MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision: 2013 ME 114
Docket:   Ken-12-574
Argued:   October 8, 2013
Decided:  December 24, 2013

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


                          THANKS BUT NO TANK et al.

                                          v.

              DEPARTMENT OF ENVIRONMENTAL PROTECTION

JABAR, J.

         [¶1] Thanks But No Tank and several individuals (collectively, TBNT)

appeal from a judgment entered in the Superior Court (Kennebec County, Mills, J.)

affirming the decision of the Department of Environmental Protection to grant

DCP Midstream Partners, LP, a permit to construct a liquefied petroleum gas

terminal in Searsport. See 5 M.R.S. § 11007(4)(A) (2012); M.R. Civ. P. 80C.

After the Superior Court entered its judgment, DCP voluntarily surrendered the

permit that is the subject of this appeal and filed a motion to dismiss this appeal as

moot, which we granted on May 9, 2013.           See 38 M.R.S. § 344(10) (2012)

(providing that a licensee may voluntarily surrender a permit with Department

approval); 2 C.M.R. 06 096 002-10 § 23 (2013). TBNT argues that we should

vacate the Superior Court’s judgment because it is now moot. Additionally, TBNT

argues that it is a prevailing party pursuant to 14 M.R.S. § 1501 (2012) and is
2

therefore entitled to recover the costs of its appeal. We disagree and dismiss this

appeal without awarding costs.

                                 I. BACKGROUND

      [¶2]   In May 2011, DCP applied to the Department of Environmental

Protection for a permit to construct a liquefied petroleum gas terminal near

Searsport.   According to the Department’s findings, the $40 million-project

proposal featured the installation of a 22.7 million-gallon propane storage tank, a

pier equipped to ship up to about 2.5 million barrels of liquefied petroleum gas

annually, and stations for loading fuel trucks and railcars. To complete the project,

DCP sought a permit from the Department pursuant to the Natural Resources

Protection Act to construct a pipeline over a portion of coastal wetland, alter about

two acres of forested freshwater wetland, and install a culvert to divert a stream on

the property. See 38 M.R.S. §§ 480-D, 480-X (2012); 2 C.M.R. 06 096 310-1,

-3 to -6 §§ 2, 4-5 (2009). DCP 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), 483-A(1) (2012), and sought a water quality certification pursuant to the

Clean Water Act, see 33 U.S.C.A. § 1341 (West, Westlaw through P.L. 113-52).

      [¶3] In October 2011, the Department approved the permit. Landowners

and residents of Searsport and neighboring Stockton Springs, some of whom

formed the group “Thanks But No Tank,” sought review of the Department’s
                                                                                 3

decision in the Superior Court, raising numerous issues relating to the

Department’s conclusions that (1) DCP had met the visual impact standards;

(2) projected impacts on natural resources from potential accidents met statutory

requirements; (3) the project would meet air emissions standards, despite the

Department’s failure to consider auxiliary emissions sources; and (4) the project

would meet noise standards.         DCP countered that at least nineteen of the

twenty-one members of TBNT were not abutting property owners and thus lacked

standing to challenge the permit.

      [¶4] The Superior Court noted in its November 13, 2012, decision that the

evidence in the record was “insufficient to allow the court to determine whether

TBNT has standing,” and it dismissed the case with respect to the disputed

nineteen individuals. However, the court concluded that the standing issue was not

“fatal” to its review of the merits with respect to the two undisputedly abutting

landowners. The court affirmed the Department’s decision, concluding that the

Department did not err in making its factual findings or in applying the relevant

statutory standards and regulations. TBNT timely appealed pursuant to 5 M.R.S.

§ 11008 (2012) and M.R. App. P. 2(b)(3).

      [¶5] On April 5, 2013, four months after TBNT filed its notice of appeal,

DCP petitioned the Department to surrender the permits that are the subject of this

case. See 38 M.R.S. § 344(10); 2 C.M.R. 06 096 002-10 § 23. In its petition for
4

surrender, DCP stated, “[T]he Town of Searsport Planning Board has indicated that

it will not approve the Project as currently configured. As a result DCP has

withdrawn its municipal application and determined not to proceed with the

Project.” The Department granted DCP’s petition, noting that DCP had not yet

commenced any on-site activities.

