Water Works Bd. of Birmingham v. Ala. Surface Mining Comm'n (In re Water Works Bd. of Birmingham), 1131094.

177 So.3d 1167

Ex parte WATER WORKS BOARD OF THE CITY OF BIRMINGHAM

(In re Water Works Board of the City of Birmingham

v.Alabama Surface Mining Commission and Shepherd Bend, LLC).

1131094.

Supreme Court of Alabama.

Dec. 19, 2014.

Rehearing Denied Feb. 20, 2015.

K. Mark Parnell and Mary H. Thompson of Waldrep, Stewart & Kendrick, LLC, Birmingham, for petitioner.

Grady Milton McCarthy, Jr., deputy atty. gen., Alabama Surface Mining Commission, Jasper, for respondents Judge Tom King, Jr., and Alabama Surface Mining Commission.

W. Anthony Davis III, Richard E. Davis, and Amber M. Whillock of Starnes Davis Florie LLP, Birmingham, for respondent Shepherd Bend, LLC.

PARKER, Justice.

The Water Works Board of the City of Birmingham ("the Board") petitions this Court for a writ of mandamus directing the Jefferson Circuit Court ("the circuit court") to vacate its order granting the motion filed by the Alabama Surface Mining Commission ("ASMC") seeking to transfer the underlying action to Walker County; Shepherd Bend, LLC, joined ASMC's transfer motion. We grant the petition and issue the writ.

Facts and Procedural History

The facts are undisputed. ASMC is a State agency responsible for administering and enforcing the Alabama Surface Mining Control and Reclamation Act of 1981, § 9–16–70 et seq., Ala.Code 1975 ("the ASMCRA"). ASMC maintains its principal office in Walker County as required by § 9–16–73(h), Ala.Code 1975. On October 19, 2010, ASMC issued to Shepherd Bend, an Alabama limited-liability company with its principal office in Walker County, a surface-coal-mining permit ("the permit"). The permit allowed Shepherd Bend to perform surface coal mining in Walker County on approximately 286 acres; any discharge of effluent from this mine would discharge into the Mulberry Fork of the Black Warrior River or a tributary thereof.

The Board, an Alabama public corporation with its principal office in Jefferson County, operates a raw-water-intake facility within Walker County; this raw-water-intake facility is approximately 4,200 feet downstream from the nearest sediment-basin-discharge point as established by the permit. Water withdrawn by the Board from the raw-water-intake facility is filtered, screened, and eventually pumped to the Board's Western Filter Plant in Jefferson County for distribution to the Board's customers.

On November 17, 2010, the Board filed an administrative appeal challenging the issuance of the permit and requested a hearing with a hearing officer of ASMC's Division of Hearings and Appeals. The hearing was held, and, on March 5, 2013, the hearing officer affirmed the issuance of the permit. Pursuant to § 9–16–79(1) d., Ala.Code 1975, the Board then filed a petition with ASMC for administrative review of the hearing officer's decision. ASMC took no action and, pursuant to § 9–16–79(3) a., Ala.Code 1975, the Board's petition for administrative review was deemed denied by operation of law 30 days after the petition was filed.

On May 24, 2013, after it had exhausted its administrative remedies, the Board appealed ASMC's decision to the circuit court. In response, ASMC filed a "motion to dismiss and alternative motion to transfer," which Shepherd Bend joined. In its motion, ASMC argued that venue in Jefferson County was not proper and, in the alternative, that, even if venue was proper in Jefferson County, a transfer to Walker County was nevertheless compelled by reason of the convenience of the parties and witnesses and in the interest of justice under § 6–3–21.1, Ala.Code 1975, the forum non conveniens statute. On August 19, 2013, the Board filed a response to ASMC's motion, arguing that venue in JeffersonCounty was appropriate by virtue of § 6–3–7, Ala.Code 1975, and § 41–22–20(b), Ala.Code 1975.

On September 26, 2013, the circuit court entered an order transferring the Board's action to Walker County. The circuit court's order stated, in pertinent part:

"Plaintiff asserts Walker County is an improper venue as to ASMC under Alabama Code [1975,] § 41–22–20(b) [,] and as to Shepherd Bend under Alabama Code [1975,] § 6–3–7.

"A. Transfer of ASMC claims under ... § 41–22–20(b).

"Plaintiff claims transfer is improper as to ASMC pursuant to ... § 41–22–20(b). Section 41–22–20(b) reads as follows:

" ‘(b) All proceedings for review may be instituted by filing of notice of appeal or review and a cost bond with the agency to cover the reasonable costs of preparing the transcript of the proceeding under review, unless waived by the agency or the court on a showing of substantial hardship. A petition shall be filed either in the Circuit Court of Montgomery County or in the circuit court of the county in which the agency maintains its headquarters, or unless otherwise specifically provided by statute, in the circuit court of the county where a party other than an intervenor, resides or if a party, other than an intervenor, is a corporation, domestic or foreign, having a registered office or business office in this state, then in the county of the registered office or principal place of business within this state.’

