Risher v. the South Carolina Dep't of Health

• Decision Date: 21 July 2011
• Docket Number: No. 26990.,26990.
• Citation: 393 S.C. 198,712 S.E.2d 428
• Court: South Carolina Supreme Court
• Parties: Jerry H. RISHER, Respondent,v.The SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Office of Ocean and Coastal Resource Management, Appellant,State of South Carolina and South Carolina Coastal Conservation League, Intervenors,Of whom, South Carolina Coastal Conservation League is, Appellant.

393 S.C. 198

712 S.E.2d 428

Jerry H. RISHER, Respondent,

v.The SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Office of Ocean and Coastal Resource Management, Appellant,State of South Carolina and South Carolina Coastal Conservation League, Intervenors,Of whom, South Carolina Coastal Conservation League is, Appellant.

No. 26990.

Supreme Court of South Carolina.

Heard May 25, 2010.Decided June 20, 2011.Rehearing Denied July 21, 2011.

Amy E. Armstrong and James S. Chandler, Jr., of S.C. Environmental Law Project, of Pawleys Island, for Appellant South Carolina Coastal Conservation League, Davis Whitfield–Cargile, SC Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management, of Charleston, for Appellant South Carolina Department of Health and Environmental Control.Mary D. Shahid, of Nexsen Pruet, and R. Cody Lenhardt, Jr., of McNair Law Firm, PA, both of Charleston, for Respondent.Justice HEARN.

AppellantsSouth Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management, and South Carolina Coastal Conservation League appeal the final order of the Administrative Law Court reversing the denial of RespondentJerry H. Risher's critical area permit application to construct a bridge over a portion of wetlands contained within his property on Fripp Island, South Carolina.We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Risher is the record owner of a 0.475 acre piece of property identified as Lot 1, Block B, Subdivision 13, Fripp Island and Beaufort County, South Carolina (Lot).The Lot consists of 0.269 acres of upland high ground (buildable portion), and the remainder, which partially surrounds the buildable portion, is composed of wetlands.The Lot abuts a man-made, paved, non-vehicular foot/bike path on one side, which is maintained by the Fripp Island Property Owners Association.

One year prior to Risher's purchase of the Lot, his predecessor in title applied with the South Carolina Department of Health and Environmental Control(DHEC) and was approved for a critical area permit to construct a vehicular bridge across the non-buildable wetland portion of the Lot, connecting with the nearest vehicular road, Tarpon Boulevard.Risher purchased the Lot in 1997 and testified he understood his purchase to include the bridge permit.¹Risher did not have the funds to construct the bridge pursuant to the permit immediately after his purchase; therefore, the Lot remained undeveloped.

In 2006, Risher contracted with O'Quinn Marine Construction, Inc. to construct a bridge similar to the one previously submitted and approved by his predecessor in title.To that end, Risher submitted a permit application to DHEC's Office of Ocean and Coastal Resource Management(OCRM).The application requested permission to construct a concrete bridge measuring twelve feet wide, eighty-five feet long, at a height of three feet above the existing wetland grade.OCRM took the matter under advisement, but ultimately denied Risher's application based on its finding that the upland buildable portion of the Lot qualified as a coastal island which was too small to allow bridge access.

After exhausting DHEC's review options, Risher filed a Request for a Contested Case Hearing with the Administrative Law Court(ALC).Subsequently, both the South Carolina Attorney General's office and the South Carolina Coastal Conservation League filed motions to intervene before the ALC, which were granted.A hearing was held, and the ALC issued an order reversing DHEC's denial of Risher's permit request.The State filed a motion to alter or amend the judgment seeking to be dismissed as a party from the action.The State's motion was granted, and thereafter the ALC issued an amended final order noting the State's dismissal.Both DHEC and the Conservation League (collectively Appellants) appeal the ALC's determination and present the following issues to the Court on appeal:

I.Did the ALC err as a matter of law in admitting the opinion testimony of an unqualified witness and then relying upon that testimony for the basis of its decision?

II.Did the ALC err in making itself a witness, when it made findings and conclusions based on its own on-site inspection?

