Coastal Conservation League v. S.C. Dep't of Health & Envtl. Control

Full title: Coastal Conservation League, Petitioner, v. South Carolina Department of…

Court: Court of Appeals of South Carolina

Date published: Sep 19, 2022

No. 22-ALJ-07-0082-CC (S.C. Ct. App. Sep. 19, 2022)

Opinion

22-ALJ-07-0082-CC

09-19-2022

Coastal Conservation League, Petitioner, v. South Carolina Department of Health and Environmental Control, Price Sloan, Carolyn Sloan, Mark Tiberio, Anne Tiberio, Michael Schulte, Laura Schulte, and Northwest Properties of Hickory, LLC, Respondents.

For Petitioner: Leslie S. Lenhardt, Esquire Emily M. Nellermoe, Esquire Amy Elizabeth Armstrong, Esquire. For Respondent DHEC: Bradley David Churdar, Esquire Sallie Page Phelan, Esquire. For Respondents Property John Joseph Owens, Esquire Owners: Randolph Russell Lowell, Esquire Stephen Lewis Goldfinch, Jr., Esquire.

Robert L. Reibold Administrative Law Judge.

For Petitioner: Leslie S. Lenhardt, Esquire Emily M. Nellermoe, Esquire Amy Elizabeth Armstrong, Esquire.

For Respondent DHEC: Bradley David Churdar, Esquire Sallie Page Phelan, Esquire.

For Respondents Property John Joseph Owens, Esquire Owners: Randolph Russell Lowell, Esquire Stephen Lewis Goldfinch, Jr., Esquire.

ORDER GRANTING PETITIONER'S MOTION IN PART, DENYING PETITIONER'S MOTION IN PART, GRANTING THE DEPARTMENT'S MOTION, & ISSUING AN AMENDED ORDER

Robert L. Reibold Administrative Law Judge.

STATEMENT OF THE CASE

This matter is pending before the South Carolina Administrative Law Court (the ALC or the Court) pursuant to a request for contested case hearing filed on March 8, 2022, by the South Carolina Coastal Conservation League (Petitioner), challenging a conclusion of the South Carolina Department of Health and Environmental Control (the Department or DHEC). Petitioner is specifically challenging a conclusion of DHEC's Board (the Board) that a coastal erosion research study proposed by Dr. Paul Gayes of Costal Carolina University (CCU) on the use of geotextile sandbags¹ in critical areas at DeBordieu Colony in Georgetown County was "allowed" to proceed pursuant to the South Carolina Coastal Tidelands and Wetlands Act and the Beachfront Management Reform Act (BMA).² Price Sloan, Carolyn Sloan, Mark Tiberio, Anne Tiberio, Michael Schulte, Laura Schulte, and Northwest Properties of Hickory, LLC (collectively, Property Owners) placed the geotextile sandbags at issue in this matter in the critical area without a permit as required by the Department.³ Dr. Gayes, Director of CCU's Burroughs & Chapin Center for Marine and Wetland Studies, proposed the research study to the Department's office of Ocean & Coastal Resource Management (OCRM). Petitioner is a non-profit membership corporation organized and existing under the laws of the State with the stated mission of working to protect the health of the natural resources of the South Carolina coastal plain.

1 The geotextile sandbags at issue in this matter are pillow-shaped synthetic sandbags designed and manufactured by HUESKER. Throughout the record, these bags are also referred to "geotextile systems," "geotubes," and "geosynthetic sandbags." For simplicity, the Court will refer to them as geotextile sandbags throughout this order.

2 S.C. Code Ann. § 48-39-10 et seq. (2008 & Supp. 2021).

3 Separate enforcement matters for these permitting violations are pending with the Department as of the date of this order.

On May 10, 2022, Property Owners filed a motion to dismiss, arguing Petitioner failed to name and timely serve its request for a contested case hearing on all requisite parties-specifically, upon Dr. Gayes-in violation of the Court's rules. On May 17, 2022, this Court noticed a hearing on the motion to dismiss for July 25, 2022. Petitioner filed a response to Property Owners' motion to dismiss on May 20, 2022, challenging Property Owners' contention that the Court should dismiss this matter. The parties additionally furnished prehearing statements. On June 2, 2022, the undersigned noticed a hearing on the merits for September 13-15, 2022, should the motion to dismiss not be dispositive. On June 14, 2022, the parties filed a consent motion for expanded discovery, requesting an additional thirty days to respond to discovery requests, permission to conduct up to ten depositions per party, and permission for discovery to extend beyond the 90-day timeframe set forth in SCALC Rule 21(A); the undersigned granted the consent motion.

The hearing on the motion to dismiss was held on July 25, 2022. Subsequently, the Court granted the motion to dismiss by written order dated August 10, 2022. The Court ruled that Dr. Gayes should be a party, and was not timely served, thereby requiring dismissal, or alternatively that, if Dr. Gayes were properly considered not to be party, the matter did not present a contested case hearing, as that term is defined in the Administrative Procedures Act, depriving the Court of jurisdiction. On August 22, 2022, Petitioner filed a motion to reconsider, and DHEC filed a motion for clarification.

For the reasons set forth below, the undersigned grants Petitioner's motion in part, denies Petitioner's motion in part, grants DHEC's motion, and issues an amended order that is attached to this order.

DISCUSSION

Petitioner's Motion for Reconsideration

SCALC Rule 29(D) expressly permits a party to "move for reconsideration of a final decision of an administrative law judge in a contested case to alter or amend the final decision, subject to the grounds for relief in Rule 59, SCRCP," and as further provided by the Court's rules. Rule 59, SCRCP, permits a party to file a motion to alter or amend a judgment within ten (10) days after receipt of written notice of the entry of the order which is the subject of the motion. Rule 59(e), SCRCP. Petitioner filed its motion on August 22, 2022. The Court concludes the motion was timely filed. See SCALC Rule 3(A).

Rule 59 permits a court to correct factual errors in an order, Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996), and to reconsider arguments and issues of law, S.C. Dep't of Transp., 361 S.C. 9, 21, 602 S.E.2d 772, 778 (2004) ("A motion under Rule 59(e) long has been viewed as a 'motion for reconsideration' despite the absence of those words from the rule."); see also Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993) (explaining a motion to alter or amend a judgment under Rule 59(e), Fed. R. Civ. P., may be made on three grounds: "(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice").⁴ However, a party cannot use a Rule 59(e) motion to present to the court an issue that the party could have raised prior to judgment but did not. Hickman v. Hickman, 301 S.C. 455, 456-57, 392 S.E.2d 481, 482 (Ct. App. 1990).⁵ Reconsideration of a judgment after its entry is generally considered an extraordinary remedy which should be used sparingly. See Pac. Ins. Co. v. American Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).

4 Petitioner's motion purports to also be made under Rule 60, SCRCP. To the extent Petitioner raises that the Court incorrectly referred to a potion of the BMA, that matter is addressed within this order. However, to the extent Petitioner raises any other grounds pursuant to Rule 60, those matters are not properly raised and asserted here. Cf. Bodkin v. Bodkin, 388 S.C. 203, 219, 694 S.E.2d 230, 239 (Ct. App. 2010) (stating when no fraud was alleged, a Rule 59 motion was the appropriate vehicle to raise a court's failure to address an issue or argument).

5 Some of the arguments raised by Petitioner are arguments raised for the first time in its motion to reconsider. As a result, these arguments were not previously considered by the Court and are not properly before the Court now. The arguments not considered under this rule are as follows: equitable estoppel and the failure of Property Owners to lift the automatic stay imposed by section 1-23-600(H) of the South Carolina Code. (Supp. 2021).

Applying this standard, the Court will address the arguments made by Petitioner in the order in which they were raised by Petitioner.

I. Rule 19, SCRCP

Petitioner argues that the Court failed to consider its argument that Rule 19, SCRCP, is instructive. For the sake of clarity, the Court confirms that it considered Petitioner's argument, but ultimately the Court elected not to apply Rule 19, SCRCP.⁶ Application of the Rules of Civil Procedure in the ALC is discretionary. See SCALC Rule 68 ("The South Carolina Rules of Civil Procedure and the South Carolina Appellate Court Rules, in contested cases and appeals respectively, may, in the discretion of the presiding administrative law judge, be applied to resolve questions not addressed by these rules." (emphasis added)).

