Permit to Remove Sand Is an Imminent Injury to Beachgoers

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SandBar 7:1, Regulatory Takings Issue, April, 2008 Permit to Remove Sand Is an Imminent Injury to Beachgoers Smiley v. South Carolina Dept. of Health and Environmental Control, 2007 S.C. LEXIS 292 (S.C. July 30, 2007). *Margaret Enfinger, 2L, University of Alabama School of Law* The Supreme Court of South Carolina unanimously found that a permit to remove sand from a public beach is an imminent injury, and held that a recreational user of a public beach had standing to contest the sand removal permit. Background James Smiley enjoys using a public beach in South Carolina for recreational purposes. He is partially disabled in both legs and uses the flat hard public beach for rehabilitation and jogging, as well as nature-watching. He contested a state agency decision that gave a private company, Wild Dunes, the right to remove sand from this beach. The “beach sand scraping” permit allows the company to take 25,000 cubic yards of sand each month from November through April for five years. Smiley alleged that the entrance of heavy equipment onto the public beach and the excavation would make it impossible to jog in the area and reduce his enjoyment of the beach. After Smiley contested the agency’s decision, the administrative law judge, the appellate panel, and the circuit and appellate courts found that he did not have standing, which is the right to pursue a claim in court, to challenge the permit. Standing Citing Lujan v. Defenders of Wildlife,1 South Carolina Supreme Court noted that standing requires three elements: 1) the plaintiff must have suffered an “injury in fact” which is concrete and particularized, meaning that the plaintiff is affected in a personal and individualized way, and actual or imminent, meaning that the injury cannot be conjectural or hypothetical 2) there must be a causal connection between the injury and the conduct complained of, and 3) it must be likely that the injury will be “redressed by a favorable decision.”2 In 2005, the South Carolina Court of Appeals found that Smiley did not have standing because he had not met the first requirement of the standing test in Lujan. The court focused on the fact that though the permit had been issued, no sand had been yet excavated, so there was no actual injury. Additionally, the appellate court found that Smiley would not suffer an “injury in fact” even if sand were to be excavated, due to the permit’s temporary nature. Smiley’s jogging route would simply have a temporary detour. The court found that sand excavation does not substantially impair the public interest, and it is within the state’s policy of preserving and restoring its beaches. The South Carolina Supreme Court disagreed, finding that Smiley met the first standing requirement. The court first noted that the injury may be actual or imminent.3 There is no reason to wait until the injury is actually inflicted. Here, the gravity of a permit to excavate so much sand is an imminent injury. In fact, the court notes that up to ten acres of beach per month would be affected if the maximum amount of sand were extracted. Next, the court examined the appellate court’s determination that the temporary nature of the permit would not result in an “injury in fact” to Smiley. The court noted that there is no legal distinction for temporary and permanent injuries; temporary or minor ones are still allowed to be vindicated and allow someone a direct stake in the outcome. Furthermore, the agency had not submitted any evidence that the injury from the winter excavation will be only temporary. An interference with Smiley’s enjoyment of the beach and his inability to use it for at least those six months gives Smiley a direct stake in the permitting decision. Conclusion Giving Smiley standing to appear in court, the South Carolina Supreme Court directed the administrative law judge to proceed with the case and allow Smiley a chance to contest the agency’s permit. Endnotes 1. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). 2. Smiley v. S.C. Dep’t of Health & Envtl. Control, 374 S.C. 326, 329 (S.C. 2007). 3. Lujan, 560-561.
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SandBar 7:1, Regulatory Takings Issue, April, 2008

Permit to Remove Sand Is an Imminent Injury to Beachgoers

Smiley v. South Carolina Dept. of Health and Environmental Control, 2007 S.C. LEXIS 292 (S.C. July 30, 2007).

Margaret Enfinger, 2L, University of Alabama School of Law

The Supreme Court of South Carolina unanimously found that a permit to remove sand from a public beach is an imminent injury, and held that a recreational user of a public beach had standing to contest the sand removal permit.

Background
James Smiley enjoys using a public beach in South Carolina for recreational purposes. He is partially disabled in both legs and uses the flat hard public beach for rehabilitation and jogging, as well as nature-watching. He contested a state agency decision that gave a private company, Wild Dunes, the right to remove sand from this beach. The “beach sand scraping” permit allows the company to take 25,000 cubic yards of sand each month from November through April for five years. Smiley alleged that the entrance of heavy equipment onto the public beach and the excavation would make it impossible to jog in the area and reduce his enjoyment of the beach. After Smiley contested the agency’s decision, the administrative law judge, the appellate panel, and the circuit and appellate courts found that he did not have standing, which is the right to pursue a claim in court, to challenge the permit.

Standing
Citing Lujan v. Defenders of Wildlife,1 South Carolina Supreme Court noted that standing requires three elements: 1) the plaintiff must have suffered an “injury in fact” which is concrete and particularized, meaning that the plaintiff is affected in a personal and individualized way, and actual or imminent, meaning that the injury cannot be conjectural or hypothetical 2) there must be a causal connection between the injury and the conduct complained of, and 3) it must be likely that the injury will be “redressed by a favorable decision.”2 In 2005, the South Carolina Court of Appeals found that Smiley did not have standing because he had not met the first requirement of the standing test in Lujan. The court focused on the fact that though the permit had been issued, no sand had been yet excavated, so there was no actual injury. Additionally, the appellate court found that Smiley would not suffer an “injury in fact” even if sand were to be excavated, due to the permit’s temporary nature. Smiley’s jogging route would simply have a temporary detour. The court found that sand excavation does not substantially impair the public interest, and it is within the state’s policy of preserving and restoring its beaches.
The South Carolina Supreme Court disagreed, finding that Smiley met the first standing requirement. The court first noted that the injury may be actual or imminent.3 There is no reason to wait until the injury is actually inflicted. Here, the gravity of a permit to excavate so much sand is an imminent injury. In fact, the court notes that up to ten acres of beach per month would be affected if the maximum amount of sand were extracted.
Next, the court examined the appellate court’s determination that the temporary nature of the permit would not result in an “injury in fact” to Smiley. The court noted that there is no legal distinction for temporary and permanent injuries; temporary or minor ones are still allowed to be vindicated and allow someone a direct stake in the outcome. Furthermore, the agency had not submitted any evidence that the injury from the winter excavation will be only temporary. An interference with Smiley’s enjoyment of the beach and his inability to use it for at least those six months gives Smiley a direct stake in the permitting decision.

Conclusion
Giving Smiley standing to appear in court, the South Carolina Supreme Court directed the administrative law judge to proceed with the case and allow Smiley a chance to contest the agency’s permit.

Endnotes
1. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).
2. Smiley v. S.C. Dep’t of Health & Envtl. Control, 374 S.C. 326, 329 (S.C. 2007).
3. Lujan, 560-561.