Intersal, Inc. Office of Administrative Hearings 2013 complaint against the North Carolina Department of Cultural resources regarding the Queen Anne's Revenge..
Intersal, Inc. Office of Administrative Hearings 2013 complaint against the North Carolina Department of Cultural resources regarding the Queen Anne's Revenge..
Intersal, Inc. Office of Administrative Hearings 2013 complaint against the North Carolina Department of Cultural resources regarding the Queen Anne's Revenge..
This Petition For Contested Case Hearing is filed pursuant to the provisions of Article 3 of Chapter 150B of the North Carolina General Statutes (NCAPA). The NCAPA does not authorize Respondent, or their agents, to attempt to artificially narrow the scope of the Petitioners Contested Case Hearing rights as granted by the relevant provisions of these statutes. Any efforts by the Respondent to limit the scope of Petitioners contested case appeal rights are by very definition unlawful, contrary to the express provisions of the NCAPA statute, and are contrary to the express of the North Carolina Supreme Court affirming broad contested case appeal rights to all persons aggrieved.
Reasons that Petitioners Are Entitled to Relief
Petitioner is challenging the lawfulness and validity of Respondents actions in refusing to recognize renewal of the September 1, 1998 Queen Annes Revenge (QAR) Memorandum of Agreement (MOA) between Department of Cultural Resources (DCR) [Respondent], Intersal [Petitioner] and Maritime Research Institute (MRI). Petitioner incorporates by reference the QAR MOA, as well as Intersals letter of October 29, 2012 and MRIs letter of December 4, 2012, respectively, both previously submitted to Respondent, exercising option to renew the QAR MOA for ten (10) years, as contained in article 36 of the QAR MOA. Petitioner also references and incorporate by reference the May 30, 2013 letter from DCR Secretary Kluttz, informing Intersal and MRI she had concluded that it is not in the Departments best interest to renew the QAR MOA. Petitioner strongly disputes that conclusion, and strongly disputes Respondents assertion that they have the right to prevent or deny Petitioners exercise of option to renew QAR MOA, or to refuse to recognize renewal once that option has been exercised. Petitioner strongly contends that QAR MOA article 36 bestows option to renew upon Intersal and MRI, and that the QAR MOA has in fact been renewed for an additional ten (10) years, through September 1, 2023.
As set forth in more detail in the various documents incorporated by reference, Petitioner strongly contends that Respondent committed significant errors in: (a) Improperly denying renewal of the QAR MOA; (b) incorrectly bypassing established QAR MOA committee structure; (c) failing to properly inform QAR MOA and QAR Project partners of unilateral actions (d) engaging in QAR Project video activities beyond that necessary for strictly educational uses, thereby encroaching on Petitioners QAR Project narrative video rights as granted in the QAR MOA; (e) allowing DCR employees with QAR Project oversight responsibilities to serve on the board of a non-profit organization with direct financial ties to DCR and the QAR Project; (f) displaying a pattern of neglect and delay concerning permit renewal process for Petitioners BUI584 permit, which process is specifically referenced in and affected by provisions of the QAR MOA. Attached and incorporated into this Petition are examples of relevant communication with the Respondent and additional material, which supports the contentions listed above and documents the good faith efforts of the Petitioner to follow established procedure.
