{ "id": 8301405, "name": "HOLLY RIDGE ASSOCIATES, LLC, Petitioner v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES AND ITS DIVISION OF LAND RESOURCES; WILLIAM P. HOLMAN, in his official capacity; and CHARLES H. GARDNER, in his official capacity, Respondents, and NORTH CAROLINA SHELLFISH GROWERS ASSOCIATION and NORTH CAROLINA COASTAL FEDERATION, Intervenor-Respondents", "name_abbreviation": "Holly Ridge Associates, LLC v. North Carolina Department of Environment & Natural Resources", "decision_date": "2006-03-21", "docket_number": "No. COA03-1686", "first_page": "594", "last_page": "613", "citations": [ { "type": "official", "cite": "176 N.C. App. 594" } ], "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 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "427", "parenthetical": "memorandum detailing guidelines for investigating and prosecuting violations of state law fell squarely within the meaning of N.C. Gen. Stat. \u00a7 150B-2 (8a)(c) and (g), and was not a rule" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 556", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12136193 ], "year": 1994, "pin_cites": [ { "page": "559", "parenthetical": "memorandum detailing guidelines for investigating and prosecuting violations of state law fell squarely within the meaning of N.C. Gen. Stat. \u00a7 150B-2 (8a)(c) and (g), and was not a rule" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0556-01" ] }, { "cite": "233 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "400" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 552", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552175 ], "year": 1977, "pin_cites": [ { "page": "555-56" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0552-01" ] }, { "cite": "507 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "281" } ], "opinion_index": 0 }, { "cite": "349 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571708 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0315-01" ] }, { "cite": "323 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755493, 4755336, 4753483, 4753324, 4752111 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0622-01", "/nc/312/0622-05", "/nc/312/0622-03", "/nc/312/0622-04", "/nc/312/0622-02" ] }, { "cite": "316 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1984, "pin_cites": [ { "page": "919" }, { "page": "919-20" }, { "page": "920" }, { "page": "921" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526191 ], "year": 1984, "pin_cites": [ { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0292-01" ] }, { "cite": "422 S.E.2d 686", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "688" }, { "page": "691" } ], "opinion_index": 0 }, { "cite": "332 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506767 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0624-01" ] }, { "cite": "223 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "386" }, { "page": "386" } ], "opinion_index": 0 }, { "cite": "289 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570748 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "483" }, { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0473-01" ] }, { "cite": "461 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "786", "parenthetical": "holding that trial court did not abuse its discretion in failing to impose sanctions, even though sanctions for discovery abuse would be supported" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 235", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915008 ], "year": 1995, "pin_cites": [ { "page": "241", "parenthetical": "holding that trial court did not abuse its discretion in failing to impose sanctions, even though sanctions for discovery abuse would be supported" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0235-01" ] }, { "cite": "551 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "877" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435865 ], "year": 2001, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0589-01" ] }, { "cite": "226 S.E.2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561779 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0473-01" ] }, { "cite": "222 S.E.2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "477" } ], "opinion_index": 0 }, { "cite": "28 N.C. App. 626", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551430 ], "year": 1976, "pin_cites": [ { "page": "630" } ], "opinion_index": 0, "case_paths": [ "/nc-app/28/0626-01" ] }, { "cite": "577 S.E.2d 628", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 675", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511527, 1511629, 1511511, 1511639, 1511292 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0675-01", "/nc/356/0675-02", "/nc/356/0675-03", "/nc/356/0675-05", "/nc/356/0675-04" ] }, { "cite": "574 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "53" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249087 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/155/0110-01" ] }, { "cite": "447 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1994, "pin_cites": [ { "page": "777" }, { "page": "780" } ], "opinion_index": 0 }, { "cite": "337 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551286 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0569-01" ] }, { "cite": "402 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 98", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539448, 2545427, 2542900 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0098-03", "/nc/328/0098-01", "/nc/328/0098-02" ] }, { "cite": "397 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "354" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. 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App. 704", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239996 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "708" }, { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0704-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "118" }, { "page": "118" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "674" }, { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "372 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "899" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526141 ], "year": 1988, "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0527-01" ] }, { "cite": "593 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "769" } ], "opinion_index": 0 }, { "cite": "358 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986024 ], "year": 2004, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0190-01" ] }, { "cite": "620 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634071 ], "year": 2005, "pin_cites": [ { "parenthetical": "state employment dispute" } ], "opinion_index": 1, "case_paths": [ "/se2d/620/0014-01" ] }, { "cite": "622 S.E.2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634530 ], "year": 2005, "pin_cites": [ { "parenthetical": "issuance of certificate of need" } ], "opinion_index": 1, "case_paths": [ "/se2d/622/0621-01" ] }, { "cite": "453 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "556", "parenthetical": "State agency's \"authority to issue a penalty is . . . reasonably necessary to the enforcement of' its statutes" } ], "opinion_index": 1 }, { "cite": "118 N.C. App. 70", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916533 ], "year": 1995, "pin_cites": [ { "page": "74", "parenthetical": "State agency's \"authority to issue a penalty is . . . reasonably necessary to the enforcement of' its statutes" } ], "opinion_index": 1, "case_paths": [ "/nc-app/118/0070-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "34", "parenthetical": "\"Article IV, section 3 of the Constitution contemplates that discretionary judicial authority may be granted to an agency when reasonably necessary to accomplish the agency's purpose.\"" } ], "opinion_index": 1 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "379", "parenthetical": "\"Article IV, section 3 of the Constitution contemplates that discretionary judicial authority may be granted to an agency when reasonably necessary to accomplish the agency's purpose.