Whether a Cumberland Island dock can remain or whether its existence needs to be reargued is presently in the hands of not one, but two, courts of law.
In September, the state Court of Appeals granted the Center for a Sustainable Coast its application for discretionary appeal and CSC has a calendar date of February to state its case that Lumar LLC should’ve needed to go through the Coastal Marshlands Protection Act permitting process, which it did not. A Fulton County court previously dismissed the matter for lack of subject-matter jurisdiction, failure to join an indispensable party and failure to state a claim.
CSC was in federal district court in Brunswick on Monday defending its other case, a suit against the National Park Service, in a matter that depends on a positive outcome in the state matter against Lumar.
According to CSC’s complaint against the NPS, a problem arose when, as requested by the state Department of Natural Resources’ Coastal Resources Division, Cumberland Island National Seashore Superintendent Gary Ingram signed off on a letter stating the NPS — as the adjacent property owner — had no objection to the dock project.
CRD then issued an authorization letter, which led to the Army Corps of Engineers to issue a permission letter. CSC states that NPS’ no-objection letter violated the NPS’ mandate to keep the island in its primitive state, since the no-objection letter led to a domino effect of authorizations and permissions.
Further, CSC argues the no-objection is a final agency action and therefore open for judicial review. In the Monday hearing, U.S. District Judge Lisa Godbey Wood asked for case law that backed the idea that an agency action that increases the likelihood of an act constitutes a final agency action. CSC counsel Jon Schwartz was unable to come up on the spot with case citations, but Wood left the record open for 10 days for further briefing on the matter.
CSC is asking the federal court to set aside the no-objection letter because as Schwartz argued in court and in the Sept. 26 notice of state Court of Appeals order, “If the plaintiffs prevail in the state law case, Lumar will need to remove the dock or obtain a permit from the (CRD) to maintain the dock. If the plaintiffs prevail in this federal case, and this court sets aside the statement of no-objection, the (CRD) will be less likely to issue a permit to Lumar.”
The NPS disputes the federal district court has subject-matter jurisdiction under the Administrative Procedure Act or standing.
Regarding the no-objection letter, the NPS argued in its amended reply brief for the motion to dismiss, “The Sustainable Coast’s response does not identify a single direct legal consequence of the letter. Nor could it. The letter was at most an intermediate part of Lumar’s permitting process.”
As to standing, “…the Sustainable Coast lacks standing because a favorable decision by this court will not redress its alleged injury — i.e. its members’ diminished enjoyment of Cumberland due to Lumar’s private dock. The Sustainable Coasts redressability argument hinges on prevailing in the Fulton County lawsuit it filed against Lumar.”
In that filing, the NPS stated the Fulton County Superior Court dismissal makes it all but certain CSC will lose its state law case, but regardless of those chances, whether CSC is successful in its appellate actions is still speculative.
Schwartz said he intends to file an amended complaint by the end of the week that will endeavor to provide answers to some of the questions Wood asked during Monday’s hearing.