THE GLYNN ENVIRONMENTAL COALITION, INC., CENTER FOR A SUSTAINABLE COAST, INC., JANE FRASER v. SEA ISLAND ACQUISITION, LLC
No. 21-10676
United States Court of Appeals For the Eleventh Circuit
March 03, 2022
D.C. Docket No. 2:19-cv-00050-JRH-BWC
Plaintiffs-Appellants,
versus
Defendant-Appellee.
Appeal from the United States District Court for the Southern District of Georgia
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 Watеr 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
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
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 projeсts 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
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 fоr 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 Islаnd 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 permаnent 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 Cоrps 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 nоn-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
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
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
The district court dismissed the complaint for lack of standing on the ground that the environmentalists failed to allege an injury in fact. See
The district court also rejected the environmentalists’ arguments regarding associational standing and procedural injury. “Because . . . Fraser does not have standing to sue in her own right, [the organizations] do not have associational standing.” The district court also reasoned that to allege a procedural injury, a plaintiff must show “an injury to a separate concrete interest.” (Quoting Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 810 (11th Cir. 1993).) Because the environmentalists had not adequately alleged any other concrete injury, the district court concluded that they had not suffered a procedural injury.
II. STANDARD OF REVIEW
We review the dismissal of a complaint de novo. Aaron Priv. Clinic Mgmt. LLC v. Berry, 912 F.3d 1330, 1335 (11th Cir. 2019).
III. DISCUSSION
Article III standing requires a plaintiff to have “suffered an injury in fact, . . . that is fairly traceable to the challenged conduct of the defendant, and . . . that is likely to be redressed by a favorable judicial decision.” Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 924 (11th Cir. 2020) (en banc) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). “‘Each element of standing is ‘an indispensable part of the plaintiff‘s case’ and ‘must be supported in the same way as any other matter on which the plaintiff bears the burden of proof.‘” Aaron Priv. Clinic, 912 F.3d at 1336 (quoting Lujan v. Defs. of Wildlife (Lujan), 504 U.S. 555, 561 (1992)). At the motion-to-dismiss stage, we evaluate standing by determining whether the complaint “clearly alleges facts demonstrating each element.” Id. (quoting Spokeo, 578 U.S. at 338).
An injury in fact must be “concrete, particularized, and actual or imminent.” Muransky, 979 F.3d at 925. An injury that is “conjectural or hypothetical” is constitutionally insufficient. Id. At the motion-to-dismiss stage, “‘general factual allegations of injury’ can suffice,” id. at 924 (quoting Lujan, 504 U.S. at 561), so long as the complaint “plausibly and clearly allege[s] a concrete injury,” id. (quoting Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1621 (2020)). Only factual allegations, and not legal conclusions, are relevant to
The environmentalists offer several arguments for why they have adequately alleged an injury in fact, including that Fraser suffered an aesthetic injury. Because we conclude that Fraser adequately alleged a concrete injury to her aesthetic interest in the wetland, we do not address the environmentalists’ other arguments.
An individual suffers an aesthetic injury when she “use[s] the affected area” and is a person “for whom the aesthetic . . . value[] of the area will be lessened by the challenged activity.” Friends of the Earth, Inc. v. Laidlaw Env‘t Servs. (TOC), Inc., 528 U.S. 167, 183 (2000) (internal quotation marks omitted); accord Sierra Club v. Johnson, 436 F.3d 1269, 1279 (11th Cir. 2006). An individual can meet her burden of establishing that injury at the pleading stage “by attesting that [s]he uses . . . an area affected by the alleged violations and that h[er] aesthetic . . . interests in the area have been harmed.” Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng‘rs, 781 F.3d 1271, 1280 (11th Cir. 2015) (quoting Sierra Club v. Tenn. Valley Auth., 430 F.3d 1337, 1344 (11th Cir. 2005)). “Aesthetic . . . well-being” is an “important ingredient[] of . . . quality of life in our society” and is a recоgnized interest even though it is often
Fraser “plausibly and clearly allege[d] a concrete injury” to her aesthetic interest. See Muransky, 979 F.3d at 924 (quoting Thole, 140 S. Ct. at 1621). Fraser gains aesthetic pleasure from viewing wetlands in their natural habitat. She regularly recreates in the area and sees the wetland. After the wetland was replaced with sodding, she derived less pleasure from the wetland because the habitat and vegetation were unnatural. These alleged injuries are sufficient at the pleading stage because Fraser need only allege “that [s]he uses” the “area affected” and that “h[er] aesthetic . . . interests . . . have been harmed.” Black Warrior, 781 F.3d at 1280 (internal quotation marks omitted). Her allegations are neither a mere legal conclusion that she suffered an injury in fact nor a legal conclusion that she suffered an injury in fact “couched аs a factual allegation.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Fraser explained how and why she derived aesthetic pleasure from the wetland that Sea Island filled. She then explained why her aesthetic interest in the wetland was harmed.