6 The facts of this case make it difficult to apply Rule 19, SCRCP. For example, for Rule 19 to apply to any individual or entity, that person or entity must be "subject to service of process." Rule 19(a), SCRCP. In the Court of Common Pleas, the requirement that the person to be added be subject to service of process typically poses no problem. Timeliness of service is not an issue which ordinarily affects the availability or validity of service of process. In contrast, the jurisdiction of the ALC is limited and as a result, untimely service can be a jurisdictional defect. The Court has already concluded that service of process cannot be timely made on Dr. Gayes, calling satisfaction of the requirement that Dr. Gayes be subject to service of process into doubt. Additionally, if the failure to name Dr. Gayes as a party and serve him the request for a contested case hearing is truly jurisdictional, then the Court lacks the power to apply Rule 19 to these proceedings.

In any event, application of Rule 19 does not require that Dr. Gayes be added as a party. Rule 19(a) is used to determine when a particular party should be joined. Petitioner correctly notes that subsection (a) of the rule defaults to the requirement that courts order necessary parties be added. See SCRCP Rule 19(a) ("If he has not been so joined, the court shall order that he be made a party." (emphasis added)).

Petitioner, however, does not consider the import of subsection (b) of Rule 19. This subsection requires the Court to consider whether the party in question can actually be made a party, and if not, to consider whether the action should proceed in the party's absence. While Petitioner argues that there is no evidence that Dr. Gayes cannot be made a party, the Court has previously concluded that this argument is in error; Dr. Gayes cannot be added as a party to this matter. Petitioner was required to serve Dr. Gayes within thirty (30) days of the Board's decision. No one, including Petitioner, has provided the Court with any authority for the proposition that the Court can alter this deadline. To the extent SCALC Rule 3(B) can be construed to grant the Court discretion to alter the timeline for service upon Dr. Gayes, the Court has previously ruled that the requirements of Rule 3(b) were not satisfied.⁷ While it might have been possible for Dr. Gayes to intervene of his own volition, it is no longer possible for the Court to force Dr. Gayes to participate.

7 Petitioner did not challenge the Court's order with respect to the application of SCALC Rule 3(B) and did not furnish any evidence of good cause.

Because the Court concludes Dr. Gayes cannot be added, Rule 19, were it applied, would next require the Court to consider whether in equity and good conscience, the matter should proceed in Dr. Gayes's absence. SCRCP Rule 19(b). The Court concludes that equity and good conscience do not require that the action should proceed in Dr. Gayes's absence. The remedy sought by Petitioner, which is reversal of the Board's decision that Dr. Gayes's research study may proceed, is not adequate if Dr. Gayes is not a party because Dr. Gayes would not be bound by the Court's decision. If Dr. Gayes, the party who will conduct the study, is not bound by the Court's decision, then the Court's decision essentially becomes an advisory opinion.

In summary, had the Court applied Rule 19, it would nevertheless have dismissed the contested case.

The Court has not overlooked Petitioner's contention that Property Owners have orchestrated the study to circumvent sandbag regulations. Petitioner argues the Court was incorrect to suggest that Property Owners might be neutral or even opposed to Dr. Gayes's study. According to Petitioner, Dr. Gayes is an agent of Property Owners.

This argument misses the thrust of the Court's order. The Court did not mean to suggest that Property Owners are neutral. Indeed, it was Property Owners who filed the motion to dismiss. Property Owners' counsel also edited Dr. Gayes's proposal, at least in part, before it was submitted to the Department. None of that, however, changes the fact that Property Owners would not be legally bound by a decision on the merits were the Court to permit the case to continue in Dr. Gayes's absence. The Court presumes that Property Owners would continue to support the research study if the Court made a decision on the merits. The point made by the Court in its prior order is that Property Owners would not be legally compelled to support the study.

Petitioner also argues that the Court's conclusion that the Department looked exclusively to Dr. Gayes and/or CCU is misplaced. This conclusion is found in footnote 11 of the Court's August 10, 2022 order in a brief discussion of privity for purposes of res judicata. In that footnote, the Court expressly stated that the issue of privity "is not currently before the Court." The statement with which Petitioner takes issue is therefore by definition dicta, and not material to the outcome of the motion to dismiss.

Petitioner's final argument in the first section of its motion is that Property Owners must be estopped from arguing that Dr. Gayes is a necessary party because they failed to name him in their own request for final review before the Board. As noted in footnote five of this order, Petitioner raises equitable estoppel for the first in its motion to reconsider; thus, this argument is not proper for a motion to reconsider. However, the Court will still address Petitioner's argument.

"The doctrine of equitable estoppel applies if a person, by his or her actions, conduct, words, silence amounting to a representation, or concealment of facts, causes another to alter his or her position to his or her prejudice or injury." Rushing v. McKinney, 370 S.C. 280, 293, 633 S.E.2d 917, 924 (Ct. App. 2006) (quoting Hubbard v. Beverly, 197 S.C. 476, 480, 15 S.E.2d 740, 741 (1941)).

Our supreme court has opined about the elements of estoppels as the following:

The essential elements of equitable estoppel as related to the party estopped are: (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intention, or at least expectation, that such conduct shall be acted upon by the other party; and (3) knowledge, actual or constructive, of the real facts. As related to the party claiming the estoppel, they are: (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) action based thereon of such a character as to change his position prejudicially.

Boyd v. Bellsouth Tel. Tel. Co., 369 S.C. 410, 422, 633 S.E.2d 136, 142 (2006).

These elements are not satisfied here. The Court struggles to see how Property Owners' failure to list Dr. Gayes as a party on their request for board review can be viewed as fraud or concealment, but even if the first element is met, there is no evidence whatsoever that Property Owners intended to cause Petitioner to omit Dr. Gayes from their request for a contested case hearing. Additionally, Petitioner at all times either knew or had the means of knowing that Dr. Gayes should be a party to the case. Finally, Petitioner has presented no evidence, or even argument, that it relied on Property Owners' failure to name Dr. Gayes in their requests for board review as the reason they omitted Dr. Gayes from their request for a contested case hearing.

Because the requirements for estoppel are not satisfied, it would be inappropriate to apply the doctrine to Property Owners.⁸

8 Petitioner makes one brief additional argument that Dr. Gayes should not be considered a party because he personally did not request a final agency review. Petitioner cites no authority for this proposition, and facially, appears to be incorrect. For example, in a civil case involving co-plaintiffs or co-defendants, only one co-plaintiff or co-defendant may file a notice of appeal. That only one party sought appellate review, however, does not mean that the co-plaintiffs or co-defendants in the case below are no longer parties to the case.

II. Existence of a Contested Case

Petitioner next addresses the Court's conclusion that if Dr. Gayes is not required to be a party, as Petitioner contends, then this matter is not a proper contested case proceeding. Petitioner challenges both of the Court's bases for this conclusion: (1) that in Dr. Gayes's absence the proceeding does not involve the rights of a party; and (2) that neither the Department nor the Court were required by law or the South Carolina Constitution to determine this issue, both of which are definitional elements of a contested case hearing. See S.C. Code Ann. § 1-23-505(3) (2005 & Supp. 2021).

A. Rights of a Party

Petitioner takes issue with the Court's conclusion that it is Dr. Gayes's rights which Petitioner hopes to affect, and instead insists that which it hopes to accomplish in proceedings before this Court is to address the "flagrant violation of the law by Property Owners."⁹ Pet'r's Mot. to Recons. at 6. Petitioner argues that Property Owners' rights would be determined were the Court to allow the case to proceed, making this case a proper contested case.¹⁰

9 This statement of Petitioner's true purpose in requesting a contested case illustrates the flaw in Petitioner's position. Petitioner is attempting to use a contested case involving a research exception to the permitting requirement as an enforcement action against Property Owners. However, as noted in the Board's determination, the Department is currently involved in a separate enforcement proceeding. The Court understands that Petitioner is frustrated by what it perceives as a violation of environmental regulations, but this matter is not an enforcement action. Petitioner is attempting to use a contested case hearing for a purpose it was not designed to achieve. If Petitioner's true purpose is to prevent Property Owners from violating Department regulations, the Court is not the proper forum. Rather, actions to enforce Department regulations involving coastal tidelands and wetlands are properly brought in the Court of Common Pleas. See S.C. Code Ann. § 48-39-160.

10 Petitioner's statement that the pilot project approval "does not involve Dr. Gayes in any way" borders on the absurd. Dr. Gayes is the person who submitted the research proposal and would undertake the project if authorized.

