                                                              Supreme Court

                                                              No. 2011-81-M.P.
                                                              (PC 10-5700)


State of Rhode Island Department of      :
    Environmental Management

                 v.                      :

Administrative Adjudication Division.    :




           NOTICE: This opinion is subject to formal revision before publication in
           the Rhode Island Reporter. Readers are requested to notify the Opinion
           Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
           Rhode Island 02903, at Tel. 222-3258 of any typographical or other
           formal errors in order that corrections may be made before the opinion is
           published.
                                                                  Supreme Court

                                                                  No. 2011-81-M.P.
                                                                  (PC 10-5700)


   State of Rhode Island Department of         :
       Environmental Management

                     v.                        :

  Administrative Adjudication Division.        :



              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


                                           OPINION

       Justice Flaherty, for the Court. The discovery of a catch of flounder that exceeded the

allowable limit by thirty-seven pounds has led to a dispute that eventually has wended its way to

this Court. On May 22, 2007, the F/V Cracker Jac, owned by Daniel R. Barlow, was tied to the

dock at the fishing pier at Point Judith in Narragansett. Two enforcement officers of the Rhode

Island Department of Environmental Management (DEM) boarded the boat at a time when

Barlow was not on board and said they discovered that the amount of summer flounder he had

caught that day was more than was permitted under the applicable regulations. A notice of

violation followed, and a trail of litigation ensued that now terminates in this Court.

       Barlow seeks review by way of certiorari of a judgment of the Superior Court that

reversed a hearing officer’s decision and reinstated DEM’s decision, which found Barlow

ineligible to participate in its 2010 Summer Flounder Sector Allocation Pilot Program (pilot

program). That agency determined that Barlow was ineligible to participate in the pilot program

because of a previous consent agreement he had entered into with the department.             The



                                                -1-
agreement reflected a settlement of the above-mentioned allegation that Barlow had violated a

state marine fisheries regulation for catch limits.       The DEM contended that the consent

agreement was an administrative penalty that justified disqualifying Barlow from participating in

the pilot program. On appeal from the Administrative Adjudication Division of DEM (AAD), a

justice of the Superior Court agreed. Barlow then petitioned this Court for a writ of certiorari,

which we granted on June 8, 2011.

         This case came before the Supreme Court for oral argument on September 27, 2012,

based on an order directing the parties to appear and show cause why the issues raised in this

appeal should not summarily be decided. After hearing the arguments and examining the

memoranda filed by the parties, we are of the opinion that cause has not been shown, and we

proceed to decide the appeal at this time without further briefing or argument. For the reasons

set forth in this opinion, we quash the judgment of the Superior Court.

                                                  I

                                         Facts and Travel

          The facts underlying this controversy are not subject to significant dispute. On May 22,

2007, DEM law enforcement officers alleged that Barlow violated Rhode Island Marine

Fisheries Regulation § 7.7.2-2 by landing 137 pounds of summer flounder, which exceeded the

100-pound limit. 1 DEM sent Barlow a notice of violation, informing him thereby that any and

all of his commercial fishing licenses would be suspended for a period of thirty days because of

the violation. Barlow appealed that order of suspension and requested a hearing before the

AAD. In mid-December of 2008, without engaging in any adjudicative process, Barlow and

DEM settled the matter, and they entered into a consent agreement, concurring that Barlow’s



1
    The thirty-seven pound overage that Barlow allegedly landed amounted to five to eight fish.
                                                -2-
commercial fishing licenses would be suspended for a period of ten days, that he would be

absolved of any liability arising from the alleged violation, and that if Barlow violated a fishing

regulation in the future, DEM would impose a “first tier” penalty upon him, as if it were his first

violation. Additionally, the parties agreed that the consent agreement “shall have the full force

and effect of a final administrative adjudication, shall be deemed a final administrative decision

* * * and shall be fully enforceable in the Superior Court.” 2

          In 2010, Barlow applied to participate in DEM’s Summer Flounder Sector Allocation

Pilot Program, that would have allowed a daily catch of between 500 and 1,500 pounds of

summer flounder. That program would be lucrative for the fishermen, and Barlow expected to

earn between $30,000 and $40,000 by engaging in it. However, in a letter dated June 15, 2010,

DEM’s Division of Fish and Wildlife informed Barlow that he was ineligible to take part in the

pilot program because he had been assessed an administrative penalty for violating a state marine

fisheries regulation within the previous three years, referring to the 2008 consent agreement.

