Ga. Dep't of Natural Res. v. Ctr. for a Sustainable Coast, Inc.

• Citation: 755 S.E.2d 184,294 Ga. 593
• Decision Date: 24 February 2014
• Docket Number: No. S13G0602.,S13G0602.
• Court: Supreme Court of Georgia
• Parties: GEORGIA DEPARTMENT OF NATURAL RESOURCES et al. v. CENTER FOR A SUSTAINABLE COAST, INC. et al.

294 Ga. 593

755 S.E.2d 184

GEORGIA DEPARTMENT OF NATURAL RESOURCES et al.

v.CENTER FOR A SUSTAINABLE COAST, INC. et al.

No. S13G0602.

Supreme Court of Georgia.

Feb. 24, 2014.

Nels Stefan David Peterson, Sol.-Gen., Isaac Byrd, Dep. Atty. Gen., John Edward Hennelly, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., James Doyle Coots, Asst. Atty. Gen., Atlanta, for appellants.

Jennifer R. Rhoton Culler, Donald D.J. Stack, Stack & Associates, PC, Atlanta, for appellees.

HUNSTEIN, Justice.

We granted certiorari in this case to determine whether the doctrine of sovereign immunity presents a bar to injunctive relief at common law. For the reasons set forth below, we find that sovereign immunity bars injunctive relief against the State at common law, and therefore, we overrule Intl. Bus. Machines Corp. v. Evans, 265 Ga. 215, 453 S.E.2d 706 (1995).

On April 5, 2011, Appellees Center for a Sustainable Coast, Inc., David R. Egan, and Melinda A. Egan (collectively, “the Center”) filed a declaratory judgment suit against Appellants Georgia Department of Natural Resources (“DNR”), by and through its Director, Mark Williams; DNR's Coastal Resources Division (“CRD”), by and through its director A.G. “Spud” Woodward; and A.G. “Spud” Woodward in his official capacity as director of CRD (collectively, “the State”). In its suit, the Center seeks to enjoin the State from issuing Letters of Permission (“LOPs”) to third parties authorizing land alterations to property within the jurisdiction of the Shore Protection Act (“the Act”). OCGA § 12–5–230 et seq. The Center maintains that the State violates the Act each time it issues LOPs for activities on lands covered by the Act.

The trial court granted the State's motion to dismiss the Center's petition, finding that the Center was not entitled to declaratory relief because the State had not waived sovereign immunity, and, even if it had, there was no justiciable controversy. Additionally, the trial court dismissed the Center's request for injunctive relief based on its conclusion that this claim was directly dependent upon the viability of its declaratory judgment claim. The trial court also dismissed the Center's injunctive relief claim because the statute pursuant to which the Center sought injunctive relief, OCGA § 12–5–245, did not contain a waiver of sovereign immunity, and therefore, an injunction against the State was barred.

The Court of Appeals affirmed in part and reversed in part, finding that the trial court had correctly dismissed the Center's declaratory judgment claim as non-justiciable but improperly dismissed the injunctive relief claim. Ctr. for a Sustainable Coast, Inc. v. Ga. Dept. of Natural Resources, 319 Ga.App. 205, 734 S.E.2d 206 (2012). The Court of Appeals concluded that “[p]retermitting whether OCGA § 12–5–245 permits a claim for injunctive relief, the Center is able to bring such a claim without running afoul of sovereign immunity.” Id. at 209, 734 S.E.2d 206. Relying on this Court's decision in IBM v. Evans, supra, the Court of Appeals found that the Center had sufficiently alleged that the State's actions in issuing LOPs constituted ultra vires conduct and that the common law forbids the State from cloaking itself in sovereign immunity while performing illegal acts to the detriment of its citizens. Ctr. for a Sustainable Coast, 319 Ga.App. at 209, 734 S.E.2d 206. We granted certiorari to determine whether the Court of Appeals erred by finding that sovereign immunity was no bar to injunctive relief at common law, and whether, if the Court of Appeals did not err, the Center properly stated a claim for common law injunctive relief.¹

In enacting the Act, the Georgia General Assembly sought to protect the State's vital natural resource system of coastal sand dunes, beaches, sandbars, and shoals by restricting development and land alterations in coastal areas. OCGA § 12–5–231. Thus, the Act allows “only activities and alterations of the sand dunes and beaches which are considered to be in the best interest of the state and which do not substantially impair the values and functions of the sand-sharing system.” Id. To enforce these restrictions, the Act has required a permit for any activity that alters the natural topography or vegetation of any area within the jurisdiction of the Act:

No person shall construct or erect any structure or construct, erect, conduct, or engage in any shoreline engineering activity or engage in any land alteration which alters the natural topography or vegetation of any area within the jurisdiction of [the Act], except in accordance with the terms and conditions of a permit therefor issued in accordance with [the Act]. A permit may authorize the construction or maintenance of the project proposed in an application. After construction of a project pursuant to a permit, the project may be maintained without a permit so long as it does not further alter the natural topography or vegetation of the site or increase the size or scope of the project.

