MAINE SUPREME JUDICIAL COURT                                                       Reporter of Decisions
Decision: 2015 ME 128
Docket:   Kno-14-458
Argued:   September 17, 2015
Decided:  October 6, 2015

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



                                       BRIAN M. BAILEY

                                                   v.

                       DEPARTMENT OF MARINE RESOURCES

ALEXANDER, J.

         [¶1]    Brian M. Bailey appeals from a judgment of the Superior Court

(Knox County, Billings, J.) dismissing his M.R. Civ. P. 80C appeal from a decision

of the Maine Department of Marine Resources (DMR) setting his 2014 elver1

fishing quota at four pounds. See 12 M.R.S. §§ 6505-A(3-A), 6575-K (2014). The

basis for the quota was stated in a March 25, 2014, letter and confirmed by

issuance of a 2014 elver transaction card following a personal meeting between

Bailey and DMR officials on March 31, 2014.2

         [¶2] No appeal was filed within thirty days after Bailey’s March 31 receipt

of the 2014 elver transaction card. See 5 M.R.S. § 11002(3) (2014) (requiring that

   1
      Elvers are recently hatched eels that populate some Maine rivers in the spring and are in demand as
a delicacy in Asian seafood markets.
   2
      The record indicates some uncertainty as to whether the elver transaction card was issued after a
meeting on March 31 or April 30, 2014. At oral argument, counsel confirmed that the meeting occurred
and the elver transaction card was issued on March 31, 2014.
2

appeals of State administrative decisions must be filed within thirty days after

receipt of notice of final agency action). Instead, on May 1, 2014, Bailey, through

counsel, sent a letter to the Commissioner of Marine Resources requesting an

explanation of the quota decision. After the Commissioner responded, and after

the close of the 2014 elver season on May 31, 2014, Bailey filed this appeal on

July 10, 2014.

      [¶3] Before reaching the merits, we must examine whether this appeal is

moot because, regarding the 2014 elver season, there remains no “real and

substantial controversy, admitting of specific relief through a judgment of

conclusive character.” See Anthem Health Plans of Me., Inc. v. Superintendent of

Ins., 2011 ME 48, ¶ 5, 18 A.3d 824. Bailey contends that we must reach the merits

of the appeal because his 2014 quota will govern quotas assigned in future elver

seasons and because the 2014 elver transaction card lacked specific findings

beyond his catch limit, and thus did not constitute final agency action to start the

running of the time to file an appeal.

      [¶4]   There are three generally recognized exceptions to the mootness

doctrine that may justify addressing the merits of an otherwise moot issue on

appeal. Thus we may address the merits of an otherwise moot case if (1) sufficient

collateral consequences will result from the determination of the questions

presented so as to justify relief; (2) there exist questions of great public concern
                                                                                   3

that we address in order to provide future guidance; or (3) the issues are capable of

repetition but evade review because of their fleeting or determinate nature.

In re Christopher H., 2011 ME 13, ¶ 11, 12 A.3d 64. Because the 2014 quota may

govern quotas Bailey is allowed in 2016, and because the issue of whether the

elver transaction card constitutes final agency action is an issue capable of

repetition but evading review because of the short length of each elver season, the

issues before us present an exception to the jurisprudence that would ordinarily

require us to dismiss this appeal, and we proceed to the merits.

      [¶5] Pursuant to 5 M.R.S. § 8002(4) (2014), “final agency action” is defined

as an agency decision affecting the “legal rights, duties or privileges of specific

persons, which is dispositive of all issues, legal and factual, and for which no

further recourse, appeal or review is provided within the agency.” Bailey contends

that this definition requires that the agency decision include specific fact-findings

on the issues. All the definition requires, however, is that the agency decision,

here the elver fishing quota, resolve “all questions necessarily involved in the

underlying subject matter.”          Wheeler v. Me. Unemployment Ins. Comm’n,

477 A.2d 1141, 1146 (Me. 1984). In setting the quota for Bailey’s elver catch, the

decision reflected in the March 31 elver transaction card was dispositive of all

relevant legal and factual issues.
4

        [¶6] Contrary to Bailey’s assertion, DMR’s issuance of Bailey’s 2014 elver

transaction card on March 31, 2014, constituted a final agency action, and Bailey’s

appeal was, therefore, not timely filed. The Superior Court properly dismissed the

action.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Joseph W. Baiungo, Esq., Belfast, for appellant Brian M. Bailey

        Janet T. Mills, Attorney General, Emily K. Green, Asst. Atty.
        Gen., and Mark A. Randlett, Asst. Atty. Gen., Office of the
        Attorney General, Augusta, for appellee Maine Department of
        Marine Resources


At oral argument:

        Joseph W. Baiungo, Esq., for appellant Brian M. Bailey

        Emily Green, Asst. Atty. Gen., for appellee Maine Department
        of Marine Resources



Knox County Superior Court docket number AP-2014-17
FOR CLERK REFERENCE ONLY
