ORDERS:
ORDER GRANTING RESPONDENTS' MOTION TO DISMISS
STATEMENT OF THE CASE
This matter comes before the South Carolina Administrative Law Judge Division on two separate motions. The
Respondent, South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource
Management (OCRM) filed a Notice of Motion and Motion for Summary Judgment, or in the Alternative, to Dismiss on
September 24, 1999. The Respondents, Donald and Nacy Baxter (Baxters), filed a Notice of Motion and Motion for
Summary Judgment, or in the Alternative, to Dismiss on November 17, 1999. The Petitioner filed a Response to Motion for
Summary Judgment or Dismissal and Supporting Memoranda Filed by Respondents on November 30, 1999. A Motion
Hearing was scheduled for December 10, 1999 in Charleston County, South Carolina. After the Petitioner moved for a
continuance, a motion hearing was held in this matter on January 20, 2000 at the Administrative Law Judge Division, 1205
Pendleton Street, Columbia, South Carolina.
FACTUAL BACKGROUND
On June 17, 1999, OCRM issued a general permit to the Baxters to perform beach renourishment. This general permit,
Number GP-90-F, authorized sand fences, minor beach renourishment and dune revegetation. The project, as approved, was
for construction of a foredune 20 feet wide at its base, by 8 feet in height, by 90 feet in length, consisting of approximately
375 cubic yards of beach compatible sand. A special condition of the permit was "minor renourishment . . . [B] must be
performed between November 1 and April 15." The beach renourishment was completed by August 2, 1999.
The Petitioner is a resident of the Isle of Palms, although not a neighbor of the Baxters. The Petitioner frequents the area of
beach adjacent to the Baxters' lot. The Petitioner filed a Notice of Intent to File a Request for Hearing on August 10, 1999
asserting that, as a regular user of the beach in that area, he was adversely affected by the intrusion of heavy equipment onto
a fragile but healthy part of the beach to nourish a rapidly accreting beach. The Petitioner further asserted that he was
aggrieved by the "reckless disregard shown by the Permittees and OCRM Staff for OCRM Regulation R.30-13(L)(3b) which
provides protection for sea turtle nesting by requiring that renourishment be performed only between November 1 and May
15." Finally, the Petitioner asked that the Baxters' permit be revoked.
ANALYSIS
The Respondents argue that the present action should be dismissed because (1) the Petitioner does not have standing to
pursue the action, or (2) even if the Petitioner does have standing, the issue is moot.
I. Standing
The Respondents first claim that this Court does not have jurisdiction to hear this matter because the Petitioner does not
have the requisite standing. 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 Petitioner must have been adversely affected by the granting of the permit. S.C.
Code Ann. § 48-39-150 (Supp. 1998); 23A S.C. Code Ann. Regs. 30-6(B). In other words, the Petitioner must have
standing. "[N]o justiciable controversy is presented unless the Plaintiff has standing to maintain the action." Lennon v.
South Carolina Coastal Council, 330 S.C. 414, 498 S.E.2d 906 (Ct. App. 1998). In Lennon, the Plaintiff attempted to
intervene in an action challenging an ordinance on behalf of several adjacent property owners. The Court of Appeals
concluded that the Plaintiff "cannot obtain standing by alleging he is acting in another's interest if he himself has suffered no
individual injury." Id. at 416, 907. 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, 308 S.C. 23, 416 S.E.2d 641 (1992).
There is some authority to suggest that a Petitioner may be granted standing where there is an issue "of such public
importance as to require its resolution for future guidance." Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69
(1999). However, the matter at issue here does not rise to such a level. The general permit in this matter is, without
question, valid. It was issued properly, and there was no adverse impact on the beaches. Petitioner, therefore, may not
assert that he has standing because this is a matter of extreme public concern.
The Petition relies on the recent US Supreme Court's holding in Friends of the Earth, Inc. v. Laidlaw Environmental
Services, Inc. No. 98-822 (Filed January 12, 2000) in which the Court held that pursuant to §505(a) of the Clean Water Act
a suit to enforce any limitation in an NPDES permit may be brought by any "citizen," defined as "a person or persons having
an interest which is or may be adversely affected." 33 U.S.C. §1365(a),(g). This holding, however, is limited to the specific
statutory provisions conferring jurisdiction upon private citizens found in the federal Clean Water Act.
OCRM has the authority to issue general permits for the State of South Carolina pursuant to S.C. Code Ann. § 48-39-290(B)(4). Regulation 30-17(A) sets forth the specific guidelines for general permits. The Baxters have complied with all of
the required procedures, and the permit was properly issued.
II. Mootness
Assuming, arguendo, that the Petitioner could establish the requisite standing to pursue this contested case, he must still
establish that the issue is not moot. I find that the Petitioner fails to meet this burden and the issue is moot.
A case is moot when judgment, if rendered, will have no practical effect upon the existing case or controversy. Peterson
Outdoor Advertising Corp. v. Beaufort County, 291 S.C. 533, 354 S.E.2d 563 (1987). The Baxters received their permit
on June 17, 1999. The permitted work was completed by August 2, 1999. The Petitioner requests that the permit be
revoked because the renourishment was not completed during the time period specified in the special conditions to the
permit. Revocation of the Baxters' permit will have no practical result, as the work has been performed in its entirety, and
will not result in any change to the beachfront on the Isle of Palms. Morever, any enforcement action against the Baxters for
violating the special conditions of the permit must be instigated by OCRM. A judgement in the Petitioner's favor will have
no practical effect on the existing controversy, which is the essence of mootness.
III. Summary Judgment
The Respondents also moved for Summary Judgment as an alternative to their Motion to Dismiss. Because I find that the
case should be dismissed because the Petitioner lacks standing to pursue the contested case, as well as finding that the issue
us moot, I do not address the merits of the Motions for Summary Judgment.
ORDER
THEREFORE, IT IS HEREBY ORDERED that the Respondents' 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
Adminsitrative Law Judge
February 1, 2000
Columbia, South Carolina. |