Sea Island makes three arguments in defense of the dismissal. First, it argues that the district court correctly concluded that Fraser needed to have “actually visited” the wetland “prior to its fill.” The district court understood Fraser to have alleged only that “she enjoys the aesthetics of the wetlands” generally, so it reasoned that Fraser‘s allegations were “not sufficient to show and injury-in-fact.” (Alterations adopted.) Second, Sea Island argues that Fraser
Contrary to Sea Island‘s argument, Fraser did specifically allege in her affidavit that she “derived aesthetic pleasure” from the wetland “[p]rior to Sea Island[‘s] . . . fill” of the wetland. But, in any event, Fraser was not required to visit the wetland before it was filled. Even if she did not previously derive pleasure from the wetland, Fraser suffers an injury in fact if she cannot now derive aesthetic pleasure from it because it was filled. For example, the Supreme Court has held that plaintiffs who alleged that they “would [have] like[d] to” have engaged in certain recreational activities but did not because of the defendant‘s alleged conduct had standing, Friends of the Earth, 528 U.S. at 181–83, even though they had never used the аffected area or had done so only once or twice years before, id. at 200 (Scalia, J., dissenting).
Fraser also need not physically step foot on or use the wetland to have an aesthetic interest in it. Sea Island quotes language from the Supreme Court that “a plaintiff claiming injury from environmental damage must use the area affected by the challenged activity and not an area roughly in the vicinity of it.” (Quoting Lujan v. Nat‘l Wildlife Fed‘n (Nat‘l Wildlife Fed‘n), 497 U.S. 871, 887-889 (1990), characterizing the holding in Lujan, 504 U.S. at 565–66.
National Wildlife Federation is distinguishable. There, the plaintiffs used unspecified parts of a two-million-acre area of Wyoming “in the vicinity of” the 4,500 acres that were affected by the government‘s challenged action. 497 U.S. at 886–87 (emphasis omitted) (internal quotation marks omitted). All but 6,500 acres of that two-million-aсre area had been open to mining and oil and gas leases, and the government had opened 4,500 of the remaining land to leases, leaving only 2,000 acres closed to such leases. See id. at 887. The plaintiffs alleged that the government action harmed their “recreational use and aesthetic enjoyment of federal lands.” Id. at 886 (internal quotation marks omitted). At the summary judgment stage, the Court concluded thаt the plaintiffs had not established that those interests were affected because “averments” that the plaintiffs “use[d] unspecified portions of an immense tract of territory” did not satisfy the summary judgment standard even if they would have been enough to survive a motion to dismiss. Id. at 889 (emphasis added).
In contrast with National Wildlife Federation, Fraser alleged that she derived pleasure from the half-acre wetland that Sea Island filled, that she also has seen it after it was filled, and that she has observed the immediate area surrounding the wetland. Those allegations differ from an averment that a person‘s aesthetic interest is harmed solely because he uses part of a two-million-acre area, a small portion of which was opened to mining and oil and gas leases.
Sea Island‘s position would require a plaintiff to have climbed on top of the arches in Arches Nationаl Park to challenge their destruction or to have stepped on the Old Faithful geyser at Yellowstone National Park to challenge its destruction. That position finds no support in case law. Cf. Lujan, 504 U.S. at 562–63 (“[T]he desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.” (emphasis added)).
Federal courts enjoy the power to protect an interest that is “shared by the many rather than the few.” Morton, 405 U.S. at 734. And “[t]he fact that an injury may be suffered by a large number of people does not . . . make that injury a nonjusticiable generalized grievance.” Spokeo, 578 U.S. at 339 n.7. An injury can be “widely shared,” id., and remain actionable so long as “the impact on [the] plaintiff is [not] plainly undifferentiated and common to all members of the public,” Lujan, 504 U.S. at 575 (emphasis added) (alteration adopted) (internal quotation marks omitted). Not every citizen will drive by the wetland that Sea Island filled, nor will every citizen be bothered by not seeing the wetland in its natural state. Cf. id. (rejecting an injury that “affect[ed] only the generalized interest of all citizens” (emphasis added) (internal quotation marks omitted)).
Even if Sea Island is correct that the environmentalists have no recreational interest in the filled wetland itself because they have no ability to recreate on Sea Island‘s private property, that argument does not apply to Frasеr‘s alleged aesthetic interests in the
Sea Island also argues that the environmentalists cannot establish that they will suffer an injury that will occur at a “fixed and specific time” in the future as is required to request an injunction because any harm that they might have suffered occurred at a discrete time in 2013. (Citing Am. C.L. Union of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1193–94 (11th Cir. 2009).) This argument is without merit because the environmentalists’ theory
Fraser adequately alleged that she suffered an injury to her aesthetic interests in the wetland because she has viewed the wetland, derived aesthetic pleasure from its natural habitat and vegetation, and now derives less pleasure from the unnatural grasses and lawn placed on the wetland. Those allegations are sufficient to establish an injury in fact at this stage, and the district court erred in concluding otherwise.
IV. CONCLUSION
We VACATE the order of dismissal and REMAND for further proceedings.