{ "id": 11792232, "name": "ROBERT D. BRYANT, and wife, BRUNHILDE S. BRYANT, Plaintiffs v. WILLIAM T. HOGARTH, Fisheries Director, Division of Marine Fisheries and the (North Carolina) Marine Fisheries Commission and JONATHAN HOWES, Secretary of the North Carolina Department of Environment, Health and Natural Resources, and NORTH CAROLINA DEPARTMENT OF ENVIRONMENT, HEALTH AND NATURAL RESOURCES, by and through its Registered Agent, RICHARD B. WHISNANT, Defendants", "name_abbreviation": "Bryant v. Hogarth", "decision_date": "1997-08-05", "docket_number": "No. COA96-93", "first_page": "79", "last_page": "87", "citations": [ { "type": "official", "cite": "127 N.C. App. 79" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "445 S.E.2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "617" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 541", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135613 ], "year": 1994, "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0541-01" ] }, { "cite": "421 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "815-16", "parenthetical": "summary judgment properly granted when plaintiff failed to allege inadequacy of administrative remedy" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 710", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527932 ], "year": 1992, "pin_cites": [ { "page": "715-16", "parenthetical": "summary judgment properly granted when plaintiff failed to allege inadequacy of administrative remedy" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0710-01" ] }, { "cite": "301 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562510, 8562484, 8562391, 8562457, 8562431 ], "opinion_index": 0, "case_paths": [ "/nc/301/0094-05", "/nc/301/0094-04", "/nc/301/0094-01", "/nc/301/0094-03", "/nc/301/0094-02" ] }, { "cite": "265 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "907-08" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551011 ], "pin_cites": [ { "page": "376-77" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0350-01" ] }, { "cite": "165 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "327", "parenthetical": "purchaser with notice is chargeable with knowledge he would have acquired had he exercised ordinary care to ascertain truth concerning matters affecting his property interest" } ], "opinion_index": 0 }, { "cite": "275 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557890 ], "year": 1969, "pin_cites": [ { "page": "130", "parenthetical": "purchaser with notice is chargeable with knowledge he would have acquired had he exercised ordinary care to ascertain truth concerning matters affecting his property interest" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0121-01" ] }, { "cite": "505 U.S. 1003", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1481136 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "1029" }, { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/us/505/1003-01" ] }, { "cite": "7 S.E. 649", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1888, "pin_cites": [ { "page": "651", "parenthetical": "\"[a]s the Legislature has the undoubted right to regulate the manner in which the right of fishing . . . should be exercised, the plaintiffs have no right to fish in its water in any mode not allowed by law\"" } ], "opinion_index": 0 }, { "cite": "101 N.C. 51", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649656 ], "year": 1888, "pin_cites": [ { "page": "55", "parenthetical": "\"[a]s the Legislature has the undoubted right to regulate the manner in which the right of fishing . . . should be exercised, the plaintiffs have no right to fish in its water in any mode not allowed by law\"" } ], "opinion_index": 0, "case_paths": [ "/nc/101/0051-01" ] }, { "cite": "51 S.E. 1012", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1905, "pin_cites": [ { "page": "1012", "parenthetical": "\"[t]he right to regulate fisheries, even on private property, is settled beyond controversy\"" } ], "opinion_index": 0 }, { "cite": "139 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653208 ], "year": 1905, "pin_cites": [ { "page": "575", "parenthetical": "\"[t]he right to regulate fisheries, even on private property, is settled beyond controversy\"" } ], "opinion_index": 0, "case_paths": [ "/nc/139/0574-01" ] }, { "cite": "87 S.E. 987", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1916, "pin_cites": [ { "page": "989" } ], "opinion_index": 0 }, { "cite": "171 N.C. 116", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269269 ], "year": 1916, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc/171/0116-01" ] }, { "cite": "456 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790224, 790102, 790261, 790198 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0118-02", "/nc/340/0118-03", "/nc/340/0118-04", "/nc/340/0118-01" ] }, { "cite": "453 S.E.2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "149" } ], "opinion_index": 0 }, { "cite": "339 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557453 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0588-01" ] }, { "cite": "84 S.E. 337", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1915, "pin_cites": [ { "page": "338", "parenthetical": "shellfish come well within police power of State and \"are subject to rules and regulations reasonably designed to protect them and promote their increase and growth\"" } ], "opinion_index": 0 }, { "cite": "169 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658454 ], "year": 1915, "pin_cites": [ { "page": "287", "parenthetical": "shellfish come well within police power of State and \"are subject to rules and regulations reasonably designed to protect them and promote their increase and growth\"" } ], "opinion_index": 0, "case_paths": [ "/nc/169/0285-01" ] }, { "cite": "369 S.E.2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "827-28" }, { "page": "828" }, { "page": "830" }, { "page": "830-31" } ], "opinion_index": 0 }, { "cite": "322 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516978 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "525-26" }, { "page": "531" }, { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0522-01" ] }, { "cite": "260 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "615", "parenthetical": "citations omitted" }, { "page": "615" } ], "opinion_index": 0 }, { "cite": "298 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573981 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "721", "parenthetical": "citations omitted" }, { "page": "721-22" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0715-01" ] }, { "cite": "367 S.E.2d 13", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "15", "parenthetical": "summary judgment dismissing complaint affirmed because failure to seek judicial review of permit decision was \"insurmountable bar to plaintiff's claim for declaratory judgment and injunctive relief'" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 708", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524736 ], "year": 1988, "pin_cites": [ { "page": "711", "parenthetical": "summary judgment dismissing complaint affirmed because failure to seek judicial review of permit decision was \"insurmountable bar to plaintiff's claim for declaratory judgment and injunctive relief'" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0708-01" ] }, { "cite": "457 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "collateral attack on permit application in trespass action properly dismissed for lack of subject matter jurisdiction when plaintiff failed to appeal permit decision through administrative channels" } ], "opinion_index": 0 }, { "cite": "340 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790169 ], "year": 1995, "pin_cites": [ { "parenthetical": "collateral attack on permit application in trespass action properly dismissed for lack of subject matter jurisdiction when plaintiff failed to appeal permit decision through administrative channels" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0357-01" ] }, { "cite": "444 S.E.2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "638-39" }, { "page": "639" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 349", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12128829 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "352-53" }, { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0349-01" ] }, { "cite": "353 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "675" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 666", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169132 ], "year": 1987, "pin_cites": [ { "page": "667-68" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0666-01" ] }, { "cite": "254 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568544, 