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No.

___________
___________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
________________
KAREN AHLERS, NEIL ARMINGEON,
ENVIRONMENTAL YOUTH COUNCIL
ST. AUGUSTINE, FLORIDA CLEAN WATER
NETWORK, INC., and PUTNAM COUNTY
ENVIRONMENTAL COUNCIL, INC.,
v.

Petitioners,

RICK SCOTT, PAM BONDI,


JEFF ATWATER, and ADAM PUTNAM,
as Trustees of the Internal Improvement
Trust Fund, and GEORGIA-PACIFIC
CONSUMER OPERATIONS LLC,
______________

Respondents.

On Petition for Writ of Certiorari to the


District Court of Appeal, First District,
State of Florida
PETITION FOR WRIT OF CERTIORARI

STEVEN A. MEDINA
13 Longwood Drive
Shalimar, Florida 32579
stevenamedina@yahoo.com
850-621-7811
Counsel of Record

LEGAL PRINTERS

LLC,

Washington DC ! 202-747-2400 ! legalprinters.com

i
QUESTION PRESENTED
Whether the Fourteenth Amendment allows
confusing and misleading newspaper notice to cut off
the right to an administrative hearing when a state
issues a private easement to a portion of a navigable
water body.

ii
PARTIES TO THE PROCEEDINGS
The petitioners, petitioners and appellants
below, are Karen Ahlers, Neil Armingeon,
Environmental Youth Council St. Augustine, Florida
Clean Water Network, Inc., and Putnam County
Environmental Council, Inc.
The respondents, appellees below, are Rick
Scott, Pam Bondi, Jeff Atwater, and Adam Putnam,
as Trustees of the Internal Improvement Trust Fund,
who were the original respondents, and GeorgiaPacific Consumer Operations LLC., which was an
intervenor.
RULE 29.6 STATEMENT
Environmental Youth Council St. Augustine is
an unincorporated association. Florida Clean Water
Network, Inc. and Putnam County Environmental
Council, Inc. are non-profit corporations, with no
shares held by a publicly traded company.
Georgia-Pacific Consumer Operations LLC is a
limited liability corporation, with no shares held by a
publicly traded company.

iii
TABLE OF CONTENTS

Page

QUESTION PRESENTED ...................................... i


PARTIES TO THE PROCEEDINGS ..................... ii
RULE 29.6 STATEMENT ....................................... ii
TABLE OF AUTHORITIES ................................... v
OPINIONS BELOW ................................................. 1
STATEMENT OF JURISDICTION ........................ 1
CONSTITUTIONAL PROVISION INVOLVED ..... 2
STATEMENT OF THE CASE ................................. 2
A.

The Publics Property Interest


and
Recognized
Procedural
Rights .................................................. 3

B.

The Legal Advertisement ................... 4

HOW THE ISSUES WERE DECIDED


BELOW..................................................................... 6
REASONS THE WRIT SHOULD BE
GRANTED ................................................................ 8
CONCLUSION ......................................................... 8
APPENDIX ............................................................ A-1
Opinion of District Court of Appeal ........... A-1

iv
Final Summary Judgment of Circuit
Court ........................................................... A-3
Alternative Writ of Mandamus of
Circuit Court............................................. A-20
Order of the Supreme Court of Florida ... A-22
Order of the District Court of Appeal ...... A-24
Text of Newspaper Notice ........................ A-25
Original
Petition
for
Writ
of
Mandamus ................................................ A-35
Portions of Initial Brief on Merits filed
with District Court of Appeal .................. A-91

v
TABLE OF AUTHORITIES
FEDERAL CASES

Jones v. Flowers, 547 U.S. 220 (2006) ...... 6, 8


Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306 (1950) .................. 6, 8
Hobbie v. Unemployment Appeals
Commission of Florida, 480 U.S. 186
(1987) ............................................................. 7
STATE CASES

Ahlers v. Scott, 169 So.3d 1164, 2015


WL 3402516 (Fla. 1st DCA 2015) ................. 1

Jenkins v. State, 385 So.2d 1356 (Fla.


1980)............................................................... 7

Florida Star v. B.J.F., 530 So.2d 286


(Fla. 1988) ...................................................... 7
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. XIV ........................ 2, 3, 6
Fla. Const. Art. X, 11 .................................. 3
FEDERAL STATUTES
28 U.S.C. 1257 ............................................ 1

vi
STATE STATUTES
Fla. Stat. Ch. 120 .......................................... 4
STATE REGULATIONS
Fla. Admin. Code Ch. 18-21 .......................... 3
Fla. Admin. Code R. 18-21.003(51) ........... 3, 4

1
OPINIONS BELOW
The opinion of the District Court of Appeal,
First District, State of Florida, 169 So.3d 1164, 2015
WL 3402516 (Fla. 1st DCA 2015) (Table), is included
at A-1. The final summary judgment denying petition
for writ of mandamus of the Circuit Court of the
Second Judicial Circuit in Leon County, Florida,
affirmed per curiam without explanation by the
District Court of Appeal, is included at A-3. The
alternative writ of mandamus of the Circuit Court is
included at A-20. The order of the Supreme Court of
Florida transferring the petition for writ of
mandamus filed by Petitioners to the Circuit Court is
included at A-22.1
JURISDICTION
The District Court of Appeal entered its
opinion on May 27, 2015. The District Court of Appeal
denied Petitioners timely motions for rehearing,
clarification and certification and for rehearing en
banc on July 9, 2015. The order denying these motions
is included at A-24. This Courts jurisdiction is
invoked pursuant to 28 U.S.C. 1257, final judgment
having been rendered by the highest court of the State

The text of the newspaper notice referenced in the question


presented is included at A-25; the original petition for writ of
mandamus filed with the Supreme Court of Florida is included
at A-35; and pertinent portions of the initial brief on merits filed
by petitioners as appellants with the District Court of Appeal are
included at A-91.
1

2
of Florida in which a decision could be had where a
right is claimed under the United States Constitution.
CONSTITUTIONAL PROVISION INVOLVED
This case involves the Fourteenth Amendment
to the United States Constitution, which provides, in
relevant part, No state shall deprive any person of
property without due process of law .
STATEMENT OF THE CASE
This case involves an effort at the highest
levels of Florida government to assure that
Respondent Georgia-Pacific Consumer Operations
LLC has a private easement for a pipeline to dump
waste from its Palatka paper mill into the St. Johns
River. On May 2, 2012, an article in a local newspaper
announced that construction of the pipeline had
commenced and would be completed in October. Since
the summer of 2012, Respondents Rick Scott, Pam
Bondi, Jeff Atwater, and Adam Putnam, the Trustees
of Floridas Internal Improvement Trust Fund, have
resisted giving public notice of administrative rights
to contest the private easement issuance. They do so
because, they contend, on March 3, 2005, public notice
was already given of the right to administratively
contest issuance of the easement in the same
newspaper.
This petition for writ of certiorari seeks
Supreme Court review focused on whether the legal
advertisement, the text of which can be read
beginning at A-25 of the appendix and is discussed in

3
section B infra, meets due process muster under the
Fourteenth Amendment to the United States
Constitution.2 Petitioners seek to obtain a formal
administrative determination of whether issuance of
the private pipeline easement to Georgia-Pacific was
contrary to the public interest.
A.

The Publics Property Interest and


Recognized Procedural Rights

Under Article X, Section 11, of the Florida


Constitution,3 all the people have a beneficial
property interest in lands under navigable waters,
such as the St. Johns River, which have not been
alienated. The public trust doctrine as enunciated in
the Florida Constitution among other things states,
Private use of portions of such lands may be
authorized by law, but only when not contrary to the
public interest.
Florida also has administrative regulations in
Florida Administrative Code Chapter 18-21
governing
Sovereignty
Submerged
Lands
Implicit in this question is the understanding that Petitioners
due process rights are implicated. See Section A., infra.
3 The section states:
Sovereignty lands.The title to lands under
navigable waters, within the boundaries of the
state, which have not been alienated, including
beaches below mean high water lines, is held by
the state, by virtue of its sovereignty, in trust for
all the people. Sale of such lands may be
authorized by law, but only when in the public
interest. Private use of portions of such lands
may be authorized by law, but only when not
contrary to the public interest.
2

4
Management. One of these regulations defines the
term public interest in a way revealing concern for
the public at large.4
Determinations of the public interest also are
subject to formal administrative procedures. Florida
has an Administrative Procedures Act, Chapter 120,
Florida Statutes, which gives substantially interested
persons, such as Petitioners, rights to formal
administrative hearings before final action can be
taken by the Trustees.
B.

The Legal Advertisement

The legal advertisement based on which


Respondents
contend
Petitioners
lost
their
administrative rights to contest the pipeline
easement issuance was confusing and misleading,
and grossly so. See A-25.
The title and lengthy initial paragraph of the
legal advertisement dealt with another legal decision
altogether, by a state agency, i.e., the decision of
Florida Administrative Code Rule 18-21.003(51) (italics
added) states:
Public
interest
means
demonstrable
environmental, social, and economic benefits
which would accrue to the public at large as a
result of a proposed action, and which would
clearly exceed all demonstrable environmental,
social, and economic costs of the proposed action.
In determining the public interest in a request
for use, sale, lease, or transfer of interest in
sovereignty lands or severance of materials from
sovereignty lands, the board shall consider the
ultimate project and purpose to be served by said
use, sale, lease, or transfer of lands or materials.

5
whether to issue a wetland/surface water regulatory
permit, which was being made by the Florida
Department of Environmental Protection, not the
Trustees.
In addition, when the subject of private
easements was mentioned, not only the St. Johns
River easement, which substantially interests
Petitioners, was referenced but also another
easement for another waterbody, Rice Creek. Both
references also made it appear that the granting of
each of these easements had already occurredhave
been granted and was granted.
After that, the legal advertisement reiterated,
The Department will issue the permit with
conditions unless a timely petition for an
administrative hearing is filed . (Italics added.)
Then the petition requirements for requesting an
administrative hearing on the regulatory permit were
discussed in detail.
Much further down, in the penultimate
paragraph, vague language stated, This intent to
issue constitutes an order of the Department on its
own behalf on the application for the regulatory
permit and on behalf of the Board of Trustees of the
Internal Improvement Trust Fund on the application
to use sovereignty submerged lands. Then the same
paragraph discussed the applicants rights to judicial
review. Assuming one would know the application to
use sovereignty submerged lands related to an
easement at all, and that an application ever had
been received for an easement, one would not know
whether the easement application that would be the

6
subject of the order was for the 1988 Rice Creek grant
or the 2003 St. Johns River grant.
HOW THE ISSUES WERE DECIDED BELOW
Due process under the United States
Constitution was raised as an issue from the
beginning by Petitioners in their petition for writ of
mandamus and continuing through the proceedings
to the appeal to the District Court of Appeal. See A35,
A-91. Petitioners specifically raised federal precedent
on the issue, including cases of the Supreme Court,
Jones v. Flowers, 547 U.S. 220, 229, 234 (2006) (In
[Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306 (1950)] we stated that when notice is a
persons due [t]he means employed must be such
as one desirous of actually informing the absentee
might reasonably adopt to accomplish it, 339 U.S., at
315, and that assessing the adequacy of a particular
form of notice requires balancing the interest of the
State against the individual interest sought to be
protected by the Fourteenth Amendment, id., at
314.) (What steps are reasonable in response to new
information depends upon what the new information
reveals.). See A-76, A-128.
The Leon County Circuit Court simply ignored
due process and the associated Supreme Court
authority. It merely stated, in conclusory fashion,
This newspaper notice provided a clear point-ofentry to challenge the Departments proposed agency
action with respect to the requested sovereign
authorization for the construction of the pipeline. A11.

7
This not only deprives Petitioners of due
process but also is an invitation to use newspaper
notices as linguistic weapons against the public
rather than as potentially reasonable means to inform
the public of administrative rights. The implication is
that if somewhere in a confusing and misleading
newspaper notice a state agency buries a point of
entry which in isolation might be deemed clear to
the initiated, this will satisfy due process.
The District Court of Appeal also obviously did
not address the due process issue in its three word
opinion. A-1. Moreover, because the District Court of
Appeal refused to clarify its PCA decision (A-24), no
jurisdiction was present in the Florida Supreme
Court to review the treatment of the due process
issue by the Leon County Circuit Court. See, e.g.,
Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980);
Florida Star v. B.J.F., 530 So.2d 286, 288 n. 3 (Fla.
1988); Hobbie v. Unemployment Appeals Commission
of Florida, 480 U.S. 186 (1987) (reversing 5th District
Court of Appeals per curiam affirmance).

8
REASONS THE WRIT SHOULD BE GRANTED
The District Court of Appeal has decided
an important federal question in a way
that conflicts with relevant decisions of
this Court and, in any event, should be
settled by this Court.
The confusing and misleading newspaper
notice the Respondents are embracing as the saving
grace for the private pipeline easement was the
virtual opposite to the standard expressed in Jones v.
Flowers, 547 U.S. 220 (2006) and Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306 (1950). No
one desirous of actually informing the absentee
might reasonably adopt this woeful notice. The
purpose of public notice is not to create a trap for
unwary substantially interested persons but to give
them a reasonable chance to find out about the
situation involved, how and when to obtain an
administrative hearing, and the associated risks of
inaction.
CONCLUSION
The Court should grant certiorari and schedule
this case for briefing and oral argument to ensure the
District Court of Appeals compliance with decisions
of this Court, including Jones v. Flowers and Mullane
v. Central Hanover Bank & Trust Co. and to settle
that confusing and misleading newspaper notice does
not meet due process under these circumstances.

9
Respectfully submitted,
STEVEN A. MEDINA
13 Longwood Drive
Shalimar, Florida 32579
stevenamedina@yahoo.com
850-621-7811
Counsel of Record

APPENDIX
District Court of Appeal,
First District, State of Florida
KAREN AHLERS, NEIL ARMINGEON,
ENVIRONMENTAL YOUTH COUNSEL ST.
AUGUSTINE, FLORIDA CLEAN WATER
NETWORK, INC., and PUTNAM COUNTY
ENVIRONMENTAL COUNCIL, INC.,
Appellants,
v.
RICK SCOTT, PAM BONDI, JEFF ATWATER, and
ADAM PUTNAM, as TRUSTEES OF THE
INTERNAL IMPROVEMENT TRUST FUND, and
GEORGIA-PACIFIC CONSUMER
OPERATIONS LLC.,
Appellees.
Opinion filed May 27, 2015.
An appeal from the Circuit Court for Leon County.
Charles A. Francis, Judge.
Steven A. Medina, Shalimar, for Appellants.
Terry Cole, Gregory M. Munson and Kellie Scott,
Gunster, Yoakle & Stewart, Tallahassee, attorneys
for Georgia-Pacific Consumer Operations LLC, and
Matthew Z. Leopold, General Counsel, Jack Chisolm
and R. Elliot D. Potter, Senior Assistant General
A-1

Counsel, Tallahassee, attorneys for Trustees of the


Internal Improvement Trust Fund, for Appellees.
PER CURIAM.
AFFIRMED.
CLARK, RAY, and MAKAR, JJ., CONCUR.

A-2

In the Circuit Court of the Second Judicial Circuit,


in and for Leon County, Florida
KAREN AHLERS, a citizen and taxpayer
of Florida residing in Putnam County,
NEIL ARMINGEON, a citizen and taxpayer
of Florida residing in Duval County,
ENVIRONMENTAL YOUTH COUNCIL
ST. AUGUSTINE, an unincorporated
Florida association, FLORIDA CLEAN WATER
NETWORK, INC., a non-profit Florida
corporation, and PUTNAM COUNTY
ENVIRONMENTAL COUNCIL, INC.,
a non-profit Florida corporation,
Petitioners,
vs.

Case No. 2012-CA-2715

RICK SCOTT, Governor,


PAM BONDI, Attorney General,
JEFF ATWATER, Chief Financial Officer,
and ADAM PUTNAM,
Commissioner of Agriculture, as Trustees
of the Internal Improvement Trust Fund,
Respondents.

