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STATE OF MAINE SUPERIOR COURT
NEIGHBORS FOR A SAFE DRAGON, Petitioner,
PETITIONER'S RESPONSE TO DRAGON PRODUCTS COMPANY'S OPPOSITION TO ENTRY OF STIPULATED ORDER Intervenor Dragon Products Company has filed a memorandum opposing the entry of a Stipulated Order as to the Future Course of Proceedings presented to the Court by Petitioner Neighbors for a Safe Dragon ("NSD") and Respondent Maine Department of Environmental Protection ("DEP") pursuant to M.R. Civ.P. 80C(i). Dragon submitted two alternative orders specifying the future course of proceedings along with its memorandum. NSD agrees with Dragon that all proposed deadlines should be held in abeyance until the Court rules on the pending Motions to Dismiss, as articulated in Dragon's proposed "Alt. #1" Order. However, because Count II of NSD's petition requires factual development that would not otherwise be found in the administrative record, NSD does not agree with Dragon that no discovery or evidentiary hearing should be permitted with respect to Count II, as articulated in Dragon's proposed "Alt. #2 Order. More complete discussion follows. By letter dated July 28, 2005, NSD and DEP submitted a Stipulated Order as to the Future Course of Proceedings ("Stipulated Order"). Pursuant to M.R. Civ.P. 80C(i), ==================================================== because all of the parties to the proceeding agreed with the terms of the Stipulated Order, NSD and DEP did not file any motion along with the Stipulated Order. Dragon, which has since sought and been granted intervenor status in this action (without opposition from either NSD or DEP) now takes umbrage that it was not consulted with respect to the Stipulated Order. However, at the time that the Stipulated Order was submitted to the Court, Dragon had not indicated that it would be seeking to intervene, and Rule 80C does not require consultation with non-parties as to the future course of proceedings. Having said that, because Dragon and DEP have filed Motions to Dismiss, it makes sense from an efficiency standpoint to toll the deadlines set forth in the Stipulated Order until the pending motions are resolved. Therefore, NSD has no objection to the entry of the proposed "Alt. #1" Order submitted by Dragon. NSD does object, however, to the entry of Dragon's proposed "Alt. #2" Order, which would eliminate the brief discovery period and evidentiary hearing provided for by the Stipulated Order. Dragon characterizes the discovery as a "free-ranging" inquiry that would permit NSD to "examine the mental processes of the decision-makers." Opposition at 8-9. To the contrary, the discovery would be expressly limited by the terms of the Stipulated Order "to the claims contained in Count II" of NSD's Petition. Count II, alleges, in pertinent part, that the members of NSD were denied an adequate opportunity to be heard with respect to DEP's negotiations with Dragon about the issuance of a Schedule of Compliance that would act as an ongoing placeholder for Dragon's solid waste license applications, "despite NSD's repeated requests, both orally and in writing, for such notice and opportunity." Petition at paragraph 27. ----------------------------------------------------------------------------------------------------- The discovery would, therefore, center on a limited inquiry as to NSD's alleged requests to be heard, and DEP's alleged responses to the same, none of which could otherwise be gleaned from the administrative record. It is therefore unremarkable that DEP and NSD agreed that some limited discovery on these questions would be useful. Given the fact that the contemplated discovery would likely not involve Dragon at all, Dragon's resistance to the concept is unjustified. For the foregoing reasons, Petitioner asks that Dragon's proposed "Alt. #2" Order be rejected. Dated at Portland, Maine this 26th day of August, 2 David B. McConnell, bar Reg. No. 8133
PERKINS, THOMPSON, HINCKLEY & KEDDY
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