Barlow appealed the denial of his application to the AAD; a hearing was held on September 8,

2010. The AAD reversed the decision of DEM’s Division of Fish and Wildlife, finding that the

consent agreement was not an administrative penalty because it absolved Barlow of all liability

arising from the alleged violation of May 22, 2007. The AAD directed DEM’s Division of Fish

and Wildlife to allow Barlow to participate in the pilot program. The DEM then appealed the

decision of the AAD to the Superior Court under the Administrative Procedures Act, G.L. 1956

chapter 35 of title 42, and the court granted a stay of the AAD’s decision. A hearing was held on

February 18, 2011.




2
    The consent agreement is attached to this opinion.
                                                 -3-
       The trial justice sustained the appeal of the agency. In his decision, the trial justice held

that the AAD had erred when it concluded that the consent agreement was not an administrative

penalty. In doing so, he reasoned that the consent agreement had the same legal effect as an

order issued based on an administrative adjudication. He based that finding on language in the

consent agreement that stated that it “shall have the full force and effect of a final administrative

adjudication, shall be deemed a final administrative decision * * * and shall be fully enforceable

in the Superior Court * * *.” The trial justice also held that the denial of Barlow’s application to

participate in the pilot program was not an ex post facto law, nor did it result in an excessive

penalty. Accordingly, he reinstated DEM’s decision denying Barlow’s application. Barlow then

sought review in this Court.

                                                 II

                                       Standard of Review

       “This Court, in reviewing cases brought under the Administrative Procedures Act, G.L.

1956 chapter 35 of title 42, is limited to reviewing questions of law.” Foster-Glocester Regional

School Committee v. Board of Review, Department of Labor and Training, 854 A.2d 1008,

1012 (R.I. 2004). “On certiorari, this Court will not weigh the evidence,” instead “we limit the

scope of our review to the record as a whole to determine whether any legally competent

evidence exists therein to support the trial court’s decision or whether the trial court committed

error of law in reaching its decision.” Id. (quoting Rhode Island Temps, Inc. v. Department of

Labor and Training, Board of Review, 749 A.2d 1121, 1124 (R.I. 2000)). “This Court does not

substitute its judgment for that of the agency concerning the credibility of witnesses or the

weight of the evidence concerning questions of fact.” Id. (quoting Tierney v. Department of

Human Services, 793 A.2d 210, 213 (R.I. 2002)).



                                                -4-
       However, “[t]his Court reviews questions of law, including those premised on contract

interpretation, de novo.” Rodrigues v. DePasquale Building and Realty Co., 926 A.2d 616, 623

(R.I. 2007) (citing 1800 Smith Street Associates, L.P. v. Gencarelli, 888 A.2d 46, 52 (R.I.

2005)). Additionally, “[i]f a contract is clear and unambiguous, the meaning of its terms presents

a question of law for the court.” Rotelli v. Catanzaro, 686 A.2d 91, 94 (R.I. 1996) (citing Hodor

v. United Services Automobile Association, 637 A.2d 357, 359 (R.I. 1994)).

                                               III

                                           Discussion

                                                A

                                           Mootness

       There is a threshold issue in this case about whether the matter is justiciable under the

mootness doctrine. This is so because the program in which Barlow was denied participation

ended on December 31, 2010. This Court has held that “[a] case is moot if it raised a justiciable

controversy at the time the complaint was filed, but events occurring after the filing have

deprived the litigant of an ongoing stake in the controversy.” City of Cranston v. Rhode Island

Laborers' District Council Local 1033, 960 A.2d 529, 533 (R.I. 2008) (quoting Seibert v. Clark,

619 A.2d 1108, 1110 (R.I. 1993)). Barlow concedes that the matter before us is in fact moot

because the pilot program in which he was denied participation no longer exists. However, he

argues that this case fits squarely within the so-called “extreme public importance” exception to

the mootness doctrine, which we have recognized in the past. See id.

       The exception has a two-pronged test. First, a petitioner must demonstrate that the case

is of “extreme public importance.” Rhode Island Laborers' District Council Local 1033, 960

A.2d at 533. Circumstances that satisfy this first prong “will usually implicate ‘important



                                              -5-
constitutional rights, matters concerning a person's livelihood, or matters concerning citizen

voting rights.’” Id. at 533-34 (quoting Cicilline v. Almond, 809 A.2d 1101, 1106 (R.I. 2002)).

Second, the petitioner must demonstrate that “the controversy is capable of repetition and will

evade review.” Unistrut Corp. v. State Department of Labor and Training, 922 A.2d 93, 99 (R.I.

2007) (citing Krivitsky v. Town of Westerly, 823 A.2d 1144, 1146-47 (R.I. 2003)).