A-3

FINAL JUDGMENT DENYING PETITION FOR


WRIT OF MANDAMUS, DENYING
PETITIONERS MOTION FOR SUMMARY
JUDGMENT, GRANTING RESPONDENTS AND
INTERVENORS MOTIONS FOR SUMMARY
JUDGMENT, AND DENYING IN PART AND
GRANTING IN PART PETITIONERS REQUEST
FOR JUDICIAL NOTICE
THIS CASE came before the Court for hearing
on Petitioners Motion for Summary Judgment and
Request for Judicial Notice, and the Respondents
and Intervenors Motions for Summary Judgment.
After careful review of the Petition, the Amicus
Curiae Brief, the Request for Judicial Notice, the
responses, the Motions for Summary Judgment, and
following oral argument by the parties, the Court
enters the following order denying the Petition for
Writ of Mandamus, denying Petitioners Motion for
Summary Judgment, granting in part and denying in
part Petitioners Request for Judicial Notice, and
granting the Respondents and Intervenors Motions
for Summary Judgment.
PROCEDURAL HISTORY
1.
On July 2, 2012, Petitioners filed their
Petition against the Trustees of the Internal
Improvement Trust Fund (the Trustees) in the
Supreme Court of the State of Florida. Shortly
thereafter, on August 24, 2012, Petitioners Writ of
Mandamus was transferred to the Circuit Court of
the Second Judicial Circuit of Leon County, Florida.
This Court granted Georgia-Pacific Consumer
A-4

Operations, LLCs (Georgia-Pacific) Motion to


Intervene on May 23, 2013.
2.
On July 12, 2012, The Public Trust
Environmental Legal Institute of Florida, Inc. filed
an Amicus Curiae Brief in support of the Petitioners.
3.
On June 25, 2013, this Court issued an
Alternative Writ of Mandamus granting the
Respondents, along with Intervenor Georgia-Pacific,
sixty days within which to show cause why the writ
Petitioners requested should not be issued.
Respondents and Georgia-Pacific filed Responses in
Opposition to the Alternative Writ of Mandamus and
Motions to Dismiss on August 23, 2013, and August
26, 2013, respectively.
4.
On October 21, 2013, Petitioners filed a
Motion for Summary Judgment and Reply to
Respondents and Intervenors Responses to Petition
for Writ of Mandamus. Respondents and GeorgiaPacific each timely filed their Oppositions to
Petitioners Motion for Summary Judgment and
Counter-Motions for Summary Judgment.
5.
On February 6, 2014, Petitioners
submitted a response to Respondents and
Intervenors Motions for Summary Judgment.
6.
This Court heard oral argument on the
Petition and all outstanding motions on February 13,
2014. All parties submitted proposed orders which
were considered by the Court.

A-5

PARTIES
7.
Petitioners, Karen Ahlers and Neil
Armingeon, are taxpayers and citizens of Florida.
Petitioner, Environmental Youth Council St.
Augustine, is an unincorporated Florida Association.
Petitioners, Florida Clean Water Network, Inc. and
Putnam County Environmental Council, Inc., are
non-profit Florida corporations.
8.
Respondents are the Trustees of the
Internal Improvement Trust Fund, a body created by
Article IV, Section 4(f) of the Florida Constitution
and whose duties are in part set out in Chapter 253,
Florida Statutes.
9.
Intervenor Georgia-Pacific Consumer
Operations, LLC holds the permits and owns and/or
operates the mill and the pipeline discharge which is
the subject of the petition.
THE CASE AT ISSUE
10.
Petitioners seek a Writ of Mandamus
compelling the Trustees to take certain actions,
described more fully below, pertaining to permitted
wastewater discharges resulting from the operation
of Georgia-Pacifics mill in Palatka, Florida (the
mill). Petitioners allege the Trustees have a clear
legal duty to require Georgia-Pacific to apply for and
optain an authorization from the Trustees for the use
of the mixing zones in the St. Johns River.
SUMMARY JUDGMENT STANDARD
11.
Summary judgment is appropriate if
there is no genuine issue of material fact and if the
moving party is entitled to judgment as a matter of
A-6

law. Fla. R. Civ. P. 1.510(c); Volusia County v.


Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130
(Fla. 2000). Petitioners, Trustees, and Intervenors
[sic] raise no disputed issues of material fact, but
they disagree as to whether Petitioners or
Respondents/Intervenor are entitled to judgment as
a matter of law on the Petition.
PETITIONERS REQUEST FOR JUDICIAL
NOTICE
12.
Petitioners filed a Request for Judicial
Notice on February 11, 2014, asking that this Court
take judicial notice of the docket and filings in
Florida Division of Administrative Hearings Case
No. 97-002902 (the DOAH Case).
13.
Pursuant
to
90.202(5),
Florida
Statutes, judicial notice of the official actions of the
legislative, executive and judicial branches of
government is permissive, not mandatory.
14.
Final Orders are considered official
records of the legislative, executive, and judicial
departments of the State but non-final pleadings on
an administrative docket are not considered official
records for purposes of judicial notice. Dykes v.
Quincy Telephone Company, 539 So.2d 503 (Fla. 1st
DCA 1989).
15.
Petitioners Motion for Judicial Notice
is granted as to the Final Order in the DOAH Case
and denied as to all other docket items in the DOAH
Case. The Court has reviewed all items included in
Petitioners Request for Judicial Notice and notes
that, even if Petitioners Request for Judicial Notice
A-7

had been granted in full, it would not have changed


this Courts ruling on the Petition for Writ of
Mandamus or the Motions for Summary Judgment.
FINDINGS OF FACT
16.
The
Intervenor,
Georgia-Pacific
Consumer Operations, LLC, owns and operates a
pulp and paper mill in Putnam County. The
operation of the mill results in the discharge of
treated effluent to the waters of the St. Johns River.
The discharge of this treated effluent is authorized
pursuant to a National Pollutant Discharge
Elimination System (NPDES) permit issued by the
Department
of
Environmental
Protection
(Department).
17.
The NPDES permit authorizes the use
of mixing zones for various pollutants. Mixing zones
provide a limited opportunity for the discharges, such
as the one at issue here, to mix with the ambient
water column. The use of the mixing zones does not
cause or contribute to the degradation of the St.
Johns River. Indeed, the traditional public uses of the
St. Johns River fishing, swimming and recreating,
continue to be protected. Mixing zones are common
in the State of Florida and authorized pursuant to a
rule of the Department. See Fla. Admin. Code R.

62-244.

18.
Petitioners allege the Trustees have a
clear legal duty to require Georgia-Pacific to apply for
and obtain an authorization from the Trustees for the
use of the mixing zones in the St. Johns River.
Georgia-Pacific has already received a sovereign
authorization from the Trustees for the construction
A-8

of the discharge pipeline, something that is


acknowledged
by
Petitioners.
Nevertheless,
Petitioners contend they have a clear legal right to
require a second sovereign authorization for the use
of the mixing zones established in the NPDES
permit.
19.
Petitioners allege they are the
beneficiaries of a constitutional public trust with a
vested right to fish, swim and recreate in the
waters of the St. Johns River. The Petitioners allege
they are facing potential harm to their right to use
the waters of the St. Johns River for swimming,
fishing and recreation. However, the Petitioners do
not allege that Georgia-Pacifics use of the mixing
zones has resulted in the degradation of the river,
and moreover, no evidence to that effect was
introduced in support of Petitioners Motion for
Summary Judgment. At this juncture, the mill has
been discharging to the St. Johns River for almost a
year and a half without any evidence the discharge
has adversely affected the Petitioners useand
enjoyment of the St. Johns River.
20.
The Department is vested with the
statutory responsibility for water quality protection
on sovereign submerged lands. Mixing zones are one
component of the Departments surface water quality
standards. See Fla. Admin. Code R. 62-302.200(31).
Mixing zones protect traditional public uses of public
waters such as fishing, swimming and recreating.
The waters of the river within the mixing zone
remain open, navigable and available for public use
and enjoyment.
A-9

Georgia-Pacifics 2002 NPDES Permit and


Administrative Order

21.
In August 2002, the Department issued
a NPDES permit to Georgia-Pacific for the continued
operation of the mill. Under approval and lawful
delegation from the United States Environmental
Protection Agency (EPA), the Department
administers the federal NPDES permitting program
in Florida.
22.
At the time the Department issued the
NPDES permit, the mill discharged treated effluent
to Rice Creek, a tributary to the St. Johns River. Due
to the nature of the pulping process, the mills
discharge did not fully meet all of the Departments
water quality standards in Rice Creek. Subject to
certain limitations, Georgia-Pacifics NPDES permit
authorized the construction of a pipeline to relocate
the effluent discharge to the middle of the St. Johns
River. The NPDES permit provided for the use of
mixing zones in the St. Johns River to ensure
compliance with the Departments water quality
standards.
23.
The NPDES permit was accompanied
by an Administrative Order which required GeorgiaPacific to implement manufacturing process
improvements. Following the optimization of these
improvements, Georgia-Pacific was to undertake
water quality monitoring to determine whether the
effluent discharge could meet water quality
standards in Rice Creek.
24.
The location of the wastewater
discharge was to remain in Rice Creek if GeorgiaPacific was able to meet applicable water quality
A-10

standards. In the event Georgia-Pacific was unable


to meet the water quality standards, Georgia-Pacific
was required to relocate the effluent discharge to the
St. Johns River. The Administrative Order required
that the effluent discharge pipeline be placed into
operation by no later than October 15, 2012.

Georgia-Pacifics Sovereign Authorization for


Construction of the Discharge Pipeline

25.
In June 2004, Georgia-Pacific applied to
the Department for an environmental resource
permit for the construction of the effluent discharge
pipeline. Georgia-Pacifics permit application
included a request for a sovereign authorization from
the Trustees under Chapter 253, Florida Statutes.
26.
In February 2005, the Department
issued an Intent to Issue with respect to GeorgiaPacifics application for an environmental resource
permit. In March 2005, Georgia-Pacific published a
Notice to Issue Permit in the Palatka Daily News.
This newspaper notice provided a clear point-of-entry
to challenge the Departments proposed agency
action with respect to the requested sovereign
authorization for the construction of the pipeline.
27.
Petitioners did not file a petition for an
administrative hearing with respect to the
Departments proposed agency action. In March
2005, the Department issued Georgia-Pacific an
environmental resource permit which included the
requested sovereign authorization.
28.
Ultimately, Georgia-Pacific was unable
to meet water quality standards in Rice Creek. In
November 2010, Georgia-Pacific began construction
A-11

of the pipeline to the St. Johns River. In October


2012, Georgia-Pacific placed the pipeline into
operation and redirected its effluent discharge to the
St. Johns River.
Georgia-Pacifics Application for Renewal of the
NPDES Permit
29.
In November 2012, the Department
issued an Intent to Issue with respect to GeorgiaPacifics pending application for the renewal of its
2002 NPDES permit. The proposed NPDES permit
authorized mixing zones in the St. Johns River.
30.
In November 2012, Georgia-Pacific
published a Notice of Intent to Issue a Permit in the
legal ad section of the Palatka Daily News, a
newspaper of general circulation in Putnam County.
This notice provided Petitioners a clear point of entry
to challenge the Departments proposed agency
action with respect to the renewal of GeorgiaPacifics NPDES permit.
31.
Despite being afforded a clear point-ofentry, the Petitioners did not file a petition for a
formal administrative hearing to challenge to the
Departments proposed agency action with respect to
the renewal of the NPDES permit. In December
2012, the Department issued Georgia-Pacific an
NPDES permit which once again included mixing
zones in the St. Johns River.

A-12

CONCLUSIONS OF LAW
THE PETITIONERS HAVE FAILED TO
ESTABLISH A CLEAR LEGAL RIGHT TO THE
PERFORMANCE OF A CLEAR LEGAL DUTY
32.
The Petition must be denied because, as
a matter of law, the Petitioners cannot establish a
clear legal right to the performance of a clear legal
duty. Mandamus is an extraordinary remedy used to
enforce a clear legal right to the performance of a
clear legal duty. See e.g., Pleus v. Christ, 14 So.3d
941 (Fla. 2009). The legal duty must be ministerial
and not discretionary. A ministerial duty or act is one
where there is no room for the exercise of discretion,
and the performance being required is directed by
law. Polley v. Gardner, 98 So.3d 648 (Fla. 1st DCA
2012), citing Town of Manalapan v. Rechler, 674
So.2d 789, 790 (Fla. 4th DCA 1996).
33.
Mandamus may be used only to enforce
a clear and certain right; it may not be used to
establish such a right, but only to enforce a right
already clearly and certainly established in the law.
See Florida League of Cities v. Smith, 607 So.2d 397,
400-401 (Fla. 1992). Mandamus may be granted
only if there is a clear legal obligation to perform a
duty in a prescribed manner. See Holland v.
Wainwright, 499 So.2d 21, 22 (Fla. 1st DCA 1986).
The Petitioners failed to establish a clear legal duty
on the part of the Trustees to require Georgia-Pacific
to obtain a separate, second sovereign authorization
for the use of mixing zones associated with its
effluent discharge to the St. Johns River.
34.
Title to all sovereign lands is vested in
the Governor, the Attorney General, the Chief
A-13

Financial Officer, and the Commissioner of


Agriculture, sitting as the Trustees. 253.02(1) and
253.03(1), Florida Statutes. The Petitioners argue
that section 253.77(1), Florida Statutes, creates a
duty on the part of the Trustees to require a second
separate sovereign authorization for the use of a [sic]
mixing zones by Georgia-Pacific.
35.
Section 253.77(1), Florida Statutes,
does not create a duty on the part of the Trustees to
require a sovereign authorization for the use of a
mixing zone. In 2005, Georgia-Pacific obtained a
sovereign authorization for the construction of the
pipeline. The statute does not by its express or
implied terms require a separate sovereign
authorization for the use of a mixing zone. A clear
legal duty does not exist and the Petitioners cannot
use the instant proceeding to create such a legal
duty. Turner v. Singletary, 623 So.2d 537 (Fla. 1st
DCA 1993).
36.
Likewise, Article X, Section 11 of the
Florida Constitution, does not establish a clear, nondiscretionary ministerial duty, on the part of the
Trustees. This constitutional provision, relied upon
by Petitioners in support of their arguments,
generally provides that title to lands under navigable
waters is held by the State, by virtue of its
sovereignty, in trust for all the people. This
constitutional provision does not create a duty on the
part of the Trustees to require a separate sovereign
authorization for the use of mixing zones by GeorgiaPacific.
37.
With respect to wastewater discharges
into Florida waters, the Department is solely
A-14

responsible for ensuring that the discharge meets


applicable water quality standards. The Department
is the State agency vested with the responsibility for
the environmental permitting of activities and water
quality protection on sovereign lands. Pursuant to
Secdtion 403.161(10), Florida Statutes, the
Department is vested with the responsibility for
developing a comprehensive program for the
prevention and control of the pollution of the States
waters. The Legislature has vested the Department
with the statutory responsibility for developing and
adopting water quality standards. 403.061(10) and
(11), Florida Statutes. The Trustees have adopted a
rule which recognizes the Department is responsible
for water quality protection on sovereignty lands. See

Fla. Admin. Code R. 18-21.002(1).

38.
As part of these water quality
standards, the Department is authorized to
establish reasonable zones of mixing for discharges
into waters. 4033.061(11), Florida Statutes. A
moderating provision, such as mixing zone, is but one
component of the Departments federally approved
water quality standards program. See Fla. Admin.
Code R. 62-302.200(31). A mixing zone provides an
opportunity for the discharge to mix with the
ambient water column. See Fla. Admin. Code R. 62-

4.244(1).

39.
In general, a Department approved
NPDES permit is required to authorize the discharge
of a pollutant from a point source into waters of the
State. 403.088, Florida Statutes. The establishment
of a mixing zone involves an exercise of regulatory
authority under the Departments federally approved
A-15

NPDES permitting program. The mixing zones at


issue are included as part of the NPDES permit the
Department issued to Georgia-Pacific.
40.
Water quality standards apply within
the mixing zones and the traditional public uses of
the receiving waters continue to be protected. The
mixing zones at issue do not physically occupy the
waters of the river. The water column within the
mixing zone remains open and available for public
uses such as fishing swimming and recreating.
There is no evidence that Georgia-Pacifics mixign
zones have adversely affected the Petitioners use
and enjoyment of the waters of the St. Johns River.
41. Having found that Petitioners failed to
demonstrate a clear legal duty on behalf of the
Trustees, the Petition must fail. The Petition is
flawed for other reasons, however.
PETITIONERS HAVE OTHER AVAILABLE
LEGAL REMEDIES
42.
One seeking a writ of mandamus must
show that he has a clear legal right to the
performance of a clear legal duty by a public officer,
and that he has no other available legal remedies.
See Hatten v. State, 561 So.2d 562, 563 (Fla. 1990);
Holcomb v. Department of Corrections, 609 So.2d
751, 753 (Fla. 1st DCA 1992). With respect to
concerns about water quality degradation within a
mixing zone, it is clear that the Petitioners have
other available legal remedies.
43.
Section
403.412.(2)(a)1,
Florida
Statutes, authorizes an action for injunctive relief
against a governmental agency to compel the
A-16

enforcement of laws enacted for the protection of the


States natural resources. To the extent the
Petitioners claim the mixing zones impair their
recreational use and enjoyment of the waters of the
St. Johns River, the statute provides a clear legal
remedy pursuant to which Petitioners could seek to
enjoin any such violation.

