E-Filed Document Jul 29 2015 11:38:08 2014-SA-01364-COA Pages: 21 IN THE SUPREME COURT OF MISSISSIPPI GLOBE METALLURGICAL, INC. PLAINTIFF/ APPELLANT VS. NO. 2014-TS-01364 MISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY DEFENDANT/APPELLEE MISSISSIPPI SILICON LLC INTERVENOR/DEFENDANT/APPELLEE BRIEF OF APPELLEE MISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY On Appeal from the Chancery Court of Tishomingo County, Mississippi ORAL ARGUMENT NOT REQUESTED OF COUNSEL: Lee D. Thames, Jr. (MSB # 10314) Special Assistant Attorney General Mississippi Attorney General Civil Litigation Division P.O. Box 220 Jackson, Mississippi, 39205-0220 Telephone: (601) 359-3841 ltham@ago.state.ms.us Donna Hodges (MSB # 9561) MDEQ Senior Attorney THE MISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY Legal Division P.O. Box 2261 Jackson, MS 39225-2261 Telephone: (601) 961-5171 donna_hodges@deq.state.ms.us
CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualifications or recusal: 1. Globe Metallurgical, Inc., Appellant/Plaintiff; 2. Mississippi Department of Environmental Quality, Appellee/Defendant; 3. Mississippi Silicon LLC, Appellee/Defendant 4. Karen E. Howell, William D. Drinkwater and Brunini Grantham Grower & Hewes, PLLC, Counsel for Appellant/Plaintiff Globe Metallurgical, Inc.; 5. Lee D. Thames, Jr., Special Assistant Mississippi Attorney General, Counsel for Mississippi Department of Environmental Quality; 6. Donna J. Hodges, Counsel for Appellee-Defendant, Mississippi Department of Environmental Quality; 7. Rebecca Lee Wiggs, Keith W. Turner and Watkins & Eager, PLLC, Counsel for Appellee/Defendant, Mississippi Silicon LLC; and 8. Honorable Michael Malski, Tishomingo County Chancery Judge. THE MISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY BY: /s/lee D. Thames, Jr. Lee D. Thames, Jr. (MSB # 10314) Special Assistant Attorney General Donna Hodges (MSB # 9561) MDEQ Senior Attorney i
TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES........................................ i TABLE OF CONTENTS....................................................... ii TABLE OF AUTHORITIES.................................................... iii I. Statement Regarding Oral Argument................................... 1 II. Statement of Issues................................................. 1 III. Statement of the Case and Facts....................................... 2 IV. Legal Proceedings.................................................. 5 V. Summary of Argument.............................................. 7 VI. Argument........................................................ 7 I. The Chancellor properly dismissed Globe s Complaint as untimely........................................ 7 A. The Chancellor s inability to review this action rests squarely on the lack of appropriate jurisdiction over the subject matter and the parties, and requires dismissal of the action............ 7 B. Dismissal for lack of jurisdiction is appropriate as the untimely filing of the request for hearing bars any subsequent action under administrative res judicata and collateral estoppel............ 10 II. Response to Globe s Asserted Issues............................ 11 A. The time to appeal began to run when the Permit Board accepted and approved the issuance of the permit at the December 10, 2013 meeting, not when the minutes were ratified at the following board meeting..................... 11 B. The Appeal Provision of Section 49-17-29 Does Apply....... 14 C. The Appeal Provisions of Section 49-17-41 Do Not Apply..... 14 VII. Conclusion...................................................... 15 CERTIFICATE OF SERVICE................................................... 16 ii
TABLE OF AUTHORITIES Federal Cases Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)... 15 State Cases Alias v. City of Oxford, 70 So.3d 1114 (Miss.Ct.App. 2011)... 12 Bickham v. Department of Mental Health, 592 So.2d 96 (Miss. 1991)... 15 Breland v. Harrison County School Board, 96 So.3d 61 (Miss.Ct.App. 2012).... 10 Calvert v. Griggs, 992 So.2d 627 (Miss. 2008)... 9 Casino Magic Corp. v. Ladner, 666 So.2d 452 (Miss. 1995)... 15 Davis v. Attorney General, 935 So2d 856 (Miss. 2006)... 11 Newell v. Jones County, 731 So.2d 580 (Miss. 1999).... 9 Shipman v. North Panola Consolidated School Dist., 641 So.2d 1106 (Miss. 1994).... 11, 12 Slay v. Mississippi Department of Agriculture and Commerce, 771 So.2d 968 (Miss. 2000)... 9 Smith et al. v. Board of Supervisors, 124 Miss. 36, 86 So. 707 (1920).... 13 Smith v. Univ. of MS, 797 So.2d 956 (Miss. 2001)... 8, 10, 13 Thompson v. Jones County Comm. Hospital, 352 So.2d 795 (Miss. 1977)... 12, 13 Zimmerman v. Three Rivers Planning and Development District, 747 So.2d 853, (Miss.Ct.App. 1999).... 10 State Statutes Miss. Code Ann. Sec. 37-6-9... 11 Miss. Code Ann. 49-2-1... 2 Miss. Code Ann. Sec. 49-17-29... 1,5,6,7,14,15 iii