      [¶6] On April 18, four days after the Department granted the petition, the

Department and DCP moved to dismiss this appeal as moot. TBNT responded,

urging us to vacate the judgment of the Superior Court because it is now moot or,

alternatively, to determine that the Department lacked jurisdiction to accept DCP’s

petition to surrender the permit given the pending appeal from the judicial review

pursuant to 5 M.R.S. § 11008 and M.R. Civ. P. 80C. See York Hosp. v. Dep’t of

Health & Human Servs., 2008 ME 165, ¶¶ 33-36, 959 A.2d 67 (stating that an

agency lacks jurisdiction to make certain modifications to a decision that is the

subject of a pending judicial review). On May 9, 2013, we dismissed this appeal

as moot except with regard to two issues for which we requested briefing: (1)

whether we should vacate the Superior Court’s judgment because DCP’s voluntary

surrender of its permit rendered the case moot, and (2) whether TBNT is entitled to

costs as a prevailing party pursuant to 14 M.R.S. § 1501.
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                                II. DISCUSSION

A.    Vacatur for Mootness

      [¶7] TBNT argues that, as a matter of equity, we should vacate the Superior

Court’s judgment without considering the merits of the appeal because this case is

now moot. TBNT urges us to vacate the judgment of the trial court in a case that

has become moot while the appeal was pending as a result of “happenstance,” or a

circumstance outside the control of either party, arguing that this approach has

been adopted by the United States Supreme Court.           See United States v.

Munsingwear, Inc., 340 U.S. 36, 40 (1950).

      [¶8]   In Munsingwear, the federal government had filed two separate

lawsuits alleging that, during two separate time periods, Munsingwear had violated

a regulation that fixed the maximum price of goods that it sold. Id. at 37. In the

first case, the United States District Court concluded that Munsingwear had

complied with the pricing regulations. Id. While the Government’s appeal was

pending, the commodity involved was “decontrolled,” and the appeal was

dismissed as moot. See Fleming v. Munsingwear, Inc., 162 F.2d 125, 127-28

(8th Cir. 1947).

      [¶9] Munsingwear then moved to dismiss the second case, arguing that the

judgment in the first case applied to the same parties, involved the pricing of

commodities controlled by the same regulation, and had not been modified, and,
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therefore, it barred the parties from relitigating the merits of whether

Munsingwear’s sales violated the regulations in the second case. Munsingwear,

Inc., 340 U.S. at 37-38. As the Supreme Court later noted, the second case “f[ell]

squarely within the classic statement of the rule of res judicata.” Id. The motion

to dismiss was granted.      See id. at 37; United States v. Munsingwear, Inc.,

178 F.2d 204, 209 (8th Cir. 1949) (affirming the District Court’s dismissal).

       [¶10] On appeal from that dismissal, the Government urged the Supreme

Court to make an exception to the res judicata doctrine because a change in the

law, an action outside of its control, deprived it of an appeal on the merits.

Munsingwear, Inc., 340 U.S. at 39.        The Supreme Court determined that the

appropriate remedy was not an exception to the rule of res judicata but rather

vacatur of the lower court judgment in the first case because it was rendered moot.

Id. at 39-41. The Court noted,

       That procedure clears the path for future relitigation of the issues
       between the parties and eliminates a judgment, review of which was
       prevented through happenstance. When that procedure is followed,
       the rights of all parties are preserved; none is prejudiced by a decision
       which in the statutory scheme was only preliminary.

Id. at 40.

       [¶11]   Nearly twenty-five years later, the Supreme Court clarified its

reference to “happenstance,” stating that it “must be understood as an allusion to

this equitable tradition of vacatur. A party who seeks review of the merits of an
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adverse ruling, but is frustrated by the vagaries of circumstance, ought not in

fairness be forced to acquiesce in the judgment.” U.S. Bancorp Mortg. Co. v.

Bonner Mall P’ship, 513 U.S. 18, 25 (1994).         However, the Bancorp Court

explained that the party requesting vacatur must demonstrate “more than that”; the

party seeking to vacate a lower court’s judgment must demonstrate “equitable

entitlement to the extraordinary remedy of vacatur.” Id. at 26. The Court indicated

that it would “take account of the public interest” when asked to vacate a court’s

judgment. See id. at 26-27.