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "360 S.E.2d 135", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "failure to register unarmed guards and armed guards in accordance with Private Protective Services statutes and regulations" } ], "opinion_index": 1 }, { "cite": "87 N.C. App. 143", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357992 ], "year": 1987, "pin_cites": [ { "parenthetical": "failure to register unarmed guards and armed guards in accordance with Private Protective Services statutes and regulations" } ], "opinion_index": 1, "case_paths": [ "/nc-app/87/0143-01" ] }, { "cite": "353 S.E.2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "violation of Occupational Safety and Health regulations" } ], "opinion_index": 1 }, { "cite": "84 N.C. App. 630", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169074 ], "year": 1987, "pin_cites": [ { "parenthetical": "violation of Occupational Safety and Health regulations" } ], "opinion_index": 1, "case_paths": [ "/nc-app/84/0630-01" ] }, { "cite": "509 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "violation of various pesticide regulations by aerial pesticide applicator" } ], "opinion_index": 1 }, { "cite": "349 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571673 ], "year": 1998, "pin_cites": [ { "parenthetical": "violation of various pesticide regulations by aerial pesticide applicator" } ], "opinion_index": 1, "case_paths": [ "/nc/349/0656-01" ] }, { "cite": "278 F. Supp. 2d 619", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9095445 ], "year": 2003, "pin_cites": [ { "page": "649", "parenthetical": "allowing intervenors to participate in action for civil penalty without challenge by defendant" } ], "opinion_index": 1, "case_paths": [ "/f-supp-2d/278/0619-01" ] }, { "cite": "867 F. Supp. 595", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7848668 ], "year": 1994, "pin_cites": [ { "page": "597", "parenthetical": "\"a citizen-intervenor . . . can only seek remedies for ongoing violations of federal law and not civil penalties for past violations\"" } ], "opinion_index": 1, "case_paths": [ "/f-supp/867/0595-01" ] }, { "cite": "883 F.2d 54", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10525658 ], "year": 1989, "pin_cites": [ { "page": "55", "parenthetical": "intervenors complaint incorporated \"all of the allegations set forth in the complaint filed by the United States, except those relating to the payment of civil penalties\"" } ], "opinion_index": 1, "case_paths": [ "/f2d/883/0054-01" ] }, { "cite": "53 Cal App. 3d 661", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 4485374 ], "year": 1975, "pin_cites": [ { "parenthetical": "allowing the State to intervene to pursue civil penalties in a superior court suit filed by private property owners" } ], "opinion_index": 1, "case_paths": [ "/cal-app-3d/53/0661-01" ] }, { "cite": "336 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "unsuccessful applicant for Certificate of Need permitted to intervene in contested case hearing" } ], "opinion_index": 1 }, { "cite": "78 N.C. App. 224", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520561 ], "year": 1985, "pin_cites": [ { "parenthetical": "unsuccessful applicant for Certificate of Need permitted to intervene in contested case hearing" } ], "opinion_index": 1, "case_paths": [ "/nc-app/78/0224-01" ] }, { "cite": "582 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "Medicaid reimbursement appeal" } ], "opinion_index": 1 }, { "cite": "159 N.C. App. 66", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8953952 ], "year": 2003, "pin_cites": [ { "parenthetical": "Medicaid reimbursement appeal" } ], "opinion_index": 1, "case_paths": [ "/nc-app/159/0066-01" ] }, { "cite": "443 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "special education" } ], "opinion_index": 1 }, { "cite": "114 N.C. App. 330", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527543 ], "year": 1994, "pin_cites": [ { "parenthetical": "special education" } ], "opinion_index": 1, "case_paths": [ "/nc-app/114/0330-01" ] }, { "cite": "566 S.E.2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "revocation of stormwater permit" } ], "opinion_index": 1 }, { "cite": "151 N.C. App. 738", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9082409 ], "year": 2002, "pin_cites": [ { "parenthetical": "revocation of stormwater permit" } ], "opinion_index": 1, "case_paths": [ "/nc-app/151/0738-01" ] }, { "cite": "173 N.C. App. 594", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8354061 ], "year": 2005, "pin_cites": [ { "parenthetical": "state employment dispute" } ], "opinion_index": 1, "case_paths": [ "/nc-app/173/0594-01" ] }, { "cite": "360 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3792590 ], "year": 2005, "pin_cites": [ { "parenthetical": "issuance of certificate of need" } ], "opinion_index": 1, "case_paths": [ "/nc/360/0156-01" ] }, { "cite": "447 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "allowing air quality permit holder to intervene in contested case challenging state agency's issuance of permit" } ], "opinion_index": 1 }, { "cite": "337 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551286 ], "year": 1994, "pin_cites": [ { "parenthetical": "allowing air quality permit holder to intervene in contested case challenging state agency's issuance of permit" } ], "opinion_index": 1, "case_paths": [ "/nc/337/0569-01" ] } ], "analysis": { "cardinality": 1780, "char_count": 48154, "ocr_confidence": 0.741, "pagerank": { "raw": 2.5105362431744516e-07, "percentile": 0.8104904957779392 }, "sha256": "a3c29c73ef4736c9e571e3d6663a655b190261477ea90f797af12fefc5487999", "simhash": "1:0388d5bb28aaae56", "word_count": 7628 }, "last_updated": "2023-07-14T16:09:49.892129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN concurs." ], "parties": [ "HOLLY RIDGE ASSOCIATES, LLC, Petitioner v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES AND ITS DIVISION OF LAND RESOURCES; WILLIAM P. HOLMAN, in his official capacity; and CHARLES H. GARDNER, in his official capacity, Respondents, and NORTH CAROLINA SHELLFISH GROWERS ASSOCIATION and NORTH CAROLINA COASTAL FEDERATION, Intervenor-Respondents" ], "opinions": [ { "text": "HUDSON, Judge.\nOn 5 March 2000, the Department of Environment and Natural Resources (\u201cDENR\u201d) assessed a civil penalty against petitioner Holly Ridge Associates (\u201cHRA\u201d) for an alleged violation of the Sedimentation Pollution Control Act (\u201cSPCA\u201d), N.C. Gen. Stat. \u00a7 113A-50 et seq. (1999). HRA disputed the penalty and filed a contested case petition on 3 April 2000. In October 2000, the North Carolina Shellfish Growers Association (\u201cShellfish Growers\u201d) and the North Carolina Coastal Federation (\u201cCoastal Federation\u201d) moved to intervene. In November 2000, the Administrative Law Judge (\u201cALJ\u201d) granted the motion to intervene, over HRA\u2019s objection. On 20 December 2001, the ALJ affirmed a reduced penalty and on 29 April 2002, DENR adopted the ALJ\u2019s recommended decision as its final agency decision. HRA appealed in Superior Court in New Hanover County. On 5 September 2003, the court affirmed DENR\u2019s final agency decision. HRA appeals. For the reasons discussed below, we affirm.\nThis case involves 1262 acres of land in Onslow County owned by HRA (\u201cthe tract\u201d). The tract fronts on and adjoins the Atlantic Intracoastal Waterway (\u201cAIWW\u201d) near Stump Sound. The tract drains directly to the AIWW and to Cypress Branch, a stream that forms the southern boundary of much of the tract. Cypress Branch, a perennial stream and tributary of Batts Mill Creek, flows into the AIWW. The tract, which is located on the mainland across the AIWW and Stump Sound from the resort community of Topsail Island, is largely forested and contains substantial wetlands acreage.