A-17

PETITIONERS FAILED TO EXHAUST


AVAILABLE ADMINISTRATIVE REMEDIES
45.
Petitioners failed to timely exercise
their rights to administrative review under Section
120.569 and 120.57, Florida Statutes, and thereby
failed to exhaust available administrative remedies.
Petitioners were provided a clear point-of-entry to
challenge the contested mixing zones in the context
of the Departments renewal of Georgia-Pacifics
NPDES permit.
46.
An administrative proceeding under
Chapter 120, Florida Statutes, would have afforded
the Petitioners the opportunity to fully litigate their
alleged concerns about potential water quality
degradation. In the context of the Departments
renewal of the NPDES permit, Petitioners could have
raised the issue of whether Georgia-Pacific had
provided reasonable assurance of compliance with
water quality standards. Despite having been
provided a clear point-of-entry, the Petitioners failed
to exercise their rights to administrative review
under Section 120.569 and 120.57, Florida Statutes.
47.
By failing to file a petition for
administrative hearing, the Petitioners waived their
right to challenge the Departments proposed agency
action. Appel v. Florida Dept. of State Div. of
Licensing, 734 So.2d 1180 (Fla. 2d DCA 1999). It
follows that the Petition is barred because the
Petitioners
failed
to
exhaust
available
administrative remedies. Henderson v. Crosby, 891
So.2d 1180 (Fla. 2d DCA 2005).

A-18

CONCLUSION
In summary, it is hereby ORDERED AND
ADJUDGED:
(a)
Respondent Trustees and Intervenor
Georgia-Pacifics respective Motions for Summary
Judgment are GRANTED. Final Judgment is
entered in favor of the Trustees and Intervenor and
agaqinst the Petitioners.
(b)
Petitioners Motion for Summary
Judgment is hereby DENIED, and the Petition for
Writ of Mandamus is hereby DISMISSED with
prejudice.
(c)
Petitioners Motion for Judicial Notice
is granted as to the Final Order in the DOAH case
and denied as to all other docket items in the DOAH
Case.
(d)
This Court reserves jurisdiction to enter
such orders as are necessary and appropriate.
DONE and ORDERED in Tallahassee, Leon
County, Florida, June 20, 2014.
CHARLES A. FRANCIS
Chief Judge
Copies furnished to:
Steven A. Medina
Douglas Beason
Warren K. Anderson Jr.
Terry Cole
Kellie Scott

A-19

In the Circuit Court of the Second Judicial Circuit,


in and for Leon County, Florida
KAREN AHLERS, a citizen and taxpayer
of Florida residing in Putnam County,
NEIL ARMINGEON, a citizen and taxpayer
of Florida residing in Duval County,
ENVIRONMENTAL YOUTH COUNCIL
ST. AUGUSTINE, an unincorporated
Florida association, FLORIDA CLEAN WATER
NETWORK, INC., a non-profit Florida
corporation, and PUTNAM COUNTY
ENVIRONMENTAL COUNCIL, INC.,
a non-profit Florida corporation,
Petitioners,
vs.

Case No. 2012-CA-2715

RICK SCOTT, Governor,


PAM BONDI, Attorney General,
JEFF ATWATER, Chief Financial Officer,
and ADAM PUTNAM,
Commissioner of Agriculture, as Trustees
of the Internal Improvement Trust Fund,
Respondents.
ALTERNATIVE WRIT OF MANDAMUS
THIS CAUSE having come before the Court
upon Petitioner Petition for Writ of Mandamus, filed
on July 2, 2012, the Court has considered the petition
A-20

and otherwise being fully advised in the premises, is


therefore
ORDERED AND ADJUDGED:
1.
Petitioners mandamus petition is
facially sufficient.
2.
Respondents and Intervenor have sixty
(60) days to show cause why the writ should not be
issued.
3.
Thereafter, Petitioners will have sixty
(60) days to reply to Respondents and Intervenors
responses.
4.
If a party wishes to move for summary
judgment or partial summary judgment, they must
do so within forty-five (45) days after the close of the
pleadings.
DONE AND ORDERED in Leon County
Courthouse, Tallahassee, Florida, this 25 of June,
2013.
CHARLES A. FRANCIS
Circuit Judge
Copies Furnished to:
Douglas Beason
Steven A. Medina
Warren K. Anderson, Jr.
Terry Cole

A-21

Supreme Court of Florida


THURSDAY, AUGUST 23, 2012
CASE NO.: SC12-1325
KAREN AHLERS, ETC. ET AL.
Petitioner(s)
vs.
RICK SCOTT, ETC., ET AL.
Respondent(s)
The petition for writ of mandamus is hereby
transferred, pursuant to Harvard v. Singletary, 733
So. 2d 1020 (Fla. 1999), to the Circuit Court of the
Second Judicial Circuit in and for Leon County,
Florida. The transfer of this case should not be
construed as an adjudication or comment on the
merits of the petition, nor as a determination that the
transferee court has jurisdiction or that the petition
has been properly denominated as a petition for writ
of mandamus. The transferee court should not
interpret the transfer of this case as an indication
that it must or should reach the merits of the
petition. The transferee court shall treat the petition
as if it had been originally filed there on the date it
was filed in this Court. Any determination
concerning whether a filing fee shall be applicable to
this case shall be made by the transferee court. Any
and all pending motions in this case are hereby
deferred to the transferee court.

A-22

Any future pleadings filed regarding this case should


be filed in the above mentioned circuit court at 301 S.
Monroe Street, Tallahassee, Florida 32302.
A True Copy Test:
Thomas D. Hall,
Clerk, Supreme Court
kb Served:
STEVEN ARNOLD MEDINA
HON. RICK SCOTT
HON. PAMELA JO BONDI
HON. ADAM PUTNAM
HON. JEFFREY H. ATWATER
HON. BOB INZER, CLERK
WARREN K. ANDERSON

A-23

DISTRICT COURT OF APPEAL, FIRST DISTRICT


July 09, 2015
CASE NO.: 1D14-3243
L.T. No.: 12 CA 002715
Karen Ahlers, Neil Armingeon, et al., Appellant/
Petitioner(s), v. Rick Scott, Pam Bondi, Jeff Atwater,
et al., Appellee / Respondent(s)
BY ORDER OF THE COURT:
Appellant's motion filed June 10, 2015, for rehearing,
clarification and certification is denied.
Appellants motion filed June 10, 2015, for rehearing
en banc is denied.
I HEREBY CERTIFY that the foregoing is (a true
copy of) the original court order.
Served:
Terry Cole
Steven A. Medina
R. Elliot D Potter
Warren K. Anderson, Jr.
Kellie D. Scott
Gregory M. Munson
Jack Chisolm
Matthew Z. Leopold, G. C.
JON S. WHEELER, CLERK
A-24

STATE OF FLORIDA
County of Putnam
The undersigned personally appeared before me, a
Notary Public for the State of Florida, and deposes
that the Palatka Daily News is a daily newspaper of
general circulation, printed in the English language
and published in the City of Palatka in said County
and State: and that the attached order, notice,
publication and/or advertisement was published in
said newspaper 1 time(s) with said publication being
made on the following dates:
03/03/2005
The Palatka Daily News has been continuously
published as a daily newspaper, and has been
entered as second class matter at the post office at
the City of Palatka, Putnam County, Florida, each for
a period of more than one year next preceding the
date of the first publication of the above described
order, notice and/or advertisement.
Allison Waters
Sworn to and subscribed before me this 3rd day of
March, 2005 by Allison Waters, Administrative
Assistant, of the Palatka Daily News, a Florida
corporation, on behalf of the corporation.
Mary Kaye Wells, Notary Public
My commission expires July 22, 2007
A-25

[Note: in retyping for this petition for writ of


certiorari, the font size was increased substantially
from the original advertisement.]
STATE OF FLORIDA DEPARTMENT
OF
DEPARTMENT
OF
ENVIRONMENTAL PROTECTION
NOTICE OF INTENT TO ISSUE
PERMIT
The Department of Environmental
Protection gives notice of its intent to
issue a permit (File No. 54-17946-005EI) to Georgia-Pacific Corp. This
project is to install a pump station at
the Georgia-Pacific treatment ponds, a
4.3 mile, 48-inch, effluent pipeline, to
the St. Johns River and a diffuser at
the pipeline outfall. The project is to
impact 7.96 acres of wetland/surface
water. The impact includes 1.52 acres
of temporary wetland impact, and 5.18
acres of temporary surface water
impact (5.07 in the St. Johns River).
The pipeline is to be 23,550 feet long
with 6,315 feet buried, 12,536 elevated,
and 4,702 feet subaqueous. In order to
mitigate for the loss of wetland
function resulting from the project, the
mitigation plan includes replacement
of 40-foot wide bridge with a 60-foot
wide bridge over an unnamed creek
that flows into Etonia Creek. In
A-26

addition, six 48-inch culverts (four new


and 2 replacement culverts) are to be
installed along the access road adjacent
to the aforementioned bridge. Four
sections of unused pipeline running
along the same access road are to be
removed to allow for wildlife crossing.
A wetland classroom is to be
constructed that includes a 10-foot
wide, 500-foot long elevated boardwalk
through wetland and a terminal
platform over Rice Creek. Finally, 39.3
acres of forested wetlands buffering the
bridge replacement area and wetland
classroom will be conserved in a
conservation easement.
The activity occurs over sovereignty
submerged lands that require private
easements. The easements have been
granted by the Board of Trustees. A 20year private easement crossing Rice
Creek was granted by the Board of
Trustees on October 25, 1988
(Easement 00010(3822-54)). A 20-year
private easement for the St. Johns
River portion of the project was granted
by the Board of Trustees on June 26,
2003 (BOT 542535742, Easement
3053D).
The activity is located along Highway
216, Palatka, Florida, through wetland
A-27

and uplands, crossing Rice Creek, and


terminating in the St. Johns River, a
class III water body; In Sections 25-26
& 37, township 09 South, Range 26
East, from approximately latitude
294120, longtitude 81395; not in
approved Shellfish Harvesting Area,
not in an Outstanding Florida Water.
The Department will issue the permit
with conditions unless a timely petition
for administrative hearing is filed
pursuant to section 120.569 and 120.57
of the Florida Statues [sic]. The
procedures for petitioning for a hearing
are set forth below.
Rights of Affected Parties
Mediation is not available.
A person whose substantial interests
are affected by the Departments action
may petition for an administrative
proceeding (hearing) under section
120.569 and 120.57 of the Florida
Statues [sic]. The petition must contain
the information set forth below and
must be filed (received by the
Department) in the Office of General
Counsel of the Department at 3900
Commonwealth Blvd., Mail Station 35,
Tallahassee, Florida 32399-3000.
A-28

Under rule 62-100.106(4) of the Florida


Administrative Code, a person whose
substantial interests are affected by
the Departments action may also
request an extension of time to file a
petition for an administrative hearing.
The Department may, for good cause
shown, grant the request for an
extension of time. Requests for
extension of time must be filed with the
Office of General Counsel of the
Department at 3900 Commonwealth
boulevard [sic], Mail Station 35,
Tallahassee,
Florida
32399-3000,
before the applicable deadline. A timely
request for extension of time shall toll
the running fo [sic] the time period for
filing a petition until the request is
acted upon. If a request is filed late, the
Department may still grant it upon a
motion by the requesting party
showing that the failure to file a
request for extension of time before the
deadline was the result of excusable
neglect.
If a timely and sufficient petition for an
administrative hearing is filed, other
persons whose substantial interest will
be affected by the outcome of the
administrative process have the right
to petition to intervene in the
A-29

proceeding. Intervention will be


permitted only at the discretion of the
presiding officer upon the filing of a
motion in compliance with rule 28106.205 of the Florida Administrative
Code.
[Note the immediately following
paragraph is not seen in its entirety in
the copy of the advertisement provided
by the Department to petitioners,
where only the italicized portion is
seen. A possibly similar paragraph is
found in the 2/18/2005 Consolidated
Notice
of
Intent
to
Issue
Environmental Resource Permit and
Easement
to
Use
Sovereignty
Submerged Lands provided by the
Department to Georgia-Pacific, which
states as follows:
In accordance with rules 28106.111(2)
and
62110.106(3)(a)(4), petitions for an
administrative hearing by the
applicant must be filed within 14
days of publication of the notice
or within 14 days of receipt of the
written notice, whichever occurs
first. Under section 120.60(3) of
the Florida Statutes, however,
any person who has asked the
Department for notice of agency
action may file a petition within
A-30

14 days of receipt of such notice,

regardless of
publication.]

the

date

of

The petitioner shall mail a copy of the


petition to the applicant at the address
indicated above at the time of filing.
The failure of any person to file a
petition for an administrative hearing
within the applicable time period shall
constitute a waiver of that persons
right to request an administrative
determination (hearing) under section
120.569 and 120.57 of the Florida
Statutes.
A petition that disputes the material
facts on which the Departments
action is based must contain the
following information:
(a) The name and address of each
agency affected and each agencys file
or identification number, if known;
(b) The name and address of each
agency affected and each agencys file
or identification number, if known;
(c) A statement of when and how the
petitioner received notice of the
agency decision;

A-31

(d) A statement of all disputed issues


of material fact. If there are non [sic],
the petition must so indicate;
(e) A concise statement of the ultimate
facts alleged, including the specific
facts that the petitioner contends
warrant reversal or modification of the
agencys proposed action;
(f) A statement of the specific rules or
statutes that the petitioners [sic]
contends
require
reversal
or
modification of the agencys proposed
action; and
(g) A statement of the relief sought by
the petitioners, stating precisely the
action that the petitioner wishes to
agency to take with respect to the
agencys proposed action.
A petition that does not dispute the
material
facts
on
which
the
Departments action is based shall
state that no such facts are in dispute
and otherwise shall contain the same
information as set forth above, as
required by rule 28-105.301.
Under sections 120.569(2)(c) and (d) of
the Florida Statutes, a petition for
administrative hearing must be
A-32

dismissed by the agency if the petition


does not substantially comply with the
above requirements or is untimely
filed.
This intent to issue constitutes an
order of the Department on its own
behalf on the application for
regulatory permit, and on behalf of the
Board of Trustees of the Internal
Improvement Trust Fund on the
application to use sovereignty lands.
Subject to the provisions of paragraph
120.68(7)(a) of the Florida Statutes,
which may require a remand for an
administrative hearing, the applicant
has the right to seek judicial review of
the order under section 120.68 of the
Florida Statutes, by the filing of a
notice of appeal under rule 9.110 of the
Florida Rules of Appellate Procedure
with the Clerk of the Department in
the Office of General Counsel, 3900
Commonwealth
Boulevard,
Mail
Station 35, Tallahassee, Florida,
32399-3000; and by filing a copy of the
notice of appeal accompanied by the
applicable filing fees with the
appropriate district court of appeal.
The notice of appeal must be filed
within 30 days form [sic] the date
when the order is filed with the Clerk
of the Department.
A-33

The applicant, or any party within the


meaning of section 373.114(1)(a) or
373.4275 of the Florida Statutes, may
also seek appellate review of the order
before
the
Land
and
Water
Adjudicatory
Commission
under
section 373.114(1) or 373.4275 of the
Florida Statutes. Request for review
before
the
Land
and
Water
Adjudicatory Commission must be
filed with the Secretary of the
Commission and served on the
Department within 20 days from the
date when the order is filed with the
Clerk of the Department.
3/3/05

A-34

IN THE SUPREME COURT OF FLORIDA


KAREN AHLERS, a citizen and taxpayer
of Florida residing in Putnam County,
NEIL ARMINGEON, a citizen and taxpayer
of Florida residing in Duval County,
ENVIRONMENTAL YOUTH COUNCIL
ST. AUGUSTINE, an unincorporated
Florida association, FLORIDA CLEAN WATER
NETWORK, INC., a non-profit Florida
corporation, and PUTNAM COUNTY
ENVIRONMENTAL COUNCIL, INC.,
a non-profit Florida corporation,
Petitioners,
vs.

