State ex rel. Cobey v. Simpson

• Decision Date: 18 December 1992
• Docket Number: No. 56PA92,56PA92
• Citation: 423 S.E.2d 759,333 N.C. 81
• Parties: STATE of North Carolina, ex rel. William W. COBEY, Jr., Secretary Department of Environment, Health and Natural Resources v. Vivian Anne SIMPSON.
• Court: North Carolina Supreme Court

Page 759

423 S.E.2d 759

333 N.C. 81

STATE of North Carolina, ex rel. William W. COBEY, Jr. Secretary Department of Environment, Health and Natural Resources v. Vivian Anne SIMPSON.

No. 56PA92.

Supreme Court of North Carolina.

Dec. 18, 1992.

On discretionary review pursuant to N.C.G.S. § 7A-31 of a published decision of the Court of Appeals, 105 N.C.App. 95, 411 S.E.2d 616 (1992), affirming a judgment entered by Manning, J., in the Superior Court, Carteret County, on 21 September 1990, finding that defendant had violated the Coastal Area Management Act, N.C.G.S. §§ 113A-100 to -128 (1989 and Supp.1992), and the Dredge and Fill Act, N.C.G.S. § 113-229 (1990), and ordering removal of some of the unauthorized structures and fill materials. Heard in the Supreme Court 6 October 1992.

Lacy H. Thornburg, Atty. Gen. by J. Allen Jernigan and Daniel F. McLawhorn, Sp. Deputy Attys. Gen., Raleigh, for State-appellant.

Bennett, McConkey, Thompson & Marquardt, P.A. by Thomas S. Bennett, Morehead City, for defendant-appellee.

Conservation Council of North Carolina by John D. Runkle, Gen. Counsel, Chapel Hill, amicus curiae.

WHICHARD, Justice.

The issue is whether defendant must remove fill material which she caused to be deposited in coastal wetlands, a retaining wall and an addition to an existing bulkhead containing the fill material, which she also caused to be constructed in violation of the Coastal Area Management Act of 1974 ("CAMA"), N.C.G.S. §§ 113A-100 to -128 (1989 & Supp.1992), and the Dredge and Fill Act of 1969 ("DFA"), N.C.G.S. § 113-229 (1990). The trial court ordered removal of only sixty feet of the upper level of the retaining wall and excavation of the adjacent fill dirt back therefrom at an upward slope for a distance of thirty inches, reasoning that such actions would achieve compliance with CAMA and DFA by allowing natural restoration of the filled wetlands over time. The Court of Appeals affirmed, construing only the remedial provisions of CAMA. The Court of Appeals held that the language of section 113A-126(a) vested virtually complete discretion in the trial court to fashion an appropriate remedy, and that the trial court had not abused its discretion. State ex rel. Cobey v. Simpson, 105 N.C.App. 95, 411 S.E.2d 616 (1992). On 21 April 1992, this Court allowed plaintiff's petition for discretionary review.

The State argues that once the trial court found defendant to be in violation of CAMA or DFA, it had no option but to order restoration of the affected site to pre-violation conditions. We hold that because the violations were proved, the court must order removal of the unauthorized development, both structures and fill materials. Accordingly, we reverse.

The General Assembly enacted DFA in 1969 and CAMA in 1974 to protect, preserve, manage and provide for the orderly development of one of North Carolina's most valuable resources, the coastal estuarine system. N.C.G.S. § 113A-102(a) (legislative findings and goals). In particular, coastal wetlands, or marshlands, historically considered wastelands that should be reclaimed or put to productive use, have been recognized by the General Assembly as integral to the entire estuarine system--"unique, fragile, and irreplaceable." See Adams v. Dept. of N.E.R., 295 N.C. 683, 692-93, 249 S.E.2d 402, 407-08 (1978); Thomas Schoenbaum, The Management of Land and Water Use in the Coastal Zone: A New Law Is Enacted in North Carolina, 53 N.C.L.Rev. 275, 277-78, 280 (1974); Thomas Earnhardt, Defining Navigable Waters and the Application of the Public-Trust Doctrine in North Carolina: A History and Analysis, 49 N.C.L.Rev. 888, 888-92 (1971). Within the comprehensive management plan established by CAMA, and applicable to DFA, "[h]ighest priority of use [is given] to the conservation of existing coastal wetlands." 15A NCAC 7H. 0205(d) (Nov. 1991).

