	 other	 enforcement	 actions,	 it	 does	 not	 affect	 our	 analysis	 in	 this	 case	 because	 the	
language	 requiring	 Dubois	 to	 “prevent	 nuisance	 odors	 at	 occupied	 buildings”	 is	 identical	 in	 each	
version	of	the	rule.		See	06-096	C.M.R.	ch.	410,	§	4(E)(1)(a)	(2015);	2	C.M.R.	06	096	410-5	§	4(E)(1)	
(2015).			
4	

Department	in	the	fall	of	2015,	representatives	of	Dubois	and	the	Trust	denied	

the	Department	access.		

	     [¶4]	 	 In	 response,	 on	 November	 23,	 2015,	 the	 Department	 filed	 a	

complaint	 against	 Dubois	 and	 the	 Trust	 in	 the	 Superior	 Court	 seeking	 a	

declaratory	judgment	that	the	Department	has	the	right,	pursuant	to	38	M.R.S.	

§§	 347-C	 and	 1304(4-A),	 to	 enter	 Dubois’s	 business	 premises	 and	 the	

surrounding	 fields	 to	 inspect	 and	 take	 samples,	 and	 seeking	 a	 permanent	

injunction	 prohibiting	 Dubois	 and	 the	 Trust	 from	 denying	 the	 Department	

such	 access.	 	 See	 38	 M.R.S.	 §	 348(1)	 (2016).	 	 The	 Department	 also	 sought	 a	

preliminary	injunction	to	the	same	effect.			

	     [¶5]		After	a	contested	hearing,	the	court	issued	a	declaratory	judgment	

stating	 that	 the	 Department	 has	 statutory	 authority	 “to	 enter	 property	 to	

inspect	 and	 ensure	 compliance,”	 and	 that	 “[n]either	 consent	 nor	 an	

administrative	 warrant	 is	 required	 by	 the	 statutory	 scheme.”	 	 The	 court	

granted	 the	 Department	 a	 permanent	 injunction	 prohibiting	 Dubois	 and	 the	

Trust	 from	 denying	 the	 Department	 such	 access	 during	 “reasonable	 hours,”	

and	 affirmed	 the	 constitutionality	 of	 the	 statutory	 scheme	 as	 applied	 to	

Dubois	and	the	Trust.		Dubois	and	the	Trust	appeal.		
                                                                                       5	

                                   II.		DISCUSSION	

      [¶6]	 	 This	 case	 requires	 us	 to	 determine,	 for	 the	 first	 time,	 the	

parameters	of	the	Department’s	right	to	enter	and	inspect	property,	pursuant	

to	 38	 M.R.S.	 §§	 347-C	 and	 1304(4-A),	 to	 ensure	 compliance	 with	 the	 solid	

waste	laws	and	the	rules	that	the	Department	administers	in	enforcing	those	

laws.		Our	standard	for	interpreting	statutory	provisions	is	well	established:	

             In	 interpreting	 these	 provisions,	 we	 first	 look	 to	 the	 plain	
      language	 of	 the	 provisions	 to	 determine	 their	 meaning.	 	 If	 the	
      language	 is	 unambiguous,	 we	 interpret	 the	 provisions	 according	
      to	 their	 unambiguous	 meaning	 unless	 the	 result	 is	 illogical	 or	
      absurd.	 	 If	 the	 plain	 language	 of	 a	 statute	 is	 ambiguous—that	 is,	
      susceptible	of	different	meanings—we	will	then	go	on	to	consider	
      the	 statute’s	 meaning	 in	 light	 of	 its	 legislative	 history	 and	 other	
      indicia	of	legislative	intent.		
	
