ORDERS:
The latter requirement of determining whether the claim is in fact a "failure to receive notice"
gives rise to the second hurdle. The party seeking the contested case cannot properly argue a
failure to receive notice if the party has "actual or constructive notice of the agency decision"
within the 90 day period. If such notice is received within the 90 day period, the party must file
the request for a contested case within 30 days "after actual or constructive notice of the agency
decision."
3. Application
In this case, the date of the agency decision is August 13, 2003. Thus, "[i]n no case" can the
filing be made beyond November 11, 2003, the 90th day. Here, Beach did not file for a contested
case until May 2004, a date well beyond the cutoff date in November 2003.
Thus, to escape the "[i]n no case" language, Beach must fall within the reprieve portion of the
rule. To do so, Beach not only must have experienced a "failure to receive notice" during the 90
day period but also a basis must exist showing that the filing should be allowed "for substantial
cause shown." On the other hand, if there is no "failure to receive notice" during the 90 day
period, (i.e. the evidence establishes that Beach received actual or construction notice of the
agency decision during the 90 days), the facts must then show that Beach filed its request for a
contested case within 30 days "after actual or constructive notice of the agency decision."
Here, TCTF believes that Beach, Griffith, and Ginn did not have a “failure to receive notice”
during the 90 days following the August 13, 2003 decision. Under the facts of this case, I agree
with TCTF. Here, Beach had constructive notice of the DHEC decision on or about August 13,
2003.
B. Constructive Notice
Our Supreme Court has defined constructive notice:
Constructive notice is a legal inference which substitutes for actual notice. It is
notice imputed to a person whose knowledge of facts is sufficient to put him on
inquiry; if these facts were pursued with due diligence, they would lead to other
undisclosed facts. Therefore, this person is presumed to have actual knowledge
of the undisclosed facts.
Strother v. Lexington County Recreation Commission, 332 S.C. 54, 504 S.E.2d 117 (1998)
Strother confirms long standing South Carolina law holding that a party has constructive notice
of facts naturally flowing from a reasonably pursued duty of inquiry. City of Greenville v.
Washington Am. League Baseball Club, 205 S.C. 495, 32 S.E.2d 777 (1945) ("Furthermore, if
there are circumstances sufficient to put the party upon inquiry, he is held to have notice of
everything which that inquiry, properly conducted, would certainly disclose."); Norris v.
Greenville, S. & A. Ry. Co., 111 S.C. 322, 97 S.E. 848 (1919) ("When a person has notice of
such facts as are sufficient to put him upon inquiry, which, if pursued with due diligence, would
lead to knowledge of other facts, he must be presumed to have knowledge of the undisclosed
facts.").
1. Public Notice
Here, given the highly specific, meaningfully detailed, and broad based notice to the public in
TCTF's March 22, 2003, advertisement in the News and Courier of Charleston, South Carolina,
and in the May 2, 2003, Joint Public Notice issued by DHEC and the Army Corps of Engineers,
Beach, Griffith, and Ginn had notice of the filing of TCTF's application. Having such
information is sufficient to place upon Beach, Griffith, and Ginn a duty of inquiry. Further, once
having such a duty, had Beach, Griffith, and Ginn "pursued with due diligence," they would have
learned of the permit's issuance shortly after the August 13, 2003 date. Therefore, Beach,
Griffith, and Ginn had constructive notice of the decision on or shortly after August 13, 2003.
Such a conclusion is required due to the compelling magnitude and distribution of the notice to
the public in this case. For example, DHEC requires that an applicant such as TCTF publish an
advertisement in a newspaper of county and state distribution and requires that the advertisement
take the form required by Regs. 30-2.B.(7)(b).
(Name of applicant) will apply (has applied) to SCDHEC-OCRM for a permit to
(description of work) for (public/private) use, at/in (location and name of
waterway). Comments will be received by SCDHEC-OCRM, (insert Charleston
OCRM office address) until (insert date, 15 days after date of this newspaper
notice).
According to documents submitted by Beach, DHEC's records confirm that TCTF made just
such an advertisement on March 22, 2003, in the News and Courier of Charleston, South
Carolina. See Beach Brief, Exh. 2.