\nDuring the 1950\u2019s, Edgar Yow assembled the tract and owned a 50% interest, with the remaining interest divided equally between two other individuals. During the 1960\u2019s and 70\u2019s, the owners constructed a lake on the property and converted some of the agricultural fields to forest. Small stands of timber were cut, some to clear land for the lake, and proceeds from the timber harvesting were used to pay for the lake and dam construction, as well as for property taxes and other expenses associated with owning the land.\nIn 1983, Westminster Company, a Weyerhauser subsidiary devoted to developing residential subdivisions, purchased the tract. In 1986, Lionel Yow (Edgar Yow\u2019s son), Henry E. Miller, Jr., and Weyerhauser entered into a joint venture agreement to acquire the tract and \u201cmaintain[], operat[e], and develop[] thereon a resort residential community.\u201d The joint venturers formed HRA, a partnership, \u201cto acquire, manage, maintain and develop\u201d the tract. In 1986, HRA had development layouts prepared for the tract, depicting potential residential and recreational development of the entire tract. HRA used the layouts as a sales tool with prospective buyers. Mr. Yow participated in numerous other development projects in nearby coastal communities during the late 1980\u2019s and early 1990\u2019s. In 1995, he requested that an engineering firm send copies of the 1986 development drawings to a potential buyer. In 1996, Hurricanes Bertha and Fran struck the North Carolina coast in the vicinity of the tract, damaging timber and washing out unpaved roads on the property. At the suggestion of Corbett Lumber Company, HRA engaged Corbett to remove damaged timber from the tract in 1997.\nIn May 1997, HRA hired regulatory and environmental consultants to plan and execute a ditch excavation project. Neither consultant had any forestry experience and did not provide clients with advice or expertise concerning timber management. By November 1998, the tract had 17 major ditches or systems of ditches, comprising approximately 8 miles over a 34-acre area.\nIn February 1999, after receiving a report of potential violations from the North Carolina Division of Water Quality, two Division of Land Resources (\u201cDLR\u201d) employees inspected the tract. They found numerous violations of the SPCA, including inadequate erosion control devices for the steep ditches. On 3 March 1999, DENR issued a notice of violation of the SPCA. The NOV specified corrective actions necessary to bring the tract into compliance and warned that civil penalties could be assessed if the violations were not corrected within 30 days. On 23 April 1999, DLR returned to the site for a follow-up inspection and observed the same violations as before. DENR issued a notice of continuing violations on 28 April 1999. On 9 July 1999, having still received no submission of the required and previously requested erosion and sedimentation control plan, and having received no notice from HRA that the other violations had been corrected, DENR assessed a penalty of $32,100 for the following violations: failure to submit an erosion and sedimentation control plan for the project, failure to take reasonable measures to protect from damage by land-disturbing activities (not taking measures to control erosion and retain sediment), exposed slopes too steep to maintain ground cover and without other adequate erosion control devices, and failure within fifteen days of grading to have ground cover or other sufficient erosion control devices.\nThereafter, HRA submitted an erosion and sedimentation control plan which was ultimately disapproved due to deficiencies. On 10 November 1999, after another inspection, DENR sent HRA a notice of additional violations, which described new, as well as continuing, violations. After another inspection, DENR sent HRA a notice of continuing violations on 5 January 2000, as the earlier violations had not been corrected. On 5 March 2000, DENR assessed further civil penalties totaling $118,000 for violations of the SPCA. In its contested case petition, HRA claimed that its activities were exempt from the SPCA pursuant to a forestry exception. N.C. Gen. Stat. \u00a7 113A-52.01 (1999). Before, during and after the excavation and agency enforcement process, HRA had not claimed that the ditching was being carried out for forestry purposes; it made this assertion for the first time in its petition for contested case hearing.\nThe North Carolina Administrative Procedure Act (\u201cAPA\u201d) applies to this case. See, e.g., Watkins v. N.C. State Bd. of Dental Exam\u2019rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004). Because the petition in this case was filed in April 2000, and the subsequent amendments to the APA apply only to cases commenced on or after 1 January 2001, the \u201cold\u201d APA governs review of this case. 2000 Sess. Law 190, Section 14.\nOn review of a trial court\u2019s order affirming a decision by an administrative agency, our scope of review is the same as it is for other civil cases. Henderson v. N.C. Dep\u2019t of Human Resources, 91 N.C. App. 527, 530, 372 S.E.2d 887, 899 (1988). We must examine the trial court\u2019s order for error of law and determine whether the trial court exercised the appropriate scope of review and whether the trial court properly applied this standard. Amanini v. N.C. Dep\u2019t of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994).\nThe nature of the error asserted determines the appropriate manner of review; where appellant contends legal error in the agency\u2019s decision, the trial court must review de novo. Dillingham v. N.C. Dep\u2019t of Human Resources, 132 N.C. App. 704, 708, 513 S.E.2d 823, 826 (1999). If the appeal questions whether the agency\u2019s decision was supported by the evidence, was arbitrary and capricious or was the result of an abuse of discretion, the reviewing court must apply the \u201cwhole record\u201d test. Id. \u201cThe \u2018whole record\u2019 test requires the reviewing court to examine all competent evidence (the \u2018whole record\u2019) in order to determine whether the agency decision is supported by \u2018substantial evidence.\u2019 \u201d Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118. \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State ex rel. Comm\u2019r of Ins. v. N.C. Fire Ins. Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977). \u201cThe \u2018whole record\u2019 test does not allow the reviewing court to replace the [agency]\u2019s judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo.\" Thompson v. Wake County Bd. of Educ., 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977).\nHRA first argues that it was legal error for the AU to allow the Shellfish Growers and the Coastal Federation to intervene. We disagree.\nAs HRA contends legal error, we conclude that the superior court correctly chose to apply a de novo standard of review. Thus, we must determine whether the court did so properly. HRA argues that there are three requirements for intervening as a party here: standing, Office of Administrative Hearings (\u201cOAH\u201d) Rule 3.0117, and Civil Procedure Rule 24. As our legislature has provided explicit statutory provisions governing intervention in a contested case petition, we conclude that this case must be analyzed pursuant to these provisions, rather than under the more general rules governing civil procedure. \u201cThe Rules of Civil Procedure as contained in G.S. 1A-1... shall apply in contested cases in the Office of Administrative Hearings (OAH) unless another specific statute or rule of the Office of Administrative Hearings provides otherwise.\" 26 N.C.A.C. 3.0101 () (emphasis added). N.C. Gen. Stat. \u00a7 150B-23(d) (1999) governs intervention in a contested case petition:\nAny person may petition to become a party by filing a motion to intervene in the manner provided in G.S. 1A-1, Rule 24. In addition, any person interested in a contested case may intervene and participate in that proceeding to the extent deemed appropriate by the administrative law judge.