                                                                Supreme Court

                                                                No. 2013-197-Appeal.
                                                                (PC 97-592)


Janet Coit, in her capacity as Director of   :
    the Rhode Island Department of
      Environmental Management

                    v.                       :

        John H. Tillinghast et al.           :




             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. 2013-197-Appeal.
                                                                  (PC 97-592)


    Janet Coit, in her capacity as Director of   :
        the Rhode Island Department of
          Environmental Management

                        v.                       :

           John H. Tillinghast et al. 1          :


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

                                             OPINION

         Justice Flaherty, for the Court. Bowdish Lake Camping Area is located in the bucolic

northwest corner of Rhode Island. Unfortunately, however, a long-simmering dispute between

the parties in this case has been in marked contrast to the tranquil natural environment. The

plaintiff, Janet Coit, named in her official capacity as director of the Rhode Island Department of

Environmental Management (DEM), appeals from an order of the Superior Court in favor of the

defendants, John, Alfred, and Anna Tillinghast adopting the report of a master and ordering that

the master’s findings be implemented. 2 The root of the dispute arises from the operation of the



1
  At the time the present action was filed in Superior Court, Timothy R.E. Keeney was the
director of the Rhode Island Department of Environmental Management (DEM). The caption
has been revised to reflect the current director pursuant to Rule 25(d) of the Superior Court Rules
of Civil Procedure.
2
  In their opposition to the contempt motion in the Superior Court, defendants claimed that
Alfred Tillinghast had passed away “several years” previously. The defendants also disclosed
that John Tillinghast had not been a signatory to the “Consent Agreement” that is at issue in this
case. Nonetheless, we shall continue to refer to the parties as “defendants” or “the Tillinghasts.”


                                                 -1-
Bowdish Lake Camping Area in Glocester and Burrillville, and more specifically, from the

establishment of five campsites located in Burrillville near Wilbur Pond.               To assist in

ameliorating the contentious relationship between the parties, a justice of the Superior Court

appointed a master to resolve the issues in dispute, issues that stem from a consent agreement

signed by the parties in 1998. This case came before the Supreme Court for oral argument on

May 13, 2014, pursuant to 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 deny and dismiss the appeal because it is not

properly before us.

                                          Facts and Travel

          According to defendants, in the early 1970s the Tillinghasts worked with the United

States Soil Conservation Service to develop Bowdish Lake Camping Area.                  The facility,

consisting of 400 campsites in Glocester and Burrillville, opened in 1973. From that point on,

however, the sailing was less than smooth. In 1975, storm clouds first appeared after DEM

issued the first of many notices of violations to defendants for alleged transgressions of G.L.

1956 § 2-1-21, a statute within the Freshwater Wetlands Act. 3 Over a twenty-five-year period, a



3
    General Laws 1956 § 2-1-21 says, in relevant part,
                “(a)(1) No person, firm, industry, company, corporation, city,
                town, municipal or state agency, fire district, club, nonprofit
                agency, or other individual or group may excavate; drain; fill;
                place trash, garbage, sewage, highway runoff, drainage ditch
                effluents, earth, rock, borrow, gravel, sand, clay, peat, or other
                materials or effluents upon; divert water flows into or out of; dike;
                dam; divert; change; add to or take from or otherwise alter the
                character of any fresh water wetland as defined in § 2-1-20 without


                                                 -2-
pattern developed whereby DEM would notify the Tillinghasts of alleged environmental

violations, both formally and informally, defendants would respond with an explanation, and

DEM would not take further action for several years.

       On February 5, 1997, after defendants allegedly violated a DEM-issued cease-and-desist

order by continuing to conduct dredging activity on the lake bed of Bowdish Lake, DEM filed

the instant action in Superior Court. In their answer, defendants asserted that their actions were

predicated on a written determination by DEM in 1974 that the dredging did not violate the

Freshwater Wetlands Act. On March 25, in an apparent resolution of the conflict, the parties

signed a consent agreement, in which the Tillinghasts agreed that they would “not undertake any

future dredging activity in Bowdish Lake without prior application and written approval of

[DEM].” Furthermore, the parties agreed that DEM’s February 1974 permit “as it relate[d] to

any and all dredging rights, [wa]s [t]hereby null and void.” It is significant that the March 1997

consent order resolved only a handful of the many ongoing issues between the parties.

