author: THOMPSON, Presiding Judge.

text:
    William M. KEY and Brandy D. Key v. Donald E. ELLIS et al.
    2051020.
    Court of Civil Appeals of Alabama.
    May 11, 2007.

      Jeffrey W. Brumlow and Shay N. Click of Massey, Stotser & Nichols, P.C., Birmingham, for appellants.

      Alexander M. Smith of Smith & NeS-mith, P.C., Oneonta, for appellees.
   THOMPSON, Presiding Judge.

William M. Key and Brandy D. Key (“the Keys”) appeal from a judgment declaring a right-of-way across their land in favor of Donald E. Ellis, Gary Ellis, John Ellis, Glenn Ellis, and Sharon Ellis Laird (“the Ellises”), the owners of an adjoining tract of land. Because the circuit court did not err to reversal in declaring the right-of-way or in admitting certain testimony regarding the value of the taking, we affirm.

Sections 18-3-1 to 18-3-3, Ala. Code 1975, authorize the owner of a landlocked property to maintain a private condemnation action in order to obtain a right-of-way from the property to a nearby public road. Section 18-3-1 states:

“The owner of any tract or body of land, no part of which tract or body of land is adjacent or contiguous to any public road or highway, shall have and may acquire a convenient right-of-way, not exceeding in width 30 feet, over the lands intervening and lying between such tract or body of land and the public road nearest or most convenient thereto provided written approval is obtained from the municipal government and the planning board of such municipality.”

Section 18-3-2 establishes limits on private condemnation actions under § 18-3-1:

“In the establishment and condemnation of such right-of-way, no road or right-of-way shall be established through any person’s yard, garden, orchard, stable lot, stable, gin house or curtilage without the consent of the owner; and the applicant must pay the owner for the value of the land taken and compensation for damage to the land, through which said right-of-way is established, resulting from the establishment of such road or right-of-way.”

Section 18-3-3 provides that private condemnation actions under § 18-3-1 “shall be exercised by application to the probate court of the county in which the lands over which such right-of-way is desired, ... and the same proceedings shall be had as in cases of condemnation of lands for public uses as provided by Chapter 1 [replaced by Chapter 1A] of this title.”

The Ellises are the children of William and Mary Ellis. They inherited from their parents a 20-acre tract of land that the parties refer to as “Tract 14.” In September 2003, the Ellises petitioned the probate court of Blount County for a right-of-way under § 18-3-1, alleging that Tract 14 was landlocked. They requested that the probate court grant a right-of-way across land owned by the Keys, which the parties refer to as “Tract 5,” to the nearest public road.

The probate court took ore tenus testimony and viewed the land. In August 2004, it granted the right-of-way and appointed commissioners who subsequently assessed $4,250 in damages for the taking. In September 2004, the probate court confirmed the assessment and ordered the right-of-way condemned upon the Ellises’ payment of damages. The Keys appealed to the circuit court.

The circuit court reviewed the case de novo and held a bench trial at which it took ore tenus testimony. In the presence of the parties’ counsel, the court viewed the proposed right-of-way across Tract 5 and the alternative rights-of-way suggested by the Keys. On June 23, 2006, the court entered a detailed order. The order described the testimony and the history of the lands in detail. After discussing the Keys’ arguments, the court found that Tract 14 was landlocked and that the Ellis-es “presently have no unobstructed and unquestioned right of way to a public road.” The court then declared a right-of-way across Tract 5 and ordered a jury trial as to the value of the taking. A jury assessed the value of the taking at $4,000, and on July 27, 2006, the circuit court entered a final judgment on the verdict. The Keys filed a notice of appeal to this court on September 5, 2006. The case was transferred to the supreme court; it was subsequently transferred back to this court by the supreme court pursuant to § 12-2-7(6), Ala.Code 1975.

The record reveals the following relevant facts. In the late 1930s, Alvin and Bonnie Ellis acquired approximately 80 acres of land in Blount County. The boundary of the 80 acres is nearly rectangular in shape and is adjacent to Berry Mountain Loop Road on the southern and southeastern sides. The land is now divided into four rectangular tracts of approximately equal size. The county-tax-assessment map identifies the northwest tract as Tract 14, the northeast tract as Tract 13, the southwest tract as Tract 4, and the southeast tract as Tract 3. Only Tracts 4, 3, and the southeastern corner of Tract 13 are adjacent to Berry Mountain Loop Road. No part of Tract 14 is adjacent or contiguous to any public road or highway.

In 1951, Alvin and Bonnie Ellis conveyed Tract 13 to their son, Herman Ellis. In 1962, they conveyed Tract 3 to Herman and Tract 14 to their son and daughter-in-law, the plaintiffs’ parents, William and Mary Ellis. Alvin and Bonnie retained ownership of Tract 4 until 1969, when, after Alvin’s death, Bonnie conveyed it to another son, Easley Ellis. Tract 4 is now owned by Easley’s widow, the plaintiffs’ aunt, Earline Ellis.

There are no structures on Tract 14. John Ellis, one of the plaintiffs, testified that the Ellises use Tract 14 primarily as a hay field and, on occasion, to pasture cattle. The Ellises bale hay on Tract 14 approximately three to four times each year. They leave the hay on the field and retrieve the bales periodically throughout the winter months.

The Keys’ land, Tract 5, is adjacent to the northern borders of Tracts 13 and 14. From 1937 until 2000, Tract 5 was owned by Coy Jones. In 1966, County Road 57 (“CR-57”), also known as Hendrix Road, was built along the northern border of Tract 5. Tract 5 lies between Tract 14 and CR-57. In 2000, after Jones had died, the Keys purchased Tract 5 from Jones’s testamentary trust.

John Ellis testified that from 1962, when Alvin and Bonnie Ellis conveyed Tract 14 to William and Mary Ellis, until Alvin’s death in 1969, he accessed Tract 14 from the south across the western edge of Tract 4 with Alvin’s permission. The circuit court made the following finding of fact regarding this route:

“From viewing the premises, this route would intersect Berry Mountain Loop Road by way of the driveway of the owner of Tract 4, then staying to the left along the western boundary line of Tract 4 (as the driveway bears to the right) for a short distance along a utility access right of way ..., then continuing straight north through the pasture along the west boundary line ... to a gate that is located near the southwest corner of [Tract 14]. Although this route is certainly more level than the route proposed by the [Ellises], it is more than 1,300 feet in length.”

