Janet Coit, in her capacity as Director of the Rhode Island Department of Environmental Management v. John H. Tillinghast , 91 A.3d 838 ( 2014 )

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.”
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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
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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.”
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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
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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.
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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
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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.
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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.”
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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).
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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.
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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.