Watahomigie v. Arizona Bd. of Water Quality Appeals
| Citation | 887 P.2d 550,181 Ariz. 20 |
| Decision Date | 21 April 1994 |
| Docket Number | CA-CV,No. 1,1 |
| Parties | Don WATAHOMIGIE, Rex Tilousi, and The Havasupai Tribe, a Federally Recognized Indian Tribe, Plaintiffs-Appellants, v. ARIZONA BOARD OF WATER QUALITY APPEALS; Harold Merkow, Hearing Officer, Arizona Department of Environmental Quality; Union Pacific Minerals, a Utah Corporation, Defendants-Appellees. 93-0142. |
| Court | Court of Appeals of Arizona |
The Arizona Department of Environmental Quality ("ADEQ") issued an aquifer protection permit authorizing Union Pacific Minerals ("UPM") to operate a uranium mine. Don Watahomigie, Rex Tilousi, and The Havasupai Indian Tribe (collectively, "Tribe") filed a notice of appeal with the Arizona Board of Water Quality Appeals ("Board") challenging issuance of the permit. After the Board dismissed the administrative appeal, the Tribe sought judicial review of the order of dismissal and of an order in limine entered by the Board. The Maricopa County Superior Court granted summary judgment against the Tribe. This appeal followed.
We must decide whether the Board erred in dismissing the Tribe's appeal because of deficiencies in the notice of appeal. In order to resolve this question we must decide several subordinate issues: (1) did the Board have the statutory authority to regulate the contents of the notice of appeal, (2) is Arizona Administrative Code ("A.A.C.") R2-1-708 invalid because the Board did not promulgate it until after the January 1, 1988 date as required by Ariz.Rev.Stat.Ann. ("A.R.S.") section 49-322(D), (3) do the Board's regulations violate the equal protection clause, (4) did the Board deprive the Tribe of due process of law when it dismissed the Tribe's appeal without any consideration on the merits, and (5) did the Tribe properly comply with the notice of appeal requirements in A.A.C. R2-1-708? We must also decide whether the Board abused its discretion when it granted a motion in limine and denied the Tribe leave to supplement its notice of appeal. Finally, we must decide whether A.R.S. section 49-323(B) (1988) requires dismissal of an appeal if a hearing does not begin within the sixty-day period required by A.R.S. section 49-323(B).
We resolve these issues as follows. We conclude that the regulations promulgated by the Board are valid and enforceable and that the Board did not err in dismissing the Tribe's appeal for deficiencies in the notice of appeal. We further conclude that the Board did not abuse its discretion when it granted the motion in limine and denied the Tribe leave to supplement its notice of appeal. Finally, we conclude that the Board did not err in dismissing the appeal on the ground that the evidentiary hearing did not begin within the sixty-day period required by A.R.S. section 49-323(B) (1988). Accordingly, we affirm.
On March 6, 1989, UPM filed an application with ADEQ for an aquifer protection permit so that it could build and operate a uranium mine. The location of UPM's proposed mine site is approximately six miles south of Hualapai Hilltop on the south rim of the Grand Canyon, 50 miles northeast of Peach Springs in Coconino County, Arizona. The proposed mine is located just south of the southern boundary of the Havasupai Indian Reservation in the Coconino Plateau Groundwater Basin and directly over a geological formation known as the Redwall-Muav Aquifer. This aquifer feeds the Havasu Springs, which is a source of water for Supai Village on the Havasupai Indian Reservation.
In December 1990, ADEQ held public hearings in both Flagstaff and Supai, Arizona, concerning UPM's aquifer protection permit application. See A.A.C. R18-9-124; see also A.A.C. R18-1-401, A.A.C. R18-1-402. The purpose of these hearings was to inform the public of the exact nature of UPM's permit application and to allow interested persons to make statements and submit written comments. See A.A.C. R18-1-402(D). At the hearing held in Supai, various members of the Tribe voiced their opposition to UPM's permit application. The Tribe's attorneys were also present at this hearing.
On May 17, 1991, ADEQ issued an aquifer protection permit authorizing UPM to operate the uranium mine. Once ADEQ made its decision to issue the permit to UPM, any person adversely affected by that decision had a right to appeal the issuance of such permit to the Board. See A.R.S. § 49-323(A).