Petitioner suggests that Property Owners have rights in the research exemption that would be determined in this proceeding because:

▪ Property Owners first placed the sandbags at issue on the beach;

▪ If Property Owners had not placed the sandbags, then Dr. Gayes would have nothing to study;

▪ If Dr. Gayes's study is not permitted to move forward, then Property Owners would be required to remove the sandbags; and

▪ Property Owners commissioned the study by Dr. Gayes.

Petitioner also argues that Property Owners have rights which may be determined in connection with the pilot project exemption because Property Owners placed the sandbags on the beach and had meetings about a possible pilot project before Dr. Gayes became involved.

These arguments all rest on what appears to be Petitioner's primary complaint-that Property Owners are using the study by Dr. Gayes to commit what Petitioner argues is a flagrant violation of the law. Petitioner notes Property Owners were the ones who initially installed the sandbags, that Property Owners will have to remove the sandbags if the study is not permitted to proceed, and that Property Owners commissioned the study.

Were this an enforcement proceeding, the Court would agree with Petitioner that Property Owners have rights which would be determined herein and its conclusion regarding the existence of a contested case would have been different. However, despite the fact that Petitioner is clearly attempting to use this proceeding to enforce the Department's regulations against Property Owners, this matter is not an enforcement proceeding. The Board decision below specifically refers to the separate, pending enforcement action by the Department and concludes that the enforcement action is not moot. It explicitly authorizes the Department to proceed with the enforcement action.

Assuming the matter were to proceed to the merits, the questions before this Court were focused on whether the proposed study meets the requirements for one of the two exceptions to the permitting process. The prehearing statement filed by Petitioner includes a list of nine separate issues to be presented for determination.¹¹ All of the issues presented by Petitioner in this list focus on the propriety of the research exemption. None of the issues presented in this lengthy list ask this Court to determine whether the sandbags should be removed or whether Property Owners should be punished for violating the Department's regulations.

11 The prehearing statement filed by Petitioner identified the following issues to be presented for determination: (a) whether it was proper for the Board to undertake a review of a request for a permit exemption when there was no permitting decision to review; (b) whether the DHEC staff correctly concluded that the proposed activities did not qualify for a permit exemption for research purposes; (c) whether the Board's decision to authorize the placement and covering of sand bags is arbitrary and capricious; (d) whether the Board's FAD was issue in error by citing to not one but two separate and distinct statutory provisions as a basis for its order; (e) whether the Board arbitrarily cited to section 48-39-320(c) of the South Carolina Code as a basis for its approval; (f) whether Dr. Gayes was in fact acting as an agent for Property Owners in seeking a research exemption, when Property Owners were responsible for the illegal placement of the sand bags over a year before the research request was sent to DHEC-presumably Petitioner contends that if Dr. Gayes was an agent of Property Owners, then the research study was not submitted by an educational institution and would therefore not qualify for the exemption-; (g) whether the permanent placement of sand bags and their covering with sand qualifies as research such that it did not require a permit; (h) whether an alteration of the critical area that is subject to enforcement proceedings and cannot be legally permitted can serve as a research project that is exempt from the Act's permitting requirements; and (i) whether the Act's amendments to replace a policy of retreat with a policy of beach preservation can serve as support for approving illegal alterations to the critical area.

In the Court's view, Petitioner has failed to identify any rights of Property Owners which would be determined by a ruling on whether the Board correctly granted approval for a research study conducted by Dr. Gayes and/or CCU. Property Owners are very likely to cooperate with the study, but an order of the Court in this matter would not require them to do so.

Petitioner also asserts that it has a right, privilege, or duty related to the Board's approval. Essentially, Petitioner argues that it is an affected person with a right to a hearing not only under statutory law but also under the due process clause of the South Carolina Constitution because the impacts of the proposed new technology should be considered in the context of the environmental impacts and that the activities will cause material harm to flora, fauna, physical, or aesthetic resources of the area. Petitioner cites section 48-39-130(D) to support this argument.

This argument is flawed. Petitioner has not responded in any way to the Court's conclusion that the interests it stated were impacted are interests which are not entitled to due process protection. Moreover, Petitioner's citation to section 48-39-130(D) does nothing to change the Court's analysis. This section merely states the legal requirement that for a study to qualify for an exemption to the permit process it must not cause material harm to the area, its wildlife, or vegetation. This section does not purport to vest anyone, let alone Petitioner, with any rights which are protected by due process.

B. Determination Required by Law

Petitioner also asserts that both the Department and the Court are required to make a determination in this matter.¹² It argues that the Coastal Tidelands and Wetlands Act requires the Department to make determinations under both claimed exemptions in this case. With respect to the research exemption, Petitioner claims that the section 48-39-130(D)(2) requires that the Department determine that the proposed activities cause no material harm to flora, fauna, or the physical or aesthetic resources of the area. Section 48-39-130(D)(2) provides in pertinent part:

12 The requirement that the Department or the ALC be required to make a determination of rights is a separate definitional requirement for a contested case. A contested case is proper only where both the rights of a party are to be determined and an agency of the ALC is legally required to make a determination of rights.

(D) It shall not be necessary to apply for a permit for the following activities:

(2) Hunting, erecting duckblinds, fishing, shellfishing and trapping when and where otherwise permitted by law; the conservation, repletion and research activities of state agencies and educational institutions or boating or other recreation provided that such activities cause no material harm to the flora, fauna, physical or aesthetic resources of the area.

With respect to the pilot project exemption, Petitioner argues that section 48-39-320(C) requires the Department to determine whether the project will be reasonably successful in addressing beach erosion or dune area. This section states:

(C) Notwithstanding any other provision of law contained in this chapter, the board, or the Office of Ocean and Coastal Resource Management, may allow the use in a pilot project of any technology, methodology, or structure, whether or not referenced in this chapter, if it is reasonably anticipated that the use will be successful in addressing an erosional issue in a beach or dune area. If success is demonstrated, the board, or the Office of Ocean and Coastal Resource Management, may allow the continued use of the technology, methodology, or structure used in the pilot project

location and additional locations.

Neither of these statutes contain mandatory language directing the Department to make determinations regarding the applicability of permit exemptions. It is, of course, reasonable to assume that in some cases, the Department will be called on to make such determinations. For example, the Department may be called upon to make a determination regarding the applicability of a permit exemption in the context of an enforcement proceeding. Someone against whom an enforcement proceeding is commenced by the Department may assert that there is no permit violation because the activities in question are exempt from the permitting requirement. If an exemption is raised as a defense in an enforcement proceeding, the Department would be required to make a determination regarding the applicability of the exemption.

Again, however, this case is not an enforcement proceeding. Dr. Gayes sought the Department's position on the exemption before undertaking the study. In such cases, the Court believes that section 48-39-355 controls. This section provides:

A permit is not required for an activity specifically authorized in this chapter. However, the department may require documentation before the activity begins from a person wishing to undertake an authorized construction or reconstruction activity. The documentation must provide that the construction or reconstruction is in compliance with the terms of the exemptions or exceptions provided in [s]ections 48-39-280 through 48-39-360.

§ 48-39-355 (2008) (emphasis added). This section specifically addresses the Department's role before an activity that does not require a permit begins. Notably, it does not require the Department to make a determination about the applicability of an exception to the permit requirement before the activity begins. It does not even require the Department to request documentation about an activity before it begins. The Department "may" do so but is not required to do so.

Petitioner also argues that the ALC is required to make a determination in this matter.¹³Petitioner relies on section 44-1-60 for this conclusion. It states that this provision "allows for 'affected persons' to 'file a request for a contested case hearing within thirty days after the final agency decision.'" Pet'r's Mot. to Recons. at 11. This statement is an unsupported conclusion. The text of section 44-1-60 does not provide that it "allows" anyone to file a request for a contested case hearing; it merely describes the procedure that must be followed for persons who are entitled to contested case hearings. Section 44-1-60 is procedural, not substantive, and does not independently authorize contested case hearings. Instead, the authority to request a contested case hearing is found in other statutes, and the persons authorized by these statutes must follow the procedures outlined in section 44-1-60.

13 The Court agrees with Petitioner that section 48-39-180 is not part of the BMA, and the Court's statement in this regard is incorrect. Thus, the Court will amend its order as to this point.

Petitioner also points to the definition of a contested case in the Administrative Proceedings Act. A contested case hearing is defined as:

[A] proceeding including, but not restricted to, ratemaking, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law or by Article I, Section 22, Constitution of the State of South Carolina, 1895, to be determined by an agency or the Administrative Law Court after an opportunity for hearing.