\nId. The N.C. Supreme Court has interpreted N.C. Gen. Stat. \u00a7 150B- 23(d) as granting \u201cdiscretionary intervention [] without limitation . . . and . . . providing] intervention broader than the permissive intervention under Rule 24.\u201d State ex rel. Comm\u2019r of Ins. v. North Carolina Rate Bureau, 300 N.C. 460, 468, 269 S.E.2d 538, 543 (1980).\nHRA propounds a strained interpretation of N.C. Gen. Stat. \u00a7 150B-23(d), asserting that the first and second sentences of the statute should be read separately and that the discretion of the second sentence applies only to persons intervening with rights less than those of non-parties, but not to persons who intervene as a \u201cparty\u201d under the first sentence. Here, intervenors were granted intervention as parties. HRA contends that those intervening as parties, under the first sentence of the statute, are subject to the all of the requirements of Rule 24. We find nothing in the plain language of the statute to suggest that our legislature intended such a reading. Although the first sentence mentions Rule 24, it states only that parties must file \u201cin the manner\u201d of Rule 24, which plainly refers to procedural, not substantive, requirements. As the Court did in State ex rel. Comm\u2019r of Ins. v. North Carolina Rate Bureau, we conclude that the plain language of \u00a7 150B-23(d) gives OAH broad discretion to allow intervention.\nHowever, while discretionary intervention under section 150B-23(d) is broader than that under Rule 24, OAH Rule 3.0117 imposes requirements for intervention in contested cases similar to those in Rule 24, including the following provisions:\n(a) Any person not named in the notice of hearing who desires to intervene in a contested case as a party shall file a timely motion to intervene and shall serve the motion upon all existing parties. Timeliness will be determined by the administrative law judge in each case based on circumstances at the time of filing. The motion shall show how the movant\u2019s rights, duties, or privileges may be determined or affected by the contested case; shall show how the movant may be directly affected by the outcome\n(d) The administrative law judge shall allow intervention upon a proper showing under this Rule, unless the administrative law judge finds that the movant\u2019s interest is adequately represented by one or more parties participating in the case . . .\n26 N.C.A.C. 3.0117 (1999) (emphasis added). HRA asserts that inter-venors\u2019 interests are no more than \u201can interest common to all persons,\u201d and are not separate from the interests of DENR. HRA also argues that intervenors have no interest in a civil penalty assessment against it. But as HRA claimed exemption from the erosion control requirements of the SPCA in its contested case petition, the issue of whether HRA would be exempt from SPCA was also at issue here. Indeed, in their motion to intervene, intervenors stressed that the important issue to them was whether HRA would qualify for the forestry exemption of the SPCA. The superior court found that the following findings made in the recommended decision adequately described the intervening parties:\n3. The Respondent-Intervenor North Carolina Shellfish Growers Association (\u201cNCSGA\u201d) is a private, non-profit association founded in 1995 to represent the interests of the many North Carolinians involved in the shellfish industry. NSCGA has 82 members who include shellfish farmers, hatchery operators, seafood dealers, educators and researchers. Members of NCSGA own and maintain shellfish production leases in Stump Sound and surrounding coastal waters, including in the vicinity of the Holly Ridge tract. Jim Swartzenberg, President of NCSGA, along with his wife, Bonnie, leases 37 acres of waters in Stump Sound for oyster production and assists in management and production of oysters from over 100 additional acres in Stump Sound. (Affidavit of Jim Swartzenberg, submitted with Motion to Intervene). NCSGA is a plaintiff in a federal lawsuit against HRA arising out of the same facts and circumstances as this matter.\n4. Respondent-Intervenor North Carolina Coastal Federation is a non-profit tax-exempt organization dedicated to the promotion of better stewardship of coastal resources. The Coastal Federation was founded in 1982 and has approximately 5,000 members who live near, shellfish or fish in, or regularly visit, Stump Sound and nearby coastal waters. The Coastal Federation has worked to protect water quality in Stump Sound and in the vicinity of the Holly Ridge tract and has investigated, documented, publicized, and sought government enforcement of violations of state and federal sedimentation, stormwater, water quality, and wetlands laws in connection with ditch excavation which occurred in southeastern North Carolina during 1998 and 1999, including at the Morris Landing tract. (Affidavit of Todd Miller).\n(emphasis added). These findings, and the superior court\u2019s decision to adopt them, were not challenged on appeal and thus are conclusive. Walker v. N.C. Dep\u2019t of Human Resources, 100 N.C. App. 498, 502, 397 S.E.2d 350, 354 (1990), cert. denied, 328 N.C. 98, 402 S.E.2d 430 (1991). Furthermore, in his affidavit which was submitted with the motion to intervene, Jim Swartzenberg, president of Shellfish Growers, stated the following:\n10. Ditching and draining of tracts of land located in close proximity to shellfish waters can, if sediment controls are not fully implemented, result in excessive turbidity and sediment being transported by surface water and stormwater to shellfish waters, jeopardizing those waters and causing the waters to be closed to the taking-of shellfish for human consumption. Additionally, the silting-in of the oyster beds can lead to mortality of planted oysters prior to their reaching market size. Waters that contain excessive silt can also affect the propagation of oysters and interfere with the natural spatfall causing a reduction of naturally set oysters. (Spatfall is the process by which the young oyster attaches itself to stable substances on the bottom). Reduction of spatfall can have a devastating effect on the production of lease-raised oysters because leaseholders regularly plant cultch (oyster shells and marl) to recruit wild spat into their leases. Similarly, inadequately controlled stormwater runoff from ditched and drained coastal properties can transmit excessive levels of fecal coliform bacteria to shellfishing waters, resulting in closure of those waters.\n11. Stump Sound select oysters raised in shellfish leases in the vicinity of the Holly Ridge tract traditionally command a premium price because of their superior fullness and flavor.\nAccordingly, we conclude that intervenors\u2019 interests may be directly affected by the outcome of the contested case here. We further conclude that intervenors\u2019 interests in having the SPCA erosion requirements apply to HRA are separate from the penalties assessed against HRA by DENR.\nIn Empire Power Co. v. N.C. Dep\u2019t of Env\u2019t & Natural Resources, the North Carolina Supreme Court held that the types of economic and environmental interests asserted by intervenors are legally pro-tectable. 337 N.C. 569, 447 S.E.2d 768 (1994). In Empire Power, the Court addressed whether an adjacent property owner was a \u201cperson aggrieved,\u201d and thus entitled to a hearing, after the State awarded an air pollution control permit to the respondent utility company. Id. The state agency argued that only the permit applicant or per-mittee was entitled to a contested hearing. Id. The Court held that the APA conferred upon any \u201cperson aggrieved\u201d the right to commence an administrative hearing involving the person\u2019s rights, duties, or privileges. Id. at 584,447 S.E.2d at 777. The Court held that an adjacent property owner was an aggrieved person because he and his family would suffer injury to their health, their property, and their quality of life if the permit were granted. Id. at 589, 447 S.E.2d at 780. Here, intervenors need not meet the standard of a \u201cperson aggrieved\u201d in order to intervene, but Empire Power is instructive regarding the types of economic and environmental interests parties may seek to protect in a contested case. If HRA were exempted from SPCA, the intervenors would suffer injury to their property, livelihoods, and quality of life similar to that asserted by the petitioner in Empire Power.