The Ellises do not have any express easement or right-of-way across Tract 4. John Ellis testified that the current owner of Tract 4, his aunt Earline Ellis, has never given the Ellises permission to cross Tract 4 and has objected to their doing so. The testimony showed that a “no trespassing” sign has been placed at the entrance to Tract 4; however, the testimony conflicts regarding whether it was placed there by Earline or by the local utility board.

John Ellis testified that when CR-57 was built in 1966, Jones agreed to allow the Ellises access to Tract 14 from CR-57 across the western edge of Tract 5. The circuit court made the following findings regarding this route:

“Although he has accessed Tract 14 through several different permissive routes, John Calvin Ellis testified that during Coy Jones’s life his primary access to Tract 14 was from Highway 57 by going over Mr. Jones’s property. [John] Ellis even sought to improve the convenience of this access by installing access gates at his own expense. [John] Ellis testified that he made an agreement with Coy Jones that he would buy and erect gates on Jones’s property (one on Highway 57 and one on the fence line between Tract 14 and Tract 5) so that he could pass through the property to gain access to [Tract 14] but still maintain the integrity of Jones’s pasture. The gates purchased and erected by Ellis are still in place.... ”

In 2000 or 2001, after the Keys had purchased Tract 5, they locked the gates and would not allow the Ellises to cross Tract 5 in order to access Tract 14. John Ellis testified that he had been on Tract 14 only once during the years since the Keys had blocked the route over Tract 5. The Ellises subsequently filed their petition with the probate court asking it to declare a right-of-way to CR-57 across Tract 5. The circuit court made the following findings regarding the proposed right-of-way:

“Highway 57 is the closest public road to [Tract 14], The distance from the [northwest] corner of [Tract 14], across the Keys’ property to Highway 57 is 385.55 feet. The [Ellises] seek a right of way 30 feet wide running north from [Tract 14’s] northwest corner, across the Key property, running parallel to the west boundary line fence dividing the Keys’ property from their neighbor to the west.... However, because the area along the west fence line of the Keys’ property becomes low, wet and marshy as it nears Highway 57, the [Ellises], according to the testimony, want the western edge of the right of way to be located 30 feet east of the Keys’ west fence line and to extend 30 feet wide from that point. In essence, this would mean that the Keys would give up not only the 30 feet for the right of way but they would have an additional 30 feet west of the right of way that would be practically unsuitable for most uses.”

The proposed right-of-way across Tract 5 and the 30-foot area rendered unusable by it are together less than one-quarter of an acre in total size. The proposed right-of-way does not cross any “yard, garden, orchard, stable lot, stable, gin house or curtilage.” See § 18-3-2, Ala.Code 1975. The testimony showed that the western part of Tract 5 over which the right-of-way lies is “raw farmland” and has been used to pasture cattle or keep hogs. The circuit court found that “[fjrom the court’s observation of the land, the way the pasture of the Keys rolls downhill to the low area along their west fence line, it would be difficult for the Keys to even observe such a right of way from their house which is located ... about 275 yards away.”

Regarding the value of the taking, the jury heard testimony from John Ellis and Brandy Key, who testified as to the current and contemplated uses of Tract 5 and Tract 14. Brandy Key testified that she and her husband purchased Tract 5 for $89,900, approximately $4,000 per acre. She testified that had the right-of-way been in place at the time she purchased the property, she would have paid $75,000 for the land, a difference of $14,900. The Ellises attempted to submit testimony from John Ellis regarding the value of land he owned that was located across CR-57 from Tract 5. The circuit court sustained the Keys’ objection to that testimony, but it later withdrew that ruling and allowed the testimony over the Keys’ objection. John Ellis testified that he owned land across CR-57 from Tract 5 that was subservient to two easements. He stated that he believed this land was worth $4,000 per acre.

The Keys raise two issues on appeal. First, they argue that the circuit court erred in declaring the right-of-way. Under precedent from this court and our supreme court, the ore tenus rule applies to our review of judgments in private condemnation actions under § 18-3-1, Ala. Code 1975.

“Under the ore tenus rule, a trial court’s findings of fact are presumed correct and its judgment will be reversed only if plainly or palpably wrong or against the preponderance of the evidence.... The ore tenus rule is especially applicable in private condemnation cases under § 18-3-1. See Tate [v. Loper], 459 So.2d [892, 894 (Ala.Civ.App.1984)]; see also Brothers [v. Holloway], 692 So.2d [845, 847-48 (Ala.Civ.App.1997)] (‘We note that our standard of review in condemnation cases is highly deferential.’).”

Ex parte Cater, 772 So.2d 1117, 1119 (Ala. 2000). “Particularly in this case, where [the judge] had the advantage of viewing the premises and knowing the locale, the rule should be emphasized and we would be most reluctant to disturb his findings.” Tenison v. Forehand, 281 Ala. 379, 381, 202 So.2d 740, 742 (1967).

“However, § 18-3-1 ‘ “is not a favored statute,” ’ Southern Ry. v. Hall, 267 Ala. 143, 147, 100 So.2d 722, 725 (1957) (quoting State ex rel. Carlson v. Superi- or Court, 107 Wash. 228, 232,181 P. 689, 691 [ (1919) ]), and the ore tenus presumption of correctness ‘does not apply where the trial court has incorrectly applied the law to [the] facts,’ DeWitt [v. Stevens], 598 So.2d [849, 850 (Ala. 1992) ].”

Ex parte Cater, 772 So.2d at 1119.

Section 18-3-1 gives owners of land that is not adjacent or contiguous to any public road or highway the right to obtain a right-of-way to the nearest or most convenient public road. Our supreme court has held that “under § 18-3-1, a landowner is not entitled to condemn a right-of-way across a neighbor’s intervening land if the landowner has an existing, reasonably adequate means of access to his property, or if he could construct such access without prohibitive expense.” Ex parte Cater, 772 So.2d at 1121 (emphasis supplied); see also Southern Ry. Co. v. Hall, 267 Ala. 143, 100 So.2d 722 (1957). To determine whether a landowner has a reasonably adequate means of access, this court considers whether the access is unobstructed and unquestioned. Section 18-3-1 does not authorize “the taking of lands of another as a mere matter of convenience,” and “the burden is on the petitioner for a right of way to show that he has no reasonably adequate outlet.” Southern Ry. Co., 267 Ala. at 147, 146, 100 So.2d at 725. Under § 18-3-1 as applied by this court and our supreme court, therefore, we must determine whether the evidence demonstrated that the Ellises had an existing means of access to Tract 14 and whether that access was reasonably adequate.

