The North Carolina Court of Appeals will not allow critics of a quarry near William B. Umstead State Park and Raleigh-Durham International Airport to pursue their case against the quarry’s latest mining permit.
A unanimous three-judge Appeals Court panel issued an opinion Wednesday upholding lower courts’ rulings against the Umstead Coalition and quarry neighbors Randal and Tamara Dunn.
Quarry owner Wake Stone applied in April 2020 to expand an existing mining permit. The North Carolina Department of Environmental Quality’s Division of Energy, Mineral, and Land Resources 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 had 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.
Appeals Court Chief Judge Chris Dillon reviewed the trial judge’s approach to both potential intervenors.
“[T]he superior court found that the Dunns failed to show a ‘direct and immediate interest’ because the Dunns’ basis for challenging the mining permit was not the same as that of the Division,” Dillon wrote. “The Division denied Wake Stone’s permit application under N.C.G.S. § 74-51(d)(5), which allows denial based on ‘a significantly adverse effect on the purposes of a publicly owned park, forest or recreation area.’ As this was the sole basis for the Division’s denial, Wake Stone’s effect on the purposes of Umstead Park — namely, conservation, recreation, and education — was the only interest at issue in the contested case hearing.”
“The Dunns, however, applied to intervene to challenge the permit application pursuant to N.C.G.S. § 74-51(d)(4), which allows denial based on ‘a direct and substantial physical hazard to … a neighboring dwelling house,’” Dillon continued. “Therefore, the ALJ found, and the superior court affirmed, that the Dunns were not entitled to intervene because they did not allege a direct and immediate interest.”
“We conclude the trial court did not err,” Dillon wrote. “While Appellants are correct that intervenors are free to introduce new issues beyond the scope of the original case once they become a party, … this rule does not extend to putative intervenors.”
“The Dunns’ interest in the case — the potential physical hazard posed to their home — was properly identified as an indirect interest in the dispute between Wake Stone and the Division because it did not relate to the mining operation’s effect on Umstead Park,” he added.
The administrative law judge and Adams both determined “the Dunns were not entitled to permissive intervention because there was no common question of law or fact between the contested case and the Dunns’ asserted interest,” Dillon wrote. “We agree. The denial criteria raised by the Division and the Dunns — adverse effect on the purposes of Umstead Park and physical hazard to the Dunns’ house — are distinct legal questions involving substantially different factual inquiries.”
Turning to the other prospective intervenor, “there was certainly sufficient evidence to find that The Umstead Coalition’s interest was adequately represented by the Division,” 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.
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