C&M Enterprises of Georgia, LLC v. Williams.

THIRD DIVISION
ELLINGTON, P. J.,
BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 1, 2018
In the Court of Appeals of Georgia
A18A0240. C&M ENTERPRISES OF GEORGIA, LLC v.
WILLIAMS.
ELLINGTON, Presiding Judge.
In March 2016, Mark Williams, acting as the Commissioner of the Georgia
Department of Natural Resources and the Chairman of the Coastal Marshlands
Protection Committee, determined that a portion of a bulkhead on riverfront property
in Bryan County owned by C&M Enterprises of Georgia, LLC, was illegally located
in a protected estuarine area of marshlands within the Department’s jurisdiction.
Based on this determination, Williams issued an order directing C&M to remove the
structure. C&M filed an appeal from the order to the Office of State Administrative
Hearings, and both parties filed motions for summary determination.1 An
1
See OCGA §§ 12-5-283 (b) (right of any person who is aggrieved or adversely
affected by any order or action of the Coastal Marshlands Protection Committee to review
administrative law judge granted Williams’ motion for summary determination and
denied C&M’s motion. C&M appealed to the superior court, which also affirmed.2
We granted C&M’s application for discretionary appeal, and it contends that
Williams arbitrarily and capriciously failed to apply the agency’s standard policy to
determine the boundary between C&M’s property and protected marshlands within
the Department’s jurisdiction.3 For the reasons explained below, we affirm.
Delineating a Jurisdictional Line. By way of background, we note that the
Coastal Marshlands Protection Act of 1970, OCGA §§ 12-5-280 through 12-5-297,
was enacted to regulate structures and activities in Georgia’s coastal marshlands “to
by an administrative law judge appointed by the Board of Natural Resources, upon petition
within 30 days after the issuance of such order or the taking of such action); 50-13-20.1
and 50-13-41 (hearing in a contested administrative case that is not presided over by the
agency head or board or body which is the ultimate decision maker to be conducted by an
administrative law judge of the Office of State Administrative Hearings).
2
See OCGA §§ 12-5-283 (b) (judicial review of an administrative law judge’s
decision in a contested case under the Coastal Marshlands Protection Act of 1970); 50-13-
19 (judicial review of a final agency decision in a contested case under the Georgia
Administrative Procedures Act, OCGA §§ 50-13-1 through 50-13-23, upon request within
30 days after the service of the final decision of the agency or, if a rehearing is requested,
within 30 days after the decision thereon).
3
See OCGA §§ 5-6-35 (a) (1) (application for discretionary appeal required to
appeal from a decision of a state agency); 50-13-20 (review of a final judgment of the
superior court under the under the Georgia Administrative Procedure Act).
2
ensure that the value and functions of the coastal marshlands are not impaired and to
fulfill the responsibilities of each generation as public trustees of the coastal
marshlands for succeeding generations.” OCGA § 12-5-281. Marshlands include “any
marshland intertidal area, mud flat, tidal water bottom, or salt marsh in the State of
Georgia within the estuarine area of the state,” whether tidewaters reach the area
“through natural or artificial watercourses.” OCGA § 12-5-282 (3). The Act provides:
No person shall remove, fill, dredge, drain, or otherwise alter any
marshlands or construct or locate any structure on or over marshlands
in this state within the estuarine area thereof without first obtaining a
permit from the committee or, in the case of minor alteration of
marshlands, the commissioner.
OCGA § 12-5-286 (a) (1). See Coastal Marshlands Protection Committee v.
Altamaha Riverkeeper, Inc., 315 Ga. App. 510, 510-511 (726 SE2d 539) (2012) (“[A]
party seeking to build a structure over any marshland in Georgia must first obtain a
permit from the Committee.”) (citation omitted).
The Act provides that the Department of Natural Resources has the authority,
inter alia, “to determine jurisdiction under [the Act].” OCGA § 12-5-284 (a) (1). See
Center for a Sustainable Coast v. Coastal Marshlands Protection Comm., 284 Ga.
