The Water Works Board of Birmingham v. Alabama Surface Mining Comm. and Mays Mining, Inc., [Ms. CL-2022-1059, July 7, 2023] __ So. 3d __ (Ala. Civ. App. 2023). The court (Edwards, J.; Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur) dismisses an appeal by The Water Works Board of the City of Birmingham (“the WWB”) from the Walker Circuit Court’s summary judgment in favor of the Alabama Surface Mining Commission (“ASMC”) and Mays Mining, Inc. (“MMI”) because WWB failed to exhaust administrative remedies before the ASMC. The court notes “the legislature has clearly stated that ‘[t]he circuit court shall not permit an appeal unless the person filing such appeal has exhausted his administrative remedies as provided by [the Reclamation Act].’ Ala. Code 1975, § 9-16-79(4)b.” Ms. **21-22.
The court reiterates
[W]hen no final decision in an administrative case has been entered by an agency for purposes of appeal to a circuit court,
“the appeal is due to be dismissed, ex mero motu, because the circuit court never acquired subject-matter jurisdiction. See Singleton v. Graham, 716 So. 2d 224, 225-26 (Ala. Civ. App. 1998) (noting that a circuit court’s lack of subject-matter jurisdiction follows an appeal to this court and warrants dismissal upon discovery of the jurisdictional defect in the record on appeal); see also Eitzen v. Medical Licensure Comm’n of Alabama, 709 So. 2d 1239, 1240 (Ala. Civ. App. 1998) (dismissing appeal from circuit court’s judgment affirming final decision of administrative agency because record revealed that the circuit court’s jurisdiction to review the decision had not properly attached).”
Ms. *22, quoting Alabama Dep’t of Econ. & Cmty. Affs. v. Community Serv. Programs of W. Alabama, Inc., 65 So. 3d 396, 402 (Ala. Civ. App. 2010).
The court also holds “‘[t]he parties may not waive lack of subject-matter jurisdiction, and subject-matter jurisdiction may not be conferred by consent.’ Espinoza v. Rudolph, 46 So. 3d 403, 413 (Ala. 2010). When a court has no subject matter jurisdiction at the time of the initial filing, that defect cannot be cured after the fact; instead, the court is obligated to dismiss the action for lack of jurisdiction.” Ms. *24.