The Glynn Environmental Coalition, Inc. v. Sea Island Acquisition, LLC

26 F.4th 1235

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 3, 2022
• Docket: 21-10676
• Status: Published

Opinion

USCA11 Case: 21-10676 Date Filed: 03/03/2022 Page: 1 of 16

[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-10676 ____________________

THE GLYNN ENVIRONMENTAL COALITION, INC., CENTER FOR A SUSTAINABLE COAST, INC., JANE FRASER, Plaintiffs-Appellants, versus SEA ISLAND ACQUISITION, LLC,

Defendant-Appellee. ____________________

Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 2:19-cv-00050-JRH-BWC ____________________ USCA11 Case: 21-10676 Date Filed: 03/03/2022 Page: 2 of 16

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Before WILLIAM PRYOR, Chief Judge, JORDAN, Circuit Judge, and BROWN,* District Judge. WILLIAM PRYOR, Chief Judge: This appeal concerns whether a local environmentalist who regularly visits an area of wetlands to recreate and enjoy their nat- ural beauty has standing to complain about the filling of a wetland with outside materials because it has diminished her aesthetic in- terest in that wetland. Because these allegations suffice to establish an injury in fact, we vacate the order of dismissal and remand for further proceedings. I. BACKGROUND At this stage, we accept as true the following allegations of the complaint. Sea Island Acquisition, LLC, owns a 0.49-acre parcel of land near Dunbar Creek in Glynn County, Georgia, next to the parking lot for its nearby hotel. The parcel is considered a wetland under the Clean Water Act. When Sea Island sought to fill that par- cel with outside materials, the Act required Sea Island to obtain a certification from the State of Georgia and a permit from the United States Army Corps of Engineers. See 33 U.S.C. §§ 1311(a), 1341(a)(1), 1344(a), (e).

*Honorable Michael L. Brown, United States District Judge for the Northern District of Georgia, sitting by designation. USCA11 Case: 21-10676 Date Filed: 03/03/2022 Page: 3 of 16

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The Act allows for two kinds of permits. For the first kind, an individual permit, a person seeking to fill a wetland must submit to the appropriate Corps district office a detailed application, see 33 C.F.R. §§ 325.1(c)–(d), 325.2(a), that includes “a list of authoriza- tions required by other federal, interstate, state, or local agencies for the work, including all approvals received or denials already made” by those agencies, id. § 325.1(d). The application then un- dergoes “public notice and receipt of comments,” id. § 325.5(b)(1), and the Corps issues a “decision document” that reports the view of the issuing official concerning the “probable effect of the pro- posed [project] on the public interest” and imposes “special condi- tions” on the project to the extent those conditions are appropriate to minimize environmental impact, see id. § 325.2(a)(6). The sec- ond kind of permit, a general permit, is valid for a period of no more than five years for activities that will not cause significant en- vironmental harm. See 33 U.S.C. § 1344(e). Nationwide Permit 39, a general permit, was issued in 2012. It allowed the filling of wetlands “for the construction . . . of com- mercial and institutional building foundations and . . . attendant features . . . necessary for the use and maintenance of the struc- tures” on the wetlands. Reissuance of Nationwide Permits, 77 Fed. Reg. 10184-01, 10279 (Feb. 21, 2012). In 2012, the Georgia Environ- mental Protection Division issued a conditional certification for all projects that were allowed by Permit 39. On January 10, 2013, Sea Island submitted a pre-construc- tion notification to the Corps for its plan to fill its wetland for the USCA11 Case: 21-10676 Date Filed: 03/03/2022 Page: 4 of 16

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purpose of constructing a commercial building. The notification represented that Sea Island intended to fill 0.49 acres of what might be a wetland under the Act. Sea Island also sought a jurisdictional determination by the Corps of whether the parcel was a wetland. Sea Island proposed building “[r]etaining walls . . . to reduce [the] overall footprint of the project in the wetlands,” as well as purchas- ing 3.48 wetland “mitigation credits” to offset the loss of wetlands. On February 20, 2013, the Corps issued a preliminary juris- dictional determination that the 0.49-acre parcel of land might be a wetland, and the Corps “verified authorization” of the proposed project. The authorization lasted for two years or until Permit 39 was “modified, reissued, or revoked,” plus an additional year from that time to complete the work. Although Sea Island had represented to the Corps that it in- tended to construct or expand a “commercial and institutional building foundation[] . . . and [an] attendant feature[],” (Quoting Reissuance of Nationwide Permits, 77 Fed. Reg. at 10279.) “Sea Is- land intentionally and maliciously misrepresented” that intent. “Sea Island never intended to comply” with Permit 39 or the Geor- gia Conditional Permit and “only applied for [Permit 39] to save time and money.” Instead, it intended to “landscape over” the wet- land, which is near “its hotel, the Inn at Sea Island.” “Sea Island filled” the wetland with “fill material . . . between February 20, 2013, and March 27, 2013,” but it still has not erected nor has any intention to erect any buildings or structures on the wetland. USCA11 Case: 21-10676 Date Filed: 03/03/2022 Page: 5 of 16