In addition, the May 2, 2003, Joint Public Notice issued by DHEC and the Army Corps of
Engineers gave detailed information to the public. The notice identified the applicant as TCTF
and gave the applicant's address. Moreover, the notice gave the precise location of the proposed
project as:
in TOWN CREEK (COOPER RIVER) at a location between Drum Island and the
former City of Charleston landfill at the east end of Romney Street, city and
county of Charleston County, South Carolina (Latitude- 32.814903, Longitude-
79.927139). (Emphasis in original).
It notified the public of the specifics of the proposed project:
The proposed work consists of changing the use of the existing Cooper River
Bridge Transfer Facility to allow the use of bulk and break cargo from sources
other than that associated with the bridge construction. The existing moorings
will be removed and five (5) permanent mooring buoys will be installed. The
cargo will be transferred via crane from the ship to a barge and vice versa. The
purpose of the proposed project is to provide a midstream location for deep draft
vessels to discharge cargo to shallow draft vessels for shipping to facilities
requiring shallow draft vessels.
It gave a specific means for obtaining additional details of the proposed project:
NOTE: Plans depicting the work described in this notice are available and will be
provided, upon receipt of a written request, to anyone that is interested in
obtaining a copy of the plans for the specific project. The request must identify
the project of interest by public notice number and a self-addressed stamped
envelope must also be provided for mailing the drawings to you. Your request for
drawings should be addressed to the
U.S. Army Corps of Engineers
ATTN: REGULATORY DIVISION
69A Hagood Avenue
Charleston, South Carolina 29403-5107
It notified the public that comments were solicited until "12 O'CLOCK NOON, MONDAY, 2
JUNE 2003" (emphasis in original) and that "comments received will be considered by the Corps
of Engineers to determine whether to issue, modify, condition or deny a permit for this project."
Such a public notice is one with which parties of the sophistication of Beach, Griffith, and Ginn
cannot gainsay they were unaware. Washington Association for Television and Children v.
FCC, 665 F.2d 1264 at 1271 & n.15 (D.C.Cir.1981) ("an organization represented by counsel
intimately familiar with the notice procedures employed . . . cannot be heard to say that its
failure to learn of the application was justified."). In this case, Beach, Griffith, and Ginn had
already successfully interacted with DHEC and the Army Corps on the PBC application, an
application which was itself seeking to place mooring buoys in Town Creek. Having had such
experience, the parties knew that applications seeking to place mooring buoys in the waters of
Town Creek would be made known to the public by the issuance and distribution of newspaper
advertisements and a joint public notice.
Further, Beach, Griffith, and Ginn would have known that the public notice and newspaper
advertisements would be widely disseminated. For example, 33 C.F.R. sec. 325.3(d)(1) which
controls the joint public notice of May 2, 2003 explains the following:
Public notices will be distributed for posting in post offices or other appropriate
public places in the vicinity of the site of the proposed work and will be sent to
the applicant, to appropriate city and county officials, to adjoining property
owners, to appropriate state agencies, to appropriate Indian Tribes or tribal
representatives, to concerned Federal agencies, to local, regional and national
shipping and other concerned business and conservation organizations, to
appropriate River Basin Commissions, to appropriate state and area wide clearing
houses as prescribed by OMB Circular A-95, to local news media and to any
other interested party. Copies of public notices will be sent to all parties who have
specifically requested copies of public notices, to the U.S. Senators and
Representatives for the area where the work is to be performed, the field
representative of the Secretary of the Interior, the Regional Director of the Fish
and Wildlife Service, the Regional Director of the National Park Service, the
Regional Administrator of the Environmental Protection Agency (EPA), the
Regional Director of the National Marine Fisheries Service of the National
Oceanic and Atmospheric Administration (NOAA), the head of the state agency
responsible for fish and wildlife resources, the State Historic Preservation Officer,
and the District Commander, U.S. Coast Guard.
