Friedman and unreviewable decisions

The SJC just issued a Rule 80C decision, so of course I must comment upon it (Matt Manahan of Pierce Atwood also represented one of the interested parties):

The petitioners sought a modification of water quality certification requirements for dams with existing permits.  The BEP decided not to reopen. When the petitioners appealed, the SJC held that the BEP’s decision not to reopen was discretionary and unappealable.

"What?" you are crying, "no day in court?  How can this be?"  Well, yes, some regulatory decisions are just not appealable.  See, e.g., New England Outdoor Center v. Commissioner of Inland Fisheries & Wildlife, 2000 ME 66, ¶ 10, 748 A.2d 1009, 1013 (“The broad language of 5 M.R.S.A. § 8002(4) (defining final agency action) and 5 M.R.S.A. § 11001(1) (conferring jurisdiction on the Superior Court to review final agency action) must be read in light of the constitutional doctrine of separation of powers. The Legislature may not constitutionally confer on the judiciary a commission to roam at large reviewing any and all final actions of the executive branch. Some executive action is by its very nature not subject to review by an exercise of judicial power. Thus, even when an agency action is final, it does not follow that the action is subject to judicial review.”) (citations omitted).

I spoke about unreviewability in the seminar on Rule 80Bs and 80Cs a few weeks back. Usually these unreviewable decisions are like the one at issue in this DEP case – a decision not to do something.  Also falling into this category are decisions not to enforce.  One justification for this position is the concept of prosecutorial discretion.  See Salisbury v. Town of Bar Harbor, 2002 ME 13, ¶ 11, 788 A.2d 598, 601 Herrle v. Town of Waterboro, 2001 ME 1, ¶11, 763 A.2d 1159, 1162.    

There is a very practical side to this rule, however.  If someone can appeal a decision just by asking a regulatory body to do something whenever s/he feels like asking, e.g., revoking a permit, not only is that request often a backdoor effort to get around a time limit for objecting to the permit in the first place, see Fryeburg Water Co v. Town of Fryeburg, 2006 ME 31, ¶ 19, 893 A.2d 619, 623; Wright v. Town of Kennebunkport, 1998 ME 184, ¶ 6, 715 A.2d 162, 164-65, but both the regulatory bodies and courts would be inundated – there could be endless numbers of such requests.  It would be like my dog, Wotan, and his ball, with Wotan constantly wanting me to "throw the ball, throw the ball, throw the ball."  Wotan is always ready for another toss.  I’m sure some neighbors are never happy with a grant of a building permit, and would be off and running endlessly without the filter of a ceo.  To allow neighbors to appeal a ceo’s filtering would not only clash with prosecutorial discretion concepts, but would blanket the courts with suits that have no limits to them — no time limits, and, if the petitioners argue new circumstances, no res judicata limits.

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