Archive for April, 2010

May It Please the Court?
April 24, 2010

GEORGIA COUNCIL OF PROFESSIONAL ARCHAEOLOGISTS et al. v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al., 271 Ga. 757, 523 S.E.2.d 879 (1999)

Supreme Court of Georgia, (November 15, 1999)

Docket number: S99A1229

Thomas H. Beisswenger, Douglas R. Haines, for appellants.

In December 1997, the Board of Regents of the University System of Georgia sold 297 acres of real property to the Development Authority of Gordon County. On July 1, 1998, appellants, the Georgia Council of Professional Archaeologists and the Society for Georgia Archaeology, filed suit in the Superior Court of Gordon County, contending that the sale was subject to the Georgia Environmental Policy Act (GEPA), OCGA 12-16-1 et seq., since it involved the sale of more than five acres of state-owned land, See OCGA 12-16-3 (7). Believing that the Board of Regents had not complied with GEPA, appellants sought a writ of mandamus to compel the Board of Regents to perform its obligations under GEPA and a declaratory judgment that the Board had violated GEPA; that the sale was null and void; that GEPA required state departments and agencies to identify the purchaser’s intended use of property being sold by the department or agency and make an evaluation thereon; and that state departments and agencies could not avoid their GEPA duty by extracting a promise from the purchaser to do a GEPA evaluation after the sale.

The trial court dismissed appellants’ complaint after finding that the sale of 297 acres did not meet the statutory definition of “a proposed governmental action which may significantly adversely affect the quality of the environment” and, even if it did, the decision of the responsible government official did not create a cause of action on behalf of the two plaintiff corporations. See OCGA 12-16-5 (c). The trial court denied the request for declaratory relief, finding that the parties did not face uncertainty since all the conduct had occurred. The trial court declined to exercise its equity power to set aside the deed, finding that the Board of Regents had complied with GEPA, and that appellants had taken no legal action until six months after the sale was completed, though they had been aware of the proposed sale five months before it occurred. The trial court denied the request for mandamus because the responsible government official had not abused his exercised discretion, and the decision to proceed with the proposed governmental action did not create a cause of action in the plaintiffs. Id. This Court granted appellants’ application for discretionary review and posed the following questions:

1. Does OCGA 12-16-5 (c) bar plaintiffs’ action challenging the decision of the responsible government official that the proposed governmental action at issue was not a “proposed governmental action which may significantly adversely affect the quality of the environment?”

2. If OCGA 12-16-5 (c) does not bar the action, what remedy is available for plaintiffs to challenge the responsible government official’s determination that a proposed governmental action is not one which may significantly adversely affect the environment’s quality?

3. What standard of review applies to the superior court’s review of the responsible government official’s decision?

4. Applying that standard, was the superior court correct in affirming the decision of the responsible government official?

GEPA requires the “responsible official” of a “government agency” to determine if a “proposed governmental action” is “a proposed governmental action which may significantly adversely affect the quality of the environment.” [1] OCGA 12-16-4. If it is so determined, the governmental agency responsible for the project must prepare an environmental effects report; [2] publish notice in the legal organ of affected counties that the environmental effects report has been prepared; make the report available to the public upon request; and hold a public hearing if, within 30 days of the publication of the notice in the legal organ, the responsible official receives written requests for a hearing from at least 100 Georgia residents. OCGA 12-16-4; 12-16-5. Prior to the sale of the land at issue, the responsible official decided there was no significant adverse environmental impact from the sale of the property. As a result, no environmental effects report was made, no public notice was published, and no public hearings were held. Appellants maintain that, contrary to the determination of the responsible government official, the sale of the land was a “proposed governmental action which may significantly adversely affect the quality of the environment” which required the responsible official to have an environmental effects report prepared and to notify the public.

