The Department of Public Lands yesterday asserted that Superior Court associate judge Joseph N. Camacho made an error in his order granting preliminary injunction in a lawsuit filed by marine sports operators. But the operators opposed, saying there was no error.
Assistant attorney general Michael Wilt, counsel for DPL, moved the Superior Court to correct Camacho's alleged judicial error in his opinion and order granting preliminary injunction issued on July 19, 2012.
Wilt said Camacho mistakenly construed the Commonwealth's Administrative Procedure Act (APA) so as to conflate the procedural requirements of “rules” with those of “regulation,” as the petitioners (marine sports operators) had erroneously advocated in their petition.
Wilt said the judge in his order states: “To be valid, rules and regulations must substantially comply with the notice and comment provisions in 1 CMC§ 9104.”
The DPL counsel said in a footnote, the judge explains that §9104 “is entitled 'Procedure for Adoption of Regulations' but applies equally to rules because 'regulation' is defined as a 'rule which prescribes or has the force of law.'”
Wilt pointed out that while the definition of “regulation” under the APA indicates that regulations are rules, it is a mistake to then conclude that all rules are therefore regulations.
“In other words, just because regulations are rules does not mean that rules are regulations. In fact, a closer examination of the APA makes this point clear,” Wilt said.
He noted that even though this issue does not directly impact the merits of this case because DPL has not promulgated a rule, but merely restated provisions of rules and regulations which already exist, Camacho's opinion may be interpreted to change the way Commonwealth agencies promulgates rules under the APA so as to require notice and comment.
Attorney Mark A. Scoggins, counsel for the marine sports operators, said DPL's motion is untimely, and that the court can and should summarily deny it without a hearing.
Scoggins said even if the court were to consider whether it had committed error at this stage, it is clear that no such error exists.
Scoggins said the petitioners will not take issue with DPL's statement that “.while all regulations are rules, not all rules are regulations.”
“The APA says what it says on this point, and petitioners have always recognized the distinction. DPL's argument, however, does nothing to alter the correct result in this case,” he said.
The lawyer said at no point has any party argued that there has not been a substantial impact on the rights of the petitioners in this case.
The “rule” in question, Scoggins added, has the force of law and the procedural requirements must be followed.
“The court has already made a ruling to this effect, and there was no error,” he said.
In his July 19 order, Camacho granted the operators' request to maintain the status quo on Managaha access until their lawsuit against DPL is decided on its merits.
Camacho, however, ordered the operators to post the $62,034 bond. He said the preliminary injunction shall take effect once the full bond is remitted to the court.
The five marine sports operators are Island Marine Sports Inc., Aquatic Marine Co. Inc. doing business as Amigo Aquatic Sports, Automarine Inc., Seahorse Inc., and BSEA Inc.
The marine sports operators are suing DPL to invalidate the department's rule promulgated on Dec. 13, 2011 and June 14, 2012 pertaining to Managaha access.