The central mechanism for implementation of the management program established by CAMA applies only to lands and waters designated an area of environmental concern ("AEC"). Coastal wetlands (or marshlands, as defined in DFA, N.C.G.S. § 113-229(n)(3), terms herein used interchangeably) have been designated AECs pursuant to N.C.G.S. § 113A-113(a) and (b)(1). CAMA requires that a permit be obtained before any "development" is undertaken in an AEC. N.C.G.S. § 113A-118(a). DFA similarly requires that a permit be obtained before any dredging or filling project is begun in, inter alia, marshlands. N.C.G.S. § 113-229(a). (Permit issuance under DFA is coordinated by the Coastal Resources Commission, which is created by and authorized to administer CAMA, so that a single, expedited permitting process exists for CAMA and DFA. N.C.G.S. § 113-229(e)). "Development" is broadly defined to include any activity "involving, requiring, or consisting of the construction or enlargement of a structure; excavation; dredging; filling; dumping; ... bulkheading; ... [or] clearing or alteration of land as an adjunct of construction." N.C.G.S. § 113A-103(5)a. Permits will be granted only if the development, so defined, is consistent with CAMA and the rules, guidelines or local land-use plans promulgated pursuant thereto. N.C.G.S. § 113A-120(a)(8). The coastal wetlands guidelines, for example, require that bulkheads or other shore stabilization measures "be constructed landward of significant marshland or marshgrass fringes" and aligned with approximate mean high water or normal water level. 15A NCAC 7H. 0208(b)(7)(A) and (B) (Nov. 1991).

During a routine surveillance flight on 17 May 1984, personnel of the Department of Environment, Health and Natural Resources ("DEHNR"), successor to the Department of Natural Resources and Community Development, observed construction of a bulkhead on property defendant owned in Carteret County near Stella, adjacent to Cales Creek (locally known as Neds Creek), a tributary of the White Oak River. During a subsequent site inspection on 21 May 1984, five marshlands species were found growing landward of the bulkhead: saw grass (Cladium jamaicense ), bulrush (Scirpus spp.), saltwater cordgrass (Spartina alterniflora ), salt grass (Distichlis spicata ), and salt meadow grass (Spartina patens ). Clippings and debris ("rack" material), brought in by the tides, were found accumulating at the highest tide mark, and marshlands landward of the bulkhead were the same elevation as the adjacent marshlands outside the bulkhead. The presence of such vegetation, and the occurrence of regular or occasional flooding by tides, define "coastal wetlands" protected under the statutes. N.C.G.S. § 113A-113(b)(1); N.C.G.S. § 113-229(n)(3). DEHNR, however, did not deem the bulkhead a violation of CAMA because it replaced a bulkhead built prior to the effective date of the statute. 15A NCAC 7J. 0210 and .0211 (Nov. 1991).

On a subsequent flight on 17 September 1985, DEHNR personnel observed that a retaining wall through the marshlands had been constructed perpendicular to the bulkhead and extending from the bulkhead, through the marshlands, towards high ground. An inspection on 16 October 1985 showed that fill material now covered the marshgrass landward of the bulkhead. The bulkhead had been capped with an additional piece of timber, raising it another eight inches. An inspection on 24 January 1986 showed that the retaining wall had been extended to high ground and the area had been seeded with rye grass.

On 30 January 1986, DEHNR served defendant with a notice of violation requiring her to cease and desist her fill activity and requesting that personnel be allowed on her property to dig post holes to determine the dimensions of the affected wetlands to be restored. Defendant refused to comply. On 18 March 1986, DEHNR personnel took core samples on the site, which indicated that a substrate of identifiable marsh species underlay an approximately five thousand square foot area covered by topsoil and sand fill materials. Based on these findings, DEHNR prepared a restoration agreement, pursuant to 15A NCAC 7J. 0410 (Dec. 1991), which plan, referencing the notice of violation, was served on defendant on 21 March 1986. Defendant refused to restore the area. On 9 April 1986, DEHNR served defendant with a notice of continuing violation, again requesting her to cease and desist her unauthorized activities and restore the area. Following defendant's continued refusal to restore the area, DEHNR referred the matter to the Attorney General, who instituted this action pursuant to CAMA section 113A-126(a) and DFA section 113-229(1).

In its complaint dated 11 June 1986, the State alleged that defendant placed fill material on marshlands subject to regulation under CAMA and DFA without obtaining the requisite permits. The State sought, inter alia, preliminary and permanent mandatory injunctions compelling defendant to restore the area to its condition prior to the unauthorized development. In the alternative, the State would restore the area, and it sought damages equal to the cost of such restoration. The State did not request that the court impose civil penalties on defendant.

On a prior, interlocutory appeal, this Court determined that defendant was not entitled to a trial by jury. State ex rel. Rhodes v. Simpson, 325 N.C. 514, 385 S.E.2d 329 (1989). On remand, the trial court, sitting without a jury, concluded, in pertinent part, that defendant or her agents violated CAMA section 113A-118(a) by constructing the retaining wall, enlarging the existing bulkhead, and depositing fill in marshlands or coastal wetlands duly designated an area of environmental concern and therefore subject to regulation pursuant to CAMA and DFA, without first obtaining the requisite permit. It further concluded that defendant or her agents violated DFA section 113-229(a) by placing fill materials in marshlands without first obtaining the requisite permit. The destruction of existing coastal wetlands by such development is inconsistent with the State guid...