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Sea Island created various documents before and after its no- tification to the Corps that are allegedly inconsistent with its repre- sentations to the Corps. For example, Sea Island submitted a pre- liminary site plan to Glynn County on November 20, 2012—before its notification to the Corps—that did not show a proposed build- ing. And the final construction plans created on November 27, 2012, evidenced that Sea Island intended to place permanent sod- ding on the wetland. Finally, Sea Island made inconsistent representations regard- ing the presence of curb cuts in the pavement. Curb cuts would be necessary to operate an administrative office and parking lot be- cause curb cuts lower the curb to allow cars to enter the parking lot and pedestrians to step onto the sidewalk. Even though Sea Is- land’s application to the Corps indicated that there would be curb cuts in the pavement, the preliminary and final plats sent to the county did not show curb cuts, and the final project does not have them. Further, Sea Island placed utilities such that it would be ex- tremely difficult, if not impossible, to add curb cuts. The Glynn Environmental Coalition, Inc., the Center for a Sustainable Coast, Inc., and Jane Fraser sued Sea Island. The organ- izations are Georgia non-profit corporations. Some of their mem- bers, including Fraser, reside in Glynn County near the wetland. The organizations provide their members with information con- cerning environmental developments in the area. The environmentalists alleged that Sea Island did not com- ply with the Act’s permitting process because it filled the wetland USCA11 Case: 21-10676 Date Filed: 03/03/2022 Page: 6 of 16

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for the purpose of landscaping and not constructing a commercial structure, it did not comply with the Georgia conditional certifica- tion, the authorization under Permit 39 had expired without com- pliance, and the authorization was null and void because Sea Island “intentionally and maliciously misled the Corps.” The environ- mentalists sought a declaratory judgment, an injunction “compel- ling Sea Island to restore” the wetland, civil penalties, and attor- ney’s fees. Fraser is a “resident of Glynn County” who “ha[s] lived in the area . . . for over twenty years” and is a member of both Glynn Environmental and Sustainable Coast. Fraser moved to the area “in large part due to the area’s unique ecology, including its native hab- itat, wildlife[,] and vegetation.” She “regularly recreate[s] in and en- joy[s] the aesthetics of the wetlands and marshes” in the general Dunbar Creek area. Before the fill of the wetland, Fraser “derived aesthetic pleasure” from the wetland, which she described as a “pleasing natural resource,” and from “other similar wetland habi- tats in Glynn County by viewing the area in its natural habitat.” (Emphasis added.) After the fill, the wetland was “replaced by un- natural grassed areas” and an “unnatural lawn” that is “less aes- thetically pleasing.” (Emphasis added.) The fill of the wetland was the partial cause of a “noticeable deterioration of the natural aes- thetic beauty, water quality, and habitat of the . . . area,” and Sea Island’s actions “diminished” Fraser’s “aesthetic and recreational value” in the wetland and “its downstream tributaries.” Fraser also alleges that she “observe[s] Dunbar Creek on a daily basis” as she USCA11 Case: 21-10676 Date Filed: 03/03/2022 Page: 7 of 16

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drives over Dunbar Creek and that she has “noticed a significant difference in the water clarity in Dunbar Creek.” Sea Island moved to dismiss the environmentalists’ amended complaint for lack of standing and for failure to state a claim upon which relief could be granted. See FED. R. CIV. P. 12(b)(1), (6). Sea Island argued that the environmentalists’ allega- tions did not establish that any of the parties had suffered an injury in fact and that the organizations could not establish associational standing. And it contended that, assuming the allegations estab- lished a legally cognizable injury, the complaint did not establish causation or redressability. Sea Island also contested the legal suffi- ciency of each of the environmentalists’ claims. The environmen- talists responded that they had suffered environmental, aesthetic, recreational, and procedural injuries, and that the organizations had associational standing through the standing of Fraser. The en- vironmentalists also argued that they had adequately alleged cau- sation and redressability, and they defended their complaint on the merits. The district court dismissed the complaint for lack of stand- ing on the ground that the environmentalists failed to allege an in- jury in fact. See FED. R. CIV. P. 12(b)(1). The district court addressed only Fraser’s alleged aesthetic and recreational injuries, the envi- ronmentalists’ alleged procedural injury, and the organizations’ as- sociational standing. The district court reasoned that Fraser had not alleged how her aesthetic and recreational interests in the area surrounding the wetland were harmed besides “conclusory and USCA11 Case: 21-10676 Date Filed: 03/03/2022 Page: 8 of 16