Case No. _______

RICK SCOTT, Governor,


PAM BONDI, Attorney General,
JEFF ATWATER, Chief Financial Officer,
and ADAM PUTNAM,
Commissioner of Agriculture, as Trustees
of the Internal Improvement Trust Fund,
Respondents.
________________________________________/
PETITION FOR WRIT OF MANDAMUS
Petitioners, KAREN AHLERS, a citizen and
taxpayer of Florida residing in Putnam County,
NEIL ARMINGEON, a citizen and taxpayer of
A-35

Florida
residing
in
Duval
County,
ENVIRONMENTAL YOUTH COUNCIL ST.
AUGUSTINE (EYC), an unincorporated Florida
association, FLORIDA CLEAN WATER NETWORK,
INC. (FCWN), a non-profit Florida corporation, and
PUTNAM
COUNTY
ENVIRONMENTAL
COUNCIL, INC. (PCEC), a non-profit Florida
corporation, respectfully petition this Court for a writ
of mandamus against Respondents, RICK SCOTT,
Governor, PAM BONDI, Attorney General, JEFF
ATWATER, Chief Financial Officer, and ADAM
PUTNAM, Commissioner of Agriculture, as Trustees
of the Internal Improvement Trust Fund
(Trustees).1
Petitioners respectfully seek the help of the
Court to confront a new unconstitutional phase in
Floridas long history of providing assistance to paper
and pulp companies. Some of this assistance has been
in-kind in the form of sacrificed water bodies that in
decades past were converted to depositories for
industrial pollutants. This time there is an express
This petition is styled using the Florida constitutions
terminology referencing Respondents. Under Article IV, Section
4(f), The governor as chair, the chief financial officer, the
attorney general, and the commissioner of agriculture shall
constitute the trustees of the internal improvement trust fund.
Under Floridas 1968 constitution, each Trustee has equal
footing, and Cabinet members are no longer expected,
constitutionally, to capitulate to the Governors wishes. [C1] By
statute, the Trustees collectively have been designated as the
Board of Trustees of the Internal Improvement Trust Fund.
253.001, Fla. Stat. The petition encompasses the Trustees
acting both as individual Trustees and collectively as a board.
References to Trustees also encompass their predecessor
trustees where applicable.
1

A-36

constitutional public trust provision and corollary


statutes and rules that must be satisfied. In addition,
due process must be met and administrative
procedures provided to ensure that citizens and
taxpayers are protected.
Petitioners Ahlers and Armingeon and
substantial numbers of members of EYC, FCWN, and
PCEC are beneficiaries of the constitutional public
trust with rights to fish, swim, and recreate in the
entire St. Johns River unless prevented from doing
so by private use validly authorized by the Trustees.
The river is part of the common heritage of the
people, designated by Presidential Executive Order
as an American Heritage River. Their rights are
under imminent threat in designated areas of the
river through the failure of the Trustees to require
that their authorization be obtained for private
degradation zones used in association with paper or
pulp mill pipelines. Mixing of paper mill pollutants
is private use of sovereignty lands. This use
requires proprietary authorization by the Trustees, if
it can occur at all.
In the very near future, several private
degradation areas on the river will be emanating
from a newly constructed Georgia-Pacific paper mill
pipeline in Putnam County.2 The private degradation
areas are so-called mixing zones adjacent to a 1000foot diffuser structure located perpendicular across
the middle of the river. By fall the paper mill expects
2 The mill currently discharges into Rice Creek. Although
Georgia-Pacific maintains the river is a better location to
discharge, it has no vested right from the Trustees at either
location.

A-37

to begin using dedicated areas in the heart of the


slow-moving tidally-influenced St. Johns River for
each day mixing tons of solids and other wastes
inconvenient to Georgia-Pacific. A few inches from
the river bottom, the industrial waste constantly will
shoot out in both up and down stream directions.
The zone boundaries have been determined,
but never formally approved, by the Florida
Department of Environmental Protection (FDEP).
Under FDEP rule, a limited defined region can be
significantly degraded to reduce the costs of
treatment.3 Thus, the public is being forced to use
its common property to subsidize Georgia-Pacific.
Even if FDEP does one day give formal approval to
these mixing zones, the Trustees may not abdicate
their own fiduciary responsibilities carefully to
review the mixing zones in a proprietary process that
conforms with due process and is subject to
administrative fact-finding. Only then will the
The mixing zones were developed under Florida
Administrative Code Rule 62-4.244 for specified non-thermal
components of paper mill discharges other than nitrogen or
phosphorus acting as nutrients. Petitioners are not seeking
relief in this petition concerning (a) public use of sovereignty
lands; (b) potential effects outside of defined paper or pulp
pipeline-related mixing zones; (c) thermal discharges; or (d)
nitrogen or phosphorus acting as nutrients. Public use of
sovereignty lands is not covered by the last sentence of Art. X
11, Fla. Const. (Private use of portions of such lands may be
authorized by law, but only when not contrary to the public
interest.). See discussion in Part IV.D., infra; see also Fla.
Admin. Code R. 18-21.003(53) (defining public utilities). For
purposes of this facial challenge, Petitioners assume FDEP has
properly defined the boundaries within which degradation by
Georgia-Pacific will occur.
3

A-38

Trustees be in a position to know whether the private


use mixing zones are contrary to the public interest,
and if not, to establish appropriate terms and
conditions of authorization.
FDEP does not own the sovereignty lands; the
Trustees do, in trust for the people. Nor does FDEP
purport to grant proprietary authorization for mixing
zones or, where private use is determined to be
appropriate, establish equitable compensation from
the private user to the people. In contrast, the
Trustees duties include conserving and protecting
these areas to ensure that they are not subjected to
private use contrary to the publics rights to fish,
swim and recreate and that private use only is
authorized in accordance with the public trust, due
process, and other law.
Petitioners seek expedited resolution of this
petition. The Georgia-Pacific pipeline project is
expected to be placed into operation within months.4
[E16-7] The Trustees have performed no public
interest review of the private use degradation zones
and granted no authorization applying to them. In
2003, in a split decision with the then Attorney
General voting no, predecessor Trustees approved a
private easement for the pipeline corridor only. The
decision was based on extremely limited and
provisional information, without giving the public a
At least one other paper or pulp mill pipeline project reliant
on mixing zones (the Buckeye project in Taylor County) also
may be constructed at some point. [D171] However, it is the
imminent unconstitutional private use of mixing zones related
to the Georgia-Pacific pipeline that justifies this Court
immediately addressing the Trustees abdication.
4

A-39

clear point of entry to contest the decision.5 The


pipeline structure itself is not significantly harmful,
lying inert and largely subaqueous in an easement
corridor that is a fraction of the total defined mixing
area that will be privately appropriated for use by
Georgia-Pacific.
When put into use, the paper mills
degradation zones will constitute an unauthorized
and unconstitutional private use of sovereignty
lands. Not a penny will have been compensated to the
citizens of Florida for the private use of sovereignty
lands, loss of resources, and loss of constitutionallyprotected public uses associated with the mixing
zones.6 Most troubling, money cannot compensate
the people of this state for the creation of what are
The private easement for the pipeline construction corridor
was approved with limited information provided by the FDEP
that did not include the mixing zones. Because this action was
taken by a prior Governor and Cabinet, on or about May 23,
2012, Petitioners Ahlers, Armingeon, EYC, and FCWN gave the
current Trustees notice of their intent to file this petition. [A267] Petitioners have received no response from any of the
Trustees.
6 The appraisal for the pipeline easement, and the easement
document itself, on their face did not cover the mixing zones.
One cannot even assume that equitable compensation was
obtained for the largely subaqueous pipeline placement because
the Trustees have failed to obtain a required reappraisal
immediately prior to the time of actual construction. In effect,
the Trustees will be giving an additional much larger private
easement away to a paper company causing substantially more
harm to state lands, and substantially more lost public use and
enjoyment, than the pipeline itself, without obtaining just
compensation for the beneficiaries of the trust, if the pipeline
operations were to commence without appropriate action on
their part.
5

A-40

likely to become multi-generational if not permanent


paper mill degradation areas in the heart of the St.
Johns River. This Court should take action to ensure
that the Trustees cease abdicating their fiduciary
duties and do their job before the degrading private
paper mill use of mixing zones on the St. Johns River
begins.
I. JURISDICTION AND QUESTION PRESENTED
This Court has original jurisdiction to issue a
writ of mandamus pursuant to Article V, Section
3(b)(8) of the Florida Constitution and Rules
9.030(a)(3) and 9.100(a) of the Florida Rules of
Appellate Procedure. This case involves imminent
private use of public trust lands for paper mill costsaving
degradation
areas,
without
proper
authorization from the Trustees, where the Attorney
General herself is a Trustee alleged to be acting in
violation of fiduciary duties. All citizens and
taxpayers of the state, including those who will be
required to enforce the law and those who will be
required to endure the uncompensated taking for
private use of public trust lands for degradation
zones, will benefit from Court resolution of this
constitutional case. State public trust assets and
functions of state government will be adversely
affected by protracted litigation concerning the
Trustees responsibilities.
The Trustees are acting ultra vires, in
violation of the public trust embodied in the Florida
constitution, and in violation of due process under
the Florida and United States constitutions, by not
exercising their own independent proprietary
judgment and responsibility to protect defined
A-41

portions of the river from unauthorized planned


private degradation and by not even assuring that
the public receives clear notice of the right to request
administrative proceedings on Trustee decisions.
See, e.g., Fla. House of Representatives v. Crist, 990
So.2d 1035 (Fla. 2008) (Florida Governor exceeded
his authority under the separation of powers of Art.
II, 3, Fla. Const., when he entered into a compact
with an Indian Tribe that expanded casino gambling
on tribal lands under the Indian Gaming Regulatory
Act, 25 U.S.C.S. 2701-2721); Clearwater v.
Caldwell, 75 So.2d 765, 768 (Fla. 1954) (The doctrine
of ultra vires is much more strictly applied to it than
to a private corporation, for the limits of its power
depend on public law which all persons dealing with
it are bound to know.); Board of Public Instruction
v. Knight & Wall Co., 100 Fla. 1649, 1655, 132 So.
644, 646 (1931) (Persons dealing with boards of
public instruction are on notice of these provisions of
the law and any contract for the pledge of public
school funds not contemplated hereby is ultra
vires.); cf. Liberty Counsel v. Fla. Bar Bd. of
Governors, 12 So.3d 183, 192 (Fla. 2009) (because
there are no other legal or constitutional prohibitions
against the actions of the Family Law Section, we
cannot conclude that the actions of the Bar were
unauthorized).
Writ of mandamus is a proper remedy because
this petition involves pure questions of constitutional
law, and functions of government will be adversely
affected unless an immediate determination is made
by this Court. See Allen v. Butterworth, 756 So.2d 52,
54 (Fla. 2000) ([M]andamus is the appropriate
A-42

vehicle for addressing claims of unconstitutionality


where functions of government will be adversely
affected without an immediate determination.); see
also Chiles v. Phelps, 714 So.2d 453, 455 (Fla. 1998)
(mandamus and quo warranto appropriate where the
Governor sought mandamus challenging the
Legislatures override of vetoes and members of the
public sought quo warranto to enforce their public
right to have the Legislature act in a constitutional
manner); Chiles v. Milligan, 659 So.2d 1055, 1056
(Fla. 1995) (citing Article V, section (3)(b)(8), in
exercising original jurisdiction where Governor
sought mandamus to compel Secretary of State to
expunge unconstitutional proviso from official
records); Moreau v. Lewis, 648 So.2d 124, 126 (Fla.
1995) (We exercise our discretion [issuance of
mandamus] in this case because we believe that an
immediate determination is necessary to protect
governmental functions.); Hoy v. Firestone, 453 So.
2d 814, 815 (Fla. 1984) (recognizing jurisdiction
under Article V, section 3(b)(8), to consider petition
for writ of mandamus directing the Secretary of State
to place candidates name on the ballot for
nonpartisan judicial election); Republican State
Executive Comm. v. Graham, 388 So. 2d 556, 559
(Fla. 1980) (finding that the Court has original
jurisdiction to consider petition for mandamus when
no facts are in question and the issue involves a
straightforward question of law) (The time
constraint imposed by the date of the general election
is sufficiently critical that we find a mandamus
proceeding in this Court to be an appropriate
remedy.).
A-43

Because this mandamus action seeks to


vindicate constitutional public trust rights and
duties, Petitioners are entitled to bring it whether or
not they are injured. See School Board of Volusia
County v. Clayton, 691 So. 2d 1066, 1068 (Fla. 1997)
(requiring special injury or constitutional
challenge); see also Whiley v. Scott, 79 So. 3d 702,
706 n. 4 (Fla. 2011) (petition for writ of quo warranto
is directed at the action of the state officer and
whether such action exceeds that positions
constitutional authority). Although not required for
the Court to exercise its jurisdiction, Petitioners will
be injured in their public rights and need for the
Court to exercise its jurisdiction to enforce and
protect their public rights. Citizens and taxpayers,
including Petitioners Ahlers and Armingeon and
substantial numbers of members of EYC, FCWN, and
PCEC, are facing imminent and long-lasting harm to
their public rights to use and enjoy trust lands for
swimming, fishing, and recreation in the portions of
the St. John River that will be degraded by mixing
zones to save Georgia-Pacific money. Petitioners
should not be left to suffer the degrading
consequences of Trustee abdication in the face of
constitutional, statutory, and rule duties that have
been disregarded. Timely and effective access to
justice should be open to beneficiaries of the public
trust seeking vindication of their rights and
accountability of their fiduciaries. Art. I, 21, Fla.
Const. (Access to courts.The courts shall be open
to every person for redress of any injury, and justice
shall be administered without sale, denial or delay.).
The river and those it benefits should not be forced to
A-44

wait years to get this Courts constitutional views on


a critical aspect of a subject it has been dealing with
for more than a century. See, e.g., St. ex rel. Ellis v.
Gerbing, 47 So. 353, 357 (Fla. 1908) (a swamp deed
does not affect the title held by the state to lands
under navigable waters by virtue of the sovereignty
of the state).
II. STATEMENT OF THE CASE AND FACTS
A.
Parties
1.
Petitioners
Petitioner Karen Ahlers is a citizen and
taxpayer of Florida residing in Putnam County. [A113] Petitioner Neil Armingeon is a citizen and
taxpayer of Florida residing in Duval County. [A145] Petitioner EYC is an unincorporated Florida
association that works to protect the environment.7
[A16-9] Petitioner FCWN is a non-profit Florida
corporation that works to protect Florida waters.
[A20-2] Petitioner PCEC is a non-profit Florida
corporation that works to protect the environment in
Putnam County. [A23-5] Florida public trust lands in
which Petitioners are interested include the St.
Johns River, an American Heritage River.8 [D1-9]
Petitioners Ahlers and Armingeon and substantial
numbers of members of Petitioners EYC, FCWN, and
PCEC are citizens and taxpayers of Florida who use,
enjoy, and benefit from the St. Johns River for
EYC sometimes also has used the name Environmental Youth
Congress. [A19]
8 The river is a world class fishing, swimming, and recreational
use water body, including major fishing tournaments that are
based in nearby Palatka and other useful, enjoyable, and
beneficial activities that occur in and around the areas
designated for Georgia-Pacific mixing zones. [A3-13, D1-9]
7

A-45

fishing, swimming, and recreation and who enjoy the


fish and wildlife at the river. [A1-25] These members
of EYC include substantial numbers of young adults
whose rights are at stake but who were not of the age
of majority in 2003 when the Board approved a
private easement for the pipeline corridor. [A17]
2.
Respondents
Under Article IV Section 4(f) of the Florida
constitution, Respondents are the Trustees of the
Internal Improvement Trust Fund. See also
253.001, Fla. Stat. (The existence of the Board of
Trustees of the Internal Improvement Trust Fund is
reaffirmed. All lands held in the name of the board of
trustees shall continue to be held in trust for the use
and benefit of the people of the state pursuant to s. 7,
Art. II, and s. 11, Art. X of the State Constitution.");
253.12 ((1) the title to all submerged lands
owned by the state by right of its sovereignty in
navigable freshwater lakes, rivers, and streams, is
vested in the Board of Trustees of the Internal
Improvement Trust Fund).9 [C1-91]
B. Subject Matter
1.
The Public Trust
In 1968, Florida voters substantially revised
the state constitution. This overhaul included the
following provision on sovereignty lands:
Section 11. Sovereignty Lands. The title to
lands under navigable waters, within the
boundaries of the state, which have not been
alienated, including beaches below mean high
water lines, is held by the state, by virtue of its
sovereignty, in trust for all the people. Sale or
9

See also the references to Trustee duties in Part II.B., infra.

