ORDERS:
ORDER
A motions hearing was conducted on July 9, 1998, to consider several prehearing motions
in this contested case matter, including a Motion to Intervene and Motions for Summary Judgment.
The contested case is before me upon petitions filed by Petitioners Louis C. Tisdale, Jr. and James
W. Smiley to challenge the issuance of proposed permit OCRM 97-1W-330-P by Respondent
South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal
Resource Management ("OCRM") to the Respondent Town of Sullivan's Island ("Town") to repair
groins and excavate 25,000 cubic yards of beach sand on Sullivan's Island on and adjacent to
Breach Inlet.
OCRM proposes to issue the Town a permit to rehabilitate three groins on the northeastern
end of Sullivan's Island. The purpose of the permit is to stabilize the area and to decelerate or
reverse the erosional trend caused by shifts in Breach Inlet and its shoal system. Respondents
assert that beachfront erosion threatens homes and unimproved property. The permit allows the
Town to rehabilitate four groins, excavate 25,000 cubic yards of beach sand from an accreted sand
shoal near the groins and to spread the sand between the groins. The Petitioners challenge the
OCRM permit, claiming the proposed activity is prohibited by law and will interfere with their use
and enjoyment of the beaches of Sullivan's Island.
The Town moves to dismiss the action and alternatively moves for summary judgment,
challenging the Petitioners' standing to bring this action. Petitioners also move for summary
judgment on the issue of OCRM's legal authority to issue permits for the renovation of groins.
Both motions are addressed herein, but the standing issue is dispositive.
At the hearing, Fletcher C. Derrick, Jr., Martha L. Derrick, Dennis J. Fisher, Terry M.
Fisher, Julius H. Weil, Jr., Diane L. Weil, Peter C. DeVito, Pamela M. DeVito, John A. Barry, Jr.,
Helen B. Barry, John Avinger and Angelin F. Avinger ("Intervenors"), all property owners of
beachfront property adjacent to the proposed activity, were admitted as intervening parties and
joined Respondents in their arguments against Petitioners on all pending motions.
For the reasons set forth below, Respondents' Motion for Summary Judgment is granted,
Petitioners' Motion for Summary Judgment is denied, and this contested case is dismissed.
RESPONDENTS' MOTION FOR SUMMARY JUDGMENT
Summary judgment is proper where there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP; Tupper v.
Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997). Once the movant meets the initial
burden of showing an absence of evidentiary support for the opponent's case, the opponent must
present specific facts showing a genuine factual issue for trial. Rule 56(e), SCRCP; SSI Med.
Servs., Inc. v. Cox, 301 S.C. 493, 392 S.E.2d 789 (1990). In making its determination, the court
must view the evidence in the light most favorable to the party opposing the motion. Rothrock v.
Copeland, 305 S.C. 402, 409 S.E.2d 366 (1991).
The object of summary judgment "is not to replace conclusory allegations of the complaint
or answer with conclusory allegations of an affidavit." Lujan v. National Wildlife Fed., 497 U.S.
871, 889 (1990) ("Lujan I"). Rather, summary judgment enables "a party who believes there is no
genuine dispute as to a specific fact essential to the other side's case to demand at least one sworn
averment of that fact before the lengthy process of litigation continues." Id. at 888-89. "In
response to a summary judgment motion . . . the plaintiff can no longer rest on . . . 'mere
allegations,' but must 'set forth' by affidavit or other evidence 'specific facts' . . . which for
purposes of the summary judgment motion will be taken to be true." Lujan II at 561 [quoting Fed.
R. Civ. P. 56(e)]; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); First Nat'l Bank of
Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968).(1) Importantly, "[i]t will not do to 'presume'
the missing facts because without them the affidavits would not establish the injury that they
generally allege." Lujan I at 889.(2) "When the nonmoving party bears the burden of proof at trial,
summary judgment is warranted if the nonmovant fails to 'make a showing sufficient to establish
the existence of an element essential to [its] case.'" Nebraska v. Wyoming, 507 U.S. 584, 590
(1993), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In its motion for summary judgment, the Town argues that Petitioners lack standing to
challenge the permit because they have failed to establish sufficient injury in fact. In response,
Petitioners submitted affidavits setting forth their use of the beach and expected injury from the
proposed activity.
As an administrative tribunal, the ALJD must hear only those cases which present a
legitimate justiciable controversy. For a challenge to an OCRM permit decision to be a
justiciable controversy, at least one petitioner must be a person adversely affected by the granting
of the permit. See S.C. Code Ann. § 48-39-150 (Supp. 1997); 23A S.C. Code Ann. Regs. 30-6(B)
(Supp. 1997). That is, a petitioner must have standing to prosecute the administrative matter.
