Mayor of Morgan City v. Louisiana Department of Environmental Quality

604 So. 2d 144, 1992 La. App. LEXIS 2317, 1992 WL 163415
CourtLouisiana Court of Appeal
DecidedJune 29, 1992
DocketNo. 91 CA 0531
StatusPublished
Cited by2 cases

This text of 604 So. 2d 144 (Mayor of Morgan City v. Louisiana Department of Environmental Quality) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mayor of Morgan City v. Louisiana Department of Environmental Quality, 604 So. 2d 144, 1992 La. App. LEXIS 2317, 1992 WL 163415 (La. Ct. App. 1992).

Opinion

LeBLANC, Judge.

This appeal involves a water quality certification issued by the Louisiana Department of Environmental Quality (DEQ) for a project referred to as the Lake Verret Watershed Plan (LVWP). Several parties, including the Ascension Parish Police Jury, the Assumption Parish Police Jury, and the Iberville Parish Police Jury (collectively referred to as Sponsors, hereinafter) applied for this certification. The Mayor and [146]*146Council of Morgan City and the St. Mary Parish Council (collectively referred to as Opponents, hereinafter), intervened in this matter to contest the issuance of the certification.

On May 30, 1986, following an adjudicatory hearing before a hearing officer, the Assistant Secretary for the Office of Water Resources of DEQ issued a water quality certification for the LYWP project pursuant to La.R.S. 30:1094(A)(3).1 DEQ notified Ms. Doris Falkenheiner, attorney for Opponents, of the issuance of the certification by a letter dated June 2,1986. On June 25, 1986, the Mayor and Council of Morgan City and the St. Mary Parish Council filed a Motion for Hearing by the Secretary of DEQ pursuant to La.R.S. 30:10722, seeking to have the Assistant Secretary’s action of issuing the certification vacated. In the alternative, Opponents asked that the motion be considered a motion for an appeal.

Denying both requests, the Secretary stated in a letter to Opponents dated December 8, 1986, that since the action complained of was the issuance of a water quality certificate and was neither an “enforcement or permit action” nor a decision or order by the Secretary of DEQ, the provisions of La.R.S. 30:1072 were not applicable and, therefore, she could not grant the requested relief. The letter further advised that Opponent’s Motion for Hearing by the Secretary had been forwarded to the Administrator of the Office of Water Resources for treatment as a request for a rehearing. A letter from the Assistant Secretary of DEQ to Ms. Falkenheiner, also dated December 8, 19863, advised that opponents’ request had been treated as a request for a rehearing and that the rehearing was denied.

On December 30, 1986, Opponents filed a petition for judicial review in the Nineteenth Judicial District Court. Thereafter, they filed a motion for summary judgment, seeking a declaration that a water quality certification is a permit action, or alternatively, that it is a final decision or order of the Secretary. Opponents also sought an order granting an appeal to this court or an order transferring the case to this court. The district court first dismissed Opponent’s suit but, on rehearing, ordered that it be transferred to this court. In Mayor and Council of Morgan City v. DEQ, 525 So.2d 235 (La.App. 1st Cir.1988), we issued ex proprio motu a show cause order questioning jurisdiction and found that the district court was the appropriate court to provide judicial review of the Assistant Secretary’s decision and transferred the appeal to that court.

Upon remand, the trial court found error in DEQ’s actions. Specifically, the trial court found that since Opponents established that the Assistant Secretary who issued the water quality certification did not hear the case or read the record, DEQ failed to follow the procedural requirements imposed by La.R.S. 49:957; i.e., prior to a final decision being rendered, the par[147]*147ties must be served with a proposed order and the opportunity must be afforded to adversely affected parties to respond to the proposed order.4 Accordingly, the court rendered judgment in favor of Opponents and against DEQ, reversing the water quality certification of May 30, 1986. The trial court also remanded the matter to DEQ for proceedings consistent with the judgment and written reasons in support of the judgment. Thereafter, Sponsors filed a suspensive appeal and Opponents filed a devolutive appeal in this matter.

On appeal, Sponsors argue that Opponents’ petition for judicial review was untimely and that the trial court did not have jurisdiction to review DEQ’s actions. Sponsors also argue that since the hearing officer, who prepared the proposed order, was a member of DEQ, the procedural requirements of La.R.S. 49:957 are not applicable to the present case.5

Opponents argue that Sponsors: 1.) do not have the right to appeal the district court’s judgment; 2.) should be equitably estopped from raising the issue of timeliness; and 3.) should not be allowed to raise new issues on appeal. Opponents also argue that the trial court erred in rejecting their argument that the procedural requirements of La.R.S. 49:956 were not complied with by DEQ (due to the hearing officer conducting an aerial survey after the hearing was concluded but before the hearing officer issued his proposed findings and recommendations and without giving Opponents an opportunity to respond to or rebut the evidence ascertained from the survey). Lastly, Opponents assert that the trial court should have determined that DEQ erred in not giving effect to an injunction issued in 1983 which permanently enjoined work on the LVWP.6

First, we address Opponents’ arguments regarding Sponsors’ right to appeal the judgment of the district court. Opponents contend that Sponsors, who were not named as defendants in the trial court proceedings, should have intervened in the trial court proceedings to assert the arguments currently being advanced on appeal. Since Sponsors did not do so, Opponents argue they should be equitably estopped from bringing an appeal.

We find no merit in Opponents contentions. La.C.C.P. art. 2086 states, “A person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.” Also, La.C.C.P. art. 1091 provides, in pertinent part, "A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto....” Sponsors could have intervened at the trial court level since they clearly would have had sufficient interest in the litigation to do so. Thus, pursuant to La.C.C.P. art. 2086, Sponsors are authorized to pursue their appeal. Furthermore, Opponents have not demonstrated that they changed their position to their detriment with respect to this litigation as a result of a justifiable reliance on the actions or inactions of Sponsors. See, John Bailey Contr. v. St., Dept. of Tr. & Dev., 439 So.2d 1055 (La.1983). Accordingly, we find no merit in Opponents’ arguments regarding equitable estoppel.

Additionally, we note that even if Sponsors were estopped from raising the timeliness issue, this court may notice on [148]*148its own its lack of jurisdiction to adjudicate a matter. West v. Louisiana Dept. of Public Safety, 432 So.2d 273 (La.App. 1st Cir.1982). A petition requesting judicial review must be timely filed for a reviewing court to have jurisdiction to review an administrative ruling. Robinson v. City of Baton Rouge, 566 So.2d 415 (La.App. 1st Cir.1990). Thus, we consider whether Opponents’ petition for judicial review was timely filed.

In this instance, La.R.S. 49:964 B and 49:959 set forth the applicable time limitations pertinent to this case, as follows:

§ 964. Judicial review of adjudication
B.

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Bluebook (online)
604 So. 2d 144, 1992 La. App. LEXIS 2317, 1992 WL 163415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mayor-of-morgan-city-v-louisiana-department-of-environmental-quality-lactapp-1992.