      [¶12] We agree with this approach and conclude that even if TBNT could

demonstrate that review of this case was prevented through happenstance, it has

not met its burden of demonstrating an entitlement to vacatur. See id. at 26. First,

TBNT has not demonstrated that it would be precluded by the rule of res judicata

from litigating similar issues. Cf. Munsingwear, 340 U.S. at 38. Second, TBNT

has not demonstrated a public interest in vacating the judgment of the Superior

Court. TBNT argues that the court’s decision is “preliminary” because TBNT was

unable to appeal the judgment and, therefore, “the decision [should] be allowed

neither preclusive nor precedential effect.” However, inability to appeal, without

more, is insufficient to warrant a public interest in vacatur of a moot judgment.

The assertion that we should vacate a court’s judgment because it might have been

overturned on appeal is insufficient to warrant the application of this
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“extraordinary” equitable remedy. See Bancorp, 513 U.S. at 26, 28 (“We . . .

assert the inappropriateness of disposing of cases, whose merits are beyond judicial

power to consider, on the basis of judicial estimates regarding their merits.”).

Therefore, we dismiss this appeal and decline to vacate the judgment of the

Superior Court.

B.    Costs

      [¶13] TBNT argues that it is a prevailing party pursuant to 14 M.R.S.

§ 1501 and M.R. App. P. 13(a) because its actions in opposing the conditional use

permit led to the Searsport Planning Board’s decision to deny the permit, which

ultimately resulted in this appeal becoming moot. Title 14 M.R.S. § 1501 provides

in relevant part: “In all actions, the party prevailing recovers costs unless otherwise

specially provided.” We apply a functional analysis to determine which party

“prevailed.”   Flaherty v. Muther, 2011 ME 32, ¶ 89, 17 A.3d 640.               “By a

‘functional analysis’ we mean[] that one must look at the lawsuit as a whole to

determine which party was the ‘winner’ and which the ‘loser.’” Dodge v. U.S.

Servs. Auto. Ass’n, 417 A.2d 969, 975 (Me. 1980) (quoting Inhabitants of the Town

of Sabattus v. Bilodeau, 395 A.2d 123, 124 (Me. 1978)). “[T]he determination of a

successful party . . . is to be based upon success upon the merits . . . .” Hoitt v.

Hall, 661 A.2d 669, 674 (Me. 1995) (quotation marks omitted).
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        [¶14] This case was mooted pending appeal, and the only evidence in the

record about the reasons that led DCP to surrender the permit are in DCP’s petition

to surrender, where DCP stated that its decision was “a result” of “the Town of

Searsport Planning Board[’s] . . . indicat[ion] that it will not approve the Project as

currently configured.”         The connection between the decision by the Searsport

Planning Board to deny a conditional use permit and the merits of this appeal—

concerning the decision by the Department of Environmental Protection to grant an

environmental permit—is too tenuous to sustain an award of costs.1 Rather, TBNT

has “obtained precisely nothing that [it] could not have had without [this]

litigation.” Dodge, 417 A.2d at 975. Therefore, it is not a “prevailing party”

within the meaning of 14 M.R.S. § 1501.

        The entry is:

                        Appeal dismissed and costs denied.




   1
       We also decline to address the catalyst theory, which provides that a party may be considered
“prevailing” when it “achieved the desired result because [it] brought about a voluntary change in the
defendant’s conduct.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res.,
532 U.S. 598, 600 (2001), superseded by statute on other grounds, OPEN Government Act of 2007,
Pub. L. No. 110–175, § 4, 121 Stat. 2524, 2525 (codified at 5 U.S.C.A. § 552(a)(4)(E)(ii) (West, Westlaw
through P.L. 113-52)); see also Doe I v. Williams, 2013 ME 24, ¶¶ 82-83, 61 A.3d 718 (declining to
address the catalyst theory where a party’s victory stemmed from changes in legislation, rather than as a
result of the litigation).
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On the briefs:

        Stephen F. Hinchman, Esq., and Kimberly J. Ervin Tucker, Esq., Law
        Offices of Stephen F. Hinchman, LLC, West Bath, for appellants Thanks
        But No Tank et al.

        James T. Kilbreth, Esq., Drummnd Woodsum, Portland, for appellees DCP
        Midstream Partners, LP

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


At oral argument:

        Stephen F. Hinchman, Esq., for appellants Thanks But No Tank, et al.

        Adrianne E. Fouts, Esq., Drummond Woodsum, for appellees DCP
        Midstream Partners, LP

        Margaret Bensinger, Asst. Atty. Gen., for appellee Maine Department of
        Environmental Protection



Kennebec County Superior Court docket number AP-11-58
FOR CLERK REFERENCE ONLY
