SC Administrative Law Court Decisions

First, the plaintiff must have suffered an 'injury in fact'‑‑an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not 'conjectural' or 'hypothetical'. Second, there must be a causal connection between the injury and the conduct complained of‑‑the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." Third, it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'

Id. at 559‑61, 112 S.Ct. at 2136 (internal citations omitted); see also Beaufort Realty Co. v. S.C. Coastal Conservation League, 346 S.C. 298, 551 S.E.2d 588 (S.C. Ct.App. 2001).

Sea Pines Ass'n for Protection of Wildlife, Inc. v. South Carolina Dept. of Natural Resources, 345 S.C. 594, 550 S.E.2d 287 (2001). Thus, each of the three parts of the test must be satisfied.

B. Framework For Analysis

1. Burden of Proof

Berger bears the burden of establishing each of the three elements of standing. Id.. Thus, “each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

2. Method of Proof

In South Carolina, a motion challenging standing is a challenge to the jurisdiction of the adjudicating body. See ALJD Rule 68 and SCRCP Rule 12(b)(1); Blandon v. Coleman 285 S.C. 472, 330 S.E.2d 298 (1985) (in the absence of standing an individual may not invoke judicial power); Lennon v. South Carolina Coastal Council, 330 S.C. 414, 498 S.E.2d 906 (Ct. App. 1998) (jurisdiction is not invoked without standing). Such challenges require the adjudicating body to examine any factual concerns upon which jurisdiction must rest with those facts determined by the evidence presented. Woodard v. Westvaco Corp., 315 S.C. 329, 332, 433 S.E.2d 890, 892 (Ct.App.1993), vacated on other grounds by 319 S.C. 240, 460 S.E.2d 392 (1995); Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69 (1999) (“motion to dismiss [for lack of jurisdiction] may be supported by, and the court may consider, affidavits or other evidence proving lack of jurisdiction.”); Glass v. Dow Chemical Co., 316 S.C. 116, 447 S.E.2d 209 (Ct. App. 1994) (“It stands to reason that the court may likewise [in addition to affidavits seeking to prove lack of jurisdiction] consider affidavits and other evidence submitted by the party opposing the motion.”).

In the instant case, a basic factual concern upon which jurisdiction rests is whether an injury in fact exists at all. In deciding if such facts have been established, the “court must evaluate the jurisdictional merits for itself and need not attach any presumption of truthfulness to the non-moving party's allegations.” Carpet Group Int'l v. Oriental Rug Importers Assoc., 227 F.3d 62, 69 (3d Cir.2000); Thornhill Publ'g Co., Inc. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979) (explaining that a motion to dismiss based on a factual attack to subject matter jurisdiction does not place any presumptive truthfulness upon the plaintiff's allegations but instead the presence of disputed material facts requires the trial court to evaluate for itself the existence of subject matter jurisdiction in fact); Mortensen v. First Federal Sav. and Loan Ass'n, 549 F.2d 884 (3rd Cir. 1977) (“That the [trial] court is free to determine facts relevant to its jurisdiction has long been clear.”).

In making its evaluation of the facts needed to establish jurisdiction, the adjudicating body has broad discretion in deciding the method by which such facts may be proven A long accepted exercise of discretion permits the determination of facts by the use of affidavits. Land v. Dollar, 330 U.S. 731, 735 n. 4 (1947) (“the court may inquire by affidavits or otherwise, into the facts as they exist.”); Berardi v. Swanson Memorial Lodge No. 48 of the Fraternal Order of Police, 920 F.2d 198 (Pa. 3rd Cir. (1990) (an opportunity to the non-moving party to present facts by affidavit in support of the jurisdictional position is appropriate).

Since an injury in fact requires the existence of required facts, determining if adequate proof of standing has been presented requires deciding what allegations Berger has made in reference to his standing and then determining if the facts support such allegations.

