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Sullivan v. Rhode Island Department of Environmental Management

Superior Court of Rhode Island, Providence

February 27, 2019


          For Plaintiff: Peter K. Sullivan, pro se

          For Defendant: Christina A. Hoefsmit, Esq.


          MATOS, J.

         Before this Court is Peter K. Sullivan's (Appellant) appeal of the Rhode Island Department of Environmental Management's (DEM) decision denying his application to renew his Multi-Purpose Fishing License. The DEM Office of Boat Registration and Licensing (the Division) denied Appellant's renewal application on the basis that his request was not timely and that he failed to provide proof of his medical hardship before his license expired. Jurisdiction is pursuant to G.L. 1956 § 42-35-15. For the reasons set forth herein, this Court affirms the decision of DEM.


         Facts and Travel

         The material facts of this case are not in dispute. Appellant is the former owner of a Multi-Purpose Fishing License that expired on December 31, 2009. After his license expired, Appellant did not take any action with respect to the license until July 27, 2015, when he emailed DEM requesting to reinstate his previously held license and also to obtain a shellfish license offered to persons over the age of sixty-five (65 and Over Shellfish License). 2015 Renewal Appl., DEM's Ex. 11. In his request, Appellant explained that he did not renew his license in 2009 because he was suffering from certain medical conditions. Id. Appellant also explained that he was seeking reinstatement at that time due to financial trouble he was facing due to changes in his pension plan. Id. On August 17, 2015, the Division denied Appellant's request for reinstatement of his license as well as his request for a 65 and Over Shellfish License. DEM's Ex. 12. Appellant did not appeal this decision.

         On February 4, 2016, Appellant filed an official application to renew his license. 2016 Renewal Appl., DEM's Ex. 8. Appellant's application also included two letters from Appellant's doctors indicating that the Appellant was receiving treatment for atrial fibrillation, high blood pressure, osteoarthritis, a torn rotator cuff, and sleep apnea. Id. Additionally, Appellant submitted landing records[1] showing his use of his fishing license in 2009. Id. On February 10, 2016, the Division again denied Appellant's request to renew his license. DEM's Ex. 9. The Division stated that it was denying Appellant's application because he did not qualify for renewal under § 6.7-4 of the October 29, 2015 Commercial and Recreational Saltwater Fishing Licensing Regulations (Licensing Regulations) because he "did not possess a valid multi-purpose license as of 12/31/2015." Id. The Division also advised Appellant that he had the right to appeal the decision to the Administrative Adjudication Division for Environmental Matters (AAD). Id. Appellant timely appealed DEM's denial decision to the AAD. DEM's Ex. 10.

         On April 5, 2016, AAD conducted a hearing on Appellant's appeal. The hearing officer heard testimony from Appellant, Margaret McGrath (McGrath), the Programming Services Supervisor for the Office of Management Services at DEM, and John Lake (Lake), a Principal Biologist for Marine Fisheries at DEM. 2016 AAD Decision, DEM's Ex. 4, at 3-7. No recording of the hearing was taken. On April 18, 2016, AAD issued a decision affirming the Division's denial of Appellant's application to renew his Multi-Purpose Fishing License. Id. at 9.

         Appellant timely appealed AAD's 2016 Decision to the Superior Court pursuant to § 42-35-15. Sullivan v. R.I. Dep't of Envtl. Mgmt., No. PC-2016-2165, 2017 WL 2311261, at *1 (R.I. Super. Ct. May 19, 2017). Appellant asserted that the AAD hearing officer failed to consider evidence showing that he met the renewal requirements, and that he was prejudiced by the lack of an available transcript from the hearing. Id. at 6. On May 19, 2017, the Superior Court issued a decision vacating AAD's 2016 Decision and remanding the matter for a new hearing. The Superior Court held that "the failure to record the Hearing was a violation of statutory procedure that substantially impaired the Court's ability to consider Mr. Sullivan's appeal and thus substantially prejudiced Mr. Sullivan's rights." Sullivan v. Rhode Island Dep't of Envtl. Mgmt., C.A. No. PC-2017-6243 (R.I. Super. May 19, 2017) (Van Couyghen, J.)

         AAD conducted a de novo hearing on October 5, 2017. 2017 AAD Decision, DEM's Ex 2. The hearing was electronically recorded with Appellant's consent. DEM's Ex. 7. The hearing officer heard testimony from the same three witnesses who testified at the April 5, 2016 hearing, as well as one additional witness, Nicole Ares (Ares), a Principal Biologist with the Marine Fisheries Division. 2017 AAD Decision, DEM's Ex. 2, at 4-10.