\nHRA mistakenly relies on Neuse River Found., Inc., v. Smithfield Foods, Inc. to support its contention that intervenors\u2019 interests are generalized and legally unprotected. 155 N.C. App. 110, 574 S.E.2d 48 (2002), disc. review denied, 356 N.C. 675, 577 S.E.2d 628 (2003). The plaintiffs in Neuse River alleged public nuisance violations and sought damages to be paid into a court-ordered trust for the restoration of public waters. Id. This Court held that the plaintiff river associations lacked standing because none of them alleged injury to \u201cparticular\u201d and \u201cimportant personal rights\u201d that cannot be considered merged in the general public right.\u201d Id. at 116, 574 S.E.2d at 53. However, because Neuse River did not involve the APA or intervention in a contested case, but rather addressed standing in a common law public nuisance action seeking damages, we conclude that Neuse River is inapposite. Moreover, under the facts here, we conclude that intervenors\u2019 interests in the waters affected by HRA\u2019s discharge activities are discrete and particular to certain members of the intervenor organizations, who live near, or who visit, fish or shellfish in the affected waters, and are not merely a generalized public interest.\nIn its brief, HRA also argues that the intervenors did not show that their interests would be inadequately represented by DENR. However, HRA first raised this argument in its superior court brief and has thus failed to properly bring forward this objection. Nantz v. Employment Sec. Com., 28 N.C. App. 626, 630, 222 S.E.2d 474, 477, aff\u2019d, 290 N.C. 473, 226 S.E.2d 340 (1976). Accordingly, we do not address this argument.\nHRA makes several arguments regarding the. AU\u2019s grant of discovery rights to the intervenors. They assert that the AU erred by reopening discovery, by allowing respondents to serve supplemental discovery responses, and by allowing respondents and intervenors to present evidence jointly, and that the superior court erred in affirming these decisions. We disagree.\nAlthough HRA devotes several pages in its brief to arguing that the ALJ\u2019s decision to reopen discovery was error, it fails to cite any authority for this argument. Thus, this argument is deemed abandoned. N.C. R. App. P. 28(b)(5) (2005).\nHRA argues next in its brief that the AU\u2019s decision to allow respondents to supplement their discovery responses four days prior to trial, and his subsequent denial of its motion for continuance, were arbitrary and capricious and legal error. The Superior Court thus reviewed these issues de novo and under the whole record test. \u201c[0]rders regarding discovery matters are within the discretion of the trial court and will not be upset on appeal absent a showing of abuse of that discretion.\u201d Velez v. Dick Keffer Pontiac-GMC Truck, Inc., 144 N.C. App. 589, 595, 551 S.E.2d 873, 877 (2001). See also Rose v. Isenhour Brick & Tile Co., 120 N.C. App. 235, 241, 461 S.E.2d 782, 786 (1995) (holding that trial court did not abuse its discretion in failing to impose sanctions, even though sanctions for discovery abuse would be supported). Similarly, \u201ca motion to continue is addressed to the sound discretion of the trial judge.\u201d Shankle v. Shankle, 289 N.C. 473, 483, 223 S.E.2d 380, 386 (1976).\nDENR initially served its responses to HRA\u2019s discovery on 18 August 2000. Then, on 25 July 2001, four business days before the scheduled hearing, DENR delivered supplemental discovery responses, including designation of two witnesses and 102 pages of documents. The new witnesses were both employees of DENR\u2019s Division of Forest Resources (\u201cDFR\u201d) and the documents were related to their involvement in evaluating the tract. HRA asserts that the ALJ should not have allowed respondents to submit this supplemental discovery because it was untimely. N.C. Gen. Stat. \u00a7 150B-33 gives \u00bfn AU power to rule on all objections to discovery and to \u201cregulate the course of the hearing, including discovery.\u201d N.C. Gen. Stat. \u00a7 150B-33(b)(3)&(4) (1999). The OAH rule governing discovery provides that:\n(e) All discovery shall be completed no later than the first day of the contested case hearing. An administrative law judge may shorten or lengthen the period for discovery and adjust hearing dates accordingly and, when necessary, allow discovery during the pendency of the contested case hearing.\n26 N.C.A.C. 3.0112 (emphasis added). Thus, under the applicable statute and rules, we conclude that the AU had express authority to allow respondents to supplement discovery four days prior to the hearing and did not abuse his discretion.\nIn support of its argument that t\u00edre AU erred in allowing supplementation, HRA cites Bumgarner v. Reneau, 332 N.C. 624, 422 S.E.2d 686 (1992). However, Bumgarner involved very different facts and, to the extent that it is relevant here, we conclude that it actually supports the AU\u2019s actions. In Bumgarner, a party attempted to present evidence at trial that it had failed to provide in its response to the opposing party\u2019s discovery request. Id. at 627, 422 S.E.2d at 688. The Court in Bumgarner held that the trial court did not abuse its discretion when it refused to admit this evidence as a sanction for the discovery violation, pursuant to N.C. R. Civ. R 37. Id. at 633, 422 S.E.2d at 691. Although HRA has not argued in its brief that the AU abused his discretion in failing to sanction respondents, it did move for exclusion pursuant to Rule 37 in its motion in limine. However, Bumgarner supports the well-established law that matters of discovery, including how to treat violations, are within the sound discretion of the trial court.\nHR\u00c1 also asserts that DENR\u2019s late supplementation changed the case and left it unprepared, thus entitling it to a continuance \u201cas a matter of right.\u201d In a contested case hearing,\n[r]equests for a continuance of a hearing shall be granted upon a showing of good cause. ... In determining whether good cause exists, due regard shall be given to the ability of the party requesting a continuance to proceed effectively without a continuance.\n26 N.C.A.C. 3.0118 (2005). This rule, like the civil procedure rule on continuances (N.C. R. Civ. P. 40(b)), \u201cwisely makes no attempt to enumerate them but leaves it to the judge to determine, in each case, whether \u2018good cause\u2019 for a continuance has been shown:\u201d Shankle, 289 N.C. at 483, 223 S.E.2d at 386. \u201cIn passing on the motion the trial court must pass on the grounds urged in support of it, and . . . should consider all the facts in evidence, and not act on its own mental impression or facts outside the record.\u201d Id.\nHere, in his order, the ALJ stated that he was ruling, \u201c[i]n the interests of justice, after considering arguments of counsel in this matter regarding Petitioner\u2019s Motion in Limine. \u201d The AU then limited the testimony of DENR\u2019s new witnesses to rebuttal only. Furthermore, one of the two \u201cnew\u201d witnesses had already been identified by DENR in its May 2000 prehearing statement. Petitioner, through counsel and a consultant, had met with the other new witness over a year prior to trial, and petitioner\u2019s counsel met with both of the witnesses 9 months prior to trial during a site visit made by DFR. As mentioned, DENR submitted its supplemental response four days prior to the trial. But there were ten days between the supplementation and the presentation of HRA\u2019s case. Then, as the hearing was continued, there were 52 days between the supplementation and the testimony of the DFR witnesses. We conclude that there was no abuse of discretion here.