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speculative assertions” that filling the wetland would cause harm to the surrounding area and injure Fraser’s aesthetic and recrea- tional interests. The district court rejected Fraser’s alleged injury to her aesthetic interest in the wetland itself because “she d[id] not allege [that] she ever actually visited” the wetland “prior to its fill.” It also reasoned that Fraser’s allegations regarding her recreational interests were inadequate because she never explained what activ- ities were inhibited and how they were inhibited. The district court concluded that the environmentalists had not alleged “particular facts that demonstrate” that Sea Island’s “activity devalued” the en- vironmentalists’ “recreational and aesthetic interest in the . . . [w]etland and Dunbar Creek” and so could not establish a concrete injury. The district court also rejected the environmentalists’ argu- ments regarding associational standing and procedural injury. “Be- cause . . . Fraser does not have standing to sue in her own right, [the organizations] do not have associational standing.” The district court also reasoned that to allege a procedural injury, a plaintiff must show “an injury to a separate concrete interest.” (Quoting Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 810 (11th Cir. 1993).) Because the environmentalists had not adequately alleged any other concrete injury, the district court concluded that they had not suffered a procedural injury. II. STANDARD OF REVIEW We review the dismissal of a complaint de novo. Aaron Priv. Clinic Mgmt. LLC v. Berry, 912 F.3d 1330, 1335 (11th Cir. 2019). USCA11 Case: 21-10676 Date Filed: 03/03/2022 Page: 9 of 16

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We accept as true the allegations in the complaint and attached ex- hibits and draw all reasonable inferences in favor of the plaintiffs. Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1297 & n.4 (11th Cir. 2015). III. DISCUSSION Article III standing requires a plaintiff to have “suffered an injury in fact, . . . that is fairly traceable to the challenged conduct of the defendant, and . . . that is likely to be redressed by a favorable judicial decision.” Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 924 (11th Cir. 2020) (en banc) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). “Each element of standing is ‘an indispen- sable part of the plaintiff ’s case’ and ‘must be supported in the same way as any other matter on which the plaintiff bears the burden of proof.’” Aaron Priv. Clinic, 912 F.3d at 1336 (quoting Lujan v. Defs. of Wildlife (Lujan), 504 U.S. 555, 561 (1992)). At the motion-to-dis- miss stage, we evaluate standing by determining whether the com- plaint “clearly alleges facts demonstrating each element.” Id. (quot- ing Spokeo, 578 U.S. at 338). An injury in fact must be “concrete, particularized, and ac- tual or imminent.” Muransky, 979 F.3d at 925. An injury that is “conjectural or hypothetical” is constitutionally insufficient. Id. At the motion-to-dismiss stage, “‘general factual allegations of injury’ can suffice,” id. at 924 (quoting Lujan, 504 U.S. at 561), so long as the complaint “plausibly and clearly allege[s] a concrete injury,” id. (quoting Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1621 (2020)). Only factual allegations, and not legal conclusions, are relevant to USCA11 Case: 21-10676 Date Filed: 03/03/2022 Page: 10 of 16

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our inquiry, and “mere conclusory statements . . . do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); accord Muransky, 979 F.3d at 924. A conclusory statement is a legal conclusion that is “couched as a factual allegation.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). The environmentalists offer several arguments for why they have adequately alleged an injury in fact, including that Fraser suf- fered an aesthetic injury. Because we conclude that Fraser ade- quately alleged a concrete injury to her aesthetic interest in the wetland, we do not address the environmentalists’ other argu- ments. An individual suffers an aesthetic injury when she “use[s] the affected area” and is a person “for whom the aesthetic . . . value[] of the area will be lessened by the challenged activity.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 183 (2000) (internal quotation marks omitted); accord Sierra Club v. Johnson, 436 F.3d 1269, 1279 (11th Cir. 2006). An individual can meet her burden of establishing that injury at the pleading stage “by attesting that [s]he uses . . . an area affected by the alleged vio- lations and that h[er] aesthetic . . . interests in the area have been harmed.” Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1280 (11th Cir. 2015) (quoting Sierra Club v. Tenn. Valley Auth., 430 F.3d 1337, 1344 (11th Cir. 2005). “Aesthetic . . . well-being” is an “important ingredient[] of . . . quality of life in our society” and is a recognized interest even though it is often USCA11 Case: 21-10676 Date Filed: 03/03/2022 Page: 11 of 16