It is clear that the sale of more than five acres of state-owned land is a “proposed governmental action” under OCGA 12-16-3 (7) and that, under OCGA 12-16-3 (5), the Board of Regents is a “government agency” subject to GEPA. Compare Thornton v. Clarke County School District, 270 Ga. 633 (1) (514 SE2d 11) (1999) (a school district is not a “government agency” under GEPA). At issue in this case is the propriety of the responsible official’s decision that the proposed governmental action was not a “proposed governmental action which may significantly adversely affect the quality of the environment.” The initial question we must address is whether appellants’ suit contesting that decision is barred by OCGA 12-16-5 (c), which states:

The decision of the responsible official to proceed with the proposed governmental action shall not create a cause of action in any person, corporation, association, county, or municipal corporation; provided, however, the actions of the responsible official in the procedure of giving notice by publication of the environmental effects report and notice by publication of the decision made based upon the report and public comments, if any, may be challenged pursuant to . . . the “Georgia Administrative Procedure Act” if the responsible official acts on behalf of a government agency which is subject to that act or by mandamus otherwise; but any such challenge must be commenced within 30 days after the date notice of the responsible official’s decision . . . is first published in a legal organ of any affected county or counties.

Contained within the subsection is a clear statement that the responsible official’s decision to proceed with the proposed governmental action does not create a cause of action, followed by a limited waiver of sovereign immunity. [3] Under GEPA, the responsible official may make the decision “to proceed with the proposed governmental action” at two points: when the official decides that the proposed governmental action is not one which may significantly adversely affect the quality of the environment; and after receipt of the written comments and/or the public hearing that followed the official’s determination that the proposed governmental action may adversely affect the quality of the environment. Under the statute, the responsible official’s decision to proceed with the governmental action because it is not probable to expect a significant adverse impact on the quality of the environment may not serve as the basis of a judicial action against the responsible official or the government agency on behalf of which the responsible official is acting. Where, as here, a statute “is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.” Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). Accordingly, we conclude that OCGA 12-16-5 (c) bars appellants’ lawsuit, and the trial court did not err when it dismissed that portion of appellants’ complaint which sought to challenge the responsible official’s decision to proceed with the project. [4]

Our holding that OCGA 12-16-5 (c) bars appellants’ challenge to the responsible official’s decision that the proposed government action is not one from which it is probable to expect a significant adverse impact on the environment is supported by the additional language in OCGA 12-16-5 (c), which limits the scope of a permissible legal challenge under GEPA and sets out the time period within which such a challenge must be filed. The statute authorizes a legal challenge only to the procedure followed by the responsible official in giving the notices required by OCGA 12-16-4 (c) and 12-16-5 (b) after the official has determined that the proposed governmental action may significantly adversely affect the quality of the environment. The period within which the limited class of permitted suit may be filed commences with the publication of notice of the responsible official’s decision following receipt of the public’s written and verbal comments regarding the proposed government action that has been determined by the responsible official to be one which may significantly adversely affect the quality of the environment. Both the action which can form the basis of a permitted lawsuit and the time period within which such a suit must be filed take place well after the responsible official’s decision that forms the basis of appellants’ complaint, leaving us to conclude that the statute shields the responsible official’s initial decision from judicial review.

In light of our determination that OCGA 12-16-5 (c) bars appellants’ suit, we do not address the remaining questions we posed in granting appellants’ application for discretionary review since they were dependent upon an initial resolution that 12-16-5 (c) did not bar appellants’ suit.

FLETCHER, Presiding Justice, concurring.

In adopting the Act, the General Assembly declared that “[t]he protection and preservation of Georgia’s diverse environment is necessary for the maintenance of the public health and welfare and the continued viability of the economy of the state and is a matter of the highest public priority” [5] and “[s]tate agencies should conduct their affairs with an awareness that they are stewards of the air, land, water, plants, animals, and environmental, historical, and cultural resources.” [6] I agree with these statements and believe that virtually all Georgians do as well. In order to attain the important goals implicit in the Act’s declaration, however, there must be some check and balance, a reasonable and responsible way to challenge the “stewards’ ” determination of no significant adverse environmental effect. Unfortunately, the Act specifically prohibits any challenge and precludes the reasonable check and balance that appellants seek. Therefore, l am compelled to concur.

