                      IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2002-CT-01404-SCT

MISSISSIPPI DEPARTMENT OF MARINE
RESOURCES

v.

SYDNEY BROWN AND STEPHANNA BROWN

                               ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         06/11/2002
TRIAL JUDGE:                              HON. GLENN BARLOW
COURT FROM WHICH APPEALED:                JACKSON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                  SHARON H. HODGE
                                          JOSEPH A. RUNNELS, JR.
ATTORNEY FOR APPELLEE:                    NATHAN D. CLARK
NATURE OF THE CASE:                       CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                              REVERSED AND RENDERED - 02/24/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    Landowners Sydney and Stephanna Brown appealed from the        Commission on Marine

Resources decision denying their application to fill approximately 1.64 acres of tidal marsh

and to add 200 feet to an existing pier. The Jackson County Chancery Court reversed and

rendered the decision, and the Department of Marine Resources appealed.       The Court of

Appeals held that once the chancellor determined that the record was “devoid of any findings

of fact” to support the Commission’s decision, the sole remedy was to remand the case back

to the Commission to enter an order with proper findings of fact and conclusions of law. The
Court of Appeals reversed and remanded. Miss. Dep’t. of Marine Resources v. Brown, 2004

WL 1157559 (Miss. Ct. App. 2004).

¶2.     This Court finds that the Court of Appeals’ majority erred in reversing and remanding

the case. This Court finds that the Court of Appeals did not use the correct standard of review

when dealing with administrative agencies. Accordingly, we reverse and render.

                            FACTS AND PROCEDURAL HISTORY

¶3.     This case arises from the Browns’ request for a wetlands permit.         The Browns own a

parcel of property in Jackson County located on Bayou Heron Road.            In October 1999, the

Browns applied to the Department for permission to fill approximately 1.64 acres of tidal

marsh consisting primarily of Juncus grass.        Approximately 7,937 cubic yards of fill was

necessary to alleviate erosion, to accommodate public parking for fishermen, and to develop

an on-site bait camp.     In addition, the Browns requested permission to add 200 feet to an

existing pier.

¶4.     The Department requested additional information.       Pursuant to this request, the Browns

hired a consultant to conduct an environmental assessment.         The Browns also were required

to submit a mitigation proposal, cross-sectional drawings of the area to be permitted, and

additional permit fees of $450 for processing a commercial application.

¶5.     The Department reviewed the Browns’ completed application along with comments

from members of the public and other interested governmental and non-governmental entities.

Department scientists and staff members also conducted a site visit to inspect the property.

After reviewing all of the information, the Department prepared a report recommending the

denial of the Browns’ application.      The Commission, which is the reviewing body designated


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to decide whether to grant or deny permit applications, conducted a coastal ecology meeting

where the Browns’ proposal was discussed.               John Cirino, the Browns’ environmental

consultant, argued on their behalf.     Becky Gillette argued in opposition of the proposed project

on behalf of the Sierra Club.

¶6.     The Commission stated that it had never allowed the direct filling of Juncus grass in the

past and found the public’s interest in additional public boat launch facilities was unjustified

since there were already two existing boat launches in the immediate area.             Finally, the

Commission considered the Browns’ proposal as a commercial activity that would jeopardize

the preservation of the adjoining wildlife reserves.    As a result, the Commission unanimously

voted to deny the Browns’ application. Three days later, a letter was mailed to the Browns

notifying them as to the Commission’s decision.         The letter stated that “[b]ased upon the

findings, the DMR found that this project would severely impact coastal resources and

alteration of coastal wetlands at this site would be permanent and would not serve a higher

public interest as required by Mississippi Code § 49-27-3.” The Browns filed a petition for

reconsideration which was denied at the Commission’s next meeting.

¶7.     Aggrieved, the Browns brought suit in the Chancery Court of Jackson County which

acted in an appellate capacity in reviewing the Commission’s decision.       After reviewing briefs

and hearing oral arguments from both sides, the chancery court reversed and rendered the

Commission’s decision.          The chancellor found that the Commission had failed to provide

feasibility studies or inspection reports from the premises as required by applicable law and

failed to provide any findings of fact or conclusions of law regarding adverse impacts on the

property.   In addition, the chancellor found that the Commission failed to consider the 416


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signatures and 51 letters from the general public which illustrated the need and desire to have

the type of public use for this area which would result from the Browns’ project.             The

chancellor found that the Browns’ due process rights were violated because the Department

failed to timely inform them that their application was denied.      Finally, the chancellor found

that only one-third of an acre of the Browns’ property was within the wetlands and subject to

the Department’s jurisdiction; thus, the Commission confiscated and deprived the Browns of

the legal use of their land.     The Commission’s motion for reconsideration disputing those

findings was denied.

¶8.    On appeal the Department claimed that the chancellor did not adhere to his standard of

review in reversing and rendering the decision of the Commission.          The Court of Appeals

reversed and remanded. Id. The Court of Appeals found that the proper disposition would have

been to remand the case to the Commission to enter an order with proper findings of fact and

conclusions of law. Id.

                                         DISCUSSION

¶9.    Courts acting in an appellate capacity are bound “ to give due deference to the factual

findings of the administrative agency and to the chancellor who adopted the same findings.”

Miss. State Bd. of Nursing v. Wilson, 624 So. 2d 485, 489 (Miss. 1993) (quoting State Farm

Ins. Co. v. Gay, 526 So. 2d 534, 535 (Miss. 1988)). This Court has held:

       Our Constitution does not permit the judiciary of this state to retry de novo
       matters on appeal from administrative agencies. Our courts are not permitted
       to make administrative decisions and perform the functions of an administrative
       agency. Administrative agencies must perform the functions required of them
       by law. When an administrative agency has performed its function, and has made
       the determination and entered the order required of it, the parties may then
       appeal to the judicial tribunal designated to hear the appeal. The appeal is a

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         limited one, however, since the courts cannot enter the field of the
         administrative agency. The court will entertain the appeal to determine whether
         or not the order of the administrative agency (1) was supported by substantial
         evidence, (2) was arbitrary or capricious, (3) was beyond the power of the
         administrative agency to make, or (4) violated some statutory or constitutional
         right of the complaining party. This rule has been thoroughly settled in this
         State.

Wilson, 624 So. 2d at 489.

¶10.     Here, the chancery court reweighed the evidence in the case sub judice.           The

chancellor’s order only discusses the evidence in favor of the Browns and disregards the

evidence against them.    Although there is evidence to support the Browns’ request for the

permit, there is also evidence to support the Commission’s decision to deny the Browns’

request for the permit.    The Commission’s decision on this petition could have gone either

way.     Since the agency’s denial of the petition is supported by substantial evidence, the

appellate courts must give deference to that decision.   This Court has held that the appellate

court may not reweigh the facts, nor may it substitute its judgment for that of the agency.

Miss. Comm'n on Envtl. Quality v. Chickasaw County Bd. of Sup'rs, 621 So. 2d 1211, 1216

(Miss. 1993).     Since the chancery court acts in an appellate capacity in reviewing the

Commission’s decision, it may not reweigh the facts.       Where a circuit or chancery court

exceeds its authority and overturns an agency action, this Court will reverse and reinstate the

agency’s order. Id. at 1215. The Court of Appeals erred in failing to correct the chancellor’s

error.

                                        CONCLUSION




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¶11.   For these reasons, we reverse the judgments of both the Court of Appeals and the

Jackson County Chancery Court, and we render judgment here reinstating and affirming the

order of the Mississippi Commission on Marine Resources.

¶12.   REVERSED AND RENDERED.

    WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND RANDOLPH, JJ.,
CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.




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