736, 741 (2) (670 SE2d 429) (2008). The Department tasks its Coastal Resources
Division (“CRD”) with marking the boundary lines of marshlands within the
3
jurisdiction of the Department for permitting and enforcement under the Act. A CRD
staff member marks a jurisdictional boundary line, known as a “JD line,” onsite with
flagging tape and/or numbered flags staked into the ground to delineate the boundary
between marshlands within the estuarine area (subject to regulation under the Act)
and uplands (not regulated under the Act).4 Drawing a JD line is not an exact science,
and these lines often are not straight because they track the contours of the
marshlands-uplands interface.
A marked JD line allows a property owner to see whether any proposed
construction will encroach on marshlands, that is, whether the activity will alter the
marshlands or place a structure on the area seaward of the JD line. If the proposed
activity is occurring entirely landward of the JD line, no permit will be required.
Conversely, if the proposed activity will encroach on jurisdictional marshlands, a
permit from CRD will be required.
If the landowner seeks a permit from CRD for activity that will encroach on
jurisdictional marshlands, the landowner is required to submit a survey prepared by
a registered surveyor that shows the JD line delineated by CRD staff. Once CRD
approves a survey containing a delineated JD line, the line becomes the “JD line of
4
These facts, drawn from the record, are undisputed unless otherwise noted.
4
record” and remains in effect for one year or throughout a permit approval process,
unless CRD delineates a revised JD line based on new information that the previously
flagged JD line of record is no longer correct.
If CRD learns that a landowner who did not first obtain a permit is possibly
violating the Act by filling, dredging, or otherwise altering any marshlands or
building a structure over any marshlands, CRD first checks whether there is a JD line
of record for the property. If there is a JD line of record, it will be used in any
enforcement action. If there is not a JD line of record for the property, CRD will
delineate a JD line as it would in the permitting context, that is, the JD line should be
established according to the conditions that existed before the unauthorized activity.
Depending on the nature and extent of construction occurring before a CRD
enforcement site visit, it may not be possible based on the usual indicators for CRD
to determine the JD line precisely as it would have been before the landowner
disturbed the land. In such a case, CRD will rely on other field-based evidence to
determine the JD line at the time of the unauthorized activity. According to Karl
Burgess, who was then the Program Manager for CRD’s Marsh and Shore
Management Program, such field-based evidence may include examining core
samples or digging for buried plants. According to Stuart Sligh, an environmental
5
consultant working for C&M, DNR may also consider historical photographs and
GPS-based mapping surveys.
C&M’s First Replacement Bulkhead on the Sallette Tract. In February 2008,
C&M acquired a 3.84 acre parcel known as “the Sallette Tract” along the bank of the
Ogeechee River. At the time, there was a concrete boat ramp and a wooden bulkhead
along the riverbank. In April 2008, without seeking a permit under the Act, C&M
removed the boat ramp on the western side of the property, removed the eastern
portion of the former wooden bulkhead, and excavated uplands approximately eight
to ten feet inland from the riverbank on the eastern portion of the property. C&M then
began construction of a concrete bulkhead to replace the wooden bulkhead. CRD
received a report of this activity, and CRD staff conducted a site visit on April 15,
2008. At that time, there was no JD line of record in CRD’s files delineating the
marshlands for the Sallette Tract. CRD staff delineated a JD line and flagged the
property on April 17, 2008. The JD line flagged by CRD was generally a straight line,
except in the area of the former boat ramp where the line made a jog inland around
the former location of the boat ramp, such that the area where the boat ramp had been
was included in jurisdictional (protected) waters. CRD determined that footers for the
new bulkhead had been installed in the marsh and that marshlands were being
6
dredged and filled without authorization from CRD. CRD issued a cease-and-desist
letter and a Notice of Violation to Timothy Marshlick, the sole member and owner
of C&M, requested a time line for removing the unauthorized structures, and
scheduled an enforcement conference for the following week.
