IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF CARTERET

Transcription

1 Filed Apr 5, :51 PM Office of Administrative Hearings STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF CARTERET 17 EHR ) Town of Atlantic Beach ) Petitioner, ) RESPONDENT S ) PREHEARING STATEMENT v. ) AND TRANSMISSION OF ) DOCUMENT CONSTITUTING NC Department of Environmental Quality, ) AGENCY ACTION Division of Marine Fisheries ) Respondent. ) ) PREHEARING STATEMENT NOW COMES Respondent, NC Department of Environmental Quality, Division of Marine Fisheries ( NCDMF ) by and through the undersigned, and pursuant to N.C.G.S. 150B-33(b)(4) and Rule 26 N.C.A.C , and files this Prehearing Statement in the above-captioned matter with the Office of Administrative Hearings in accordance with its Order of March 7, Respondent reserves the right to supplement, modify or otherwise amend its Prehearing Statement as this proceeding progresses. 1. THE ISSUES TO BE RESOLVED This matter involves the granting of a shellfish bottom and water column lease application by NCDMF. At issue is whether NCDMF acted erroneously or arbitrarily or capriciously when granting the lease. A true and accurate copy of the lease decision, which is the Document Constituting Agency Action, is attached hereto as Exhibit A and incorporated by reference herein.

2 2. A BRIEF STATEMENT OF THE FACTS AND REASONS SUPPORTING THE PARTY S POSITION ON EACH MATTER IN DISPUTE Mr. Samuel Boyd applied to NCDMF for three adjoining shellfish bottom and water column leases, running east to west in Bogue Sound. The three proposed lease sites are depicted in yellow on Exhibit B. 8 ½ marina is depicted in Exhibit B in the southwest while Triple S Marina is depicted to the southeast of the proposed lease sites. The leases closest to the two marinas, designated as and , were denied as being incompatible with other public uses of the area. However, given the reduced footprint of only having a single lease, from acres to 4.83 acres, and the further distance from the two marinas, the lease designated as on Exhibit B, which is being challenged in this contested case, was determined to be compatible with other public uses of the area. 3. THE STATUTES, RULES, AND LEGAL PRECEDENT, IF KNOWN The statutes, rules and legal precedents involved include but are not limited to North Carolina General Statute, Chapter 150B (Administrative Procedure Act); Title 26, North Carolina Administrative Code, Chapter 3 (Administrative Hearings); Title 15A, North Carolina Administrative Code, Chapter 3 (Marine Fisheries); and North Carolina General Statute, Chapter 113, Article 16 (Cultivation of Shellfish). 4. A LIST OF PROPOSED WITNESSES Witnesses for the Respondent may include, but are not limited to, the following: Braxton Davis, NCDMF Steve Murphey, NCDMF Andrew Haines, NCDMF Steve Anthony, NC Marine Patrol Joe Marlette, NC Marine Patrol Petitioner s employees, agents, and representatives Persons who commented to DMF on the above-noted lease applications Witnesses identified by Petitioner 2

3 In the event additional witnesses are identified, Respondent will supplement its Prehearing Statement in a timely manner. 5. WHETHER YOU WISH TO PURSUE DISCOVERY. IF SO, THE LENGTH OF TIME REQUIRED The Respondent anticipates that it will be able to complete discovery by the July 3, 2017 deadline. Respondent reserves the right to seek additional time for discovery if necessary. 6. LOCATION AND DATE OF HEARING The hearing date of July 24, 2017 and New Bern hearing location specified in the Scheduling Order are acceptable to the Respondent.. 7. IF YOU DO NOT HAVE AN ATTORNEY, YOUR HOME AND BUSINESS ADDRESS AND TELEPHONE NUMBER Respondent is represented by the undersigned attorneys in this matter. 8. ESTIMATED LENGTH OF HEARING The estimated length of the hearing is two days. 9. OTHER SPECIAL CONSIDERATIONS The Respondent intends to request that this action be consolidated with 8 ½ Marina Village John F Matthews VP v. NC Department of Environmental Quality, Division of Marine Fisheries, 17 EHR 01382, and Boyd v. NC Department of Environmental Quality, 17 EHR ½ Marina is a challenge to the same shellfish bottom and water column lease at issue in this case. Boyd is a challenge to the denial of the two shellfish bottom and water column lease applications for the areas immediately adjacent to the approved lease that is the subject of this case. Respondent reserves the right to amend the contents of this Prehearing Statement as necessary to present the facts of this case and to fully address any issues that may develop during the course of 3

4 litigation. Respectfully submitted this the 5th day of April, JOSH STEIN Attorney General /s/scott A. Conklin Scott A. Conklin Assistant Attorney General NC State Bar No T. Hill Davis, III Assistant Attorney General NC State Bar No N.C. Department of Justice P.O. Box 629 Raleigh, NC (919) phone (919) fax Attorneys for Respondent 4

5 CERTIFICATE OF SERVICE The undersigned certifies that Respondent s Prehearing Statement and Document Constituting Agency Action have been served on counsel for the Petitioner in this action through the e-filing service, as follows: Derek Taylor Taylor and Taylor, PA derek@tt2law.com Attorney for Petitioner This the 5th day of April, JOSH STEIN Attorney General By: /s/scott A. Conklin Scott A. Conklin Assistant Attorney General NC State Bar No N.C. Department of Justice 9001 Mail Service Center Raleigh, NC (919)