A-46

private use of portions of such lands may be


authorized by law, but only when not contrary
to the public interest.
[B114-7] Under this version of the provision, While
sale or private use of such lands could be authorized
by act of the Legislature, such authorization was
possible only when not contrary to the public
interest. Dauer, M. J., Bartley, E. R., Marks, T. C.,

Proposed Amendments to the Florida Constitution,


1970 General Election, Public Administration

Clearing Service of the University of Florida, Civic


Information Series No. 50, p. 17 (1970) [B114-7].10 In
1970, when Article X, Section 11 was amended by the
voters to further tighten controls on sales (which
thereafter were required to be in the public
interest), the operative language pertaining to
private use was unchanged.11 [Id.]
Hence, since 1968, by direct democratic action
of the people, under the Florida constitution private
use of even portions of sovereignty lands may only
be authorized when not contrary to the public
interest. This was almost four years prior to the

The first sentence embodies the general public trust doctrine,


which became a part of Floridas common law heritage as soon
as Florida became a state. See Part III., infra, for discussion of
pertinent case law.
11 SECTION 11.
Sovereignty lands.The title to lands under
navigable waters, within the boundaries of the state, which
have not been alienated, including beaches below mean high
water lines, is held by the state, by virtue of its sovereignty, in
trust for all the people. Sale of such lands may be authorized by
law, but only when in the public interest. Private use of portions
of such lands may be authorized by law, but only when not
contrary to the public interest.
10

A-47

federal governments passage of the modern Clean


Water Act (Pub.L. 92-500, October 18, 1972).12 Both
prior to the adoption of the Clean Water Act and
thereafter, the Trustees repeatedly acknowledged
jurisdiction over the water column.13 [C17-55]

FDEP currently implements that acts National Pollutant


Discharge Elimination System (NPDES) permitting system
for Florida. [D34-83, 115-32, 172-211]
13 Petitioners appendix [C17-55] contains excerpts with
numerous references to water column in the Trustees
minutes between the years 1968-1974. See, e.g., Board of
Trustee Minutes, 7/2/1971 (The Governor mentioned the
state's position that it had jurisdiction over the water column,
and Mr. Stone asked the applicant to furnish his office
information.); 9/11/1972 (The Trustees also have
acknowledged the proposed work will be within an area of very
productive submerged bay bottom; the proposed spoil area is
bordered on the waterward side by intertidal red mangroves.
Even if the spoil area is diked at the mean high water line to
eliminate some siltation, there will be substantial direct
damage from dredging and possible secondary adverse effects
from silt placed in the water column by the dredging.); 8/7/1973
(The limited construction required for the installation of two
bridges over submerged land should not have significant
adverse effects on marine biological resources provided every
effort is made to contain the by-products of construction on the
uplands and keep disturbance of the submerged lands and
water column at a minimum.); 10/16/1973 (Survey and
Management: This project should have only limited direct
adverse effects on marine biological resources if measures are
taken to prevent siltation of the adjacent waters. The
application does not show any proposed method of stabilization
for either interior or exterior shorelines. Such unvegetated,
unstabilizing marl shorelines contribute suspended fines to the
water column.).
12

A-48

In addition to the Florida constitution, the


Florida statutes make the Trustees duties
mandatory:
Said board of trustees . . . shall remain
subject to and pay, fulfill, perform, and
discharge all debts, duties, and
obligations of their trust, existing at the
time of the enactment hereof or
provided in this chapter.
253.02(1), Fla. Stat. The Trustees have the
fiduciary
responsibility,
completely
independent of any regulatory responsibilities
of the FDEP, carefully to evaluate the public
interest associated with private use of portions
of sovereignty lands that might impact the
publics rights to use the affected areas.14 The
The current cabinet website indicates that the Trustees
continue to recognize the public trust doctrine:
The Board of Trustees also administers the
state's sovereignty lands, those water bodies
within the state's territorial limits that were
navigable at the date of statehood. These
include coastal shores below mean high water,
and navigable fresh waters such as rivers and
lakes below ordinary high water. The public
status of these lands is protected by the Public
Trust Doctrine as codified in Article X, Section
11 of the Florida Constitution.
[C4-5] (emphasis added). The Trustees Conceptual State Lands
Management Plan further elaborates on their fiduciary
responsibilities:
Prior to discussing the activities affecting the
utilization of lands vested in the Board of
Trustees of the Internal Improvement Trust
Fund, it is essential to examine the legal
concepts surrounding such trust arrangements.
14

A-49

Important concepts warranting definition and


discussion include: (l) trust, (2) trustees, (3)
cestui que trust, and (4) fiduciary. For the
purposes of discussion, Blacks Law Dictionary
has been used for all
definitions.
(1) Trust - "A right of property, real or personal,
held by one party for the benefit of another." It
is also defined as "a fiduciary relation with
respect to property subjecting person by whom
the property is held to
equitable duties to deal with the property for
the benefit of another person which arises as the
result of a manifestation of an intention to
create it."
(2) Trustee - "The person appointed, or required
by law, to execute a trust; one in whom an
estate, interest, or power is vested, under an
express or implied agreement to administer or
exercise it for the
benefit or the use of another called the cestui
que trust."
(3) Cestui que trust -"The person for whose
benefit a trust is created or who is to enjoy the
income or the avails of it."
(4) Fiduciary - "A person holding the character
of a trustee, or a character analogous to that of
a trustee, in respect to the trust and confidence
involved in it and the scrupulous good faith and
candor which it requires. "The "trust", per se, is
established pursuant to Chapter 253, Florida
Statutes, and generally consists of those stateowned lands in which title is vested in the Board
of Trustees of the Internal Improvement Trust
Fund. The trust also includes those "fruits" of
the trust that have been generated and
returned to the trust for administration by the
Board. The beneficiary or "cestui que trust" of
the trust is the state, which, by extension, is the

A-50

Trustees acting as a board are vested and


charged with the acquisition, administration,
management,
control,
supervision,
conservation, protection, and disposition of
state lands. 253.03(1), Fla. Stat.
2.
The Mixing Zones

general citizenry of Florida. "State" has been


defined as "a people permanently occupying a
fixed territory bound together by common-law
habits and custom into one body politic
exercising, through the medium of an organized
government, independent sovereignty and
control over all persons and things within its
boundaries... (Emphasis added). Therefore,
management of state-owned lands is for the
benefit of all the citizens of Florida; and to this
end, a fiduciary relationship exists with this
general public. The Florida Constitution
(Article II, Section 7 and Article IX, Section 11),
Chapter 253, Florida Statutes, and certain
other statutes provide specific guidance in
relation to the trust
and fiduciary obligations. Statutory direction
such as "The Board of Trustees of the Internal
Improvement Trust Fund is hereby authorized
and directed to administer all state-owned
lands and shall be responsible for the creation
of an overall and comprehensive plan of
development concerning the acquisition,
management and disposition of state-owned
lands, so as to insure maximum benefit and use"
(Section 253.03(7), Florida Statutes) must,
therefore, be executed within the confines of
this fiduciary relationship.
Conceptual State Lands Management Plan, p. 3 (3/17/1981,
revised 7/7/1981 and 3/15/1983). [C56-91]

A-51

FDEP classifies the St. Johns River in the area


of the mixing zones as Class III, with designated uses
of Fish Consumption; Recreation, Propagation and
Maintenance of a Healthy, Well-Balanced Population
of Fish and Wildlife. Fla. Admin. Code R. 62302.400. Under Section 403.061(11), Florida
Statutes, the Legislature have given FDEP authority
to establish reasonable zones of mixing for
discharges into waters. FDEP in turn has a rule for
establishing mixing zones in surface waters. Fla.
Admin. Code R. 62-4.244 (Mixing Zones: Surface
Waters). Under this rule, water quality and the
designated uses of a water body may be significantly
degraded in a limited defined region. Fla. Admin.
Code R. 62-4.244(1)(a) and (f). According to FDEPs
policy judgment, significant portions of a river
effectively can be lost to the public for their FDEPdesignated use as long as the cumulative mixing
zones on the river do not exceed 10% of its length,
Florida Administrative Code Rule 62-4.244(1)(i)1,
which for the St. Johns River would be 31 of its 310
miles. [D1] The mixing zones may be allowed so as
to provide an opportunity for mixing and thus to
reduce the costs of treatment. Fla. Admin. Code R.
62-4.244(1)(a).
Based on this rule, FDEP has defined several
St. Johns River mixing zones for the Georgia-Pacific
pipeline project. [D34-83, 101-14, 172-211] The
mixing zone for chronic toxicity listed in the new
proposed NPDES permit [D172-211] was not
mentioned in the 2002 NPDES permit DEP granted

A-52

for the facility [D34-83].15 No mixing zones have been


approved by FDEP as required to take effect under
the 2002 NPDES permit.16 [D40, 50] Nonetheless,
Georgia-Pacific will be using the mixing zones in the
St. Johns River when the pipeline is completed this
fall [E16-7].
The mixing zones are between 108 feet (33
meters) and 2408 feet (734 meters) in width for the
1000-foot distance of the diffuser structure that is
attached to the pipe (plus additional footage on both
ends of the diffuser). [D34-83, 108-14, 172-211] While
the Trustees are abdicating their responsibility,
portions of the St. Johns River will be constantly, and
potentially permanently, degraded through private
use mixing zones, not finally approved even by
FDEP, where water quality standards will not be met

On the other hand, FDEP has determined that GeorgiaPacific will not need mixing zones for dissolved oxygen, total
recoverable iron, total recoverable cadmium, and total
recoverable lead; mixing zones for these parameters are
eliminated from the new draft NPDES permit. [D108-14, 172211]
16 The 2002 NPDES permit set up an iterative process that
required further analysis and administrative procedure before
any of the mixing zones could be authorized by FDEP. [D40, 50]
This process was never completed by administrative process,
and none of the mixing zones mentioned in 2002 NPDES permit
is currently approved by FDEP. However, in recent years
continuing FDEP staff review has occurred, allowing the
elimination of some mixing zones from consideration, and the
discernment of the need for the chronic toxicity mixing zone.
[D101-14, 172-211]
15

A-53

for chronic toxicity, un-ionized ammonia, turbidity,


specific conductance, and color/transparency.17
3.
The Private Pipeline Corridor
Easement
The Trustees have made no findings
concerning the public interest of allowing, or issued
any document authorizing, the private use mixing
zones.18 [C95-173] Zones of degradation or lost public
use are not covered in any Trustee private easement
or other proprietary authorization. Both in terms of
the privately used area and the nature of the private
use, the zones go beyond the existing easement.19
In addition to the fact that FDEP now has concluded that a
chronic toxicity mixing zone will be required, Georgia-Pacific
has been found by USEPA through high volume testing to
exceed the applicable water quality for dioxin, which primarily
is present in the solids, tons per day of which will be released
into the mixing zones. [D115-43, 160-9] FDEP normally accepts
paper and pulp mill dioxin tests with detection limits set well
above the water quality criterion. [D34-83, 115-43, 172-211] If
dioxin later materializes in streambed sediments, FDEP
disregards the sediment data in assessing stream water quality.
[D170] Cost savings also will result from allowing GeorgiaPacific to dump its salt cake into the mixing zones, driving up
specific conductivity. [D144-63]
18 Like their predecessors [C94], the Trustees have not given the
public notice of a clear point of entry to request an
administrative hearing to challenge the Trustees thinking. The
Trustees decision-making process does not list administrative
procedures. [C5] Petitioners have attempted to raise the issues
with the Trustees [A26-7] but received no response.
19 The narrowest of the mixing zones are more than two times
as wide as the private easement, and, unlike the pipeline [C16573], their effects would be significant and ongoing. [D34-83, 10814, 172-211] The largest mixing zone, relating to
color/transparency, is almost fifty times wider than the
17

A-54

[C165-73] No compensation has been paid for the


mixing zones, and any compensation paid was
limited to the narrow subaqueous pipeline corridor
based on an appraisal restricted to the subaqueous
50-foot pipeline corridor.20 The limited public
interest analysis in the easement approval package
did not refer or apply to the mixing zones.21
easement. The project description of the Georgia-Pacific agenda
item was:
PROJECT DESCRIPTION
1.
Preempted area (square feet): 220,997
Structure dimensions: 4,420 ft. long x 30
to 48 inches in diameter
Easement dimensions: 4,420 ft. long x.
50 ft. wide
2.
Dredging: Materials excavated from the
river bottom will be temporarily
stockpiled on adjacent barges. This
material will be used for trench backfill
after the pipe has been placed. There
will be no material removed from the St.
Johns River.
3.
Navigational Data: Not applicable due to the
subaqueous nature of the structure.
[C106].
20 The special condition in the prior Trustees easement
approval requiring reappraisal immediately prior to the
beginning of pipeline construction has not even been met.
[C100, 104, 107]
21 This analysis focused on facts that would not be germane to
the mixing zones, including the notion that the buried pipeline
itself will maintain essentially natural conditions and will
not significantly impact fish and wildlife, and other natural
resources, including public recreation and navigation. [C106]
The approval package does not even discuss the existence of the
mixing zones, their areas, or the nature of their private use of
sovereignty lands. The Trustee analysis of the project does not
even reference the mixing zones or their possible effects:

A-55

The St. Johns River is approximately 7,500 feet


wide at the point where the pipeline would be
constructed and the new pipe would be
approximately 4,420 feet long. The new pipeline
would discharge treated wastewater through a
diffuser near the middle of the river. The pipe
would
be
constructed
of
high-density
polyethylene. The initial 3,420-foot-long section
of solid pie is 48 inches in diameter. The 1,000foot-long diffuser segment will be three different
diameters, successively reducing from 48 inches
to 42 inches to 30 inches. Each portion of the
diffuser will have two-inch nozzles attached to
the top of the pipe at three-foot intervals and
extending one foot upward from the top to the
pipe. These nozzles will extend above the river
bottom a few inches and will be angles up and
down stream to enhance mixing with the rivers
water.
Pipeline construction would be done using barge
mounted equipment operating with an area
contained by a turbidity barrier or silt curtain.
Materials excavated from the river bottom
would be temporarily stockpiled on adjacent
barges. This material would be used for trench
backfill after the pipe has been placed. There
would be no material removed from the river.
A benthic survey was conducted on August 16,
1995 to determine the submerged lands
characteristics at the project site. The results of
the bottom sampling indicated that there was a
narrow band of very young, sprouting seedlings
of eelgrass, Vallisneria Americana, located 125
feet to 150 feet from the shoreline. No
submerged or emergent vegetation or other life
forms were observed along the remainder of the
proposed pipeline corridor. No recent survey has
been conducted.

A-56

4.

The Proprietary Authorization


System That Applies to Private
Use of Any Portion of the St.
Johns River
Assistance to industry in the form of public
water body degradation for a time was an integral
part of state policy aimed at attracting industry to
the state.22 This policy emanated in part from a
The pipe would be buried deep enough so as not
to interfere with other activities in the river.
However, the pipeline path would encroach into
an area previously used for disposal of dredged
materials by the Putnam County Port
Authority. The spoil disposal area was
authorized by Board of Trustees Easement No.
25099(2314-54) issued on May 13, 1970. The
applicant has obtained authorization from the
easement holder to encroach within the
easement.
[C103]
This petition is not using the term corporate welfare in
reference to this form of assistance. The term corporate welfare
more commonly is associated with monetary assistance, such as
the large tax credits paper and pulp companies receive. [E3-8]
A public advocate has referred to any government largess to
corporations as corporate welfare ([F]ree market ideology, of
course, does not extend to corporate welfare. The very
corporations that sponsor this hypocritical campaign continue
to feed at the public trough, using their political connections to
obtain tax breaks, subsidies, inflated contracts and other
government largess. This ideology is useful, it seems, only when
it lines the pockets of those preaching it. Prepared Statement
of Joan Claybrook, President, Public Citizen, Hearing Before
the Subcommittee on Consumer Affairs, Foreign Commerce and
Tourism of the Committee on Commerce, Science, and
Transportation, United States Senate, 107th Congress 2nd
Session,
22

A-57

constitutional fifteen-year tax exemption passed


during the Great Depression. Maloney, F. E., Plager,
S. J. and Baldwin, F. N., Water Law and
Administration: The Florida Experience, 111.2(c) p.
320-1 [B1-16]. Gradually, the policy was narrowed to
focus statutorily on particular counties or water
bodies.23 Id. However, with the advent of modern
http://ftp.resource.org/gpo.gov/hearings/107s/87971.txt, p. 25
(July 18, 2002) (emphasis added).) As discussed infra, under the
Trustees own rules if assistance legitimately can be provided to
private companies in the form of degradation zones, the value
of the assistance would need to be monetized to determine
equitable compensation to the public. Before getting to the
monetary issue, however, the Trustees would have to ascertain
the public interest concerning the mixing zones, including all
environmental,
social
and
economic
costs.
Florida
Administrative Code Rule 18-21.003(51) states:
Public
interest
means
demonstrable
environmental, social, and economic benefits
which would accrue to the public at large as a
result of a proposed action, and which would
clearly exceed all demonstrable environmental,
social, and economic costs of the proposed
action. In determining the public interest in a
request for use, sale, lease, or transfer of
interest in sovereignty lands or severance of
materials from sovereignty lands, the board
shall consider the ultimate project and purpose
to be served by said use, sale, lease, or transfer
of lands or materials.
23 Although Florida has wisely abandoned its legislative
authorization to pollute the states waters, a remnant of this
policy is at Section 403.191(3), Fla. Stat., which limits the effect
of special legislation passed in 1947 for the Fenholloway River
in Taylor County. Id. at 321; see also Little, J. W., New
Attitudes About Legal Protection for Remains of Floridas
Natural Environment, 23 U. Fla. L. Rev. 459, 461 n. 13 (19701971) (The ugly episode of turning the Fenholloway River into

A-58

water pollution laws, experts on Florida water law


quickly became concerned with variance provisions
in state water pollution law, particularly when tied
to cost-saving:
Most pollution control measures are
expensive, and they probably will
become more expensive in the future.
Postponement for cost reasons only
creates greater problems in the future.
Maloney, F. E., Plager, S. J. and Baldwin, F.
N., Water Law and Administration: The
Florida Experience, 113.7(c) p. 336.
Scholarly concern was heightened by the
tendency of the Trustees, as well as of the
predecessor to the FDEP and other state
agencies, to become captive to private
interests:
As Professor Sax has demonstrated,
bureaucratic agencies, including those
directly charged with protecting public
interests,
frequently
subvert
environmental protection in favor of
private interests or perpetuating
personal hegemony over bureaucratic
processes. In other words, the very
agencies created to afford protection
sometimes may be the biggest
impediments to obtaining it. a duty
of constant vigilance devolves upon the
public media and concerned citizenry to
an industrial sewer with legislative approval is one of the
darkest in Florida's history of exploitation. Fla. Laws Spec. Act.
1947, ch. 24952.) [B118-73].