MaineToday	 Media,	 Inc.	 v.	 State,	 2013	 ME	 100,	 ¶	 6,	 82	 A.3d	 104	 (citations	

omitted)	 (quotation	 marks	 omitted).	 	 “In	 applying	 these	 principles,	 we	

examine	the	entirety	of	the	statute,	giving	due	weight	to	design,	structure,	and	

purpose	 as	 well	 as	 to	 aggregate	 language.	 	 We	 reject	 interpretations	 that	

render	some	language	mere	surplusage.”		Dickau	v.	Vt.	Mut.	Ins.	Co.,	2014	ME	

158,	 ¶	22,	 107	 A.3d	 621	 (citations	 omitted)	 (quotation	 marks	 omitted).	 	 We	

review	 the	 court’s	 “legal	 conclusions,	 including	 the	 interpretation	 of	 the	

relevant	 statutory	 provisions,	 de	 novo.”	 	 MaineToday	 Media,	 Inc.,	 2013	 ME	

100,	¶	7,	82	A.3d	104.	
6	

	        [¶7]	 	 The	 language	 in	 38	 M.R.S.	 §	 347-C	 that	 gave	 the	 Department	 a	

“[r]ight	of	inspection	and	entry”	stated:2	

                Employees	and	agents	of	the	Department	of	Environmental	
         Protection	may	enter	any	property	at	reasonable	hours	and	enter	
         any	building	with	the	consent	of	the	property	owner,	occupant	or	
         agent,	 or	 pursuant	 to	 an	 administrative	 search	 warrant,	 in	 order	
         to	inspect	the	property	or	structure,	including	the	premises	of	an	
         industrial	user	of	a	publicly	owned	treatment	works,	and	to	take	
         samples,	 inspect	 records	 relevant	 to	 any	 regulated	 activity	 or	
         conduct	 tests	 as	 appropriate	 to	 determine	 compliance	 with	 any	
         laws	administered	by	the	department	or	the	terms	and	conditions	
         of	 any	 order,	 regulation,	 license,	 permit,	 approval	 or	 decision	 of	
         the	commissioner	or	of	the	board.		
	
Dubois	and	the	Trust	contend	that	this	language	requires	the	Department	to	

obtain	consent	or	an	administrative	search	warrant	to	enter	“any	property”	as	


     2		In	June	of	2017,	the	Legislature	enacted	P.L.	2017,	ch.	137,	§	A-5	(effective	November	1,	2017)	

that	 repealed	 and	 replaced	 the	 version	 of	 section	 347-C	 applicable	 in	 this	 case.	 	 As	 amended	 it	
states:	

     Employees	and	agents	of	the	department	may:		

         1.	Property.	 	Enter	 any	 property	 at	 reasonable	 hours	 in	 order	 to	 inspect	 the	
         property	 to	 take	 samples,	 inspect	 records	 relevant	 to	 any	 regulated	 activity	 or	
         conduct	 tests	 as	 appropriate	 to	 determine	 compliance	 with	 any	 laws	 administered	
         by	 the	 department	 or	 the	 terms	 and	 conditions	 of	 any	 order,	 regulation,	 license,	
         permit,	approval	or	decision	of	the	commissioner	or	of	the	board;	and	

         2.	Buildings.		Enter	any	building	with	the	consent	of	the	property	owner,	occupant	
         or	 agent,	 or	 pursuant	 to	 an	 administrative	 search	 warrant,	 in	 order	 to	 inspect	 the	
         property	 or	 structure,	 including	 the	 premises	 of	 an	 industrial	 user	 of	 a	 publicly	
         owned	 treatment	 works,	 and	 to	 take	 samples,	 inspect	 records	 relevant	 to	 any	
         regulated	activity	or	conduct	tests	as	appropriate	to	determine	compliance	with	any	
         laws	 administered	 by	 the	 department	 or	 the	 terms	 and	 conditions	 of	 any	 order,	
         regulation,	license,	permit,	approval	or	decision	of	the	commissioner	or	of	the	board.	

     	
                                                                                       7	

well	 as	 “any	 building.”	 	 The	 plain	 language	 of	 section	 347-C	 is	 unambiguous,	

however,	 and	 compels	 a	 different	 reading	 than	 that	 asserted	 by	 Dubois	 and	

the	Trust.		See	Dickau,	2014	ME	158,	¶	17,	107	A.3d	621.	

