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Jasper, authority argue port

State Supreme Court hears parties' claims

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COLUMBIA -- Allowing a Jasper County-run cargo container terminal on the Savannah River would raise a dangerous statewide precedent, lawyers for the S.C. State Ports Authority argued Tuesday in the state Supreme Court, while county attorneys said the state lacks the right to block the project.

The State Ports Authority filed suit against the county in January after the county reached a $450 million development agreement with SSA Marine, one of the world's largest stevedoring and port-building companies.

Mitch Brown, the State Ports Authority's attorney from the firm Nelson Mullins Riley & Scarborough, opened Tuesday's case by invoking the one Savannah River shipping interest not in the courtroom Tuesday.

"Georgia essentially would like to keep the property as a trash dump," he told the five Supreme Court justices.

The Georgia Department of Transportation owns the 1,863-acre site in Jasper County, using it to dump sediment from Savannah River dredging. The government entity that wins the Supreme Court decision most certainly faces a messy condemnation battle with Georgia.

"Georgia has publicly stated they'd fight to the death," Brown told the court.

He argued that the Ports Authority has a better chance at negotiating with Georgia or winning a condemnation battle and that Jasper County was impeding the state's progress.

"We would like to look and see if there's a possibility for an interstate port of joint ports authority," he told the court, after mentioning Republican party unity between the two governors and legislatures.

Jasper County attorneys said the Ports Authority argument for condemnation was moot because the agency hasn't filed notice with Georgia.

"You can't condemn it because we might condemn it," Camden Lewis, Jasper County's attorney, characterized the state's argument. "It's like the highway department saying they might put a road here, so you can't build."

Jasper County filed a notice of condemnation against Georgia on Jan. 19, just hours before the State Ports Authority filed the high-court suit against the county.

Lewis called the authority's invocation of Georgia "scare tactics."

"Our attorneys did a fine job of keeping the argument on the point," Jasper County administrator Andrew Fulghum said on the steps of the Supreme Court after the hearing. "It's sad we have to be here, but it seems the (State Ports Authority) will go to any length to stop this project."

The county's attorneys argued that under the Home Rule Act, which grants counties and municipalities a list of powers, they can develop a terminal because the State Ports Authority had neglected the project for so long.

Ports Authority attorneys said that violates the statewide uniformity of port operations. The authority runs terminals in Charleston, Georgetown and Port Royal.

"You keep talking about Jasper County as impeding, but they've been trying to get this thing for 10 years," Justice James E. Moore said of the Ports Authority's argument. "Now you have a dog in the fight?"

Ports Authority attorneys conceded that the circumstances surrounding Charleston capacity and the failure to build a Daniel Island terminal, which the General Assembly took off the table in 2002, had altered the Ports Authority's interest in the fight.

"The framers of the South Carolina constitution said public highways that traverse multiple county borders" are exempt from Home Rule as a feature of statewide unity, Brown said. "That's what the Savannah River is, a common highway."

But nowhere is State Ports Authority jurisdiction over maritime trade deemed "exclusive" in the S.C. Code of Laws, Lewis told the court. He said businesses locate along highways, and while the state may control the roads, the Transportation Department has no right to those businesses.

Several times during both sides' arguments, Chief Justice Jean Toal disparaged the county's new development agreement with SSA Marine: "It seems just as much a giveaway to a private company as they did before, but that's for another day," she said.

Jasper County lost its first attempt to condemn the port site in September 2003 when the Supreme Court ruled the then 99-year lease agreement with SSA Marine resulted in taking public land for a private business.

On Tuesday, Toal questioned how private a county-run port would be. Lewis said everyone will have access to it.

Almost 40 Jasper County officials and residents boarded a bus chartered by the county at 6 a.m. in Ridgeland to attend the hearing. After the hearing, Keith Babcock, who helped represent Jasper County, briefed the group on what transpired.

George Hood, chairman of the Jasper County Council, said there is room to negotiate the terms with SSA Marine.

"We are willing to negotiate when it comes to a workable plan," he said of Toal's remarks. "But I feel good. I'm always the optimist. I thought our attorneys did a good job with the issue."

Justice Costa M. Pleicones recused himself and was replaced by Justice John Few of the 13th Circuit Court. Unlike the federal Supreme Court, South Carolina tradition calls for an "acting associate justice" whenever a justice cannot attend. Pleicones is a former partner in Lewis, Babcock & Hawkins, the Columbia-based firm that represented Jasper County.

Contact Michael R. Shea at 298-1057 or .