Wake Stone to defend quarry permit against Umstead Coalition lawsuit
A Superior Court judge is allowing Wake Stone Corporation to intervene in a lawsuit to defend its state mining permit for a quarry near William B. Umstead State Park.
Judge Adam Elkins issued a Dec. 23 order granting Wake Stone’s request to intervene in a lawsuit the Umstead Coalition filed against the North Carolina Department of Environmental Quality’s Division of Energy, Mineral, and Land Resources.
DEQ had issued the permit that formed the basis of the lawsuit from the coalition, which supports the park.
Elkins’ order arrived after DEQ decided not to appeal a separate ruling that could force the quarry to shut down operations at the end of 2031.
“Wake Stone has an interest in the property or transaction which is the subject of this action (Mining Permit 92-10) and is so situated that the disposition of the action, without its participation, may as a practical matter impair or impede Wake Stone’s ability to protect that interest,” Elkins wrote. “Wake Stone’s interest is no longer being adequately represented by DEMLR.”
Wake Stone argues that a modified 2023 permit the state issued after earlier legal action rendered the Umstead Coalition’s lawsuit moot.
The quarry owner had asked DEQ to “raise mootness” in the case and then moved to intervene “once it became aware that DEQ would not raise mootness and was not inclined to file an appeal,” Elkins added.
Superior Court Judge Sean Cole issued a ruling earlier in December that the state had altered the mining permit improperly. Cole’s decision restored the original wording of a sunset clause including in the state’s original 1981 quarry permit. That clause allowed the state to acquire the quarry site at no cost at the end of 50 years, or 10 years after quarry work ended, “whichever is sooner.” The modification Cole rejected had changed the word “sooner” to “later.”
Cole’s decision reversed a February ruling from Donald van der Vaart, who at the time served as the director of the Office of Administrative Hearings and the state’s chief administrative law judge.
Van der Vaart criticized the process that led to what his court order labeled the “permit’s so-called land ‘donation’ provision, a misleading term that belies the nature of the transaction.”
“The extensive historical evidence produced by the Petitioner leads this Tribunal to the unavoidable conclusion – one dictated not by sentiment or policy preference – that the original land ‘donation’ provision, contained in the 1981 permit, was and remains an extra jurisdictional exertion of regulatory power, ultra vires in its conception and unenforceable in any manifestation,” van der Vaart wrote.
“Ultra vires” means beyond one’s legal power or authority.
“The ‘donation’ was no act of public benefaction toward Umstead Park but rather a negotiated exchange,” van der Vaart wrote. “Moreover, the land ‘donation’ condition was included in the 1981 permit under the guise of the legally required Reclamation Plan and thus obfuscated what was, in form and substance, a negotiated transaction — land offered as consideration for the permit’s issuance. Its inclusion, framed as compliance with the Mining Act, has no legitimate foundation in the statute but instead functions as a contractual bargain.”
Van der Vaart emphasized that North Carolina government’s chief executive objected to the disputed “donation” provision when it was proposed more than 40 years ago.
“The ‘donation’ provision directly contravened the explicit directive of Governor James B. Hunt, who, despite his misgivings about the mining project, prudently directed DEMLR to evaluate the permit strictly within the environmental framework of North Carolina’s Mining Act,” van der Vaart wrote. “DEMLR took it upon itself to transcend its statutory limitations by engaging in an act of regulatory adventurism that this Tribunal cannot and shall not countenance.”
“Accordingly, the matter of whether this ‘donation’ provision is triggered ‘sooner’ or ‘later’ is a question rendered entirely academic. The provision was never enforceable at any moment in time, and it shall not be endowed with legitimacy now,” van der Vaart’s order continued.
A unanimous three-judge Appeals Court panel issued a June opinion upholding lower courts’ rulings against the Umstead Coalition and quarry neighbors Randal and Tamara Dunn.
Wake Stone had applied in April 2020 to expand its existing mining permit. DEQ denied the application in February 2022. That started a legal battle that led a state administrative law judge to rule in Wake Stone’s favor in August 2023.
DEQ ultimately settled with Wake Stone, ended the legal dispute in November 2023, and issued the new permit.
The Umstead Coalition focuses on preserving the state park. The Dunns were coalition members who owned a home near the disputed quarry expansion site. Both had filed motions to intervene in the legal dispute in 2022. The administrative law judge denied the motions.
In September 2023 the coalition and the Dunns filed petitions asking a Superior Court judge to reverse the ALJ decisions about both their intervention in the case and the award of the mining permit to Wake Stone.
Superior Court Judge Gale Adams ruled in February 2024 that the “petitions were mooted in their entirety by the settlement of the underlying controversy between Wake Stone and the Division and the issuance of Wake Stone’s permit,” according to the Appeals Court’s opinion.
“The trial court further reasoned in its order that, even if Appellants’ petitions were not moot, the ALJ did not err either in denying the motions to intervene or in reversing the Division’s denial of the permit,” the Appeals Court opinion explained.
“[T]here was certainly sufficient evidence to find that The Umstead Coalition’s interest was adequately represented by the Division,” Chief Judge Chris Dillon wrote.
“The Umstead Coalition asserts that the Division is ‘not well-equipped to assess the specific impact of proposed mining operations on the Park and its environs.’ However, the Division is explicitly tasked by statute to do just that,’” the Appeals Court opinion explained. “And in doing so, the Division consulted the North Carolina Division of Parks and Recreation — the agency that has the primary responsibility of preserving and protecting Umstead Park — extensively.”
The ALJ had determined that allowing the coalition to intervene “would cause the parties undue delay or prejudice,” Dillon wrote. “Specifically, the ALJ believed that adding The Umstead Coalition as a party after the scheduling order was issued would require deadlines to be extended, that it would burden Wake Stone with additional discovery demands, and that it would hinder mediation or settlement negotiations.”
Adams upheld that decision. “We agree and accordingly conclude that the ALJ’s decision to deny intervention was not so arbitrary that it could not have been the result of a reasoned decision,” Dillon explained.
Even if the coalition and the Dunns could have intervened, “we nevertheless agree with the judgment of the superior court that Appellants’ claims are moot because the relief sought is no longer available,” Dillon wrote.
“Here, Appellants sought to intervene in order to defend the Division’s denial of Wake Stone’s mining permit,” he explained. “[B]y settling its dispute with Wake Stone and voluntarily issuing the permit, the Division ended the controversy from which Appellants would have appealed had they been parties in the case. In other words, once the Division decided to grant the permit, a decision from this Court finding that the Division’s original denial was lawful would have no legal effect — the permit would still be granted. To wit, the settlement mooted the case in its entirety, and Appellants no longer have a live controversy in which to intervene.”
Judges Jeff Carpenter and Jefferson Griffin joined Dillon’s opinion.
“Wake Stone to defend quarry permit against Umstead Coalition lawsuit” was originally published on www.carolinajournal.com.
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