	     [¶8]	 	 The	 Legislature	 included	 both	 “any	 property”	 and	 the	 more	

specific	type	of	property,	“any	building,”	in	the	statute.		38	M.R.S.	§	347-C.		The	

use	of	the	word	“and”	in	the	phrase	“enter	any	property	at	reasonable	hours	

and	 enter	 any	 building	 with	 the	 consent	 of	 the	 property	 owner,	 occupant	 or	

agent,	or	pursuant	to	an	administrative	search	warrant”	serves	to	distinguish	

the	 restrictions	 that	 modify	 the	 Department’s	 right	 to	 enter	 “any	 property”	

from	 the	 restrictions	 that	 modify	 the	 Department’s	 right	 to	 enter	 “any	

building.”	 	 38	 M.R.S.	 §	 347-C	 (emphasis	 added).	 	 Reading	 this	 provision	 as	

applying	the	same	restrictions	to	“any	property”	as	applied	to	“any	building”	

would	 render	 the	 words	 “any	 building”	 mere	 surplusage,	 contrary	 to	 the	

principle	 that	 “we	 must	 give	 meaning	 to	 this	 language.”	 	 Cobb	 v.	 Bd.	 of	

Counseling	 Prof’ls	 Licensure,	 2006	 ME	 48,	 ¶	 20,	 896	 A.2d	 271;	 see	 Cent.	 Me.	

Power	Co.	v.	Devereux	Marine,	Inc.,	2013	ME	37,	¶¶	14-15,	68	A.3d	1262	(“[W]e	

cannot	 interpret	 the	 statute	 in	 a	 way	 that	 would	 render	 the	 word	 ‘all’	 mere	

surplusage.”).	 	 Contrary	 to	 Dubois’s	 and	 the	 Trust’s	 contentions,	 pursuant	 to	

the	 plain	 language	 of	 section	 347-C,	 consent	 or	 an	 administrative	 search	
8	

warrant	 is	 necessary	 only	 when	 the	 Department	 seeks	 entry	 into	 “any	

building.”		

	     [¶9]	 	 In	 this	 case,	 after	 receiving	 numerous	 odor	 complaints,	 the	

Department	sought	entry	to	Dubois’s	premises	and	the	surrounding	fields	to	

determine	whether	Dubois	was	complying	with	its	license	and	the	Solid	Waste	

Act.	 	 See	 2	 C.M.R.	 06	 096	 410-5	 §	(4)(E)(1)	 (2015).	 	 The	 Department	 has	 an	

even	broader	right	of	entry	pursuant	to	the	Solid	Waste	Act:	

            4-A.	 	 Right	 of	 Entry.	 	For	 the	 purposes	 of	 enforcing	 any	
      provision	 of	 this	 Act	 or	 of	 developing	 or	 enforcing	 any	 rule	
      authorized	 by	 this	 Act,	 any	 duly	 authorized	 representative	 or	
      employee	 of	 the	 department	 may,	 upon	 presentation	 of	
      appropriate	credentials,	at	any	reasonable	time:	

               A.	 	 Enter	 any	 establishment	 or	 other	 place	 which	 is	 not	 a	
               residence,	or	any	conveyance,	where	or	in	which	hazardous	
               or	 solid	 waste,	 sludge	 or	 septage	 is	 generated,	 handled	 or	
               transported.	

               .	.	.	.			
	
38	 M.R.S.	 §	 1304(4-A).	 	 The	 plain	 language	 of	 section	 1304(4-A)	 grants	 the	

Department	 a	 right	 of	 entry	 to	 any	 portion	 of	 the	 Dubois	 business	 premises	

and	the	Trust’s	fields	that	“is	not	a	residence.”		The	Department	sought	access	

only	to	Dubois’s	unenclosed	composting	premises	and	the	Trust’s	fields,	not	to	

any	 residences.	 	 After	 considering	 the	 plain	 language	 and	 “the	 whole	 [solid	

waste]	 statutory	 scheme,”	 Jordan	 v.	 Sears,	 Roebuck	 &	 Co.,	 651	 A.2d	 358,	 360	
                                                                                                           9	

(Me.	 1994)	 (quotation	 marks	 omitted),	 we	 hold	 that	 the	 court	 correctly	

concluded	that	pursuant	to	38	M.R.S.	§§	347-C	and	1304(4-A),	the	Department	

does	 not	 need	 consent	 or	 an	 administrative	 search	 warrant	 to	 enter	 and	

inspect	Dubois’s	business	premises	or	the	Trust’s	surrounding	fields,	provided	

that	 it	 does	 so	 at	 a	 reasonable	 time	 and	 for	 the	 purpose	 of	 determining	

compliance	 with	 Dubois’s	 license	 or	 the	 laws	 that	 the	 Department	

administers.			

