Sea Island Acquisition dug in regarding its arguments to stay discovery in a wetlands-filling lawsuit brought against it, and reiterated its arguments for dismissal of the case outright, in filings last week with the U.S. District Court in Brunswick.
Glynn Environmental Coalition and Center for a Sustainable Coast brought the lawsuit because of alleged misconduct by Sea Island in the filling of 0.49 acres of wetlands adjacent to the Inn at Sea Island, on St. Simons Island.
Sea Island argues that the conservation groups are incorrect in citing they have standing to sue, and that the plaintiffs’ citation of the court’s ruling in Jones Creek Investors v. Columbia County, Ga., doesn’t help their cause. The filing states the court in that matter found the plaintiffs had standing when the defendant discharged pollutants into a federally regulated waterbody without a permit.
“The court did not hold that a Section 1365 citizen suit can be brought for an alleged violation of Section 404 when the activity performed is pursuant to a Section 404 permit,” according to Sea Island’s reply. “In this case, the U.S. Army Corps of Engineers authorized Sea Island, under Nationwide Permit 39, to fill less than .5 acre of wetlands on their property. Defendant filled their property pursuant to the Section 404 permit. Plaintiffs cannot bring a citizen’s suit against this defendant for what they contend is a violation of the Section 404 permit.”
Also, the heart of the conservations groups’ claims is that there was a deadline violated for Sea Island to build a structure on this filled wetland area.
“However, plaintiffs have not and cannot direct the court to any condition or authority that requires the construction of the building prior to some established deadline,” according to the reply. “Plaintiffs did not address this point in their responsive brief, although it was specifically raised in defendants’s motion to dismiss. … This is not a situation of plaintiffs stepping to the plate and swinging and missing on such a key point, but the plaintiffs’ failing to swing at all.”
Responding to GEC’s and CSC’s response to Sea Island’s motion to stay discovery, the company argues that the conservation groups’ assertion, that it didn’t comply with the Rule 26 instruction order, is specious.
“That section of the instruction order, as evidenced by its title, governs discovery disputes,” according to Sea Island’s reply. “There has been no discovery in this case yet, the discovery period has not begun, the parties have not yet conferred under Rule 26(f) — nor have they prepared and submitted a report of their Rule 26(f) conference. Thus, there is no discovery to dispute nor any on which to consult with the plaintiffs’ attorneys.”
However, Sea Island still maintains discovery is pointless at this time in the case.
“SIA’s motion will dispose of the case if granted,” according to the filing. “Staying discovery here will further ‘the goals of controlling the case and saving the time and effort of the court, counsel and the parties…’ until the court rules on SIA’s pending motion to dismiss.”
On the part of the plaintiffs, the court Tuesday granted attorney John Brunini to represent them pro hac vice. Brunini comes from Mississippi, but is part of the same law firm, Butler Snow, as the other plaintiffs’ attorney, Righton Lewis.