100021_PC-2021-0015 Motion to Dismiss_20220613

Filed Jun 10, 2022 3:51 PM Office of Administrative Hearings
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
22 EHR 01160
KAIZEN FARMS,
Petitioner,
v.
NC DEPARTMENT OF
ENVIRONMENTAL QUALITY
DIVISION OF WATER RESOURCES,
Respondent.
MOTION TO DISMISS
FOR LACK OF SUBJECT MATTER
JURISDICTION
NOW COMES the North Carolina Department of Environmental Quality, Division of
Water Resources ("DWR") by and through the undersigned pursuant to N.C. Gen. Stat. § 1A-1,
Rule 12(b)(1), and 26 NCAC 3 .0101, and files this Motion to Dismiss for Lack of Subject Matter
Jurisdiction. For the reasons stated below, DWR respectfully requests that the Petition be
dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) because the matter is
moot. In support of this motion, DWR states as follows:
1. On March 2, 2022, DWR assessed a civil penalty of $14,218.50 against Carolina Bay
Farms, LLC, for violation of the Swine Waste Management System General Permit.
Affidavit of Ramesh Ravella ("Ravella Aff."), attached hereto as Exhibit A, ¶ 4 & Att. 1.
2. Petitioner's Petition for Contested Case Hearing regarding the March 2, 2022, civil penalty
assessment was filed and accepted in the Office of Administrative Hearings on May 12,
2022.
3. On June 8, 2022, DWR rescinded the March 2, 2022 civil penalty assessment. Ravella
Af£ ¶ 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. ofEduc., 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
2

ordinance mooted the plaintiff's claim).
10. Here, the March 2, 2022, 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 OAH 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 all the relief this court has the power to
award—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' when a determination is sought on a matter
which, when rendered, cannot have any practical effect on the existing controversy.").
11. The Court 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. This contested case
should be dismissed.
WHEREFORE, Respondent respectfully requests that the Court dismiss the Petition
pursuant to Rule 12(b)(1).
Respectfully submitted, this, the loth day of June, 2022.
JOSHUA H. STEIN
Attorney General
/s/ Scott A. Conklin
Scott A. Conklin
Assistant Attorney General
N.C. Bar No. 28257
3

N.C. Department of Justice
Post Office Box 629
Raleigh, NC 27602
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Counsel for Respondent
4

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing MOTION TO DISMISS FOR LACK OF
SUBJECT MATTER JURISDICTION has been served on Petitioner in this action through the
OAH electronic filing system at the electronic mailing address shown below:
Michael Teachey
Kaizen Farms
[e-mail]
Pro Se Petitioner
Respectfully submitted, this, the l Oth day of June, 2022.
JOSHUA H. STEIN
Attorney General
/s/ Scott A. Conklin
Scott A. Conklin
Assistant Attorney General
5

EXHIBIT A

STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
22 EHR 01160
KAIZEN FARMS,
Petitioner,
v.
NC DEPARTMENT OF
ENVIRONMENTAL QUALITY
DIVISION OF WATER RESOURCES,
Respondent.
AFFIDAVIT OF RAMESH RAVELLA
I, RAMESH RAVELLA, being first duly sworn, testify based on my personal knowledge, as
follows:
1. I am over the age of 18 and am under no disability that would prevent me from
testifying competently to the matters set forth below. I have personal knowledge of the matters
set forth below.
2. I am currently employed by the North Carolina Department of Environmental
Quality ("DEQ"), Division of Water Resources ("DWR"), as the Supervisor of the Animal Feeding
Operation Program.
3. My statements in this affidavit are based on my personal knowledge of the attached
documents of DEQ.
4. On March 2, 2022, DWR issued a civil penalty assessment to Carolina Bay Farms,
LLC, for $13,000.00 and $1,218.50 in investigative costs, for a total of $14,218.40. A true and
accurate copy of the civil penalty assessment is attached as Attachment 1.
1

5. On June 8, 2022, DWR rescinded the March 2 civil penalty assessment against
Carolina Bay Farms, LLC. A true and accurate copy of the rescission of the civil penalty
assessment is attached as Attachment 2.
Further this affiant sayeth not.
This the 9th day of June, 2022.
Ramesh Ravella
STATE OF NORTH CAROLINA
COUNTY OF WAKE
Sworn to and subscribed before me, this the day of June 2022.
Notary Public
My Commission Expires:
/cy,3n p( 7/
PAULA CHAPPELL
NOTARY PUBUC
DURHAM COUNTY, N.C.
2

ATTACHMENT 1

DocuSign Envelope ID: OED844CA-9A5F-43A0-86F0-FE9916C47879
ROY COOPER
Governor
ELIZABETH S. BISER
Secretary
S. DANIEL SMITH NORTH CAROLINA
Director Environmental Quality
February 24, 2022
CERTIFIED MAIL - #7009 2250 0000 8087 1429
RETURN RECEIPT REQUESTED
Carolina Bay Farms, LLC
Maguire Fam LLC
PO Box 2979
Elizabethtown, NC 28337
SUBJECT: Assessment of Civil Penalties for Violation(s) of
15A NCAC 2T .0105(e)(2)
Farm # 100021
Brunswick County
Enforcement File No: PC-2021-0015
Dear Carolina Bay Farms, LLC:
This letter transmits notice of a civil penalty assessed against Carolina Bay Farms, LLC in the amount of
$13,000.00 and $1,218.50 in investigative costs, for a total of $14,218.50. Attached is a copy of the
assessment document explaining this penalty.
This action was taken under the authority vested in me by delegation provided by the Secretary of the
Department of Environmental Quality. Any continuing violation(s) may be the subject of a new
enforcement action, including an additional penalty.
Within thirty days of receipt of this notice, you must do one of the following:
1. Submit payment of the penalty:
Payment should be made directly to the order of the Department of Environmental Quality (do not include
waiver form). Payment of the penalty will not foreclose further enforcement action for any continuing or
new violation(s). Please submit payment to the attention of:
DI IN NA
_E
Miressa D. Garoma
Animal Feeding Operations Program
Division of Water Resources
1636 Mail Service Center
Raleigh, North Carolina 27699-1636
OR
North Carolina Department of Environmental Quality I Division of Water Resources
512 North Salisbury Street 11636 Mall Service Center I Raleigh, North Carolina 27699-1636
919.707.9129
1 , nnamem or c..imommn,a omnm,