The Keys argue that a reasonably adequate means of access to Tract 14 existed in the form of an easement by necessity across Tract 4. The rules governing the creation of an easement by necessity are distinct from those governing the private condemnation of a right-of-way under § 18-3-1. See, e.g., Kelly v. Panther Creek Plantation, 934 So.2d 1049, 1054 (Ala.2006). Easements by necessity are a form of implied easement. See Kelly, 934 So.2d at 1053-54; Burrow v. Miller, 340 So.2d 779, 780 (Ala.1976); and Hamby v. Stepleton, 221 Ala. 536, 130 So. 76 (1930).

“[T]wo elements are necessary for the finding of an easement of necessity. First, the properties in controversy must come from a common source.... Secondly, there must be a reasonable necessity for the creation of this easement; that is, it must be the only practical avenue of ingress and egress.”

Burrow, 340 So.2d at 780 (citing Hamby, supra). Our supreme court examined the law related to easements by necessity in Hamby v. Stepleton, supra, stating:

“ ‘It is a universally established rule that where a tract of land is conveyed which is separated from the highway by other lands of the grantor, or which is surrounded by his lands or by his and those of third persons, there arises by implication in favor of a grantee a way of necessity across the premises of the grantor to the highway. The basis of this right is the presumption of a grant arising from the circumstances of the case. Necessity does not of itself create a right of way, but it is evidence of the grantor’s intention to convey one, and raises an implication of a grant. The presumption, however, is one of fact, and whether or not the grant is to be implied in a given case depends upon the following terms of the deed and the facts in that case. ... Since the [easement by necessity] is founded on a grant, it can arise only between grantor and grantee. No way of necessity can be presumed or acquired over the land of a stranger.... ’ 9 R.C.L. § 31, Page 768; Walker v. Clifford, 128 Ala. 67, 29 So. 588, 86 Am. St. Rep. 74 [(1901)]; Greenwood v. West, 171 Ala. 463, 54 So. 694 [ (1911) ]; Trump v. McDonnell, 120 Ala. 200, 24 So. 353 [ (1898) ].”

Hamby, 221 Ala. at 537-38, 130 So. at 77 (emphasis supplied).

The Keys argue that the grant of Tract 14 from Alvin and Bonnie Ellis to William and Mary Ellis created a presumption of an easement by necessity over Tract 4 that the Ellises have not overcome. The Keys base their argument on the fact that both Tract 14 and Tract 4 were owned by Alvin and Bonnie Ellis; that Alvin and Bonnie retained Tract 4 when they conveyed Tract 14; that the conveyance landlocked Tract 14; and that Alvin allowed William and Mary and the Ellises to access Tract 14 across Tract 4 from 1962 until 1969.

Most cases involving easements by necessity arise when a landlocked grantee seeks a judicial grant or declaration of such an easement over the lands of the grantor who conveyed landlocked property. We have found only two cases in which defendants who were not the grantors of landlocked property attempted to use the law regarding easements by necessity defensively as the Keys do here.

In McGowin Investment Co. v. John-stone, 54 Ala.App. 194, 306 So.2d 286 (Civ. 1974), this court affirmed the trial court’s judgment condemning a right-of-way in favor of the Johnstones across McGowin Investment Company’s land under the then-existing version of § 18-3-1. The John-stones’ property was landlocked, but their grantor had retained land adjacent to it that had access to a public road via a perpetual easement. 54 Ala.App. at 196, 306 So.2d at 287. McGowin argued that the Johnstones had “access from their land to a public road by means of implied way of necessity over the remaining land of their grantors and, therefore, should not be allowed access over the lands of a stranger.” 54 Ala.App. at 196, 306 So.2d at 287. This court stated: “The issue to be determined is whether or not a reasonably adequate means of access exists. To this court, a way by necessity is not necessarily equivalent to a reasonably adequate means of access.” 54 Ala.App. at 198, 306 So.2d at 289 (emphasis added). Although circumstances existed under which the presumption of an easement by necessity could arise, this court concluded that, given the rugged physical makeup of the grantors’ land, “there was ample evidence from which the trial court could determine that [the Johnstones] had no right of way over their grantor’s remaining land which was unobstructed and unquestioned, or adequately reasonable.” 54 Ala.App. at 198, 306 So.2d at 289.

In Crabtrey v. Tew, 485 So.2d 726 (Ala. Civ.App.1985), this court affirmed a circuit court’s judgment in a case with facts nearly identical to those at issue here. In 1983, Lochie Tew “divided her property among her children. Each of the children, except James Tew, was conveyed parcels of land that fronted on a public road.... ” 485 So.2d at 727. “The [James] Tew property [was] neither adjacent to nor contiguous to any public road or right-of-way. The Crabtrey property [lay] between the [James] Tew property and an unnamed paved county road....” Id. at 727. James Tew filed a petition for private condemnation seeking a right-of-way across the Crabtrey property to the county road. Id. at 727. The probate court and the circuit court both granted the right-of-way. Reviewing the case on appeal, this court considered a possible route across the land owned by James Tev^s brothers, and stated:

“In the present case, the route of access which Tew might have over his brothers’ property could be cut off at any time, which made this route of access questionable and subject to being obstructed. Such a situation authorizes a proceeding by Tew to gain access to the nearest public road.
“The Crabtreys contend that Tew should be given access over his brothers’ land and should not be allowed access over the lands of a stranger, since both Tew’s property and that of his brothers comes from a common grantor.”

Id. at 728. Based on the language of § 18-3-1 and on McGowin, this court rejected the defendants’ argument and found “that there was ample evidence to support the trial court’s decision to grant the ... right-of-way....” Id.

As this court stated in McGow-in, supra, a way by necessity is not necessarily equivalent to an existing, reasonably adequate means of access. McGowin, 54 Ala.App. at 198, 306 So.2d at 289. First, as noted in Hamby and as the Keys themselves recognize, the grant of a landlocked property creates a presumption of an easement by necessity. “ ‘Necessity does not of itself create a right of way,’ ” but is merely evidence of the grantor’s intent. Hamby, 221 Ala. at 537, 130 So. at 77. The presumption of an easement by necessity may be overcome. Id. Based on this language, we cannot say that the Ellises had an existing easement by necessity across Tract 4. Additionally, because most opinions of this court and our supreme court speak of easements by necessity as being “granted” or “declared” by the courts, we agree with the circuit court’s conclusion that the Ellises did not “already have an easement which was neither sought nor declared during the lifetime of the former owner.” (Emphasis in original.)