8568580, 8568454, 8568502, 8568631 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0583-03", "/nc/296/0583-04", "/nc/296/0583-01", "/nc/296/0583-02", "/nc/296/0583-05" ] }, { "cite": "248 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "571" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554394 ], "year": 1978, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0414-01" ] } ], "analysis": { "cardinality": 941, "char_count": 19482, "ocr_confidence": 0.768, "pagerank": { "raw": 2.799406928085804e-07, "percentile": 0.8367119086865682 }, "sha256": "b31621680fbbaa7781f3ecaf1f4019b574dc1347f1f5ba72663a125f35767f1a", "simhash": "1:cfb1d17c052bbe93", "word_count": 3057 }, "last_updated": "2023-07-14T19:43:16.540119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and McGEE concur." ], "parties": [ "ROBERT D. BRYANT, and wife, BRUNHILDE S. BRYANT, Plaintiffs v. WILLIAM T. HOGARTH, Fisheries Director, Division of Marine Fisheries and the (North Carolina) Marine Fisheries Commission and JONATHAN HOWES, Secretary of the North Carolina Department of Environment, Health and Natural Resources, and NORTH CAROLINA DEPARTMENT OF ENVIRONMENT, HEALTH AND NATURAL RESOURCES, by and through its Registered Agent, RICHARD B. WHISNANT, Defendants" ], "opinions": [ { "text": "JOHN, Judge.\nPlaintiffs appeal the trial court\u2019s order granting defendants\u2019 \u201cmotion to dismiss for lack of subject matter jurisdiction.\u201d The court determined plaintiffs \u201cfailed to exhaust the administrative remedies provided by the N.C. Administrative Procedure Act, N.C. Gen. Stat. \u00a7 150B-1 et seq.\u201d We affirm the ruling of the trial court.\nRelevant background information and procedural history are as follows. In 1969, Mrs. Garland W. Yopp (Yopp), plaintiffs\u2019 predecessor in title to the franchise to cultivate and harvest shellfish (the franchise) at issue herein, registered her claim pursuant to N.C.G.S. \u00a7 113-205 (1994) to the franchise applicable to approximately 38 acres of Onslow County submerged land (the tract) in Chadwick\u2019s Bay. Yopp\u2019s claim was based on grants issued to predecessors in title conferring a perpetual franchise for the purpose of raising and cultivating shellfish in the tract. 1887 N.C. Sess. Laws ch. 90, repealed by 1889 N.C. Sess. Laws ch. 298.\nSubsequent to Yopp\u2019s application, the Marine Fisheries Commission (MFC) designated the waters of Chadwick\u2019s Bay a \u201cPrimary Nursery Area\u201d (PNA) effective 1 November 1977. Former N.C. Admin. Code (NCAC) tit. 15 r. 3B.1405(m)(4), now codified as NCAC tit. 15A r. 3R.0103(13)(d) (April 1997). Prior to resolution of Yopp\u2019s claim but following the PNA designation, title to the franchise passed to plaintiffs by general warranty deed filed 25 August 1982.\nActing on Yopp\u2019s original claim, the Secretary of the North Carolina Department of Natural Resources and Community Development (now North Carolina Department of Environment, Health and Natural Resources (DEHNR)) notified plaintiffs by letter dated 18 June 1985 that the State officially recognized the franchise under G.S. \u00a7 113-205 as \u201ca limited interest\u201d vis \u00e1 vis claims of other private claimants for the \u201cpurpose of cultivating shellfish.\u201d Plaintiffs thus were acknowledged to hold an exclusive franchise to cultivate shellfish in the tract as against the State, but the latter reserved judgment as to the validity of plaintiffs\u2019 claims vis \u00e1 vis claimants other than the State.\nThe Secretary\u2019s letter, while conceding plaintiffs\u2019 title, also stated the tract had been designated a PNA and consequently that \u201cthe use of mechanical or other bottom-disturbing gear to harvest shellfish in the area [wa]s prohibited.\u201d However, other means of harvesting, such as hand \u201ctonging\u201d and raking, were not precluded in such areas. PNA classifications were effected to protect juvenile populations of economically important seafood species, such as shrimp and finfish, in fragile estuarine areas from environmentally destructive bottom-disturbing fishing gear. See NCAC tit. 15A r. 3N.0101 and 3N.0104 (April 1997).