In November 2008, CRD issued a second Notice of Violation. The notice stated
that CRD would remark the April 2008 JD line and directed C&M to have its
surveyor re-stake the April 2008 JD line, to submit a survey showing the JD line
based on the stakes, and to provide a written plan for removing the unauthorized
structures. The notice expressly advised C&M that if it wished to fill in the old boat
ramp and close its seaward entrance with a bulkhead, a permit would be required.
C&M filed the survey as directed. After several weeks of negotiations between the
parties, C&M agreed to remove the replacement bulkhead and restore the affected
water bottoms, and the parties entered into a consent agreement in January 2009.
CRD confirmed C&M’s compliance with the consent order in a letter dated March
10, 2009.
C&M’s Second Replacement Bulkhead on the Sallette Tract. In March 2009,
C&M, without first requesting that CRD re-delineate the marshlands boundary, began
construction of a second replacement bulkhead. C&M excavated uplands even further
7
inland by approximately five feet from the excavation for the first replacement
bulkhead. C&M obtained a United States Army Corps of Engineers nationwide
permit for a bank stabilization and boat dock construction project. In conjunction with
the federal permit, on April 3, 2009, C&M requested a corresponding revocable
license for the project from CRD.5 C&M represented to both agencies that the new
bulkhead would be built outside jurisdictional marshlands and would follow the April
2008 JD line established by CRD in connection with the earlier enforcement
proceedings. The plans showed that the proposed bulkhead would jog around the
landward end of the previously excavated boat ramp, that is, that it would not close
the seaward entrance of the old boat ramp. CRD granted the revocable license based
on this plan.
In February 2010, CRD conducted a site visit and discovered that the
completed second replacement bulkhead did not comply with the federal permit and
the revocable state license. Specifically, CRD determined that the second bulkhead
did not follow the April 2008 JD line, where it jogged around the landward end of the
previously excavated boat ramp, but instead was built in a straight line and that fill
had been placed in a depression left by the removal of the old boat ramp. In March
5
See OCGA § 12-5-286.
8
2010, CRD sent C&M a Notice of Violation and a cease-and-desist order, directing
C&M to cease any construction related to the second bulkhead. C&M did not request
a hearing before an ALJ or hearing officer at that time but did stop construction. In
May 2010, CRD revoked C&M’s license to build the bulkhead and boat dock.
In June 2010, C&M submitted an application for an after-the-fact permit for
the second replacement bulkhead. In its application, C&M acknowledged that the
second bulkhead encroached to a small extent on jurisdictional area and attached
drawings showing the “DNR Jurisdiction Line,” that being the line as delineated in
April 2008 that jogged around the area of the former boat ramp. C&M requested,
“[g]iven the minor amount of existing jurisdictional impact as compared to the
amount of possible environmental harm resulting from demolition and complete
removal of the bulkhead,” that much of the second bulkhead be allowed to remain as
built. C&M proposed that it ameliorate the effects of the incursion by removing the
part of the bulkhead from the area where the boat ramp had been excavated and
removing the fill dirt from that area, which would allow it to receive the ebb and flow
of the tide and thus reconnect that area to jurisdictional waters. Days before a hearing
on the permit application scheduled for August 27, 2010, C&M withdrew its
application.
9
In negotiations with CRD to resolve the matter, which dragged on for years,
C&M took the position that the April 2008 JD line had been incorrectly delineated
in the earlier enforcement proceedings and should have been based on historical
conditions that existed before it disturbed the property in removing the old wooden
bulkhead and concrete boat ramp. Ultimately, CRD rejected C&M’s argument, and,
on March 21, 2016, Williams issued an administrative order requiring C&M to
remove the portion of the second bulkhead located in jurisdictional marshlands. C&M
filed an appeal from the order to the Office of State Administrative Hearings; an ALJ
affirmed the order. The ALJ determined that “the operative point in time for
determining the existence of marshland with regard to [C&M’s] second unauthorized
bulkhead was at the time [C&M] began constructing it (i.e., March 2009), not at some
point in time before [C&M] began constructing its first unauthorized bulkhead, which
was discovered in April 2008.” C&M appealed to the superior court, which also
affirmed. C&M’s appeal is now before this Court.