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review continually the actions, and


especially the inactions, of these
agencies.
Little, J. W., New Attitudes About Legal

Protection for Remains of Floridas Natural


Environment, 23 U. Fla. L. Rev. at 498
(footnotes omitted). To ensure a complete
approach to protecting the public interest in
water, both pollution control laws and the
public trust doctrine were considered under
the topic of water law. See Maloney, F. E.,
Plager, S. J. and Baldwin, F. N., Water Law
and Administration: The Florida Experience,
13 at 27 (referring to the historical marriage
of the law governing title to beds with the
public and private uses in the overlying
waters), 132.2 p. 415 (calling for the
preparation of a legal brief for the citizens of
Florida defining the relationship between
public and private interests in water use).
Under the proprietary system for which
the Trustees have fiduciary responsibility, the
Trustees must ensure that the private user
will not cause an interference with the publics
rights in those portions of navigable waters,
unless this is not contrary to the public
interest and just compensation is provided. No
person may commence any excavation,
construction:

or other activity involving the use of


sovereign lands of the state, the title

to which is vested in the board of


trustees of the Internal Improvement
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Trust Fund under this chapter, until


the person has received the required
lease, license, easement, or other form
of consent authorizing the proposed use.
253.77(1), Fla. Stat. (emphasis added). This system
was not intended to require authorization for
traditional public activities involving the use of
sovereignty lands, such as fishing, swimming, and
recreation. In contrast, other activity requiring
authorization from the Trustees is activity that may
diminish public use and enjoyment of sovereignty
lands. That was and is the most important part of the
Trustees obligation. In 2011, the Trustees repealed
its intent section, Florida Administrative Code 1821.001, as being duplicative, unnecessarily
burdensome, or no longer necessary. [C11-4]
However, this statement reveals the intent and
purpose behind the system, whether or not the
Trustees wish to acknowledge it:
18-21.001 Intent.
The intent and purpose of this rule is:
(1) To aid in fulfilling the trust and
fiduciary responsibilities of the Board of
Trustees of the Internal Improvement
Trust Fund for the administration,
management
and
disposition
of
sovereignty lands;
(2) To insure maximum benefit and use
of sovereignty lands for all the citizens
of Florida;
(3) To manage, protect, and enhance
sovereignty lands so that the public
may continue to enjoy traditional uses
A-61

including,
but
not
limited
to,
navigation, fishing and swimming;
(4) To manage and provide maximum
protection for all sovereignty lands,
especially those important to public
drinking water supply, shellfish
harvesting,
aquaculture,
public
recreation, and fish and wildlife
propagation and management;
(5) To insure that all public and private
activities on sovereignty lands which
generate
revenues
or
exclude
traditional public uses provide just
compensation for such privileges; and
(6) To aid in the implementation of the
State Lands Management Plan.
Florida Administrative Code Chapter 18-21 is
the Trustees set of rules for Sovereignty Submerged
Lands Management. Although failing to give the
public notice of the right to administratively protest
the pipeline easement decision [C94], the Trustees
predecessors themselves made the decision to
authorize the pipeline corridor rather than purport
to allow FDEP to decide the issue by any
delegation.24 [C100-36] Moreover, no exercise of
253.002(1), Fla. Stat. ([U]nless expressly prohibited by law,
the board of trustees may delegate to the department any
statutory duty or obligation relating to acquisition,
administration, or disposition of lands .); Fla. Admin. Code
R. 18-21.00401(3) (consolidated notices of intent to issue or deny
the proprietary authorization and an environmental resource
permit or wetland resource permit); see also Fla. Admin. Code
R. 18-21.0051 (delegation of authority in relation to operating
agreements between FDEP and water management districts).
24

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delegated administration or disposition duties by


FDEP could eliminate the Trustees own vested and
charged obligations for control, supervision,
conservation, [and] protection of sovereignty lands.
253.03(1), Fla. Stat. A mixing zone is not
conservation and protection of sovereignty lands.
While there are places FDEP protects water quality,
mixing zones are not one of them.
The Trustees state in Florida Administrative
Code Rule 18-21.002(1) that the Department of
Environmental Protection is vested with
[r]esponsibility for environmental permitting of
activities and water quality protection on sovereignty
and other lands. This is not a delegation of
proprietary duties. The same rule also recognizes
that FDEPs water quality protection responsibility
is cumulative with the proprietary rules. In 1993,
FDEP was created out of a merger of the former
Florida Department of Environmental Regulation
(FDER) with the former Florida Department of
Natural Resources (FDNR) (see Ch. 93-213, Laws of
Florida). The pre-merger version of the rule
expressed the cumulative nature of the proprietary
rules, maintained by the then FDNR, with FDEPs
water quality responsibility as follows:
(1) These rules are to implement
the administrative and management
responsibilities of the board and
department
regarding
sovereign
submerged lands. Responsibility for
environmental permitting of activities
and water quality protection on
sovereign and other lands is vested with
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the Department of Environmental


Protection. These rules are considered
cumulative. Therefore, a person
planning an activity should consult
other applicable department rules as
well as the rules of the Department of
Environmental Protection.
Fla. Admin. Code R. 18-21.002(1) (3-15-1990) [C15]
(emphasis added).25 The current version of the rule,
Applying this prior version of the rule, the Third District
observed:
1. Under Article X, Section 11, of the Florida
Constitution, sovereignty submerged lands are
held in trust for all the people of this State.
Private use of such submerged lands is allowed
when "authorized by law." The legislature has
authorized Plaintiff to administer the State's
sovereignty lands, and has directed Plaintiff to
adopt rules and regulations governing the
exercise of its statutory duties. Sections
253.03(1) and (7), Florida Statutes. The
Department of Natural Resources, Division of
State Lands (the "Department"), is empowered
to "perform all staff duties and functions"
related to the administration of the submerged
lands held by Plaintiff. Section 253.002, Florida
Statutes.
2. In accordance with Section 253.03(7), Florida
Statutes, Plaintiff has adopted rules governing
the administration of sovereignty lands and
those rules are contained in Chapter 18-21,
Florida Administrative Code, (formerly,
Chapter 16Q-21, in effect at the time Defendant
Barnett requested and Plaintiff issued the
Consent of Use). The Rules "implement the
administrative
and
management
responsibilities" of both Plaintiff and the
25

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approved in 2009, continues to recognize the


cumulative nature of the proprietary rules with
other, i.e., non-proprietary, rules of FDEP:
(1) These rules are to implement
the administrative and management
responsibilities of the Board, the
Department
of
Environmental
Protection and the Department of
Agriculture and Consumer Services
regarding
sovereignty
submerged
lands. Responsibility for environmental
permitting of activities and water
quality protection on sovereignty and
other lands is vested with the
Department
of
Environmental
Protection. The responsibility for
managing aquacultural activities on
sovereignty lands is vested with the
Department
of
Agriculture
and
Consumer Services. These rules are
considered cumulative. Therefore, a
person planning an activity should
consult other applicable rules of the
Department
of
Environmental
Protection and the Department of
Agriculture and Consumer Services
regarding aquacultural activities.
Department regarding sovereignty lands.
Section 18-21.002(1), Florida Administrative
Code.
Board of Trustees of the Internal Improvement Trust Fund of
the State of Florida, v. Barnett, 533 So.2d 1202, 1205 (Fla. 3d
DCA 1988).

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Fla. Admin. Code R. 18-21.002(1) (9-1-2009) [C16]


(emphasis added).
The Trustees rules allow FDEPs biological
assessment to be considered in evaluating specific
requests to use sovereignty lands, not to take the
place of proprietary authorization.26 Fla. Admin.
Code R. 18-21.004(2)(c). A host of Trustees rules
That the Trustees depend upon FDEP for staffing, Section
253.002(1), Florida Statutes, does not remove the Trustees
fiduciary responsibility to control, conserve, protect, and
supervise sovereignty lands and to supervise the staff at FDEP.
FDEP documents during 2000-2001 reveal FDEP strategizing
with the private user, Georgia-Pacific, about obtaining
authorization for the pipeline from the Trustees. [D10-28]
[C]oncept[ual] approval was discussed that would be
contingent on receipt of all required permits, authorizations &
payments. [D10-28] When the Trustees took action on the
pipeline easement proposal in 2003 none of the mixing zones
had been finally approved by FDEP, and none have been to this
day. The conceptual nature of the Trustees actual decision is
consistent with the lack of public notice of the opportunity to
seek an administrative hearing on the decision. [C94] FDEP, as
staff to the Trustees, would have been expected to be aware of
the need to give the public a clear point of entry to make the
Trustees decision final, because this administrative
requirement has been known to state agencies for decades. See
Capeletti Bros. v. State, 362 So. 2d 346, 348 (Fla. 1978) (an
agency must grant affected parties a clear point of entry, within
a specified time after some recognizable event in investigatory
or other free-form proceedings, to formal or informal
proceedings under Section 120.57. Absent waiver, we must
regard an agency's free-form action as only preliminary
irrespective of its tenor.), cert. den. 368 So.2d 1373 (Fla. 1979).
When giving public notice of issuing a FDEP permit, the staff
often included a point of entry for interested persons to contest
the FDEPs decision, but this never occurred with the Trustees
decision on the pipeline. [C94; D29-33, 84-100]
26

A-66

must be applied to the mixing zones.27 These include


careful determination of just compensation for any
Rule 18-21.004 provides numerous policies, standards, and
criteria that the Trustees must apply:
Management Policies, Standards, and
Criteria.
The following management policies, standards,
and criteria shall be used in determining
whether to approve, approve with conditions or
modifications, or deny all requests for activities
on sovereignty submerged lands, except
activities associated with aquaculture. The
management policies, standards, criteria, and
fees for aquacultural activities conducted on or
over sovereignty submerged lands are provided
in Rules 18-21.020 through 18-21.022, F.A.C.
(1)
General Proprietary.
(a)
For approval, all activities on
sovereignty lands must be not contrary to the
public interest, except for sales which must be
in the public interest.
(b)
All leases, easements, deeds or
other forms of approval for sovereignty land
activities shall contain such terms, conditions,
or restrictions as deemed necessary to protect
and manage sovereignty lands.
***
(e)
Equitable compensation shall
be required for leases and easements which
generate revenues, monies or profits for the
user or that limit or preempt general public use.
Public utilities and state or other governmental
agencies exempted by law shall be excepted
from this requirement.
***
(g)
Activities on sovereignty lands
shall be limited to water dependent activities
only unless the board determines that it is in
27

A-67

mixing zones that are otherwise properly authorized


by the Trustees.28
the public interest to allow an exception as
determined by a case by case evaluation.
***
(2)
Resource Management.
(a)
All sovereignty lands shall be
considered single use lands and shall be
managed primarily for the maintenance of
essentially natural conditions, propagation of
fish and wildlife, and traditional recreational
uses such as fishing, boating, and swimming.
Compatible secondary purposes and uses which
will not detract from or interfere with the
primary purpose may be allowed.
(b)
Activities which would result in
significant adverse impacts to sovereignty lands
and associated resources shall not be approved
unless there is no reasonable alternative and
adequate mitigation is proposed.
(c)
The
Department
of
Environmental
Protection
biological
assessments and reports by other agencies with
related statutory, management, or regulatory
authority may be considered in evaluating
specific requests to use sovereignty lands. Any
such reports sent to the department in a timely
manner shall be considered.
***
(i)
Activities on sovereignty lands
shall be designed to minimize or eliminate
adverse impacts on fish and wildlife habitat,
and other natural or cultural resources. Special
attention and consideration shall be given to
endangered and threatened species habitat.
28 Assuming the Trustees can validly market Florida waters to
a private company, under Florida Administrative Code Rule 1821.011(2)(b)2 issuance of a private easement for a mixing zone
would have to consider the enhanced property value or profit to

A-68

In 2003, an agenda item on the easement


application came before the Governor and Cabinet
only weeks after receipt of the easement application
was publicly announced. [C94-164] The agenda item
package the Governor and Cabinet had before them
did not mention any of the mixing zones. [C95-136]
Discussion of even the general concept of mixing in
the meeting was highly limited, non-specific, and
focused on the supposed benefits of obtaining greater
dilution in the river, not on the conditions that would
occur locally within mixing zones. [C137-64]
In summary, the prior Trustees lack of
information about the mixing zones is at best a text
book illustration of the need for due process and
citizen participation to protect the publics rights.
Points of entry can sometimes cure selective
education by staff and applicants intent on a certain
outcome. Nonetheless, it is clear that the prior
Trustees were not asked, and did not grant, a private
easement or other proprietary authorization for the
mixing zones, which to this day have never been
approved even by FDEP regulatory procedures. The
be gained by the grantee if the easement were approved. [See
also C9-10, 56-91] However, the true value of the St. Johns
River is immeasurable, not only to the people but also to the fish
and wildlife the public enjoys. At a recent workshop on the
public trust doctrine conducted by the Florida Fish and Wildlife
Conservation Commission (FFWCC) participants discussed
the states responsibility is to keep these trust resources from
being depleted or wasted, and called for the FFWCC and public
trust beneficiaries to act in partnership. [E9-15] In contrast,
FDEP worked extensively with Georgia-Pacific to obtain the
results sought by the company. [D10-28] Not long after GeorgiaPacific won approval for its pipeline, the FDEP Secretary took
a job with a paper company. [E1-2]

A-69

Trustees have never examined these mixing zones


nor explained to the people they are required to serve
why they are not contrary to the public interest, or
set forth specific temporal, geographical, and
financial terms of approved private use on the face of
a sovereignty lands authorization. See Fla. Admin.
Code R. 18-21.03(21) (Easement means a nonpossessory interest in sovereignty lands created by a
grant or agreement which confers upon the applicant
the limited right, liberty, and privilege to use said
lands for a specific purpose and for a specific time.).
The people, who are beneficiaries of the public trust,
never have been informed that the Trustees actually
have made a conscious decision concerning these
private uses, nor for where, how long, and why, nor
given the right to seek an administrative hearings to
aid in the formulation or modification of such a
decision.
III. NATURE OF RELIEF SOUGHT
According to the publicly-announced intention
of Georgia-Pacific, its paper mill pipeline to the St.
Johns River will go online in the very near future.
Since 1968, under the Florida Constitution, not even
the Florida Legislature can allow Floridas navigable
waters to be treated like the private property of paper
and pulp companies. These companies are not free to
infringe upon traditional public rights, including
fishing, swimming, and recreation, without the
Trustees authorization, determination of the public
interest, and obtaining of just compensation. The
Trustees cannot simply abdicate responsibility for
the situation. They are fiduciaries after all.
Abdication will cause or contribute to the
A-70

degradation of portions of the river every bit as much


as an overt decision by the Trustees to authorize the
private use, with the added flaw of failing to obtain
the Trustees rationale, terms, and conditions,
including just compensation.
The Court is respectfully requested to direct
the Trustees to not abdicate their public trust
responsibilities with respect to paper and pulp mill
pipeline-related mixing zones in navigable waters,
and specifically (a) that the Trustees require that
these private mixing zones obtain the Trustees
express authorization prior to use; and (b) that the
Trustees only give such authorization after
undertaking careful review of the mixing zones, in a
process with clear points of entry to the public, to
determine the public interest and all terms and
conditions
of
authorization,
including
just
compensation for the people. This matter has great
urgency and should be decided expeditiously by this
Court in favor of Petitioners.29
IV. ARGUMENT
A.
The Public Trust in the River
The portions of the St. Johns River where the
Georgia-Pacific mixing zones will occur are
sovereignty land. They are not portions of a
watercourse where the State of Florida has
disclaimed any interest in the property as sovereign
In the event the Court deems this petition more appropriately
should have been framed as a quo warranto petition or to seek
other more appropriate relief, Petitioners ask that this petition
be deemed to be in the form or to seek the relief deemed most
appropriate by the Court so as to do justice and protect the
rights of the people.
29

A-71

land. Cf. Kester v. Tewksbury, 701 So. 2d 443, 445


(4th DCA 1997).
The river and the public trust include the
water column as well as the sediments and all that
lies beneath. Key early United States Supreme Court
public trust cases made this point. Illinois Central
Railroad Company v. Illinois, 146 U.S. 387, 456
(1892), quoted approvingly from Martin v. Waddell,
41 U.S. 367, 16 Pet. 367, 410 (1842) that the people
of each State had the absolute right to all their
navigable waters, and the soils under them, for their
own common use, subject only to the rights since
surrendered by the Constitution to the general
government.30 Similarly, this Court long has
recognized that [t]he rights of the people of the
The primary importance of the classic public trust doctrine
is that it prevents the public/government from being excluded
from the use of water resources as a result of privatization of
the resource or other abdication of public control. Craig, R. K.,
States, Their Public Trust Doctrines, and Water Resources
Management:
How Relevant is Illinois Central Railroad These Days?,
American Bar Association, Section of Environment, Energy,
and Resources (40th Annual Conference on Environmental
Law, March 17-19, 2011). [B249-53] That the state public trust
includes the water column as well as the underlying sediment
continues to be the position of the federal government. The
Submerged Lands Act, 43 U.S.C. 1301, et seq., in 1953
confirmed the states jurisdiction over submerged lands and
waters. United States v. California, 436 U.S. 32, 37 (1978);
Murphy v. Department of Natural Resources, 837 F.Supp. 1217,
1221 (S.D. Fla. 1993); Barber v. State of Hawaii, 42 F.3d 1185,
1190 (9th Cir. 1994); Ankersen, T.T., Hamann, R., Anchoring
Away: Government Regulation and The Rights of Navigation in
Florida, Center for Governmental Responsibility, p. 5 (2006)
(http://nsgl.gso.uri.edu/flsgp/flsgpt06002.pdf).