\nOn four separate occasions between 1985 and 1992, plaintiffs sought a permit from the Marine Fisheries Division (MFD) of DEHNR to harvest shellfish mechanically in the tract. On each occasion, the request was denied based upon the PNA designation conferred by the predecessors of NCAC tit. 15A r. 3R.0103(13)(d) (April 1997), which prohibited mechanical harvesting in such areas. On none of the four occasions did plaintiffs pursue administrative appeal of denial of their application.\nPlaintiffs filed the instant declaratory judgment and condemnation action 10 June 1993. Plaintiffs first sought a declaration that MFD lacked authority to prohibit mechanical harvesting in the tract. In their second claim, plaintiffs alleged that designation of the tract as a PNA and refusal to allow use of mechanical harvesting therein rendered their interest in the land worthless, and thus constituted a regulatory taking entitling them to compensation under N.C.G.S. \u00a7 113-206(e). Defendants filed answer which included a motion to dismiss for lack of subject matter jurisdiction pursuant to N.C.R. Civ. P. 12(b)(1) on grounds plaintiffs had failed to exhaust the administrative remedies provided in G.S. \u00a7 150B-1 et seq. Following a hearing, the trial court granted defendants\u2019 motion in an order entered 15 September 1995. Plaintiffs filed timely notice of appeal, setting out the court\u2019s grant of defendants\u2019 motion as their sole assignment of error.\nA motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction may be raised at any time. Bache Halsey Stuart, Inc. v. Hunsucker, 38 N.C. App. 414, 421, 248 S.E.2d 567, 571 (1978), disc. review denied, 296 N.C. 583, 254 S.E.2d 32 (1979). Subject matter jurisdiction is a prerequisite for the exercise of judicial authority over any case or controversy. Harris v. Pembaur, 84 N.C. App. 666, 667-68, 353 S.E.2d 673, 675 (1987). An action is properly dismissed under the Rule for lack of subject matter jurisdiction when the plaintiff has failed to exhaust its administrative remedies. Flowers v. Blackbeard Sailing Club, 115 N.C. App. 349, 352-53, 444 S.E.2d 636, 638-39 (1994), disc. review denied as improvidently granted, 340 N.C. 357, 457 S.E.2d 599 (1995) (collateral attack on permit application in trespass action properly dismissed for lack of subject matter jurisdiction when plaintiff failed to appeal permit decision through administrative channels); see also Concerned Citizens v. N.C. Environmental Management Comm\u2019n., 89 N.C. App. 708, 711, 367 S.E.2d 13, 15 (1988) (summary judgment dismissing complaint affirmed because failure to seek judicial review of permit decision was \u201cinsurmountable bar to plaintiff\u2019s claim for declaratory judgment and injunctive relief\u2019). \u201c[W]here the legislature has established by statute an effective administrative remedy, that remedy is exclusive and its relief must be exhausted before recourse may be had to the courts.\u201d Presnell v. Pell, 298 N.C. 715, 721, 260 S.E.2d 611, 615 (1979) (citations omitted).\nThe State holds title to lands under navigable waters, such as Chadwick\u2019s Bay, in public trust for the use and benefit of all its citizens. State ex rel. Rohrer v. Credle, 322 N.C. 522, 525-26, 369 S.E.2d 825, 827-28 (1988). However, the State may permit the exclusive use of such lands by private individuals, i.e., a franchise, for specific purposes, such as shellfishing, id. at 527, 369 S.E.2d at 828, and has enacted statutes to facilitate such use. See G.S. \u00a7 113-201 el seq. Indeed, plaintiffs\u2019 predecessor in interest obtained a perpetual franchise to cultivate shellfish in the tract pursuant to such a grant. 1887 N.C. Sess. Laws ch. 90.\nIn an effort to clear title on submerged lands so as to preserve the rights asserted by various individuals, the General Assembly enacted G.S. \u00a7 113-205 in 1965. Rohrer, 322 N.C. at 531, 369 S.E.2d at 830. The statute provides: \u201cAll rights and titles not registered in accordance with this section on or before January 1, 1970, are hereby declared null and void.\u201d G.S. \u00a7 113-206 established procedures for the resolution of G.S. \u00a7 113-205 private claims of title to a bed and fishery rights in submerged lands under navigable waters. Rohrer, 322 N.C. at 532, 369 S.E.2d at 830-31. An individual claiming application of G.S. \u00a7\u00a7 113-205 or 113-206 \u201chas deprived him of his private property rights in land under navigable waters . . . without just compensation\u201d may appeal to the superior court in the county where the land is situated. G.S. \u00a7 113-206(e). Under the statute, therefore, the superior court is accorded subject matter jurisdiction only over appeals of denial of a claim of title or franchise asserted pursuant to G.S. \u00a7 113-205.