North Buncombe Ass'n of Concerned Citizens, Inc. v. North Carolina Department of Environment, Health, & Natural Resources

449 S.E.2d 451, 338 N.C. 302, 1994 N.C. LEXIS 654

• Court: Supreme Court of North Carolina
• Decided: November 3, 1994
• Docket: No. 506PA93
• Status: Published

Opinion

WEBB, Justice.

The resolution of this appeal depends on whether the petitioners are entitled to a contested case hearing by the OAH on their claim that the mining permit should not have been issued. If they were, it was error for the Court of Appeals to order this case dismissed. The Court of Appeals, relying on Batten v. N. C. Dept. of Corrections, 326 N.C. 338, 389 S.E.2d 35 (1990), held that the APA does not provide for the right to a contested case hearing, but only provides for the method of hearing when the organic statute which delineates a substantive right provides for such a hearing. The Mining Act of 1971 does not provide for a contested case hearing for the petitioners in this case and the Court of Appeals concluded that the petitioners had no such right.

After the Court of Appeals rendered its decision in this case we decided Empire Power Co. v. N.C. DEHNR, 337 N.C. 569, 447 S.E.2d 768 (1994), a case based on facts very similar to this case. In that case, we clarified some of the language of Batten and held that the APA grants the right to a contested case hearing to all persons aggrieved by a state agency decision unless jurisdiction is expressly excluded by the APA or the organic act which created the right. There is no such exclusion in this case. It was error for the. Court of Appeals to hold that the OAH did not have jurisdiction to conduct a contested case hearing on the petitioners’ claim. This case must be returned to the superior court for a hearing as to whether the petition was timely filed.

For the reasons stated in this opinion, we reverse the Court of Appeals and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.