S.C. Dep't of Nat. Res. v. Price

1

South Carolina Department of Natural Resources, Petitioner, v. Ernest F. Price, (In Re: Monthly Harvest Report) Respondent.

South Carolina Department of Natural Resources, Petitioner, v. Ernest F. Price, (In Re: Monthly Harvest Report) Respondent.

Nos. 23-ALJ-13-0150-CC, 23-ALJ-13-0152-CC

South Carolina Administrative Law Court Decisions

May 24, 2023

APPEARANCES:

For Petitioner: Susan Olmert Porter, Esquire For Respondent:

Patrick Coleman Wooten, Esquire Charles Wilson Daniel Esquire

FINAL ORDER

Robert L. Reibold Administrative Law Judge

STATEMENT OF THE CASE

The two above-captioned matters are pending before the South Carolina Administrative Law Court (the ALC or the Court) pursuant to requests for a contested case hearing filed by Ernest F Price (Respondent). Respondent is challenging the revocation of his Horseshoe Crab Hand Harvest &Transport Permit HH23-348 (the Permit) by the South Carolina Department of Natural Resources (Department). The Department revoked Respondent's permit because Respondent (1) did not "submit mandatory monthly reports of daily production/no-production" for March 2023 and (2) did not provide a signed copy of the Permit to the Department. The Department revoked based on the first ground by letter dated April 11, 2023, and the Department revoked based on the second ground by letter dated April 25, 2023. Respondent filed separate requests for a contested case hearing for each revocation letter-he filed the request as to the harvest report on April 26, 2023, and he filed the request as to the signed permit on April 28, 2023. Both matters were assigned to the undersigned on May 2, 2023, and also on May 2, 2023, the Department filed its agency information sheet, notice of appearance, and motion for an expedited hearing.

The Court contacted the parties about the possibility of consolidating these matters and scheduling because the same permit is at issue, counsel is the same, and the witnesses involved in each matter will likely be involved in both cases. The parties stated they did not have any objections to consolidation.^[1] Accordingly, the Court concluded it was appropriate to consolidate these matters and ordered that the matters be consolidated on May 5, 2023. See SCALC Rule 19(D). Thereafter, the Court obtained the availability of the parties for a merits hearing and noticed a consolidated merits hearing for Monday, May 15, 2023.

On Monday, May 15, 2023, the Court called the cases, counsel were present as reflected above, Respondent was present, and several other staff members for the Department were present. At the beginning of the hearing, the parties stipulated on the record that the whole record, including all testimony, exhibits, and arguments, that were produced during South Carolina Department of Natural Resources v. Richardson (In Re: Monthly Harvest Report), Docket No. 23-ALJ-13-0149-CC, and South Carolina Department of Natural Resources v. Richardson (In Re: Signed Copy of Permit), Docket No. 23-ALJ-13-0151-CC, would be included as part of the record in these matters involving Respondent. As a result, the Court confirms that the whole record from the Richardson matters is included in these matters. Additionally, the Court has provided the Richardson order as exhibit 1 to this order. Moreover, during the hearing, Respondent testified, and the parties additionally offered several exhibits each, which the Court admitted as evidence. This order follows.

FINDINGS OF FACT

Having observed the witness(es) and reviewed the exhibit(s) admitted at the hearing and taking into consideration the burden of persuasion and the credibility of the witness(es), I make the following findings of fact by a preponderance of the evidence:

1. Respondent holds a commercial saltwater license and has been a fisherman for almost twenty years with at least ten or eleven of those years being a commercial fisherman in South Carolina. Respondent has obtained twenty or thirty permits licenses, and/or "permissions," for commercial fishing over the course of his career. Prior to the present incidents, the Department has never disciplined Respondent.

2. Respondent has previously harvested horseshoe crabs for six prior seasons, and he has had his own horseshoe crab permit for five years.

3. In 2023, the Department issued Respondent the Permit.

4. The cover letter to the Permit stated the following: "Upon receipt, please sign this permit and provide a signed copy to [the Department] within two weeks."

