South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Supreme Court Rehears Captain Sams Case a Third Time
Posted: March 28, 2013

The Supreme Court reheard the case on April 17, 2012 and issued an extremely unusual, and very disappointing, decision. The Opinion is unusual because it is a complete reversal of the Court’s 2011 decision. In other words, the Court essentially said they got it entirely wrong the first time. It is also unusual in that there are three separate opinions. Two Justices signed the “Court’s Opinion.” One Justice concurred with the result of the Court’s Opinion, but wrote his own Opinion in which his analysis agrees with the Opinion of the dissent. The dissent stuck to the conclusions of the November 2011 Opinion that the ALC “erred in the construction of the relevant statutes and regulations.” In effect, there is no clear majority opinion to guide decision-makers in the future. The Opinion is disappointing because Captain Sam’s Spit is undisputedly a fragile and unique coastal resource – the kind that our Coastal Zone Management Act was designed to protect.

While extremely disheartened at this loss, South Carolina Environmental Law Project (SCELP) and the Coastal Conservation League are committed to using all available legal tools to continue advocating against an ill-conceived project to build houses on the dynamic Spit. We quickly developed a strategy for asking the Court to “rehear” its decision and working with Professor Robert Bockman at the USC School of Law, we filed a Petition for Rehearing on March 14. We also worked with several outdoor, recreational, educational and tourism groups who filed Amicus Curiae Briefs in support of our rehearing request. On May 2 the Supreme Court notified us that it granted our Petition for Rehearing. The Court heard arguments in this case for the third time on June 5. We are cautiously optimistic about the Court’s decision to rehear this important case.