Second, because the facts here created a presumption instead of an existing easement, the Ellises did not have a means of access over Tract 4 that was unquestioned so as to be reasonable access that would preclude the declaration of a right-of-way under § 18-3-1. Furthermore, in light of Earline Ellis’s refusal to grant the Ellises permission to cross Tract 4, the access over Tract 4 is not unobstructed and unquestioned. The evidence did not show that Tract 4 provided the “permanency” and “unrestricted ability of usage” associated with reasonably adequate means of access. Starnes v. Diversified Operations, Inc., 47 Ala.App. 270, 272, 253 So.2d 330, 331 (Civ.1971).

Based on the foregoing, we cannot say that the circuit court erred in finding that Tract 14 was landlocked with no existing, reasonably adequate means of access. As this court did in McGowin and Tew, supra, we affirm the circuit court’s judgment declaring the right-of-way.

The Keys also argue on appeal that the circuit court erred in admitting John Ellis’s testimony that the value of his nearby property, which was not at issue in the litigation, was $4,000 per acre. On appeal, the Keys argue only that the testimony was irrelevant and prejudicial. We review the circuit court’s decision to admit or exclude evidence to determine whether the circuit court exceeded its discretion. Middleton v. Lightfoot, 885 So.2d 111, 114 (Ala.2003).

“The standard applicable to a review of a trial court’s rulings on the admission of evidence is determined by two fundamental principles. The first grants trial judges wide discretion to exclude or to admit evidence. ‘The test is that the evidence must ... shed light on the main inquiry, and not withdraw attention from the main inquiry.’ Atkins v. Lee, 603 So.2d 937 (Ala.1992) (citing Ryan v. Acuff, 435 So.2d 1244 (Ala. 1983)). The second principle ‘is that a judgment cannot be reversed on appeal for an error unless ... it should appear that the error complained of has probably injuriously affected substantial rights of the parties.’ Atkins, 603 So.2d at 941.”

Wal-Mart Stores, Inc. v. Thompson, 726 So.2d 651, 655 (Ala.1998).

Section 18-1A-I92(a) provides that “[u]pon proper foundation, opinion evidence as to the value of property may be given in evidence only by [certain specified persons, including] an owner of the property....” Section 18-1A-I92(b) provides that § 18-1A-I92(a) “does not preclude the admissibility of other evidence explaining or enabling the trier of fact to understand and weigh any opinion testimony given under subsection (a).” “The rationale for allowing a nonexpert owner or his designated representative to testify regarding the value of his property, is that an owner presumably knows the value of his asset.” E-Z Serve Convenience Store, Inc. v. State, 686 So.2d 351, 353 (Ala.Civ. App.1996). However, the “presumption of the owner’s knowledge of value does not extend to one who would testify as to the value of another’s property.” Id.

Here, the ultimate issue before the jury was the value of the taking of the right-of-way across Tract 5. John Ellis, however, did not testify to his belief or opinion regarding the value of Tract 5 or the value of the taking. Instead, he testified that he believed the value of nearby property that he owned was worth $4,000 per acre, the same price that Brenda Key testified she paid for Tract 5 before the circuit court declared the right-of-way.

We cannot say that testimony regarding the value of nearby property does not shed light on the main inquiry or withdraws attention from it. Indeed, evidence regarding the value of nearby property would likely have explained or enabled the trier of fact to understand and weigh Brandy Key’s opinion as to the value of her land. Furthermore, in light of Brenda Key’s testimony that Tract 5 was worth $4,000 per acre before the taking, we cannot say that Ellis’s testimony injuriously affected substantial rights of the Keys. Indeed, the jury awarded the Keys $4,000 in damages for a taking of less than one-quarter of an acre. This amounted to an effective award of $16,000 per acre taken. See Brothers v. Holloway, 692 So.2d 845, 849 (Ala.Civ.App.1997). Accordingly, the circuit court did not err to reversal in admitting the testimony over the Keys’ objection.

Therefore, as to both issues the Keys raise on appeal, the circuit court’s judgment is affirmed.

AFFIRMED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . The Keys argue on appeal that the Ellises failed to obtain municipal approval for the right-of-way as required by § 18-3-1. However, the land at issue in this case is located in an unincorporated part of Blount County and does not fall within the jurisdiction of any municipality. Regardless, the record does not show that the Keys raised this argument below. Because we cannot consider arguments made for the first time on appeal, we will not address this issue. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992); Schieszv. Schiesz, 941 So.2d 279, 290 (Ala. Civ.App.2006).

      . As a joint owner of Tract 14 with her children, Mary Ellis was also a party to the petition. Mary died while the litigation was pending, and the Ellises advised the circuit court that they had inherited her interest. There is no question on appeal as to the Ellises’ title to Tract 14.

      . The case action summary shows that the circuit court entered the judgment on July 25, 2006; however, the reporter's transcript shows that the jury trial occurred on July 27, 2006. Despite this discrepancy, the Keys filed their notice of appeal within 42 days of either date, as required by Rule 4, Ala. R.App. P.

      . The circuit court noted that a shorter route to CR-57 existed across the adjoining property of an unrelated third party. However, due to the physical conditions of that land, the court found that route to be impracticable.

      . See McGowin Inv. Co. v. Johnstone, 54 Ala. App. 194, 197, 306 So.2d 286 (Civ.1974) (quoting Starnes v. Diversified Operations, Inc., 47 Ala.App. 270, 272, 253 So.2d 330, 332 (Civ.1971), quoting in turn Davenport v. Cash, 261 Ala. 380, 382, 74 So.2d 470, 471 (1950), adopting the language of Carter v. Barkley, 137 Iowa 510, 115 N.W. 21, 23 (1908)) (" ' "The statute, in our judgment, should be construed to mean that, unless a party has a way, either public or private, which is unobstructed and unquestioned, he may institute proceedings under the statute.” ' ”).

      . See, e.g., Gowan v. Crawford, 599 So.2d 619, 622 (Ala. 1992); Miller v. Harris, 945 So.2d 1072, 1074 (Ala.Civ.App.2006); and Bluffs Owners Ass'n, Inc. v. Adams, 897 So.2d 375, 378 (Ala.Civ.App.2004).


source: Caselaw Access Project

author: THOMPSON, Presiding Judge. PITTMAN, Judge,

license: Public Domain

text:
    ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT v. LEGAL ENVIRONMENTAL ASSISTANCE FOUNDATION, INC.
    2060026.
    Court of Civil Appeals of Alabama.
    May 11, 2007.