       Without question, this matter concerns the livelihood of Barlow, as well as other

fishermen who may be denied participation in similar fishing programs or may be denied fishing

licenses altogether because of alleged past transgressions that were resolved by consent

agreements. It is not seriously disputed that Barlow’s exclusion from the pilot program by DEM

denied him the opportunity to earn a substantial amount of money. In our opinion, the facts of

this case are sufficient to satisfy the first prong of the mootness exception.

       Turning to the second, it is our further opinion that this controversy is capable of

repetition, because DEM could reinitiate the pilot program or begin a similar program at any

point in time. As is implicit in its name, this was a “pilot” program, indicating that there is a

likelihood that others will follow. There is certainly the potential that DEM could exclude from

these programs anyone who has ever been assessed an administrative penalty. As a result,

Barlow and other similarly situated fishermen might never be allowed to participate in such

programs. Accordingly, it is clear to us that the present controversy is “capable of repetition.”

       Finally, these cases almost certainly will evade review because of the short duration of

the programs involved. The 2010 pilot program ran for only eight months. It would be highly

unlikely that an applicant could fully litigate any matter concerning such a program before it

expired, as was the case with Barlow. In consideration of the foregoing, we shall address the




                                                 -6-
merits of the matter because it is of extreme public importance and capable of repetition yet

evading review.

                                                 B

             Denial of Barlow’s Application to Participate in the Pilot Program

        Barlow was excluded from participating in the pilot program because of the consent

agreement that he entered into with DEM.          This Court applies the principles of contract

interpretation when reviewing a consent agreement. See Durfee v. Ocean State Steel, Inc., 636

A.2d 698, 703 (R.I. 1994) (holding that even after a consent agreement was adopted by a court, it

was “in the nature of a solemn contract” and was “‘to be construed as a contract using the rules

of construction applicable thereto’”, quoting Trahan v. Trahan, 455 A.2d 1307, 1310 (R.I. 1983)

and Black’s Law Dictionary 410-11 (6th ed. 1990)).

       The consent agreement says that if Barlow “violate[s] a Rhode Island statute or

regulation governing the taking of seafood products,” after the agreement’s execution date, DEM

“shall not impose a second tier penalty” as would be administered for second offenses but,

instead, “shall impose a first tier penalty” as if it were a first offense. See DEM Commercial

License Suspension and Revocation Regulations, Rule 6.

       Furthermore, it is meaningful that nowhere in the consent agreement does Barlow admit

to any guilt or liability about the alleged violation. To the contrary, the consent agreement is

crystal clear in its provision that it “shall operate to absolve [Barlow] from any liability arising

for all violations alleged by [DEM] relative to the” inspection of Barlow’s boat on May 22, 2007.

(Emphases added.). Black’s Law Dictionary 8 (9th ed. 2009) defines the word “absolve” to

mean “[t]o release from an obligation, debt, or responsibility.” In sum, the agreement cannot

properly be read as imposing liability for conduct when it specifically frees him from it.



                                               -7-
       As the AAD opinion says, “where a party is ‘absolved’ from all liability regarding one

incident, he cannot then be subject to future consequences in another incident to which he and

[DEM] have not otherwise expressly agreed.” The consent agreement, by its terms, was meant

to be a “resolution of all disputed issues in th[e] matter.” Barlow fulfilled all of his obligations

and fully complied with the terms of the agreement, yet DEM failed to uphold its end of the

bargain when it imposed additional consequences to which Barlow did not agree. Thus, DEM

wrongly used the consent agreement as a reason to bar him from the program. 3

                                                IV

                                            Conclusion

       For the reasons set forth in this opinion, we quash the judgment of the Superior Court.

The papers in the case are remanded to the Superior Court with our decision endorsed thereon

with directions to enter judgment in favor of the petitioner consistent with this opinion.




3
 Because we decide this case in Barlow’s favor solely on the ground that the consent agreement
was not an administrative penalty, we need not, and do not, reach Barlow’s other arguments.
                                                -8-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State of Rhode Island Department of Environmental Management
                      v. Administrative Adjudication Division.

CASE NO:              No. 2011-81-M.P.
                      (PC 10-5700)

COURT:                Supreme Court

DATE OPINION FILED: December 6, 2012

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia JJ.

WRITTEN BY:           Associate Justice Francis X. Flaherty

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Bennett R. Gallo

ATTORNEYS ON APPEAL:

                      For Petitioner: Merlyn P. O’Keefe, Esq.

                      For Respondent: Gary Powers, Esq.
