ORDERS:
ORDER OF DISMISSAL
STATEMENT OF THE CASE
This matter comes before the South Carolina Administrative Law Judge Division on a motion of the Respondent South
Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM).
OCRM filed a Notice of Motion and Motion to Dismiss on September 20, 2001, on the ground that the Petitioners lack
standing to pursue this contested case. Petitioner Smiley responded to the motion on October 8, 2001 and opposed the
dismissal. Petitioner Wiseman did not file a response. This motion is decided without hearing.
FACTUAL BACKGROUND
On February 8, 2001, OCRM issued permit no. OCRM-00-715-E to Respondent Wild Dunes Association. The permit
allowed Wild Dunes to conduct beach sand scraping at Dewees Inlet, Wild Dunes, Isle of Palms, South Carolina. The
purpose was to excavate sand from this portion of the intertidal beach and transport it to a part of the beach suffering
erosion problems. The permit did not apply to properties from 53rd Avenue to 57th Avenue since that part of the beach is not
part of Wild Dunes Community Association. The permit imposed several other special conditions, such as requiring no
sand may be scraped within 600 feet of existing structures, and all sand must be scraped from the intertidal beach, below
the high tide wave uprush line. It is from the granting of this permit that the Petitioners requested a contested case hearing.
ANALYSIS
The Respondents argue that the present action should be dismissed because the Petitioners do not have standing to pursue
the action. I agree.
The Administrative Law Judge Division may only hear those cases that present a legitimate justiciable controversy. In order
to revoke a permit issued by OCRM, the Petitioners must have been adversely affected by the granting of the permit. S.C.
Code Ann. §48-39-150 (Supp. 2000); 23A S.C. Code Ann. Regs. 30-6. Otherwise, the Petitioners would not have standing
to bring an action. Petitioner Smiley claims standing in this matter because he is regularly uses and enjoys jogging on the portion of the beach
at issue. As previously stated, Petitioner Wiseman did not file a response to the motion, but in his prehearing statement, he
claims standing because he is a naturalist and enjoys the aesthetic resources the beach offers. This year the South Carolina
Supreme Court confirmed that, "...South Carolina case law has specifically recognized an injury to one's aesthetic and
recreational interests in enjoying and observing wildlife is a judicially cognizable injury in fact." Sea Pines Ass'n, for the
Protection of Wildlife, Inc., et al. vs. South Carolina Department of Natural Resources and Community Associates, Inc.,
Op. No.25326 (S.C.Sup.Ct. filed July 23, 2001)(Shearouse Adv.Sh. No.26 at 84, 90).
However, the Court went on to find that an interest is not enough. The agency action must cause an injury to that particular
person. They applied the 3-prong test enunciated in Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992):
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.'
Sea Pines at pp. 89-90 (citing Lujan, 112 S.Ct.at 2136).
In this case the Petitioners do not get past the first prong. There has been no evidence of any injury which is concrete or
particularized. All of the objections are both general and hypothetical. There has been no evidence that because of the
excavation it would be impossible to jog on that portion of the beach. Temporarily, one can see how the heavy equipment
and moving of sand might cause Petitioner Smiley to make an occasional detour, but there is no evidence that it would
become impossible as he states in his Affidavit filed with this Division on March 29, 2001. The aesthetic concerns seem to
arise from the fact that there will be heavy equipment and sand movement on the beach. This is without merit. OCRM is
responsible for regulation and management of the coastal portions of this state. To find that necessary work being done to
protect the beach will temporarily cause interference of beach views is wholly unreasonable. Petitioner Wiseman also
alleges certain animal and plant species will be affected. However, he offers no evidence of that and offers no evidence of
how that would affect him any more than it would a member of the general public. A private individual cannot protest the
action of an administrative agency unless he or she has sustained or is in danger of sustaining a direct injury which is more
than a general concern, one that would be common to all members of the public. Citizens for Lee County, Inc. v. Lee
County, 308 S.C. 23, 416 S.E.2d 641 (1992).
The planned scraping and renourishment of the beach should actually allow Petitioner Smiley to continue to enjoy the very
activity which he claims gives him standing, i.e., jogging on that beach. Thus, he has failed to show any particularized
injury. This is analogous to the situation in Sea Pines. There the deer watchers did have an interest in watching wildlife
which would have conferred standing, except they failed to demonstrate that their watching would be diminished by the
planned thinning of the deer population.
There is no basis on which to find these Petitioners have standing.
ORDER
THEREFORE, IT IS HEREBY ORDERED that Respondent OCRM's Motion to Dismiss is hereby GRANTED.
IT IS ALSO ORDERED that the above-captioned case is hereby DISMISSED WITH PREJUDICE.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
October 25, 2001
Columbia, South Carolina. |