When the facts established in this case are applied here, the public notice created a duty of
inquiry. That duty of inquiry gave constructive notice of the issuance of the TCTF permit since,
when reasonably pursued, the challengers would have inevitably obtained knowledge of the
issuance of the permit. See Regs. 30-2.F. (“The complete file on each permit application,
including all comments received, will be made available, upon request, for inspection by any
member of the general public during regular business hours at the principal office for SCDHEC-OCRM.”).
2. Private Notice
I note that Beach, Griffith, and Ginn lament the lack of private notice from DHEC or the Army
Corps for two reasons: they are adjoining landowners and they had already dealt with DHEC and
the Army Corps in the PBC permit. I do not find that private notice was required.
Under Regs. sec. 30-2.C. “[DHEC] shall within thirty days of receiving either a Joint Public
Notice or SCDHEC-OCRM permit application, notify in writing . . . all adjoining landowners.”
“Adjoining” means “abutting, contiguous, having a common boundary, in contact with, lying
next to or in contact with, meeting at some line or point of juncture, next to, touching, touching
or contiguous, as distinguished from lying near or adjacent.” 2 C.J.S. Adjoin p. 1 (1972). In this
case, the challenging parties at best occupy the position of landowners “lying near.” In fact, the
challenging parties are across the waters of Town Creek on the Charleston mainland. Thus, the
challengers have no land abutting or in contact with TCTF. Moreover, the physical location of
the activities sought to be undertaken by TCTF are even further separated from the challengers
by the Town Creek Channel. That channel is the shipping lane utilized in Town Creek. Here,
the mooring buoys sought by TCTF will be positioned on the eastern side of the channel while
the challengers’ landward location on the Charleston mainland is on the channel’s western side.
Thus, not only is there no abutting land, but also the mooring buoys themselves are separated
from the challengers by the Town Creek Channel.
Finally, no continuing duty rested with DHEC or the Army Corps to make private contacts with
Beach, Griffith, and Ginn based on the previously issued PBC permit. Rather, the TCTF
application seeks a new permit, not a continuation of the PBC permit. While both applications
involve mooring fields, the two involve different activities accomplished through different
structures. The PBC permit was needed to secure materials to construct a bridge through the use
of 13 temporary buoys in two different locations. On the other hand, the TCTF application seeks
a permit for the on-going commercial activity of cargo loading and unloading, asks for only five
buoys, requests that they be permanent, and seeks only one location for use. Accordingly, I find
no duty of private notice existed.
But, and in all events, I conclude that the central matter is not asking whether private notice was
given. Rather, the linchpin is acknowledging that what was given was public notice with such
given in a manner that was extensive and complete. When an agency has in fact provided a
broad based and comprehensive notice to the public at large, one cannot claim a lack of notice
by arguing that the agency failed to provide private notice. In other words, for a notice analysis,
not privately conveying information does not negate the fact that not only was the same
information provided publicly but also was provided in much greater detail.
Accordingly, Beach, Griffith, and Ginn had a duty of inquiry arising from the public
announcement of TCTF’s application. Had that duty been prudently pursued, Beach, Griffith,
and Ginn would have learned from either DHEC or the Army Corps the status of the TCTF
application. Such a contact would have allowed Beach, Griffith, and Ginn to provide those
agencies with specific and correct mailing addresses and to obtain written confirmation that the
TCTF permit had been issued. See Regs. sec. 30-2.E. (“Any persons wishing to receive notice of
the initial decision on a permit application shall notify the Department within this comment
period.”).
C. Conclusion
Under the facts of this case, I find that Beach, Griffith, and Ginn had constructive notice of the
DHEC decision on or within a few days after August 13, 2003. Therefore, a timely filing
requires a showing that a request for a contested case was made within 30 days "after actual or
constructive notice of the agency decision." Even assuming the date of constructive notice could
be delayed as late as August 31, 2003, any filing for a contested case would have been due no
later than September 30, 2003. Here, the earliest filing for a contested case was made by Beach.
However, that filing was not until May 2004. Such a filing is too late and deprives the ALC of
jurisdiction.
