ORDERS:
ORDER
A hearing was held in this matter on November 5, 2002, at the Administrative Law Judge Division (Division). This Division issued a Final Decision remanding this case to the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM or Department) on March 7, 2003. Thereafter, Respondent OCRM filed a Motion to Reconsider, Alter or Amend and for a New Trial on March 19, 2003. Respondent Mappus also made a Motion to Reconsider on other grounds.
MOTION FOR NEW TRIAL
Respondent OCRM seeks a “new trial” based upon after-discovered evidence. Administrative Law Judge Division Rule 29 (D) sets forth that “[a]ny party may move for reconsideration of a final decision of an administrative law judge in a contested case, subject to the grounds for relief set forth in Rule 60(B)(1 through 5), SCRCP. . . .” SCRCP Rule 60(B)(2) provides that a motion for reconsideration may be based upon “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).” “A party moving for a new trial on after-discovered evidence must show that the evidence has been discovered since the trial; that it is not merely cumulative or impeaching, but is material to the issue and such as would probably change the result; and that it could not have been discovered before the trial by the exercise of due diligence.” Mutual Sav. & Loan Ass'n v. Monarch Ins. Co. of Ohio, 248 S.C. 272, 282, 149 S.E.2d 633, 638 (1966). In the Final Decision in this case, I ordered that OCRM either have the Atkinson dock removed from its current location or approve the Petitioners’ permits to the Bohicket River. Respondent OCRM asserts that after receiving that Final Decision, a staff member contacted Lawrence Atkinson to inform him of the decision. Mr. Atkinson then supplied an undated written “Recommendation” by a Coastal Council hearing officer and a subsequent letter from Steve Moore, Permit Administrator for the South Carolina Coastal Council. OCRM did not have those documents in its possession. The Petitioners contend that these documents will not change the results of the hearing and that this evidence could have been discovered if OCRM had exercised “due diligence.”
Change of Outcome
Interestingly, at the hearing in this case, the Petitioners sought to have OCRM judicially estopped from taking a position different from the position it took in the enforcement action. I found that:
although the subject matter is related, the former factual assertion that the dock was not built as permitted and the ensuing enforcement action is a different proceeding than the contested case before me today, involving different parties. More importantly, it is not clear from the record what the ultimate resolution of the Atkinson dock matter was. In addition, the circumstances have changed since the enforcement action which took place in the 1980s.
That holding is applicable to the issue at hand. The Final Decision in this case was not based upon the enforcement action. The facts concerning that action were amplified in the Final Decision as an explanation of the background of this case. The only Finding of Fact that conclusively addressed the enforcement decision in this case was the finding: “In fact, in the enforcement action against Atkinson, OCRM determined that the Atkinson dock presented an impediment to navigation in the adjacent tributary.” That finding was merely a reference that the enforcement action supported the prior determination that the Atkinson dock was an impediment to navigation. Moreover, as noted in the Final Decision, the mouth of the tributary has changed over the years. Consequently, any finding made years earlier would not carry much significance.
Additionally, even if the documents offered by OCRM were given weight, that evidence would not change the findings in the Final Decision. At the enforcement hearing, Richard Chinnis, the Permit Coordinator for the Coastal Council, testified that the Atkinson dock was an impediment to navigation and impeded access to the Petitioners’ tributary. His testimony supports the determination in the Final Decision. Furthermore, the hearing officer’s findings were not binding upon the Coastal Council. Only the Coastal Council Board could issue binding Findings of Fact and the parties do not contend that the Coastal Council Board ever made any findings in this case. Rather, after the hearing officer issued her “Recommendation,” the Department’s Permit Administrator issued a letter authorizing the dock “as built” and closed the enforcement file without explanation. The Department’s decision, especially upon reading the “Recommendation,” could have been made for a myriad of reasons. For instance, the hearing officer’s “Recommendation” found that “the dock does not impede navigation in the adjacent tributary which is only navigable at high tide.” In other words, since the tributary was not legally navigable, the dock could not impede navigation. Therefore, the Department’s decision and the hearing officer’s “Recommendation” do not present evidence that would change the outcome of the Final Decision.