1. As a threshold matter, we consider Williams’ contention that C&M failed
to exhaust its administrative remedies with the result that it lacked the right to appeal
the March 2016 order. Williams contends that C&M could have appealed the March
2010 cease-and-desist order if it believed that the delineation of the April 2008 JD
10
line, on which the order was based, was invalid.6 Because C&M failed to do so,
Williams contends, it cannot challenge the March 2016 order that was based on the
same JD line.
A person cannot seek judicial review of an agency action unless he “has
exhausted all administrative remedies available within the agency.” OCGA § 50-13-
19 (a). “Long-standing Georgia law requires that a party aggrieved by a state agency’s
decision must raise all issues before that agency and exhaust available administrative
remedies before seeking any judicial review of the agency’s decision.” (Citation and
punctuation omitted.) Dept. of Community Health v. Ga. Soc. of Ambulatory Surgery
Centers, 290 Ga. 628, 629 (724 SE2d 386) (2012).7
The record shows that Williams filed a motion to dismiss C&M’s appeal to the
superior court based on the alleged failure to exhaust its administrative remedies. The
superior court, however, did not rule on the motion and ruled only on the merits of
C&M’s arguments. Because Williams did not obtain a ruling on the motion to dismiss
6
OCGA § 12-5-291 (a) (1) (Any cease-and-desist order issued by the Coastal
Marshlands Protection Committee to a person who is altering marshlands in violation of
the Act “becomes final unless the person named therein requests in writing a hearing
before a hearing officer appointed by the [Board of Natural Resources] no later than ten
days after the issuance of such order.”).
7
See fn. 1, supra.
11
and did not file a cross-appeal, this issue is not preserved for appellate review. See
Ga. Bd. of Dentistry v. Brooks, 273 Ga. 852, 853 (1) (548 SE2d 284) (2001); cf.
Northeast Ga. Cancer Care, LLC v. Blue Cross & Blue Shield of Ga., Inc., 297 Ga.
App. 28, 32 (1) (676 SE2d 428) (2009).
Moreover, the record shows that the March 2010 cease-and-order directed
C&M to cease any construction related to the second bulkhead but did not order the
bulkhead’s removal. Over the next six years, C&M tried to secure permission to leave
the second replacement bulkhead, or at least most of it, where it was. Within thirty
days after the March 2016 order, which for the first time directed C&M to remove the
second replacement bulkhead and backfill according to the April 2008 JD line, C&M
filed a petition for a hearing before an ALJ pursuant to OCGA § 12-5-283 (b). C&M
also appealed the ALJ’s adverse order, which is the final agency decision,8 to the
superior court pursuant to OCGA §§ 50-13-19 and 50-13-20.1.9 This is not a case
where a party tried to sidestep available administrative procedures by filing a petition
8
Under OCGA § 12-5-283 (b), when a person who is aggrieved or adversely
affected by any order or action of the Coastal Marshlands Protection Committee exercises
the right to a hearing before an administrative law judge appointed by the Board of Natural
Resources, “the decision of the administrative law judge shall constitute the final decision
of the board.”
9
See fn. 1 and 2, supra.
12
for declaratory judgment in the superior court. See Ga. Soc. of Ambulatory Surgery
Centers v. Ga. Dept. of Community Health, 316 Ga. App. 433, 435 (729 SE2d 565)
(2012) (“When an adequate administrative remedy exists that has not been taken,
dismissal of any declaratory judgment or equitable action is appropriate.”) (citation
and punctuation omitted).
C&M’s appeal to this Court is not barred by a failure to exhaust administrative
remedies.
2. Next, we consider Williams’ contention that C&M waived any objection to
the April 2008 JD line with the result that C&M lacked the right to appeal the ALJ’s
decision.10
10
Williams argues that
C&M actively participated in the April 2008 JD line becoming the JD line of
record (resulting in its subsequent use in this enforcement action) by not
asking CRD to re-mark the line, as it had offered to do [in November 2008],
and instead submitting a survey with that line delineated, leading to its
validation as the line of record. Moreover, C&M does not dispute that it
failed to challenge the [March 2010] cease-and-desist order applying the JD
line to the [second replacement] bulkhead or that it submitted two
applications to CRD [in April 2009 and June 2010] based on the JD line.
