*1 306 (a) prior occasions
therefore, under Rule 417 Both admissible (1). driving alcohol, as does this case. On under the influence of involved prior occasions, asked to submit to a state- Frost was both required by And as in this case. 40-5-55, administered test prior occasions, found in circumstances Frost was on one of remarkably he was found in this case. similar to those which (a) Appeals not it held that Rule 417 would erred when Court permit evidence, reason, and for that the admission of such judgment of the Court of is reversed.
Judgment concur. reversed. All the Justices 15,
Decided June Emily Barry Morgan, Solicitor-General, Tatum, Deborah M. E. appellant. Keener, Solicitors-General, for B. Assistant George appellee. Creal, Jr., for C. et al. TURNER v. GEORGIA RIVER NETWORK
S14G1780. OF COMMISSIONERS S14G1781. GRADY COUNTY BOARD v. RIVER NETWORK et al. GEORGIA (773 706) SE2d BENHAM, Justice. appeal grant petitions for certiorari filed
This arises from our by appellants Turner, Judson H. the Director of the Environmental (EPD) Georgia Department Division of Natural Protection (DNR), Grady County Resources Board of Commissioners Appeals’s (Grady County), requesting our review Georgia App. Turner, decision in River Network v. 328 Ga. 381 123) (2014). Appellees Georgia River Network and American non-profit organizations. facts show Rivers are both relevant approval Grady County received federal to construct a that building large fishing project lake.1 The also entailed dam 960-acre inundating and nine miles of streams to acres wetlands County proceed project, Grady the lake. To was create with required through EPD in for a buffer variance order to project. be disturb the stream waters that would affected Grady County’s Appellees challenged arguing variance, application was deficient because it failed to address buffers for the Turner, supra, App. Georgia v. at 383-384 for a full recitation See River Network Ga. of the facts. project. The Director wetlands that would also be affected appellees’ objections. separate granted letter, the variance over appellees the EPD advised that wetlands did not buffers subject they generally and were not because lack request. Appellees sought review of the Director’s to a variance judge (ALJ) in the Officeof State decision from an administrative law Hearings. variance, Administrative The ALJ overturned the reason- *2 ing (b) (15) (A) § that OCGA 12-7-6 ofthe Erosion and Sedimentation requires including waters, Act The a buffer for all state wetlands. Grady County appeals challenging Director and filed the ALJ’s superior County Grady County, in the decision courts of Fulton respectively. the construction and inter- On the substantive issue of pretation (b) (15) (A),2 of both trial courts determined § OCGA 12-7-6 that the correct and that Director’s construction of statute was requirement only applies the buffer to state waters that have wrested vegetation. Accordingly, judgment the trial courts reversed the of the Appellees appealed Appeals. ALJ. then to the Court of § states as follows: “There is estab- along waters, lished a 25 footbuffer horizontally the banks of all state as measured from the where has been wrested Citing principles normal stream flow or wave action. . . .” of statutory Appeals construction, the Court of concluded that this requirement applies to state waters3 whether or not their Appeals explained banks have wrested The Court of language regarding the buffer is to be measured did not how exception (b) (15) (A),4 create an additional to OCGA 12-7-6 but merely explained App. of the buffer. at location 328 Ga. Appeals addition, the that the inter- Court of reasoned statute was nally applied finding inconsistent and that its that the buffer to all regard to the existence of wrested contrary legis- would avoid absurd or unintended result to the enacting legislation. lature’s in Id. at 392. Based on this analysis, Appeals the ALJ had not erred and Court found granted reversed the decisions of the trial courts. We certiorari to Appeals determine whether the Court of erred its construction of appellees statutory right concerning There were also issues whether the had a decision, standing to but those issues are not before us in this seek review of Director’s appeal. dispute Appeals parties noted that the did not that “wetlands” fall within the Court statutory it had not definition of “state waters” and stated that it would not reach that issue as fully 390, appeal. litigated. been Id. at n. 4. likewise do not address this issue on We statutory exceptions bufferrequirementwhichappearatOCGA There are six (b) (15) (A) (i)-(vi). exceptions appeal. These are not at issue in this (b) (15) (A). err, Because we find that it did its § 12-7-6 judgment is reversed. statutory requires
The cardinal rule of construction diligently Court to look for the intention of the General Assembly (OCGA 1-3-1), golden rule of requires language construction us to followthe literal of the produces absurdity, contradiction, it statute unless such legislature [e]nsure an inconvenience as to something that the meant contrary else. Absent clear evidence that a mean- ing legislature, assign was intended we words ordinary, logical, meanings. and common statute their (Citations punctuation omitted.) Georgia Judicial Council v. 894) (2010). Gallo, LLC, Brown & 288 Ga. 296-297 language Here, the Court of erred because the literal alongside statute does not a buffer for state waters banks language pertinent at issue states in without part: “There is established a 25 foot buffer the banks of all state waters, as measured legislature placed period