      Troy King, atty. gen., James L. Wright, assoc, gen. counsel and asst. atty. gen., and John P. Hagood, executive counsel and asst. atty. gen., Department of Environmental Management, for appellant.
    David A. Ludder, Tallahassee, Florida, for appellee.
    J. Lister Hubbard and Richard H. Allen of Capell & Howard, P.C., Montgomery, for amicus curiae Alabama Pulp & Paper Council, in support of the appellant.
    Thomas R. Head III and Thomas L. Casey III of Balch & Bingham, LLP, Birmingham, for amici curiae Business Council of Alabama and Alabama Coal Association, in support of the appellant.
   THOMPSON, Presiding Judge.

The Alabama Environmental Management Commission (“AEMC”) dismissed a request by the Legal Environmental Assistance Foundation, Inc. (“LEAF”), for a hearing on a civil-penalty order issued to Georgia Pacific d/b/a Fort James Operating Co. (“GP”) by the Alabama Department of Environmental Management (“ADEM”). LEAF appealed the dismissal to the Montgomery Circuit Court, which entered a judgment reversing the dismissal and remanding the action to the AEMC for an evidentiary hearing. ADEM timely appealed the circuit court’s judgment to this court.

This case presents a situation wherein a litigant admittedly is not injured or threatened with injury by an administrative order but nonetheless has sought a hearing and judicial review of the order. This court’s decision depends upon the resolution of two interrelated issues. First, we must decide whether § 22-22A-5 and § 22-22A-7, Ala.Code 1975, as amended by Act No. 397, Ala. Acts 2003, validly entitle any person who commented on an ADEM penalty order to a hearing before the AEMC and to judicial review of any AEMC decision, or whether those sections as amended limit the right to a hearing and judicial review to persons aggrieved by the ADEM order. Second, based on our decision regarding the first issue, we must determine whether the circuit court had subject-matter jurisdiction to consider LEAF’S appeal. Having reviewed the record and arguments of counsel, and having considered the statutes at issue in light of the constitutional limits of judicial power, we dismiss the appeal.

The Environmental Management Act

The procedural history of this case is best understood against the background of the Environmental Management Act (“the Act”), §§ 22-22A-1 to 22-22A-16, Ala. Code 1975, which governs the authority and procedures of ADEM and the AEMC. The Act was amended in 2003 to change certain language of § 22-22A-5 and § 22-22A-7. It is undisputed that the legislature enacted the 2003 amendments to the Act in response to a decision of the United States Court of Appeals for the Eleventh Circuit, namely: McAbee v. City of Ft. Payne, 318 F.3d 1248 (11th Cir.2003). In that case, a panel of the Eleventh Circuit Court of Appeals held that the Environmental Management Act, supra, and the Alabama Water Pollution Control Act, §§ 22-22-1 to 22-22-14, Ala.Code 1975, were not “comparable” to the federal Clean Water Act, 33 U.S.C. § 1319(g), for purposes of the “limitation-on-actions” provision of the Clean Water Act. The Alabama legislature subsequently enacted Act No. 397, Ala. Acts 2003, presumably to make the Environmental Management Act comparable to the federal Clean Water Act.

Section 22-22A-5(18)a authorizes ADEM to issue orders assessing civil penalties to persons who violate certain environmental standards. As amended, that section also states, in relevant part:

“Before issuing any consent or unilateral order under this section, the department shall cause public notice to be published.... The notice shall ... indicate that persons may submit written comments to the department and request a hearing on the proposed order within 30 days of the first date of publication.... After consideration of written comments, any information submitted at the hearing, if one was held, and any other publicly available information, the department may issue the order as proposed, issue a modified order, or withdraw the proposed order.... Upon issuance of an order, the department shall also provide written notice of the order by regular mail to each person who submitted unit-ten comments on the proposed order that contain a current return address. The notice shall reasonably describe the nature and location of the alleged violation and the amount of civil penalty, contain a summary of any required corrective measures, provide instructions for obtaining a copy of the order, and indicate that persons who submitted written comments on the proposed order may, within SO days of the issuance of the order, request a hearing on the order before the Environmental Management Commission in accordance with Section 22-22A-7.”

(Emphasis supplied.) All of the above-quoted language was added by Act No. 397, Ala. Acts 2003.

Section 22-22A-7 governs the authority and procedures of the AEMC; subsection (c) provides in relevant part:

“Upon a proper request made in accordance with subdivisions (1) or (2) of this subsection and any hearing procedures prescribed by the Environmental Management Commission, any person aggrieved by an administrative action of the department shall be entitled to a hearing before the Environmental Management Commission or its designated hearing officer. To obtain a hearing on any order assessing a civil penalty issued pursuant to subdivision (18) of Section 22-22A-5, an aggrieved person shall either be subject to the order or have submitted timely written comments on the proposed order in accordance with subdivision (18) of Section 22-22A-5.
“(6) Any order of the Environmental Management Commission made pursuant to the above procedure, modifying, approving or disapproving the department’s administrative action, constitutes a final action of the department and is appealable to the Montgomery County Circuit Court ... for judicial review on the administrative record provided that such appeal is filed within 30 days after issuance of such order.”

(Emphasis supplied.) The emphasized language was added by Act No. 397, Ala. Acts 2003.

The Title to Act No. 397, Ala. Acts 2003, states:

“To amend Sections 22-22A-5 and 22-22A-7, Code of Alabama 1975, relating to enforcement actions by the Alabama Department of Environmental Management, to provide public notice and an opportunity to comment on a proposed administrative order assessing a civil penalty, to provide for hearings before an order is finalized under certain conditions, to provide notice of the issuance of a final order to persons who submitted written comments on the proposed order, to increase the period for appeal of the order to the Environmental Management Commission, to allow parties who submitted written comments on a proposed administrative order assessing a civil penalty to obtain a hearing on the order before the Environmental Management Commission, and to allow persons who participated as parties in the hearing before the commission to seek judicial review of the action of the commission.”

(Emphasis supplied.)

Regarding hearings, the AEMC’s administrative rules state, in relevant part:

“To obtain a hearing on any order assessing a civil penalty issued by the Department, an aggrieved person must either be subject to the order or have submitted timely written comments on the proposed order in accordance with Code of Ala.1975, § 22-22A-5(18).”

Ala. Admin. Code (ADEM) r. 335-2-1-.04(2).