III. Order
Beach, Griffith, and Ginn did not timely file a request for a contested case hearing. Thus, the
ALC's jurisdiction has not been invoked. The Motion to Dismiss is granted.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: February 7, 2005
Columbia, South Carolina
The latter requirement of determining whether the claim is in fact a "failure to receive notice"
gives rise to the second hurdle. The party seeking the contested case cannot properly argue a
failure to receive notice if the party has "actual or constructive notice of the agency decision"
within the 90 day period. If such notice is received within the 90 day period, the party must file
the request for a contested case within 30 days "after actual or constructive notice of the agency
decision."
3. Application
In this case, the date of the agency decision is August 13, 2003. Thus, "[i]n no case" can the
filing be made beyond November 11, 2003, the 90th day. Here, Beach did not file for a contested
case until May 2004, a date well beyond the cutoff date in November 2003.
Thus, to escape the "[i]n no case" language, Beach must fall within the reprieve portion of the
rule. To do so, Beach not only must have experienced a "failure to receive notice" during the 90
day period but also a basis must exist showing that the filing should be allowed "for substantial
cause shown." On the other hand, if there is no "failure to receive notice" during the 90 day
period, (i.e. the evidence establishes that Beach received actual or construction notice of the
agency decision during the 90 days), the facts must then show that Beach filed its request for a
contested case within 30 days "after actual or constructive notice of the agency decision."
Here, TCTF believes that Beach, Griffith, and Ginn did not have a “failure to receive notice”
during the 90 days following the August 13, 2003 decision. Under the facts of this case, I agree
with TCTF. Here, Beach had constructive notice of the DHEC decision on or about August 13,
2003.
B. Constructive Notice
Our Supreme Court has defined constructive notice:
Constructive notice is a legal inference which substitutes for actual notice. It is
notice imputed to a person whose knowledge of facts is sufficient to put him on
inquiry; if these facts were pursued with due diligence, they would lead to other
undisclosed facts. Therefore, this person is presumed to have actual knowledge
of the undisclosed facts.
Strother v. Lexington County Recreation Commission, 332 S.C. 54, 504 S.E.2d 117 (1998)
Strother confirms long standing South Carolina law holding that a party has constructive notice
of facts naturally flowing from a reasonably pursued duty of inquiry. City of Greenville v.
Washington Am. League Baseball Club, 205 S.C. 495, 32 S.E.2d 777 (1945) ("Furthermore, if
there are circumstances sufficient to put the party upon inquiry, he is held to have notice of
everything which that inquiry, properly conducted, would certainly disclose."); Norris v.
Greenville, S. & A. Ry. Co., 111 S.C. 322, 97 S.E. 848 (1919) ("When a person has notice of
such facts as are sufficient to put him upon inquiry, which, if pursued with due diligence, would
lead to knowledge of other facts, he must be presumed to have knowledge of the undisclosed
facts.").
1. Public Notice
Here, given the highly specific, meaningfully detailed, and broad based notice to the public in
TCTF's March 22, 2003, advertisement in the News and Courier of Charleston, South Carolina,
and in the May 2, 2003, Joint Public Notice issued by DHEC and the Army Corps of Engineers,
Beach, Griffith, and Ginn had notice of the filing of TCTF's application. Having such
information is sufficient to place upon Beach, Griffith, and Ginn a duty of inquiry. Further, once
having such a duty, had Beach, Griffith, and Ginn "pursued with due diligence," they would have
learned of the permit's issuance shortly after the August 13, 2003 date. Therefore, Beach,
Griffith, and Ginn had constructive notice of the decision on or shortly after August 13, 2003.
Such a conclusion is required due to the compelling magnitude and distribution of the notice to
the public in this case. For example, DHEC requires that an applicant such as TCTF publish an
advertisement in a newspaper of county and state distribution and requires that the advertisement
take the form required by Regs. 30-2.B.(7)(b).
(Name of applicant) will apply (has applied) to SCDHEC-OCRM for a permit to
(description of work) for (public/private) use, at/in (location and name of
waterway). Comments will be received by SCDHEC-OCRM, (insert Charleston
OCRM office address) until (insert date, 15 days after date of this newspaper
notice).
According to documents submitted by Beach, DHEC's records confirm that TCTF made just
such an advertisement on March 22, 2003, in the News and Courier of Charleston, South
Carolina. See Beach Brief, Exh. 2.