Lennon v. S.C. Coastal Council, Ct. App. Op. No. 28-12, filed March 23, 1998; See Friends of
The Earth, Inc. v. Gaston Copper Recycling Corp., 1998 WL 327054, Filed May 29, 1998 (D.S.C.)
("... [T]he phrase 'may be adversely affected' is inherently limited by the injury prong of the
constitutional test for standing."). "Standing is 'a personal stake in the subject matter of a
lawsuit.'" Newman v. Richland County Historic Preservation Commission, 325 S.C. 79, 480
S.E.2d 72, at 74 (1997); Bailey v. Bailey, 312 S.C. 454, 441 S.E.2d 325 (1994).
It is established law in South Carolina that a private individual is not entitled to invoke
judicial power to determine the validity of executive or legislative action unless he can show that
he has sustained, or is in immediate danger of sustaining, a resulting direct injury of a personal
nature which is more than a mere general interest common to all members of the public. Citizens
for Lee County, 308 S.C. 23, 416 S.E.2d 641 (1992); Florence Morning News v. Building Comm'n
of the City & County of Florence, 265 S.C. 389, 218 S.E.2d 881 (1975); Johnston v. City of Myrtle
Beach, 330 S.E.2d 321, 285 S.C. 453 (Ct. App. 1985). The United States Supreme Court utilizes
a three-part test to determine whether a party has standing:
[T]he irreducible constitutional minimum of standing contains three elements.
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. . . . Third, it must be
"likely," as opposed to merely "speculative," that the injury will be "redressed by
a favorable decision."
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internal citations omitted) ("Lujan II").
"When the suit is one challenging the legality of government action or inaction, the nature
and extent of facts that must be averred . . . in order to establish standing depends considerably
upon whether the plaintiff is himself an object of the action (or forgone action) at issue." Id., at
561-62 (internal citations omitted). In the present case, Petitioners are private citizens who use and
enjoy the beaches of Sullivan's Island. They do not live on Sullivan's Island nor do they own
beachfront property on Sullivan's Island. Petitioners are not themselves the subject of the State's
administrative action; they oppose the issuance of the proposed permit by OCRM to the Town
because of the perceived detrimental impact the permitted activity will have on their use and
enjoyment of the beach. Because Petitioners are not themselves the object of the government
action or inaction they seek to challenge, standing is not precluded, but it is "substantially more
difficult" to establish. Id. at 561-62.
For Petitioners to have standing, they each "must demonstrate that the behavior of a
[respondent] directly affects a tangible, personal interest." Ann E. Carlson, Standing for the
Environment, 45 UCLA L. Rev. 931, 950 (1998).
Courts will deny standing unless the plaintiff can show injury to an identifiable
interest. The injury must be concrete, whether actual or threatened, in order to give
it the structure required for judicial resolution. The Supreme Court has held than
an interest which is held in common by all members of the public may not form the
basis for standing, because an injury shared by all is necessarily too abstract. Injury
to such a widespread interest must represent more than a generalized grievance
pervasively shared, and best addressed in the elected branches.
Timothy Belevetz, The Impact on Standing Doctrine in Environmental Litigation of the
Injury in Fact Requirement in Lujan v. National Wildlife Federation, 17 Wm. & Mary J.
Envtl. L. 103, 110 (1992).
Under the Lujan II three-prong test for standing, Petitioners must first establish an "injury
in fact" -- an invasion of a concrete and particularized legally protected right or interest. That is,
they must establish a personal interest and an impending threat to that interest. The beaches of
Sullivan's Island are public lands, available to all members of the general public to enjoy for
recreational and aesthetic purposes. Petitioner Smiley avers that the proposed groin reconstruction
would adversely affect his use of the public beach by making it more difficult for him to engage
in the recreational and rehabilitative activities he currently engages in, such as walking, jogging,
and bird watching. Smiley is partially disabled with paralysis of muscles in his legs and follows
a regular rehabilitative regimen of " . . . jogging and walking on the flat hard public beaches of
Sullivan's Island and the Isle of Palms." (Smiley Aff. at 1) Tisdale's allegations of a particularized
interest or injury are less specific:
My access will be impeded on the Sullivans Island public beach at the point of
delivery of 1400 tons of stone obstacle and at the designated sand mining pit. I will
view the aesthetic degradation attendant to the type of work deemed essential to
keep dry the cottages of today's intervenors. . . . I will be adversely affected at
whatever point in time 1400 tones of stone are installed on the Sullivans Island
public beach at the designated permit site.
(Tisdale Aff. at 1)
Other than the use of the beach for rehabilitative purposes by Smiley, neither Smiley's nor
Tisdale's interests in the Sullivan's Island beach is any different than that of any other citizen of
the state.(3) Tisdale clearly fails to establish the individualized interest of a personal nature in the
Sullivan's Island beach which is more than a mere general interest common to all members of the
public required by Lujan II or the South Carolina cases of Citizens for Lee County, supra, et al.