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“shared by the many rather than the few.” Sierra Club v. Morton, 405 U.S. 727, 734 (1972). Fraser “plausibly and clearly allege[d] a concrete injury” to her aesthetic interest. See Muransky, 979 F.3d at 924 (quoting Thole, 140 S. Ct. at 1621). Fraser gains aesthetic pleasure from viewing wetlands in their natural habitat. She regularly recreates in the area and sees the wetland. After the wetland was replaced with sodding, she derived less pleasure from the wetland because the habitat and vegetation were unnatural. These alleged injuries are sufficient at the pleading stage because Fraser need only allege “that [s]he uses” the “area affected” and that “h[er] aesthetic . . . interests . . . have been harmed.” Black Warrior, 781 F.3d at 1280 (internal quotation marks omitted). Her allegations are neither a mere legal conclusion that she suffered an injury in fact nor a legal conclusion that she suffered an injury in fact “couched as a factual allegation.” Iqbal, 556 U.S. at 678 (internal quotation marks). Fraser explained how and why she derived aesthetic pleasure from the wetland that Sea Island filled. She then explained why her aesthetic interest in the wetland was harmed. Sea Island makes three arguments in defense of the dismis- sal. First, it argues that the district court correctly concluded that Fraser needed to have “actually visited” the wetland “prior to its fill.” The district court understood Fraser to have alleged only that “she enjoys the aesthetics of the wetlands” generally, so it reasoned that Fraser’s allegations were “not sufficient to show and injury-in- fact.” (Alterations adopted.) Second, Sea Island argues that Fraser USCA11 Case: 21-10676 Date Filed: 03/03/2022 Page: 12 of 16

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must have “entered upon” the wetland to have an aesthetic interest in it. Third, Sea Island seems to argue that that the environmental- ists categorically have no interest of any kind in the wetland be- cause it is private property. We address and reject each contention in turn. Contrary to Sea Island’s argument, Fraser did specifically al- lege in her affidavit that she “derived aesthetic pleasure” from the wetland “[p]rior to Sea Island[’s] . . . fill” of the wetland. But, in any event, Fraser was not required to visit the wetland before it was filled. Even if she did not previously derive pleasure from the wet- land, Fraser suffers an injury in fact if she cannot now derive aes- thetic pleasure from it because it was filled. For example, the Su- preme Court has held that plaintiffs who alleged that they “would [have] like[d] to” have engaged in certain recreational activities but did not because of the defendant’s alleged conduct had standing, Friends of the Earth, 528 U.S. at 181–83, even though they had never used the affected area or had done so only once or twice years before, id. at 200 (Scalia, J., dissenting). Fraser also need not physically step foot on or use the wet- land to have an aesthetic interest in it. Sea Island quotes language from the Supreme Court that “a plaintiff claiming injury from en- vironmental damage must use the area affected by the challenged activity and not an area roughly in the vicinity of it.” (Quoting Lujan, 504 U.S. at 565–66 (characterizing the holding in Lujan v. Nat’l Wildlife Fed’n (Nat’l Wildlife Fed’n), 497 U.S. 871, 887–889 USCA11 Case: 21-10676 Date Filed: 03/03/2022 Page: 13 of 16

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(1990).) But closer examination of that decision reveals that the Su- preme Court does not require physical occupation of the wetland. National Wildlife Federation is distinguishable. There, the plaintiffs used unspecified parts of a two-million-acre area of Wyo- ming “in the vicinity of” the 4,500 acres that were affected by the government’s challenged action. 497 U.S. at 886–87 (emphasis omitted) (internal quotation marks omitted). All but 6,500 acres of that two-million-acre area had been open to mining and oil and gas leases, and the government had opened 4,500 of the remaining land to leases, leaving only 2,000 acres closed to such leases. See id. at 887. The plaintiffs alleged that the government action harmed their “recreational use and aesthetic enjoyment of federal lands.” Id. at 886 (internal quotation marks omitted). At the summary judgment stage, the Court concluded that the plaintiffs had not established that those interests were affected because “averments” that the plaintiffs “use[d] unspecified portions of an immense tract of terri- tory” did not satisfy the summary judgment standard even if they would have been enough to survive a motion to dismiss. Id. at 889 (emphasis added). In contrast with National Wildlife Federation, Fraser alleged that she derived pleasure from the half-acre wetland that Sea Island filled, that she also has seen it after it was filled, and that she has observed the immediate area surrounding the wetland. Those alle- gations differ from an averment that a person’s aesthetic interest is harmed solely because he uses part of a two-million-acre area, a small portion of which was opened to mining and oil and gas leases. USCA11 Case: 21-10676 Date Filed: 03/03/2022 Page: 14 of 16

