Providence County Superior Court
For Plaintiff Robert J. Caron, Esq.
For Defendant Gary E. Powers, Esq.
This matter is before this Court on an appeal from an administrative decision of the Department of Environmental Management (DEM) that denied Appellant Daniel Ferguson's (Appellant) application for renewal of Summer Flounder Exemption #126. Appellant also seeks declaratory relief. Jurisdiction is pursuant to G.L. 1956 §§ 42-35-15 and 42-35-7. For the reasons set forth in this Decision, this Court affirms the decision below.
I Facts & Travel
Appellant, a resident of Massachusetts, owned a fishing vessel named the Dan Mullins III MA #MS7443AS (vessel). Compl. Facts ¶ 2. On March 20, 2009, Appellant entered into a Purchase and Sale Agreement with the Cape Cod Commercial Hook Fisherman's Association (Association) to transfer ownership of the vessel. Id. ¶ 1. In addition to the vessel, the Purchase and Sale contemplated the transfer of two Northeast Federal Fishery Permits: Permit A, Northeast Federal Fishery Permit No. 150573, a Limited Access General Category IFQ scallop permit from the vessel; and Permit B, Northeast Federal Fishery Permit No. 150573, a limited access fishing rights and fishing permit history in the Northeast Multi-species, Summer Flounder, Black Sea Bass, Lobster, and Scup (collectively, federal permits). Id. ¶¶ 3-4. Also on March 20, 2009, Appellant signed a Bill of Sale conveying the vessel to the Association with "ALL fishery permits, licenses, and fishing catch history by federal or state governments." Id. ¶ 6; Ferguson Mot. Summ. J. Ex. B, Bill of Sale at 3.
The U.S. Department of Commerce, National Marine Fisheries Service, was notified of the sale in a letter dated March 20, 2009. Compl. Facts ¶ 8. On May 18, 2012, the DEM sent Appellant a letter notifying him of its determination that Appellant divested his interest in his Summer Flounder Exemption #126 (State Permit) through the March 20, 2009 sale. The DEM concluded, based on the language of the notification it received of the sale, that the State Permit was transferred to the Association with Appellant's federal permits. Id. ¶ 9.
Appellant appealed the DEM's determination to the DEM Administrative Adjudication Division (Division) on June 13, 2012, along with a document submitted by the Association on June 6, 2012, stating that the Association did not intend to receive the State Permit in the sale of the vessel and the federal permits. Id. ¶¶ 10-12. In lieu of a hearing, the parties agreed to submit cross-motions for summary judgment to the Division Hearing Officer, in accordance with §§ 42-17.1-1 et seq. and §§ 42-35-1 et seq.
The Division issued a Decision and Order (Order), authored by the Hearing Officer, on June 10, 2013, concluding that there was no genuine dispute of material facts and that the Division reasonably relied on the Bill of Sale dated March 20, 2009 in concluding that Appellant had transferred his State Permit to the Association. Order at 4. The Hearing Officer declined to consider Appellant's constitutional challenges, noting that his tribunal did not have jurisdiction over such constitutional issues. Id. at 3.
Appellant filed a timely appeal of the Division's decision on July 9, 2013. Appellant also brings a claim for declaratory judgment seeking invalidation of Rhode Island Marine Fisheries Statutes and Regulations § 7.7.10(b)(2) on constitutional grounds.
Standard of Review
This Court's review of the decisions of administrative agencies such as the DEM is governed by the Rhode Island Administrative Procedures Act, as set forth in §§ 42-35-1 et seq. See Rossi v. Emps.' Ret. Sys. of R.I., 895 A.2d 106, 109 (R.I. 2006). The ...