Miss. Code Ann. 49-17-29(3)(a)... 2, 4 Miss. Code Ann. Sec. 49-17-29(3)(c)... 2 Miss. Code Ann. 49-17-29(4)(a)... 3 Miss. Code Ann. Sec. 49-17-29(4)(b)... 9, 13,14 Miss. Code Ann. 49-17-29(4)(b) and (c).... 7 Miss. Code Ann. 49-17-29(4)(c)... 14 Miss. Code Ann. 49-17-29(4)(c) and (5)(a) and (b)... 14 Miss. Code Ann. 49-17-29(4)(d).... 14 Miss. Code Ann. 49-17-41... 1,6,14,15 State Rules Mississippi Rules of Civil Procedure Rule 6(a)... 9 Mississippi Rules of Civil Procedure Rule 34(a)(1) and (3)... 1 Administrative Rules 11 Miss. Admin. Code Pt. 1, R. 4.2(B)... 2 11 Miss. Admin. Code Pt. 1, R. 4.3.... 4,8,9,13 11 Miss. Admin. Code Pt. 2, R. 5.5.... 3 iv
Statement Regarding Oral Argument MDEQ does not request oral argument in this matter. The facts are simple and uncontested, the legal issue is not complex but rather is very straight forward, namely, a board acts when it takes action in the meeting, not at the subsequent board meeting when the minutes are ratified. In fact, this a frivolous appeal pursuant to MRAP 34(a)(1) and/or the facts and legal arguments are adequately presented in the record and briefs and oral argument would not aid this Court pursuant to MRAP 34(a)(3). Statement of the Issues I. The Chancellor properly dismissed Globe s complaint as untimely. A. The Chancellor s inability to review this action rests squarely on the lack of appropriate jurisdiction over the subject matter and the parties, and requires dismissal of the action. B. Dismissal for lack of jurisdiction is appropriate as the untimely filing of the request for hearing bars any subsequent action under administrative res judicata and collateral estoppel. II. Response to Globe s Asserted Issues. A. The time to appeal began to run when the Permit Board accepted and approved the issuance of the permit at the December 10, 2013, meeting, not when the minutes were ratified at the following board meeting. B. The Appeal Provision of Section 49-17-29 does apply. C. The Appeal Provisions of Section 49-17-41 do not apply. 1
Statement of the Case and Facts The Mississippi Department of Environmental Quality (herein after referred to as MDEQ ) is tasked with conservation, management, development and protection of the natural resources of the State of Mississippi and serves as the staff of the Permit Board pursuant to Miss. Code Ann. 49-2-1 et al. The Permit Board has been granted exclusive authority to make decisions on permit issuance, reissuance, denial, modification or revocation of air pollution control and water pollution control permits and permits required under the Solid Wastes Disposal Law of 1974 (Title 17, Chapter 17), and all other permits within the jurisdiction of the Permit Board. Miss. Code Ann. 49-17-29(3)(a). The MDEQ Executive Director has been delegated authority to act on behalf of the Permit Board regarding permit issuance, reissuance, denial, modification or revocation, and a decision by the Executive Director shall be a decision of the Permit Board. Miss. Code Ann. 49-17-29(3)(a). The Executive Director may also delegate its authority to senior staff personnel within the department in an effort to achieve the most efficient review, approval, and issuance of permits by the MDEQ. 11 Miss. Admin. Code Pt. 1, R. 4.2(B). On August 16, 2013, Mississippi Silicon, LLC (herein after referred to as MS Silicon ) submitted an application for a Prevention of Significant Deterioration air permit to construct and run a facility that would manufacture and sell silica metal and silica fume in Tishomingo County, Mississippi. (Vol. III, pg. 397-399) Once an application for a permit is filed with MDEQ, MDEQ has one hundred eighty days to take action on the application. Miss. Code Ann. Sec. 49-17-29(3)(c). From October 24, 2013, to November 22, 2013, MDEQ opened a Notice and Comment period for any interested party to submit concerns, suggestions, or ideas that they had regarding the proposed MS Silicon permit as required by statute. During the Notice and Comment period, MDEQ also sent a copy of the proposed application to the two required federal reviewing agencies the 2
