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Bay St. Louis Community Association v. Commission on Marine Resources, No. 97-CC-00101-SCT,1998 LEXIS 334 (Miss. 1998).

John A. Duff, J.D., LL.M., M.A.

In July, the Mississippi Supreme Court ruled that a Commission on Marine Resources (CMR) permit allowing for a casino site - but still subject to a reconsideration hearing - was not a final agency action. As a result, an appeal of the permit issuance decision was deemed to have been timely filed even after the expiration of thirty days from the date of issuance. Opponents of the permit had filed an appeal within thirty days of the decision of the reconsideration hearing and also claimed the CMR failed to provide adequate notice.

In 1996, Casino World and Hancock County Port and Harbor Commission applied to the Mississippi Commission on Marine Resources to issue a permit for a casino resort. On July 16, 1996, CMR indicated that it would issue the permit. The Bay St. Louis Community Association and other parties requested that CMR reconsider the issue and CMR agreed to review petitions for reconsideration at an August 20, 1996 meeting. In the meantime, the Department of Marine Resources issued the permit to Casino World on August 13, 1996, indicating that it was still subject to reconsideration. At the August 20, 1996 CMR meeting, the Commission voted against reconsideration. On September 18, 1996, the opponents of the permit appealed the Commission's decision. The Hancock County Chancery Court dismissed the appeal noting that appellants had failed to appeal within thirty days of the August 13 permit issuance. On appeal to the state supreme court, appellants argued that CMR had breached its duty to notify them of the permit issuance. They further argued that the thirty day appeals clock did not start running until a reconsideration decision was made by the Commission.

The Court ruled that appellants had not proven that they were of a class legally obligated to notice of the CMR permit issuance. The relevant statutes indicate that notice of permit issuance is due only to certain government officials and certain qualified adjacent landowner claimants. While the statute requires that notice be given to these two groups, failure to do so would not affect the validity of any permit granted thereafter. This determination prompts the question: Is the notification provision a mandate or does it fall into some category of discretionary activity? With no sanction or repercussions connected to a failure to notify, the statute may appear as little more than rhetoric.

However, the Court did rule in favor of appellants regarding the issue of a "final agency action" which would start the appeals clock. The Court characterized the Commission's permit issuance pending a reconsideration decision as "the heart of the error" in the dispute. Based on the fact that the permit had been issued pending a reconsideration decision, the Court deemed the action interlocutory rather than final. The Court concluded that the "final agency action" did not take place until August 20 when the Commission denied the reconsideration petition. As a result, appellants' September 18 appeal was timely filed.
 

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