CENTER FOR A SUSTAINABLE COAST et al. v. COASTAL MARSHLANDS PROTECTION COMMITTEE et al.
S07G1745
Supreme Court of Georgia
November 17, 2008
Reconsideration Denied December 16, 2008
284 Ga. 736 | 670 SE2d 429
HINES, Justice.
O‘Neal, Brown & Sizemore, Jarome E. Gautreaux, Lee T. Wallace, Arnall, Golden & Gregory, Tracy M. Field, Ashley S. Kelly, Robert T. Strang III,
HINES, Justice.
This Court granted certiorari to the Court of Appeals in Coastal Marshlands Protection Committee v. Center for a Sustainable Coast, 286 Ga. App. 518 (649 SE2d 619) (2007) (“CMPC v. CSC“), to determine whether the Court of Appeals correctly construed the Coastal Marshlands Protection Act,
Under the CMPA, the Coastal Marshlands Protection Committee (“Committee“) considers permit applications for projects in coastal marshlands. The Committee was created by the CMPA and is composed of the Commissioner of Natural Resources and four other persons selected by the Board of Natural
The Center for a Sustainable Coast and other organizations (collectively “CSC“) challenged the permit on a variety of grounds, including that the Committee failed to regulate the upland portions of Point Peter‘s development. An administrative law judge (“ALJ“) agreed with CSC as to this ground, and, inter alia, remanded this permit issue to the Committee for further consideration. The Committee and Point Peter sought review in the Superior Court of Fulton County, which did not act upon the matter in the time specified by statute, and the ALJ‘s decision was affirmed by operation of law. See
1. Under
In determining that the term “otherwise alter” did not extend the Committee‘s jurisdiction to the residential uplands, the Court of Appeals used the statutory canon of construction “ejusdem generis.” Under this principle,
when a statute or document enumerates by name several particular things, and concludes with a general term of enlargement, this latter term is to be construed as being ejusdem generis [i.e., of the same kind or class] with the things specifically named, unless, of course, there is something to show that a wider sense was intended. [Cits.]
Dept. of Transp. v. Montgomery Tank Lines, 276 Ga. 105, 106, n. 5 (575 SE2d 487) (2003). Thus, the Court of Appeals concluded that, since
to “otherwise alter” the marshlands in the statute refers to activities of the same kind or class as “remove, fill, dredge, [or] drain.” It follows that the CMPA can be construed to regulate storm water runoff into the marshlands under the “otherwise
alter[s]” provision of OCGA § 12-5-286 (a) only to the extent that the runoff alters the marshlands in a direct physical manner akin to removing, filling, dredging, or draining the marshlands.3
CMPC v. CSC, supra at 528 (2). CSC disputes the Court of Appeals‘s use of ejusdem generis, contending that the statute shows no ambiguity, and the canon is thus inapplicable. See Dept. of Transp., supra at 107 (1). CSC is correct that there is no ambiguity in the statute; however, considerable ambiguity would arise if the phrase “otherwise alter” was given the reading the ALJ applied.
The ALJ remanded this permit issue to the Committee to determine if construction of the upland portions of the project “otherwise alter[ed] any marshlands” through effects such as storm water runoff, and concluded that
This application of ejusdem generis comports with the content of the statute when read as a whole.
that activities and structures in the coastal marshlands must be regulated to ensure that the values and functions of the coastal marshlands are not impaired and to fulfill the responsibilities of each generation as public trustees of the coastal marshlands for succeeding generations.
2. CSC also asserts that, once the requirement for a permit is established, the scope of the Committee‘s review extends to all facets of a development such as Point Peter‘s, wherever situated, and that the Committee must exercise such a broad review in the public interest. The General Assembly has addressed the issue of the public interest as it pertains to the Committee‘s review, and specifically declared what that interest is.
In passing upon the application for permit, the committee shall consider the public interest, which, for purposes of this part, shall be deemed to be the following considerations:
(1) Whether or not unreasonably harmful obstruction to or alteration of the natural flow of navigational water within the affected area will arise as a result of the proposal;
(2) Whether or not unreasonably harmful or increased erosion, shoaling of channels, or stagnant areas of water will be created; and
(3) Whether or not the granting of a permit and the completion of the applicant‘s proposal will unreasonably interfere with the conservation of fish, shrimp, oysters, crabs, clams, or other marine life, wildlife, or other resources, including but not limited to water and oxygen supply.