On June 17, 1991, the Tribe filed a notice of appeal with the Board challenging the issuance of the aquifer protection permit to UPM. Both UPM and ADEQ moved to dismiss the Tribe's appeal or, in the alternative, for an order in limine preventing the Tribe from calling any witnesses or introducing any exhibits not listed on the notice of appeal at the evidentiary hearing. UPM and ADEQ based their motions on the Tribe's failure to follow the disclosure requirements in its notice of appeal as required by A.A.C. R2-1-708(B)(6)-(7) and R2-1-708(C).
On July 15, 1991, the Tribe filed three "supplements" to its initial notice. These supplements identified twenty-six issues the Tribe intended to raise. Many of these issues were highly technical. Additionally, the supplements identified numerous exhibits and sixteen witnesses, including several experts in hydrology and geology. The Tribe made these supplemental disclosures approximately three weeks before the start of the evidentiary hearing.
At the same time it filed the supplemental disclosures, the Tribe responded to UPM and ADEQ's motions to dismiss. The Tribe argued that the Board's disclosure rules were unauthorized and could not be enforced against the Tribe. It also argued that the Board had no power to dismiss the appeal because no statute or rule gave it such authority. The Tribe further claimed that since UPM and ADEQ had received all required information through the filing of the Tribe's supplements, the motions to dismiss were moot.
On August 1, 1991, the Board heard oral argument on the motion to dismiss. At the hearing, the Tribe failed to explain to the satisfaction of the Board why the newly-disclosed witnesses had been unknown when the Tribe filed its initial notice of appeal. Also, UPM alleged that one of the Tribe's supplementally-disclosed experts had testified for the Tribe in another of the Tribe's cases being handled by the same attorney. According to UPM, the expert's identity was known to the Tribe all along and should have been disclosed when the notice of appeal was filed. At the conclusion of the hearing, the Board found the Tribe's notice of appeal deficient. The Board concluded that the Tribe's conduct had caused prejudice to both UPM and ADEQ, for which no adequate cure existed. Accordingly, the Board granted both UPM's and ADEQ's motion to dismiss the Tribe's appeal.
On August 15, 1991, the Tribe filed a motion for rehearing. On October 17, 1991, the Board vacated its previous dismissal of the Tribe's appeal. Additionally, the Board granted a motion in limine, which had initially been made by UPM and ADEQ as an alternative to their motion to dismiss. The order in limine limited the parties to calling only "those witnesses identified in the notice of appeal and ... answer" at the evidentiary hearing. The order also allowed the Tribe to use any documents on record with ADEQ as exhibits and placed no limitation on the issues that the Tribe could raise. The Board also ordered that a hearing commence within thirty days.
On December 16, 1991, UPM filed a second motion to dismiss the Tribe's appeal. It argued that the Arizona Supreme Court's then-recent decision in Neal v. City of Kingman, 169 Ariz. 133, 817 P.2d 937 (1991), showed that the Board properly dismissed the Tribe's appeal. UPM also indicated that several key witnesses for UPM and ADEQ had become unavailable during the prolonged delay that had resulted from the Tribe's defective notice of appeal. After a hearing on January 15, 1992, the Board granted UPM's second motion to dismiss.
On January 29, 1992, the Tribe filed another motion for rehearing on the basis that it had not received adequate notice of the January 15, 1992 hearing, that procedural irregularities occurred at the hearing, and that the findings of fact by the Board were contrary to the evidence. On March 4, 1992, the Board granted the Tribe's motion for rehearing and again ordered the Tribe's appeal dismissed. On March 6, 1992, the Board issued its final written decision of dismissal, stating:
For the reasons stated in UPM's second motion to dismiss: (1) that [the Tribe's] notice of appeal did not comply with the requirements of A.A.C. R2-1-708; and (2) that the evidentiary hearing in this matter did not begin within the sixty-day period prescribed by A.R.S. § 49-323(B), the Board lacks jurisdiction to hear [the Tribe's] appeal.
The Tribe sought judicial review in superior court of the Board's dismissal of its administrative appeal and of the order in limine. UPM and ADEQ filed a motion for summary judgment, and the Tribe filed a cross-motion for summary judgment. The trial court entered summary judgment for UPM and ADEQ, and denied the Tribe's motion. On January 21, 1993, the trial court denied the Tribe's motion to vacate and to amend the judgment under Rule 59, Arizona Rules of Civil Procedure. This appeal followed.
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