S.C. Code Ann. § 1-23-505(3) (2005 & Supp. 2021). Petitioner highlights the fact that, under this definition, contested case hearings are not restricted to cases involving ratemaking, price fixing, and licensing.

The Court generally agrees with this statement, but Petitioner ignores the remaining requirements found in this definition. To be a contested case, a case involving ratemaking, price fixing, licensing, or even some other matter, must still be one in which: (1) the legal rights, duties or privileges of a party are (2) required to be determined by an agency or the ALC. These additional requirements were the bases of the Court's prior ruling.

Finally, Petitioner questions the Court's reliance on Amisub of South Carolina, Inc. v. South Carolina Department of Health and Environmental Control, 403 S.C. 576, 743 S.E.2d 786 (2013). Petitioner attempts to distinguish the facts of this case from those of Amisub, relying primarily on the fact that in Amisub, there was no requirement that Department staff provide written approval and no such written approval was given. Petitioner is, of course, correct that in this case, unlike in Amisub, the Department issued a written staff decision and a FAD.

This distinction, however, is immaterial to the Court's conclusion. In Amisub, the South Carolina Supreme Court did not hold that a written staff decision or even a FAD triggers the right to a contested case hearing. Rather, it held that the existence of a legal duty on the part of the Department to issue a staff decision is what triggers the right to a contested case hearing. The court in Amisub specifically stated the following:

Since there was no legal duty owed by DHEC to issue a staff decision in this matter, which is the trigger giving rise to a contested case, there was no corresponding obligation that Piedmont be afforded a contested case hearing before the ALC. Accordingly, we hold Piedmont may not utilize the contested case review process where it has not been authorized by the General Assembly.

Id. at 596, 743 S.E.2d at 797 (emphasis added).

As discussed in the Court's prior order and in this order, there was no legal duty on the part of the part of the Department to issue a staff decision on the proposed study before the study began. The Department had discretion to take certain actions prior to the commencement of the study, but it was not required to do so.

The Department's Motion for Clarification

While section 48-39-80 of the South Carolina Code charges the Department with the development, enforcement, and administration of a comprehensive coastal management program, and its interpretation of statutes related to this program are to be provided deference, interpretation of a statute is a question of law for this Court. See generally S.C. Coastal Conservation League v. S.C. Dep't of Health & Envtl. Control, 363 S.C. 67, 75, 610 S.E.2d 482, 486 (2005) ("Courts defer to the relevant administrative agency's decisions with respect to its own regulations unless there is a compelling reason to differ." (emphasis added)). The Department avers that there is no language limiting its ability to "ensur[e] that the activities [occurring in critical areas] cause no material harm to the flora, fauna, physical or aesthetic resources of the area" pursuant to section 48-39-320(C). However, because this specific issue is not before this Court, and is outside of the scope of this proceeding, the Court declines to issue a ruling on the breadth of the Department's authority.

For purposes of this decision, and by way of clarification of the Department's authority as to the specific question currently before this Court, the Court reiterates that the Department was not required to make a decision regarding, or to otherwise grant prior approval for, Dr. Gayes proposed research study.¹⁴ Based on the record before this Court, Dr. Gayes voluntarily requested the Department's input as to his research study prior to initiating it, and the Department provided a discretionary response. In sum, as indicated in the prior order, the Department was not required to make a determination regarding the research study, and therefore, the Court's holding that this matter is not a proper contested case before this Court remains unchanged. In the amended order, this Court has removed the language indicating the Department's authority is limited to requesting documentation as it is immaterial to the Court's decision.

14 In its motion for clarification, the Department inexplicably conflates section 48-39-130(D)(2)'s research study exemption and section 48-39-320(C)'s pilot project exemption. However, as the language of neither section requires the Department to make a determination prior to activity being undertaken under either exemption, the Court will not address each exemption separately.

IT IS THEREFORE ORDERED that to the extent Petitioner argued that the Court should not have cited section 48-39-180, Petitioner's motion to reconsider is GRANTED. In all other respects, Petitioner's motion is DENIED.

IT IS FURTHER ORDERED that the Department's motion for clarification is GRANTED.

IT IS FURTHER ORDERED that the Court's prior opinion is hereby amended, and the amended order attached hereto is substituted in place of the Court's prior order.

IT IS SO ORDERED.

CERTIFICATE OF SERVICE

I, James Smith Harrison, III, hereby certify that I have this date served this order upon all parties to this cause by depositing a copy hereof in the United States mail, postage paid, in the Interagency Mail Service, or by electronic mail, to the address provided by the party(ies) and/or their attorney(s).

AMENDED ORDER GRANTING PROPERTY OWNERS' MOTION TO DISMISS

Robert L. Reibold Administrative Law Judge.

STATEMENT OF THE CASE

This matter is pending before the South Carolina Administrative Law Court (the ALC or the Court) pursuant to a request for contested case hearing filed on March 8, 2022, by the South Carolina Coastal Conservation League (Petitioner), challenging a conclusion of the South Carolina Department of Health and Environmental Control (the Department or DHEC). Petitioner is specifically challenging a conclusion of DHEC's Board (the Board) that a coastal erosion research study proposed by Dr. Paul Gayes of Coastal Carolina University (CCU) on the use of geotextile sandbags¹ in critical areas at DeBordieu Colony in Georgetown County was "allowed" to proceed pursuant to the South Carolina Coastal Tidelands and Wetlands Act and the Beachfront Management Reform Act (BMA).² Price Sloan, Carolyn Sloan, Mark Tiberio, Anne Tiberio, Michael Schulte, Laura Schulte, and Northwest Properties of Hickory, LLC (collectively, Property Owners) placed the geotextile sandbags at issue in this matter in the critical area without a permit as required by the Department.³ Dr. Gayes, Director of CCU's Burroughs & Chapin Center for Marine and Wetland Studies, proposed the research study to the Department's office of Ocean & Coastal Resource Management (OCRM). Petitioner is a non-profit membership corporation organized and existing under the laws of the State of South Carolina with the stated mission of working to protect the health of the natural resources of the South Carolina coastal plain.

1 The geotextile sandbags at issue in this matter are pillow-shaped synthetic sandbags designed and manufactured by HUESKER. Throughout the record, these bags are also referred to "geotextile systems," "geotubes," and "geosynthetic sandbags." For simplicity, the Court will refer to them as geotextile sandbags throughout this order.

2 S.C. Code Ann. §§ 48-39-10 et seq. (2008 & Supp. 2021).

3 Separate enforcement matters for these permitting violations are pending with the Department as of the date of this order.

On May 10, 2022, Property Owners filed a motion to dismiss, arguing Petitioner failed to name and timely serve its request for a contested case hearing on all requisite parties-specifically, upon Dr. Gayes-in violation of the Court's rules. On May 17, 2022, this Court noticed a hearing on the motion to dismiss for July 25, 2022. Petitioner filed a response to Property Owners' motion to dismiss on May 20, 2022, challenging Property Owners' contention that the Court should dismiss this matter. The parties additionally furnished prehearing statements. On June 2, 2022, the undersigned noticed a hearing on the merits for September 13-15, 2022, if the motion to dismiss were not dispositive. On June 14, 2022, the parties filed a consent motion for expanded discovery, requesting an additional thirty days to respond to discovery requests, permission to conduct up to ten depositions per party, and permission for discovery to extend beyond the 90-day timeframe set forth in SCALC Rule 21(A); the undersigned granted the consent motion.

The hearing on the motion to dismiss was held on July 25, 2022. Subsequently, the Court granted the motion to dismiss by written order dated August 10, 2022. The Court ruled that Dr. Gayes should be a party, and was not timely served, thereby requiring dismissal, or alternatively that, if Dr. Gayes were properly considered not to be party, the matter did not present a contested case hearing, as that term is defined in the Administrative Procedures Act, depriving the Court of jurisdiction. On August 22, 2022, Petitioner filed a motion to reconsider, and DHEC filed a motion for clarification. By order dated September 19, 2022, the Court ruled on these motions; this amended order is the result of those motions.