has been wrested. . . .” Had the after the gone further, word “waters” rather than a comma and had then *3 there would be no other conclusion but that buffers are established regardless the banks of all state of the existence of vegetation. legislature By wrested But that is not what the did. adding phrase the “as measured Assembly expressly wrested,” has been the General defined legislature
how the buffer “is established.” Since the offered no other measuring method for the buffer to be it established but for horizon- tally vegetation, necessarily of wrested the buffer applied adjacent cannot be to state waters that are to banks without vegetation. analysis required. wrested No further is plain reading (b)(15) (A) keeping § Our of OCGA 12-7-6 is in with longstanding statutory “expressio tenets of construction: unius est (expression thing implies another) exclusio alterius ofone of exclusion expressum (if things expressly and cessare taciturn some are facit stronger mentioned, the inference is that those not mentioned were excluded)....” State, intended to be See Hammock v. 277 612 Ga. (592 (b) (15) (A) 415) (2004). § SE2d The courts cannot construe OCGA 12-7-6 legislature expressly
to force an outcome that the did not separation powers “The authorize. doctrine of is an immutable principle strictly constitutional which must be enforced. Under belongs legislation doctrine, courts, construction to and (Citation a line to the law.” We can not add legislature. (1) (644 814) omitted.) Wright, Allen v. Ga. punctuation not for the (b) (15) (A) simply OCGA 12-7-6 does (2007). § adjacent are to banks of a buffer for state waters that establishment requirement to vegetation.5 wrested order buffer vegetation, alongside to state waters banks without wrested amend the statute. legislature would need to take action to as its Accordingly, judgment regards construction of the statute is reversed.6 J., Hines, J., Hunstein and
Judgment Thompson, reversed. C. P. J., Blackwell, JJ., Melton, H. concur. Judge Gibbs Flanders Chief Nahmias, J., disqualified. dissents. MELTON, Justice, dissenting. written, there is no (b) (15) (A) currently
As OCGA 12-7-6 is § guidance as to the measurement of a zone for waters and, in the lacking ambiguity, This raises an deference presence ambiguity, give strong of such an this Court must (b) (15) (A) suggests it be absurd to attribute to OCGA 12-7-6 its The dissent that would § plain meaning vegetation along their banks because that would leave state waters with no First, unprotected. wrong respects. appears principal purpose The dissent is in two it that the (cid:127) — n requirement protect specific way by protecting of the buffer is to state waters in a whatever (2) (defining vegetation grows alongside state waters. See OCGA 12-7-3 “buffer” as § immediately adjacent state waters in its natural state “the area of land to banks of quality aquatic (emphasis which water habitaf facilitates natural, supplied)). (b) (15) (B) (“a See also OCGA 12-7-6 buffer shall remain in its undis § land-disturbing are turbed state of until all activities on the construction site achieved, may completed,” and after “the final stabilization of the site is a buffer be thinned or long protective vegetative cover trimmed of as as a remains canopy quantity keep habitat and a natural is left in sufficient shade on bed”). nothing preserve, stream Where there is no natural there is and so the Assembly requirements of the General to limit the buffer to state waters with wrested decision vegetation is not absurd. Secondly, the fact that 12-7-6 is not the the dissent fails to consider OCGA § only protects means which the EPD state waters both with and without wrested alongside only The establishment of buffers for state waters banks with wrested practices,” accomplish many management or “best available to the intent of the one of tools See, e.g., (a) (1), Erosion and Sedimentation Act as stated in OCGA 12-7-2. § Georgia, Georgia (b) (1)-(14). See also Manual Erosion and Soil 12-7-6 Sediment Control for (manual specifically (6th 2014) referenced and Water Conservation Commission ed. 12-7-6(b)).ThereisnobasisforthecourtstoextrapolatetheapplicationofOCGA *4 (b) (15) (A)beyond assumption its literal terms based on an incorrect that state waters land-disturbing vegetation protection” left from activities are without “some level of Moreover, required under of the Act. because the establishment of a buffer is not one subsection wetlands, practices” equipped management the “best are for the courts are not to decide what streams, any trout or other state waters. express Appeals’s limited 3 of the Court of decision. We Our review is to Division Appeals’s opinion regarding the substantive decisions made in Division decision. by interpretation the Director of the of the statute made (EPD) Georgia Department Division ofthe Environmental Protection however, case, the EPD’s Natural Resources. (b) (15) (A) requires no buffer at all for state § 12-7-6 that OCGA explicit vegetation given unreasonable, without wrested waters purpose protection to all state of the statute to lend some level of respectfully result, As a I must dissent. waters. Sedimentation Act of 1975 was intended to