\nHRA cites Green v. Maness in support of its argument that it was entitled to a continuance \u201cas a matter of right.\u201d 69 N.C. App. 292, 294, 316 S.E.2d 917, 919, disc. rev. denied, 312 N.C. 622, 323 S.E.2d 922 (1984). In Green, a complex medical malpractice case, shortly before trial the defendant met with a new medical expert who agreed to testify. Id. at 295-96, 316 S.E.2d at 919-20. The new expert presented a new defense theory, that plaintiff child\u2019s defect was caused by a preexisting condition or congenital abnormalities rather than trauma during birth, which would negate any negligence by defendant obstetrician. Id. Then, at trial, the new expert presented yet another new defense theory. Id. at 297, 316 S.E.2d at 920. Under these particular circumstances, the Court held that the trial court erred in not granting a continuance because the new defense theory resulted in unfair surprise to plaintiff. Id. at 299, 316 S.E.2d at 921. We conclude that as HRA asserted that it was exempt from the SPCA because of forestry practices, and there was a history of DFR\u2019s involvement in investigating HRA\u2019s claims, of which HRA was aware, DENR did not present a new theory which unfairly surprised HRA.\nHRA also contends that the AU improperly permitted intervenors to present evidence jointly with DENR because the AU thus improperly considered evidence admitted through the testimony of witnesses called by the intervenors in determining whether respondents met their burden of proof. HRA asserts that this was both an error of law, and arbitrary and capricious. Accordingly, the superior court reviewed the issue regarding the burden of proof de novo and the question of the arbitrariness and capriciousness of the ALJ\u2019s regulation of the course of the hearing under the whole record test. Our review of the law and the record indicates that the superior court correctly affirmed.\nHere, the parties attended a pretrial conference pursuant to OAH Rule 3.0108, and stipulated that \u201cRespondent and Respondent-Intervenors shall present evidence first.\u201d Another paragraph in the pretrial order, regarding witnesses, states that, \u201cRespondent and Respondent-Intervenors will call witnesses jointly.\u201d On appeal, HRA contends that they only stipulated that both parties would be permitted to introduce evidence. However, the pretrial order was signed by all parties after the first day of trial, when respondents and inter-venors had already begun to present evidence jointly. Moreover, respondents\u2019 and intervenors\u2019 counsel stated at the outset of the hearr ing that they intended to put on a joint case. The transcript further reflects that the joint presentation of evidence proceeded for three days before HRA objected. Thus, we conclude that by stipulating to this procedure, and by participating in it for three days without complaint, HRA waived this objection.\nHRA also asserts that the AU and superior court improperly based their decisions on a \u201csubstantial evidence\u201d standard and that the AU failed to weigh the evidence. We disagree.\nWe first conclude that the superior court here properly chose to review this matter de novo, as the standard of review or proof is a matter of law. We must now determine whether the superior court exercised this review correctly. The ALJ concluded that \u201c[t]he applicable version of the Administrative Procedure Act directs that the decision in this contested case must be supported by substantial evidence,\u201d and that \u201c[substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d In the applicable version of the APA, a final agency decision \u201cshall be supported by substantial evidence.\u201d N.C. Gen. Stat. \u00a7 150B-36(b) (1999). Thus, when the AU stated this as the law, it was a correct statement. HRA contends, though, that the AU improperly applied this substantial evidence standard of review rather than applying an appropriate standard of proof. It argues that the \u201csubstantial evidence\u201d standard governs review of the agency decision, not the AU\u2019s, and that the AU was required to apply a weighing standard of proof. \u201cOur Supreme Court has stated that the standard of proof in administrative matters is by the greater weight of the evidence.\u201d Dillingham, 132 N.C. App. at 712, 513 S.E.2d at 828. Nonetheless, we conclude that there is no conflict between the application of an evidentiary standard requiring that a decision be based on substantial evidence and a requirement that a party must persuade the fact-finder by the greater weight of the evidence. Furthermore, our careful review of the record reveals that the ALJ considered and carefully weighed the evidence, making unusually detailed findings of fact, specific credibility determinations, and addressing petitioner\u2019s contentions. Thus, we overrule this assignment of error.\nHRA next argues that the superior court erred in affirming the AU and Agency decisions because the burden of proof was improperly placed upon HRA, the statutory .exemption for forestry activities was misread, and DENR was not required to adhere to its own inter-agency policies. We disagree.\nThe SPCA does not apply to \u201c[activities undertaken on forestland for the production and harvesting of timber and timber products,\u201d as long as they are conducted in compliance with DENR best management practices. N.C. Gen. Stat. \u00a7 113A-52.01 (2) (1999). The AU required HRA to prove that this exception applied and HRA contends that this was legal error. The superior court thus properly reviewed this argument de novo. We conclude that it did so correctly.\nHRA contends that N.C. Gen. Stat. \u00a7 113A-64(a)(l) (1999) allocates the burden of proof to DENR to prove both that the SPCA applies and that there was a violation. N.C. Gen. Stat. \u00a7 113A-64(a)(l) provides that:\nAny person who violates any of the provisions of this Article or any ordinance, rule, or order adopted or issued pursuant to this Article by the Commission or by a local government, or who initiates or continues a land-disturbing activity for which an erosion and sedimentation control plan is required except in accordance with the terms, conditions, and provisions of an approved plan, is subject to a civil penalty. The maximum civil penalty for a violation is five thousand dollars ($ 5,000). A civil penalty may be assessed from the date of the violation. Each day of a continuing violation shall constitute a separate violation.\nId. We find nothing here to support HRA\u2019s reading of this statute. To the contrary, our caselaw holds that unless a statute provides otherwise, petitioner has the burden of proof in OAH contested cases. See, e.g., Peace v. Employment Sec. Comm\u2019n, 349 N.C. 315; 328, 507 S.E.2d 272, 281 (1998). Indeed, N.C. Gen. Stat. \u00a7 150B-23(a) (1999) requires that the petitioner\nshall state facts tending to establish that the agency named as the respondent has deprived the petitioner of property, has ordered the petitioner to pay a fine or civil penalty, or has otherwise substantially prejudiced the petitioner\u2019s rights and that the agency:\n(1) Exceeded its authority or jurisdiction;\n(2) Acted erroneously;\n(3) Failed to use proper procedure;\n(4) Acted arbitrarily or capriciously; or\n(5) Failed to act as required by law or rule.\nId. HRA\u2019s contention that the SPCA was inapplicable on its site falls under a petitioner\u2019s burden of showing that an agency acted outside its authority, pursuant to N.C. Gen. Stat. \u00a7 150B-23(a). Accordingly, we overrule this assignment of error.