Glynn Envtl. Coal., Inc. v. Sea Island Acquisition, LLC

• Decision Date: 03 March 2022
• Docket Number: No. 21-10676,21-10676
• Citation: 26 F.4th 1235
• Parties: The GLYNN ENVIRONMENTAL COALITION, INC., Center for a Sustainable Coast, Inc., Jane Fraser, Plaintiffs-Appellants, v. SEA ISLAND ACQUISITION, LLC, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

26 F.4th 1235

The GLYNN ENVIRONMENTAL COALITION, INC., Center for a Sustainable Coast, Inc., Jane Fraser, Plaintiffs-Appellants,

v.SEA ISLAND ACQUISITION, LLC, Defendant-Appellee.

No. 21-10676

United States Court of Appeals, Eleventh Circuit.

Filed March 3, 2022

Johnny A. Brunini, Laura D. Heusel, Butler Snow, LLP, Ridgeland, MS, Righton Johnson Lewis, Butler Snow, Atlanta, GA, for Plaintiff-Appellant The Glynn Environmental Coalition, Inc.

Johnny A. Brunini, Laura D. Heusel, Butler Snow, LLP, Ridgeland, MS, Righton Johnson Lewis, Butler Snow, Atlanta, GA, Adam Michael Langley, Butler Snow, LLP, Memphis, TN, for Plaintiffs-Appellants Center for a Sustainable Coast, Inc. and Jane Fraser.

James B. Durham, Matthew Brett Balcer, Joseph G. Emanuel, Hall Booth Smith, PC, Brunswick, GA, for Defendant-Appellee.

Before William Pryor, Chief Judge, Jordan, Circuit Judge, and Brown,^* District Judge.

William Pryor, Chief Judge:

This appeal concerns whether a local environmentalist who regularly visits an area of wetlands to recreate and enjoy their natural beauty has standing to complain about the filling of a wetland with outside materials because it has diminished her aesthetic interest in that wetland. Because these allegations suffice to establish an injury in fact, we vacate the order of dismissal and remand for further proceedings.

I. BACKGROUND

At this stage, we accept as true the following allegations of the complaint. Sea Island Acquisition, LLC, owns a 0.49-acre parcel of land near Dunbar Creek in Glynn County, Georgia, next to the parking lot for its nearby hotel. The parcel is considered a wetland under the Clean Water Act. When Sea Island sought to fill that parcel with outside materials, the Act required Sea Island to obtain a certification from the State of Georgia and a permit from the United States Army Corps of Engineers. See 33 U.S.C. §§ 1311(a), 1341(a)(1), 1344(a), (e).

The Act allows for two kinds of permits. For the first kind, an individual permit, a person seeking to fill a wetland must submit to the appropriate Corps district office a detailed application, see 33 C.F.R. §§ 325.1(c) – (d), 325.2(a), that includes "a list of authorizations required by other federal, interstate, state, or local agencies for the work, including all approvals received or denials already made" by those agencies, id. § 325.1(d). The application then undergoes "public notice and receipt of comments," id. § 325.5(b)(1), and the Corps issues a "decision document" that reports the view of the issuing official concerning the "probable effect of the proposed [project] on the public interest" and imposes "special conditions" on the project to the extent those conditions are appropriate to minimize environmental impact, see id. § 325.2(a)(6). The second kind of permit, a general permit, is valid for a period of no more than five years for activities that will not cause significant environmental harm. See 33 U.S.C. § 1344(e).

Nationwide Permit 39, a general permit, was issued in 2012. It allowed the filling of wetlands "for the construction ... of commercial and institutional building foundations and ... attendant features ... necessary for the use and maintenance of the structures" on the wetlands. Reissuance of Nationwide Permits, 77 Fed. Reg. 10184-01, 10279 (Feb. 21, 2012). In 2012, the Georgia Environmental Protection Division issued a conditional certification for all projects that were allowed by Permit 39.

On January 10, 2013, Sea Island submitted a pre-construction notification to the Corps for its plan to fill its wetland for the purpose of constructing a commercial building. The notification represented that Sea Island intended to fill 0.49 acres of what might be a wetland under the Act. Sea Island also sought a jurisdictional determination by the Corps of whether the parcel was a wetland. Sea Island proposed building "[r]etaining walls ... to reduce [the] overall footprint of the project in the wetlands," as well as purchasing 3.48 wetland "mitigation credits" to offset the loss of wetlands.

On February 20, 2013, the Corps issued a preliminary jurisdictional determination that the 0.49-acre parcel of land might be a wetland, and the Corps "verified authorization" of the proposed project. The authorization lasted for two years or until Permit 39 was "modified, reissued, or revoked," plus an additional year from that time to complete the work.