Either of these acts would be sufficient, standing alone, to establish waiver.
The ALJ agreed that C&M had, “in fact, waived any objection to the April 2008 JD line.”
13
Waiver is the voluntary relinquishment of a known right and may
be established by express statements or implied by conduct. An implied
waiver is one shown by a party’s decisive, unequivocal conduct
reasonably inferring the intent to waive. Ordinarily, silence is
insufficient to establish a waiver unless there is an obligation to speak.
(Punctuation and footnotes omitted.) Kennestone Hosp. v. Hopson, 273 Ga. 145, 148-
149 (538 SE2d 742) (2000). “In cases of silence there must be not only the right but
the duty to speak before failure to do so becomes an estoppel.” (Citation omitted;
emphasis in original.) Tybrisa Co. v. Tybeeland, 220 Ga. 442, 445 (139 SE2d 302)
(1964). “[I]n general, estoppels are not favored by the law.” (Citation omitted.)
McKean v. GGNSC Atlanta, LLC, 329 Ga. App. 507, 514 (3) (765 SE2d 681) (2014).
“While normally the question of waiver is a matter for the jury, where . . . the facts
and circumstances essential to the waiver issue are clearly established waiver
becomes a question of law.” (Citation and punctuation omitted.) St. Mary’s Hosp. of
Athens, Inc. v. Cohen, 216 Ga. App. 761, 763 (1) (456 SE2d 79) (1995).
The record shows that C&M began building the second replacement bulkhead
in March 2009, and the bulkhead was complete when the Department first discovered
it in February 2010. C&M’s conduct is consistent with the sworn statements of
C&M’s sole owner and member, Timothy Marshlick, that he never believed that the
14
April 2008 JD line was the applicable boundary, either in relation to the first
replacement bulkhead or the second bulkhead and that he believed that all of C&M’s
construction was landward of the marshlands-uplands interface. And C&M’s conduct
is consistent with Marshlick’s statement that he tried to secure permission to leave the
second replacement bulkhead where it was through various avenues, by obtaining a
bank stabilization and boat dock construction project permit, by filing an application
for an after-the-fact permit, and by arguing for a re-delineation of the boundary based
on the conditions that existed before the excavation of the old wooden bulkhead and
boat ramp. Even if some of C&M’s representations in connection with these activities
may be considered admissions against interest as a matter of evidentiary law,11 the
11
OCGA § 24-8-801 (d) (2) provides, in part:
Admissions shall not be excluded by the hearsay rule. An admission is a
statement offered against a party which is:
(A) The party’s own statement, in either an individual or
representative capacity; . . .
(C) A statement by a person authorized by the party to make a
statement concerning the subject; . . . [or]
(D) A statement by the party’s agent or employee, . . .
concerning a matter within the scope of the agency or
employment, made during the existence of the relationship[.]
See former OCGA § 24-3-36 (2012) (“Acquiescence or silence, when the circumstances
require an answer, a denial, or other conduct, may amount to an admission.”).
15
lack of decisive, unequivocal conduct reasonably demonstrating C&M’s intent to
waive the right to keep the second replacement bulkhead precludes a finding of
waiver such as would entirely bar consideration of C&M’s appeal on the merits.
3. C&M contends that the method that Williams used to determine the
jurisdictional line between uplands and protected marshlands was an arbitrary and
capricious departure from agency policy for defining jurisdictional lines and was
otherwise contrary to law.
