520013_Final Decision_20220104

FILED
OFFICE OF ADMINISTRATIVE HEARINGS
01/03/2022 2:18 PM
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF JONES 21 EHR 04664
Donnie Mills
Petitioner,
v.
NC DEQ Division of Water Resources
Respondent.
FINAL DECISION
THIS MATTER comes for consideration of the Motion to Dismiss for Lack of Subject
Matter Jurisdiction (“Motion”) filed on December 13, 2021 by the North Carolina Department of
Environmental Quality, Division of Water Resources (“DWR” or “Respondent”) pursuant to N.C.
Gen. Stat. § 1A-1, Rule 12(b)(1), and 26 NCAC 03 .0101. In its Motion, DWR asserts that this
matter is moot. A Notice Request for Response to the Motion was issued on December 15, 2021
to Donnie Mills (“Petitioner”) informing Petitioner that he had until December 28, 2021 to respond
to the Motion if he desired objections to be considered before a ruling was made. The deadline to
respond has expired, and Petitioner has not made any objections to the Motion; therefore, this
matter is now ripe for adjudication.
APPEARANCES
For Petitioner: Donnie Mills
[e-mail]
For Respondent:Brenda Menard
North Carolina Attorney General's Office
[e-mail]
ISSUE
Whether Petitioner’s contested case petition should be dismissed for lack of subject matter
jurisdiction due to mootness?
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1.On September 20, 2021, DWR assessed a civil penalty of $14,273.44 against DC
Mills Farms, Inc. for violation of the Swine Waste Management System General Permit. Affidavit
of Jeffrey Poupart (“Poupart Aff.”), Exhibit A, ¶ 4 & Att. 1.
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2.On November 1, 2021, Petitioner filed a Petition for Contested Case Hearing in the
Office of Administrative Hearings regarding the September 20, 2021 civil penalty assessment.
3.On December 13, 2021, DWR rescinded the September 20, 2021 civil penalty
assessment. Ex. A, ¶ 5 & Att. 2.
4.“Because a moot claim is not justiciable, and a trial court does not have subject
matter jurisdiction over a non-justiciable claim, mootness is properly raised through a motion
under N.C. Gen. Stat. § 1A-1, Rule 12(b)(1).” Yeager v. Yeager, 228 N.C. App. 562, 565, 746
S.E.2d 427, 430 (2013).
5.A motion to dismiss for lack of subject matter jurisdiction may be raised at any
time. Hentz v. Asheville City Bd. of Educ., 189 N.C. App. 520, 522, 658 S.E.2d 520, 521 (2008).
6.When considering a motion to dismiss for lack of subject matter jurisdiction under
Rule 12(b)(1), a court need not confine itself to the pleadings; it may consider other evidence,
including affidavits, without converting the motion to a motion for summary judgment. Lippard v.
Diamond Hill Baptist Church, ___ N.C. App. ___, 821 S.E.2d 246, 248 (2018).
7.If the relief sought in a petition has already been granted, such that granting the
relief requested will have no practical effect, the action is moot. Shell Island Homeowners Ass’n,
Inc. v. Tomlinson, 134 N.C. App. 286, 291, 517 S.E.2d 401, 404 (1999). “Courts have no
jurisdiction to determine matters that are speculative, abstract, or moot, and they may not enter
anticipatory judgments, or provide for contingencies which may arise thereafter.” Alford v. Davis,
131 N.C. App. 214, 218, 505 S.E.2d 917, 920 (1998).
8.The issue of mootness is determined based on the facts as they exist presently, not
as they existed at the commencement of the action. Shell Island Homeowners Ass’n, Inc., 134 N.C.
App. at 290, 517 S.E.2d at 404.
9.The rescission of a challenged agency action generally moots a claim challenging
the lawfulness of that policy or ordinance. See In re Kitchin v. Halifax Cty., 192 N.C. App. 559,
565, 665 S.E.2d 760, 764 (2008) (holding that the rescission of the challenged policy rendered the
challenge moot); Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 110, 493
S.E.2d 797, 803 (1997) (holding that the rescission of the challenged ordinance mooted the
plaintiff’s claim).
10.Here, the September 20, 2021 civil penalty assessment has already been rescinded.
The question of whether or not the agency erred in issuing the civil penalty assessment is purely an
abstract question of law, which the Office of Administrative Hearings has no jurisdiction to
address. E.g., Hindman v. Appalachian State Univ., 219 N.C. App. 527, 530, 723 S.E.2d 579, 581
(2012) (“[I]t is not the responsibility of courts to decide abstract propositions of law.”).
Furthermore, Petitioner has already been provided with the relief sought in the petition—i.e., the
civil penalty assessment is no longer in effect. The claim is therefore moot. See Roberts v. Madison
Cty. Realtors Ass’n, Inc., 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996) (“A case is ‘moot’
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when a determination is sought on a matter which, when rendered, cannot have any practical effect
on the existing controversy.”).
11.This Tribunal lacks subject matter jurisdiction to hear Petitioner’s claims because
the agency action that is the subject of the contested case is no longer in effect; therefore, this
contested case must be dismissed.
FINAL DECISION
Based on the foregoing, this Tribunal lacks subject matter jurisdiction over Petitioner’s
contested case because the matter in controversy is MOOT and Respondent’s Motion to Dismiss
is GRANTED.
The contested case petition is DISMISSED WITH PREJUDICE and notice that the
hearing scheduled for the week of March 21, 2022 is VACATED.
NOTICE OF APPEAL
This is a Final Decision issued under the authority of N.C. Gen. Stat. § 150B-34. Under
the provisions of North Carolina General Statute § 150B-45, any party wishing to appeal the final
decision of the Administrative Law Judge must file a Petition for Judicial Review in the Superior
Court of the county where the person aggrieved by the administrative decision resides, or in the
case of a person residing outside the State, the county where the contested case which resulted in
the final decision was filed. The appealing party must file the petition within 30 days after
being served with a written copy of the Administrative Law Judge’s Final Decision. In
conformity with the Office of Administrative Hearings’ rule, 26 N.C. Admin. Code 03.0102, and
the Rules of Civil Procedure, N.C. General Statute 1A-1, Article 2, this Final Decision was served
on the parties as indicated by the Certificate of Service attached to this Final Decision. N.C.
Gen. Stat. § 150B-46 describes the contents of the Petition and requires service of the Petition on
all parties. Under N.C. Gen. Stat. § 150B-47, the Office of Administrative Hearings is required to
file the official record in the contested case with the Clerk of Superior Court within 30 days of
receipt of the Petition for Judicial Review. Consequently, a copy of the Petition for Judicial
Review must be sent to the Office of Administrative Hearings at the time the appeal is initiated in
order to ensure the timely filing of the record.
IT IS SO ORDERED.
This the 3rd day of January, 2022.
B
Stacey Bice Bawtinhimer
Administrative Law Judge
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CERTIFICATE OF SERVICE
The undersigned certifies that, on the date shown below, the Office of Administrative
Hearings sent the foregoing document to the persons named below at the addresses shown below,
by electronic service as defined in 26 NCAC 03 .0501(4), or by placing a copy thereof, enclosed
in a wrapper addressed to the person to be served, into the custody of the North Carolina Mail
Service Center who subsequently will place the foregoing document into an official depository of
the United States Postal Service.
Donnie Mills
[e-mail]
Petitioner
Brenda Menard
NC Attorney General's Office
[e-mail]
Attorney For Respondent
This the 3rd day of January, 2022.
JG
Jerrod Godwin
Law Clerk
N.C. Office of Administrative Hearings
1711 New Hope Church Road
Raleigh, NC 27609-6285
Phone: [phone]