\nPlaintiffs contend recognition of their franchise claim limited by designation as a PNA constituted a taking under G.S. \u00a7 113-206(d) and therefore was subject to judicial review under G.S. \u00a7 113-206(e) without resort to the administrative remedies of G.S. \u00a7 150B. Plaintiffs maintain the statute applies in all instances where a claimant has asserted any right in submerged land superior to that of the general public. Notwithstanding plaintiffs\u2019 arguments, we conclude the section is inapplicable to MFD\u2019s denial of a permit to harvest shellfish by mechanical means within submerged lands.\nFirst, plaintiffs\u2019 reasoning confuses grant of a franchise, exclusive to the claimant, to harvest shellfish on a given tract of submerged land, with issuance of a permit designating the methods an exclusive franchise holder may employ in harvesting shellfish thereon. The circumstance that acquisition of a franchise may exclude all others from harvesting shellfish in a given tract does not necessarily preclude limitation upon the harvesting processes utilized by the exclusive franchisee.\nFurther, plaintiffs\u2019 franchise was not acquired free of government regulation. See State v. Sermons, 169 N.C. 285, 287, 84 S.E. 337, 338 (1915) (shellfish come well within police power of State and \u201care subject to rules and regulations reasonably designed to protect them and promote their increase and growth\u201d). Indeed, the very statute granting the franchise to plaintiffs\u2019 predecessor in interest also gave the shellfish commissioners exclusive jurisdiction and control over shell-fisheries covered by the legislation. 1887 N.C. Sess. Laws ch. 90 \u00a7 1. As our Supreme Court recently affirmed in RJR Technical Co. v. Pratt, 339 N.C. 588, 453 S.E.2d 147, reh\u2019g denied, 340 N.C. 118, 456 S.E.2d 319 (1995),\n[t]he right of fishing in the navigable waters of the State belongs to the people in common, to be exercised by them with due regard to the rights of each other, and cannot be reduced to exclusive or individual control either by grant or by long user by any one at a given point.\nId. at 591, 453 S.E.2d at 149 (quoting Bell v. Smith, 171 N.C. 116, 118, 87 S.E. 987, 989 (1916)). See also State v. Sutton, 139 N.C. 574, 575, 51 S.E. 1012, 1012 (1905) (\u201c[t]he right to regulate fisheries, even on private property, is settled beyond controversy\u201d); Rea v. Hampton, 101 N.C. 51, 55, 7 S.E. 649, 651 (1888) (\u201c[a]s the Legislature has the undoubted right to regulate the manner in which the right of fishing . . . should be exercised, the plaintiffs have no right to fish in its water in any mode not allowed by law\u201d).\nIn addition, we note the tract was designated a PNA 1 November 1977 and that the administrative rules prohibiting mechanical harvesting of shellfish in such waters were adopted the same date. Plaintiffs\u2019 deed for purchase of the franchise was filed 25 August 1982, more than five years later. Accordingly, plaintiffs\u2019 complaint failed to allege a claim of compensable taking under G.S. \u00a7 113-206(e) in consequence of the tract being subject to the challenged PNA restriction at the time of acquisition. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1029, 120 L. Ed. 2d 798, 821 (1992) (existing regulation distinguished from future regulation for purposes of a \u201ctaking\u201d; \u201cnewly legislated or decreed\u201d regulation which prohibits all economically beneficial use of land without compensation constitutes a taking, but latter does not occur and no compensation required when one is barred by rules existing at time title to property acquired); see also Hughes v. Hwy. Comm. & Oil Co. v. Hwy. Comm. & Equip. Co. v. Hwy. Comm., 275 N.C. 121, 130, 165 S.E.2d 321, 327 (1969) (purchaser with notice is chargeable with knowledge he would have acquired had he exercised ordinary care to ascertain truth concerning matters affecting his property interest).