BACKGROUND

Property Owners own beachfront property on the southern end of DeBordieu Beach in DeBordieu Colony, a community development in Georgetown County. On January 24, 2019, the Department issued a critical area permit for a privately-funded renourishment project in this area to address ongoing erosion, including placement of 650,000 cubic yards of sand and the installation of a groin field.⁴ During the spring and fall of 2020, prior to the start of the renourishment project, and without seeking a critical area permit from the Department as required by section 48-39-130 of the South Carolina Code, Property Owners installed geotextile sandbags as a method of erosion control. During a September 23, 2020 routine site inspection, the Department became aware of the unpermitted geotextile sandbags and requested that Property Owners remove them. On September 24, 2020, the Department sent cease and desist directives to Property Owners, followed by notices to comply on October 1, 2020. The Department conducted a follow-up inspection on November 6, 2020, and the geotextile sandbags remained. On December 11, 2020, the Department issued notice of alleged violation letters to Property Owners.

4 This permit is the subject of additional litigation that is currently pending before the South Carolina Court of Appeals. See Coastal Conservation League v. S.C. Dep't of Health & Env't Control & DeBordieu Colony Cmty. Ass'n, App. Case No. 2021-000158, SC Ct. App., appeal filed Feb. 16, 2021.

On October 25, 2021, Dr. Gayes emailed the details of a proposed research study to OCRM for review. A portion of the study contemplated burying Property Owners' geotextile sandbags with sand during the permitted beach renourishment project for purposes of assessing the level of protection the geotextile sandbags may provide after exposure during future erosional events. On November 10, 2021, the Department issued a staff decision, "denying permission" for the sandbags to be left in place and buried, which the Department indicated was prohibited by regulation. See S.C. Code Ann. Regs. 30-15(H)(3)(d) (Supp. 2021). The Department also expressed concern that the research project may interfere with the upcoming beach renourishment project. A request for final review (RFR) was submitted to DHEC by Property Owners on November 23, 2021, and was granted by the Board. While Property Owners acknowledged that the covering of sandbags was prohibited by regulations on erosion control during emergency orders in the RFR, they indicated "Dr. Gayes [was seeking] permission under the 'Educational Institution Research' and/or 'Pilot Project' provisions of the BMA to conduct the study such that the geotextile [sandbags] at the properties could be covered with sand during the upcoming renourishment project." The staff response to the RFR was filed with the Board on December 10, 2021. Public comments were also received and provided to the Board.

A final review conference was held on January 13, 2022, and the Board heard arguments from Property Owners and DHEC staff and viewed a presentation by Dr. Gayes detailing the research proposal.⁵ On February 10, 2022, the Board issued a final agency decision concluding that Dr. Gayes' proposed research study was permissible. The Board found that, as research activity of an educational institution and as a pilot project reasonably anticipated to be successful in addressing an erosional issue in a beach or dune area, the study fell under two statutory exemptions that did not require application for a DHEC permit. See §§ 48-39-130(D), -320(C). The Board detailed that the decision was "made in part upon the representations of [Property Owners] and [Dr. Gayes] that the proposed research activity will have no negative effect on coastal flora or fauna, including no impact to turtle nesting." The Board also clarified that the study was only to be conducted on the sandbags present at the subject properties and that Dr. Gayes was required to coordinate with OCRM staff for the study to proceed and was responsible for obtaining and complying with any related local, state, or federal authorizations and requirements.⁶ Finally, the Board concluded that allowing the research study to proceed did not render OCRM's enforcement actions against Property Owners moot. Following that decision, Petitioner filed the request for a contested case hearing with this Court and only served Property Owners and DHEC.

5 Neither Dr. Gayes nor CCU challenged the Department's staff decision denying the study.

6 At hearing, the parties asserted that the renourishment project was completed in mid-2022; however, the geotextile sandbags at issue in this matter are still in place and uncovered.

DISCUSSION

In the motion to dismiss, Property Owners assert Petitioner failed to: (1) name Dr. Gayes as a party to the contested case and (2) serve Dr. Gayes with the request for a contested hearing. Property Owners further assert that these failures divest this court of jurisdiction over this matter or alternatively, require dismissal of this action because service of the request for a contested case hearing on Dr. Gayes within thirty (30) days after the date of the Board's final decision is a requirement of instituting a contested case proceeding. They argue that Dr. Gayes and/or CCU, as the parties seeking to conduct the study, are real parties in interest and "applicants," such that they are required to be parties to this proceeding.

Petitioner argues Dr. Gayes is not required to be a party to this matter and was, therefore, not required to be served with the request for a contested case hearing. Petitioner notes that in his communications with the Department, Dr. Gayes did not seek a license or permit; rather, he sought to conduct a study which was statutorily exempt from the requirement of a permit or license. According to Petitioner, only a party seeking a permit or license is an "applicant," as that term is defined, and because Dr. Gayes is not an applicant, he was not required to be a made a party to this matter or to be served with a copy of the request for a contested case hearing pursuant to the Court's rules or the Administrative Procedures Act (APA).⁷

7 S.C. Code Ann. §§ 1-23-310 et seq. (2005 & Supp. 2021). The Court refers to the APA as statutory requirements set forth in Chapter 23 of Title 1 of the South Carolina Code.

After careful review of the arguments and submissions of the parties, the Court agrees with Property Owners that Petitioner's failure to name Dr. Gayes as a party and serve him with a copy of the request for a contested case hearing is fatal to Petitioner's case.

I. Dr. Gayes Should Be a Party and Petitioner Was Required to Serve Dr. Gayes with a Copy of the Request for a Contested Case Hearing.

Petitioner's arguments rest upon the definitions of the terms "party" and "applicant." The rules of the Court provide that the term "party" means "each person or agency named or admitted as a party or properly seeking and entitled to be admitted as a party, including a license or permit applicant." SCALC Rule 2(H). SCALC Rule 2(H) further provides that "[a]n applicant or licensee whose application or license is the subject of a request for a contested case hearing shall be deemed a party and shall be served with copies of all papers in this case." Id. (emphases added). Accordingly, if Dr. Gayes is considered to be an applicant, he must be deemed a party, and Petitioner was required to name Dr. Gayes as a party and serve him with a copy of the request for a contested case hearing.

The term "applicant" is statutorily defined as "any person who files an application for a permit under the provisions of this chapter." S.C. Code Ann. § 48-39-10. Relying on this definition, Petitioner asserts that a person who does not file an application for a permit is not an applicant. Petitioner correctly notes that no permit or license is required for Dr. Gayes's study to procced. Instead, a research study and/or pilot project⁸ is exempt from the permitting process. See §§ 48-39-130(D), -320(C). Petitioner therefore concludes that because Dr. Gayes was not seeking a permit or license, he is not an applicant and was not required to be named as a party to these proceedings.

8 At the hearing, counsel for Petitioner noted that the communication from Dr. Gayes to DHEC concerning the research study never used the term "pilot project," suggesting that Dr. Gayes's study might not be properly characterized as a pilot project under the governing statute. However, counsel for Petitioner acknowledged at the hearing that the term "pilot project" is not defined and that the study could potentially qualify as a pilot project.

This argument places form over substance. The APA defines the term "license" as including "the whole or part of any agency permit, franchise, certificate, approval, registration, charter, or similar form of permission required by law." S.C. Code Ann. § 1-23-310(4) (emphasis added). If Dr. Gayes's request for permission to conduct a research study included a request to allow the sandbags to remain in place, the existence of a condition in violation of Department's regulations, then Dr. Gayes can be viewed as having applied for a license. Furthermore, the Court's rules specifically define the term "party" to include an applicant for a "license," and in fact, require that an applicant for license shall be deemed a party and shall be served with a copy of all papers filed, including the request for a contested case hearing. SCALC Rule 2(H).

In this case, the record is clear that Dr. Gayes's request did include a request for permission to allow the sandbags to remain in place for purposes of the study. The Department, Property Owners, and Petitioner viewed Dr. Gayes's proposal as seeking permission or approval from the Department to leave the sandbags in place for the purpose of the study. The subject line of Dr. Gayes's initial October 25, 2021 email to the Department regarding the study was "Beach 'Functionality' Preservation Research Proposal." Ex. 2 to Pet'r's Return to Mot. to Dismiss. The email heading also indicates that an attachment was included with the email. That attachment is entitled "Planned Study and Research Permit Proposal as the State of South Carolina Transitions From A Beachfront Policy of 'Retreat' to 'Preservation.'" Id. (emphasis added). The staff decision issued in letter form by the Department in response to Dr. Gayes's request expressly states that "the Department is not granting permission for any sandbags in South Carolina to be buried and left in place as proposed in your study." Property Owners' Mot. to Dismiss Ex. 18 (emphasis added). Petitioner's own request for a contested case hearing states that it was contesting the Department's decision to issue an "after-the-fact approval" allowing for placement and covering of sandbags.⁹

9 In its letter to the Board opposing a final review hearing, DHEC staff noted that use of the term "permit" was incorrect because Dr. Gayes's study was exempt from the permitting process. This is the same argument made by Petitioner, and it ignores the fact that Dr. Gayes was treated as a permit applicant and did seek approval from DHEC to leave the sandbags in place for his study.

