IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
MARIE REED, ) KAREN CHEESEMAN, ) SIMEON HAHN, JEFFREY ) RICHARDSON, and MUJAHID ) NYAHUMA, ) ) Appellants, ) ) v. ) C.A. No. N22A-11-006 SKR ) DELAWARE DEPARTMENT OF ) NATURAL RESOURCES AND ) ENVIRONMENTAL CONTROL, ) ) Appellee. )
Submitted: March 10, 2023 Decided: June 28, 2023
ORDER
Upon Consideration of the Delaware Department of Natural Resources and Environmental Control’s Motion to Dismiss: DENIED
1. This dispute stems from the Secretary of the Delaware Department of
Natural Resources and Environmental Control’s (“DNREC”) Order No.
2021-W/CCE-00026 (the “Secretary’s Order”), which authorized a
subaqueous lands permit associated with the construction of a new
container port on the Delaware River at the Diamond State Port Corporation’s Edgemoor property.1 DNREC published the Secretary’s
Order on September 30, 2021.2
PROCEDURAL OVERVIEW 2. The procedural history of this action, while sprawling, bears mention.
Shortly after DNREC published the Secretary’s Order, five individuals –
Marie Reed, Karen Cheeseman, Simeon Hahn, Jeffrey Richardson, and
Mujahid Nyahuma (collectively, the “Individual Appellants”) – and the
Delaware Community Benefits Agreement Coalition (“DCBAC”) each
filed separate pro se appeals of the Secretary’s Order to the Environmental
Appeals Board (the “Board”).3
3. Two days after the Individual Appellants filed their appeal, Greenwich
Terminals LLC, GMT Realty and Glouster Terminals LLC, the Port of
Philadelphia, and Walter Curran (collectively, the “Port Operators”) filed
three other appeals of the Secretary’s Order. The Board ultimately
consolidated the Port Operator appeals with the Individual Appellants’
appeals (the “Consolidated Appeal”).
1 D.I. 7 (DNREC’s Mot. to Dismiss) at 1-2. 2 Id. 3 D.I. 4 (App.’s Op. Br.) at 1. 2 4. On April 28, 2022, the Board issued an order dismissing DCBAC for
failure to secure legal counsel and mandating that the Individual
Appellants file amended notices of appeal (which they did) and affidavits
supporting their individual standing (which they did not).4
5. DNREC, in turn, filed a motion to dismiss the Individual Appellants from
the Consolidated Appeal for lack of standing.5 The Board held a hearing
on the motion in July 2022.6 While the Individual Appellants made
statements about their standing at the July 2022 hearing, the Board did not
swear in witnesses or receive exhibits.7 After argument, the Board found
that the Individual Appellants lacked standing to appeal the Secretary’s
Order and dismissed them from the Consolidated Appeal in a decision (the
“Decision”) dated October 24, 2022.8
6. This appeal challenges the Decision.9 The Individual Appellants claim
now, as they did before the Board, that they have standing to appeal the
Secretary’s Order.10 Because the Board dismissed the Individual
Appellants from the Consolidated Appeal before they presented an attack
4 Id. at 1-2. 5 Id. 6 Id. at 2. 7 Id. 8 See EAB Appeal No. 2021-07. 9 See generally D.I. 1 (Notice of Appeal). 10 D.I. 10 (App.’s Resp. to Mot. to Dismiss) at 1. 3 on the merits of the Secretary’s Order, the scope of this appeal is limited.11
The Individual Appellants do not request – nor could they – a ruling on the
merits of their underlying appeal, as the Court has no record upon which
to make such a ruling.12 Instead, they merely seek remand to the Board so
they can be afforded a “public hearing” on the merits of their standing
claim.13
7. DNREC, on the other hand, moves for dismissal of the appeal on two
procedural grounds: (1) the Individual Appellants’ failure to name one or
more “indispensable” parties (the Port Operators) to the review proceeding
before this Court, in violation of Superior Court Civil Rule 19; and (2) the
Individual Appellants’ failure to “perfect” their appeal to this Court, in
violation of Rule 72.14
DISCUSSION A. The Port Operators Are Not Necessary or Indispensable to this Limited Appeal.
