Clark Stone Co., Inc. v. NC DENR, No. COA03-526.

• Docket Nº: No. COA03-526.
• Citation: 594 S.E.2d 832, 164 NC App. 24
• Case Date: May 04, 2004
• Court: Court of Appeal of North Carolina (US)

594 S.E.2d 832
164 NC App. 24

CLARK STONE COMPANY, INC., Petitioner,
v.
N.C. DEPARTMENT OF ENVIRONMENT & NATURAL RESOURCES, DIV. OF LAND RESOURCES and North Carolina Mining Commission, Respondents,
Appalachian Trail Conference National Parks Conservation Association; Unincorporated Association of Citizens to Protect Belview Mountain; Ollie Cox; and Faye Williams, Respondent/Intervenors

No. COA03-526.

Court of Appeals of North Carolina.

May 4, 2004.

594 S.E.2d 833

Hatch, Little & Bunn, L.L.P., by Harold W. Berry, Jr., A. Bartlett White, and Tina L. Frazier, Raleigh, for petitioner/appellee

Attorney General Roy Cooper, by Senior Deputy Attorney General James C. Gulick and Assistant Attorney General Jennie Wilhelm Mau, for respondent/appellants.

Southern Environmental Law Center, by Donnell Van Noppen, III, and Sierra B. Weaver, Chapel Hill, for respondent/intervenor

594 S.E.2d 834

appellants Appalachian Trail Conference and National Parks Conservation Association, and Sigmon, Clark, Mackie, Hutton, Hanvey & Ferrell, P.A., by Forrest A. Ferrell, Hickory, for respondent/intervenor appellants Association of Unincorporated Citizens to Protect Belview Mountain, Ollie Cox, and Faye Williams

WYNN, Judge.

The North Carolina Department of Environment and Natural Resources ("DENR") and the North Carolina Mining Commission (collectively hereinafter "Respondents"), together with the Appalachian Trail Conference, the National Parks Conservation Association, the Unincorporated Association of Citizens to Protect Belview Mountain, Ollie Cox and Faye Williams (collectively hereinafter "Respondent-Intervenors") appeal from an order of the trial court reversing a final agency decision by the North Carolina Mining Commission ("the Commission"). In its final agency decision, the Commission upheld the revocation of a mining permit issued by DENR to Clark Stone Company, Inc. ("Petitioner"). Thereafter, the trial court reversed the decision of the Commission.

On appeal to this Court, Respondents and Respondent-Intervenors contend the trial court erred by (I) reversing the decision of the Commission upholding the revocation of Petitioner's permit; (II) concluding that the revocation was not made upon proper procedure; (III) concluding that revocation was improper because it was not willful; and (IV) concluding that the doctrine of vested rights prohibited revocation of Petitioner's permit. For the reasons stated herein, we reverse the decision of the trial court.

The pertinent procedural and factual history of the instant appeal is as follows: Petitioner filed a petition for a contested case hearing in the Office of Administrative Hearings on 10 October 2000. The administrative law judge reviewing the matter thereafter allowed two private, non-profit groups, the Appalachian Trail Conference and the National Parks Conservation Association, together with the Unincorporated Association of Citizens to Protect Belview Mountain, and neighboring land owners Ollie Cox and Faye Williams to intervene in the case. Petitioner filed a motion for summary judgment, contending there were no genuine issues of material fact and that it was entitled to judgment as a matter of law.

On 9 April 2001, the administrative law judge held a hearing pursuant to Petitioner's motion for summary judgment. The evidence presented at the hearing tended to show the following: In February of 1999, Petitioner applied to DENR for a mining permit to conduct mining operations on land in Avery County, North Carolina. DENR reviewed Petitioner's application and issued a mining permit on 13 May 1999. Petitioner subsequently began preparing the land for mining operations. At the time DENR issued the mining permit, neither DENR nor Petitioner were aware that the mining operation was within visual and audible range of the Appalachian Trail, a publicly owned and federally designated "National Scenic Trail."