HUNSTEIN, Justice, dissenting.

The issue in this appeal is whether the determination by a responsible official based on erroneous legal advice that a proposed government action does not significantly adversely affect the environment can be challenged under the Georgia Environmental Policy Act (“GEPA”). OCGA 12-16-1 et seq. Because the majority’s holding, which essentially concludes that such decisions are unreviewable and aggrieved parties are without legal redress, is unsupported by the language of GEPA and is contrary to the stated legislative intent, I respectfully dissent.

The record establishes that the Board of Regents of the University System of Georgia decided to sell a tract of approximately 300 acres of property to the Development Authority of Gordon County to be developed into an industrial park. The property, known as the “Rome Crossroads,” contains Native American archaeological artifacts and a pre-Civil War cemetery; it was the site of a Civil War Battle; and a third of the property is part of the Oothcalooga Creek flood plain. The parties agree that Philip Worley, as the responsible official acting on behalf of the Board of Regents, [7] obtained legal advice from an assistant vice president for legal affairs in the University system and, based on this advice, determined that he was not required under GEPA to consider the Development Authority’s intended use for the Rome Crossroads in evaluating the environmental impact of the sale of this property. Rather, Worley looked solely to the impact of the sale itself, i.e., the transfer of the deed and other documents, when making his determination under GEPA that there were no significant adverse effects on the environment as a result of the proposed governmental action. It is uncontroverted that this determination was not the result of a factual evaluation of the transaction but was exclusively the result of a legal interpretation of GEPA by a University system employee. The actual environmental effect of the transaction was acknowledged by Worley in an internal memo, accompanying an evaluation form, in which he noted that “[i]n reality this sale will eventually have a Major Adverse effect on the environment.”

GEPA was enacted in recognition that “[t]he protection and preservation of Georgia’s diverse environment is necessary for the maintenance of the public health and welfare and the continued viability of the economy of the state.” OCGA 12-16-2 (1). The Legislature stated that the protection and preservation of Georgia’s environment “is a matter of the highest public priority,” id., and decided to promote this goal by requiring State agencies to “conduct their affairs with an awareness that they are stewards of the air, land, water, plants, animals, and environmental, historical, and cultural resources.” Id. at (2). To effectuate this goal, the Legislature determined that “[e]nvironmental evaluations should be a part of the decision-making processes of the state.” Id. at (3). The decision-making process utilized by Worley in this case, however, utterly thwarted the express legislative purpose of GEPA. Rather than fulfilling the stewardship duties set forth in GEPA, Worley utilized a sophistic legal interpretation which conveniently allowed the Board of Regents to avoid implementing the requirements established by the Legislature to protect and preserve this State’s environment.

OCGA 12-16-5 (c) has no application in those instances in which a responsible official avoids initiating the public participation steps set forth in GEPA by concluding initially that the proposed governmental action will not significantly adversely affect the environment. The majority opinion has violated an elementary rule of statutory construction by lifting a segment of GEPA out of context and construing it without consideration of all other parts of the statute. See City of Jesup v. Bennett, 226 Ga. 606, 609 (176 SE2d 81) (1970). That is the situation in this case, where there was no published environmental effects report, no public hearings, and no publication of Worley’s decision solely because those proceedings were preempted by the decision that the sale of the Rome Crossroads would not significantly adversely affect the environment. [9] How could affected parties know when to commence a challenge under the APA if there is never a publication of the responsible official’s decision?