\nRegulation of the cultivation and harvest of shellfish has been assigned by the General Assembly to MFC, N.C.G.S. \u00a7\u00a7 113-201 et seq. (1994); see also N.C.G.S. \u00a7 113-134 (1994), and N.C.G.S. \u00a7 143B-289.4 (1993); which in turn has delegated responsibility for issuance of permits for shellfish harvesting to MFD. NCAC tit. 15A r. 3K.0401 (April 1997). Plaintiffs\u2019 dispute was therefore with MFD which refused to authorize plaintiffs to harvest shellfish mechanically within the tract.\nUnder the version of the Administrative Procedure Act (APA), N.C.G.S. \u00a7\u00a7 150B-1 et seq. (1991), in effect when plaintiffs\u2019 last application was denied 2 July 1992, a person complaining of action by a state agency might challenge that action by initiating a \u201ccontested case\u201d with the Office of Administrative Hearings (OAH), G.S. \u00a7 150B-23(a), if that person is \u201caggrieved\u201d as defined in the APA. A person aggrieved is one \u201cdirectly or indirectly affected substantially in his or its . . . property ... by an administrative decision.\u201d G.S. \u00a7 150B-2(6). Plaintiffs thus qualified as \u201cpersons aggrieved\u201d by MFD\u2019s denial of their applications to harvest shellfish mechanically.\nThe denials were properly appealable within sixty days thereof by filing of a contested case petition with OAH. G.S. \u00a7 150B-23(f). The recommended decision of OAH would thereafter have been reviewed by MFD under G.S. \u00a7 150B-36, and only following its final determination would judicial review have become available under G.S. \u00a7 150B-43. Indeed, plaintiffs\u2019 counsel acknowledged this procedure in his argument before the trial court:\nit\u2019s true that had we wanted to object to [the denial of permits], we could have done that, and then they come in and go to the Administrative Law Judge and yes, you\u2019ve got to realize that once he makes a decision, that\u2019s just a recommendation (sic) decision, so it goes back to the same board that adopted rules and regulations; if they want to adopt it, rescind it or do anything they want to to it. . . .\nWhile exhaustion of administrative remedies prior to seeking judicial review may not be required in exceptional circumstances, see Orange County v. North Carolina Dept. of Transportation, 46 N.C. App. 350, 376-77, 265 S.E.2d 890, 907-08, disc. review denied, 301 N.C. 94 (subsequent history not reported in S.E.2d) (1980), allegations of the facts justifying avoidance of the administrative process must be pled in the complaint. See Huang v. N.C. State University, 107 N.C. App. 710, 715-16, 421 S.E.2d 812, 815-16 (1992) (summary judgment properly granted when plaintiff failed to allege inadequacy of administrative remedy). The assertion by plaintiffs\u2019 counsel to the trial court in oral argument that \u201cwe want to come here and we don\u2019t want to go to the Marine Fisheries,\u201d does not constitute the requisite circumstance. Moreover, such argument may not substitute for supportable allegations, and plaintiffs\u2019 complaint was totally devoid of any allegation asserting futility or inadequacy as grounds for failing to pursue administrative review.\nBecause plaintiffs have not exhausted nor properly pled justifiable avoidance of the legislatively established administrative remedies for denial of permit applications, they may not in the instant separate action mount a collateral attack by claiming such denial constituted a taking of the franchise under G.S. \u00a7 113-206(d). See Flowers, 115 N.C. App. at 353, 444 S.E.2d at 639. Absent final agency action, the reviewing court lacks a developed record from which to consider the factual background upon which the agency decision rested, see Presnell, 298 N.C. at 721-22, 260 S.E.2d at 615, the record bearing special import in cases involving technical matters. See Leeuwenburg v. Waterway Investment Limited Partnership, 115 N.C. App. 541, 545, 445 S.E.2d 614, 617 (1994). In the case sub judice, the pertinent record before us consists solely of the letters from MFD denying plaintiffs\u2019 applications by virtue of the PNA classification.\nTo summarize, plaintiffs did not exhaust their administrative remedies under G.S. \u00a7 150B-1 et seq., for denial of shellfish harvesting permits, and may not collaterally attack the MFD\u2019s actions under G.S. \u00a7 113-206(e). The trial court thus properly dismissed plaintiffs\u2019 complaint for lack of subject matter jurisdiction under N.C.G.S. \u00a7 1A-1, Rule 12(b)(1) (1990).\nAffirmed.