Webb v. North Carolina Department of Environment, Health & Natural Resources

PHILLIPS, Judge.

In appealing from the Superior Court’s affirmance of the Commission’s decision, the appellant petitioner in effect makes three contentions. None has merit and we affirm the order of the Superior Court.

Petitioner’s first contention is that the Commission’s decision rejecting the Administrative Law Judge’s recommended decision is erroneous as a matter of law because the reasons stated for rejection are either not specific or manifestly inaccurate. In making this contention, and the next one as well, petitioner fails to take into account the conflicts in the evidence and the Commission’s prerogatives to determine the credibility of witnesses and the weight of evidence, and to find facts therefrom. State ex rel. Commissioner of Insurance v. North Carolina Rate Bureau, 300 N.C. 381, 269 S.E.2d 547, reh’g denied, 301 N.C. 107, 273 S.E.2d 300 (1980). When an agency does not adopt an Administrative Law Judge’s recommended decision, G.S. 150B-51(a) requires that the reviewing court determine whether the agency’s decision stated “specific reasons” why it did not and if the court determines the agency did not state specific reasons it shall reverse the decision or remand the case to the agency to enter the specific reasons. The Commission adopted as its rationale for declining to adopt the Administrative Law Judge’s recommended decision the reasons set forth in petitioner’s Exceptions to the Administrative Law Judge’s Proposed Decision dated 18 May 1989, which are not a part of the record before us, and two additional reasons of its own:

1. The greater weight of the evidence in the record as a whole does not support several of the Administrative Law Judge’s findings of fact. Some of the findings rely on evidence that was not properly weighted in view of the totality of the evidence; other findings contain selective statements of fact and fail to reflect the record as a whole. One of the key findings of fact — the finding that DCM staff relied on the surveyed mean high water line to establish the permitted bulkhead alignment — has no real basis in the record and directly contradicts the testimony of DCM staff as to the origin of the DCM alignment.

2. The basic premises of the Recommended Decision are flawed in that the Administrative Law Judge framed the issue as a conflict between the surveyed mean high water line and a mean high water line based on natural indicators. The uncon-troverted evidence is that CAMA Major Development/Dredge and Fill Permit 181-88 authorized bulkhead construction at an alignment staked by DCM staff based on observation of the high water level on the property and did not authorize construction at the surveyed MHW line; the permitted alignment was approximately one (1) foot landward of the surveyed MHW line and the bulkhead was constructed approximately one foot landward of the permitted alignment.

The court determined that: “In compliance with NCGS 150B-36, the agency’s final decision states the specific reasons why the agency did not adopt the Administrative Law Judge’s recommended decision.” Petitioner argues that the Commission’s generalized assertion that the evidence does not support “several” of the Administrative Law Judge’s findings of fact is insufficient to comply with the requirements of G.S. 150B-51(a), as the particular findings of fact are not identified and no explanation is given why they are not supported. But the statute does not require a point-by-point refutation of the Administrative Law Judge’s findings and conclusions and the reasons stated, the flawed premises of the recommended decision as to the mean high water line, are quite specific indeed and go to the heart of the case.

Petitioner’s next contention is that the Commission’s findings of fact, conclusions of law and final decision are not supported by substantial evidence in view of the entire record and that the order is arbitrary and capricious. The standard for judicial review is set forth in G.S. 150B-51(b), which states in pertinent part:

[T]he court reviewing a final decision may affirm ... or remand .... It may also reverse or modify the agency’s decision if the substantial rights of the petitioners may have been prejudiced because the agency’s findings, inferences, conclusions, or decisions are:

(5) Unsupported by substantial evidence ... in view of the entire record as submitted; or

(6) Arbitrary or capricious.

In reviewing the Commission’s decision for the errors cited, the court properly applied the “whole record” test. Brooks, Commissioner of Labor v. Rebarco, Inc., 91 N.C.App. 459, 372 S.E.2d 342 (1988). The “whole record” test takes into account the specialized expertise of the staff of the administrative agency, High Rock Lake Association, Inc. v. North Carolina Environmental Management Commission, 51 N.C.App. 275, 276 S.E.2d 472 (1981), does not allow the reviewing court to substitute its evaluation of the evidence for that of the agency, Clark Equipment Co. v. Johnson, 261 N.C. 269, 134 S.E.2d 327 (1964), and requires the court to look at the entire record and determine if substantial evidence exists to support the agency’s decision. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 95 L.Ed. 456 (1951). Petitioner’s argument that the Commission’s “key finding that the permitted bulkhead was aligned at mean high tide is unsupported by substantial evidence in view of the entire record as submitted” has no basis. Supporting the finding is the testimony of Assistant Director Preston Pate, field representative C. Robert Stroud, Jr., and Dr. Paul Hosier, Professor of Biological Sciences at UNC-Wilmington, as to the location of the bulkhead alignment. That this testimony was contradicted by that of Dr. Bruce Kenney, a research associate at Duke University Marine Lab, is immaterial in view of the Commission’s prerogatives as finder of the facts. Since the record supports the Commission’s finding that the bulkhead alignment approved by the Division approximates mean high water the conclusion that it is consistent with CAMA standards is also well based, and the further argument that the order is arbitrary and capricious fails.

Petitioner’s final contention is that the Division’s determination of approximate mean high water based on observation or high tide during a single inspection of the site was erroneous as a matter of law. CAMA regulations require only that a bulkhead alignment for the purpose o'f shoreline stabilization “must approximate mean high water or normal water level.” 15A N.C. Admin. Code 7H.0208(b)(7)(A). The term “mean high water” is not defined by the regulations, nor is its method of computation prescribed. In the context of property ownership, our Supreme Court defined the term as “a mean or average high-tide, and not as the extreme height of the water,” Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach, 277 N.C. 297, 303, 177 S.E.2d 513, 516 (1970), but did not indicate what method should be used to locate “mean high water.” Both Assistant Director Preston Pate and DCM field consultant Robert Stroud testified that DCM practice, in applying coastal management rules, is to determine the approximate location of MHW based on the presence of natural indicators of high water and observation of actual high tide rather than to rely on a survey of mean high water. In the present case, Mr. Stroud, who has assisted in the alignment of approximately 2000 bulkheads on North Carolina’s estuarine shoreline, staked the approved Turner bulkhead alignment based on his observation of conditions on the site and particularly the location of high water on the property at the time of the site visit. No particular method for locating “mean high water” having been established, we are of the opinion and so hold that this evidence supports the Commission’s finding that the bulkhead alignment in fact “approximates mean high water.”

Affirmed.

Judges EAGLES and WYNN concur.