"....

"An agency of the state may only be sued in the county of the official residence of such agency in the absence of specific statutory authority to the contrary. Ex parte Neely, 653 So.2d 945, 947 (Ala.1995) ; Alabama Youth Services Board v. Ellis, 350 So.2d 405, 407 (Ala.1977). ASMC maintains its principal office in Walker County as required by Alabama Code [1975,] § 9–16–73(h).

"Appeal of Administrative decisions of ASMC are governed by Alabama Code [1975,] § 9–16–79, which states, ‘Procedures for hearings and appeals under this article shall be made as herein provided and in accordance with such general rules and regulations as the regulatory authority (ASMC) may prescribe. These procedures shall take precedence over the Alabama Administrative Procedure Act. ’ ( [E]mphasis added.) After then describing in considerable detail what that procedure is to be, the statute adds: ‘The procedure provided in this article for hearings and appeals shall be exclusive except as otherwise specified.’ § 9–16–79(10) (emphasis added).

"Section 41–22–25(a)[, Ala.Code 1975,] of the AAPA [the Alabama Administrative Procedure Act] expresses the intent of the legislature as to how the AAPA is to be construed and applied. This section reads as follows:

" ‘(a) This chapter shall be construed broadly to effectuate its purposes. Except as expressly provided otherwise by this chapter or by another statute referring to this chapter by name, the rights created and the requirements imposed by this chapter shall be in addition to those created or imposed by every other statute in existence on the date of the passage of this chapter or thereafter enacted. If any other statute in existence on the date of the passage of this chapter or thereafter enacted diminishes any right conferred upon a person by this chapter or diminishes any requirements imposed upon an agency by this chapter, this chapter shall take precedence unless the other statute expressly provides that it shall take precedence over all or some specified portion of this named chapter. ’

" Ala.Code § 41–22–25(a) (emphasis added).

"The legislature expressed its unequivocal intent that the rights created and requirements imposed by the Alabama Administrative Procedure Act shall be applicable only if another statute does not expressly provide otherwise.

"The hearings and appeals procedure of ASMCRA § 9–16–79 refers to the AAPA by name and specifically provides that the procedure embodied in ASMCRA takes precedence over the AAPA. A clearer expression of legislative intent is not possible. Thus the venue provisions of the AAPA have no application to the present appeal arising under the provisions of ASMCRA.

" Section 9–16–79 makes no specification of the venue for securing judicial review of an administrative order. Judicial review is invoked by filing a notice of appeal ‘in circuit court,’ § 9–16–79(4) b. However, the absence of a specific venue does not mean the case can be unequivocally brought in any venue. In enacting statutes, the legislature is presumed to know the state of the existing law. See Wright v. Childree, 972 So.2d 771, 778 (Ala.2006). Therefore, the Court is constrained to find the omission of a specific venue provision within this section of ASMCRA was intentional and that the legislature was content to leave matters of venue of actions brought pursuant to § 9–16–79 to the rules of venue applicable to state agencies in the absence of a specific venue statute. Ala.Code § 41–22–20 does not expressly provide statutory authority for the filing of this appeal in Jefferson County. To the contrary, ASMCRA controls proper venue. There being no express statutory authority to the contrary, an appeal of an administrative determination of ASMC pursuant to § 9–16–79 may only be brought in the county of the official residence of ASMC, which by statute is Walker County. Ala.Code § 9–16–73(h)."

The circuit court also determined that venue was not proper in Jefferson County under § 6–3–7. However, for reasons explained below, we need not consider that portion of the circuit court's order.

On November 7, 2013, the Board filed a petition for a writ of mandamus with this Court requesting that we vacate the circuit court's order transferring the case to Walker County. On May 22, 2014, this Court determined that the Court of Civil Appeals had jurisdiction over the Board's petition and transferred the matter to that Court. On June 20, 2014, the Court of Civil Appeals issued an opinion denying the Board's petition. See Ex parte Water Works Bd. of Birmingham, 156 So.3d 412 (Ala.Civ.App.2014). Pursuant to Rule 21(e), Ala. R.App. P., the Board then filed a petition for a writ of mandamus with this Court.

Standard of Review

"A petition for a writ of mandamus is the proper means for challenging an order transferring an action to another county. Ex parte Wilson, 854 So.2d 1106, 1109 (Ala.2002). ‘ "[A] writ of

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