In addition, the May 2, 2003, Joint Public Notice issued by DHEC and the Army Corps of
Engineers gave detailed information to the public. The notice identified the applicant as TCTF
and gave the applicant's address. Moreover, the notice gave the precise location of the proposed
project as:
in TOWN CREEK (COOPER RIVER) at a location between Drum Island and the
former City of Charleston landfill at the east end of Romney Street, city and
county of Charleston County, South Carolina (Latitude- 32.814903, Longitude-
79.927139). (Emphasis in original).
It notified the public of the specifics of the proposed project:
The proposed work consists of changing the use of the existing Cooper River
Bridge Transfer Facility to allow the use of bulk and break cargo from sources
other than that associated with the bridge construction. The existing moorings
will be removed and five (5) permanent mooring buoys will be installed. The
cargo will be transferred via crane from the ship to a barge and vice versa. The
purpose of the proposed project is to provide a midstream location for deep draft
vessels to discharge cargo to shallow draft vessels for shipping to facilities
requiring shallow draft vessels.
It gave a specific means for obtaining additional details of the proposed project:
NOTE: Plans depicting the work described in this notice are available and will be
provided, upon receipt of a written request, to anyone that is interested in
obtaining a copy of the plans for the specific project. The request must identify
the project of interest by public notice number and a self-addressed stamped
envelope must also be provided for mailing the drawings to you. Your request for
drawings should be addressed to the
U.S. Army Corps of Engineers
ATTN: REGULATORY DIVISION
69A Hagood Avenue
Charleston, South Carolina 29403-5107
It notified the public that comments were solicited until "12 O'CLOCK NOON, MONDAY, 2
JUNE 2003" (emphasis in original) and that "comments received will be considered by the Corps
of Engineers to determine whether to issue, modify, condition or deny a permit for this project."
Such a public notice is one with which parties of the sophistication of Beach, Griffith, and Ginn
cannot gainsay they were unaware. Washington Association for Television and Children v.
FCC, 665 F.2d 1264 at 1271 & n.15 (D.C.Cir.1981) ("an organization represented by counsel
intimately familiar with the notice procedures employed . . . cannot be heard to say that its
failure to learn of the application was justified."). In this case, Beach, Griffith, and Ginn had
already successfully interacted with DHEC and the Army Corps on the PBC application, an
application which was itself seeking to place mooring buoys in Town Creek. Having had such
experience, the parties knew that applications seeking to place mooring buoys in the waters of
Town Creek would be made known to the public by the issuance and distribution of newspaper
advertisements and a joint public notice.
Further, Beach, Griffith, and Ginn would have known that the public notice and newspaper
advertisements would be widely disseminated. For example, 33 C.F.R. sec. 325.3(d)(1) which
controls the joint public notice of May 2, 2003 explains the following:
Public notices will be distributed for posting in post offices or other appropriate
public places in the vicinity of the site of the proposed work and will be sent to
the applicant, to appropriate city and county officials, to adjoining property
owners, to appropriate state agencies, to appropriate Indian Tribes or tribal
representatives, to concerned Federal agencies, to local, regional and national
shipping and other concerned business and conservation organizations, to
appropriate River Basin Commissions, to appropriate state and area wide clearing
houses as prescribed by OMB Circular A-95, to local news media and to any
other interested party. Copies of public notices will be sent to all parties who have
specifically requested copies of public notices, to the U.S. Senators and
Representatives for the area where the work is to be performed, the field
representative of the Secretary of the Interior, the Regional Director of the Fish
and Wildlife Service, the Regional Director of the National Park Service, the
Regional Administrator of the Environmental Protection Agency (EPA), the
Regional Director of the National Marine Fisheries Service of the National
Oceanic and Atmospheric Administration (NOAA), the head of the state agency
responsible for fish and wildlife resources, the State Historic Preservation Officer,
and the District Commander, U.S. Coast Guard.
