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Ex parte Water Works Board of City of Birmingham

Supreme Court of Alabama

December 19, 2014

Ex parte Water Works Board of the City of Birmingham
v.
Alabama Surface Mining Commission and Shepherd Bend, LLC In re: Water Works Board of the City of Birmingham

PETITION FOR WRIT OF MANDAMUS (Jefferson Circuit Court, CV-13-902078)

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 Water withdrawn by the Board from the raw-water-intake facility is filtered, screened, and eventually pumped to the Board's Western Filter Plant in Jefferson County for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 Jefferson County 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. 1988). ASMC maintains its principal ...

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