Nothing in the language of OCGA 12-16-5 (c) supports the majority’s conclusion that its provisions bar appellants’ suit under the facts in this case. The decision of the responsible official which “shall not create a cause of action” under GEPA unless that decision is challenged pursuant to the APA within 30 days after the decision’s publication is unmistakably a decision made only after the environmental effects report is published in the legal organ of each county where the proposed government action will occur, after a requested public hearing has been conducted, after the responsible official has considered the comments received, rendered a decision to proceed with the proposed action, and published that decision in the legal organ of the affected counties. OCGA 12-16-4, 12-16-5. Accordingly, I cannot agree with the majority that OCGA 12-16-5 (c) applies to limit a challenge to the decision to proceed with a proposed government action under GEPA in those situations where the responsible official has sidestepped GEPA’s notice requirements by concluding the proposed action has no significant, adverse environmental effects.

by publication of the decision made based upon the report and public comments, if any, may be challenged pursuant to [the APA] if the responsible official acts on behalf of a government agency which is subject to [the APA] or by mandamus otherwise; but any such challenge must be commenced within 30 days after the date notice of the responsible official’s decision made pursuant to subsection (b) of this Code section is first published . . . .

Although GEPA does not detail the procedure to be followed to challenge a responsible official’s decision to proceed with a proposed government action which was made under factual circumstances such as those present here, that does not mean aggrieved parties are without a remedy. I would hold that appellants’ suit, in which they sought a declaration of the respective rights of the Board and themselves under GEPA, a mandamus to compel the performance of GEPA requirements by Worley, injunctive relief and, in the alternative, an opportunity to pursue an appeal under the APA, represents the proper avenue for obtaining legal redress under these circumstances.

“Although appellate courts generally do not construe statutory language that is plain and unequivocal, judicial construction is required when words construed literally would defeat the legislature’s purpose.” Echols v. Thomas, 265 Ga. 474, 475 (458 SE2d 100) (1995). The intent of the Legislature is manifest within OCGA 12-16-2. GEPA was enacted to protect and preserve Georgia’s environment, not to authorize environmentally unsound decisions based on sophistic legal advice that the impact of the sale of property goes no farther than the transfer of deeds. GEPA is meaningless if a responsible official can avoid all public oversight and legal challenge to a proposed government action simply by concluding that a proposed government action will have no significant adverse effect on the environment. Under the majority’s interpretation, a State agency can render GEPA meaningless, preempting the application of GEPA requirements by making an initial decision that no significant adverse effect will follow from a proposed government action and thus rendering a decision which will be legally unchallengeable since affected parties will have no means of learning of the decision within the 30 day window of opportunity for commencing a suit under the APA. GEPA is rendered meaningless because under this interpretation, State agencies will have no reason to comply with GEPA’s provisions. Why go through the expense and delay of preparing an environmental effects report, holding public hearings, publishing notices, when all that effort can be avoided merely by opting to “decide” that the proposed government action will have no significant adverse effect on the quality of the environment? The sophistic legal reasoning utilized by Worley can easily be applied to every type of proposed government action subject to GEPA’s requirements so that the Act can be obviated simply by responsible officials concluding that they need look no farther than the signing of the contract or deed or other document when making the determination whether a proposed action would significantly, adversely affect the quality of the environment of this State.

This Court’s interpretation of GEPA must be based on the recognition that the protection and preservation of this State’s diverse environment “is a matter of the highest public priority.” OCGA 12-16-2 (1). The majority’s interpretation of GEPA violates basic rules of statutory construction because it does not implement the express intent of the Legislature, it lifts individual provisions within the statute out of context of the act as a whole, and it fails to avoid a construction which renders GEPA meaningless. Because I cannot agree to a statutory construction of GEPA which defeats the primary purpose of the legislation, I dissent.

Thurbert E. Baker, Attorney General, Ray O. Lerer, Senior Assistant Attorney General, Roland F. Matson, Assistant Attorney General, William R. Thompson, Jr., for appellees.

1999

Notes:

1. OCGA 12-16-3 defines the applicable terms as follows:

(1) A proposed governmental action which may significantly adversely affect the quality of the environment” means a project proposed to be undertaken by a government agency or agencies, for which it is probable to expect a significant adverse impact on the natural environment . . .

