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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Sue A. O'Sullivan vs. SCDHEC et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Sue A. O'Sullivan

Respondent:
South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management and Gary L. Rowe
 
DOCKET NUMBER:
01-ALJ-07-0491-CC

APPEARANCES:
n/a
 

ORDERS:

ORDER OF DISMISSAL

This matter is before the Administrative Law Judge Division (ALJD) as a contested case brought by Petitioner Sue A. O'Sullivan to challenge the decision of the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management (OCRM) to issue a permit to Respondent Gary L. Rowe (Respondent) for the construction of a private dock on the Okatie River in Beaufort County. On November 30, 2001, Respondent moved to dismiss this case on the ground that Petitioner lacks standing to challenge his permit. Petitioner has not filed a response to this motion.

In her request for a contested case hearing dated October 8, 2001, Petitioner cited the following as the basis for her challenge to Respondent's permit:

1. The proposed dock is located over a major bed of cultivated oysters that are under lease.

2. OCRM failed to make a field inspection of the proposed project and assess ecological resources and address the cumulative impacts of dock developments in this area.

3. OCRM failed to consider consistency [sic] with the goals and objectives of the Special Area Management Plan and the Beaufort County dock ordinance.



(Letter from Petitioner to OCRM of 10/8/01.) Petitioner's Prehearing Statement contains an elaboration of these grounds: "Construction of this dock and associated structures will have adverse effects. The Petitioner will show that the dock will seriously impact the shellfish in the area, have other environmental consequences and cumulative impacts not allowed by law." (Pet'r Prehearing Statement ¶ 5.) Respondent contends that Petitioner's allegations are merely "general" and "hypothetical" in nature, and thus fail to articulate the sort of concrete and particularized injury to Petitioner that would confer upon her standing to bring this contested case. (Resp't Mot. to Dismiss of 11/30/01, at 2.) After reviewing the pleadings and motions filed in this matter and the applicable law, I find that Petitioner does not have standing to pursue this contested case and that this case must, therefore, be dismissed.

"A party may appeal an administrative decision if he has standing to sue." 6 Jacob A. Stein et al., Administrative Law § 50.01, at 50-3 (Supp. 2000). Accordingly, a person may not challenge OCRM's decision to issue a permit unless that person is "adversely affected" by the granting of the permit and thus has standing to bring the challenge. S.C. Code Ann. § 48-39-150(D) (Supp. 2000); 23A S.C. Code Ann. Regs. 30-6 (Supp. 2000). (1) In analyzing questions of standing, the South Carolina Supreme Court has adopted the three-prong test enunciated by the United States Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). See Sea Pines Assoc. for the Prot. of Wildlife, Inc. v. S.C. Dep't of Natural Res., 345 S.C. 594, 550 S.E.2d 287 (2001). Under this test, a party must satisfy the following requirements in order to establish standing:

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 601, 550 S.E.2d at 291 (quoting Lujan) (alteration in original).

In the case at hand, Petitioner cannot satisfy the first prong of the Lujan test. She has not articulated a legally protected interest either in the oysters surrounding Respondent's proposed dock or in OCRM's decision-making process to which she might suffer an injury in fact. First, while "an injury to one's aesthetic and recreational interests in enjoying and observing wildlife is a judicially cognizable injury in fact," Id. at 602, 550 S.E.2d at 291-92, such an alleged injury must, nevertheless, be concrete and particularized to confer standing upon a party. Thus, even if Petitioner can be understood to be asserting such an interest in the oysters near Respondent's dock, she has only put forth a generalized concern for damage to the oyster bed, and has not shown how harm to the oysters would "affect [her] in a personal and individual way" so as to grant her standing to bring this case. Id. Second, "[w]hat may be perceived as another interest, [a] concern with assuring the Agency fulfills its governmental obligation to carry out the state's policy regarding property in the coastal zone, is not a property interest recognized as sufficiently individual to provide standing." Ogburn-Matthews v. Loblolly Partners, 332 S.C. 551, 565-66, 505 S.E.2d 598, 605 (Ct. App. 1998). (2) Accordingly, Petitioner's concerns with the process by which OCRM reached its decision to grant Respondent's permit are not sufficiently individualized to provide her with standing to challenge the permit. (3)

Petitioner has failed to allege or otherwise establish that OCRM's decision to grant Respondent's permit has resulted in a particularized injury or threat of injury to a legally protected interest. Petitioner has, therefore, failed to establish standing to bring this challenge to Respondent's permit.

ORDER

IT IS THEREFORE ORDERED that Respondent Gary L. Rowe's Motion to Dismiss for Petitioner's lack of standing is GRANTED.

AND IT IS SO ORDERED.





______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667



January 18, 2002

Columbia, South Carolina

1. The requirement that a person bringing a contested case be "adversely affected" by the agency's decision is essentially synonymous with traditional standing requirements. See, e.g., Dir., Office of Workers' Comp. Programs, Dep't of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 126 (1995) ("The phrase 'person adversely affected or aggrieved' is a term of art used in many statutes to designate those who have standing to challenge or appeal an agency decision, within the agency or before the courts."); Morris v. Gressette, 425 F. Supp. 331, 339 (D.S.C. 1976) ("The only party which could be 'adversely affected' by the Attorney General's determination . . . would be the State or political subdivision, whose proposed change was denied clearance; and it would be only that State or political subdivision which would have standing to invoke judicial review.")

2. See also Beaufort Realty Co. v. Beaufort County, 346 S.C. 298, 301, 551 S.E.2d 588, 589 (Ct. App. 2001) ("[I]t is 'substantially more difficult' to establish standing where a challenge to the government action is brought by one who is not the object of the action, but rather seeks to challenge government action or inaction because of alleged illegality.") (citing Lujan).

3. See Beaufort Realty Co., 346 S.C. at 301, 551 S.E.2d at 589 (A party "has standing only if it alleges that it . . . will suffer an individualized injury; a mere interest in a problem is not enough.") (quoting Carolina Alliance for Fair Employment v. S.C. Dep't of Labor, Licensing & Regulation, 337 S.C. 476, 523 S.E.2d 795 (Ct. App. 1999)).


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