8. In the exercise of quasi-judicial or adjudicatory administrative power,
administrative hearings, like judicial proceedings, are governed by
11 Id. 12 Id. at 5. 13 Id. at 2. 14 See generally D.I. 7. 4 fundamental requirements of fairness.15 These requirements are the
essence of due process.16 As it relates to the requisite characteristics of the
proceedings, due process entails providing the parties to the proceeding
with the opportunity to be heard, by presenting testimony or otherwise, and
the right of controverting, by proof, every material fact which bears on the
question of right in the matter.17 “[A]ll parties to the litigation who would
be directly affected by a ruling on the merits of an appeal should be made
party to the appellate proceedings.”18
9. Superior Court Civil Rule 19(a) makes clear that a person is “directly
affected by a ruling on the merits” if:
(1) In the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise
15 Carousel Studio v. Unemployment Ins. Appeal Bd., 1990 WL 91108, at *1 (Del. Super. June 26, 1990). 16 Id. 17 Id. at *2-4. 18 CCS Investors LLC v. Brown, 977 A.2d 301, 322 (Del. 2009) (emphasis added). This holding “is reflected in Superior Court Rule 19(a).” Id. 5 inconsistent obligations by reason of the claimed interest.19
The initial burden is on the moving party to show that the absent parties
are “needed for a just adjudication.”20
10.As mentioned, the appeal before the Court is limited to the issue of whether
the Individual Appellants have standing to challenge the Secretary’s Order
before the Board. It is not a dispute over substance. So, to the extent the
Port Operators have an aligned interest with the Individual Appellants in
challenging the Secretary’s Order, that simple shared goal does not render
the Port Operators indispensable for anything and everything the
Individual Appellants do. Insofar as the Port Operators are concerned, the
Court’s ruling here will have little (if any) bearing on their interest.
Remand simply means that the Board must consider whether the Individual
Appellants have standing in a proper evidentiary hearing.
11.This appeal is not “on the merits.” Functionally, it is a procedural
challenge. And because the Port Operators are not indispensable parties to
the appeal, it is a challenge DNREC must lose.
19 Super. Ct. Civ. R. 19(a). 20 Martinez v. E.I. DuPont De Nemours and Co., Inc., 82 A.3d 1, 20 (Del. Super. 2012). 6 B. The Individual Appellants Complied With Rule 72’s Notice and Service Requirements.
12.The power of an appellate court to exercise jurisdiction rests upon the
perfecting of an appeal within the time period fixed by statute.21 Title 7
Del. C. 6009(a) provides that “[a]ny [EAB] appeal shall be perfected
within 30 days of the receipt of the written opinion of the Board.”22 While
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
MARIE REED, ) KAREN CHEESEMAN, ) SIMEON HAHN, JEFFREY ) RICHARDSON, and MUJAHID ) NYAHUMA, ) ) Appellants, ) ) v. ) C.A. No. N22A-11-006 SKR ) DELAWARE DEPARTMENT OF ) NATURAL RESOURCES AND ) ENVIRONMENTAL CONTROL, ) ) Appellee. )
Submitted: March 10, 2023 Decided: June 28, 2023
ORDER
Upon Consideration of the Delaware Department of Natural Resources and Environmental Control’s Motion to Dismiss: DENIED
1. This dispute stems from the Secretary of the Delaware Department of
Natural Resources and Environmental Control’s (“DNREC”) Order No.
2021-W/CCE-00026 (the “Secretary’s Order”), which authorized a
subaqueous lands permit associated with the construction of a new
container port on the Delaware River at the Diamond State Port Corporation’s Edgemoor property.1 DNREC published the Secretary’s
Order on September 30, 2021.2
PROCEDURAL OVERVIEW 2. The procedural history of this action, while sprawling, bears mention.
Shortly after DNREC published the Secretary’s Order, five individuals –
Marie Reed, Karen Cheeseman, Simeon Hahn, Jeffrey Richardson, and
Mujahid Nyahuma (collectively, the “Individual Appellants”) – and the
Delaware Community Benefits Agreement Coalition (“DCBAC”) each
filed separate pro se appeals of the Secretary’s Order to the Environmental
Appeals Board (the “Board”).3
3. Two days after the Individual Appellants filed their appeal, Greenwich
Terminals LLC, GMT Realty and Glouster Terminals LLC, the Port of
Philadelphia, and Walter Curran (collectively, the “Port Operators”) filed
three other appeals of the Secretary’s Order. The Board ultimately
consolidated the Port Operator appeals with the Individual Appellants’
appeals (the “Consolidated Appeal”).