Although Sea Island had represented to the Corps that it intended to construct or expand a "commercial and institutional building foundation[ ] ... and [an] attendant feature[ ]," (Quoting Reissuance of Nationwide Permits, 77 Fed. Reg. at 10279.) "Sea Island intentionally and maliciously misrepresented" that intent. "Sea Island never intended to comply" with Permit 39 or the Georgia Conditional Permit and "only applied for [Permit 39] to save time and money." Instead, it intended to "landscape over" the wetland, which is near "its hotel, the Inn at Sea Island." "Sea Island filled" the wetland with "fill material ... between February 20, 2013, and March 27, 2013," but it still has not erected nor has any intention to erect any buildings or structures on the wetland.

Sea Island created various documents before and after its notification to the Corps that are allegedly inconsistent with its representations to the Corps. For example, Sea Island submitted a preliminary site plan to Glynn County on November 20, 2012—before its notification to the Corps—that did not show a proposed building. And the final construction plans created on November 27, 2012, evidenced that Sea Island intended to place permanent sodding on the wetland.

Finally, Sea Island made inconsistent representations regarding the presence of curb cuts in the pavement. Curb cuts would be necessary to operate an administrative office and parking lot because curb cuts lower the curb to allow cars to enter the parking lot and pedestrians to step onto the sidewalk. Even though Sea Island's application to the Corps indicated that there would be curb cuts in the pavement, the preliminary and final plats sent to the county did not show curb cuts, and the final project does not have them. Further, Sea Island placed utilities such that it would be extremely difficult, if not impossible, to add curb cuts.

The Glynn Environmental Coalition, Inc., the Center for a Sustainable Coast, Inc., and Jane Fraser sued Sea Island. The organizations are Georgia non-profit corporations. Some of their members, including Fraser, reside in Glynn County near the wetland. The organizations provide their members with information concerning environmental developments in the area.

The environmentalists alleged that Sea Island did not comply with the Act's permitting process because it filled the wetland for the purpose of landscaping and not constructing a commercial structure, it did not comply with the Georgia conditional certification, the authorization under Permit 39 had expired without compliance, and the authorization was null and void because Sea Island "intentionally and maliciously misled the Corps." The environmentalists sought a declaratory judgment, an injunction "compelling Sea Island to restore" the wetland, civil penalties, and attorney's fees.

Fraser is a "resident of Glynn County" who "ha[s] lived in the area ... for over twenty years" and is a member of both Glynn Environmental and Sustainable Coast. Fraser moved to the area "in large part due to the area's unique ecology, including its native habitat, wildlife[,] and vegetation." She "regularly recreate[s] in and enjoy[s] the aesthetics of the wetlands and marshes" in the general Dunbar Creek area. Before the fill of the wetland, Fraser "derived aesthetic pleasure" from the wetland, which she described as a "pleasing natural resource," and from "other similar wetland habitats in Glynn County by viewing the area in its natural habitat." (Emphasis added.) After the fill, the wetland was "replaced by unnatural grassed areas" and an "unnatural lawn" that is "less aesthetically pleasing." (Emphasis added.) The fill of the wetland was the partial cause of a "noticeable deterioration of the natural aesthetic beauty, water quality, and habitat of the ... area," and Sea Island's actions "diminished" Fraser's "aesthetic and recreational value" in the wetland and "its downstream tributaries." Fraser also alleges that she "observe[s] Dunbar Creek on a daily basis" as she drives over Dunbar Creek and that she has "noticed a significant difference in the water clarity in Dunbar Creek."

Sea Island moved to dismiss the environmentalists’ amended complaint for lack of standing and for failure to state a claim upon which relief could be granted. See FED. R. CIV. P. 12(b)(1), (6). Sea Island argued that the environmentalists’ allegations did not establish that any of the parties had suffered an injury in fact and that the organizations could not establish associational standing. And it contended that, assuming the allegations established a legally cognizable injury, the complaint did not establish causation or redressability. Sea Island also contested the legal sufficiency of each of the environmentalists’ claims. The environmentalists responded that they had suffered environmental, aesthetic, recreational, and procedural injuries, and that the organizations had associational standing through the standing of Fraser. The environmentalists also argued that they had adequately alleged causation and redressability, and they defended their complaint on the merits.

The district court dismissed the complaint for lack of standing on the ground that the environmentalists failed to allege an injury in fact. See FED. R. CIV. P. 12(b)(1). The district court addressed only Fraser's alleged aesthetic and recreational injuries, the environmentalists’ alleged procedural injury, and the organizations’ associational standing. The district court reasoned that Fraser had not alleged how her aesthetic and recreational interests in the...