Under OCGA § 50-13-19, which governs judicial review of contested
administrative decisions, “[j]udicial review of an administrative decision requires the
court to determine [whether] the findings of fact are supported by any evidence and
to examine the soundness of the conclusions of law that are based upon the findings
of fact.” (Citation and punctuation omitted.) Pruitt Corp. v. Ga. Dept. of Community
Health, 284 Ga. 158, 160 (3) (664 SE2d 223) (2008). The reviewing court “accepts
the [agency’s] findings of fact if there is any evidence to support the findings,” but
the court may “reverse or modify [an] agency decision . . . upon a determination that
the agency’s application of the law to the facts is erroneous.” (Citations omitted.) Id.
at 161 (3). A reviewing court is expressly prohibited from substituting its own
judgment for that of the agency as to the weight of the evidence on questions of fact.
16
OCGA § 50-13-19 (h). Upon judicial review, reversal is not warranted unless the
substantial rights of the appealing party have been prejudiced in one of five ways
expressly delineated in OCGA § 50-13-19 (h) (1) through (5) or, as argued in this
case, when the agency decision was “[a]rbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exercise of discretion.” OCGA § 50-13-19
(h) (6).12
12
OCGA § 50-13-19 (h) provides that a court reviewing an agency decision
shall not substitute its judgment for that of the agency as to the weight of the
evidence on questions of fact. The court may affirm the decision of the
agency or remand the case for further proceedings. The court may reverse or
modify the decision if substantial rights of the appellant have been prejudiced
because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on
the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
See Welcker v. Ga. Bd. of Examiners of Psychologists, 340 Ga. App. 853, 855 (1) (798
SE2d 368) (2017) (“If a party alleges that an agency’s ruling was arbitrary and capricious,
the courts must determine whether a rational basis exists for the final administrative
decision made. This is a question of law.”) (punctuation omitted); Northeast Ga. Med. Ctr.,
Inc. v. Winder HMA, Inc., 303 Ga. App. 50, 58 (2) (b) (693 SE2d 110) (2010) (“Arbitrary”
means “fixed or done capriciously or at pleasure; without adequate determining principle;
not founded in the nature of things; non-rational; not done or acting according to reason
17
In addition, “[w]hen an administrative agency decision is the subject of judicial
review, judicial deference is to be afforded the agency’s interpretation of statutes it
is charged with enforcing or administering and the agency’s interpretation of rules
and regulations it has enacted to fulfill the function given it by the legislative
branch.” (Citations omitted.) Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga.
at 160 (2).13 Furthermore, the appellate court’s duty is not to review whether the
or judgment; depending on the will alone; absolutely in power; capriciously; tyrannical;
despotic.”) (citation and punctuation omitted); Sawyer v. Reheis, 213 Ga. App. 727, 730
(2) (445 SE2d 837) (1994) (Where the record demonstrates that the ALJ had a rational
basis for his or her ultimate determination, the reviewing courts are not authorized to
substitute their own judgment for that of the ALJ under the theory that the administrative
determination is arbitrary and capricious.); Ga. Power Co. v. Ga. Pub. Svc. Comm., 196
Ga. App. 572, 580 (5) (396 SE2d 562) (1990) (Arbitrary and capricious decisions are
“those having no rational basis[.] . . . The opinions of competent experts may constitute
such a rational basis.”) (citations and punctuation omitted).
13
As we have explained:
Agencies provide a high level of expertise and an opportunity for
specialization unavailable in the judicial or legislative branches. They are able
to use these skills, along with the policy mandate and discretion entrusted to
them by the legislature, to make rules and enforce them in fashioning
solutions to very complex problems. Thus, their decisions are not to be taken
lightly or minimized by the judiciary. Review overbroad in scope would have
the effect of substituting the judgment of a judge or jury for that of the
agency, thereby nullifying the benefits of legislative delegation to a
specialized body.
(Citation and punctuation omitted.) Ga. Dept. of Community Health v. Medders, 292 Ga.
18record supports the superior court’s decision but whether the record supports the final
decision of the administrative agency, which, in this case, is the decision of the ALJ.
Emory University v. Levitas, 260 Ga. 894, 898 (1) (401 SE2d 691) (1994); Williams
v. Butler, 322 Ga. App. 220, 222 (744 SE2d 396) (2013); Professional Standards
Commission v. Valentine, 269 Ga. App. 309, 312 (603 SE2d 792) (2004); OCGA §
12-5-283 (b).