(5) “Government agency” means any department, board, bureau, commission, authority, or other agency of the state . . .

(7) “Proposed governmental action” means any proposed land-disturbing activity by a government agency or funded by a grant from a government agency, any proposed sale or exchange of more than five acres of state owned land . . .

(8) “Responsible official” means the official or body in charge of or authorized to act on behalf of a government agency.

2. An “environmental effects report” is statutorily defined as “a report on a proposed governmental action which may significantly adversely affect the quality of the environment.” OCGA 12-16-3 (4).

3. Under the doctrine of sovereign immunity, the State cannot be sued without its consent. The doctrine of sovereign immunity enjoys constitutional status and therefore cannot be abrogated by this Court. State Bd. of Ed. v. Drury, 263 Ga. 429 (1) (437 SE2d 290) (1993). Since the decision to waive sovereign immunity is a voluntary act on the part of the State, the State may prescribe the terms and conditions on which it will consent to be sued, and the manner in which the suit will be conducted. Id. 4. Assuming without deciding that the declaratory judgment portion of appellants’ complaint is not barred by sovereign immunity, we conclude that the trial court did not err when it declined to issue a declaratory judgment since, the sale of the land having been completed, there was neither an actual nor a justiciable controversy which would authorize entry of a declaratory judgment. OCGA 9-4-2; Baker v. City of Marietta, 271 Ga. 210 (1) (518 SE2d 879) (1999).

5. OCGA 12-16-2 (1).

6. OCGA 12-16-2 (2).

7. The Attorney General has held that the Board of Regents is an entity covered under GEPA. 1993 Op. Att’y Gen. No. U93-9.

8. OCGA 12-16-5 (c) provides, in pertinent part:

The decision of the responsible official to proceed with the proposed governmental action shall not create a cause of action in any person, corporation, association, county or [city]; provided, however, the actions of the responsible official in the procedure of giving notice by publication of the environmental effects report and notice

9. Counsel for the Board of Regents stated at the hearing on the motion to dismiss that in regard to the statutory requirements of notice by publication of the existence of an environmental effects report and an opportunity for the public to be heard, [n]one of that was done in this case because of the initial finding by Mr. Worley that the sale would not have an adverse effect,” although counsel candidly admitted that “Mr. Worley has acknowledged that the construction of the development of the industrial park would have an adverse effect” on the Rome Crossroads property.

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St. Bernard Parish holds Grand Opening at Islenos Complex
April 16, 2010

Below is an article describing the recent grand opening of the Los Islenos Museum Complex in St. Bernard Parish, Louisiana. This was where I spent several months working last year:

St. Bernard Parish holds Grand Opening at Islenos Complex

Sunday, 04 April 2010 08:42

First in a series of five recovery celebrations in March, marking $6.5 million in federal, state and local construction dollars spent

St. Bernard Parish President Craig P. Taffaro, Jr., joined by parish, federal and state officials marked the grand opening and completion of more than $2.5 million in renovations and construction of nine historical structures at the 30-acre Los Islenos Museum Complex at 1345-1357 Bayou Road in St. Bernard.

“It certainly is a glorious day for the culture and heritage of our parish,” President Taffaro said at a brief ceremony the morning of the Islenos Fiesta that was attended by descendants of the two families who donated the original two structures for the complex, meant to preserve the Canary Islands history and culture. St. Bernard was founded by colonists from the Canary Islands between 1778 and 1783. Islenos is the Spanish word for Islanders.

In addition to the Grand Opening of the Islenos Museum Complex, President Taffaro marked a total of five other recovery celebrations in March: the Grand Opening of Violet Park No. 2, the Construction Ground Breaking of the Aycock Barn/Open Air Market, and the grand openings of both the Parish Maintenance Garage and Maintenance Shed, a total of more than $6.5 million in federal, state and local recovery dollars meant to move the parish forward and restore it to its pre-Katrina glory.