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Sea Island’s position would require a plaintiff to have climbed on top of the arches in Arches National Park to challenge their destruc- tion or to have stepped on the Old Faithful geyser at Yellowstone National Park to challenge its destruction. That position finds no support in case law. Cf. Lujan, 504 U.S. at 562–63 (“[T]he desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.” (em- phasis added)). Federal courts enjoy the power to protect an interest that is “shared by the many rather than the few.” Morton, 405 U.S. at 734. And “[t]he fact that an injury may be suffered by a large number of people does not . . . make that injury a nonjusticiable generalized grievance.” Spokeo, 578 U.S. at 339 n.7. An injury can be “widely shared,” id., and remain actionable so long as “the impact on [the] plaintiff is [not] plainly undifferentiated and common to all mem- bers of the public,” Lujan, 504 U.S. at 575 (emphasis added) (alter- ation adopted) (internal quotation marks omitted). Not every citi- zen will drive by the wetland that Sea Island filled, nor will every citizen be bothered by not seeing the wetland in its natural state. Cf. id. (rejecting an injury that “affect[ed] only the generalized in- terest of all citizens” (emphasis added) (internal quotation marks omitted)). Even if Sea Island is correct that the environmentalists have no recreational interest in the filled wetland itself because they have no ability to recreate on Sea Island’s private property, that ar- gument does not apply to Fraser’s alleged aesthetic interests in the USCA11 Case: 21-10676 Date Filed: 03/03/2022 Page: 15 of 16

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filled wetland. A person can suffer an injury from the unsightly na- ture of private property under well-settled tort law, even if he can- not always prevail on his underlying claim. See, e.g., Allison v. Smith, 695 P.2d 791, 794 (Colo. App. 1984) (“[L]egitimate but un- sightly activity . . . may become a private nuisance . . . .”); Living- ston v. Davis, 50 N.W.2d 592, 598 (Iowa 1951) (“[T]hat a thing is unsightly or offends the aesthetic sense does not ordinarily make it a nuisance or afford grounds for injunctive relief. ” (emphases added)); M. L. Cross, Annotation, Spite Fences and Other Spite Structures, 133 A.L.R. 691 (1941) (explaining the general rule that a useful structure does not give rise to a cause of action even though “it causes injury to another by . . . interfering with the view” (emphasis added)); Deborah Tussey, Annotation, Fence As Nuisance, 80 A.L.R.3d 962 (1977) (explaining that the alleged “in- jury ” caused by a “spite fence . . . is often the obstruction of the . . . view of the adjoining property” (emphasis added)); cf. TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021) (explaining that “in- tangible harms” that were “traditionally recognized as providing a basis for lawsuits in American courts” are “concrete”). Sea Island also argues that the environmentalists cannot es- tablish that they will suffer an injury that will occur at a “fixed and specific time” in the future as is required to request an injunction because any harm that they might have suffered occurred at a dis- crete time in 2013. (Citing Am. C.L. Union of Fla., Inc. v. Miami- Dade Cnty. Sch. Bd., 557 F.3d 1177, 1193–94 (11th Cir. 2009).) This argument is without merit because the environmentalists’ theory USCA11 Case: 21-10676 Date Filed: 03/03/2022 Page: 16 of 16

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is that the filled wetland imposes a continuing and ongoing injury as Fraser “regularly” frequents an area from which the wetland is visible. An aesthetic injury is not a one-use-only card. Fraser adequately alleged that she suffered an injury to her aesthetic interests in the wetland because she has viewed the wet- land, derived aesthetic pleasure from its natural habitat and vege- tation, and now derives less pleasure from the unnatural grasses and lawn placed on the wetland. Those allegations are sufficient to establish an injury in fact at this stage, and the district court erred in concluding otherwise. IV. CONCLUSION We VACATE the order of dismissal and REMAND for fur- ther proceedings.