United States Environmental protection Agency (EPA) and the United States Department of Agriculture ( USDA ). The USDA sent an email to MDEQ staff noting their concerns on October 25, 2013, and November 11, 2013. USDA also sent in a formal letter of November 14, 2013, noting their concerns had been addressed and they had no objection to the permit as adjusted during the staff review period. (Vol. II, pg. 269-275). EPA submitted two letters to MDEQ staff concerning the permit application on November 14, 2013, and November 21, 2013, that included comments and suggestions concerning the permit under consideration. (Vol. II, pg. 276-280). MDEQ staff incorporated all applicable comments received into the final permit. (Vol. II, pg. 281-300, Vol. III, pg. 301-323). During the Notice and Comment period, Globe Metallurgical, Inc., (herein after referred to as Globe ) did not submit any comments noting their suggestions or concerns to MDEQ. In addition, MDEQ received no formal comments from any other person or entity during the Notice & Comment period. As no formal comments were received, the Permit Board exercised its discretion and did not conduct a Public Hearing, as allowed under Miss. Code Ann. 49-17-29(4)(a). On November 27, 2013, staff issued MS Silicon the final and only permit for this site, Permit No. 2640-00060. See Exhibit 3, Mississippi Silicon Permit. (Vol. II pg. 281-300, Vol. III, pg. 301-323). This approval constituted an action by the Executive Director in her delegated authority from the Permit Board. This action triggered 11 Miss. Admin. Code Part 2, R. 5.5, that requires the Executive Director to notify the Administrator of the USEPA of each significant action the Executive Director takes on the application. On December 16, 2013, the Executive Director formalized her notice of significant action in a letter to EPA, which detailed the action taken in response to EPA s comments on the issuance of the permit. (Vol. III, pg. 341-375). 3
At the December 10, 2013, Permit Board meeting, the Executive Director reported the MS Silicon permit issuance to the Permit Board and it was duly accepted and recorded in the minutes. This was the only official action on the MS Silicon permit taken by the Permit Board. See December 10, 2013, Permit Board Minutes (Vol. III, pg. 324-340; see more particularly Vol. III, pg. 325). On January 14, 2014, the Permit Board ratified the minutes of its December meeting. See January 14, 2014 Permit Board Minutes (Vol. III, pg. 376-396). The Permit Board did not reconsider the record or the permit; it simply approved and ratified the written record of the events stating the actions taken by the Permit Board at its previous meeting on December 10, 2013, as evidenced in the minutes. See Miss. Code Ann. 49-17-29(3)(a). The minutes noted the date of the action taken to approve MS Silicon s permit as December 10, 2013. See January 14, 2014 Permit Board Minutes (Vol. III, pg. 376-396). Globe Metallurgical, Inc., is a foreign corporation which manufactures silicon metal. Globe submitted an untimely request for a formal hearing on the issued MS Silicon permit on February 12, 2014. In its request Globe listed concerns such as, emission limits, detrimental effects on National Ambient Air Quality (NAAQS ), monitoring, and use of best available control technologies. (Vol. II, pg. 252-253). These issues would have been appropriately raised during the Notice & Comment period, but not after the permit had been issued and after the period to request a hearing had expired. In a letter dated February 18, 2014, MDEQ denied the untimely request for a formal hearing as it was outside the time allowed per statutory guidelines. See MDEQ Denial Letter (Vol III, pg. 400-401). The guidelines are stated in 11 Miss. Admin. Code Pt. 1, R. 4.3, [t]he time period in which an aggrieved party may file a request for a formal hearing before the Permit Board concerning a Delegated Permit action... taken by the Executive Director or his delegates shall be calculated 4
