{ "id": 9126704, "name": "DEEP RIVER CITIZENS' COALITION, Petitioner v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, Respondent, CITY OF GREENSBORO and PIEDMONT TRIAD REGIONAL WATER AUTHORITY, Respondent-Intervenors; DEEP RIVER COALITION, INC., et al., Petitioners v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, Respondent, CITY OF GREENSBORO and PIEDMONT TRIAD REGIONAL WATER AUTHORITY, Respondent-Intervenors", "name_abbreviation": "Deep River Citizens' Coalition v. North Carolina Department of Environment", "decision_date": "2002-03-05", "docket_number": "No. COA01-935", "first_page": "211", "last_page": "215", "citations": [ { "type": "official", "cite": "149 N.C. App. 211" } ], "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": "543 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "176", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441143 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/142/0338-01" ] }, { "cite": "477 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "124 N.C. App. 332", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889393 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/124/0332-01" ] }, { "cite": "435 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "363", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520617 ], "year": 1993, "pin_cites": [ { "page": "165", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0161-01" ] }, { "cite": "281 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "28" } ], "opinion_index": 0 }, { "cite": "303 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574954 ], "year": 1981, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0573-01" ] }, { "cite": "483 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "392" } ], "opinion_index": 0 }, { "cite": "345 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53839 ], "year": 1997, "pin_cites": [ { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0699-01" ] }, { "cite": "446 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "388" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 590", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12137315 ], "year": 1994, "pin_cites": [ { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0590-01" ] }, { "cite": "457 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "119 N.C. App. 232", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914297 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/119/0232-01" ] } ], "analysis": { "cardinality": 519, "char_count": 8991, "ocr_confidence": 0.728, "pagerank": { "raw": 1.1170439021886464e-07, "percentile": 0.5725235332252961 }, "sha256": "eb42f3dba45a2a8f628a006c85bc18017ccb274f5fbe0f06266ad7b1b6139223", "simhash": "1:cba8f228762e9446", "word_count": 1418 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and HUDSON concur." ], "parties": [ "DEEP RIVER CITIZENS\u2019 COALITION, Petitioner v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, Respondent, CITY OF GREENSBORO and PIEDMONT TRIAD REGIONAL WATER AUTHORITY, Respondent-Intervenors DEEP RIVER COALITION, INC., et al., Petitioners v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, Respondent, CITY OF GREENSBORO and PIEDMONT TRIAD REGIONAL WATER AUTHORITY, Respondent-Intervenors" ], "opinions": [ { "text": "THOMAS, Judge.\nPetitioners, the Deep River Citizens Coalition (DRCC), the Deep River Coalition, Inc. (DRCI), and the American Canoe Association, Inc., appeal an order affirming a final agency decision of the Environmental Management Commission (EMC). The order granted summary judgment against them in a suit involving the construction of a dam on the Deep River in Randleman, North Carolina. Petitioners also appeal a supplemental order delineating the scope of review. For the reasons discussed herein, we reverse and remand.\nThe facts are as follows: Several North Carolina counties formed the Piedmont Triad Regional Water Authority (Water Authority) in 1986 to manage the region\u2019s water supply needs. In 1988, the Water Authority petitioned the EMC to purchase land and divert 28.5 million gallons of water per day (mgd) from the Deep River Basin to the Haw River Basin pursuant to the power of eminent domain. The EMC approved the inter-basin transfers in 1992 and authorized the Water Authority to use eminent domain to purchase the land needed to construct the dam.\nIn March 1992, petitioners and other individuals challenged the EMC\u2019s decision. The trial court overturned the EMC\u2019s decision on the basis that the EMC had not resolved water-quality problems and because all impacts and reasonable alternatives had not been analyzed. However, in 1995, this Court reversed the trial court, stating the trial court did not have jurisdiction because petitioners failed to exhaust their administrative remedies before the Office of Administrative Hearings. See Deep River Citizens\u2019 Coalition v. DEHNR, 119 N.C. App. 232, 457 S.E.2d 772 (1995).\nThe Water Authority sought to reclassify the portion of the Deep River where the reservoir will be built from Class-C waters to WSTV waters so that it could be used as a water supply. The EMC eventually reclassified portions of Deep River to WS-IV and after applicable certifications were completed, the U.S. Army Corps of Engineers issued a permit for the dam project.\nPetitioners filed for a contested case hearing before an administrative law judge (ALJ) challenging the water certification. The AU dismissed petitioner DRCC from the case on the basis that it was not a \u201cperson\u201d under the North Carolina Administrative Procedure Act. DRCC then filed a petition for judicial review, but it was stayed pending the determination of the merits of the underlying action. The two cases were consolidated.\nIn the underlying case, the EMC granted summary judgment to respondents on all issues. Petitioners filed a petition for judicial review. The trial court affirmed the EMC\u2019s decision. Petitioners appealed. On 30 May 2001, the trial court filed a supplemental order concerning the scope of its review. Petitioners also timely appealed from the supplemental order.\nBy their first assignment of error, petitioners argue the trial court erred in failing to review the EMC\u2019s decision de novo. In examining the trial court\u2019s order for an error of law, this Court will: (1) determine whether the trial court exercised the appropriate scope of review and, if appropriate; (2) decide whether the court did so properly. Eury v. N.C. Employment Security Comm., 115 N.C. App. 590, 597, 446 S.E.2d 383, 388 (1994).