\nHRA argues next that the AU and superior court misinterpreted the SPCA forestry exemption. Because this involved a question of law, the Superior Court correctly reviewed it de novo. HRA challenges conclusion of law 15 of the recommended decision:\nIn assessing whether land-disturbing activities undertaken on forestland were undertaken \u2018for the production and harvesting of timber and timber products,\u2019 the purposes for which the activities were conducted and the objective nature of those activities must be evaluated. The fact that a landowner may have a history of management activities and uses of the land involving timber production is not by itself determinative, nor is the fact that timber may have been cut in connection with the land-disturbing activities. Land-disturbing activities undertaken on forestland to prepare the property for development, to improve the marketability of the property for development, or to generally improve drainage of the property are not activities which qualify for the SPCA\u2019s forestry exemption.\n(emphasis added). HRA contends that the italicized language above added a limitation to the exemption which is not supported by the statute, as the assertion that activities undertaken to \u201cgenerally improve drainage,\u201d could refer to those undertaken to improve timber production and operations. We disagree. The SPCA forestry exemption, on its face, applies to activities specifically undertaken \u201cfor the production and harvesting of timber and timber products,\u201d not to drainage activities for other purposes, such as general improvement of drainage. N.C. Gen. Stat. \u00a7 113A-52.01(2) (1999). We overrule this assignment of error.\nFinally, HRA argues that the ALJ erred in concluding that DENR was not required to follow its written memoranda on forestry operations. HRA asserts that this was legal error. Accordingly, the Superior Court reviewed the matter de novo, and we conclude that it did so correctly.\nDLR and DFR, both subdivisions of DENR, entered into Memoranda of Agreement in 1989 and 1992, in which they agreed to a joint approach in implementing the forestry exemption of the SPCA. DLR agreed to refer potential violations of forestry activity to DFR and DFR stated that it would attempt to mitigate and correct the problems with the responsible party and to take no further action if the violation was cured. HRA contends that these policies are rules, and that DENR was thus required to follow them. We disagree. N.C. Gen. Stat. \u00a7 150B-2 (1999) states that the following are not rules:\na. Statements concerning only the internal management of an agency or group of agencies within the same principal office or department. . . including policies and procedures manuals if the statement does not directly or substantially affect the procedural or substantive rights or duties of a person not employed by the agency or group of agencies.\n* * *\ng. Statements that set forth criteria or guidelines to be used by the staff of an agency in performing . . . investigations, or inspections ... or in the defense, prosecution, or settlement of cases.\nId. In addition, no agency pronouncement of any kind is valid and enforceable as a rule unless adopted in substantial compliance with the notice, comment, public hearing, and other requirements for adopting a rule under the APA. See N.C. Gen. Stat. \u00a7 150B-18 (1999); American Guarantee & Liability Ins. Co. v. Ingram, 32 N.C. App. 552, 555-56, 233 S.E.2d 398, 400, disc. rev. denied (1977).\nOur review of the record reveals that the 1989 and 1992 inter-agency memoranda and the DFR policies are statements about how the two agencies intended to evaluate and investigate cases possibly involving the forestry exemption to the SPCA. They do not attempt to define statutory language, to impose additional obligations upon landowners, or to alter the terms of the exemption in any way. Rather, they describe internal agency procedures for applying the forestry exemption, and, as such, are not rules. See, e.g., Ford v. State, Dep\u2019t of Crime Control & Pub. Safety, 115 N.C. App. 556, 559, 445 S.E.2d 425, 427 (1994) (memorandum detailing guidelines for investigating and prosecuting violations of state law fell squarely within the meaning of N.C. Gen. Stat. \u00a7 150B-2 (8a)(c) and (g), and was not a rule). Furthermore, it is undisputed that these documents were not promulgated as rules. Accordingly, they are not enforceable by HRA, or by the agencies, as rules. We overrule this assignment of error.\nHRA also contends that even if the memoranda do not constitute rules, DENR\u2019s failure to follow them was arbitrary and capricious. The Superior Court correctly reviewed this argument under the whole record test and concluded that the AU and agency correctly decided that even though the memoranda did not constitute rules, the agencies substantially complied with the memoranda. Our review also indicates that the agency\u2019s conclusions regarding this matter are supported by substantial evidence of record.\nFor the reasons discussed above, we affirm.\nAffirmed.\nChief Judge MARTIN concurs.", "type": "majority", "author": "HUDSON, Judge." }, { "text": "JACKSON, Judge,\ndissenting.\nFor the reasons stated below, I respectfully dissent from the majority opinion.\nInitially, Petitioner argues that it was legal error for the Administrative Law Judge (\u201cALT\u2019) to allow the North Carolina Shellfish Growers Association (\u201cShellfish Growers\u201d) and the North Carolina Coastal Federation (\u201cCoastal Federation\u201d) to intervene in this matter. The majority has determined that this case must be analyzed pursuant to the legislature\u2019s explicit statutory provisions governing intervention in a contested case petition. See supra. Although I agree with the majority that it is appropriate to analyze this matter within the framework of a contested case petition, I believe that we must frame the issue even more narrowly, i.e., whether it is appropriate to allow intervention in a contested case petition involving the imposition of a civil penalty.\nWithin the body of case law regarding contested case petitions, there is a wide array of actions by the State which might give right to such a petition. Mooresville Hosp. Mgmt. Assocs. v. N.C. Dep\u2019t of Health & Human Servs., 360 N.C. 156, 622 S.E.2d 621 (2005) (issuance of certificate of need); Hilliard v. N.C. Dep\u2019t of Corr., 173 N.C. App. 594, 620 S.E.2d 14 (2005) (state employment dispute); Godfrey Lumber Co. v. Howard, 151 N.C. App. 738, 566 S.E.2d 825 (2002) (revocation of stormwater permit); Beaufort County Schools v. Roach, 114 N.C. App. 330, 443 S.E.2d 339 (1994) (special education). In some instances, intervention by a third party may be appropriate and properly within the discretion of the ALJ. See Empire Power Co. v. N.C. Dep\u2019t of E.H.N.R., 337 N.C. 569, 447 S.E.2d 768 (1994) (allowing air quality permit holder to intervene in contested case challenging state agency\u2019s issuance of permit); Albemarle Mental Health Ctr. v. N.C. Dep\u2019t of Health & Human Servs., 159 N.C. App. 66, 582 S.E.2d 651 (2003) (Medicaid reimbursement appeal); Mt. Olive Home Health Care Agency, Inc. v. N.C. Dep\u2019t of Human Resources, 78 N.C. App. 224, 336 S.E.2d 625 (1985) (unsuccessful applicant for Certificate of Need permitted to intervene in contested case hearing). In the case of a state agency\u2019s imposition of a civil penalty, I believe that it is not. Further, my research has disclosed no case law in this State nor in any other state jurisdiction allowing intervention by a private individual or entity in a matter involving imposition of a civil penalty by a state. But see Sanders et al. v. Pacific Gas and Electric Co., 53 Cal App. 3d 661 (1975) (allowing the State to intervene to pursue civil penalties in a superior court suit filed by private property owners). Moreover, in federal cases allowing for intervention by private entities, in most instances, the intervenors either have been precluded or voluntarily have chosen not to involve themselves in the claims involving the assessment of civil penalties. U.S. v. Metropolitan St. Louis Sewer Dist., 883 F.2d 54, 55 (8th Cir. 1989) (intervenors complaint incorporated \u201call of the allegations set forth in the complaint filed by the United States, except those relating to the payment of civil penalties\u201d); U.S. v. City of Toledo, 867 F. Supp. 595, 597 (N.D. Ohio 1994) (\u201ca citizen-intervenor . . . can only seek remedies for ongoing violations of federal law and not civil penalties for past violations\u201d); but see U.S. v. Duke Energy Corp., 278 F. Supp. 2d 619, 649 (M.D.N.C. 2003) (allowing intervenors to participate in action for civil penalty without challenge by defendant).