When the facts established in this case are applied here, the public notice created a duty of
inquiry. That duty of inquiry gave constructive notice of the issuance of the TCTF permit since,
when reasonably pursued, the challengers would have inevitably obtained knowledge of the
issuance of the permit. See Regs. 30-2.F. (“The complete file on each permit application,
including all comments received, will be made available, upon request, for inspection by any
member of the general public during regular business hours at the principal office for SCDHEC-OCRM.”).
2. Private Notice
I note that Beach, Griffith, and Ginn lament the lack of private notice from DHEC or the Army
Corps for two reasons: they are adjoining landowners and they had already dealt with DHEC and
the Army Corps in the PBC permit. I do not find that private notice was required.
Under Regs. sec. 30-2.C. “[DHEC] shall within thirty days of receiving either a Joint Public
Notice or SCDHEC-OCRM permit application, notify in writing . . . all adjoining landowners.”
“Adjoining” means “abutting, contiguous, having a common boundary, in contact with, lying
next to or in contact with, meeting at some line or point of juncture, next to, touching, touching
or contiguous, as distinguished from lying near or adjacent.” 2 C.J.S. Adjoin p. 1 (1972). In this
case, the challenging parties at best occupy the position of landowners “lying near.” In fact, the
challenging parties are across the waters of Town Creek on the Charleston mainland. Thus, the
challengers have no land abutting or in contact with TCTF. Moreover, the physical location of
the activities sought to be undertaken by TCTF are even further separated from the challengers
by the Town Creek Channel. That channel is the shipping lane utilized in Town Creek. Here,
the mooring buoys sought by TCTF will be positioned on the eastern side of the channel while
the challengers’ landward location on the Charleston mainland is on the channel’s western side.
Thus, not only is there no abutting land, but also the mooring buoys themselves are separated
from the challengers by the Town Creek Channel.
Finally, no continuing duty rested with DHEC or the Army Corps to make private contacts with
Beach, Griffith, and Ginn based on the previously issued PBC permit. Rather, the TCTF
application seeks a new permit, not a continuation of the PBC permit. While both applications
involve mooring fields, the two involve different activities accomplished through different
structures. The PBC permit was needed to secure materials to construct a bridge through the use
of 13 temporary buoys in two different locations. On the other hand, the TCTF application seeks
a permit for the on-going commercial activity of cargo loading and unloading, asks for only five
buoys, requests that they be permanent, and seeks only one location for use. Accordingly, I find
no duty of private notice existed.
But, and in all events, I conclude that the central matter is not asking whether private notice was
given. Rather, the linchpin is acknowledging that what was given was public notice with such
given in a manner that was extensive and complete. When an agency has in fact provided a
broad based and comprehensive notice to the public at large, one cannot claim a lack of notice
by arguing that the agency failed to provide private notice. In other words, for a notice analysis,
not privately conveying information does not negate the fact that not only was the same
information provided publicly but also was provided in much greater detail.
Accordingly, Beach, Griffith, and Ginn had a duty of inquiry arising from the public
announcement of TCTF’s application. Had that duty been prudently pursued, Beach, Griffith,
and Ginn would have learned from either DHEC or the Army Corps the status of the TCTF
application. Such a contact would have allowed Beach, Griffith, and Ginn to provide those
agencies with specific and correct mailing addresses and to obtain written confirmation that the
TCTF permit had been issued. See Regs. sec. 30-2.E. (“Any persons wishing to receive notice of
the initial decision on a permit application shall notify the Department within this comment
period.”).
C. Conclusion
Under the facts of this case, I find that Beach, Griffith, and Ginn had constructive notice of the
DHEC decision on or within a few days after August 13, 2003. Therefore, a timely filing
requires a showing that a request for a contested case was made within 30 days "after actual or
constructive notice of the agency decision." Even assuming the date of constructive notice could
be delayed as late as August 31, 2003, any filing for a contested case would have been due no
later than September 30, 2003. Here, the earliest filing for a contested case was made by Beach.
However, that filing was not until May 2004. Such a filing is too late and deprives the ALC of
jurisdiction.
III. Order
Beach, Griffith, and Ginn did not timely file a request for a contested case hearing. Thus, the
ALC's jurisdiction has not been invoked. The Motion to Dismiss is granted.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: February 7, 2005
Columbia, South Carolina |