The Erosion and vegetation protect waters and related wildlife and state disturbing effects ofsediment and erosion caused land detrimental plainly states: activities. OCGA deposition It is found that soil erosion and sediment lands and into waters within the watersheds of this onto occurring widespread state are as a result of failure to practices proper soil erosion and sedimentation control clearing, movement, land soil and construction activities deposition and that erosion and sediment result in such pollution damage agricul- domestic, and to of state waters tural, recreational, wildlife, fish and and other resource policy uses. It is therefore declared to be the ofthis state and chapter strengthen the intent of this present and extend the pro- erosion and sediment control activities and grams this state and to establishment and implementation comprehensive of a state-wide soil erosion program protect control and sediment conserve water, air, land, and other resources of this state. Legislature reason, For this established buffer zones to protect ity. disturbing proxim- state from land in their waters activities defines a “buffer” as “the area of land imme- diately adjacent to the banks of state in its natural state of waters vegetation, which facilitates the (Emphasis supplied.) particular habitat”'7 buffer at issue logically which has been natural statute is to state waters without wrested In footnote requirements vegetation growing along state untenable, remains, there is pulled away nothing the natural as it rests on the idea that there will never be likely growing left. To the to state waters with wrested majority opinion argues preserve, vegetation growing along contrary, from the water banks and so the decision of the General waters. where there is no The absence of wrested flowing It later states: “Where there is no natural up the statute is intended to water, is not absurd.” This banks. Even does not mean that wresting any natural the absence of wrested Assembly action, if the vegetation along argument the natural protect to limit the there is no *5 (b) (15) (A), in requires is set forth in OCGA 12-7-6 which this matter along the banks all state as “a 25 foot has been where measured (Emphasis supplied.) by normal stream flow or wave action.” wrested problem statute, however, it does not with this is that along measurement for a buffer zone the banks state waters upon result, EPD without interpret As a is called wrested underlying meaning way to effectuate its the statute exists. the context where wrested presence ambiguity, strong deference In the of such an overt interpretation given by given must be appropriate to the of the statute agency. U.S.A., administrative As set forth in Chevron (II) Council, Inc., Inc. v.Natural 467 U. S. Resources Defense 694) (1984): 2778, 81 LE2d SCt power agency of an administrative to administer a congressionally program necessarily requires the created policy making any gap fill formulation of of rules to by Congress. Congress implicitly explicitly, left, If or has explicitly agency express gap fill, left a there is an authority specific delegation agency to the to elucidate a provision by regulation. legislative regu- of the statute Such controlling weight they given lations are unless are arbi- trary, capricious, manifestly contrary to the statute. legislative delegation agency Sometimes the to an on a particular question implicit explicit. rather than In such a may case, a court not substitute its own construction of a statutory provision interpretation for a reasonable made agency. the administrator of an
(Citations punctuation omitted.) given mind, this in deference must be to the determination
With veg- by the Director of the EPD that state waters without wrested required deference, etation are entitled to no buffer at all. The strong, however, Here, inter- but not absolute. the EPD’s extreme pretation and mani- of OCGA 12-7-6 is unreasonable festly contrary “protect statute, which is intended Providing no buffer habitat” of all state waters. presence suggest appropriate for the continued of natural which would conditions appropriate contrary, To the it would would not he an reason to have no buffer at all. provides no buffer to make it even more unreasonable to resort to an vegetation works to waters without sufficient wrested at all to state purpose, and, such, cannot be as the detriment of considered reasonable. interpretation becomes even more
The arbitrariness ofthe EPD’s (b) (16), provides, considers OCGA 12-7-6 which evident when one part: buffer, as measured horizon- “[t]here in tally is established a 50 foot has been wrested normal action, the banks of state waters stream flow or wave pursuant Chapter as ‘trout streams’ to Article of 5 of classified protected interpretation, trout would be title.” Under the EPD’s solely they swimming in a stream with based on whether were — that makes no sense and one a distinction Legislature would not have intended. which *6 may reasonably Accordingly, though EPD I do believe that the (b) (15) (A),8 interpret ambiguity present in OCGA 12-7-6 interpretation must extend at least some level of buffer vegetation. Otherwise, the state waters without wrested the Erosion and Sedimentation Act water inappropriately undermined. habitat for all state waters is June Decided Attorney Byrd, Deputy Attorney Olens, General,
Samuel S. Isaac Hennelly, General, Coots, D. John E. James Senior Assistant Attor- neys Attorney General, Grant, General, Britt C. for Turner. Assistant Sapp, Hunt; III,
William Nathaniel H. Charles M. Cork for W. Georgia River Network. Tolley Tolley,
Cook, Noell, Bates, Smith; & Edward D. Devin H. Cauley, Grady County Kevin S. for Board of Commissioners. King Barmeyer, Spalding, Jones; & Patricia T. Lewis B. Stack & Associates, Stack, Jeselnik, Donald D. J. Kevin H. amici curiae. majority opinion proposes plain arguing mischaracterizes this that this statement regarding management practices that the courts should make decisions and the size of plainly stated, opinion expertise buffer zones. As leaves those of the EPD. decisions However, agency vague where an administrative makes an unreasonable of a statute, case, duty as in this it is the of the courts to the EPD to reassess its interpretation.