Newly Discovered Evidence
The Department designated Curtis Joiner under SCRCP 30(b)(6) to give a deposition concerning the Department’s files in this case. Mr. Joiner testified that OCRM was unable to locate any records concerning an enforcement action against Lawrence Atkinson. The Petitioners argue that the Department’s after-discovered evidence is not admissible because Mr. Joiner could have contacted either the Army Corps of Engineers or Mr. Atkinson to obtain the documents.
South Carolina Rules of Civil Procedure provide that a person designated to give a Rule 30(b)(6) deposition must “testify as to matters known or reasonably available to the organization.” Under that rule, OCRM was required to search its own records to provide the Petitioners with relevant information. Clearly, Rule 30(b)(6) does not require the Department to seek out a third party in providing such information. Therefore, I find that OCRM complied with Rule 30(b)(6). However, the issue here is not whether the Department complied with the discovery rules. Here, the Department seeks to introduce the evidence itself. Accordingly, the issue is whether this case should be “retried” because the Department could not have discovered the above evidence by the exercise of “due diligence.” “Due diligence” is defined as:
Such measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances, not measured by any absolute standard, but depending on the relative facts of the special case.
Black's Law Dictionary 457 (6th ed. 1990). Here, the Department knew that an enforcement action had been brought concerning the placement of Atkinson’s dock. Though Atkinson was not a party to this action, the resolution of that enforcement action was clearly an issue in this case and, in fact, one of subjects of the 30(b)(6) deposition. Therefore, I find that under the specific facts of this case, the Department had an affirmative duty to inquire of Atkinson about the resolution of the enforcement matter.
MOTION TO RECONSIDER, ALTER OR AMEND
Respondent OCRM requests that the Final Decision be reconsidered because the Court concluded that the Atkinson dock constitutes such an impediment to navigation that the Petitioners should be allowed to cross a navigable creek. In order to clarify my conclusions in the Final Decision, I set forth the following:
Though the waters of the tributary in front of the Petitioners’ property are navigable, the waterway itself is not navigable because the mouth of the tributary cannot safely be entered at the ordinary stages of the tide. This case presents exceptional facts because the safety of the navigation varies depending upon the winds, tide, currents, etc. Nevertheless, because these variations are unpredictable, ordinary navigation is rendered useless. For instance, the Petitioners, upon exiting the tributary, would potentially be placed in a dangerous predicament when attempting to return to their properties simply because of a man-made obstacle that has been placed in the middle of the tributary’s natural water flow.
ORDER
IT IS THEREFORE ORDERED that Respondent OCRM’s Motion for New Trial is denied.
IT IS FURTHER ORDERED that the Final Decision in this case is amended as set forth above and as follows:
The Petitioners’ permits to the Bohicket River are approved.
AND IT IS SO ORDERED.
______________________________
Ralph King Anderson, III
Administrative Law Judge
April 23, 2003
Columbia, South Carolina
Respondent Mappus’ Motion generally argued against the result of the decision. He also offered facts that were not presented at the hearing in this matter without establishing any evidentiary basis for their introduction. I therefore have not addressed his Motion.
The Petitioners also contend that OCRM’s evidence should not carry any evidentiary weight because the documents themselves show that the other parties were not notified of the Coastal Council’s staff’s decision. I have not addressed this issue because I find that an evidentiary hearing would be needed to clarify this issue and such a hearing is rendered unnecessary by the findings in his Order.
“The test of navigability is not whether a waterway is accessible at all times. Rather, the test is whether it is accessible ‘at the ordinary stage of the water.’ ” Hughes v. Nelson, 303 S.C. 102, 106, 399 S.E.2d 24, 26 (1990) (quoting State v. Columbia Water, 82 S.C. 181,189, 63 S.E. 884, 888 (1909)).
This finding is limited solely to the issue of whether this evidence can be offered after the record has been closed. I do not find by any means that the Department failed to effectively prosecute its case. In fact, as explained above, this evidence would not have effected the Findings of Fact in the Final Decision and only would have resulted in a Final Decision specifically approving the docks to go to Bohicket River.
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