Without limitation, additional detail regarding Petitioners claims and concerns includes:
Failure to comply with terms of valid contract (QAR MOA). Respondents decision to reject its QAR Project partners exercise of their option to renew the QAR MOA is contrary to both the language and spirit of the contract. Intersal discovered QAR under DCR permit in 1996. The QAR MOA was signed September 1, 1998. Article 37 of the QAR MOA states: This Agreement shall be governed by the laws of North Carolina. Article 36 of the QAR MOA states in part that the QAR MOA: Shall be effective for a period of fifteen (15) years, and that Intersal and MRIs option to renew the QAR MOA for an additional ten (10) years: must be exercised in writing to the Department or its successors on or before the expiration of this Agreement. In 2012, Intersal and MRI notified Respondent in writing of their decision to exercise the QAR MOA renewal option, and Respondent acknowledged receipt of said notifications. Having exercised the option, it is Petitioners contention that the QAR MOA has been renewed for an additional ten (10) years, through September 1, 2023; and that there is no basis in law or rule, or in administrative procedure, for refusal of Respondent to recognize QAR MOA renewal, or to ignore the legitimacy of provisions contained in a valid and enforceable contract which they are a party to. Petitioner strongly contends that Respondents actions described above substantially prejudice Petitioners QAR Project narrative video rights (QAR MOA article 16) and QAR Project artifact replica rights, (QAR MOA article 18). Bypassing established committee structure. Article 12 of the QAR MOA established the QAR Advisory Committee on Archaeological Operations (QAR AAC), having planning and oversight responsibility for the shipwreck of the QAR and its artifacts. Article 12 of the QAR MOA also names Petitioner as members of the QAR AAC. Respondent has repeatedly bypassed the established committee structure. For example, Respondent entered into negotiations with and engaged commercial video production companies to film the QAR Project, without properly advising or consulting members of the QAR AAC, or of its Media Subcommittee. In addition, Respondent has engaged in QAR Project financial and operational planning activities with the non-profit group Friends of the QAR (of which group the Petitioner is not a member) without including or consulting with the QAR ACC. Petitioner contends these actions are contrary to the letter and spirit of the QAR MOA. Failure to properly inform Petitioner. Petitioner references and incorporates by reference the June 21, 2013 letter to the Respondent from Intersals QAR Project video designee Nautilus Productions. As documented therein, Respondent entered into negotiations with two independent video production companies before the January 2012 meeting of the QAR AAC Media Subcommittee. Respondent failed to properly inform committee members of the scope and progress of these negotiations, or of intended 2013 video plans, at the January 2013 Subcommittee meeting or in any following communication leading up to spring 2013 QAR dive operations, in contradiction of established QAR Project media policy. Nautilus Productions and Petitioner learned of Respondents intention to include independent video companies in spring 2013 QAR Project dive operations less than five weeks before beginning of those operations; and received incomplete information and cooperation from Respondent related to Petitioners stated concerns about the scope and technical details of Respondents intended video activities. Failure of Respondent to keep its QAR MOA and QAR Project partners properly informed in advance of their 2013 video activities denied the Petitioner the opportunity to work cooperatively with Respondent through established committee structure, in order to discuss concerns, define limits and identify parameters of educational filming by independent video companies engaged by Respondent, in protection of Intersals QAR Project narrative video rights as granted in QAR MOA article 16. Petitioner strongly contends that the results of Respondents failure to properly inform Petitioner as described, bypassing the QAR AAC Media subcommittees oversight of QAR Project video activities, constitutes infringement on Petitioners QAR Project narrative video rights as granted in QAR MOA article 16. Video activities beyond those needed for educational purposes. During spring 2013 QAR dive operations, the independent video companies engaged by Respondent conducted filming without pre-established parameters defining educational video verses QAR Project narrative video. This was a direct result of Respondents failure to engage Petitioner in dialogue through the established committee structure in advance of filming. Without established parameters for educational themed video, the independent video companies engaged by respondents who do not specialize in educational video production attempted to capture the entire spectrum of project activities. Petitioner strongly contends that this constitutes filming of the entire story or narrative of the QAR Project, and encroaches upon Petitioners QAR Project narrative video rights as granted in QAR MOA article 16. DCR employees serving on the Board of a non-profit with financial ties to the QAR Project. Petitioner