On 10 February 2000, Jay Leutze, a resident of the area near the mining site and a member of the Unincorporated Association of Citizens to Protect Belview Mountain, contacted Charles Gardner, the Director of the Division of Land Resources within DENR. Leutze informed Gardner of his concerns about Petitioner's mining operation and its potential impact on the Appalachian Trail. After learning of the mining operation's proximity to the Appalachian Trail, DENR initiated an investigation. Gardner traveled to the area on several occasions to view the mining site from the Appalachian Trail. Gardner testified that the mining operation was "clearly visible in good weather from [the Appalachian Trail] and particularly the portion of the [T]rail that goes down Hump Mountain toward the quarry." DENR also hired landscape and acoustical consultants to assess the situation. The site analysis submitted by the landscape architect reported that "[t]he Mine Site is visible from a substantial section of the [T]rail along Hump Mountain for a duration of approximately 20-25 minutes walking time.... The distance between the [T]rail at Hump Mountain and the mine site is approximately 2 miles." The analysis further found that "the visual prominence of the mine site as viewed from Little

594 S.E.2d 835

Hump Mountain appears almost equal in magnitude to that viewed from Hump Mountain." The distance between the Trail on Little Hump Mountain and the mining site is three miles. The analysis report noted that "[b]ased on the relationship of the Appalachian Trail to the Mine and the magnitude of the Phase I quarry operations, it would be difficult to meet" federal land management plan criteria for national forest properties

Kathy Ludlow, a landscape architect and recreation analyst for the U.S. Forest Service, also prepared a scenery analysis of the mining operation. Ludlow testified that "the view from [that portion of the Trail on] Hump Mountain is an outstanding 360-degree panorama" with a "very natural-appearing landscape." Ludlow characterized the Hump Mountain site as an "important viewing location" given the large number of persons using that portion of the Appalachian Trail who have "high expectations for viewing natural-appearing scenery and attractive scenery." Further findings by Ludlow in her analysis included the following: (1) the proximity of the mining operation to the Appalachian Trail is less than three miles; (2) the duration of the direct view of the mining operation while walking along the Appalachian Trail on Hump Mountain is approximately twenty-five minutes; (3) the high quality of the view from Hump Mountain increases the duration of time spent by visitors at that particular portion of the Trail; and (4) the view of the mining site from the Appalachian Trail is "very clear" in good weather.

Dr. Noral D. Stewart, an acoustical consultant, provided an acoustical assessment of the impact of the mining operation on the Appalachian Trail. In his report, Dr. Stewart noted that "[t]he [T]rail location of primary concern is particularly unique. It is one of the few locations where there is a long unobstructed view from the [T]rail for a long walking distance along the [T]rail." Further, "the quiet mountain environment makes control of noise particularly difficult" and "means it is easier to hear a distant source." The report concluded that the mining site's "primary jaw-crusher is the major noise problem" and "would be noticed by and would likely be a major irritant to any hearing person walking the [T]rail."

On 28 February 2000, Gardner informed Paul Brown, president and stockholder of Petitioner company, that DENR would hold a public meeting concerning the mine. Approximately one hundred and fifty people attended the public hearing held on 16 March 2000. Petitioner presented information on its mining site and its effects on the Trail. Approximately thirty-one persons spoke on the subject of the mine, most in opposition thereto.

Over the next several weeks, DENR and Petitioner discussed proposed modifications to the mining permit conditions to mitigate the impact of the mine on the Appalachian Trail. On 19 April 2000, DENR sent Petitioner a notice of its intent to revoke the mining permit unless an appropriate resolution of the problem could be found. DENR also advised Petitioner of its statutory right to an informal conference to discuss the matter. The informal conference was held 22 May 2000. During the conference, DENR requested that Petitioner submit a modification proposal, including a landscaping plan addressing the visual and acoustical impact of the mining operation on the Appalachian Trail.

Petitioner thereafter submitted proposed permit modifications and a landscape plan. Landscape architects in DENR's Division of Parks and Recreation reviewed the proposed landscape plan and determined that "little professional work [had] gone into [its] preparation." According to the architects, the proposed plan lacked the "requisites of [a] comprehensive planting plan" in that there was "no mention of soil preparation, species identification, design details, planting techniques, irrigation or general plant maintenance." Although the plan showed a "protective/visual screening buffer," it contained no "descriptive engineering or landscape data." Finally, the plan failed to develop "line-of-sight profiling between the quarry and surrounding viewpoints ... to determine effective locations and heights of visual screens." They recommended that Petitioner "submit a plan that has been prepared by a professional landscape architectural firm which would

594 S.E.2d 836

have the expertise to do a comprehensive assessment of the visual impacts of [the mine] and determine what, if any, plantings or other landscape techniques would effectively mitigate those impacts."

Gardner informed Petitioner that its proposed landscape plan was inadequate and invited Petitioner to propose additional modifications by 4 August 2000. Gardner gave Petitioner a copy of the concerns and...