\nJudges WYNN and McGEE concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Wheatly, Wheatly, Nobles & Weeks, P.A., by C.R. Wheatly, III, for plaintiffs-appellants.", "Attorney General Michael F. Easley, by Special Deputy Attorney General J. Allen Jemigan, and Assistant Attorney General David W. Berry, for defendants-appellees." ], "corrections": "", "head_matter": "ROBERT D. BRYANT, and wife, BRUNHILDE S. BRYANT, Plaintiffs v. WILLIAM T. HOGARTH, Fisheries Director, Division of Marine Fisheries and the (North Carolina) Marine Fisheries Commission and JONATHAN HOWES, Secretary of the North Carolina Department of Environment, Health and Natural Resources, and NORTH CAROLINA DEPARTMENT OF ENVIRONMENT, HEALTH AND NATURAL RESOURCES, by and through its Registered Agent, RICHARD B. WHISNANT, Defendants\nNo. COA96-93\n(Filed 5 August 1997)\n1. Courts \u00a7 5 (NCI4th); Pleadings \u00a7 144 (NCI4th)\u2014 subject matter jurisdiction \u2014 failure to exhaust administrative remedies\nAn action is properly dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction when the plaintiff has failed to exhaust its administrative remedies. N.C.G.S. \u00a7 1A-1, Rule 12(b)(1).\n2. Fish and Fisheries \u00a7 21 (NCI4th)\u2014 lands under navigable waters \u2014 public trust \u2014 franchise for shellfish\nWhile the State holds title to lands under navigable waters in public trust for the use and benefit of all its citizens, the State may permit the exclusive use of such lands by private individuals, i.e., a franchise, for specified purposes, such as shellfishing.\n3. Fish and Fisheries \u00a7 21 (NCI4th)\u2014 franchise to cultivate shellfish \u2014 designation of area as PNA \u2014 prohibition of mechanical harvesting \u2014 not taking \u2014 judicial review\u2014 exhaustion of administrative remedies\nThe Marine Fishery Division\u2019s designation of a submerged area for which plaintiffs have a franchise to cultivate shellfish as a primary nursery area and the denial of a permit to harvest shellfish within the area by mechanical means did not constitute a taking under N.C.G.S. \u00a7 113-206(d) which was subject to judicial review under N.C.G.S. \u00a7 113-206(e) without resort to the administrative remedies of N.C.G.S. Ch. 150B. Furthermore, plaintiffs\u2019 complaint failed to state a claim for a compensable taking under N.C.G.S. \u00a7 113-206(e) where it alleged that their deed of purchase of the franchise was filed more than five years after the area was designated as a primary nursery area and administrative rules prohibiting the mechanical harvesting of shellfish within such an area were adopted.\n4. Administrative Law and Procedure \u00a7 55 (NCI4th)\u2014 aggrieved parties \u2014 contested case\nPlaintiffs who were denied permits by the Marine Fisheries Division to harvest shellfish mechanically in a tract of submerged land for which they have a shellfish franchise were \u201caggrieved parties\u201d who could initiate a \u201ccontested case\u201d with the Office of Administrative Hearings. N.C.G.S. \u00a7 150B-2(6).\n5. Fish and Fisheries \u00a7 21 (NCI4th)\u2014 shellfish franchise\u2014 mechanical harvesting \u2014 permit denials \u2014 judicial review\u2014 failure to exhaust administrative remedies\nThe superior court did not have subject matter jurisdiction to review the Marine Fisheries Division\u2019s denial of plaintiffs\u2019 applications to allow mechanical harvesting of shellfish in submerged lands for which plaintiffs had a franchise to cultivate shellfish where plaintiffs failed to pursue administrative appeals of the denials of their applications and failed to plead futility or inadequacy as grounds for failing to pursue administrative review. Plaintiffs could not by separate action collaterally attack the denials of their permit applications by claiming that such denials constituted a taking of their franchise under N.C.G.S. \u00a7 113-206(d).\nAppeal by plaintiffs from order entered 15 September 1995 by Judge James R. Strickland in Onslow County Superior Court. Heard in the Court of Appeals 8 October 1996.\nWheatly, Wheatly, Nobles & Weeks, P.A., by C.R. Wheatly, III, for plaintiffs-appellants.\nAttorney General Michael F. Easley, by Special Deputy Attorney General J. Allen Jemigan, and Assistant Attorney General David W. Berry, for defendants-appellees." }, "file_name": "0079-01", "first_page_order": 115, "last_page_order": 123 }