How Language in a Court Ruling Caused Problems for One Composting Company

Dubois Livestock, Inc. initially allowed state inspectors to enter its property, but after more odor complaints and successive DEP follow-ups in the fall of 2015, the company refused any more cooperation.

I hear you knocking, but you can't come in.

I hear you knocking, go back where you been.

Originally recorded by New Orleans rhythm and blues singer Smiley Lewis, "I Hear You Knocking" reached No. 2 on the Billboard R&B singles chart in 1955. Six years later, Fats Domino did a successful remake of the song. 

Still heard on oldies radio and online channels, those lyrics may have succeeded in rebuffing a former lover, but, according to a recent state court ruling, they’re useless against government inspectors seeking to enter a facility and take samples of solid waste residuals.

Dubois Livestock, Inc. owns a composting business in Arundel, Maine, on land owned by the Randrick Trust and surrounded by fields the Trust also owns. Dubois operates out in the open on large uncovered impervious pads, far from any buildings or residences. "Don't get fooled by those other compost blends that derive from sewage treatment plants,” says the Dubois website. “There are very few that blend with shellfish compost like we do!"

In 1999, the Maine Department of Environmental Protection (DEP) issued a license permitting Dubois to handle 1,700 tons of fish waste and 3,500 tons of horse manure annually. Over the next decade, the company underwent sizable growth. In 2012, DEP granted a license amendment that allows Dubois to receive up to 29,000 tons of composting materials annually—8,000 tons of solid waste residuals, including fish and shellfish waste, and 21,000 tons of additional material, such as horse manure, cow manure, horse bedding and woodchips.

Under state solid waste rules and the terms of its license, Dubois is required to "prevent nuisance odors at occupied buildings." During the spring of 2015, on at least one occasion, Dubois spread compost material on the surrounding fields. Soon after, the DEP received a number of complaints about odors purportedly emanating from the company’s operations. In response, the DEP visited the site to inspect and take samples of the material Dubois was spreading. The company initially allowed state inspectors to enter the property, but after more odor complaints and successive DEP follow-ups in the fall of 2015, Dubois and the Trust refused any more cooperation.

In November 2015, the DEP filed a complaint against Dubois and the Trust in York County Superior Court seeking (i) a ruling that state law gives the DEP the right to enter the Dubois business premises and the surrounding fields to inspect and take samples and (ii) an injunction prohibiting Dubois and the Trust from denying the Department such access.

After a hearing, the court issued a declaratory judgment stating that the DEP has statutory authority "to enter property to inspect and ensure compliance," and that "[n]either consent nor an administrative warrant is required." The court granted the DEP a permanent injunction prohibiting Dubois and the Trust from denying the DEP access during "reasonable hours," and upheld the constitutionality of the state inspection scheme. On appeal, the state supreme court unanimously affirmed the lower court ruling.

Perhaps with some surprise, the high court justices began their opinion by noting that they had never before ruled on the parameters of DEP’s right to enter and inspect property. Then, quickly taking the plunge, they examined the agency’s statutory authority, which states:

Employees and agents of the [DEP] may enter any property at reasonable hours and enter any building with the consent of the property owner, occupant or agent, or pursuant to an administrative search warrant, in order to inspect the property or structure . . . and to take samples, inspect records . . . or conduct tests as appropriate to determine compliance with any laws administered by [DEP] . . . .

Dubois and the Trust contended that this language requires DEP to obtain consent or an administrative search warrant to enter "any property" as well as "any building." The justices disagreed.

The law first mentions “any property at reasonable hours” without further restrictions and then follows with a reference to a more specific type of property— “any building”—where access requires the consent of the property owner, occupant or agent or a search warrant. “[This] distinguish[es] the restrictions that modify [DEP’s] right to enter "any property" from the restrictions that modify [DEP’s] right to enter "any building," the opinion stated.

In addition, the court found an “even broader right of entry” to the Dubois’s property and the surrounding fields under the state solid waste act. Any duly authorized DEP representative or employee “may, upon presentation of appropriate credentials, at any reasonable time [e]nter any establishment or other place which is not a residence . . . where or in which hazardous or solid waste . . . is generated, handled or transported.”  

“The [DEP] sought access only to Dubois's unenclosed composting premises and the Trusts fields, not to any residences,” the opinion continued. Under the whole statutory scheme, “the DEP does not need consent or an administrative search warrant . . . provided that it does so at a reasonable time and for the purpose of determining compliance with Dubois's license or the laws that the [DEP] administers.”

Finally, the court addressed Dubois' and the Trust’s argument that the warrantless searches authorized by these statutes violate their right under the U.S. Constitution to be free from unreasonable searches and seizures. By way of background, the lower court found, and Dubois and the Trust did not dispute, that both the Dubois composting operation and the Trust property that DEP sought to inspect are located far from any enclosed structures, buildings and residences.

“It is well established that the Fourth Amendment applies only when there is a legitimate expectation of privacy in the invaded place,” the justices responded.  "An individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding [a residence].  *  *  *  Therefore, Dubois and the Trust "cannot claim a constitutionally protected reasonable expectation of privacy in these areas."

State of Maine v. Dubois Livestock, Inc., et al., 2017 ME 223 (Yor-17-100) Dec. 7, 2017.

Barry Shanoff is a Bethesda, Md., attorney and general counsel of the Solid Waste Association of North America.

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