       In an effort to resolve all the outstanding points of contention, some of which involved

controversies that spanned two decades, the parties executed a second consent agreement on

August 5, 1998. 4 That agreement addressed four specific alleged violations and outlined the

actions the Tillinghasts would take to remedy them. One of those violations, which is the subject

of this appeal, concerned the five campsites at Wilbur Pond. The defendants agreed that by June

1999, they would restore the vegetation that had been cleared within a fifty-foot zone of the

pond, unless defendants applied for permission, and received approval, to have the campsites

remain within the perimeter. The agreement acknowledged that defendants had developed the


               first obtaining the approval of the director of the department of
               environmental management.”
4
  The 1998 consent agreement specified that the Superior Court would “retain[] jurisdiction to
enforce the provisions of this [o]rder.”


                                              -3-
campsites “under what [they] believed was a valid permit issued before regulations were

enacted.” 5

        Unfortunately, the 1998 consent agreement did not achieve the harmony that it sought. In

March 2000, DEM filed a motion to adjudge defendants in contempt for failing to implement

certain aspects of the 1998 order. In May of that year, a justice of the Superior Court ordered

defendants to restore the vegetation within fifty feet of Wilbur Pond, which was the location of

the five campsites, or submit an application to DEM to alter the wetlands as had been agreed to

in the 1998 agreement. In 2008, DEM filed a new motion to adjudge defendants in contempt for

failure to comply with the 1998 consent agreement. Finally, in September 2009, the parties

executed a new consent order in which they agreed to the appointment of Scott Rabideau as

master to resolve “all issues relating to and contained in th[e] * * * [c]onsent [a]greement dated

July 31, 1998 between the parties, and [o]rder of May 3, 2000.” 6 In accordance with the parties’

agreement, the court appointed the master and ordered him to “prepare a report and make

recommendations to the [c]ourt,” setting forth findings of fact and conclusions of law, if

required. The master was further instructed to submit a draft report to both parties for comment

before submitting a final report to the court.



5
  Although the General Assembly passed G.L. 1956 part 2 of chapter 1 of title 2, the Freshwater
Wetlands Act, in 1971, the authority to promulgate regulations in accordance with the act was
granted as part of a 1974 amendment. Compare P.L. 1971, ch. 213, § 1 (establishing “Fresh
Water Wetlands” Act) with P.L. 1974, ch. 197, § 1 (amending “Fresh Water Wetlands” to
include authority to promulgate rules and regulations).
6
  The 2009 consent order specifically listed the following as issues to be decided by the master:
               “All issues raised by Plaintiff in its Motion to Adjudge Defendant
               in Contempt; effect of the April 4, 1973 letter issued in application
               F-401, pertaining to clearing swamp and damming streams to
               create pond; beach maintenance and dredging issues including
               application 01-0089 as the same are still in dispute; together with
               any other issue this [c]ourt deems proper for resolution at this
               time.”


                                                 -4-
       The master submitted the draft report in January 2010. Not surprisingly, given the

litigious history of this matter, DEM filed various objections. After the court heard arguments in

February and March 2010, the trial justice ordered either the Tillinghasts, the master, or both, to

restore the wetlands in the vicinity of the five campsites around Wilbur Pond and ordered that the

campsites remain closed until the restoration was complete. The master was also required to

submit his report and recommendation to DEM as an application to alter the wetlands around the

campsites. DEM was to consider this application in accordance with its regulations and render a

decision, which would be reviewed by the trial justice. The 2010 order further specified that the

Superior Court would retain jurisdiction in this matter “at all times.”

       On June 10, 2010, the master filed an application with DEM, which included the same

analysis and recommendations as the draft report. The application concluded that, because of the

limited scope and location of the campsites, a minimum twenty-five-foot perimeter of wetland

around Wilbur Pond, and the vegetative cover around and between the campsites, the five

campsites did “not represent a random, unnecessary, or undesirable disturbance to state

jurisdictional freshwater wetlands.” After conducting its review, DEM denied the application on

August, 30, 2011. DEM concluded that the five campsites were undesirable and against the

public interest, and noted that the application did not demonstrate how adverse environmental

impacts would be “avoided to the maximum extent possible.”

       The defendants then filed a motion asking that the trial justice approve the master’s

report, and the court heard argument relating to the appropriate burden of proof. The defendants

argued that, according to Rule 53(e)(2) of the Superior Court Rules of Civil Procedure, in

nonjury actions, the trial justice “shall accept the master’s findings of fact unless clearly




                                                -5-
erroneous.” 7 DEM retorted that the master’s submission was not the type of report that resides

within the scope of Rule 53 because it was not prepared and filed with the court, but with DEM,

and therefore, it “should be reviewed in accordance with the standards of [DEM’s] regulations

and with the [s]tate’s Freshwater Wetlands Act[.]” However, the trial justice ruled that the

master’s application to DEM would be considered as the proposed final report and that DEM

would be saddled with the burden to prove that the master’s findings of fact were clearly

erroneous.