Dr. Gayes was also repeatedly designated as an "[a]pplicant" in the proceedings below. The Department's staff response to the request for review lists the persons requesting review of the staff decision but also separately lists the "[a]pplicant" in the heading. The "[a]pplicant" is listed as "Dr. Paul Gayes, Coastal Carolina University (CCU)." The final agency decision (FAD) in this matter is entitled: "In Re: Application for Approval to Conduct a Planned Study and Research Proposal Submitted by Dr. Paul Gayes (Applicant) of Coastal Carolina University, A Research and Educational Institution Located in Horry County, SC." Ex. To Pet'r's Req. for Contested Case Hr'g (emphases added). The FAD notes that Dr. Gayes appeared at the review hearing as the "[a]pplicant." In total, the FAD refers to Dr. Gayes as the "[a]pplicant" six times. Finally, Petitioner itself referred to Dr. Gayes as the "[a]pplicant" in its request for contested case hearing, indicating that Petitioner viewed Dr. Gayes an applicant prior to the filing of the Property Owners' motion to dismiss.¹⁰ Pet'r's Req. for a Contested Case Hearing at 3.

10 References to Dr. Gayes as an "[a]pplicant" in the record include the Department's initial staff response to Property Owners' RFR; the FAD issued by the Board; in an April 12, 2022 correspondence from the Department to the Secretaries of Commerce and Interior; and a June 30, 2022 correspondence from the Department's Beachfront Permitting Project Manager Matthew Slagel.

Moreover, the Court is troubled by Petitioner's position that it can obtain relief against Dr. Gayes without his presence in these proceedings. The relief sought by Petitioner is a reversal of the Board's decision to allow Dr. Gayes to conduct a study. If, however, Dr. Gayes is not a party to this proceeding, he will likely not be bound by any order the Court might issue in this matter, and presumably could nevertheless proceed with the study.¹¹ For Petitioner to achieve its objective, Dr. Gayes must be a party to the action. If Dr. Gayes is not a party to this matter, there is no point in proceeding. In that scenario, any decision the Court might render on the merits in favor of the Petitioner is merely an advisory opinion.

11 "Where one is not a party to a prior action, the only way he or she can be precluded from relitigating an issue is if he or she is in privity with a party to the prior action against whom an adverse finding is made." Roberts v. Recovery Bureau, Inc., 316 S.C. 492, 496, 450 S.E.2d 616, 619 (Ct. App. 1994). While the question of privity is not currently before the Court, it is unlikely, in the opinion of the Court, that Dr. Gayes will be regarded as being in privity with Property Owners. See id. ("One whose interest is almost identical with that of a party, but who does not claim through him, is not in privity with him."). Dr. Gayes does not claim through Property Owners, and following the FAD, the Department has looked exclusively to Dr. Gayes, and/or CCU, to fulfill the prerequisites of the study. See Prop. Owners' Ex. 1, March 4, 2022 letter from the Department to Dr. Gayes requesting additional details regarding the study; Prop. Owners' Ex. 2, March 4, 2022 email from the Department to Dr. Gayes regarding the study; Prop. Owners' Ex. 3, June 30, 2022 letter and email from the Department to Dr. Gayes requesting clarification on information provided by Dr. Gayes about the study.

For all of these reasons, the Court concludes that Dr. Gayes should be a party to these proceedings and should have been served with a copy of the request for a contested case hearing by Petitioner.

Because the Court concludes Dr. Gayes should have been a party to the action, and is not, it must next address the consequences of Petitioner's failure to name and serve Dr. Gayes. The failure to name and timely serve Dr. Gayes with the request for a contested case hearing requires dismissal of this action. This failure either divests the Court of jurisdiction or leaves a necessary condition precedent to the Petitioner's claim unfulfilled.

Service of a notice of appeal is a jurisdictional requirement for which courts have no authority to extend the prescribed time. Mears v. Mears, 287 S.C. 168, 169, 337 S.E.2d 207, 207 (1985); see also Elam v. S.C. Dep't of Transp., 361 S.C. 9, 14-15, 602 S.E.2d 772, 775 (2004) ("The requirement of service of the notice of appeal is jurisdictional, i.e., if a party misses the deadline, the appellate court lacks jurisdiction to consider the appeal and has no authority or discretion to 'rescue' the delinquent party by extending or ignoring the deadline for service of the notice."). Section 44-1-60(G) of the South Carolina Code (2018) requires the filing of a request for a contested case hearing for review of a Department decision be filed within thirty calendar days after: (1) notice is mailed that the Board has declined to hold a final review conference, (2) the sixty calendar day deadline to hold the final review conference lapses without a conference, or (3) the final agency decision resulting from a final review conference is received by the parties. While Petitioner filed its request for contested case hearing within thirty days of the receipt of the Board's decision, it failed to name and serve Dr. Gayes before the expiration of this deadline. Because this Court is prohibited from "rescu[ing]" Petitioner from this fatal defect, Petitioner did not-and cannot now-cross the mandatory jurisdictional threshold of timely naming and serving Dr. Gayes as a party to this action.

Even if the failure to name and serve Dr. Gayes is not viewed as purely jurisdictional, the failure nevertheless leaves a condition necessary to the maintenance of this action unfulfilled. It is well-settled that, where, as here, "[a] statute that creates a new liability and affixes the time within which an action may be commenced . . . [is] a statue of creation; commencement within the time affixed is an indispensable condition of the action." Knight Publ'g Co. v. Univ. of S.C., 295 S.C. 31, 33, 367 S.E.2d 20, 22 (1988), overruled on other grounds by McLendon v. S.C. Dep't of Highways & Pub. Transp., 313 S.C. 525, 443 S.E.2d 539 (1994). Such an action "cannot be maintained unless brought within the time allowed by that statute." Simpson v. Sanders, 314 S.C. 413, 415 n.1, 445 S.E.2d 93, 94 n.1 (1994). See generally 54 C.J.S. Limitations of Actions § 30 (May 2022 Update).

Section 44-1-60 of the South Carolina Code (2018 & Supp. 2021) describes conditions which must be satisfied before a contested case hearing may be maintained. Subsection (F)(2) of this statute provides that "within thirty calendar days after the receipt of the decision an applicant, permittee, licensee, or affected person desiring to contest the final agency decision may request a contested case hearing before the [the ALC], in accordance with the [APA]." § 44-1-60(F)(2) (emphasis added). The statute therefore incorporates by direct reference the requirements of the APA. The APA in turn provides that "[a]ll requests for a hearing before the [ALC] must be filed in accordance with the [C]ourt's rules of procedure." S.C. Code Ann. § 1-23-600(B) (emphases added). Finally, the rules of this Court states that a request for a contested case hearing must be "filed and served" within thirty days after actual or constructive notice of the agency determination. SCALC Rule 11(C). The Court therefore concludes that service of the request for a contested case hearing on all parties to the contested case is a condition which must be satisfied before a contested case hearing may be maintained.

Petitioner filed its request for contested case hearing on March 8, 2022, within thirty days of the Board's February 10, 2022 decision but failed to name and serve Dr. Gayes in accordance with the requirements outlined in section 44-1-60, extinguishing Petitioner's cause of action.

Petitioner asks the Court to excuse its omission, and permit Dr. Gayes to be made a party and served at this juncture, more than five months after the issuance of the agency decision that is the subject of the contested case proceeding. If, as the Court concludes above, the failure to file and serve Dr. Gayes within the specified time period is jurisdictional in nature, then the Court lacks the ability to extend the time for service. See generally Allison v. W.L. Gore & Assocs., 394 S.C. 185, 189, 714 S.E.2d 547, 550 (2011) ("[A]n appellate body may not extend the time to appeal."); State v. Johnston, 327 S.C. 435, 438, 489 S.E.2d 228, 230 (Ct. App. 1997) (holding that "it is the duty of the court to assure that it renders no decision in a matter when it has no authority to act"), rev'd on other grounds, 333 S.C. 459, 510 S.E.2d 423 (1999); SCALC Rule 23(B) ("Upon motion of any party, or on its own motion, the Court may dismiss a contested case or resolve the contested case adversely to the offending party for failure to comply with any of the rules of procedure for contested cases, including the failure to comply with any of the time limits provided in these rules or by order of the Court.").