“A request for a hearing to contest an administrative action of the Department shall be made in writing and shall contain:
“(c) a short and plain statement of the threatened or actual injury suffered by the person making the request as a result of the administrative action of the Department....”

Ala. Admin. Code (ADEM) r. 335-2-1-.04(5). Alabama Admin. Code (ADEM) r. 335-2-1-.02 defines “aggrieved” as “having suffered a threatened or actual injury in fact.”

Procedural History

On July 21, 2005, in accordance with the public-notice requirements of § 22-22A-5(18)a., Ala.Code 1975, ADEM published a proposed consent order that would assess civil penalties against GP for its violation of certain emission standards. On August 19, 2005, LEAF submitted written comments to ADEM in which it objected to the proposed order for various reasons. LEAF requested “that ADEM revise the draft order to address [specified] deficiencies,” but it did not request a hearing before ADEM on the proposed order pursuant to the amended language of § 22-22A-5(18)a. On August 26, 2005, ADEM issued the consent order to GP without revising the order as LEAF had requested.

LEAF filed a request for a hearing with the AEMC on September 21, 2005. LEAF conceded that neither it nor any of its members had suffered an actual or threatened injury resulting from ADEM’s issuance of the consent order to GP. Instead, LEAF argued to the AEMC that § 22-22A-5(18)a., as amended by Act No. 397, Ala. Acts 2003, entitles any person who commented on a proposed ADEM order to a post-order hearing before the AEMC, regardless of whether such person was “aggrieved” by the order. ADEM moved to dismiss, asserting that LEAF lacked standing to pursue a hearing because LEAF had not suffered any threatened or actual harm as a result of the August 26, 2005, order to GP. ADEM also asserted that LEAF had not shown that it was “aggrieved” pursuant to § 22-22A-7(c), Ala.Code 1975, and Ala. Admin. Code (ADEM) r. 335-2-l-.04(5)(c), supra. On December 2, 2005, in accordance with the recommendations of the administrative law judge assigned to the matter, the AEMC granted ADEM’s motion and dismissed LEAF’S request for a hearing on the ground that LEAF did “not appear to be an aggrieved person within the meaning of ADEM Admin. Code. R. 335-2-1.02(b) and ADEM Admin. Code R. 335-2-l-.04(2).” LEAF filed a notice of appeal to the Montgomery Circuit Court, on December 2, 2005, naming ADEM as an adverse party.

ADEM moved to dismiss and later moved for a summary judgment on substantially the same grounds it had asserted before the AEMC and on the additional ground that the circuit court had no subject-matter jurisdiction to hear the appeal because LEAF lacked standing before that court. On May 24, 2006, the circuit court entered an order finding that it had appellate jurisdiction to review the AEMC’s decision pursuant to § 22-22A-7 (c)(6), Ala. Code 1975, and Art. VI, § 139(b), Ala. Const.1901 (off.recomp.) (formerly Amend. No. 328, § 6.01(b), Ala. Const.1901). Specifically, based on the analysis of the Court of Appeals of Kansas in Nichols v. Kansas Government Ethics Comm’n, 28 Kan. App.2d 524, 18 P.3d 270 (2001), the circuit court reasoned that LEAF had standing before it because LEAF was aggrieved by the AEMC’s order dismissing its request for hearing. Regarding the substance of LEAF’S appeal, the May 24, 2006, order reversed the AEMC’s decision and remanded the action with directions to grant LEAF’S request for hearing. Based in part on the title to Act No. 397, Ala. Acts 2003, the circuit court found that “a person who comments on a proposed penalty order may obtain a hearing before the Environmental Management Commission on the issued penalty order without the necessity of suffering a threatened or actual injury in fact.” Following the denial of its postjudgment motion by operation of law, ADEM filed a timely notice of appeal to this court.

Standard of Review

“In reviewing the determination of the Commission, this court’s standard of review is the same as that of the trial court.” Plumbers & Steamfitters, Local 52 v. Alabama Dep’t of Envtl. Mgmt., 647 So.2d 793, 795 (Ala.Civ.App.1994). Because this case does not involve issues related to perfecting an appeal under § 22-22A-7(c)(6), Ala.Code 1975, our standard of review of the AEMC’s decision is governed by the Alabama Administrative Procedure Act (“AAPA”), § 41-22-20, Ala. Code 1975. Under the AAPA, this court may reverse administrative decisions only under limited circumstances:

“(k) Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.... The court may reverse or modify the decision or grant other appropriate relief from the agency action ... if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) In violation of any pertinent agency rule;
“(4) Made upon unlawful procedure;
“(5) Affected by other error of law;
“(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
“(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

§ 41 — 22—20(k), Ala.Code 1975. There “is no presumption of correctness afforded to the [AEMC’s] legal conclusions or its application of the law to the facts.” Medical Licensure Comm’n of Alabama v. Herrera, 918 So.2d 918, 926 (Ala.Civ.App.2005).

Analysis

This court’s decision requires the resolution of two interrelated issues, one of statutory construction and one of subject-matter jurisdiction. Although jurisdictional questions typically require resolution before other issues, we find that the jurisdictional question presented in this case depends upon our interpretation of the statutes that are also at issue. Accordingly, we first turn our attention to the question whether § 22-22A-5 and § 22-22A-7, as amended by Act No. 397, Ala. Acts 2003, validly entitle any person who commented on an ADEM penalty order to a hearing before the AEMC and to judicial review of any AEMC decision, or whether those sections, as amended, limit the right to a hearing and judicial review to persons aggrieved by the ADEM order.

“The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute.” IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). “ ‘However, when possible, the intent of the legislature should be gathered from the language of the statute itself.’ ” Perry v. City of Birmingham, 906 So.2d 174, 176 (Ala.2005) (quoting Beavers v. Walker County, 645 So.2d 1365, 1376 (Ala.1994)); Ex parte Lamar Advertising Co., 849 So.2d 928, 930 (Ala.2002). Therefore, in “determining the meaning of a statute, we must begin by analyzing the language of the statute.” Holcomb v. Carraway, 945 So.2d 1009, 1018 (Ala.2006).

“Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.”

IMED Corp., 602 So.2d at 346; see also Wynn v. Kovar, 963 So.2d 84 (Ala.Civ.App. 2007). Stated differently, when “the language of a statute is plain and unambiguous, ... courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning — they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature.” Ex parte T.B., 698 So.2d 127, 130 (Ala.1997); see also Perry, 906 So.2d at 176; Ex parte Lamar Advertising Co., 849 So.2d at 930; Beavers, 645 So.2d at 1376-77; Ex parte United Serv. Stations, Inc., 628 So.2d 501 (Ala.1993); and IMED Corp., 602 So.2d at 344.