OCGA § 12–5–237(a) (2012).² Parties requesting land alterations covered under the Act must file a detailed application. OCGA § 12–5–238.³ After receipt of the application, a committee within the DNR is required to provide public notice of the proposed project at least thirty days before acting on the application. OCGA §§ 12–5–235; 12–5–239(b).

In its complaint, the Center alleges that the State has violated the Act by issuing LOPs to authorize land alterations within the Act's jurisdiction rather than adhering to the Act's permit requirement. The Center maintains that the State is without legal authority under the Act to issue LOPs, and that under the State's illegal scheme circumventing the permit process, the Center is denied its rights to public notice and comment. We assume for purposes of this appeal that these allegations are true. See Cardinale v. City of Atlanta, 290 Ga. 521, 522, 722 S.E.2d 732 (2012) (de novo review applies to the dismissal of a complaint for failure to state a claim upon which relief could be granted and the complaint is construed in the light most favorable to the plaintiff).

1. In light of new developments since the Court of Appeals issued its opinion, we must first address whether this case is now moot. In May 2013, legislation was enacted expressly allowing the DNR to issue LOPs under the Act under certain circumstances. Ga. L. 2013, p. 874, §§ 1, 2, 3. See OCGA §§ 12–5–234(a)(5) (the DNR shall have the authority “[t]o issue letters of permission and impose a reasonable fee for processing such letters of permission”); 12–5–237(b)(2) (“No permit shall be required for any activity conducted pursuant to a letter of permission.”). These amendments to the Act became effective on July 1, 2013.

“ ‘It is a rather fundamental rule of both equitable jurisprudence and appellate procedure, that if the thing sought to be enjoined in fact takes place, the grant or denial of the injunction becomes moot.’ ” Jackson v. Bibb County Sch. Dist., 271 Ga. 18, 19, 515 S.E.2d 151 (1999). When the remedy sought in the trial court is no longer available, then the matter is moot and no longer subject to appeal. Brown v. Spann, 271 Ga. 495, 520 S.E.2d 909 (1999) (case was moot because the sale of a radio station's broadcast license sought to be enjoined by the plaintiffs had already occurred by the time the appeal was heard).

Here, the Center seeks to stop the DNR from issuing LOPs without lawful authority. This relief is still attainable by the Center: the remedy of enjoining the State from issuing LOPs, or the State voluntarily ceasing to issue LOPs, has not occurred. Therefore, even though under the new law the Center may now face greater difficulty proving the merits of its claim, the case is not moot. See Richardson v. Phillips, 302 Ga.App. 305, 311(2), 690 S.E.2d 918 (2010) (case was not moot because the relief sought by the plaintiff was still available to him despite prior business transactions).

This is also not a case where the Court is being asked to determine an abstract question which does not arise upon existing facts or rights. See Collins v. Lombard Corp., 270 Ga. 120(1), 508 S.E.2d 653 (1998) (“a case is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights”). Instead, there is a concrete question of whether the Center could enjoin the State from issuing LOPs even under the new law. For example, the new law specifically defines LOPs as authorization to conducta proposed activity on land protected by the Act, as long as that activity is “either within the physical perimeter of an existing serviceable project or involves the construction and removal of a project or other temporary activity that concludes within six months.” OCGA § 12–5–232(9.1). The Center still may still have a challenge against any LOP that does not meet this definition, and without the benefit of discovery, we cannot conclude definitively that all of the LOPs about which the Center complains meet this criteria. Thus, the existing facts do not make the legal issue of whether the State's issuance of LOPs is an ultra vires act an abstract question, and the Center may still be able to achieve the injunctive relief it seeks. Cf. City of Comer v. Seymour, 283 Ga. 536, 537, 661 S.E.2d 539 (2008) (the case was moot where operation of a haunted house sought to be enjoined had ceased and therefore any judicial determination would be an abstract exercise unrelated to any existing facts).

2. Turning to the issue of sovereign immunity, our review of this question of law is de novo. See Luangkhot v. State, 292 Ga. 423, 424, 736 S.E.2d 397 (2013). The Court of Appeals relied heavily on our holding in IBM v. Evans, supra, to hold that sovereign immunity did not bar the Center's claim for injunctive relief at common law. Having thoroughly reviewed the underpinnings of this holding, we now hold that sovereign immunity is a bar...