If the failure to serve Dr. Gayes is not jurisdictional, but instead is a failure to fulfill a condition necessary to the maintenance of a contested case hearing, then a different analysis is required. When questioned during the motion hearing, Petitioner did not identify any rule or statute which gave the Court discretion to extend the time for service upon Dr. Gayes. Counsel for Respondents took the position that there is no rule or statute which vests the Court with discretion to extend the deadline. In the Court's view, the only rule which could conceivably permit extension of the deadline to serve is SCALC Rule 3. This rule states: "For good cause shown, the administrative law judge may extend or shorten the time to take any action, except as otherwise provided by rule or law." SCALC Rule 3(B).

However, an extension of the deadline under Rule 3(B) is not appropriate. First, the Court construes Rule 3(B) to require that the party seeking an extension must move for such an extension. This construction is apparent from the language of Rule 3(B), which only permits extensions upon good cause shown. For this language to have meaning, someone, presumably the moving party, must make a showing of good cause to the Court. Rule 3(B) also contains no language authorizing the Court to extend or shorten time limits in the absence of a motion. Cf. Rule 6(b), SCRCP ("When by these rules or by notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the time may be extended by written agreement of counsel for an additional period not exceeding the original time provided in these rules, or the court for cause shown may at any time in its discretion (1) with or without written motion or notice order the period enlarged if request therefor is made before the expiration of the period as originally prescribed or extended . . . ." (emphasis added)).

In the ALC, all motions made before the hearing on the merits must be written. SCALC Rule 19(A). Petitioner made no written motion for additional time to serve Dr. Gayes. Petitioner wholly failed to mention SCALC Rule 3(B) when it requested additional time and failed to identify SCALC Rule 3(B) when asked by the Court about the existence of authority vesting the Court with discretion to extend the deadline.

Additionally, and perhaps more importantly, there is no good cause for an extension of time in which to serve Dr. Gayes. The record is clear Petitioner knew of Dr. Gayes's identity prior to the final review hearing. Dr Gayes submitted the research request which resulted in the FAD. The very purpose of Petitioner's request for a contested case was to negate the permission to conduct the study which Dr. Gayes received from the Board. Dr. Gayes was identified as the applicant by the FAD and was present at the hearing resulting in the FAD. Again, Dr. Gayes is in reality the party against whom Petitioner seeks relief. Petitioner presented no evidence of circumstances which might justify an extension such as an inability to locate Dr. Gayes or personal or business emergencies which prevented earlier service.

In the absence of good cause, SCALC Rule 3(B) does not authorize the Court to extend the time for service upon Dr. Gayes.

II. Alternatively, the Court Lacks Jurisdiction Because this Matter Is Not a Proper Contested Case.

Alternatively, the Court concludes that dismissal is appropriate even if Petitioner is correct that Dr. Gayes is not a party. If Dr. Gayes is not a party, then this matter is not a proper contested case proceeding, depriving the Court of jurisdiction. A contested case hearing is a "proceeding including, but not restricted to, ratemaking, price fixing, and licensing in which the legal rights, duties, or privileges of a party are required by law or by Article 1, Section 22, Constitution of South Carolina, 1895, to be determined by an agency or the Administrative Law Court after an opportunity for a hearing." S.C. Code Ann. § 1-23-505(3); see also SCALC Rule 2(H). This definition is not satisfied here because: (1) in the absence of Dr. Gayes, this proceeding would not involve the legal rights, duties or privileges of a party; and (2) neither the Department nor the Court is required by law or the South Carolina Constitution to determine the rights involved in this case.

A. In the Absence of Dr. Gayes, This Proceeding Does Not Involve the Legal Rights, Duties, or Privileges of a Party.

As discussed above, a contested case is one in which a determination of the legal rights, duties, or privileges "of a party" are determined. This requirement is not met here. If Dr. Gayes is not a party, then a determination of his legal rights, duties, and privileges cannot serve as the basis for a contested case hearing.

Property Owners themselves cannot be considered parties whose legal rights are to be determined for purposes of a contested case hearing. In the FAD, the Board expressly carves out the Property Owners' legal situation from the scope of the determination. It states:

The Board further concludes that allowing the research study to proceed does not render OCRM's enforcement action moot. While this [FAD] allows the sandbags to remain in place and be buried for the study, the Department may otherwise proceed with the pending enforcement actions and exercise its full enforcement authority.

FAD at 5 (emphasis added). The FAD also clearly imposes obligations on Dr. Gayes rather than Property Owners. For example, the FAD provides that it is the responsibility of the Applicant (Dr. Gayes) to ensure the integrity of these structures (the sandbags) and that required modifications be coordinated with the OCRM staff; that the Applicant (Dr. Gayes) must provide sufficient details of the study and success criteria to the Department; and that the Applicant must obtain any approvals or authorizations from and maintain compliance with the requirements of other local, federal, and state entities. Since the FAD in connection with the study, the Department has directed its correspondences, including that a bond or other financial security be provided, to Dr. Gayes.

Finally, while affected persons such as Petitioner have a statutory right to request a contested case hearing, there must still be some underlying right, privilege, or duty of party to be determined before a contested case hearing is proper. Petitioner has no such underlying right, privilege, or duty related to maintenance of the study or use of the property to conduct the study. Petitioner is not the person or entity that requested the study and has no ownership or other interest in the subject property.

Notably, the relief requested by Petitioner in this matter is the reversal of the Board's decision, thereby restoring the Department's earlier denial of Dr. Gayes's request to conduct a research study. The relief sought is relief against Dr. Gayes. It is Dr. Gayes's rights and duties which Petitioner hopes to affect.

B. Neither the Department Nor the Court is Required to Determine the Rights Involved in this Matter.

A second requirement for a proper contested case hearing is that the agency or the ALC must be required by law or the South Carolina Constitution to determine the legal rights, duties or privileges in question. S.C. Code Ann. § 1-23-505(3). If an agency or the ALC is not required to make a determination, then the matter is not a contested case proceeding. Here, neither the Department nor this Court is required to make a determination.

1. The Department Was Not Required to Make a Determination.

As a general matter, the Costal Tidelands and Wetlands Act and the BMA require permits for utilization of critical areas along South Carolina's coast. See §§ 48-39-130, -290. There are, however, statutory exceptions. A permit is not required for "research activities of . . . educational institutions . . . provided that such activities cause no material harm to the flora, fauna, physical or aesthetic resources of the area." § 48-39-130(D)(2). Additionally, section 48-39-355 provides the following:

A permit is not required for an activity specifically authorized in this chapter. However, the [D]epartment may require documentation before the activity begins from a person wishing to undertake an authorized construction or reconstruction activity. The documentation must provide that the construction or reconstruction is in compliance with the terms of the exemptions or exceptions provided in [s]ections 48-39-280 through 48-39-360.

S.C. Code Ann. § 48-39-355. In summary, a permit is not required for an education institution such as CCU to conduct research activities. Moreover, the Department is allowed to request documentation, but it need not take any action.. See Kennedy v. S.C. Ret. Sys., 345 S.C. 339, 352- 53, 549 S.E.2d 243, 250 (2001) ("The use of the word 'may' signifies permission and generally means that the action spoken of is optional or discretionary unless it appears to require that it be given any other meaning in the present statute.").

2. The ALC Is Not Required to Make a Determination.

There are two sources of law that could trigger a contested case in this matter: (1) section 44-1-60's general appeal language and (2) the APA. Because the instant matter does not meet the requirements of either of these sources, the Court does not have subject matter jurisdiction and is not authorized to hear Petitioner's appeal. See Dove v. Gold Kist, Inc., 314 S.C. 235, 238, 442 S.E.2d 598, 600 (1994) ("A court lacking subject matter jurisdiction, however, has no authority to act regardless of the . . . consent of the litigants."); see also Coon v. Coon, 364 S.C. 563, 566, 614 S.E.2d 616, 617 (2005) ("A judgment of a court without subject matter jurisdiction is void.").

Section 44-1-60(A) also references contested case hearings. It provides that the "[D]epartment decisions involving the issuance, denial, renewal, suspension, or revocation of permits, license, or other actions of the Department which may give rise to a contested case . . . must be made using the procedures set forth in this section." S.C. Code Ann. § 44-1-60(A). The Court does not view this section as an authorization for contested case proceedings but rather a requirement that the procedures outlined in section 44-1-60 must be used in any matter that could otherwise give rise to a contested case proceeding. Accordingly, this section does not independently authorize a contested case hearing.