Smiley barely meets the standard.
The fatal flaw in Petitioners' attempt to establish standing lies in their failure to establish
the causal connection between the injury and the challenged governmental action.(4) Generic claims
of harm do not satisfy the injury requirement for standing. Public Interest Research Group of
N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111 (3d Cir. 1997) (hereinafter referred to as
"PIRG"). At the summary judgment stage, there must be a factual showing of perceptible harm.
Merely affirming an injury is not enough; standing analysis does not involve an "ingenious
academic exercise in the conceivable." United States v. Students Challenging Regulatory Agency
Procedures (SCRAP), 412 U.S. 669 (1973). Without showing that the proposed project will pose
a threat to their recreational and other interests asserted, the injury requirement is unmet. See
PIRG.
The Petitioners alleged an impending injury (injury to aesthetic, conservational, and
recreational interests) and a cause of that injury (the proposed renourishment project), but there
have been no affirmations specifying how the "cause" connects to the "injury." It is not enough
to merely state that the proposed project will deprive Petitioners of access to, and use of, the beach.
Specific facts must be set forth to support such conclusory allegations. Petitioners have failed to
do so. They have offered absolutely no allegations of how, by what means, in what manner, or to
what extent the proposed activity will adversely affect their use of the beach.(5)
Because Petitioners offer only conclusory allegations unsupported by specific facts, they
fail to make a showing sufficient to establish the existence of an element essential of standing.
Lujan I. Because the court cannot presume the missing facts, and without them the affidavits do
not establish the injury that they generally allege, summary judgment is warranted. Lujan I;
Nebraska v. Wyoming, supra.
For the foregoing reasons, I conclude as a matter of law that Petitioners lack standing and
Respondents are entitled to summary judgment and dismissal of this contested case.
PETITIONERS' MOTION FOR SUMMARY JUDGMENT
Although Respondent's Motion for Summary Judgment is dispositive of this case,
Petitioners' Motion for Summary Judgment on the basis that the proposed project is an unlawful
activity is considered here. Petitioners assert that the proposed reconstruction and enlargement of
groins would violate S.C. Code Ann. § 48-39-290(A) of the South Carolina Beachfront
Management Act, which bans, with some exceptions, any new construction or reconstruction
seaward of the baseline.(6) None of the statutory exceptions specifically include groins.
In South Carolina Coastal Conservation League v. South Carolina Dep't of Health and
Envtl. Control, 97-ALJ-07-0087-CC (June 16, 1998), the authority of OCRM to issue groin
permits was similarly challenged. In that case, Administrative Law Judge Kittrell concluded that
OCRM had the statutory authority to authorize the construction and refurbishment of groins, that
S.C. Code Ann. § 48-39-290 (A) (Supp. 1997) did not prohibit the issuance of a permit to build
groins, and that 23AS.C. Code Ann. Regs. 30-12(N)(1) (Supp. 1997) was valid. I generally concur
with Judge Kittrell's Order, and incorporate by reference its applicable portions.
The South Carolina Coastal Zone Management Act, S.C. Code Ann. §§ 48-39-10 et seq.
(Supp. 1997) ("CZMA"), as amended by the Beachfront Management Act, S.C. Code Ann. §§ 48-39-250 et seq. (Supp. 1997) ("BMA"), authorizes OCRM to grant permits for the renovation of
groins. Petitioners argue that the permit insults the policy of the CZMA and BMA of prohibiting
construction on or near the active beach to encourage development to retreat from the shoreline.
See S.C. Code Ann. §§ 48-39-250, 48-39-260, 48-39-280(A); 23A S.C. Code Ann. Regs. 30-1(B)
(Supp. 1997) ("The 1977 Coastal Zone Management Act, as amended, rejects construction of new
erosion control devices and adopts retreat and renourishment as the basic state policy towards
preserving and restoring the beaches of our State"). The permit, however, complies with the
CZMA and the BMA as neither statute contains any verbatim prohibition against the construction
of "groins." If a statute's language is plain and unambiguous, and conveys a clear and definite
meaning, there is no occasion for employing rules of statutory interpretation and the court has no
right to look for or impose another meaning. Paschal v. State Election Comm'n, 454 S.E.2d 890,
