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.