30

A-72

States are in the navigable waters and the lands


thereunder. Broward v. Mabry, 58 Fla. 398, 50 So.
826, 829 (Fla. 1909).31
The focus of the public trust in navigable
waters is to safeguard against use that is adverse to
Note also that Florida follows the doctrine of cujus est solum
ejus est usque ad coelom. Orman v. J & D. J. Day and the
Apalachicola Land Company, 5 Fla. 385, 389 (1853); Smith v.
Guckenheimer & Sons, 42 Fla. 1, 27 So. 900, 905 (1900). As
explained by Blackstone Commentaries, Bk. 2, Ch., p. 18:
Land hath also, in its legal signification, an indefinite
extent, upwards as well as downwards. Cujus est solum,
ejus est usque ad coelum, is the maxim of the law,
upwards; therefore no man may erect any building, or
the like, to overhang another's land: and, downwards,
whatever is in a direct line between the surface of any
land, and the center of the earth, belongs to the owner
of the surface; as is every day's experience in the mining
countries. So that the word "land" includes not only the
face of the earth, but every thing under it, or over it.
And therefore if a man grants all his lands, he grants
thereby all his mines of metal and other fossils, his
woods, his waters, and his houses, as well as his fields
and meadows.
Section 253.12, Florida Statutes, also describes the Board as
being vested with all submerged lands owned by the state by
right of its sovereignty in navigable freshwater lakes, rivers,
and streams. See also Trustees website (navigable fresh
waters such as rivers and lakes below ordinary high water)
[C4]; accord DAlemberte, T., The Florida State Constitution, A
Reference Guide, pp. 142-3 (Greenwood Press 1991) (The issue
of navigable waters and the title to those waters and the land
beneath the water was one of the major legal issues of the 1970s
and 1980s. At stake is the water property and land that was
once navigable and now is sometimes dry. The state received
sovereignty landstate-owned landswhen it entered the
Union. These lands included property up to the high-water
mark along waterways.).
31

A-73

the public interest in those waters. While some of the


public interest lies in and below the bed of a river, the
bed of the river is not the sum total of the publics
interest in a river.32 The public has broad rights in
A navigable river is much more than its bed:
We are dealing with navigable rivers not "socalled lakes, ponds, swamps, or overflowed
lands." We are not persuaded that the
legislature intended by this statute to divest the
state of title to navigable waters which were
not, or could not be, conveyed to private owners.
To accept this position would mean, inter alia,
that if a navigable river gradually and
imperceptively changed its course onto
previously conveyed lands, the navigable river
would become private property and the public
would retain the dry river bed. The high and low
water marks of navigable waters change over
time, but these natural changes do not divest
the public of ownership of the navigable waters.
Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94
S. Ct. 517, 38 L. Ed. 2d 526 (1973); Municipal
Liquidators, Inc. v. Tench, 153 So.2d 728 (Fla.
2d DCA), cert. denied, 157 So.2d. 817 (Fla.
1963).
Coastal Petroleum, Inc. v. American Cyanamid, 492 So.2d at
343. As stated by the Second District in Brannon v. Boldt, 958
So.2d 367 (Fla. 2d DCA 2007):
Riparian rights are rights to use the water.
Broward v. Mabry, 58 Fla. 398, 50 So. 826, 829
(Fla. 1909). There are two categories of riparian
rights. Id. at 830. The public has the right to use
navigable waters for navigation, commerce,
fishing, and bathing and "other easements
allowed by law." Id. Owners of riparian land
share these rights with the public. Id. The
public's right to use navigable waters or the
shore derives from the public trust doctrine. See

32

A-74

its navigable waters. Coastal Petroleum, Inc. v.


American Cyanamid, 492 So.2d 339, 342-3 (Fla.
1986); State ex rel. Ellis v. Gerbing, 47 So. 353, 355
(1908); see also White v. Hughes, 190 So. 446, 449
(Fla. 1939) (It is difficult, indeed to imagine a
general and public right of fishing in the sea, and

Hayes v. Bowman, 91 So. 2d 795, 799 (Fla.


1957). The doctrine embodies the common law
rule that the sovereign held title to all the land
below the high-water mark in trust for the use
of the people. Id.
The specific nature of the trust in favor of all the
subjects . . . was that those subjects should have
the free use of such waters and shores. The
waters . . . were of common right, public for
every subject to navigate upon and fish in
without interruption; . . . the shore was also of
common right public. The use of each was in the
subjects for the inherent privileges of passage
and navigation and fishing, as public rights . . .
.
State v. Black River Phosphate Co., 32 Fla. 82,
13 So. 640, 643 (Fla. 1893); see also Hayes, 91
So. 2d at 799 (noting that the principle uses of
the water were navigation, bathing, and
fishing).
958 So.2d at 372 (footnote omitted); see also Christie, D.R.,
Marine Reserves, The Public Trust Doctrine and
Intergenerational Equity, Journal of Land Use, Vol. 19:2, 427,
434 (The state has the authority to regulate public trust uses
to minimize conflicts and assure the protection of waters and
wildlife that are fundamental to the enjoyment of all other
public trust uses.); Tiffany Real Property 263, p. 591 (1903)
(The private owner of land under water is entitled to the ice
formed on the water, while the public are entitled to that formed
over land belonging to the state.).

A-75

from the shore, unaccompanied by a general right to


bathe there ).
B.
The Trustees Fiduciary Obligation Not
to Abdicate Constitutional and Other
Procedural Safeguards in the Protection
of the Peoples Rights to the River
The Trustees job is zealously to protect the
public and its rights. The mixing zones, as
demonstrated on the face of the Georgia-Pacific
private easement and in the associated Trustee
approval, have not received careful substantive
scrutiny by the Trustees on behalf of the public trust
or indeed any meaningful Trustee scrutiny at all. The
Trustees have yet to assess the environmental,
social, and economic costs of the mixing zones,
Florida Administrative Code Rule 18-21.003(51),
which will be far greater than the limited physical
impacts of the pipeline on the bed of the river. They
have failed to ensure compliance even with due
process and administrative law notice requirements
in the way they go about their business conserving
and protecting the publics property.33
The Trustees being now informed that their predecessors
failed to give the public notice of a clear point of entry to contest
the earlier decision to approve the pipe corridor easement must
rectify the situation. Jones v. Flowers, 547 U.S. 220, 229, 234
(2006) (In Mullane, we stated that when notice is a persons
due [t]he means employed must be such as one desirous of
actually informing the absentee might reasonably adopt to
accomplish it, 339 U. S., at 315, and that assessing the
adequacy of a particular form of notice requires balancing the
interest of the State against the individual interest sought to
be protected by the Fourteenth Amendment, id., at 314.)
(What steps are reasonable in response to new information
depends upon what the new information reveals.); see also
33

A-76

While the Trustees may ultimately make


decisions on private use mixing zones with which
some members of the public disagree, abdication of
procedural safeguards is inexcusable because it
avoids processes established to ensure the Trustees
are careful and forthright in their decisions. The
Trustees are the citizens fiduciaries with respect to
sovereignty lands and should act worthy of this trust,
both procedurally and substantively.
A trustee responsibility is a heavy fiduciary
burden that must be carefully undertaken in the
interest of the beneficiaries of the trust, not in the
interest of private companies who wish to degrade
that trust to make and save money. Trustees should
not forget who they are working for or allow FDEPs
unofficial mixing zone decisions to somehow morph
into sovereign submerged lands authorization by
atrophy of Trustee procedural responsibilities:
The Trustees are fiduciaries for
plaintiff, not established agents. Their
role is to manage the Trust assets for
the benefit of those entitled to share in
the Trust assets, both the income and
the principal. That the Trustees may
engage the services of an expert in
managing Trust assets to assist them in
Capeletti Bros. v. State, 362 So. 2d 346, 348 (Fla. 1978). In
addition, the Trustees now are informed that Georgia-Pacific
will be using mixing zones that will impact the public interest
in the St. Johns River. Thus, the nature of the new information
which the Trustees must now consider, and give the citizens of
Florida the opportunity to adjudicate through administrative
procedures, has far greater importance to the public interest
than the mere construction of a pipeline.

A-77

the performance of their fiduciary


responsibilities hardly makes them
agents of the Trust beneficiary in order
to bind her personally to their hiring of
that assistance or to their purported
waiver of her right of access to a court
to seek redress for loss occasioned
thereby.
Fiduciaries are generally not able to
avoid the negligent performance of their
own special responsibilities by handing
them off to someone else. See State ex
rel. Simmons v. Harris, 119 Fla. 375,
378, 161 So. 374 (1935) ("We think that
it is so elementary as not to be
questioned that a trustee holding a fund
subject to specific disposition cannot
legally create another trusteeship and
pass the fund into the hands of, and
control of, that newly created trustee, so
as to place the fund beyond the reach of
the [beneficiary] . . . entitled to the trust
fund."); Thomas v. Carlton, 106 Fla.
648, 659, 143 So. 780, 785 (1932)
("Sometimes, circumstances are such
that a trustee, in the performance of his
duties, has to have the assistance of
others. In cases where the employment
of agents is authorized, or it is
reasonably
necessary
for
the
performance of the duties of the trust, if
the trustee, while acting prudently and
with reasonable care, employs an agent,
A-78

who is apparently honest and properly


qualified, and reasonable supervision is
used over him, the trustees will not be
held responsible for loss or damage
caused by the negligence or dishonesty
of the agent. [c.o.] But, if the regular
course of business in administering the
trust does not require that the trustee
part with the custody of the funds . . .
and a loss [is] thereby eventually
sustained, the trustee will be liable to
make such loss good."); Mann v. Cooke,
624 So. 2d 785 (Fla. 1st DCA 1993) (by
law
trustee
may
not
delegate
discretionary trust powers).
Morgan Stanley DW Inc. v. Halliday, 873 So. 2d 400,
404 (Fla. 4th DCA 2004); see also In re the ESTATE
of Brewer CORBIN, 391 So. 2d 731, 732 (3d DCA
1980) (An estate's personal representative acts as a
fiduciary of the beneficiaries, Dacus v. Blackwell, 90
So.2d 324 (Fla. 1956), and is, in practical effect, a
trustee of an express trust. Beck v. Beck, 383 So.2d
268, 271 (Fla.3d DCA 1980).). This is certainly no
less the case when the trustees are state-elected
officials and the trust document is the organic law of
the state. See Secret Oaks Owners Association, Inc.
v. Department of Environmental Protection, 704
So.2d 702, 705-6 (Fla. 5th DCA 1998) (in the exercise
of its fiduciary duties); see also generally, Reimer,
M.K., The Public Trust Doctrine: Historic Protection
for Floridas Navigable Rivers and Lakes, Fla. Bar J.
LXXV, No. 4 (April 2001).
A-79

The Trustees may not have acted previously in


cases of this precise sort.34 (A paper mill pipeline
The Conceptual State Lands Management Plan has not been
revised in almost three decades. Ironically, the plan itself
acknowledges the risk of Trustees rigidly acting on the basis of
yesterdays information rather than as the flexible competent
land managers any private beneficiary would expect:
The Plan, like the ongoing management
program, must remain flexible enough to
accommodate necessary changes. A static plan
would soon become an anachronism as new
legislative and administrative directions are
implemented. To avoid this problem, provisions
must be made to establish an orderly process for
continuous updating of the adopted Plan.
The preferred update process would involve
placing additions, deletions, or modifications on
the normal Board Agenda for policy-level
direction and guidance. This would provide the
most timely Plan
modification system, while maximizing public
notice and input. Such modifications could be
proposed by either the public, departmental
staff, or directly by the Board. Affirmative
Board action on such Agenda items would
effectively
accomplish
the
required
modification.
II. GOALS
A. Achieve full proprietary responsibility for the
management of those state-owned lands vested
in the Board of Trustees of the Internal
Improvement Trust Fund.
Chapter 253.03, Florida Statutes, establishes
the legal basis for the Board of Trustees to
assume an active role in the administration of
those state-owned lands vested in the Board of
Trustees. Section 253.03(7), Florida Statutes,
directs the Board of Trustees "...to administer to
all state-owned lands...so as to insure maximum
34

A-80

benefit and use." In a legal context the word


"Administer" means "to superintend the
execution, use, or conduct of; to manage affairs;
to take charge of business.
The Board of Trustees, in meeting its
obligations as both title holder and
administrator of certain state-owned lands,
must assert a proprietary role in the
acquisition, management, and disposition of
those lands. State-owned lands should be
managed with recognition that land is a
resource and not a commodity. Consistent with
this concept, state-owned lands should be
treated with equal or greater
proprietary respect than that usually afforded
privately owned lands.
Conceptual State Lands Management Plan, p. 5 (3/17/1981,
revised 7/7/1981 and 3/15/1983) (emphasis in original). For
instance, when it was adopted, the plan strongly discouraged
placement of sanitary landfills or other similar facilities on
state-owned lands. The reasoning involved applies equally to
allowing Georgia-Pacific to dump in mixing zones:
Activities of this nature often preclude or
severely
restrict
management
options.
Additionally, use of state-owned property for
purposes such as sanitary landfills rarely
benefits the public at large. Instead, such uses
usually benefit only a very limited segment of
the population. It is questionable whether using
state-owned lands for sanitary landfills meet
the statutory test of "maximum benefit and
use".
Policies
1. Discourage use of state-owned lands for
sanitary landfills and similar facilities and uses.
2. Consider use of state-owned lands for
sanitary landfills, or similar activities, only
when no alternative locations are available.

A-81

with large mixing zones emanating from a lengthy


diffuser structure constructed across Floridas only
American Heritage River thankfully has never
happened before.) But they have acted in analogous
cases, i.e., cases involving other sorts of activities
that are different in type but have similar although
far lesser impacts. In Board of Trustees of the
Internal Improvement Trust Fund v. Levy, 656 So.
2d 1359, 1360 (Fla. 1st DCA 1995), the First District
examined the history in Florida of the public trust
doctrine concerning sovereignty lands. Although it
was a dock case, its description of the doctrine is
equally applicable to the mixing zone form of private
use on sovereignty lands:
The appellee concedes the power and
authority of the state, acting through
the Board of Trustees of the Internal
Improvement Trust Fund, to prohibit
altogether the construction of docks or
other structures waterward of the mean
or ordinary high water line within
aquatic preserves. This authority is
based, in part, upon the adoption in
Florida of the "Public Trust Doctrine," a
principle derived from the English
common law, incorporated into the
organic law of this state pursuant to a
Such instances will require a detailed land
reclamation plan acceptable to the Board.
3. Phase out existing sanitary landfill leases as
expeditiously as possible.
4. Prohibit non-state agency sanitary landfills
and similar facilities on state-owned lands.
Plan at p. 25. [ ]

A-82

constitutional amendment in 1970,


followed
by
legislative
action
authorizing private use of portions of
sovereignty lands under navigable
waters when not contrary to the public
interest. See Hayes v. Bowman, 91 So.
2d 795 (Fla. 1957); Yonge v. Askew, 293
So. 2d 395 (Fla. 1st DCA 1974); Graham
v. Edwards, 472 So. 2d 803 (Fla. 3d DCA
1985), rev. denied, 482 So. 2d 348 (Fla.
1986); Krieter v. Chiles, 595 So. 2d 111
(Fla. 3d DCA 1992), rev. denied, 601 So.
2d 552 (Fla.1992), cert. denied, 121 L.
Ed. 2d 244, 113 S. Ct. 325 (1992). The
"Public Trust Doctrine" is embodied in
the following language found in Article
X of the Florida Constitution.
In Levy the Trustees successfully argued that
they were entitled to reject docks beyond 500 feet in
length. Board of Trustees of the Internal
Improvement Trust Fund v. Levy, 656 So. 2d at 1360
(This rule challenge was filed by Dr. Levy, appellee,
in response to the decision of the Division of State
Lands, acting as staff for the Trustees, denying Dr.
Levy's request to extend his existing 500-foot dock to
approximately 600 feet in order to reach greater
water depth. The denial of Levy's request for the
dock
extension
was
based
upon
Florida
Administrative Code rule 18-201.004(5)(a)1. (1994),
which in essence provides that all docking facilities,
whether for private residences, commercial,
industrial or public, must comply with certain
standards and criteria, the first being that no dock
A-83