(a) In this case, C&M contends that CRD’s policy with regard to defining the
jurisdictional borders of marshlands is to delineate the boundary as it existed
immediately before unauthorized action was taken to alter any marshlands or locate
any structure over marshlands. Williams does not dispute this premise; indeed, it is
the foundation of the March 2016 removal order and the ALJ’s decision. The crux of
this dispute is whether under this policy the jurisdictional boundary relevant to these
enforcement proceedings is where the marshlands-uplands interface was before C&M
App. 439, 440-441 (664 SE2d 832) (2008). See also Center For a Sustainable Coast v.
Coastal Marshlands Protection Comm., 284 Ga. at 741 (2) (“Ordinarily, the interpretation
of a statute by an administrative agency which has the duty of enforcing or administering
it is to be given great weight and deference.” The appellate court will “defer to an agency’s
interpretation when it reflects the meaning of the statute and comports with legislative
intent.” This deference is particularly warranted [in marshlands jurisdiction cases] because,
in crafting the [Act], the General Assembly specifically stated that the Department of
Natural Resources is authorized to determine jurisdiction under the [Act].”) (citations and
punctuation omitted).
19
first disturbed the riverbank in April 2008 (as C&M contends) or where it was
immediately before C&M’s construction activities in March 2009 (as the ALJ found).
In support of this argument, C&M contends that the mean high tide line, which is the
basis of the Department’s jurisdiction, “is deemed to move (only) as a result of natural
erosion or accretion” and that “tidal boundary lines are not altered by human activity”
such as dredging or filling. Based on this, C&M contends that CRD erred in basing
the JD line on the reach of tidewaters after C&M’s demolition and excavation
activities rather than on historical conditions before such activities altered the natural
boundary. C&M contends that if the second replacement bulkhead were judged
according to a pre-April 2008 boundary, it would be entirely outside of jurisdictional
marshlands and not in violation of the Act.
As the ALJ found, the unauthorized action at issue in the March 2016 removal
order is C&M’s construction of the second replacement bulkhead beginning in March
2009. The evidence authorized the ALJ to find that the destruction of the old wooden
bulkhead and concrete boat ramp and the construction of the first replacement
bulkhead in April 2008 was a separate course of conduct from the construction of the
second replacement bulkhead beginning in March 2009. C&M’s violations of the Act
in April 2008 were addressed in the first enforcement proceedings, resolved by
20
agreement, and concluded no later than March 2009, when CRD certified C&M’s
compliance with the consent order. We conclude that the ALJ did not act arbitrarily
or capriciously and did not abuse or exceed its discretion in ruling that the
jurisdictional boundary relevant to these enforcement proceedings is the marshlands
boundary as it existed immediately before C&M’s began its unpermitted construction
of the second replacement bulkhead in March 2009.14
14
Although the parties identified no Georgia cases directly on point, cases
interpreting analogous federal law support this interpretation. See United States v. Malibu
Beach, Inc., 711 FSupp. 1301, 1311 (III) (A) (1) (a) (D.N.J. 1989) (In an action for an
injunction against fill activities at a beach site, whether a pool was within the jurisdictional
waters of the United States was to be based on whether the pool was subject to the ebb and
flow of the tide at the time of the fill activities.); Track 12, Inc. v. U.S. Army Corps of
Engineers, 618 FSupp. 448 (D. Minn. 1985) (The Corps had jurisdiction over a tract of
land even though the land was not a natural wetland but was an artificial wetland resulting
from the construction of a highway and a storm sewage system by state and local
authorities.); United States v. Ciampitti, 583 FSupp. 483, 491-494 (D.N.J. 1984) (The
history of a site, including the fact that part of the area may have become wetlands because
of a man-made connection between the site and tidal waterways, is not relevant to the
government’s jurisdiction unless it indicates that the land was not wetlands at the time the
government claimed jurisdiction, in that case, when the fill activity began. “[F]ederal
jurisdiction is determined by whether the site is presently wetlands and not by how it came
to be wetlands.”); United States v. Bradshaw, 541 FSupp. 880, 883 (II) (D. Md. 1981)
(Although there was evidence that the area where a landowner was dumping demolition
debris and sand had been highlands before the government dug mosquito ditches, the
determination of a violation was based on the condition of the area as wetlands at the time
of the dumping.)