3. Berger’s Proof

a. Allegations

Berger presented his allegations of standing via a Petition for Administrative Review and a Prehearing Statement. When giving broad consideration to these filings, Berger’s allegations are two fold. First, the Property Damage position. He believes the permit will cause harm to him by the accumulation of water on his property and the creation of undue erosion to his property. Second, the Aesthetic and Recreational Damage. He believes the permit will cause harm to him since he uses the area that will be affected by the permit and since he believes the permit will lessen the aesthetic and recreational values he derives from the area.

b. Affidavit

Given Berger’s allegations, he must show that granting the permit will generate an injury in fact by producing an accumulation of water on and the creation of undue erosion to his property or will generate an injury in fact by causing the lessening of the aesthetic and recreational values derived by him from the area.^[1] In attempting to carry this burden, Berger filed only one affidavit and that affidavit was submitted by Berger himself. A careful reading presents the following relevant facts:

1.                  Berger is a citizen and resident of Pickens County.

2.                  He owns and resides on approximately 2.5 acres of property located at 123 West Old Pendleton Road in Central, South Carolina.

3.                  His residential property shares a 322.5 foot property line with the site of the proposed Wal‑Mart, Store #3222.

4.                  The store is to be located at the northwestern corner of the intersection of Highway 123 and Eighteen Mile Road.

5.                  Stromwater will be discharged from the proposed store site.

6.                  Berger has used and enjoyed the 18 Mile Creek watershed since living in the Clemson/Pendleton area.

7.                  He has walked along the creek, enjoyed the wildlife, scenery, and clean environment.

8.                  He and his friends frequent Nettle’s Park which is located downstream from his property and the proposed Wal‑Mart Store.

9.                  Visits to Nettle’s Park have been for exercise, recreation, leisure, and for time together to strengthen friendships.

10.              He has always enjoyed observing the wildlife and vegetation in the watershed which activity helps him feel connected to his surroundings and to the natural environment.

11.              He has watched families of groundhogs raise their young along the creek and has also enjoyed watching deer come to the water’s edge to drink.

12.              He enjoys observing and using the peaceful setting, the fresh air, and the landscape of the watershed.

13.              He frequently finds the creek area and its solitude an effective place to recreate, relax, reflect and gather his thoughts.

14.              The creek, the park, and the quality of the surrounding environment all contribute greatly to his quality of my life, his friendships, and his peace of mind.

15.              He would suffer a great loss if anything were to happen to disturb or disrupt this important eco‑system.

In addition to the facts listed above, the affidavit presents the following conclusions:

1.                  Berger’s use and enjoyment of his property and the natural resources in the Eighteen Mile Creek watershed will be harmed by the construction and operation of the proposed store.

2.                  The discharge of stormwater, sediment, hydrocarbons and other pollutants from the store site, as presently designed, will harm water quality and impair the protected uses of the tributary and main stem of Eighteen Mile Creek.

3.                  If the stormwater discharge from the proposed Wal‑Mart site caused harm to the water quality, to the stream bank and channel integrity, or to the protected recreational and habitat uses of the Eighteen Mile Creek and its watershed, Berger would no longer be able to use and enjoy these natural resources.

4.                  Berger has consulted with others with expertise in stormwater management and water quality and is informed and believes that the construction and operation of the Wal‑Mart Supercenter as presently designed will cause such harm.

These statements form the basis for deciding if an injury in fact exists.

4. Application of Berger’s Proof to the Demands of an Injury in Fact

Under the facts of this case neither the Property Damage position nor the Aesthetic and Recreational Damage position establishes an injury in fact.

a. Damage to Berger’s Property

Berger believes the permit will cause harm to him by the accumulation of water on his property and the creation of undue erosion to his property. To carry his burden, Berger must show that the injury to his property is “actual or imminent, not 'conjectural' or 'hypothetical'.” Sea Pines, supra. Here, the evidence presented fails to provide any reasonable basis for finding that water accumulation or erosion will accrue to Berger’s property.

Here, nothing in Berger’s affidavit affirmatively presents evidence supporting an allegation that the storm water permit will cause harm to his property by the accumulation of water on the property and the creation of undue erosion to his property. For example, the affidavit fails to state the means, methods, or basis upon which an accumulation of water could result or how erosion could present itself. In fact, the affidavit is silent on facts supporting the allegations of harm to Berger’s property.

However, Wal-Mart and DHEC are not silent on the issue. Wal-Mart provided an affidavit of James R. Freeland and DHEC provided an affidavit of John Richard Nuzum, both individuals holding the designation of a professional engineer. The affidavits aver that the Wal-Mart property will be “20 to 25 feet lower than the low point of Gary Berger’s property” such that before water could reach the Berger tract “it would at some point have to flow uphill.” Further, both state that “water running off this slope will drain towards the Wal-Mart site, not towards the Berger tract.” Finally, Freeland’s affidavit makes the observation that “[a]n existing tributary of Eighteen Mile Creek flows in a direction away from the Berger tract through two adjoining landowners and then moves downstream towards the Wal-Mart site.”