Section 44-1-60(G) discusses requests for a contested case hearing. It states that applicants, permittees, licensees, or other affected persons may file a request for a contested case hearing within thirty days after the final agency decision. The Court construes this section as addressing who has standing to file a request for a contested case hearing, see Pres. Soc'y of Charleston v. S.C. Dep't of Health & Env't Control, 430 S.C. 200, 208-19, 845 S.E.2d 481, 485-91 (2020), rather than whether a particular matter meets the criteria for a contested case hearing.

The APA also does not require that a contested case hearing be held in this matter. There are two provisions of the APA which could be construed to address this Court's obligation to conduct a hearing on the merits: (1) S.C. Code § 1-23-380 and (2) S.C. Code § 1-23-600. Section 1-23-380 states "[a] party who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review pursuant to this article and Article 1." This plain language of this statute indicates that a party who is aggrieved in a contested case is entitled to judicial review. However, this statute also makes clear that to be entitled to judicial review, a party must have been involved in a "contested case," which is a defined term. Because the statute assumes that a contested case exists, it cannot be construed as a statute that supplies the definitional foundation of a contested case.

Section 1-23-600 states in pertinent part:

An administrative law judge shall preside over all hearings of contested cases as defined in [s]ection 1-23-505 or Article I, Section 22, Constitution of the State of South Carolina, 1895, involving the departments of the executive branch of government as defined in Section 1-30-10 [where the Court] is authorized or permitted by law or regulation to hear and decide these cases . . . .

However, this statute also assumes that the requirements for a contested case have already been satisfied before the requirement to exercise jurisdiction takes effect. Without more, section 1-23-600 does not alone trigger the right to a contested case.

Ultimately, the Court finds influential our supreme court's decision in Amisub of South Carolina, Inc. v. South Carolina Department of Health and Environmental Control, 403 S.C. 576, 743 S.E.2d 786 (2013).¹² In Amisub, Carolina Physicians Network (CPN), a subsidiary of a nonprofit health care system, requested confirmation from the Department that it did not need to apply for certificate of need (CON) review prior to initiating construction of a medical office. 403 S.C. at 579, 743 S.E.2d at 788. DHEC staff confirmed in writing that no CON was necessary because the proposed building was considered an expenditure for a non-medical project, an exception to the CON regulatory requirements. Id. At that time, CPN made a written assurance to the Department that it would not open an urgent care center at the facility without seeking a CON or a non-applicability determination (NAD).¹³ 403 S.C. at 580, 743 S.E.2d 788. Thereafter, CPN informed the Department of its intention to open an urgent care center in the now-completed building and was informed verbally by Department staff that it would not take any action against CPN for opening the urgent care center. Id. at 580-81, 743 S.E.2d at 789. Amisub requested a final review conference, and the Board declined the request. Id. at 581, 789 S.E.2d at 789. Amisub then filed for a contested case hearing at the ALC, challenging the Department's failure to require a CON or NAD for the urgent care center. Id. at 582, 789 S.E.2d 790.

12 The Court recognizes that in Amisub the Board did not conduct a final agency review hearing as it did in this matter. However, our supreme court's reasoning in Amisub nevertheless applies because, under Petitioner's argument, there exists no legal duty or obligation for the Department to hold a hearing or issue a decision prior to Dr. Gayes initiating his study.

13 An NAD is a decision by the Department that indicates a proposed project is not subject to the CON Act; such decision is valid for a period of twelve months from the date of issuance. See S.C. Code Ann. Regs. 61-15 § 105 (Supp. 2021).

Before the ALC, the Department argued that because the urgent care center was a licensed private practitioner's office, it was exempt from the CON requirements and no written exemption from the Department was required. Id. at 583, 743 S.E.2d at 790. The ALC found that it lacked jurisdiction over the matter because the urgent care center qualified as the office of a licensed private practitioner, an exception to the CON Act; however, the decision was remanded by the South Carolina Court of Appeals, which found that the ALC had subject matter jurisdiction over the matter. Id. at 584, 743 S.E.2d at 791.

DHEC appealed to the supreme court, which reversed the decision by the court of appeals. Id. at 579, 743 S.E.2d at 788. Our supreme court held that because CPN's opening of the urgent care center met an exemption to the CON, there was no requirement for CPN to seek the Department's approval or permission and, therefore, the Department had no obligation to issue a decision. Id. at 592-97, 743 S.E.2d at 79-98. It held that a party may not use the contested case review process where it has not been authorized by the General Assembly. Id. at 596, 743 S.E.2d at 797.

In the Court's view, the language in Amisub most applicable to the instant matter is the following: "Since there was no legal duty owed by DHEC to issue a staff decision in this matter, which is the trigger giving rise to a contested case, there was no corresponding obligation that [Amisub] be afforded a contested case hearing before the ALC." Id. This language makes clear that the trigger for a contested case proceeding is whether the Department had a legal duty to issue a staff decision. If the Petitioner is correct that Dr. Gayes is not required to be a party because he did not apply for a permit or license, but rather for an exemption for the permitting process, then the Department had no legal duty to issue a staff decision on his request. Again, the Department was not required to act on requests for research studies. See S.C. Code Ann. § 48-39-355.

Absent a statutory trigger for a contested case under the statutory schemes, it becomes necessary to determine whether Article I, Section 22 of the South Carolina Constitution requires the Court to hear this case. Article I, Section 22 of the South Carolina Constitution provides the following:

No person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard . . . nor shall he be deprived of liberty or property unless by a mode of procedure prescribed by the General Assembly, and he shall have in all instances the right to judicial review.

If the Petitioner's position that Dr. Gayes is not required to be a party to this proceeding is correct, then Article I, Section 22 of the South Carolina Constitution does not require this Court to hear this matter. The decision would neither affect "private rights" nor deprive any current party of liberty or property.

Private rights are distinguished from public rights. While public rights are rights held collectively by the community, such as the right to navigate public waters, fish in public waters, use public roads, and be free from criminal actions, private rights are held by individuals and include such things as life, liberty, property and personal security. See Private Right, Black's Law Dictionary (11th ed. 2019) ("A personal right, as opposed to a right of the public or the state."); see also Overcash v. S.C. Elec. & Gas Co., 364 S.C. 569, 576, 614 S.E2d 619, 622-23 (2005) (holding no private right of action may be maintained for environmental statute enacted primarily for the benefit and protection of the public generally).

Petitioner asserts that it has an interest in this matter because "[m]embers of the League enjoy recreating on DeBordieu Beach in the vicinity of the sandbags, as well as along the Hobcaw Barony to the associated Outstanding Resource Water of North Inlet, for harvesting oysters, fishing, boating, beach-walking, observing wildlife and other recreational purposes." Req. for Contested Case Hr'g at 4. Petitioner also asserts that its members are concerned about the sea turtle population. Id. These interests are public rights; they belong to the public in general, not any specific individual.

Property Owners have private rights that might be impacted by the proposed research study such as ownership and use of private property but a decision by this Court would not affect those rights. Were this case to proceed on the merits in Dr. Gayes's absence, the Court would merely determine whether Dr. Gayes's proposed study qualifies for an exemption to the permitting. Such a ruling from the Court would not force or require Property Owners to cooperate with the study. Property Owners would remain free to control their property as they see fit.

Finally, even assuming Dr. Gayes has a private right in conducting the research study, Dr. Gayes would not be a party and would not be bound by the Court's ruling. He could not therefore be finally bound as contemplated by Article I, Section 22 of the South Carolina Constitution.

CONCLUSION

In summary, the Court concludes Dr. Gayes should be regarded as a party and was, therefore, required to be served with the request for a contested case hearing. It is undisputed that this did not occur within the thirty-day deadline found in section 44-1-60, requiring dismissal of this matter. Alternatively, if Dr. Gayes is not a party because he did not apply for a permit or license, then the Department took no real action below; it did not grant or deny a license or permit.

As a result, this case would not be a proper contested case, depriving this Court of jurisdiction. Accordingly, Property Owners' motion to dismiss must be granted.

ORDER

IT IS THEREFORE ORDERED that Property Owners' motion to dismiss is GRANTED and the above-captioned case is DISMISSED WITH PREJUDICE.

AND IT IS SO ORDERED.