CSC argues that, as storm water drainage can affect water quality,
In this case, it is particularly instructive to examine the interpretation of the CMPA adopted by the Department of Natural Resources. Ordinarily, “the interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference. [Cit.]” Ga. Dept. of Revenue v. Owens Corning, 283 Ga. 489, 490 (660 SE2d 719) (2008). “Although this Court is ‘not bound to blindly follow’ an agency‘s interpretation, we defer to an agency‘s interpretation when it reflects the meaning of the statute and comports with legislative intent.” Schrenko v. DeKalb County School Dist., 276 Ga. 786, 792 (2) (582 SE2d 109) (2003). This deference is particularly warranted here, because, in crafting the CMPA, the General Assembly specifically stated that the Department of Natural Resources is authorized “to determine jurisdiction under [the CMPA].”
all those service areas, amenities, and recreational areas located inland of the Coastal Marshlands Protection Act jurisdiction line, that serve or augment the functioning of the marshlands component of the project, such as, but not limited to, dry stack boat storage; dockmaster shop; fuel storage and delivery facilities to serve the marshlands component of the project;
and restrooms intended for users of the marshlands component of the project. This term may extend to and cover such facilities adjacent to or in proximity to the marshlands component of the project that are intended to serve exclusively or primarily the users of the marshlands component of the project if the Committee finds in its sole discretion that such facility is likely to alter the marshlands.
CSC asserts that this regulation actually shows that the Department interprets the statute to give the Committee jurisdiction over upland areas that are beyond the marshlands components of projects, and that the Department arbitrarily limited the Committee‘s reach only to facilities that “serve or augment the functioning of the marshlands component [which may include facilities] adjacent to or in proximity to the marshlands component of the project....”
Upon application by any interested person for a lease [of State-owned marshlands] pursuant to this Code section, the committee shall determine whether or not the applicant is an eligible person. The committee must also determine whether or not the applicant has sufficient lands properly to service the area to be leased. If the committee determines that the applicant is an eligible person and that sufficient lands exist to service the marina or dock, then the committee is authorized to grant and convey to the applicant a lease of the state owned marshland or water bottoms, or a combination thereof, described in the application without the necessity of public bid.
Nothing in the CMPA shows any intent on the part of the General Assembly to establish the Committee as the “super regulator” of any and all development in the coastal areas of the State. Rather, other appropriate regulation schemes play congruent roles, and those roles are recognized in the CMPA. As the Court of Appeals noted, mechanisms are in the CMPA by which
[t]he CMPA recognizes the existence of ... other regulations by requiring that a permit application include a letter from the local governing authority that the proposed project does not violate any zoning law, a copy of any required water quality certification for the proposed project issued by the [Department of Natural Resources], and a certification of adherence to soil and erosion control responsibilities if required for the proposed project.
OCGA § 12-5-286 (b) (6) , (10), (11). If another agency or governing authority denies a permit necessary for the project, the permit application
under the CMPA shall stand denied.
OCGA § 12-5-286 (q) . These CMPA provisions further demonstrate that the legislature did not intend that the CMPA regulate ordinary storm water runoff into the marshlands generated by upland development that was not part of the upland component of a permitted project described and regulated underOCGA § 12-5-286 .
CMPC v. CSC, supra at 529 (2). The role of the Committee‘s regulation power through the permitting process is intended
Ultimately, CSC argues that there are certain policy considerations that favor this Court‘s giving the broad reading of the Committee‘s power urged by CSC. However, such policy decisions are for the General Assembly, and it has not chosen the policy course that CSC advocates.
Judgment affirmed. All the Justices concur, except Sears, C. J., and Hunstein, P. J., who dissent.
SEARS, Chief Justice, dissenting.