\nThe legislature has delegated to the several executive branch agencies the authority to impose civil penalties for a variety of purposes. Meads v. N.C. Dep\u2019t of Agric., 349 N.C. 656, 509 S.E.2d 165 (1998) (violation of various pesticide regulations by aerial pesticide applicator); O.S. Steel Erectors v. Brooks, Com\u2019r of Labor, 84 N.C. App. 630, 353 S.E.2d 869 (1987) (violation of Occupational Safety and Health regulations); N.C. Private Protective Services Bd. v. Gray, Inc., 87 N.C. App. 143, 360 S.E.2d 135 (1987) (failure to register unarmed guards and armed guards in accordance with Private Protective Services statutes and regulations). That delegation properly rests with an agency of the State, not with a private citizen or association. By allowing the Shellfish Growers and the Coastal Federation to intervene in this matter, the ALJ effectively deputized both entities with the authority of the State and enabled both of them to act as private prosecutors. See In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 379, 379 S.E.2d 30, 34 (1989) (\u201cArticle IV, section 3 of the Constitution contemplates that discretionary judicial authority may be granted to an agency when reasonably necessary to accomplish the agency\u2019s purpose.\u201d); State of North Carolina ex rel. Cobey v. Cook, 118 N.C. App. 70, 74, 453 S.E.2d 553, 556 (1995) (State agency\u2019s \u201cauthority to issue a penalty is . . . reasonably necessary to the enforcement of\u2019 its statutes). I cannot believe that this was the legislature\u2019s intention in creating the various schemes for assessment of civil money penalties that flow throughout State government, more particularly, the Sedimentation Pollution Control Act, under which Petitioner was assessed. N.C. Gen. Stat. \u00a7 113A-50 et seq. Therefore, I would reverse the trial court. As I believe that Intervenors should not have been permitted to intervene in the first place, I do not address the remaining issues raised by Petitioner on appeal.", "type": "dissent", "author": "JACKSON, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Senior Deputy Attorney General James C. Gulick and Assistant Attorney General Margaret P. Eagles, for respondent-appellees.", "Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P, by George W. House, and H\u00fanton & Williams, by Craig A. Bromby, for petitioner-appellant.", "Southern Environmental Law Center, by Donnell Van Noppen, III, and Amy Pickle, for intervenor-respondent-appellees." ], "corrections": "", "head_matter": "HOLLY RIDGE ASSOCIATES, LLC, Petitioner v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES AND ITS DIVISION OF LAND RESOURCES; WILLIAM P. HOLMAN, in his official capacity; and CHARLES H. GARDNER, in his official capacity, Respondents, and NORTH CAROLINA SHELLFISH GROWERS ASSOCIATION and NORTH CAROLINA COASTAL FEDERATION, Intervenor-Respondents\nNo. COA03-1686\n(Filed 21 March 2006)\n1. Administrative Law\u2014 intervention \u2014 direct interests of intervenors\nAn administrative law judge did not err by allowing the Shellfish Growers and the Coastal Federation to intervene in a contested case involving a monetary penalty for erosion and sedimentation violations. The intervenors\u2019 interests may be directly affected by the outcome of the case, and are separate from erosion penalties, because conclusive findings indicate that sedimentation affects the waters which their members visit and from which they take fish and shellfish. N.C.G.S. \u00a7 150B-23(d).\n2. Administrative Law\u2014 contentions first raised in superior court \u2014 not properly brought forward\nContentions on appeal of an administrative law judge\u2019s decision that were first raised in the superior court brief were not properly brought forward.\n3. Appeal and Error\u2014 no authority cited \u2014 argument abandoned\nArguments concerning an administrative law judge\u2019s handling of discovery were deemed abandoned where no authority was cited for the arguments.\n4. Administrative Law\u2014 discovery responses supplemented\u2014 no surprise \u2014 no abuse of discretion\nAn administrative law judge did not err by allowing respondents to supplement discovery responses four days prior to trial and then denying a motion for a continuance. The applicable statute and rules gave authority for the action, and there was no abuse of discretion. Respondent was not asserting a new theory that unfairly surprised petitioner.\n5. Administrative Law\u2014 joint presentation of case \u2014 stipulation and participation without objection\nPetitioner waived any objection to respondent and inter-venors making a joint presentation of their case through a stipulation and by participating in the hearing for three days without complaint.\n6. Administrative Law\u2014 evidentiary standard \u2014 substantial evidence \u2014 greater weight of evidence \u2014 no conflict\nThere is no conflict between the application of an evidentiary standard requiring that a decision be based on substantial evidence and a requirement that a party must persuade the fact-finder by the greater weight of the evidence. Although petitioner here argues that the AU improperly applied the \u201csubstantial evidence\u201d standard, the AU considered and carefully weighed the evidence.\n7. Administrative Law\u2014 burden of proof \u2014 agency action outside authority\nUnless a statute provides otherwise, the petitioner has the burden of proof in OAH contested cases. Although the petitioner here argues that N.C.G.S. \u00a7 113A-64(a)(l) allocates the burden of proof in this case to respondent, petitioner\u2019s contention that the Sedimentation Pollution Control Act was inapplicable on its site falls under its burden of showing that an agency acted outside its authority.\n8. Environmental Law\u2014 sedimentation and erosion \u2014 forestry exemption\nThe forestry exemption in the Sedimentation Pollution Control Act applies, on its face, to activities specifically undertaken for the production and harvesting of timber and timber products, not to drainage activities for other purposes. A superior court conclusion that activities to generally improve drainage do not qualify for the exemption was not error.\n9. Administrative Law\u2014 agency memoranda \u2014 not enforceable as rules \u2014 substantial compliance\nAn administrative law judge did not err by concluding that respondent was not required to follow interagency memoranda on forestry operations where the memoranda described internal agency procedures, were not enforceable as rules, and were substantially complied with.\nJudge Jackson dissenting.\nAppeal by petitioner from order entered 5 September 2003 by Judge Benjamin G. Alford in Superior Court in New Hanover County. Heard in the Court of Appeals 21 March 2005.\nAttorney General Roy Cooper, by Senior Deputy Attorney General James C. Gulick and Assistant Attorney General Margaret P. Eagles, for respondent-appellees.\nBrooks, Pierce, McLendon, Humphrey & Leonard, L.L.P, by George W. House, and H\u00fanton & Williams, by Craig A. Bromby, for petitioner-appellant.\nSouthern Environmental Law Center, by Donnell Van Noppen, III, and Amy Pickle, for intervenor-respondent-appellees." }, "file_name": "0594-01", "first_page_order": 626, "last_page_order": 645 }