\nThe proper standard of review by the trial court depends upon the particular issues presented by the appeal. ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997); Brooks v. McWhirter Grading Co., Inc., 303 N.C. 573, 580, 281 S.E.2d 24, 28 (1981). If appellant argues the agency\u2019s decision was based on an error of law, then de novo review is required. In re McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993) (citations omitted). If appellant questions whether the agency\u2019s decision was supported by the evidence or whether it was arbitrary or capricious, then the reviewing court must apply the whole record test.\nIn the instant case, petitioners challenged whether the EMC\u2019s conclusions were supported by the record and if DENR\u2019s refusal to conduct a public hearing was an abuse of discretion. These issues focus on whether the EMC\u2019s decision was arbitrary and capricious and whether its decision was supported by substantial evidence. Thus, a whole record review was proper.\nIn Starco, Inc. v. AMG Bonding & Ins. Services, Inc., 124 N.C. App. 332, 477 S.E.2d 211 (1996), this Court held that it is not improper for a trial court to incorporate documents by reference in its order. The trial court here stated that \u201cin reaching its decision reflected in its Order, the Court adopted and used, in addressing each issue raised by Petitioners, the scope of review under G.S. 150B-51 as urged by Respondent and Respondent-intervenors in their Brief[.]\u201d However, in their brief, respondent and respondent-intervenors request both methods of review. For example, the brief states that\nTo the extent that the chlorophyll a argument claims that DENR and the EMC misinterpreted their own chlorophyll a rule, it is [sic] should be judged under the de novo review standard, as should Petitioners\u2019 other arguments alleging violations of the North Carolina Environmental Policy Act (\u201cNCEPA\u201d) or DENR\u2019s rules governing the 401 Certification. ... To the extent that [the argument] is a claim that the Decision is arbitrary and capricious or not supported by substantial evidence, [a whole record review should be used.]\nThis is only a recitation of the general rule. The brief does not address which standard is used for consideration of each specific issue, leaving the trial court room to decide \u201cthe extent.\u201d The trial court simply stated it used the scope of review set forth in respondent and respondent-intervenors\u2019 brief without deciding \u201cthe extent\u201d it was using each standard. The trial court then concluded the EMC did not err in its decision.\nIn Hedgepeth v. North Carolina Division of Services for the Blind, 142 N.C. App. 338, 543 S.E.2d 169 (2001), this Court held that\nthe trial court in the case sub judice stated the proper standards of review sought by petitioner. However, it. . . failed to delineate which standard the court utilized in resolving each separate issue raised. Furthermore, it is difficult to discern whether the trial court actually conducted both a \u201cwhole record\u201d and de novo review .... We are left to question whether [the trial court] referred to only a \u201cwhole record\u201d review, de novo review, or both .... Given the nature of the trial court\u2019s order, we find ourselves unable to conduct our necessary threshold review. And . . . \u201cwe decline to speculate in that regard.\u201d\nId. at 349, 543 S.E.2d at 176 (citations omitted). Likewise, in the instant case, the trial court\u2019s supplemental order only states that it used the standard of review set out in section 150B-51, which includes both de novo and whole record reviews. It omits whether it specifically used a de novo or whole record test, and to what extent, for the separate issues raised by petitioners.\nAccordingly, we reverse the trial court\u2019s order and remand this matter for a new order in accordance with this opinion. We direct the trial court to: (1) advance its own characterization of the issues presented by petitioners; and (2) clearly delineate the standards of review, detailing the standards used to resolve each distinct issue raised.\nREVERSED AND REMANDED.\nJudges WYNN and HUDSON concur.", "type": "majority", "author": "THOMAS, Judge." } ], "attorneys": [ "Cunningham, Dedmond, Petersen & Smith, LLP, by Marsh Smith and Terris, Pravlik, & Millian, LLP, by Bruce J. Terris and Demian A. Schane for petitioner-appellants.", "Roy Cooper, Attorney General, by Kathryn Jones Cooper, Special Deputy Attorney General and Francis W. Crawley, Special Deputy Attorney General, for respondent-appellees.", "Hunton & Williams, by Charles D. Case and Julie Beddingfield for intervenor-appellee Piedmont Triad Regional Water Authority.", "Linda A. Miles and Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, by George W. House, for intervenor-appellee City of Greensboro." ], "corrections": "", "head_matter": "DEEP RIVER CITIZENS\u2019 COALITION, Petitioner v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, Respondent, CITY OF GREENSBORO and PIEDMONT TRIAD REGIONAL WATER AUTHORITY, Respondent-Intervenors DEEP RIVER COALITION, INC., et al., Petitioners v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, Respondent, CITY OF GREENSBORO and PIEDMONT TRIAD REGIONAL WATER AUTHORITY, Respondent-Intervenors\nNo. COA01-935\n(Filed 5 March 2002)\nAdministrative Law\u2014 judicial review \u2014 standard\u2014not sufficiently identified\nA trial court order reviewing an Environmental Management Commission decision was remanded where the order stated only that the court used the standard set out in N.C.G.S. \u00a7 150B-51, which includes both de novo and whole record reviews, but did not state which standard it used for the separate issues.\nAppeal by petitioners from judgment entered 9 May 2001 and 30 May 2001 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 30 January 2002.\nCunningham, Dedmond, Petersen & Smith, LLP, by Marsh Smith and Terris, Pravlik, & Millian, LLP, by Bruce J. Terris and Demian A. Schane for petitioner-appellants.\nRoy Cooper, Attorney General, by Kathryn Jones Cooper, Special Deputy Attorney General and Francis W. Crawley, Special Deputy Attorney General, for respondent-appellees.\nHunton & Williams, by Charles D. Case and Julie Beddingfield for intervenor-appellee Piedmont Triad Regional Water Authority.\nLinda A. Miles and Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, by George W. House, for intervenor-appellee City of Greensboro." }, "file_name": "0211-01", "first_page_order": 245, "last_page_order": 249 }