The work at Los Islenos Museum Complex has been funded mostly by FEMA with the support of the Los Islenos Society to repair damage wrought by Hurricane Katrina’s flooding and winds. The complex has two main museums in the front, the Islenos Museum and the Ducros Museum. In addition to the two museums, seven other structures were moved to the site or built with funds raised by Los Islenos Society working concurrently with St. Bernard Parish Government.

“The work of the Islenos Society to support parish government has been an object lesson in the success of public-private partnerships and how those partnerships shape a community,” said William Hyland, Los Islenos Museum Complex Director and Parish Historian.

Officials at the pre-fiesta ceremony were joined on stage by the Dot Benge, president of Los Islenos Heritage and Cultural Society. She is the daughter and niece of the Louise Molero O’Toole and Mabel Molero Quatroy who in 1980 donated their family home in memory of their parents Manuel Molero and Camilla Sylvera Molero. The family subsequently donated an additional 20 acres that have been used to transform the tranquil, pastoral area over the better part of the last three decades into a magnificent historic village that brings visitors from all over, especially on the weekend of the spring Islenos Fiesta, sponsored by the Los Islenos and Heritage Society. Additionally, Alexandre Ducros, the great grandson of Dr. Louis Alfred Ducros, also spoke about the donation of the Ducros Museum and Library by his great aunt, the late Rosa Mathilde Ducros Tennant who donated the family home in 1971.

A historical replica of the Islenos Museum, originally constructed in 1840, had to be built because the building was destroyed by a fallen oak during Katrina, and the Ducros home, built in 1800, was restored to its pre-Katrina state.

The renovations also included restoration work on the Coconut Island Bar Building, a popular community gathering place for years that had been moved to the site by the Society. The storm surge racked the building on its foundation, and it was made plum again. The windows that washed out have been replaced, and some of the all-cypress floor boards have been replaced. The roof damage has been repaired and the steps rebuilt. Electrical service has been reestablished. The physical Coconut Bar, built around 1920 and made of cypress and mahogany, has been restored, which allowed the St. Bernard Tourism Commission to serve Sangria, Spanish wine and appetizers during the Islenos Fiesta. It was built by Martina Nunez and his son Edward “Dween” Nunez, who recently passed away at the age of 102 and was the oldest living Islenos in St. Bernard at the time.

The Cresap-Caserta House has been repaired. Its roof had a huge pecan tree fall on it, exacting tremendous damage to rafters, and its windows were broken through by the storm surge. Repairs also were done to the box columns on the front, the back gallery floor as well as interior cypress flooring.

The support facilities that also were built during this renovation include sewage treatment, water, underground electrical service for all the buildings and two food pavilions with electrical service for festivals and outdoor activities.

Also, the parish rebuilt the replica of early 20th century trappers’ cabin originally designed and built by Calvin Melerine.

In a later phase, the parish is currently rebuilding the Islenos Multi-purpose building and replacements of the Estopinal House and Kitchen, which were destroyed. The replicas will incorporate a great deal of historic fabric from the original Estopinal house and kitchen.

The Los Islenos Heritage and Cultural Society is renovating the Esteves House with club funds at a cost of about $72,000 and donated $84,000 to the construction of the food pavilions.

President Taffaro said several departments worked together on this project including Recovery Director Michael Dorris Jr. and his staff, Recreation Director John Rahaim and his staff, including William deMarigny Hyland, Museum Complex Director, and staff members of the St. Bernard Public Works Department under Parish Acting Director of Public Works Logan Martin and Assistant Public Works Director Louis Pomes.

Kevin Smith Construction, which has been charged with other historic reconstruction and restoration projects such as Gallier Hall and Hermann Grima House in New Orleans, was the contractor on the first phase. Trapolin Architects is the firm responsible for the design of the entire complex, and Chalmette native Chris Chimento is Trapolin’s project manager. Clyde Burnett is the project manager for CDM, which provides oversight for all FEMA-funded projects, and Keith LaGrange of the St. Bernard Parish Public Works Department is the resident inspector.