Coastal Conservation League v. S.C. Dep't of Health & Envtl. Control

• Decision Date: 19 September 2022
• Docket Number: 22-ALJ-07-0082-CC
• Parties: Coastal Conservation League, Petitioner, v. South Carolina Department of Health and Environmental Control, Price Sloan, Carolyn Sloan, Mark Tiberio, Anne Tiberio, Michael Schulte, Laura Schulte, and Northwest Properties of Hickory, LLC, Respondents.
• Court: South Carolina Court of Appeals

1

Coastal Conservation League, Petitioner, v. South Carolina Department of Health and Environmental Control, Price Sloan, Carolyn Sloan, Mark Tiberio, Anne Tiberio, Michael Schulte, Laura Schulte, and Northwest Properties of Hickory, LLC, Respondents.

No. 22-ALJ-07-0082-CC

Court of Appeals of South Carolina

September 19, 2022

For Petitioner: Leslie S. Lenhardt, Esquire Emily M. Nellermoe Esquire Amy Elizabeth Armstrong, Esquire.

For Respondent DHEC: Bradley David Churdar, Esquire Sallie Page Phelan, Esquire.

For Respondents Property John Joseph Owens, Esquire Owners Randolph Russell Lowell, Esquire Stephen Lewis Goldfinch Jr., Esquire.

ORDER GRANTING PETITIONER'S MOTION IN PART, DENYING PETITIONER'S MOTION IN PART, GRANTING THE DEPARTMENT'S MOTION, & ISSUING AN AMENDED ORDER

Robert L. Reibold Administrative Law Judge.

STATEMENT OF THE CASE

This matter is pending before the South Carolina Administrative Law Court (the ALC or the Court) pursuant to a request for contested case hearing filed on March 8, 2022, by the South Carolina Coastal Conservation League (Petitioner), challenging a conclusion of the South Carolina Department of Health and Environmental Control (the Department or DHEC). Petitioner is specifically challenging a conclusion of DHEC's Board (the Board) that a coastal erosion research study proposed by Dr. Paul Gayes of Costal Carolina University (CCU) on the use of geotextile sandbags^[1] in critical areas at DeBordieu Colony in Georgetown County was "allowed" to proceed pursuant to the South Carolina Coastal Tidelands and Wetlands Act and the Beachfront Management Reform Act (BMA).^[2] Price Sloan, Carolyn Sloan, Mark Tiberio, Anne Tiberio, Michael Schulte, Laura Schulte, and Northwest Properties of Hickory, LLC (collectively, Property Owners) placed the geotextile sandbags at issue in this matter in the critical area without a permit as required by the Department.^[3] Dr. Gayes, Director of CCU's Burroughs & Chapin Center for Marine and Wetland Studies, proposed the research study to the Department's office of Ocean & Coastal Resource Management (OCRM). Petitioner is a non-profit membership corporation organized and existing under the laws of the State with the stated mission of working to protect the health of the natural resources of the South Carolina coastal plain.

On May 10, 2022, Property Owners filed a motion to dismiss, arguing Petitioner failed to name and timely serve its request for a contested case hearing on all requisite parties-specifically, upon Dr. Gayes-in violation of the Court's rules. On May 17, 2022, this Court noticed a hearing on the motion to dismiss for July 25, 2022. Petitioner filed a response to Property Owners' motion to dismiss on May 20, 2022, challenging Property Owners' contention that the Court should dismiss this matter. The parties additionally furnished prehearing statements. On June 2, 2022, the undersigned noticed a hearing on the merits for September 13-15, 2022, should the motion to dismiss not be dispositive. On June 14, 2022, the parties filed a consent motion for expanded discovery, requesting an additional thirty days to respond to discovery requests, permission to conduct up to ten depositions per party, and permission for discovery to extend beyond the 90-day timeframe set forth in SCALC Rule 21(A); the undersigned granted the consent motion.

The hearing on the motion to dismiss was held on July 25, 2022. Subsequently, the Court granted the motion to dismiss by written order dated August 10, 2022. The Court ruled that Dr. Gayes should be a party, and was not timely served, thereby requiring dismissal, or alternatively that, if Dr. Gayes were properly considered not to be party, the matter did not present a contested case hearing, as that term is defined in the Administrative Procedures Act, depriving the Court of jurisdiction. On August 22, 2022, Petitioner filed a motion to reconsider, and DHEC filed a motion for clarification.

For the reasons set forth below, the undersigned grants Petitioner's motion in part, denies Petitioner's motion in part, grants DHEC's motion, and issues an amended order that is attached to this order.