317 S.C. 434 (1995); see Miller v. Doe, 312 S.C. 444, 441 S.E.2d 319 (1994).
Although the BMA instituted a prohibition specifically against "erosion control structures,"
S.C. Code Ann. § 48-39-270(1) (Supp. 1997), groins do not serve as "erosion control structures"
for purposes of the act. Rather, "erosion control structures" are defined as seawalls, bulkheads,
and revetments pursuant to S.C. Code Ann. § 48-39-270(1) (Supp. 1997). Groins, however, are
not included in the general prohibition on construction seaward of the baseline.(7) Groins are
defined in S.C. Code Ann. Regs. § 30-1 (C)(40) (Supp. 1997) as structures:
designed to retard erosion of a beach by trapping littoral drift. Groins are usually
perpendicular to the shore and extend from the shoreline into the water far enough
to accomplish their purpose. Groins are narrow and vary in length from less than
one hundred feet to several hundred feet. Groin fields are a series of two or more
groins which, because of their proximity to each other, have overlapping areas of
influence. Consequently, the entire groin field must be considered as one system
in order to accurately analyze beach response.
OCRM regulations specifically contemplate the permitting of groins: "Groins, jetties and
offshore breakwaters interfere with the natural transport of sediment and therefore require special
permits. They shall only be permitted after thorough analysis of the project demonstrates that there
will be no negative effect on adjacent areas." 23A S.C. Code Ann. Regs. 30-13 (Supp. 1997). As
regulations authorized by the Legislature, they have the force of law. Norton v. Opening Break,
313 S.C. 508. 443 S.E.2d 406 (Ct. App. 1994), aff'd 319 S.C. 469, 462 S.E.2d 861 (1995). S.C.
Code Ann. § 48-39-50 (Supp. 1997) authorizes OCRM to promulgate necessary rules and
regulations to carry out the provisions of the Act, to administer the provisions of the Act, to
implement the state policies declared by the Act, and to exercise all incidental powers necessary
to carry out the provisions of the Act. S.C. Code Ann. § 48-39-120 further gives OCRM the
authority to:
issue permits not otherwise provided by state law, for erosion and water drainage
structure in or upon the tidelands, submerged lands and waters of this State below
the mean high-water mark as it may deem most advantageous to the State for the
purpose of promoting the public health, safety, and welfare, the protection of public
and private property from beach and shore destruction and the continued use of
tidelands, submerged lands and waters for public purposes.
(Emphasis added).
Accordingly Petitioners' Motion for Summary Judgment is denied.
ORDER
IT IS THEREFORE ORDERED that Petitioners' Motion for Summary Judgment is
hereby denied; Respondents' Motion for Summary Judgment is hereby granted. Any other issues
raised or presented in the proceedings or hearing of this case not specifically addressed in this
Order are deemed denied. ALJD Rule 29(C). Petitioners' challenge to OCRM permit 97-1W-330-P, as issued to Respondent Town of Sullivan's Island, is dismissed.
AND IT IS SO ORDERED.
__________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
September 8, 1998
Columbia, South Carolina
1. Conversely, "[a] motion to dismiss, unlike a motion for summary judgment, presumes
that general allegations embrace those specific facts that are necessary to support the claim."
Lujan I at 889, citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
2. Lujan I, "since it involved the establishment of injury in fact at the summary judgment
stage, required specific facts to be adduced by sworn testimony; had the same challenge to a
generalized allegation of injury in fact been made at the pleading stage, it would have been
unsuccessful." Lucas v. South Carolina Coastal Council, 505 U.S. 1003, at n.3 (1992).
3. In contrast, the Intervenors have "homes fronting on the Sullivan's Island beach
[are] now threatened by erosion . . . which the permitted activity is intended to protect and
correct." (Derrick Aff. at 2) Thus, the Intervenors have defined an interest not common to all
members of the public, but, rather, a direct injury affected by the "foregone action" of the
government, as described in Lujan II at 561-62.
4. The final prong of the Lujan II test, which requires that it be likely that the injury to their
interest will be redressed by a favorable decision of the hearing tribunal need not be addressed.
If the proposed beach renourishment project would wrongfully interfere with a protected interest
of the Petitioners, then it can be assumed that a decision by the ALJD to deny the issuance of the
permit would redress the impending injury.
5. Notably, neither Petitioner affirmed that he would cease using the Sullivan's Island
beach for recreational purposes should the proposed construction commence. Even if they had so
sworn, the mere reduction of one's recreational use of a natural resource would not necessarily
constitute an injury. Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., ___ F.3d ___,
1998 WL 327054 (D.S.C. 1998).
6. It is uncontroverted that most, if not all, of the proposed groin reconstruction will occur
seaward of the baseline.
7. S.C. Code Ann. § 48-39-290(A) (Supp. 1997) provides that:
[no] new construction or reconstruction is allowed seaward of the baseline except:
(1) wooden walkways no larger in width than six feet; (2) small wooden decks . . .
(3) fishing piers which are open to the public. . . . (4) golf courses; (5) normal
landscaping; (6) structures specifically permitted by special permit as provided in
subsection (D); (7) pools . . . . |