references and incorporates by reference November 26, 2008 Friends of QAR Articles of Incorporation and February 21, 2013 Friends of QAR Internal Revenue Service 990 form, each listing Friends of QAR board members. Respondent has engaged in QAR Project financial and operational planning outside of the QAR AAC with Friends of the QAR, an ostensibly independent non-profit organization. The Friends of QAR founding and current board of directors contains active DCR employees holding oversight responsibility for the QAR Project; including Friends of QARs current Treasurer, who is also the current Director of the NC Underwater Archaeology Branch, the DCR agency with direct QAR Project oversight responsibilities. Petitioner has concerns that these practices may not be in the best interest of the QAR Project. Pattern of neglect and delay concerning Intersals BUI584 El Salvador Permit. Petitioner references and incorporates by reference Intersals letter and e-mail of May 13, 2013, and e-mail of June 30, 2013 to Respondent, regarding Intersals 2012 BUI584 yearly report and 2013 BUI584 permit renewal request. Intersal has submitted (both draft and final versions of) the 2012 BUI584 Yearly report and 2013 BUI584 permit renewal request as required; Respondent has yet to respond to either, or to Petitioners letter requesting that 2013 renewal of the BUI584 permit be granted. The same absence of communication has led to several delays in renewal of the BUI584 permit in recent years; including a substantial delay in last years 2012 permit renewal process, which negatively affected Petitioners ability to conduct operations in 2012. In QAR MOA article 33, Respondent recognized Intersals search for vessel El Salvador, via DCR permit BUI584, as of benefit to the historical heritage of the State; and, subject to the relevant provisions of the North Carolina General Statutes and Administrative Code, also recognized Intersals efforts and participation in the QAR Project as sufficient to satisfy any performance requirements associated with renewal of Intersals BUI584 El Salvador permit. Petitioner strongly contends that they have made good faith efforts to follow established permit renewal procedure, and have received no notice from Respondent of failure to follow established procedure. Petitioner also strongly contends that they have been (and continue to be) good and productive partners for the entire 15 years of the QAR project, which participation has been well documented in QAR Project e-mail, Intersals BUI584 Yearly reports to DCR, media reports, etc. In the absence of Respondent showing cause to deny renewal of BUI584, Petitioner should have been granted renewal of BUI584 in June 2013. Petitioner strongly contends that Respondents repeated failure to follow established permit renewal procedures, or act in a timely fashion connected to BUI584 permit renewal, constitutes a pattern of neglect and delay in Respondents discharge of its oversight responsibilities. Petitioner strongly contends that renewal of the BUI584 permit for 2013 should be granted without delay.
Respondents stated intention to exclude Petitioner from partnership in the remainder of the QAR Project disregards not only the language of the QAR MOA contract, but also the realities of the QAR Project. By Respondents own estimation, no more than two-thirds of the QAR has been recovered to date. Steve Weeks of MRI, who in 1988 negotiated QAR MOA language with then Assistant Attorney General Charlie Murray, reports that the renewal option was specifically included in the QAR MOA to allow for the possibility that the original fifteen (15) year period would be insufficient to complete the excavation and conservation of QAR. This possibility has come to pass. Petitioner discovered QAR at its own expense under state permit, have been good-faith partners in the QAR Project, and have followed permit renewal procedure. Without showing cause, Respondents actions are unlawful and display a pattern of arbitrary and capricious agency action directed towards Petitioner, in contradiction of QAR MOA language recognizing the benefits of Petitioners activities to the People and State of North Carolina.
Respondents actions in refusing to recognize QAR MOA renewal, and additional actions described above, directly and negatively affects Petitioner. For all of the reasons set forth in the attached documents, Respondents actions: (a) constituted unlawful agency action; (b) Were based on erroneous factual findings (c) infringed on Petitioners QAR Project narrative video rights (d) violated critically important procedures designed to assure cooperation between QAR MOA signatories and QAR Project partners; (e) constituted arbitrary and capricious agency action; (f) substantially prejudiced Petitioners rights, as well as the rights of MRI and Nautilus Productions; and (g) raise questions regarding potential conflict of interest issues. For all these reasons, Petitioner respectfully contends that Respondents actions in refusing to recognize renewal of the QAR MOA should be overturned, and the QAR MOA declared renewed for an additional ten (10) years, through September 1, 2023.
Petitioner reserves the right to amend and supplement the contents of this Petition based on the results of discovery and further investigation.
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