from the date of the Permit Board meeting at which the decision of the Executive Director or his delegate is accepted by the Permit Board. The Permit Board s approval and acceptance of the permit issuance decision at the December 10, 2013, meeting and recording the issuance in its minutes, triggered the thirty (30) day time clock for any requests for a Formal Hearing to be submitted making the final day to request January 9, 2013. After a formal hearing, an aggrieved party has twenty (20) days from the Permit Board decision to appeal to the chancery court in the county where the plant is located. Because Globe failed to exhaust its administrative remedies, and since there was no Formal hearing, this matter was not properly before the chancery court and the complaint was properly dismissed. Legal Proceedings Aggrieved by its own tardiness, on March 7, 2014, Globe filed Administrative Appeal and Complaint in the Chancery Court of Tishomingo County. (Vol. I, pg. 1-126) On March 11, 2013, Globe filed its First Amended Administrative Appeal and Complaint. (Vol. I, pg. 127-150, Vol. II, pg. 151-255) Globe also filed a similar complaint in Hinds County Chancery Court on March 7, 2014. (Vol. VI, pg. 896-897; Vol. VIII, pg. 23-25). MDEQ responded filing its Motion to Dismiss and/or Alternatively for Summary Judgment and Memorandum Brief in Support thereof on April 16, 2014. (Vol. II, pg. 256-300, Vol. III, pg. 301-402) MDEQ raised five issues. The most important issue, and central to this appeal, was that Globe failed to timely request a formal hearing pursuant to Miss. Code Ann. Sec. 49-17-29. On April 22, 2014, Mississippi Silicon filed a Motion for Leave to Intervene. (Vol. III, pg. 403-450, Vol. IV, pg. 451-472) Globe objected to MS Silicon s Motion for Leave to Intervene on May 9, 2014. (Vol. IV, pg. 572-600, Vol. V, 601-663) A hearing was held on May 15, 2014. (Vol. VIII, pg. 6-9) An Order was entered on June 5, 2014, granting leave to intervene. (Vol. V, pg. 664) 5
MS Silicon also filed a Motion to Dismiss and/or For Summary Judgment and Memorandum brief in Support Thereof. Globe objected to and responded to both MDEQ and MS Silicon Motions to Dismiss and/or For Summary Judgment. A hearing was held on July 11, 2014. (Vol. VIII, pg. 12-25) All parties briefed and raised at the hearing the interpretation of and applicability of Miss. Code Ann. Sec. 49-17-29. At the hearing Globe raised the issue that there was no statutory authority for which to appeal this matter which is why it filed this proceeding. Globe took the position that it was not appealing the Permit Board s action, but rather the denial of a formal hearing. Based on Globe s argument, the chancellor asked all parties to brief a particular appeal statute, Miss. Code Ann. Sec. 49-17-41, another section of the Mississippi Air and Water Pollution Control Law, entitled Administrative appeals, which no party had briefed. All parties briefed the statute requested by the chancellor, all parties agreeing the statute was not applicable, but rather Sec. 49-17-29 was the applicable statute. (Vol. VI, pg. 876-888). On August 29, 2014, the chancellor entered its Memorandum Opinion and Judgment, and dismissed Globe s appeal and complaint. (Vol. VI, pg. 889-900, Vol. VII, pg. 901-908) The chancellor reasoned that the Permit Board took action on the December 10, 2013, board meeting by approving the permit, and anyone aggrieved had thirty days to request a formal hearing. Globe waited more than thirty days to request a formal hearing which bars further review. Additionally, if Miss. Code Ann Sec. 49-17-41 applied, Globe still did not act timely. Finding no genuine issue of material fact, the chancellor granted MDEQ and MS Silicon Motions to Dismiss and/or For Summary Judgment and dismissed the matter. 6
Summary of the Argument Globe failed to timely request a formal hearing. Miss. Code Ann. Sec. 49-17-29 clearly states that a request must be made within thirty days of the acceptance of the issued permit. Globe requested a formal hearing more than thirty days out from when the Permit Board took action on December 10, 2013. As a result, the chancery court did not have jurisdiction. Furthermore, the chancery court could not hear the matter based on the doctrines of administrative re judicata and collateral estoppel since the matter was not timely appealed. Therefore, this Court should affirm the chancellor s dismissal of this matter. The Permit Board took action when it accepted and approved the issued permit and placed the action on its minutes at the December 10, 2013, board meeting, triggering the time from which to request a formal hearing. Minutes evidence a board s actions. Furthermore, MDEQ s administrative rules clearly state that the thirty days to request a formal hearing begins to run at the