       On August 30 and 31, 2012, the court conducted an evidentiary hearing with respect to

the master’s application. Martin Wencek, a supervisor of DEM’s freshwater wetlands program,

testified that he reviewed the master’s application and that he, along with other senior staff, made

the decision to deny it. Wencek said that he had concluded that the five campsites would “result

in loss of wildlife habitat and disturbance to wildlife,” which “would change the character of the

existing wetland.” Wencek also testified that the application lacked a substantive exploration of

alternatives that would avoid any impact on the wetlands as required under 12-190-028 R.I. Code

R. 10.02D.(1) of DEM’s rules and regulations governing the administration and enforcement of

the Freshwater Wetlands Act. 8




7
  Rule 53(e)(1) of the Superior Court Rules of Civil Procedure says, “The master shall prepare a
report upon the matters submitted to the master by the order of reference and, if required to make
findings of fact and conclusions of law, the master shall set them forth in the report.”
8
  12-190-028 R.I. Code R. 10.02D.(1), entitled “Application to Alter Freshwater Wetland,”
includes the following:
                “Avoidance: All persons must satisfactorily demonstrate to the
                [d]epartment in the form of a written narrative that all probable
                impacts to freshwater wetlands functions and values have been
                avoided to the maximum extent possible. The written narrative
                must describe what steps were taken to avoid impacts to freshwater
                wetlands.”
The rule continues to list six minimum areas that the applicant must consider and address.


                                               -6-
       Rabideau, the master, testified that the 2010 consent agreement directed him to oversee

the restoration of the five campsites and to submit an application to DEM to alter the freshwater

wetlands. Rabideau indicated that DEM had availed itself of the opportunity to inspect the

restoration and that DEM had determined that the wetlands around the five campsites had been

restored to its satisfaction.    He also claimed that he had addressed all portions of Rule

10.02D.(1), but he had not included an alternative-location analysis for the campsites because the

2010 agreement instructed him to file an application to alter the freshwater wetlands for the

specific perimeter where the five campsites were located.

       On March 20, 2013 the trial justice issued a bench decision on defendants’ motion that he

accept the report of the master.      The trial justice concluded that the master’s report and

accompanying plans constituted findings of fact that would be upheld unless they were shown to

be clearly erroneous, in accordance with Rule 53(e)(2). He asserted that he believed that this

case, distilled to its essence, amounted to a difference of opinion between the master and DEM.

He then noted that such a difference, in the context of an administrative appeal, would normally

be resolved in favor of the agency. However, the trial justice reasoned that because this was not

an administrative appeal, DEM bore the burden of proving that the master’s findings were

clearly erroneous, noting that the parties had agreed to the appointment of the master to resolve

all issues between them. The trial justice held that because DEM had failed to satisfy its burden,

he would adopt the master’s report, and he ordered that the master’s findings be implemented.

The order memorializing the trial justice’s ruling was filed on April 10, 2013. DEM filed a

timely appeal to this Court. 9




9
  We note that, generally, appellate review of denials by administrative agencies are heard
pursuant to G.L. 1956 § 42-35-15 under the Administrative Procedures Act (APA). The 2010


                                              -7-
       The parties came before a single justice of this Court pursuant to Article I, Rule 12A(3)

of the Supreme Court Rules of Appellate Procedure on February 10, 2014. As a result of that

conference, the parties were directed to file supplemental memoranda to specifically address the

issue of whether the “[o]rder of April 10, 2013 was interlocutory, and thus not appealable.”

Before this Court, DEM argues that the order is appealable because the master decided to address

each of the four issues between the parties in turn by publishing separate reports pertaining to

each. DEM also argued that, even if the order were determined to be interlocutory, the Court

should decide the appeal nonetheless because the “five-campsite” issue has sufficient finality and

because the 2013 order creates imminent and irreparable harm that may impact other orders in

the case. We disagree. For the reasons outlined below, we conclude that the April 2013 order is

interlocutory and therefore not properly before us.

                                             Discussion

       We must first address whether this appeal is properly before the Court at this time. The

Tillinghasts maintain that it is not; they argue that the appeal is interlocutory because the April

2013 order is not a final judgment, but merely the first action by the master to address the

remaining issues between the parties. DEM concedes, both in its written submissions and at oral

argument, that there are three outstanding issues pending in Superior Court that the parties

agreed the master would resolve. However, DEM contends that Rabideau’s decision to handle

each of the four issues separately resulted in a final resolution after a hearing on the merits on the

campsites issue and that, consequently, the April 2013 order should not be considered

interlocutory.




order said that the Superior Court retained jurisdiction at all times; however, the retention of
jurisdiction would not have precluded the trial justice from deciding the case under the APA.


