Wheeler v. MDEQ, et al.
| Docket Number: | 2002-CP-01636-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 09-30-2003 Opinion Author: Thomas, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Environmental permits - Appeal of multiple permits - Section 49-17-29(5)(b) - Dismissal - M.R.A.P. 2(a) Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Lee, Irving, Myers, Chandler and Griffis, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
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| Trial Court: |
Date of Trial Judgment: 08-29-2002 Appealed from: LOWNDES COUNTY CHANCERY COURT Judge: Robert L. Lancaster Disposition: LONE OAK ENERGY CENTER, LLC, MOTION TO DISMISS GRANTED IN PART AND DENIED IN PART. COLUMBUS LIGHT AND WATER DEPARTMENT MOTION TO DISMISS GRANTED. WHEELER PAID STATUTORY COSTS FOR ONE APPEAL, ONLY. THEREFORE ALL OTHER APPEALS DISMISSED FOR LACK OF JURISDICTION. Case Number: 2002-0400 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Glenn Wheeler |
Glenn Wheeler (pro se) |
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| Appellee: | Mississippi Department of Environmental Quality Permit Board, Columbus Light and Water Department and Lone Oak Energy Center, LLC | JEFFREY CARTER SMITH JOHN A. CRAWFORD CHUCK D. BARLOW LEANN MERCER |
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| Topic: | Environmental permits - Appeal of multiple permits - Section 49-17-29(5)(b) - Dismissal - M.R.A.P. 2(a) |
| Summary of the Facts: | The Mississippi Department of Environmental Quality Permit Board granted six permits for various environmentally involved projects, five of which were issued to Lone Oak Energy Center, a corporation, and one to the City of Columbus, Light and Water Department. Glenn Wheeler, a private citizen, opposed the issuance of the permits and sought a full evidentiary hearing before the Permit Board. Following a hearing, the Board determined the permits had been properly issued. Wheeler appealed. Both Lone Oak and the City filed motions to dismiss. The chancellor granted the City's motion to dismiss for lack of jurisdiction due to Wheeler's failure to timely file the required cost bond as to the City's permit. The chancellor also dismissed the appeal of four of the five permits issued to Lone Oak, finding that Wheeler did not file a $100 cost bond within the mandated twenty days and that the cashier's check deposited with the agency sufficed for bond on appeal of one permit only. The chancellor later issued a judgment affirming the issuance of that one permit. Wheeler appeals. |
| Summary of Opinion Analysis: | Wheeler argues that the court erred in dismissing his appeal as to five of the permits. The Board argues the chancellor erred in finding Wheeler needed to post bond on each permit he sought to appeal. Although six permits were at issue, the Board considers the hearing to have produced only two appealable decisions, one for each interested permittee, Lone Oak and the City. An agency's interpretation of its own enabling statute is to be given deference. The Permit Board has created its operating procedures to incorporate what it believes to be the most efficient method of dealing with challenges to multiple permits issued to a single permittee. This does not violate section 49-17-29(5)(b) unless it is read in an extremely narrow fashion and given meaning the legislature could not possibly have intended. Under M.R.A.P. 2(a)(1), the only mandatory dismissal is for failing to timely file notice of appeal. All parties agree that Wheeler timely filed his notice of appeal and the imperfection lies with the bond he attempted to post. This was a discretionary dismissal. Because M.R.A.P. 2(a)(2) requires the clerk of the court to give written notice to the party in default notifying him of the nature of the default and fourteen days in which to correct the deficiency before granting the dismissal, Wheeler should be given an opportunity to amend his appeal. |
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