meeting where the Permit Board accepts the issued permit. Globe did have a mechanism to appeal pursuant to Miss. Code Ann. Sec. 49-17-29. However, Globe failed to timely request a formal hearing, thereby waiving its right to a formal hearing. Argument I. The Chancellor properly dismissed Globe s complaint as untimely. A. The Chancellor s inability to review this action rests squarely on the lack of appropriate jurisdiction over the subject matter and the parties, and requires dismissal of the action. The administrative procedures to properly and timely appeal an action to the Permit Board, and subsequently to the Chancery Court, are spelled out clearly in statutory language and further explained in agency regulations. Miss. Code Ann. 49-17-29(4)(b) and requires: 7
Within thirty (30) days after the date the Permit Board takes action upon permit issuance... any interested party aggrieved by that action may file a written request for a formal hearing before the Permit Board.... (c) Within twenty (20) days after the Permit Board takes action upon permit issuance... after a formal hearing under this subsection as recorded in the minutes of the Permit Board, any person aggrieved of that action may appeal the action as provided in subsection (5) of this section. The Permit Board has interpreted the statute and codified its rules in the Administrative Procedure Act Rules, which all state agencies have done. A complete list of all agency rules can be found on the Secretary of State website. 11 Miss. Admin. Code Pt. 1, R. 4.3, clearly states, [t]he time period in which an aggrieved party may file request for a formal hearing before the Permit Board concerning a Delegated Permit action... taken by the Executive Director or his delegate shall be calculated from the date of the Permit Board meeting at which the decision of the Executive Director or his delegate is accepted by the Permit Board. (emphasis). This interpretation leaves no ambiguity as to when the statutory time clock began to run. The Mississippi Supreme Court has held courts should afford great deference to an administrative agency s construction of its own rules and regulations and the statute under which it operates. Smith v. Univ. of MS, 797 So.2d 956, 959 (Miss. 2001). In an effort not to overstep its statutorily granted jurisdiction, the Executive Director, through her delegated statutory authority, denied the request for a formal hearing. As a formal hearing after the statutory deadline for requests had expired would be beyond the power of the administrative agency to make, the Executive Director, through her delegated statutory authority, rightfully declined to grant the request for a formal evidentiary hearing. See MDEQ Denial Letter (Vol. III, pg. 400-401). The issuance of the Permit to MS Silicon did not violate any rights of Globe. In fact Globe, along with anyone else who had an interest at stake, could have made their concerns known during the Notice and Comment period. Since Globe did not assert any rights during the Notice and 8
Comment period, nor did they request a formal hearing within the statutory time limits, their procedural due process rights were waived, not violated. See MDEQ Staff Affidavit, and MDEQ Denial Letter (Vol. III, pg. 397-401). Globe simply failed to exhaust their administrative remedies. In the case sub judice, the Permit Board's approval of the issuance of the permit began the running of the thirty day statutory time clock on December 10, 2013. Miss. Code Ann. Sec. 49-17- 29(4)(b) and 11 Miss. Admin. Code Pt. 1, R. 4.3. Using the computation of time guidelines outlined in the Mississippi Rules of Civil Procedure Rule 6(a), the thirty day time period expired on January 9, 2014. The request for an evidentiary hearing filed on February 12, 2014, was not a timely request as it was submitted over thirty (30) days after the deadline had expired. This prompted the Executive Director's correct application of the statute which resulted in a denial of the formal hearing request by Globe. The absence of a timely request for an evidentiary hearing removed the Permit Board's statutory authority to hear Globe's appeal. Slay v. Mississippi Department of Agriculture and Commerce, 771 So.2d 968, 970 (Miss. 2000). As a formal hearing outcome is required to appeal a Permit Board decision to the chancery court, the absence of the formal Permit Board hearing also removes the chancery court's jurisdiction to hear the