III.Is the decision of the ALC supported by reliable, probative, and substantial evidence in the record?²

STANDARD OF REVIEW

The Administrative Procedures Act establishes this Court's standard of review for cases decided by the ALC and is set forth in Section 1–23–610(B) of the South Carolina Code(Supp.2009), which provides:

The review of the administrative law judge's order must be confined to the record.The court may not substitute its judgment for the judgment of the administrative law judge as to the weight of the evidence on questions of fact.The court of appeals may affirm the decision or remand the case for further proceedings; or, it may reverse or modify the decision if the substantive rights of the petitioner have been prejudiced because the finding, conclusion, or decision is:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

A decision of the ALC should be upheld, therefore, if it is supported by substantial evidence in the record.

LAW/ANALYSIS

I.Qualifications of Testifying Witness

Appellants first assert the ALC erred in admitting the opinion testimony of an unqualified witness and then relying upon that testimony for the basis of its decision.We disagree.

Lorick Fanning was called to testify on behalf of Risher.As will soon become apparent, Appellants consistently objected to Fanning's ability to testify as to the facts and circumstances of this case, as well as the conclusions he drew therefrom.On appeal, Appellants assert the ALC committed reversible error in allowing Fanning to repeatedly testify beyond the scope of what they perceived to be his area of expertise.

Fanning held undergraduate degrees in geology and forestry and had continuing education courses in land surveying, forestry, wetlands, and hydric soils, in addition to being registered as both a land surveyor and a forester in the State.The ALC qualified Fanning as an expert in forestry and land surveying, and, over objection, in the identification of wetland boundaries, including critical area boundaries.In support of his qualifications, Fanning testified he had delineated wetlands “at least 1000 times,” with the vast majority of those delineations dealing with coastal topography and critical area determinations.Later in his testimony, Fanning described the role that soil interpretations play in the analysis of wetland boundary determinations, relying on his academic background in hydric soils as well as his degree in geology; however, Fanning did not hold himself out as an expert in soil classification.Again, over objection, the ALC permitted Fanning to testify as to the role soils played in his determination of the Lot's wetland and critical boundary.

Shortly thereafter, Appellants further objected to Fanning's ability to testify as to whether the Lot was a part of Fripp Island, based on his own performance of a mean high water survey.³The ALC overruled Appellants' objections, and Fanning was permitted to testify that the Lot was indeed a part of Fripp Island.Appellants again objected to Fanning's testimony regarding whether or not the Lot was an integral part of the surrounding area's estuarine system.⁴Here, the ALC initially sustained Appellants' objection regarding Fanning's qualifications to testify; however, the court later reversed its ruling on Appellants' objection and allowed Fanning to be recalled for the purpose of testifying as to his opinion on the Lot's inclusion in the estuarine system.

“To be competent to testify as an expert, a witness must have acquired by reason of study or experience or both such knowledge and skill in a profession or science that he is better qualified than the jury to form an opinion on the particular subject of his testimony.”Gooding v. St. Francis Xavier Hosp.,326 S.C. 248, 252–53, 487 S.E.2d 596, 598(1997)(citation omitted);Rule 702, SCRE (“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”). “Qualification depends on the particular witness' reference to the subject.”Gooding,326 S.C. at 253, 487 S.E.2d at 598.

“The qualification of a witness as an expert and admissibility of his testimony are matters largely within the discretion of the trial judge; however, the exercise of this discretion will be reversed where an abuse of discretion has occurred.”Payton v. Kearse,329 S.C. 51, 60–61, 495 S.E.2d 205, 211(1998)(citation omitted).As discussed in a recent opinion of this Court, trial courts have a gatekeeping role with respect to all evidence sought to be admitted under Rule 702.State v. White,382 S.C. 265, 274, 676 S.E.2d 684, 689(2009).

In the discharge of its gatekeeping role, a trial court must assess the threshold foundational requirements of qualifications and reliability and further find that the proposed evidence will assist the trier of fact.The familiar evidentiary mantra that a challenge to evidence goes to “weight, not admissibility” may be invoked only after the trial court has vetted the matters of qualifications and reliability and admitted the evidence.

Id.

In support of their contention that Fanning was unqualified to give his opinions on a...