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DEP v. Woodman
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 164
Docket: 	Kno-96-654
Submitted 
on Briefs:	June 26, 1997
Decided:	July 22. 1997

Panel:	WATHEN, C.J., and ROBERTS, GLASSMAN, RUDMAN, and LIPEZ, JJ.


DEPARTMENT OF ENVIRONMENTAL PROTECTION v. CHARLES WOODMAN et al.
RUDMAN, J.

	[¶1]  Charles Woodman and Roger Woodman appeal, pro se, from the
judgment entered in the Superior Court (Knox County, Mills, J.) finding
them in violation of 38 M.R.S.A § 480-C (1989 & Supp. 1996) and requiring
them to perform certain remedial work on the site of the violation.  The
Woodmans contend that the court exceeded the bounds of its discretion
when it relied on the testimony of an environmental expert engaged by the
court because the expert did not visit the site of the violation, and further
that the expert was biased in favor of the Department of Environmental
Protection (DEP).  We disagree and affirm the judgment.
	[¶2]  In the summer of 1990, without obtaining a permit pursuant to
38 M.R.S.A. § 480-C{1} from the DEP, the Woodmans used heavy equipment to
create a pond by constructing an earthen berm across a stream channel on
Roger Woodman's property in Appleton.  After a hearing on the DEP land
use citation and complaint against the Woodmans, the court, on April 28,
1994, found the Woodmans in violation of section 480-C and ordered them
to restore the site to its condition prior to the construction of the dam.  The
Woodmans moved to alter or amend the judgment on the basis of their being
"financially unable to comply with the order of the court."  Following a
hearing on that motion, the court found that the Woodmans did not have the
financial ability to comply with the April 28, 1994, order and granted their
motion for relief from the judgment.  The court also noted, however, that it
did not have the authority to grant an after-the-fact permit for the
Woodmans' pond.  Consequently, the court appointed Robert Gerber as its
expert to review the record, visit the site, and make recommendations to
the court, inter alia, whether the pond should be removed and the site
restored or the pond should remain and the site improved.  Gerber
subsequently reported to the court that in his opinion a site visit was not
warranted{2} and recommended that the dam be removed and the site
restored to its original condition.  On August 8, 1996, the court allowed the
Woodmans to examine Gerber relative to his report.  The court, on August
13, 1996, amended its order of April 28, 1994, and again ordered that the
dam be removed and the site restored.  In response to the court's August
13, 1996, order, the Woodmans filed another motion to amend the court's
judgment in which the Woodmans challenged, for the first time, Gerber's
impartiality.  The court denied the Woodmans' motion on September 6,
1996, and the Woodmans appeal.
	[¶3]  The Woodmans first contend that the court's independent
consultant, Robert Gerber, was not independent because he has previously
done consulting work with the DEP and because he was acquainted with the
supervisor of the personnel with whom the Woodmans had been dealing. 
The Woodmans, however, concede that they did not object to Gerber's
qualifications at or before the August 8, 1996, hearing.{3}                                 
We need not deal with the issue of Gerber's alleged bias because the
Woodmans failed to preserve this argument for appeal by raising the issue
before the trial court.  See Marois v. Paper Converting Machine Co., 539 A.2d
621, 625-26 (Me. 1988) (failure to make contemporaneous objection that
would appraise the court and other party of precise ground of objection
thwarted effective decision-making at trial); Justard v. Oxford Paper Co., 431
A.2d 1309, 1312 (Me. 1981) (where grounds for objection raised for first
time on appeal, Law Court does not review those grounds).  Furthermore,
the record contains no evidence that Gerber was biased in favor of DEP, a
point which the Woodmans concede in their reply brief.
	[¶4]  The Woodmans contend that the court's decision to accept
Gerber's report and to order the removal of the dam and pond when Gerber
had not conducted a site visit was "erroneous and unprecedented." 
Although the court originally ordered a site visit, by accepting Gerber's
report and recommendation without requiring the site visit, the court
implicitly determined the site visit would not be necessary prior to final
adjudication of this case.  Pursuant to M.R. Civ. P. 54(b)(1), the court's order
concerning the duties of the expert witness was "subject to revision at any
time before the entry of judgment adjudicating all the claims and all the
rights and liabilities of the parties."  See Monopoly, Inc. v. Aldrich, 683 A.2d
506, 509 (Me. 1996).  The court was under no obligation to enforce the
original order and require Gerber to visit the site prior to submitting his
report to the court.  Further, Rule 54 does not require a motion by a party
before the court may revise an order that adjudicates less than all of the
claims.  Id. at 510.
	[¶5]  Moreover, absent a court order to visit the site of the Woodmans'
pond and dam, Gerber was under no obligation to visit the site prior to
submitting his report to the court.  "An expert may rely on facts or data
'perceived by him or made known to him at or before the hearing.'"  Maietta
v. International Harvester Co., 496 A.2d 286, 293 (Me. 1985) (quoting M.R.
Evid. 703); see also Milliken v. Buswell, 313 A.2d 111, 117 (Me. 1973)
(expert opinion is not necessarily rendered inadmissible or incompetent
because it may be based on knowledge of facts gained from hearsay sources). 
If the information is of a type that is commonly relied on by experts in the
particular field in forming opinions or inferences upon the subject, the facts
or data need not be admissible in evidence.  Maietta, 496 A.2d at 293. 
Gerber stated that he did not need to conduct a site review because all of
the key facts and issues in this case were relatively well defined and because
no significant discrepancies appeared in the record.  The Woodmans do not
contend that Gerber lacked a sufficient foundation for his opinion or that he
relied on facts or data that are not commonly relied on by experts in his
field.
  	[¶6]  The record before us reflects that the trial court acted well
within the bounds of its discretion in appointing an expert witness and in
accepting the report and recommendations of that witness without
requiring a site visit.
	The entry is:
					Judgment affirmed. 
                     
Attorneys for plaintiff: Andrew Ketterer, Attorney General Margaret Bensinger McCloskey, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 For defendants: Charles A. Woodman 1426 Searsmont Road Appleton, ME 04862 Robert M. Woodman P O Box 1665 Meredith, NH 03252
FOOTNOTES******************************** {1} 38 M.R.S.A. § 480-C provides in pertinent part: 1. Prohibition. A person may not perform or cause to be performed any activity listed in subsection 2 without first obtaining a permit from the department if the activity is located in, on or over any protected natural resource or is located adjacent to and operated in such a manner that material or soil may be washed into any of the following: A. A coastal wetland, great pond, river, stream or brook or significant wildlife habitat contained within a freshwater wetland; . . . . 2. Activities requiring a permit. The following activities require a permit: A. Dredging, bulldozing, removing or displacing soil, sand, vegetation or other materials. {2} Gerber reported that because little information could be gained from a site visit, its approximate cost of $1200 was unwarranted. {3} The Woodmans gain nothing by asserting that "[a]cting pro se, the appellants did not know and were not advised by the Court that immediate objection was required." It is well established that pro se litigants are held to the same standards as represented parties. Dufort v. Bangs, 644 A.2d 6, 7 (Me. 1994); Uotinen v. Hall, 636 A.2d 991, 992 (Me. 1994).