ORDERS:
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
STATEMENT OF THE CASE
This matter came before the Administrative Law Judge Division on January 23, 2002, for a hearing on a Motion to
Dismiss filed by Respondent Department of Health and Environmental Control, Office of Ocean and Coastal Resource
Management (OCRM) on October 1, 2001. The motion alleged the Petitioners do not have standing to proceed with this
case and therefore, the matter should be dismissed. Petitioner Solomon had a conflict which prevented her from attending
the hearing. However, she did not request a continuance.
The matter involves three (3) permits issued by OCRM to Respondent Mead for the building of docks . The three (3)
permits are: Permit OCRM-01-202-R, lot 47; Permit OCRM-01-203-R, lot 48; and Permit OCRM -01-0232-R, lot 49. All
three (3) requests for contesting case hearings on the permits were consolidated into this one cased by order dated
September 6, 2001.
FACTUAL BACKGROUND
Petitioners are residents of Mt. Pleasant, South Carolina. They have residences within the Dunes West subdivision. They
have waterfront property on Toomer Creek with docks and boats. Respondent Mead received three permits for private
recreational docks in the Andover Subdivision of the Park West community. The permits are for docks to be built on a
tributary of Toomer Creek. The Petitioners live across Toomer Creek from the mouth of the tributary. Petitioners objected
to the construction of those docks and appealed the permits. They allege the docks will impede navigation, harm the
environment and limit wildlife in the area.
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. 2001); 23A S.C. Code Ann. Regs. 30-6(B). Otherwise, the Petitioners would not have
standing to bring an action.The Petitioners argue they have standing because they live there and use the tributary on which the docks would be placed.
They contend the docks would impede navigation. Further, they claim the docks will kill the marsh grass. In a recent case
on the issue, 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., 345 S.C. 594, 550 S.E. 2d 287 (2001). 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, 550 S.E. 2d at 291(citing Lujan, 112 S.Ct.at 2136).
In this case here has been no evidence of any injury which is concrete or particularized. All of the objections are both
general and hypothetical. There is no evidence that the Petitioners would have a more difficult time navigating the creek
after the docks are built. The Petitioners allege that navigation might be impeded as shown by the measurements Mr. Price
has made. However, his filings testimony reveals that only at high tide is the tributary navigable. There is little time he is
able to use the tributary now and the erection of the docks would not impede him further during that period of time. There
has been no evidence as to how the docks will reduce the amount of wildlife to watch. Therefore, there has been nothing
shown as to how Petitioners' recreational or aesthetic interests would be injured.
There is no basis on which to find these Petitioners have standing.
ORDER
THEREFORE, IT IS HEREBY ORDERED that the Respondent's Motion to Dismiss is GRANTED and this case is
hereby ended.
AND IT IS SO ORDERED.
____________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
April 30, 2002
Columbia, South Carolina |