|Last week, the Georgia State Court of Appeals approved the Altamaha Riverkeeper’s application for discretionary appeal of the the Wayne County Superior Court’s unfavorable decision to not move forward with litigation aimed to force the Rayonier pulp mill in Jesup to ultimately clean up discharge being pumped into the Altamaha River. This is just one small step in what has been over a decade long attempt to protect the Altamaha from the discharge of 60 million gallons of foul smelling, discolored pollution pumped into it daily, and to protect our communities right to fishing without interference from Rayonier.
“We are pleased with the decision to allow us to appeal, however, we know this is far from over,” said Jen Hilburn, Altamaha Riverkeeper. “We hope that the residents of Wayne County, as well as all concerned Georgians know that we intend to continue to pursue this action with our partners until this tainted section of the mighty Altamaha is once again restored to its pristine condition.”
We’ve attached the full application and order that grants the appeal for your review, but below is a short excerpt explaining the reasoning we’ve applied to appeal Wayne County Superior Court Judge Kelley’s decision:
First, the Superior Court erred by reading into the regulation an unreasonableness limitation that is not included in the text of the regulation itself. Georgia law is clear: “The court cannot read into an unambiguous statute something that simply is not there however strongly the court might feel that it should have been included.”
Second, the Superior Court erred by making a factual finding that the interference was not unreasonable instead of remanding the case to the ALJ to make a factual finding on this question. Under Georgia law, an appellate court “is not a trial court and not a fact finder.” Thus, if additional factual findings are necessary to apply the correct legal standard, remand is required. This is because an appellate court “cannot say what the trial judge would have concluded if [the judge] had been relying on the correct theory.” Because the Superior Court acted as an appellate court in this case, it erred by making its own factual findings on the dispositive issue of unreasonableness of the interference rather than remanding the case.
Third, this case presents an issue of first impression. The establishment of precedent is therefore desirable to (1) clarify a regulatory provision that has state-wide significance; (2) ensure EPD’s proper and consistent application of the Georgia water quality standards; and (3) ensure the health and safety of Georgia’s public waterways for all Georgia citizens.
To access the Order Granting Application for Discretionary Appeal, please follow this link.
To access the Application itself, please follow this link.