matter. The chancery court may only consider the evidence as presented in the record from a formal hearing that resulted from a timely appeal. If there was no appeal, there is no record for this Court to consider, and no jurisdiction. This outcome is consistent with the decision of the Supreme Court of Mississippi s opinion in Calvert v. Griggs, 992 So.2d 627,631 (Miss. 2008), [a] timely-filed appeal is a jurisdictional prerequisite... and further noted in Newell v. Jones County, 731 So.2d 580, 582 (Miss. 1999), where the court opined that, [t]he statute's... time limit in which to appeal the decision of a Board is both mandatory and jurisdictional. Where an appeal is not perfected within the statutory time constraints no jurisdiction 9
is conferred on the appellate court; and the untimely action should be dismissed. The Court of Appeals of Mississippi also adhered to this reasoning in Breland v. Harrison County School Board, 96 So.3d 61, 65 (Miss.Ct.App. 2012), stating that a timely filing of an appeal is jurisdictional. Thus, Globe has failed to exhaust its administrative remedies and failed to timely appeal. As Globe's request was not timely filed with the Permit Board, the Permit Board had no jurisdiction to grant an evidentiary hearing. Further, the chancery court's jurisdiction rests on a timely filed request for an evidentiary hearing and formal evidentiary hearing. Since neither was present in this case, the chancery court lacked jurisdiction over the subject matter and properly dismissed the case. B. Dismissal for lack of jurisdiction is appropriate as the untimely filing of the request for hearing bars any subsequent action under administrative res judicata and collateral estoppel. The request for a formal hearing has already been properly adjudicated. The Permit Board decision was made, the time for an appeal lapsed, an untimely request was made and the untimely request appropriately was denied. Where a matter has been properly decided, and time for an appeal lapsed, it cannot be again retried. The Mississippi Court of Appeals spoke directly to this matter in Zimmerman v. Three Rivers Planning and Development District, 747 So.2d 853, 861, (Miss.Ct.App. 1999), when it decided that "[o]nce an agency decision is made and the decision remains unappealed beyond the time to appeal, it is barred by administrative res judicata or collateral estoppel." See also Smith v. Univ. of MS, 797 So.2d 956 (Miss. 2001)(holding because former employee did not exhaust his administrative remedies, by following statutory appeal procedures, the circuit court lacked jurisdiction to review the university's employment decision). Therefore, as the Executive Director correctly denied the request and resolved the matter, the chancery court lacked jurisdiction to rehear the same issue by the same parties under the 10
doctrines of both administrative res judicata and collateral estoppel. By failing to exhaust its administrative remedies by failing to follow statutory appeal procedures, the issuance of the permit is a final decision that was never timely appealed and therefor res judicata or collateral estoppel precludes re-litigation of administrative decisions. See Davis v. Attorney General, 935 So2d 856, 863 (Miss. 2006). Therefore this matter was properly dismissed. II. Response to Globe s Asserted Issues A. The time to appeal began to run when the Permit Board accepted and approved the issuance of the permit at the December 10, 2013, meeting, not when the minutes were ratified at the following board meeting Globe argues that the Permit Board took action when it ratified the minutes at the January board meeting as opposed to the December board meeting where the Permit Board approved and accepted the issuance of the permit and recorded the action in its minutes. Globe argues the 30 day time began run to run after the January 14, 2014 meeting rather than the December 10, 2013 meeting. Such an interpretation is contrary to law and MDEQ s own administrative rules interpreting when the time begins to run. The purpose of minutes is to record an action. Minutes evidence what action a board took at a particular meeting. At a latter meeting a board ratifies the minutes evidencing action taken by a board in a prior meeting. The time begins to run from when a board takes action, not when the minutes are ratified. In Shipman v. North Panola Consolidated School Dist., 641 So.2d 1106 (Miss. 1994), the issue arose whether the minutes of a school board were sufficient to record the actions taken by the school board on a certain day and whether they were timely and properly signed. Miss. Code Ann. 11