The Alabama Supreme Court has explained that the role of the appellate courts “is not to displace the legislature by amending statutes to make them express what we think the legislature should have done. Nor is it [the appellate court’s] role to assume the legislative prerogative to correct defective legislation or amend statutes.” Siegelman v. Chase Manhattan Bank (USA), Nat’l. Ass’n, 575 So.2d 1041, 1051 (Ala.1991). “When determining legislative intent from the language used in a statute, a court may explain the language but it may not detract from or add to the statute.... Courts may not improve a statute, but may only expound it.” Siegel-man, 575 So.2d at 1045.

These rules of statutory construction and their corresponding limits on this court’s authority are founded in the separation-of-powers requirement of Art. Ill, § 43, Ala. Const. 1901 (off.recomp.) As our supreme court has discussed:

“It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers. See Ex parte T.B., 698 So.2d 127, 130 (Ala.1997).”

DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 276 (Ala.1998).

In accordance with these principles, we look first to the plain language of § 22-22A-5 and § 22-22A-7, as amended by Act No. 397, Ala. Acts 2003. Section 22-22A-5(18)a. relates to ADEM’s powers and procedures, not to those of the AEMC. It requires ADEM to

“provide written notice of the order by regular mail to each person who submitted written comments on the proposed order,”

and it requires that the notice

“indicate that persons who submitted written comments on the proposed order may, within 30 days of the issuance of the order, request a hearing on the order before the Environmental Management Commission in accordance with Section 22-22A-7.”

(Emphasis supplied.) By this plain language, § 22-22A-5(18)a. does not itself create a right to a hearing before the AEMC. Rather, for those who submitted written comments on a proposed order, it creates the right to receive from ADEM a notice with specifically defined content; particularly, among other things, it provides that those who submitted written comments may request a hearing “in accordance with Section 22-22A-7.” By its express language, therefore, the only reference in § 22-22A-5(18)a. to a right to a hearing is subject to § 22-22A-7. Section 22-22A-5(18)a. must, therefore, be read in context with § 22-22A-7.

Section 22-22A-7 relates to the powers and procedures of the AEMC. The first sentence of subsection (c) creates a right to a hearing before the AEMC:

“Upon a proper request ..., any person aggrieved by an administrative action of the department shall be entitled to a hearing before the Environmental Management Commission or its designated hearing officer.”

(Emphasis supplied.) In creating the right to a hearing, this language defines those entitled to be heard as “any person aggrieved” by an administrative action of ADEM. By its plain language, therefore, § 22-22A-7 limits the right to a hearing to those persons “aggrieved” by an ADEM action.

The next sentence of § 22-22A-7(c) states:

“To obtain a hearing on any order assessing a civil penalty issued pursuant to subdivision (18) of Section 22-22A-5, an aggrieved person shall either be subject to the order or have submitted timely written comments on the proposed order in accordance with subdivision (18) of Section 22-22A-5.”

(Emphasis supplied.) This language establishes the procedural steps an aggrieved person must take in order to obtain a hearing on a § 22-22A-5(18) civil-penalty order. We do not view this sentence as a definition of persons “aggrieved,” as LEAF advocates. In light of the limiting language of the preceding sentence in § 22-22A-7(c), discussed above, and the placement of the word “shall,” the language is procedural rather than definitional in nature. That is, instead of defining a person aggrieved as either one who is subject to the order or one who submitted comments, this sentence requires either that an aggrieved person shall be subject to the order or that an aggrieved person shall have submitted written comments to the order. The language, therefore, again describes those persons entitled to a hearing as “aggrieved.”

Regarding judicial review of AEMC orders, § 22-22A-7(c)(6) provides that AEMC orders “made pursuant to the above procedure, modifying, approving or disapproving the department’s administrative action ... [are] appealable to the Montgomery County Circuit Court.” By reference to “the above procedure,” this subsection refers to the hearing procedure that § 22-22A-7(c) limits to aggrieved persons. As a result, the judicial appeal authorized by § 22-22A-7(c)(6) contemplates appeals in which the complainant before the AEMC was aggrieved.

This court could find no Alabama case defining the term “aggrieved” as it is used in § 22-22A-7. However, the term is not ambiguous. Ala. Admin. Code (ADEM) r. 335-2-l-.02(b) defines “aggrieved” as “having suffered a threatened or actual injury in fact.” Our supreme court has applied the term in Ex parte Marshall Durbin & Co. of Jasper, Inc., 537 So.2d 496 (Ala.1988). There, the Alabama Supreme Court found a company “aggrieved” under rule 335-2-l-.02(b) when the evidence showed that “it was threatened with having its annual sewer rates increased by about $85,000” and that “its rates [might] be lowered if [it were] successful in its challenge” to an ADEM action. 537 So.2d at 498. Additionally, as this court has discussed:

“Black’s Law Dictionary 65 (6th ed.1990) defines ‘aggrieved party’ as follows:
‘One whose legal right is invaded by an act complained of, or whose pecuniary interest is directly and adversely affected by a decree or judgment.... The word “aggrieved” refers to a substantial grievance, a denial of some personal, pecuniary or property right, or the imposition upon a party of a burden or obligation.’
“(Emphasis added.)
“In the present case there is no evidence that the [administrative] decision ... either threatened or actually injured any property right or pecuniary interest of the [complainant]. The [complainant] thus failed to establish that it is ‘aggrieved’ by the ... decision.”

Birmingham Racing Comm’n v. Alabama Thoroughbred Ass’n, Inc., 775 So.2d 207, 210 (Ala.Civ.App.1999). By its plain language, therefore, a “person aggrieved” under § 22-22A-7 is one who has suffered a threatened or actual injury, i.e., one who is somehow adversely affected by the ADEM action of which it complained.

Thus, by their plain language and when read together, § 22-22A-5 and § 22-22A-7, as amended, do not create a right to a hearing before the AEMC for those who have not suffered threatened or actual injury or who are not somehow adversely affected by an ADEM action. Contrary to LEAF’S argument, therefore, § 22-22A-5(18) does not create a right to a hearing for persons, such as LEAF, who merely commented on a proposed ADEM order but were not aggrieved by it. The statutory language is clear and unambiguous, and this court is therefore bound to enforce it as written.

“Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.

IMED Corp., 602 So.2d at 346 (emphasis supplied); see also Wynn v. Kovar, 963 So.2d 84.

The title to an act may serve as an aid to statutory construction; however, this court “should turn to extrinsic aids to determine the meaning of a piece of legislation only if we can draw no rational conclusion from a straightforward application of the terms of the statute.” DeKalb County, 729 So.2d at 277. Therefore, despite the language of the title to Act No. 397, Ala. Acts 2003, on which LEAF relies, under the long-established rules of statutory construction stated above, the language of § 22-22A-5 and § 22-22A-7 controls because it is not ambiguous.

Based on the foregoing, we conclude that § 22-22A-5 and § 22-22A-7, as amended by Act No. 397, Ala. Acts 2003, do not entitle persons who were neither injured nor threatened with injury by an ADEM action to a hearing before the AEMC. Accordingly, because it was admittedly neither injured nor threatened with injury by ADEM’s order assessing civil penalties to GP, LEAF was not entitled to a hearing before the AEMC under § 22-22A-5 and § 22-22A-7, as amended.

We next turn our attention to the determination whether the circuit court had subject-matter jurisdiction to hear LEAF’S appeal. This “court may take notice of jurisdictional issues ex mero motu.... Lack of standing is a jurisdictional defect.” E.V.W. v. Jefferson County Dep’t of Human Res., 893 So.2d 1212, 1213 (Ala.Civ.App.2004); see also Auburn Med. Ctr., Inc. v. Alabama State Health Planning & Dev. Agency, 848 So.2d 269, 271 (Ala.Civ.App.2002). This court has stated:

“Standing may be defined as a party’s right to seek legal redress when ‘“the party has been injured in fact and [when] the injury is to a legally protected right.”’ State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1027 (Ala.1999). If a party has no direct or discernable legal interest then he has no standing to challenge an administrative decision.... ”

Auburn Med. Ctr., 848 So.2d at 271. Furthermore, our supreme court has explained:

“In the absence of such an injury, there is no case or controversy for a court to consider. Therefore, were a court to make a binding judgment on an underlying issue in spite of absence of injury, it would be exceeding the scope of its authority and intruding into the province of the Legislature. See City of Daphne v. City of Spanish Fort, 853 So.2d 933, 942 (Ala.2003) (‘The power of the judiciary ... is “the power to declare finally the rights of the parties, in a particular case or controversy ....”’ (quoting Ex parte Jenkins, 723 So.2d 649, 656 (Ala. 1998))).”

Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253, 1256 (Ala.2004).

LEAF was not aggrieved by AJDEM’s civil-penalty order to GP because it admittedly neither suffered nor was threatened with injury by that administrative action. Consequently, § 22-22A-5 and § 22-22A-7, as amended, do not provide LEAF with a right to hearing before the AEMC or to judicial review of the AEMC’s order. Contrary to the circuit court’s reasoning, LEAF was not injured by the AEMC’s dismissal of its request for a hearing. As a result of its complete lack of injury or threatened injury, LEAF lacked standing before the circuit court, and that court lacked subject-matter jurisdiction to consider the case.

“Without subject-matter jurisdiction, any judgment entered in the action is void, ... and ‘[a] void judgment will not support an appeal.’ Moore v. John Hancock Life Ins. Co., 876 So.2d 443, 448 (Ala. 2003).” Eagerton v. Second Econ. Dev. Coop. Disk of Lowndes County, 909 So.2d 783, 788 (Ala.2005). The judgment of the circuit court is therefore void, and will not support this appeal. We therefore dismiss the appeal.

DISMISSED.

PITTMAN, J., concurs in the result, with writing, which THOMAS, J., joins.

BRYAN and MOORE, JJ., recuse themselves.

PITTMAN, Judge,

concurring in the result.

Under the text of § 22-22A-5(18)a., ADEM is to provide notice to persons who submit comments on a proposed order in an enforcement action; that notice, among other things, is to indicate that such com-menters “may, within 30 days of the issuance of the order, request a hearing on the order before the [AEMC] in accordance with Section 22-22A-7.” Unlike the main opinion, I do not presume that the legislature intended such a mandatory notice to be meaningless; rather, I believe that the intent of § 22-22A-5(18)a. is to afford to nonparty commenters an expanded right to an administrative hearing before the AEMC. Nevertheless, I concur in the result to dismiss the appeal on the basis that LEAF was not a party or an aggrieved person entitled to judicial review of the administrative decision of the AEMC under the Alabama Administrative Procedure Act so as to invoke that court’s subject-matter jurisdiction. See § 41-22-20(a), Ala.Code 1975, and Phoenix Ass’n, Inc. v. Cudzik, 641 So.2d 828, 830 (Ala.Civ.App. 1994).

THOMAS, J., concurs.

      . The AEMC also denied a motion to recuse that LEAF had filed requesting that a particular commissioner recuse himself from the case. LEAF discussed this motion in its brief on appeal; however, because the circuit court did not consider the matter and because LEAF did not properly raise it in a cross-appeal, we will not review the denial of that motion. Boswell v. Samson Banking Co., 368 So.2d 547, 551 (Ala.Civ.App.l979)("an appel-lee may not cross assign error without taking an appeal”).

      . "The legislature may create judicial officers with authority to issue warrants and may vest in administrative agencies established by law such judicial powers as may be reasonably necessary as an incident to the accomplishment of the purposes for which the agencies are created.” Art. VI, § 139(b), Ala. Const. 1901 (off.recomp.).

      . See Ex parte Plumbers & Steamfitters, Local 52, 622 So.2d 347 (Ala. 1993); Plumbers & Steamfitters, Local 52 v. Alabama Dep’t of Envtl. Mgmt., 647 So.2d at 794-95 ("because it concerns a matter unrelated to the perfecting of an appeal, judicial review of a decision of the Commission is governed by §§ 41-22-20 and-21”).

      4. Black’s Law Dictionary 73 (8th ed.2004) defines "aggrieved'' as "having legal rights that are adversely affected; having been harmed by an infringement of legal rights."

      . Although the parties and amici curia address the matter in their briefs, we are not confronted with the issue whether § 22-22A-5 and § 22-22A-7, as amended, are comparable to the federal Clean Water Act, 33 U.S.C. § 1319(g), for purposes of the "limitation-on-actions” provision of the Clean Water Act. Accordingly, we do not answer that question in this opinion.