Accordingly, given the evidence presented, allegations of an injury to Berger’s property are merely conjectural and hypothetical. Therefore, no injury in fact is shown.

b. Damage to Aesthetic and Recreational Values

Berger believes the permit will cause harm to him since he uses the area that will be affected by the permit and since he believes the permit will lessen the aesthetic and recreational values he derives from the area. Just as with Berger’s allegation of damage to his property, the alleged loss of aesthetic and recreational values is also conjectural and hypothetical and therefore fails to satisfy the injury in fact requirement of standing. Berger presents no reasonable evidence upon which to find that he will have a loss of aesthetic and recreational values from the granting of the permit. Indeed, from the evidence presented, no reasonable basis exists for finding that Berger will be unable to continue to carry on his current activities if the permit were to be granted.

For example, no evidence shows how granting the permit will prevent Berger from walking along the creek, enjoying the wildlife and scenery, or meeting with his friends at Nettle’s Park. Likewise, no evidence explains why he will be prevented from observing the wildlife and vegetation in the watershed.

The missing facts are not supplied by the attachment to Berger’s affidavit of the DHEC document “SC Nonpoint Source Management Program.” Not only does the document speak in generalities, but also the document equivocates by explaining that runoff “may impact the water quality” (emphasis added). Further, and most significantly, nothing in the document addresses the specific site here in dispute or even the specific watershed of Eighteen Mile Creek. Therefore, such equivocation coupled with the lack of specifics as to the instant site fail to provide the factual basis needed for an injury in fact.

Moreover, at best and in all events, the DHEC document addresses harm to the environment. However, harm to the environment does not establish Berger’s standing; rather, it is harm to Berger himself that is required. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000). Such harm is not established in Berger’s affidavit.

Further, the missing facts cannot be supplied by the affidavit’s conclusions. Indeed, such statements can be afforded little weight since they are conclusory and in some instances (“I have consulted with others with expertise in stormwater management and water quality and am informed . . .”) are based upon hearsay. See Yarborough & Co. v. Schoolfield Furniture Indus., 275 S.C. 151, 153, 268 S.E.2d 42, 43 (1980) (where the court properly refused to consider attorney's affidavits because they were "conclusory in nature and based almost entirely on hearsay"). Moreover, affidavits that give unwarranted inferences are not sufficient to defeat a motion to dismiss for lack of subject matter jurisdiction. Malama Makua v. Rumsfeld, 136 F.Supp.2d 1155 (2001).

Here, Berger’s affidavit makes unwarranted inferences that his use and enjoyment of the natural resources in the Eighteen Mile Creek watershed will be harmed by the construction and operation of the proposed store; that the discharge of stormwater, as presently designed, will impair the protected uses of the tributary and main stem of Eighteen Mile Creek; and that if the stormwater discharge from the proposed site causes harm to the water quality, to the stream bank and channel integrity, or to the protected recreational and habitat uses of the Eighteen Mile Creek and its watershed, Berger will no longer be able to use and enjoy these natural resources. Such assertions are devoid of supporting facts and amount to mere speculation. Sea Pines Ass'n for Protection of Wildlife, Inc. v. South Carolina Dept. of Natural Resources, 345 S.C. 594, 550 S.E.2d 287 (2001) (“Appellants presented no evidence their opportunity to view and enjoy the deer would be diminished by the permits [thus establishing [t]]he Appellant's injury is conjectural because it is not certain that reducing the size of the herd would decrease the number of deer actually viewed by the residents each day.”); Sierra Club v. Robertson, 28 F.3d 753 (8th Cir.1994) (mere assertions of potential future injury will not satisfy the injury-in-fact requirement); Whitmore v. Arkansas, 495 U.S. 149 (1990) (before an injury which is yet to occur can constitute an injury-in-fact, the injury must be "certainly impending").

III. Order

Having no injury in fact sufficient to support standing, the Motion to Dismiss is GRANTED.

AND IT IS SO ORDERED

______________________

RAY N. STEVENS

Administrative Law Judge

Dated: March 4, 2003

Columbia, South Carolina