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Eleventh Circuit Court Of Appeals Holds Loss Of Aesthetic Pleasure In Viewing Wetland Sufficient To Establish Standing

In Glynn Env’t Coal., Inc. v. Sea Island Acquisition, LLC, 26 F.4th 1235 (11th Cir. 2022), environmentalist Jane Fraser (“Fraser”) alleged that Sea Island Acquisition, LLC (“Sea Island”) filled wetlands with outside materials, diminishing her aesthetic interest in recreation and enjoyment of the natural beauty of the wetland. The Eleventh Circuit Court of Appeals held that Fraser’s allegations against Sea Island were sufficient to establish an injury in fact and therefore Fraser had standing to bring her claim.

Sea Island operates a hotel near Dunbar Creek in Glynn County, Georgia. It owns a 0.49-acre parcel of land near the parking lot of its hotel that is considered a wetland under the Clean Water Act. Sea Island sought to fill the wetland with outside materials, which required a permit from the United States Army Corps of Engineers.

In January 2013, Sea Island submitted a pre-construction notification to the Corps for its plan to fill its wetland for the purpose of constructing a commercial building. This fell within the scope of the Corps’ Nationwide Permit 39, which allows for the filling of wetlands for the construction of commercial building foundations and attendant features necessary for the use and maintenance of the structures on the wetlands. The Corps authorized the proposed project in February 2013.

Plaintiffs, a group consisting of two non-profit environmental organizations, as well as Ms. Fraser, allege that Sea Island did not comply with the Clean Water Act’s permitting process because it filled the wetland for the purpose of landscaping and not constructing a commercial structure. Plaintiffs  sought a declaratory judgment, an injunction compelling restoration of the wetland, civil penalties, and attorney’s fees.

Plaintiff Fraser is a resident of the county in which the subject wetlands are located and is a member of both of the Plaintiff environmental organizations, Glynn Environmental Coalition, Inc., and Center for a Sustainable Coast, Inc. Fraser alleges she regularly recreates in and enjoys the aesthetics of the wetlands and marshes in the general Dunbar Creek area, and before the wetland was filled she derived aesthetic pleasure from the wetland. After filling the wetlands with unnatural grass, Plaintiff claims the aesthetic and recreational value of the wetland was diminished.

Sea Island moved to dismiss Plaintiffs’ amended complaint for lack of standing and failure to state a claim upon which relief could be granted, arguing Plaintiffs’ allegations did not establish that any party suffered an injury in fact. The United States Court for the Southern District of Georgia agreed and dismissed Plaintiffs’ complaint for lack of standing. The district court reasoned that Plaintiffs had not established a concrete injury and had not alleged with particularity how her aesthetic and recreational interests in the area were harmed.

The Eleventh Circuit disagreed, vacated the District Court’s order and remanded the case for further proceedings. On appeal, the Eleventh Circuit found that Plaintiff’s complaint plausibly and clearly alleged a concrete aesthetic injury, establishing standing under Article III of the Constitution.

An individual suffers an aesthetic injury when they use an affected area and are a person for whom the aesthetic value of the area will be lessened by the challenged activity. Plaintiff met her burden of establishing aesthetic injury by alleging that she gains and aesthetic pleasure from viewing wetlands in their natural habitat, regularly recreating near and observing the affected wetland and derived less pleasure from the wetland when it was replaced by sodding and unnatural vegetation.

The Court also addressed Sea Island’s arguments in defense of the dismissal. First, Sea Island argued that Fraser needed to have actually visited the wetland prior to its fill in order to have suffered harm from the filling. This argument was held inconsistent with Supreme Court precedent, and Plaintiff did not need to have previously derived pleasure from the wetland to suffer an injury from loss of aesthetic pleasure after its filling.

Defendant also argued that Plaintiff had to physically step foot on or use the wetland to have an aesthetic interest in it. The Eleventh Circuit found that the case cited by Defendant for this proposition was distinguishable, as it involved claims of loss of use of unspecified portions of an immense, two-million-acre area. Here, Plaintiff specified and observed the half-acre wetland that Sea Island filled. The Court pointed out that Sea Island’s position would require a plaintiff to have climbed on top of the arches in Arches National Park or stepped on the Old Faithful geyser to challenge their destruction.

Finally, the Court addressed Defendant’s argument that Plaintiff had no interest of any kind in the wetland because it is private property. This argument was dismissed under well-settled tort law that a person can suffer an injury from the unsightly nature of private property, even if they cannot always prevail on their underlying claim.  The Eleventh Circuit concluded that Fraser adequately alleged that she suffered an injury to her aesthetic interests in the wetland because she viewed the wetland, derived pleasure from it in its natural state, and now derives less pleasure from Sea Island’s filling of the wetland.