5. On a page prior to the permit, but included as part of the packet of information included with the Permit, the Department outlined guidelines for the Department's actions when dealing with permit revocations: "Permit holders found to be in violation of one or more major or three minor permit conditions will have their permit revoked for the remainder of the fiscal year in which the permit was issued. Major permit conditions will be indicated on each permit issued by the [Department]." The guidelines further listed the following as major permit condition violations: (1) "Failure to submit timely, complete or accurate mandatory reports required by the permit"; (2) "Improper construction, placement, deployment or use of gear authorized by the permit or use of gear, techniques, facilities or methos not authorized by the permit"; (3) "Failure to comply with resource-specific restrictions, size or bag limits, seasonal possession requirements, and handling, processing, transport or release specification required by the permit or related laws not exempted through the permit"; (4) "Failure to cooperate with DNR officials attempting to observe, inspect, verify and monitor activities or conditions required by the permit or conservation laws"; and (5) "Improper retention, use, sale or disposition of fishery resources taken under a permit." Finally, the guidelines state the following: "Those conditions that are not indicated as a major will be considered minor violations."

6. On the first page of the Permit, there is an introductory paragraph, which includes the following: "The signature of the permittee is required for this permit to be valid. All Major permit violation conditions are indicated in the Conditions section of this permit. All other violations are considered Minor."

7. The "[e]ffective" date of the Permit is listed as March 15, 2023, and the Permit's expiration date is June 30, 2023.

8. The Permit lists ten conditions within the Conditions section. Of importance is condition 9:

Permittee will assure that mandatory monthly reports of daily harvest locations, landings, and transport times are accurately completed and received by the Office of Fisheries Management as instructed on forms provided by the Department no later than the 10^th of the following month. Records are subject to inspection by the Department or its agents upon request. S.C. Code Ann 50-51330(B) (MAJOR).

9. With the Permit, the Department included a Horseshoe Crab Hand Harvest &Transport Report for each month of the season, that is four reports. In the top right corner of each report, the Department noted the following:

As a condition of your horseshoe crab harvest and transport permit, you must remit a report detailing the adjacent information. Reports must be received by the Department no later than the 10^th of the month following the report month. For example, the March report must be received by 10 April. THESE MONTHLY REPORTS ARE DUE EVEN IF NO FISHING ACTIVITY OCCURRED. Failure to report will result in permit revocation.

10. The Conditions section does not include a condition for signing and returning a copy of the Permit to the Department.

11. Respondent received the Permit on either April 3, 2023, or April 4, 2023, after the Department mailed the Permit to him. Respondent explained there was a delay in receiving the Permit because he and his family moved to Seneca, South Carolina, and the Permit was subsequently forwarded to him in Seneca by the United States Postal Service.

12. Respondent signed the Permit on April 3, 2023.

13. On April 4, 2023, the Department mailed Respondent a letter, informing him that he needed to send a signed copy of the Permit to the Department. Specifically, the letter stated the following in pertinent part: "We have not yet received a signed copy of your permit. Please provide a signed copy by APRIL 14, 2023. IF WE DO NOT RECEIVE YOUR SIGNED COPY BY APRIL 14, 2023, OMF WILL PROCEED WITH THE REVOCATION OF PERMIT NO. HH23-0348."

14. On April 7, 2023, Respondent began harvesting horseshoe crabs.

15. On April 10, 2023, the Department mailed Respondent a letter with a copy of an order involving federal litigation and horseshoe crabs.^[2]

16. On April 11, 2023, the Department mailed Respondent a letter involving the reporting requirement of his permit:

Condition #9 (a major condition) of your Horseshoe Crab Hand Harvest and Transport Permit requires you to submit mandatory monthly reports of daily production/no-production. Our records indicate that your Horseshoe Crab Hand Harvest and Transport Permit report for the month of March (2023) was not received on or before the 10^th of this month as required. This is to inform you that non-receipt of these reports has resulted in a major violation being document against your permit.

Under authority of S.C. Code of Laws 50-5-345[,] we are notifying you that permit under HH23-348 will be revoked effective April 22, 2023[,] for the remainder of the fiscal year (ending June 30, 2023). No further notice will be sent.

17. Respondent did not turn in a harvest report for March 2023 because he did not have the Permit until April 2023.

18. Respondent indicated that in the past, the Department would not have moved immediately to revocation for not...