21
Furthermore, C&M’s broad contention that tidal boundary lines are not altered
by human activity is not warranted. The Department, which is charged with
determining jurisdiction under the Act, has interpreted the Act to mean that, if the
contours of land are changed by human activities, resulting in the movement of
tidewaters into an area that was previously uplands, then any marshlands that result
from such artificial watercourse constitutes jurisdictional marshlands. See OCGA §
12-5-282 (3) (marshlands are defined by whether an area is reached by tidewaters
“whether or not the tidewaters reach the littoral areas through natural or artificial
watercourses”).15 Indeed, C&M concedes that its 2008 excavation of the riverbank
created additional tide-influenced areas.16 It follows that, immediately before C&M
15
Again, analogous federal law supports this interpretation. See cases cited in fn. 14.
Moreover, it is consistent with the purposes of the Act to treat manmade creation of coastal
marshlands differently from manmade destruction of marshlands. A landowner who
illegally places fill in an area to the extent that tidewaters no longer reach the area should
not be rewarded with a seaward shift of the jurisdictional boundary that takes the area out
of the Department’s jurisdiction. But if human activity allows tidewaters to reach a new
area, depending on the circumstances, a landward shift of the boundary may be rightfully
recognized.
16
According to CRD’s Karl Burgess, C&M’s removal of the first replacement
bulkhead likely resulted in an expansion of the marshlands into parts of C&M’s property
that, before the removal of the old wooden bulkhead and boat ramp, would have been
considered uplands. In its appellant brief, C&M itself states that its demolition and
dredging activities in April 2008, in removing the old wooden bulkhead and concrete boat
ramp and building the first concrete replacement bulkhead, altered the reach of the tide
22
built the second replacement bulkhead, additional jurisdictional marshlands subject
to protection under the Act existed compared to C&M’s preferred historical boundary
line. At no point does C&M point to any evidence, that, if CRD had delineated a JD
line according to the contours of the land in March 2009, then the second replacement
bulkhead would have been entirely landward of that line.
(b) We note that C&M also argues that CRD violated agency policy when it
delineated the April 2008 JD line, which it deems “the dispositive issue.” But this
argument is a red herring. As discussed in Division 3 (a), supra, the ALJ correctly
ruled that the dispositive issue is whether the second bulkhead violated the Act when
judged based on the marshlands-uplands interface as it existed immediately before
C&M began constructing that bulkhead in March 2009. Pretermitting whether the
ALJ erred in ruling that the April 2008 JD line was the JD line of record for the
second replacement bulkhead, such error would present no basis for reversal. The
record shows that CRD considered using the April 2008 JD line in connection with
the second replacement bulkhead to be an accommodation to C&M because its
activities in connection with the first replacement bulkhead allowed the interface to
shift landward. Because the second replacement bulkhead was in violation of the Act
inland by eight to ten feet. This is supported by the testimony of C&M’s consultant, Sligh.
23
whether judged by the April 2008 JD line, even if wrongly delineated, or by a new
line that CRD would have drawn based on March 2009 conditions, it does not matter
whether the April 2008 JD line was completely accurate when delineated.
In light of the great weight and deference to be accorded to the Department’s
interpretation of the Act in terms of the operative point in time for determining the
Department’s jurisdiction over marshlands with regard to dredging, construction, and
other activities that may alter the marshlands-uplands interface, and because it is
undisputed that the second replacement bulkhead, when judged according to the
boundary of the marshlands as it existed immediately before C&M began
constructing the bulkhead in March 2009, encroached on jurisdictional marshlands,
the March 2016 removal order had a rational basis and must be affirmed.
Judgment affirmed. Bethel, J., and Senior Appellate Judge Herbert E. Phipps
concur.
24