                                                -8-
          We have held that “[i]nterlocutory orders are those that are provisional or temporary, or

that decide some intermediate point or matter but are not a final decision of the whole matter.”

Simpson v. Vose, 702 A.2d 1176, 1177 (R.I. 1997) (mem.). “Generally, interlocutory orders are

not subject to review unless the order or decree falls within one of the exceptions set forth in

G.L. 1956 § 9-24-7 * * * .” 10 Cayer v. Cox Rhode Island Telecom, LLC, 85 A.3d 1140, 1146

(R.I. 2014) (quoting Chiaradio v. Falck, 794 A.2d 494, 496 (R.I. 2002)). Moreover, there is a

second type of exception that is “judicial in origin.” Boranian v. Richer, 983 A.2d 834, 837 (R.I.

2009). This familiar exception says that “an order may fall within the ambit of our judicially

created rule that permits review of an interlocutory order that has such an element of finality as

to require immediate review by this Court to avoid possible injurious consequences.” Chiaradio,

794 A.2d at 496 (citing McAuslan v. McAuslan, 34 R.I. 462, 472, 83 A. 837, 841 (1912)). In

those situations, we will review interlocutory orders “before the case is finally terminated in

order to prevent clearly imminent and irreparable harm.” Town of Lincoln v. Cournoyer, 118

R.I. 644, 648, 375 A.2d 410, 412-13 (1977). In Ross v. Mencoff, 82 R.I. 461, 465, 111 A.2d

356, 358 (1955), the complainant appealed the denial of a contempt motion for failure to produce

records to a temporary receiver whom the trial justice appointed. We held that because the case

required further proceedings and did not meet any of the above-mentioned exceptions, the appeal

was not properly before the Court. Id. at 465, 111 A.2d at 358.



10
     General Laws 1956 § 9-24-7 provides as follows:
                        “Whenever, upon a hearing in the [S]uperior [C]ourt, an
                injunction shall be granted or continued, or a receiver appointed, or
                a sale of real or personal property ordered, by an interlocutory
                order or judgment, or a new trial is ordered or denied after a trial
                by jury, an appeal may be taken from such order or judgment to the
                [S]upreme [C]ourt in like manner as from a final judgment, and the
                appeal shall take precedence in the [S]upreme [C]ourt.”



                                                 -9-
       After a thorough review of the record, we reach a similar conclusion here. The order that

DEM appealed is not final; it is merely an order confirming the master’s report and does not set

forth the ultimate resolution of the parties’ disputes. It is significant that this report is the first

action undertaken by the master with respect to the four issues that the parties agreed that he

would resolve. We find no precedent, and none is provided by DEM, to support the proposition

that because the master decided to address each of these complicated points separately, the case

has somehow become “bifurcated” into separate and distinct cases to such a degree that would

render the adoption of his report on the first issue to be the equivalent of a final judgment. In our

opinion, the 2013 order does not possess a sufficient element of finality to be appealable and is

thus interlocutory.

       In the alternative, DEM invites this Court to invoke the holding of McAuslan because the

2013 order raises the specter of imminent and irreparable harm, and as a result, it should be

reviewed now. DEM argues that the master’s decision with respect to the five campsites has an

impact on other environmental issues in the case, and it urges that without this Court’s review,

DEM will not be able to effectively protect Rhode Island’s natural resources at the Bowdish

Lake Camping Area. However, DEM offers no explanation of what grave harm might come

from the recognition of five campsites that have been in place for nearly four decades. We can

discern no imminent and irreparable harm from the master’s approval of the five campsites

because the trees and other vegetation at issue were cleared long ago. In our opinion, there is

simply no need to hear this appeal now, and to do so when there are remaining issues between

these profusely litigious parties would encourage the sort of piecemeal adjudication of disputes

that the final-judgment rule is designed to avoid. See Rhode Island Economic Development

Corp. v. The Parking Co., L.P., 892 A.2d 87, 95 (R.I. 2006).




                                                - 10 -
                                          Conclusion

       For the foregoing reasons, the appeal of the interlocutory order confirming the master’s

report is denied and dismissed. The papers are remanded to the Superior Court.




                                             - 11 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Janet Coit, in her capacity as Director of the Rhode Island
                      Department of Environmental Management v. John H. Tillinghast
                      et al.

CASE NO:              No. 2013-197-Appeal.
                      (PC 97-592)

COURT:                Supreme Court

DATE OPINION FILED: June 9, 2014

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 Michael A. Silverstein

ATTORNEYS ON APPEAL:

                      For Plaintiff: Marisa A. Desautel, Esq.

                      For Defendants: Nicholas Gorham, Esq.