Sec. 37-6-9, governing minutes for the school board reads in part, an accurate recording of any final actions taken at such meeting... Shipman, 641 So.2d at 1118 (emphasis). The Court concluded that the minutes not timely signed more than thirty days after the board meeting did not void the action taken by the board at its previous board meeting. Shipman, at 1117. The Court further held, The fact that the board chose to not include any further information does not invalidate the minutes and certainly does not nullify the actions of the board which took place at the meeting. Id., at 1118. Finally, the Court concluded, Although there were irregularities in the minutes and of the July 31, 1991, meeting of the NPCSD Board of Trustees, they were not so severe as to require the nullification of the actions of the board at that meeting. Id., at 1122. In Alias v. City of Oxford, 70 So.3d 1114 (Miss.Ct.App. 2011), the Court of Appeals held that a municipal board took action at the meeting when it voted on a matter, not at the later meeting where the minutes were signed and ratified. The Court held, At one meeting, the decision to approve the variance was made; and at the next meeting, the minutes from the previous meeting were approved. The meeting where the decision was made was the final adjournment of that particular meeting, and it was when the decision became final. Alias, 70 So.3d at 1121. The Court further reasoned, [M]eeting is the original meeting at which the decision was taken, not the meeting at which the minutes were signed. Alias, at 1121. Just as a municipal board, the Permit Board takes action when it approves and accepts the permit and writes it in its minutes, not the next meeting where the minutes are ratified. Globe cites to one case for authority, Thompson v. Jones County Comm. Hospital, 352 So.2d 795 (Miss. 1977). However, Thompson actually supports the position that the time begins to run when the action is taken, not when the minutes are ratified. Thompson stands for the premise that a public board s actions are evidenced through its minutes. The minutes of the board of supervisors 12
are the sole and exclusive evidence of what the board did. Thompson, 352 So.2d at 796 (quoting Smith et al. v. Board of Supervisors, 124 Miss. 36, 86 So. 707 (1920)). We have held in many cases that boards of supervisors and other public boards speak only through their minutes and their actions are evidenced solely by entries on the minutes. Thompson, at 796 (citations omitted)(emphasis). Thus Thompson does not support Globe s argument, but rather supports MDEQ s position. Finally, Globe argues that MDEQ has long interpreted and applied Section 49-17-29(4)(b) as the 30 days begins to run when the minutes are approved. However, Globe offers no proof or support of its claim. In fact, the opposite it is true. The Permit Board has interpreted Section 49-17-29(4)(b) to mean thirty (30) days from when the Permit Board takes action, not when its minutes are ratified, pursuant to their administrative procedure rule, 11 Miss. Admin. Code Pt. 1, R. 4.3. The administrative rule clearly states, [t]he time period in which an aggrieved party may file request for a formal hearing before the Permit Board concerning a Delegated Permit action... taken by the Executive Director or his delegate shall be calculated from the date of the Permit Board meeting at which the decision of the Executive Director or his delegate is accepted by the Permit Board. 11 Miss. Admin. Code Pt. 1, R.4.3. (emphasis). This interpretation leaves no ambiguity as to when the statutory time clock began to run. The Mississippi Supreme Court has held courts should afford great deference to an administrative agency s construction of its own rules and regulations and the statute under which it operates. Smith v. Univ. of MS, 797 So.2d 956, 959 (Miss. 2001). Therefore, Globe s argument fails. 13