DISCUSSION

Petitioner's Motion for Reconsideration

SCALC Rule 29(D) expressly permits a party to "move for reconsideration of a final decision of an administrative law judge in a contested case to alter or amend the final decision, subject to the grounds for relief in Rule 59 SCRCP," and as further provided by the Court's rules. Rule 59, SCRCP, permits a party to file a motion to alter or amend a judgment within ten (10) days after receipt of written notice of the entry of the order which is the subject of the motion. Rule 59(e), SCRCP. Petitioner filed its motion on August 22, 2022. The Court concludes the motion was timely filed. See SCALC Rule 3(A).

Rule 59 permits a court to correct factual errors in an order Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996), and to reconsider arguments and issues of law, S.C. Dep't of Transp., 361 S.C. 9, 21, 602 S.E.2d 772, 778 (2004) ("A motion under Rule 59(e) long has been viewed as a 'motion for reconsideration' despite the absence of those words from the rule."); see also Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993) (explaining a motion to alter or amend a judgment under Rule 59(e), Fed. R. Civ. P., may be made on three grounds: "(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice").^[4] However, a party cannot use a Rule 59(e) motion to present to the court an issue that the party could have raised prior to judgment but did not. Hickman v. Hickman, 301 S.C. 455, 456-57, 392 S.E.2d 481, 482 (Ct. App. 1990).^[5] Reconsideration of a judgment after its entry is generally considered an extraordinary remedy which should be used sparingly. See Pac. Ins. Co. v. American Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).

Applying this standard, the Court will address the arguments made by Petitioner in the order in which they were raised by Petitioner.

I. Rule 19, SCRCP

Petitioner argues that the Court failed to consider its argument that Rule 19, SCRCP, is instructive. For the sake of clarity, the Court confirms that it considered Petitioner's argument, but ultimately the Court elected not to apply Rule 19, SCRCP.^[6] Application of the Rules of Civil Procedure in the ALC is discretionary. See SCALC Rule 68 ("The South Carolina Rules of Civil Procedure and the South Carolina Appellate Court Rules, in contested cases and appeals respectively, may, in the discretion of the presiding administrative law judge, be applied to resolve questions not addressed by these rules." (emphasis added)).

In any event, application of Rule 19 does not require that Dr. Gayes be added as a party. Rule 19(a) is used to determine when a particular party should be joined. Petitioner correctly notes that subsection (a) of the rule defaults to the requirement that courts order necessary parties be added. See SCRCP Rule 19(a) ("If he has not been so joined, the court shall order that he be made a party." (emphasis added)).

Petitioner, however, does not consider the import of subsection (b) of Rule 19. This subsection requires the Court to consider whether the party in question can actually be made a party, and if not, to consider whether the action should proceed in the party's absence. While Petitioner argues that there is no evidence that Dr. Gayes cannot be made a party, the Court has previously concluded that this argument is in error; Dr. Gayes cannot be added as a party to this matter. Petitioner was required to serve Dr. Gayes within thirty (30) days of the Board's decision. No one, including Petitioner, has provided the Court with any authority for the proposition that the Court can alter this deadline. To the extent SCALC Rule 3(B) can be construed to grant the Court discretion to alter the timeline for service upon Dr. Gayes, the Court has previously ruled that the requirements of Rule 3(b) were not satisfied.^[7] While it might have been possible for Dr. Gayes to intervene of his own volition, it is no longer possible for the Court to force Dr. Gayes to participate.

Because the Court concludes Dr. Gayes cannot be added, Rule 19, were it applied, would next require the Court to consider whether in equity and good conscience, the matter should proceed in Dr. Gayes's absence. SCRCP Rule 19(b). The Court concludes that equity and good conscience do not require that the action should proceed in Dr. Gayes's absence. The remedy sought by Petitioner, which is reversal of the Board's decision that Dr. Gayes's research study may proceed, is not adequate if Dr. Gayes is not a party because Dr. Gayes would not be bound by the Court's decision. If Dr. Gayes, the party who will conduct the study, is not bound by the Court's decision, then the Court's decision essentially becomes an advisory opinion.

In summary, had the Court applied Rule 19, it would nevertheless have dismissed the contested case.

The Court has not overlooked Petitioner's contention that Property Owners have orchestrated the study to circumvent sandbag regulations. Petitioner argues the Court was incorrect to suggest that Property Owners might be neutral or even opposed to Dr. Gayes's study. According to Petitioner, Dr. Gayes is an agent of Property Owners.

This argument misses the thrust of the Court's order. The Court did not mean to suggest that Property Owners are neutral. Indeed, it was Property Owners who filed the motion to dismiss. Property Owners' counsel also edited Dr Gayes's proposal, at least in part, before it was submitted to the Department. ...