1 D.I. 7 (DNREC’s Mot. to Dismiss) at 1-2. 2 Id. 3 D.I. 4 (App.’s Op. Br.) at 1. 2 4. On April 28, 2022, the Board issued an order dismissing DCBAC for
failure to secure legal counsel and mandating that the Individual
Appellants file amended notices of appeal (which they did) and affidavits
supporting their individual standing (which they did not).4
5. DNREC, in turn, filed a motion to dismiss the Individual Appellants from
the Consolidated Appeal for lack of standing.5 The Board held a hearing
on the motion in July 2022.6 While the Individual Appellants made
statements about their standing at the July 2022 hearing, the Board did not
swear in witnesses or receive exhibits.7 After argument, the Board found
that the Individual Appellants lacked standing to appeal the Secretary’s
Order and dismissed them from the Consolidated Appeal in a decision (the
“Decision”) dated October 24, 2022.8
6. This appeal challenges the Decision.9 The Individual Appellants claim
now, as they did before the Board, that they have standing to appeal the
Secretary’s Order.10 Because the Board dismissed the Individual
Appellants from the Consolidated Appeal before they presented an attack
4 Id. at 1-2. 5 Id. 6 Id. at 2. 7 Id. 8 See EAB Appeal No. 2021-07. 9 See generally D.I. 1 (Notice of Appeal). 10 D.I. 10 (App.’s Resp. to Mot. to Dismiss) at 1. 3 on the merits of the Secretary’s Order, the scope of this appeal is limited.11
The Individual Appellants do not request – nor could they – a ruling on the
merits of their underlying appeal, as the Court has no record upon which
to make such a ruling.12 Instead, they merely seek remand to the Board so
they can be afforded a “public hearing” on the merits of their standing
claim.13
7. DNREC, on the other hand, moves for dismissal of the appeal on two
procedural grounds: (1) the Individual Appellants’ failure to name one or
more “indispensable” parties (the Port Operators) to the review proceeding
before this Court, in violation of Superior Court Civil Rule 19; and (2) the
Individual Appellants’ failure to “perfect” their appeal to this Court, in
violation of Rule 72.14
DISCUSSION A. The Port Operators Are Not Necessary or Indispensable to this Limited Appeal.
8. In the exercise of quasi-judicial or adjudicatory administrative power,
administrative hearings, like judicial proceedings, are governed by
11 Id. 12 Id. at 5. 13 Id. at 2. 14 See generally D.I. 7. 4 fundamental requirements of fairness.15 These requirements are the
essence of due process.16 As it relates to the requisite characteristics of the
proceedings, due process entails providing the parties to the proceeding
with the opportunity to be heard, by presenting testimony or otherwise, and
the right of controverting, by proof, every material fact which bears on the
question of right in the matter.17 “[A]ll parties to the litigation who would
be directly affected by a ruling on the merits of an appeal should be made
party to the appellate proceedings.”18
9. Superior Court Civil Rule 19(a) makes clear that a person is “directly
affected by a ruling on the merits” if:
(1) In the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise
15 Carousel Studio v. Unemployment Ins. Appeal Bd., 1990 WL 91108, at *1 (Del. Super. June 26, 1990). 16 Id. 17 Id. at *2-4. 18 CCS Investors LLC v. Brown, 977 A.2d 301, 322 (Del. 2009) (emphasis added). This holding “is reflected in Superior Court Rule 19(a).” Id. 5 inconsistent obligations by reason of the claimed interest.19
The initial burden is on the moving party to show that the absent parties
are “needed for a just adjudication.”20
10.As mentioned, the appeal before the Court is limited to the issue of whether
the Individual Appellants have standing to challenge the Secretary’s Order
before the Board. It is not a dispute over substance. So, to the extent the
Port Operators have an aligned interest with the Individual Appellants in
challenging the Secretary’s Order, that simple shared goal does not render
the Port Operators indispensable for anything and everything the
Individual Appellants do. Insofar as the Port Operators are concerned, the
Court’s ruling here will have little (if any) bearing on their interest.
Remand simply means that the Board must consider whether the Individual
Appellants have standing in a proper evidentiary hearing.
11.This appeal is not “on the merits.” Functionally, it is a procedural
challenge. And because the Port Operators are not indispensable parties to
the appeal, it is a challenge DNREC must lose.
19 Super. Ct. Civ. R. 19(a). 20 Martinez v. E.I. DuPont De Nemours and Co., Inc., 82 A.3d 1, 20 (Del. Super. 2012). 6 B. The Individual Appellants Complied With Rule 72’s Notice and Service Requirements.
