Dreher v. South Carolina Department of Health & Environmental Control
412 S.C. 244
| S.C. | 2015Background
- In 1994 Dreher bought two adjacent Folly Island parcels: 806 East Cooper Ave (0.24 acres) and Tract D (0.84 acres); later two man-made canals isolated Tract D with surrounding tidelands.
- Dreher applied (2009) to DHEC for a vehicular bridge from Cooper Ave to Tract D; DHEC denied the permit under Reg. 30-12(N)(2)(c), which bars bridge permits to "coastal islands" under two acres.
- "Coastal island" is defined by Reg. 30-1(D)(11), but that regulation explicitly exempts named islands (including Folly Island) from the definition.
- The ALC found Tract D was "on and within the boundaries of Folly Island" but nonetheless concluded Tract D qualified as a separate "coastal island," denied the permit, and found the proposed bridge would have de minimis environmental impact.
- The court of appeals reversed, treating the ALC’s finding that Tract D was part of Folly Island as law of the case and holding Tract D exempt from the two-acre rule; DHEC petitioned for certiorari.
- The Supreme Court affirmed the court of appeals’ result but on different reasoning: it rejected the court of appeals’ law-of-the-case application and held Tract D shares Folly Island’s regulatory exemption, so the two-acre bar did not apply; DHEC and the ALC erred in denying the permit given the ALC’s environmental findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court of appeals misapply the law-of-the-case doctrine? | Dreher: court of appeals properly treated ALC’s unchallenged finding as law of the case. | DHEC: it preserved challenge and may raise an alternate sustaining ground on appeal. | Yes. Court of appeals misapplied doctrine; DHEC’s challenge was preserved and should be considered on the merits. |
| Is Tract D exempt from the Reg. 30-1(D)(11) coastal-island definition because it lies within Folly Island? | Dreher: Tract D is within Folly Island’s geographic/legal boundaries and so shares Folly’s explicit exemption. | DHEC: Tract D is surrounded by tidelands and thus is a separate "coastal island" subject to the two-acre prohibition. | Tract D is part of Folly Island and thus exempt from the coastal-island definition; the two-acre ban does not bar Dreher’s permit. |
Key Cases Cited
- Engaging & Guarding Laurens Cnty.’s Env’t v. S.C. Dep’t of Health & Env’tl Control, 407 S.C. 334 (2014) (appellate review of ALC limited to substantial evidence and errors of law under APA)
- Hill v. S.C. Dep’t of Health & Envtl. Control, 389 S.C. 1 (2010) (substantial-evidence standard described)
- Shirley’s Iron Works, Inc. v. City of Union, 403 S.C. 560 (2013) (unappealed rulings constitute law of the case)
- I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406 (2000) (prevailing party below may raise additional sustaining grounds on appeal)
- Risher v. S.C. Dep’t of Health & Envtl. Control, 393 S.C. 198 (2011) (whether a parcel is part of a named island is a factual finding reviewed for substantial evidence)
- Wooten ex rel. Wooten v. S.C. Dep’t of Transp., 333 S.C. 464 (1999) (specific statutory provision controls over more general one)
- Converse Power Corp. v. S.C. Dep’t of Health & Envtl. Control, 350 S.C. 39 (2002) (rules of statutory construction apply when interpreting regulations)