B. The Appeal Provisions of Section 49-17-29 Does Apply Globe argues that Section 49-17-29 does not apply and that there is no vehicle to appeal the denial of a formal hearing. This position is incorrect. Section 49-17-29(4)(d) provides that an aggrieved party may request a formal hearing within thirty days of when the Permit Board takes action and approves the permit as being previously approved by the Executive Director and/or her staff. If a party did not request a hearing within the thirty days, then the request is not timely and no formal hearing will be held. Of course, if the party is still aggrieved after the formal hearing, then the person may appeal within twenty days to the chancery court pursuant to Section 49-17- 29(4)(c) and (5)(a) and (b). In summary, there was no formal hearing by the Permit Board, as there was no timely request for a formal evidentiary hearing filed as required by Miss. Code Ann. 49-l7-29(4)(b). There must first be a timely request filed, and second there must be a recorded decision from a formal hearing of the Permit Board for the Chancery Court to review on an administrative appeal. Miss. Code Ann. 49-17-29(4). If there is no timely request for formal evidentiary hearing the administrative record is closed, the permit action final, and no longer available to be proffered for review. C. The Appeal Provisions of Section 49-17-41 Do not apply Globe made a number of somewhat inconsistent arguments at the trial level. One was that the take action date was when the permit board ratified the December minutes at its January meeting. That argument has been addressed as it appears to be a central issue of Globe s appeal to this court. However, at the chancery level, Globe argued that Section 49-17-29 did not apply as the Executive Director denied a formal hearing. Such argument prompted the Chancellor to request all parties to file supplemental briefs addressing the applicability of Section 49-17-41. All parties agreed that Section 49-17-41 did not apply. The Chancellor dismissed the matter based on Section 14
49-17-29 and also to the extent Globe is correct and 49-17-29 does not apply, the case would be dismissed pursuant to Section 49-17-41, by failure to timely appeal. The Chancellor s ruling actually covered all of the bases. This Court is well aware that a Chancellor or circuit court may not create an appeal where statutory authority applies. The Supreme Court has held: A right to appeal is statutory. Bickham v. Department of Mental Health, 592 So.2d 96, 97 (Miss. 1991); See also Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312-3313, 77 L.Ed.2d 987, 993 (1983). Furthermore, a circuit court has no authority to judicially create a right of appeal from an administrative agency in the absence of clear statutory authority therefor. Bickham v. Department of Mental Health, 592 So.2d 96, 98 (Miss. 1991). Casino Magic Corp. v. Ladner, 666 So.2d 452, 456 (Miss. 1995). As such, the Chancellor had to decide with the utmost caution based on Globe s argument and had the parties address Section 49-17-41. All parties agreed Section 49-17-29, not 49-17-41, applied to the Permit Board. Therefore, this issue is of no force, and at best is a rabbit trail or red herring made by Globe. Conclusion Globe failed to timely request a formal hearing within thirty days of the Permit Board approving and accepting the issued permit and placing it on its minutes pursuant to Section 49-17- 29. Therefore the chancery court properly dismissed Globe s appeal and complaint. Therefore, this Court should affirm the chancellor. Respectfully submitted this the 29 th day of July, 2015. THE MISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY s/lee D. Thames, Jr. Lee D. Thames, Jr. (MSB # 10314) Special Assistant Attorney General Donna Hodges (MSB # 9561) MDEQ Senior Attorney 15
Mississippi Attorney General Civil Litigation Division P.O. Box 220 Jackson, Mississippi, 39205-0220 Telephone: (601) 359-3841 ltham@ago.state.ms.us THE MISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY Legal Division P.O. Box 2261 Jackson, MS 39225-2261 Telephone: (601) 961-5171 CERTIFICATE OF SERVICE I hereby certify that I have this day filed the foregoing document with the Clerk of Court using the Court s ECF System, which sent electronic notification to the following: Karen E. Howell (khowell@brunini.com) William D. Drinkwater (wdrinkwater@brunini.com) Rebecca L. Wiggs (rwiggs@watkinseager.com) Keith W. Turner (kturner@watkinseager.com) Donna J. Hodges (donna_hodges@deq.state.ms.us) I further certify that I have this day forwarded by United States Mail, First Class postage prepaid, a true and correct copy of the foregoing to: Honorable Michael Malski Chancery Court Judge Post Office Box 543 Amory, MS 38821 THIS, the 29 th day of July, 2015. s/ Lee D. Thames, Jr. Lee D. Thames, Jr. 16