SC Administrative Law Court Decisions

This matter is before me pursuant to Petitioner's request for a contested case hearing challenging OCRM's issuance of a consistency certification with regard to Mine Operating Permit #1289, which was issued to Respondent Wake Stone by the Mining Council. By Order dated July 23, 2001, the undersigned held in abeyance a motion to dismiss filed by OCRM and joined by Wake Stone to see if the Mining Council addressed the consistency determination component of its mining permit decision.

On December 13 and 14, 2001, the Mining Council held a hearing regarding the propriety of issuing the mining permit to Respondent Wake Stone. The parties agrees that the Mining Council asserted jurisdiction over the subject matter of the instant case, namely, OCRM's consistency certification, in its review of Wake Stone's mining permit. In addition, the parties agree that the Mining Council's decision arising out of the December 2001 hearing is appealable to the circuit court. ⁽¹⁾

Because the Mining Council assumed jurisdiction of the consistency determination issue and provided the Petitioner with a full opportunity to be heard on the issue, by the terms of the Order of July 23, 2001, this matter should be dismissed. However, since the date of that Order, the South Carolina Supreme Court issued an opinion ⁽²⁾ in which it, in a footnote, overruled two cases ⁽³⁾ to the extent they hold that Coastal Management Program (CMP) certification pursuant to S.C. Code Ann. § 48-39-80 is not reviewable under the provisions of the Administrative Procedures Act (APA). Although neither of these two prior decisions was relied upon in the July 2001 Order, there is at least the potential that the overruling of these decisions may impact the rationale of the July 2001 Order.

At this time, all parties agree that it is not reasonable to litigate this matter before the Administrative Law Judge Division ("Division"). We are therefore left with either dismissing this case or continuing to hold the matter in abeyance through Petitioner's appeal of the Mining Council's decision. Because continuing to hold the matter in abeyance is not a satisfactory resolution, this matter is DISMISSED WITHOUT PREJUDICE. Petitioner may refile this appeal if the court system rules that the decision of the Mining Council to assert jurisdiction over the consistency determination was improper and that the Division is the proper forum to entertain such a challenge.

AND IT IS SO ORDERED.

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C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

March 28, 2002

Columbia, South Carolina

1. To date, the Mining Council has not yet issued a written order from which any party may appeal.

2. Brown v. South Carolina Dept. of Health and Environmental Control, 2002 WL 265989, S.C. (Feb. 25, 2002).

3. League of Women Voters of Georgetown County v. Litchfield-by-the-Sea, 305 S.C. 424, 409 S.E.2d 378 (1991) and Ogburn-Matthews v. Loblolly Partners (RicefieldsSubdivision), 332 S.C. 551, 505 S.E.2d 598 (Ct. App. 1998).