Updated: Jul 1, 2020
This post is not legal advice.
Today, I venture into looking at aquaculture leases granted by Maryland Department of Natural Resources (DNR). To obtain an aquaculture lease, the potential lessee must file an application with DNR, which works with other state and federal agencies to ensure meeting the statutory criteria. If met, then the application is published for public comment, and interested parties can commit. What I want to discuss today is that public comment period and a recent decision by the Maryland Court of Special Appeals.
In Kirk v. DNR, the facts are straightforward. Mr. Lumpkins applied for an aquaculture lease in St. George’s Creek in St. Mary’s County. After determining Lumpkins met the criteria, DNR published the lease application and received protests from 13 stakeholders. DNR held a public listening session with the stakeholders and after listening to the concerns, decided to facilitate a mediation to work out the problems. The only the problem was, on the date of the informal mediation, one stakeholder, Mr. Kirk, was unable to attend, and DNR was unable to provide a call-in number. During the mediation, the stakeholders (except Kirk) and Lumpkins were able to work out a resolution to the concerns and withdrew their protests. After the mediation, Kirk requested a copy of the minutes from the mediation and DNR was failed to provide those. DNR then facilitated a separate mediation with Kirk, but that mediation did not end Kirk’s concerns.
After the second mediation, DNR transferred the case to an administrative hearing officer (basically, an administrative law judge) and requested Kirk’s protest be dismissed without a hearing because Lumpkin’s application met all the statutory requirements. Kirk conceded that the lease met the statutory requirements but argued the first mediation violated the state’s Open Meeting Act because DNR failed to provide him with minutes. The hearing officer agreed with DNR that the Open Meetings Act did not matter in this decision, and dismissed the case. Kirk then appealed to the Prince George’s County Court which upheld the decision. He then filed another appeal with the Court of Special Appeals.
The Open Meetings Act is a state law requiring certain state and local public bodies to hold meetings in public. The law requires agencies to give adequate public notice of when the meetings will take place and allow the public an opportunity to review the minutes of the meetings. The idea is to take many governmental actions from behind closed doors and help the public be aware of what the government is doing.
On appeal, the court found that the decision to dismiss the challenge was support by evidence and legally correct. The court agreed that DNR had reviewed and found Lumpkin’s application met all the statutory requirements. Nothing in the statute required DNR to facilitate a mediation or ensure that the mediation met the Open Meetings Act requirements. Basically, Kirk was trying to create a requirement to get a lease which did not exist in the statute.
The court also pointed out that Kirk had another avenue to challenge the alleged violation of the Open Meetings Act: the state’s Open Meeting Compliance Board. Kirk had already filed a complaint alleging the same violations and the Board found the mediation was not a meeting of a public body as defined by the law.
Why should you care about this decision? The issuing of permits requires agencies to follow certain steps to ensure the permit will meet certain statutory requirements. Reading additional conditions into the statutory requirements (think of the requirements as a checklist to follow) is not allowed. As this decision highlights, someone may be unhappy with how a decision turned out, but that individual cannot force an agency to add requirements not found in the statute. Statutory requirements provide you with clear guidance on steps to take to get a permit.
Kirk v. Md. Dep’t of Nat. Res., No. 0399 (Md. Ct. Spec. App. Aug. 5, 2016).