	       [¶10]		We	are	also	not	persuaded	by	Dubois’s	and	the	Trust’s	argument	

that	 the	 warrantless	 searches	 authorized	 by	 these	 statutes	 violate	 their	

constitutional	 right	 to	 be	 free	 from	 unreasonable	 searches	 and	 seizures.3		

U.S.	Const.	amend.	IV;	Me.	Const.	art.	I,	§	5;	see	State	v.	Patterson,	2005	ME	26,	

¶	10,	868	A.2d	188.		

        [¶11]	 	 It	 is	 well	 established	 that	 the	 Fourth	 Amendment	 applies	 only	

when	there	is	a	“legitimate	expectation	of	privacy	in	the	invaded	place.”		State	

v.	Boyington,	1998	ME	163,	¶	6,	714	A.2d	141	(quotation	marks	omitted).		“An	

individual	may	not	legitimately	demand	privacy	for	activities	conducted	out	of	

doors	in	fields,	except	in	[the	curtilage,]	the	area	immediately	surrounding	the	


    3		To	the	extent	that	Dubois	and	the	Trust	argue	that	38	M.R.S.	§§	347-C	and	1304(4-A)	(2016)	do	

not	 apply	 to	 them	 or	 the	 property	 that	 the	 Department	 seeks	 to	 inspect	 because	 compost	 is	 not	
“solid	waste,”	these	arguments	are	unpersuasive	and	we	do	not	address	them	further.		
10	

home.”	 	 State	 v.	 Cayer,	 617	 A.2d	 208,	 209-10	 (Me.	 1992)	 (quotation	 marks	

omitted).		Areas	beyond	the	curtilage,	known	as	“open	fields,”	do	not	implicate	

the	 Fourth	 Amendment,	 even	 in	 the	 context	 of	 regulatory	 searches	 and	

inspections.	 	 State	 v.	 Pelletier,	 673	 A.2d	 1327,	 1329	 (Me.	 1996);	 see	 Dep’t	 of	

Envtl.	Prot.	v.	Emerson,	616	A.2d	1268,	1271	(Me.	1992)	(“The	area	[that	the	

Department	 searched]	 covered	 with	 tires	 and	 demolition	 debris	 constituted	

an	open	field	in	which	defendant	could	not	reasonably	expect	privacy.”).		

		     [¶12]	 	 The	 court	 found,	 and	 Dubois	 and	 the	 Trust	 do	 not	 dispute,	 that	

Dubois	 conducts	 its	 composting	 operation	 outside	 on	 large	 impervious	 pads	

and	 the	 Trust’s	 property	 that	 the	 Department	 seeks	 to	 inspect	 consists	

entirely	 of	 fields;	 both	 areas	 are	 far	 from	 any	 enclosed	 structures,	 buildings,	

residences,	 or	 anything	 resembling	 a	 curtilage.	 	 Therefore,	 Dubois	 and	 the	

Trust	 “cannot	 claim	 a	 constitutionally	 protected	 reasonable	 expectation	 of	

privacy	in	the[se]	area[s]”	and	the	Fourth	Amendment	simply	does	not	apply.		

Cayer,	 617	 A.2d	 at	 210	 (quotation	 marks	 omitted);	 see	 Emerson,	 616	 A.2d	 at	

1271.			

       The	entry	is:	

                     Judgment	affirmed.		
	
	      	      	      	      	      	
                                                                                    11	

Alan	 E.	 Shepard,	 Esq.	 (orally),	 Shepard	 &	 Read,	 Kennebunk,	 for	 appellants	
Dubois	Livestock,	Inc.,	and	the	Randrick	Trust	
	
Janet	 T.	 Mills,	 Attorney	 General,	 and	 Katherine	 E.	 Tierney,	 Asst.	 Atty.	 Gen.	
(orally),	Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine	
	
	
York	County	Superior	Court	docket	number	CV-2015-262	
FOR	CLERK	REFERENCE	ONLY	
	
	