I respectfully dissent. The superior court prematurely intervened in an ongoing administrative process when it entertained a challenge to an interlocutory remand order issued by an administrative law judge (ALJ) acting on behalf of the Department of Natural Resources (Department). Under the Georgia Administrative Procedure Act (Georgia APA),5 the superior court‘s subject matter jurisdiction to conduct appellate review of agency action in a contested case is strictly confined to the agency‘s “final decision” in the matter. The ALJ‘s February 21, 2006 remand order to the Coastal Marshlands Protection Committee (Committee) for further factual findings and expert agency analysis on two issues, though issued under the heading “Final Decision,” was not, in substance, the Department‘s last word on whether it would grant or deny Point Peter, LLLP a marshlands permit,6 and the sole narrow exception to
Judicial review of agency action in a contested case is governed primarily by three provisions of the Georgia APA.8
Under the Coastal Marshlands Protection Act of 1970,11 the Committee is subordinate to the Department in the permitting process,12 and the Department acts only through the decisions of the ALJ.13 By law, the Committee,
First, the research submitted to the Committee on the impacts to marine life, wildlife, and other resources, as well as the measures necessary to mitigate those impacts to the point that granting the permit would not result in unreasonable interference with their conservation, was not yet final. Second, the Committee did not consider or analyze the impact on the marshlands’ delicate ecosystem of funneling an additional 17-23 million gallons of polluted stormwater runoff directly into the marshlands from Point Peter‘s associated residential and commercial development every time there was a heavy rain. Accordingly, the ALJ remanded the matter back to the Committee to compile this information, decide what mitigation measures would be necessary to prevent unreasonable interference with conservation, and either deny the marshlands permit or grant it again, but this time with appropriate conditions.
Point Peter and the Committee have argued in the superior court, the Court of Appeals, and now this Court that the Department, acting through the ALJ, erred as a matter of law in directing the Committee to gather and analyze information on the effects of routinely channeling tens of millions of gallons of polluted runoff directly into the marshlands from the high land portions of the development. That may or may not be a correct view of the applicable law. Regardless, it does not transform the ALJ‘s intermediate decision that it needed more data to conduct the statutorily required public interest analysis into a “final decision” by the Department on whether, in the end, Point Peter‘s application for a marshlands permit would be granted or denied. In any event, as the Court of Appeals noted, none of the parties appealed the portion of the ALJ‘s order remanding to the Committee for further consideration of whether granting the permit would result in unreasonable interference with the conservation of right whales, manatees, and sea turtles.15 Thus, no matter what this Court decides today, further proceedings before the Committee at the administrative level are inevitable.
Where an agency‘s final decision-maker (here, the ALJ) remands to an intermediate or initial agency decision-maker (here, the Committee) for further factual findings and analysis, review at the agency level is obviously not yet complete. The ALJ‘s February 21, 2006 order remanding to the Committee for further investigation and analysis was, by definition, an “intermediate agency action or ruling.”16 Accordingly, under the Georgia APA, the superior court had subject matter jurisdiction to review the order only if review of the eventual final decision by the agency “would not provide an adequate remedy.”
We have consistently construed the “no[]... adequate remedy” language of
In this case, there is no reason to think that superior court review after the further fact-finding and analysis by the Committee ordered by the ALJ “would not provide an adequate remedy” as that phrase is used in
To summarize, the ALJ‘s February 21, 2006 remand order was not a “final decision” by the Department on Point Peter‘s permit application, and there is no indication that withholding judicial review until the agency had reached its final decision would have left Point Peter without an adequate legal remedy. Consequently, the trial court lacked subject matter jurisdiction to review the ALJ‘s order, there was no “final judgment” by the superior court for the Court of Appeals to review,22 and the Court of Appeals erred in granting the discretionary application and issuing an opinion addressing the parties’ claims on the merits. For the same reason, this Court should not rule on the merits of the case, but should vacate the Court of Appeals’ judgment and remand for further proceedings before the Committee. Accordingly, I respectfully dissent.
I am authorized to state that Presiding Justice Hunstein joins in this dissent.
DECIDED NOVEMBER 17, 2008 —
RECONSIDERATION DENIED DECEMBER 16, 2008.
Smith, Gambrell & Russell, Stephen E. O‘Day, Michael J. Grode, Christopher K. DeScherer, for appellants.
King & Spalding, Patricia T. Barmeyer, John Fortuna, James A. Chamberlin, Jr., Thurbert E. Baker, Attorney General, Isaac Byrd, Deputy Attorney General, John E. Hennelly, Senior Assistant Attorney General, James D. Coots, Assistant Attorney General, for appellees.