12.The power of an appellate court to exercise jurisdiction rests upon the
perfecting of an appeal within the time period fixed by statute.21 Title 7
Del. C. 6009(a) provides that “[a]ny [EAB] appeal shall be perfected
within 30 days of the receipt of the written opinion of the Board.”22 While
the statute does not define what “perfected” means, the Delaware Supreme
Court has stated that generally, “[t]he filing of a notice of appeal within
the prescribed period . . . confers jurisdiction on the appellate court, which
will not dismiss the appeal for a defect that does not result in substantial
prejudice to a party in interest.”23 “In other words, as long as the notice of
21 PNC Bank, Del. v. Hudson, 687 A.2d 915, 916 (Del. 1997). 22 DEL. CODE ANN. tit. 7, § 6009(a) (2022). 23 Preston v. Bd. of Adjustment of New Castle Cty., 772 A.2d 787, 791 (Del. 2001) (citing State Personnel Comm’n v. Howard, 420 A.2d 135, 138 (Del. 1980)). The statute at issue in Preston contains the phrase “presented within 30 days.” Id. at 789 n.2 (citing DEL. CODE ANN. tit. 9, § 1314(a)). The statute at issue here reads “perfected within 30 days.” DEL. CODE ANN. tit. 7, § 6009(a) (2022). No matter. The Preston Court ascribed the same statutory meaning to the words “present” and “perfect” when it found a technical violation will not deprive a court of jurisdiction so long as notice of an appeal had been timely filed. Preston, 772 A.2d at 791 (“Generally, if a party fails to perfect an appeal within the statutorily mandated period, a jurisdictional defect results, thereby preventing the appellate court from exercising jurisdiction. The filing of a notice of appeal within the prescribed period, however, confers jurisdiction on the appellate court, which will not dismiss the 7 appeal is timely filed in a matter, any technical deficiency with the
accompanying documents will not strip this Court of jurisdiction to hear
it.”24
13.DNREC claims that the Court lacks jurisdiction to hear this matter because
the Individual Appellants failed to “perfect” their appeal under Superior
Court Civil Rule 72 by: (1) not sending DNREC’s counsel of record a copy
of the notice of appeal, and (2) not filing a certificate of mailing.25
14.During the pendency of this action, this Court issued its decision in
Diamond Town Tire Pros & Auto Care, LLC, et al. v. DNREC.26 As
DNREC has acknowledged through its motion, Diamond Town squarely
addresses the Rule 72 jurisdictional question at play here.27
15.The Diamond Town Court held that an appellant’s failure to perfect a
notice of appeal does not per se deprive the Superior Court of jurisdiction
to hear the matter, so long as the appellant docketed the appeal within the
30-day window prescribed by statute.28 If the appellant’s failures are
appeal for a defect that does not result in substantial prejudice to a party in interest.” (citations omitted)). 24 Diamond Town Tire Pros & Auto Care, LLC v. Delaware Dept. of Natural Resources and Environmental Control, 2023 WL 2985256, at *2 (Del. Super. Apr. 17, 2023). 25 D.I. 7 ¶ 4. 26 2023 WL 2985256. 27 D.I. 7 ¶ 2 n.3. 28 Diamond Town, 2023 WL 2985256, at *3. 8 severe enough, however, the Court has the power to dismiss the action
under Rule 72(i).29 “In deciding whether dismissal [under Rule 72(i)] is
appropriate, the Court [considers] whether ‘the level of egregiousness’ of
[the violation] is so high that it overcomes the interest of justice in deciding
the matter on its merits.”30 Permissive dismissal was not warranted in
Diamond Town because any prejudice caused by the appellant’s service
failures were, at best, minimal.31
16.So too here. Although the Individual Appellants’ flawed service on
DNREC risked a grant of permissive dismissal, they did docket the notice
of appeal within the required 30-day statutory window. For present
purposes, that is all the Court is concerned with. Clearly, the Individual
Appellants satisfied the notice requirements as enunciated in Diamond
Town.32 The Court, therefore, will retain jurisdiction over the appeal.
17.For the reasons stated above, DNREC’s motion to dismiss is DENIED.
IT IS SO ORDERED.
_____________________ Sheldon K. Rennie, Judge
29 Id. 30 Id. (citations omitted). 31 Id. 32 Id. 9