6 Marine Ftshertes ENVIRONMENTAL QUAliTY I EXHIBIT A ROY COOPER Governor MICHAEL S. REGAN Secretary BRAXTON C. DAVIS Director February 14,2017 To whom it may concern: On January 18, 2017, a public hearing was held at the Central District Office of the Division of Marine Fisheries in Morehead City. The purpose of this public hearing was to hear comments on several shellfish leases being proposed in Carteret County. You are receiving this letter because you submitted comments and requested to be informed of the lease decision for one or more of the lease applications. Rebekah Williams: Bottom/Water Column No.l867944/ Approved Samuel Boyd: Bottom/Water Column No / Denied Samuel Boyd: Bottom/Water Column No / Denied Samuel Boyd: Bottom/Water Column No.l871458/l (center location)- Approved Sandbar Oyster Company: Bottom/Water Column No.l888890/ Approved Sandbar Oyster Company: Bottom/Water Column No.l885508/ Approved Sandbar Oyster Company: Bottom/Water Column No.l886449/ Denied If you have any additional questions please feel free to contact me at , extension 8061 or Steve Murphey Chief, Habitat Enhancement ~Nothing Compares...-"'\..A- StateofNorthCaroUna I Division of Marine Fisheries 3441 Arendell Street I P.O. Box 769 I Morehe;:od City, North CaroUna

7 Marine Fisheries ENVIRONMENTAL QUALITY MEMORANDUM TO: FROM: Braxton C. Davis, Director f[] COPY Steve Murphey, Habitat and Enhancement DATE: January 24,2017 ROY COOPER Governor MICHAEL S. REGAN Secretary BRAXTON C. DAVIS Direaor REc r.:~~(/~ ;D ~~ ~ ~ ;t;; FEB ] Habitat & Enhancement SUBJECT: Proposed Bottom Lease and Water Column Amendment- 3 Applications / , / , / All in Bogue Sound Samuel Boyd A public hearing was held at the Division of Marine Fisheries, Central District Office, 5285 Hwy 70 West, Morehead City, NC on Wednesday January 17, 2017 at 6:00P.M. The purpose of the hearing was to gather public comment on seven shellfish lease applicants in Carteret County. The applicants were presented in the order of the date they were received in our office. Samuel Boyd applied for three plots, totaling approximately 15-acres located in Bogue Sound in Carteret County. The hearing was advertised in The Carteret News Times on December 18 and December 28, Marla Chuffo, Amber Buster, Michael Graven, Anne Deaton, Curt Weychert, Garry Wright and Marine Patrol Officer Brian Gupton and I attended the hearing representing the NC DMF. The applicant attended as well as an estimated 50 local citizens, 43 of which specifically signed in for these leases; 34 opposed, 8 approved, 1 neutral. The reason for the majority of the objections were that shallow draft vessels drive through that site rather than the adjacent channel, and the leases would therefore be a navigation hazard; that the protected area between the marsh island and the condominium is used for recreation such as paddle boarding, jet skiing, kayaking, and flounder gigging; and that it is a tourism conflict. Mr. Boyd stood and explained why he selected that location and what he planned to do with it and offered to compromise by reducing his track by 5 -acres and would do this by removing the track closest to the Marina. Three attendees spoke in favor of the three leases. Opposition came in excess of230 written comments, a petition with 26 signatures from 8 ~ Marina and 12 who spoke during the comment period. The Public Hearing minutes, Attendance Roster, Public Comment, Internal Review comments from Fisheries Management, Marine Patrol, Shellfish Sarutation and Division of Coastal Manag~ment are attached. ~Nothing Compares~ State of North carouna I Division of Martne fisheries 3441 Arendell Street I P.O. Box 769 I Morehead Oty, North CaroUna n6-7021

8 This information is forwarded to you for consideration of the following three options: ~prove these bottom lease and water co ions No. tsfl'ffltl871482, l871490/lb71sl / use the proposed lease meets the compliance stan ar s tsa NCAC and G.S D I approve these bottom lease and water column applications No / , / , / as provided in 15A NCAC (c), with the-following special condition(s): ~. ~olumn applications No. - '($.1147~118714~2~\ /18715~18'1146{; tq.r the following reason(s): ~--t.. Si'Tl,t-i& cl- 'lllt. C'#rtr-/f"' 1 {).[)..{.. L~ 1 Dut,-ro i?ocl.t.j~1 JTt,L) (r;;n ::.f?.[!j~)._,.j~,l~ ijj\'v'tg'x~j):j AfJO &t -rn:j; (?...-t.ct~6\.1l~.,..,al \A )'4t. _ Braxton C. Davis, Director Date Enclosures: Public Hearing Attendance Roster Written comments and petition Comments from DMF Internal Review Shellfish Lease Investigation Report Map of proposed lease and samples collected ~Nothing Compares~ State of North Carol!na I Division of Marine Fisheries 3441 Arend ell Street I P.O. Box 769 I Morehead City. North Carolina sz-n6-702t

9 i ~ EXHIBIT B Samue~ Joyd Proposed She1... sh Leases Lease #'s lflf\i'utohi'tf H f Al OUAUI Y Ya rds *N Lease Investigation Samples Yes No s - CSHA- Prohibited w E SAV Present?. 300 Lease Acreage ac ac ac c:j LeaseArea.&. Corner Poles