         Appellant was the sole witness on his behalf. At the beginning of his testimony, Appellant noted that on remand he requested mediation and "a neutral hearing with attorneys and hearing officers that were not a part of [his] initial hearing," but DEM denied both requests. Oct. 5, 2017 Hr'g, Elec. Recording at 13:00-13:21. Appellant testified that he submitted two letters with his renewal application to the Division as evidence of his medical hardship, one from his cardiologist and another from his internal medicine doctor. He also testified about the financial hardship he is facing due to pension reform legislation enacted by the General Assembly that will cause him to lose $20, 000 of income. DEM's attorney objected to Appellant's testimony regarding his financial hardship on the basis that Appellant did not submit any evidence of such hardship with his 2016 Renewal Application. The hearing officer overruled DEM's objection stating that he would determine the relevance of the information and give it the appropriate weight.

         Appellant also asserted that allowing him to renew his Multi-Purpose Fishing License, which would allow him to harvest shellfish as well as finfish, would be consistent with the 2016 Shellfish Sector Management Plan because quahog harvesters are currently harvesting well under the number of bushels allowed, meaning there is ample shellfish available for harvest. Appellant stated that he primarily fishes by rod and reel, and the species of fish he targets are readily available. Additionally, Appellant contended that when evaluating equity between license holders, the hearing officer should consider the fact that Appellant is a well-equipped, experienced fisherman and other, less experienced, persons are being awarded fishing licenses through the lottery system. Lastly, Appellant contended that granting his renewal application would be consistent with the agency's previous decisions because all previous denials were based on a lack of providing documentation of medical hardship, and Appellant has provided such documentation.

         Following Appellant's testimony, the Division presented three witnesses. First, McGrath testified that she has been working at DEM since 1988, and her current position is Programming Services Officer of the Division. She explained that her job duties include deciding whether or not to approve or deny fishing license applications based on the Licensing Regulations. She stated that she reviewed Appellant's eleven-page renewal application dated February 4, 2016. She testified that the application included a letter from Dr. Weigner that referred to an attachment that was not provided to DEM, and that his application did not mention a financial hardship. She further testified that she denied Appellant's application because he did not possess a Multi-Purpose Fishing License during the previous year, 2015, as required by § 6.7-4(c) of the Licensing Regulations. However, according to McGrath's testimony, Appellant was issued a 65 and Over commercial fishing license in January 2017, which authorized Appellant to harvest and sell up to three bushels of quahogs per day.

         Ares testified that she is responsible for coordinating the Atlantic Coastal Cooperative Statistics Program (ACCSP), which is responsible for collecting commercial fishing data. Ares testified that she assists seafood dealers and commercial fishermen in reporting purchases of seafood products from harvesters to the Standard Atlantic Fisheries Information System (SAFIS)[2], which is required by law. She further testified that she reviewed SAFIS a week and a half prior to her testimony and found a handful of sales recorded under Appellant's Multi-Purpose Fishing License in 2009 and no sales recorded under his 65 and Over License. On cross-examination, Appellant asked Ares if she was aware of unreported sales that took place by Appellant in Bristol, Rhode Island. In response, Ares stated that she did not see any such sales recorded in SAFIS.

         Lake, the final witness, testified that part of his responsibilities as a Principal Biologist in the Marine Fisheries Division of DEM is to advise the Rhode Island Marine Fishing Council Industrial Advisory Committee on the entrance and exit ratios of commercial fishing licenses. He also testified that he authored a portion of the 2016 Shellfish Sector Management Plan that provided a recommendation for commercial fishing licenses. Lake then stated that the 2016 Shellfish Sector Management Plan was not relevant to the issuance of a Multi-Purpose Fishing License because it only pertains to shellfish sector specific licenses. Lake further testified that no new Multi-Purpose Fishing Licenses have been issued since 2001 due to a federal moratorium on harvesting lobster, which is permitted under this type of license. On cross-examination, Lake admitted that Multi-Purpose Fishing License holders also harvest shellfish.

         Following the hearing, the hearing officer issued a decision including findings of fact and conclusions of law. 2017 AAD Decision, DEM's Ex 2, at 12-13. The hearing officer found that Appellant "failed to submit any evidence/documentation of medical hardship to the Division pursuant to Regulation 6.7-9 in 2009" and that he "did not possess a valid Multi-Purpose License in 2015 or 2016." Id. at 12. Based on these findings, the hearing officer concluded that Appellant "failed to prove medical hardship conditions to the Division prior to the expiration of his Multi-Purpose License in 2009 pursuant to Regulation 6.7-9." Id. Accordingly, the hearing officer upheld the Division's denial of Appellant's 2016 Renewal Application and denied Appellant's appeal. Id. at 13.

         On December 26, 2017, Appellant timely appealed AAD's 2017 Decision to this Court. On appeal, Appellant makes several assertions: (1) DEM violated his due process rights by not allowing his case to be heard before the Commercial Fishing License Review Board (the Board); (2) DEM denied him a fair hearing because, after remand from the Superior Court, his case was heard before the same DEM hearing officer and DEM attorney; (3) DEM's finding that his renewal application was not "timely" was arbitrary and capricious; and (4) DEM should have considered evidence of his financial ...

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