"shall extend waterward of the mean or ordinary


high water mark more than 500 feet or 20 percent of
the width of the water body at that particular
location whichever is less ....").
Here Petitioners are focused on the opposite
situationTrustees who have not carried out their
public trust responsibility when it comes to paper
mill mixing zones. But here too the Trustees must
not act arbitrarily and must establish a clear basis
for their conduct. The Trustees have altogether failed
to make an analysis of this private use of submerged
lands. In Levy, the Trustees were diligent, as
fiduciaries would be expected to be, and duly credited
by the Court:
[A] logical and reasonable basis for the
maximum dock length is found in the
evidence of record as recited in the order
under review. The hearing officer found,
in part, that no single-family docks in
aquatic preserves extend over 500 feet
into the water. Further, in Charlotte
Harbor, the average length of a singlefamily residential dock is 200 feet. In
promulgating the predecessor to the
rule in question, originally adopted in
1981, the trustees attempted to balance
competing
interests
such
as
environmental, aesthetic, recreational,
and private commercial. There was
some
concern
that
previously
authorized docks had infringed upon
the riparian access of adjacent upland
owners. The 500-foot limitation was
A-84

added to the rule by amendment in


1985. In setting the criteria for dock
length, the hearing officer found, the
trustees attempted to set a limit that
would not result in the denial of more
than a negligible number of dock
applications, based on historic dock
application data and predominant
vessel lengths of under 27 feet. Indeed,
as the hearing officer found in deciding
that the rule was not capricious: "The
500-foot limitation appears to have been
the product of a process involving the
thoughtful
balancing
of
varying
factors." In our view, these findings of
fact contained in the order under review
are inconsistent with the conclusion
that the rule is arbitrary. To the
contrary, we view these findings as
ample to show that the trustee's
decision was a reasoned one, supported
by facts and logic, and that their
decision could in no sense be labeled
"despotic." Agrico, 365 So. 2d at 763.
656 So.2d at 1363.35 The proprietary
documents facially demonstrate that the
Docks themselves effect light penetration, but mostly from a
distance. In contrast, Georgia-Pacific will have light-blocking
color/transparency and turbidity mixing zones directly in the
water, emanating upward and outward from the bottom of the
river. The potential impacts or barriers created by the mixing
zones could significantly reduce populations of anadromous
species and adversely affect the publics fishing opportunities.
Yet thus far the Trustees have shown no concern for or even
35

A-85

Trustees have not thus far carefully evaluated


the mixing zones, much less given a
proprietary easement for them. No diligent
fiduciary conduct has occurred, and significant
uncompensated damage to the people of
Floridas constitutionally-protected assets is
imminent. Even if the Trustees predecessors
had approved the pipeline itself in accordance
with proper public notice of the right to
request an administrative hearing, the nature
of the use of public trust resources is about to
change abruptly and semi-permanently with
the use of the mixing zones.36
awareness of the mixing zones. Unlike the dock of someone such
as Dr. Levy, the agent of transparency loss in this case is
physically in the water, whereas much of a dock is a few feet
above the water.
36 The fact that the Trustees predecessors sometimes may have
done a poor job of safeguarding the public trust against GeorgiaPacific or other paper and pulp companies does not excuse the
current Trustees continuation of the negligent pattern.
Whatever rights the pipeline easement holder was previously
granted by the Trustees predecessors are held subject to the
Trustees continuing authority over sovereignty lands. See
Secret Oaks Owners Association, Inc. v. Department of
Environmental Protection, 704 So.2d 702, 706 (Fla. 5th DCA
1998) (Whatever rights a riparian owner enjoys have been held
subject to the states ownership of the sovereign lands.) The
easement holder at most has the unexercised right to seek
authorization from the Trustees for additional private use in the
river associated with the mixing zones. See Parlato v. Secret
Oaks Owners Association, 793 So.2d 1158 (Fla. 1st DCA 2001)
(riparian easement holder determined to be entitled to apply to
put dock on St. Johns River). And even if private use mixing
zones eventually are authorized by the Trustees, this must not
be because of corporate welfare and, as a further safeguard, it

A-86

C.

The Court Need Not Reach All


Aspects of the Public Trust
Doctrine
As discussed supra at note 3, this
petition is limited in its scope to private use
mixing zones associated with paper and pulp
mill pipelines. It primarily rests on a portion
of the Florida constitution that by its terms
does not apply to public use or public
utilities.37
In
addition,
Floridas
will be necessary to employ the rent or consideration for the
benefit of the whole people, Illinois Central Railroad Company
v. Illinois, 146 U.S. at 457 (quoting Stockton v. Baltimore and
New York Railroad Company, 32 Fed. Rep. 9, 19, 20 (1887).
37 Not only is Petitioners narrow approach focused on private
use consistent with the facts of the case and the constitutional
language cited, but also it is consistent with historical rulings
of the United States Supreme Court and this Court. Both have
shown considerable flexibility under the public trust doctrine in
relation to public utilities. For instance, it has been recognized
that the public interest may necessitate public utilities
discharging municipal wastewater into tidal waters. Darling v.
City of Newport News, 249 U.S. 540, 544 (1919) (one of the very
most important public uses of water already partly polluted,
and in the vicinity of half a dozen cities and towns to which that
water obviously furnished the natural place of discharge); see
also Gibson v. City of Tampa, 135 Fla. 637, 185 So. 319, 321
(citing Darling v. City of Newport News in ruling that the city
was not required to furnish a disinfectant plant but could be
liable for damages to an oyster bar leaseholder). But even here,
using the great natural purifying basis was practical
necessity and had to take into account [w]hatever science may
accomplish in the future. Darling v. City of Newport News, 249
U.S. at 542-3; cf. Wisconsin v. Illinois, 278 U.S. 367, 417 (1928)
(Had an injunction then issued and been enforced, the Port of
Chicago almost immediately would have become practically
unusable because of the deposit of sewage without a sufficient

A-87

constitutional public trust doctrine, at issue in


this petition, is by its terms limited to
sovereignty lands.38 Nor is the Court being
flow of water through the Canal to dilute the sewage and carry
it away. In the nature of things it was not practicable to stop
the deposit without substituting some other means of
disposal.). Public sewage disposal also can raise concern for
public water supply. Darling v. City of Newport News, 249 U.S.
at 542 (The fundamental question as to the rights of holders of
land under tidal waters does not present the conflict of two
vitally important interests that exists with regard to fresh
water streams. There the needs of water supply and of drainage
compete.).
38 In contrast, some legal scholars have advocated for extension
of public trust analysis to disputes involving air and other
interests beyond the water or other sovereignty lands. In a
seminal article discussing this position, Joseph L. Sax observed
that the doctrine historically had not been extended this far.
Sax, J. L., The Public Trust Doctrine in Natural Resource Law:
Effective Judicial Intervention, 68 Mich. L. Rev. 472, 556-7
(1969-1970). It historically applied to waters:
It is clear that the historical scope of public trust
law is quite
narrow. Its coverage includes, with some
variation among the states,
that aspect of the public domain below the lowwater mark on the
margin of the sea and the great lakes, the
waters over those lands,
and the waters within rivers and streams of any
consequence. Sometimes the coverage of the
trust depends on a judicial definition of
navigability, but that is a rather vague concept
which may be so
broad as to include all waters which are suitable
for public recreation.
Id. (emphasis added; footnoted omitted). This case also plainly
involves private use within the Trustees public trust

A-88

asked to assess the public interest with respect


to the mixing zones for the Trustees. That is
the Trustees responsibility, which they may
not abdicate.
V. CONCLUSION
The sovereignty lands of the St. Johns
River are no less the peoples lands because
they happen to be within the area of GeorgiaPacifics intentional degradation zones rather
than under a residential dock or permanentlymoored houseboat. Fiduciaries in any sense of
the word must carefully look at anticipated
private use mixing zones associated with
paper or pulp mill pipelines. They must
expressly determine whether they are
contrary to the public interest and ensure that
they are authorized only in accordance with
clear terms and conditions that are fair to the
interests of the people, whose property the
companies are despoiling.
Dated June ____, 2012.
Respectfully submitted,
responsibilities. It does not require an ecological analysis to
discern the Trustees jurisdiction. The St. Johns River will be
adversely affected by these private use mixing zonesthe zones
by definition will allow degradation directly in public water. Cf.
Hunter, D. B., An Ecological Perspective on Property: A Call for
Judicial Protection of the Publics Interest in Environmentally
Critical Resources, 12 Harv. Envtl. L. Rev. 311, 358 (1988)
(described the improved version of the harm/benefit
distinction in Just v. Marinette, 56 Wis.2d 7, 201 N.W.2d 761
(1972), where a filling permit on private property was denied
because it would affect the public's right in navigable waters).

A-89

Steven A. Medina
Attorney
Florida Bar No. 370622
1104 N. Eglin Parkway
P.O. Box 1021
Shalimar, Florida 32579
Phone: 850.621.7811
Fax: 850.362.0076
stevenamedina@yahoo.com
ATTORNEY FOR PETITIONERS
***

A-90

IN THE DISTRICT COURT OF APPEAL OF


FLORIDA
FIRST DISTRICT
KAREN AHLERS, NEIL ARMINGEON,
ENVIRONMENTAL YOUTH COUNCIL
ST. AUGUSTINE, FLORIDA CLEAN WATER
NETWORK, INC., and PUTNAM COUNTY
ENVIRONMENTAL COUNCIL, INC.,
Appellants/Petitioners Below,
v.
NO: 1D14-3243

DCA
LT

CASE NO: 2012 CA 2715


RICK SCOTT, PAM BONDI,
JEFF ATWATER, and ADAM PUTNAM,
as Trustees of the Internal Improvement Trust Fund,
Appellees/Respondents Below,
and
GEORGIA-PACIFIC CONSUMER OPERATIONS
LLC,
Appellee/Intervener Below.
__________________________________________/
INITIAL BRIEF ON MERITS
***
A-91

STATEMENT OF THE CASE AND OF THE


FACTS

Nature of the Case

Appellants are individual Florida citizens and


organizations with members who are interested in
and beneficiaries of the public trust and who are
entitled to public trust and due process protection of
the public interest, including, but not limited to, the
traditional rights to fish, swim, and recreate in the
entire St. Johns River. [II, 61-85] They are entitled to
full protection of the publics interest in the entire
river. They use and enjoy the entire river within
Putnam County, including, but for Georgia-Pacifics
waste, in and adjacent to the degraded areas now
containing the pipeline of Georgia-Pacific, which
protrudes and dumps Georgia-Pacifics waste into
the river.
Appellees include the Trustees of the Internal
Improvement Trust Fund, a body created by Article
IV, Section 4(f) of the Florida Constitution and whose
duties are in part set out in Chapter 253 of the
Florida Statutes. [III, 346-50, 359-97] Appellees also
include an intervener below, Georgia-Pacific
Consumer Operations, LLC. Georgia-Pacific sought
permission to construct a pipeline on sovereignty
land in the St. Johns River, to be used to discharge
effluent from their Putnam County, Florida papermill. [III, 436] The Trustees public trust and due
process duties in determining whether this and
associated private usage of sovereignty land and
waters is within the publics interest have formed the
core of this case.
A-92

The St. Johns River is Floridas longest river,


a critical natural resource, and an American
Heritage River. [IV, 519-25] It is a navigable water
at, and up and down river from, the Georgia-Pacific
outfall. [II, 63-73] The subaqueous land beneath the
St. Johns River at issue in this case is thus held by
the state, by virtue of its sovereignty, in trust for all
the people. Art. X Sec. 11, Fla. Const.
Georgia-Pacifics Putnam County paper-mill
pipeline is currently discharging massive amounts of
waste into the St. Johns River. [V, 688-727] This
effluent includes various constituents, including
solids, up to 17,500 pounds per day of which may be
discharged to the river. [IV, 624-727]
Via a pipeline, this effluent is discharged into
mixing zones in both up and down stream
directions from a diffuser structure with nozzles that
protrude a short distance above the river bottom. [III,
445, 493; IV, 624, 695] These mixing zones are
contained within the St. Johns River. In the area of
the applicable mixing zones, river water will be
rendered chronically toxic and exceed otherwise
applicable standards for un-ionized ammonia,
turbidity,
specific
conductance,
and
color/transparency, with the color/transparency
mixing taking substantially more river area to be
accomplished. Specifically, the mixing zones are 33
meters in width for chronic toxicity, un-ionized
ammonia, turbidity, and specific conductance, and
734 meters in width for color, all for the 1000-foot
distance of the diffuser structure that is attached to
the pipe (plus additional footage on both ends of the
diffuser). [IV, 550-99, 624-30; V, 688-727] Although
A-93

the mixing zones are in water which is on and above


the subaqueous sovereignty lands held in trust, the
term mixing zones is not synonymous with the
subaqueous sovereignty lands held in trust. [IV, 62430] Other portions of the pipeline project physically
lay beneath the subaqueous sovereignty lands held
in trust beneath the St. Johns River that is held by
the state, by virtue of its sovereignty, in trust for all
the people. [III, 446]
The mixing zone boundaries now have been
defined by the Florida Department of Environmental
Protection (FDEP) but were not formally approved
until late 2012 with FDEPs issuance of a new
National Pollutant Discharge Elimination System
(NPDES) permit for the facility. [VI, 845-927]
FDEPs regulatory evaluation focuses on its water
quality standards, not the potential impacts of solids
and other constituents of a discharge on the river
bottom, including the river bottom within the mixing
zones. In 2003, when the Board of Trustees
preliminarily voted to approve the Georgia-Pacific
Sovereignty Submerged Lands Easement for the
pipeline itself during a free form proceeding,1 none of
the mixing zones had been authorized by FDEP, and
the mixing zone for chronic toxicity was not even
proposed. [IV, 556, 566]
The FDEP briefing package provided to the
Board of Trustees did not mention the anticipated
mixing zones. [III, 442-IV, 478] The general subject
of the rivers diluting capability in comparison to that
1 The Trustees conceded in their motion for summary judgment
that the Board of Trustees approval in 2003 was only
preliminary. [VIII, 1213]

A-94

of the then current discharge location in Rice Creek


was mentioned at the Board of Trustees 2003
meeting, but the anticipated mixing zones,
anticipated conditions in the mixing zones, and the
anticipated effect on the peoples traditional uses
such as fishing, swimming, and recreation in the
mixing zones were not discussed. [IV, 479-506]
Respondents have never granted even
preliminary approval for Intervener GeorgiaPacifics private use mixing zones or of submerged
lands below the mixing zones outside of the pipeline
easement, which are also subaqueous sovereignty
lands held in trust. Nor was a determination made
by the Board of Trustees even preliminarily as to
whether Georgia-Pacifics private use of the
submerged lands which potentially may be
smothered in paper mill solids and of the water above
the subaqueous sovereignty lands held in trust would
be contrary to the public interest. [III, 446-8]
In 2005, FDEP directed Georgia-Pacific to
publish in the Palatka Daily News a lengthy and
grossly confusing notice of intent to issue permit.
[IV, 600-616] Because DEP and Georgia-Pacific had
closely cooperated for years in relation to every detail
of this project [IV, 526-44], it is unlikely that GeorgiaPacific was surprised by any aspect of this notice.
After describing at some length what appears to be a
FDEP wetlands permit, the newspaper notice stated:
The activity occurs over sovereignty
submerged lands that require private
easements. The easements have been
granted by the Board of Trustees. A 20year private easement crossing Rice
A-95

Creek was granted by the Board of


Trustees on October 25, 1988
(Easement 0010(3822-54)). A 20-year
private easement for the St. Johns
River portion of the project was granted
by the Board of Trustees on June 26,
2003.
(BOT 542535742, Easement
30680).
[IV, 601] (Emphasis added.) This clearly suggested
that the easements were matters that had already
been decided. It also stated much further down in the
notice that this intent to issue constitutes an order
of the Department on its own behalf on the
application for the regulatory permit and on behalf of
the Board of Trustees of the Internal Improvement
Trust Fund on the application to use sovereignty
submerged lands, without clarifying if this was
about the 1988 application, the 2003 application, or
both. [IV, 602]
This published notice of intent to issue permit
substantially differed in its clarity and content from
the Consolidated Notice of Intent to Issue
Environmental Resource Permit and Easement to
Use Sovereignty Submerged Lands issued to
Georgia-Pacific at the same time. [IV, 605-13] The
Consolidated
Notice
of
Intent
to
Issue
Environmental Resource Permit and Easement to
Use Sovereignty Submerged Lands also stated [IV,
610]:
The Department has determined
that the proposed activity, because of its
size, potential effect on the environment
or the public, controversial nature, or
A-96

location, is likely to have a heightened


public concern or likelihood of request
for
administrative
proceedings.
Therefore,
pursuant
to
Section
373.413(4), F.S., and paragraph 62343.090(2)(k),
F.A.C.,
you
(the
applicant) are required to publish at
your expense the enclosed Notice of
Intent to Issue.2
In 2009, the Board of Trustees, acting through
its agent FDEP, purported to issue the 20-year
private easement to Georgia-Pacific for the
subaqueous effluent outfall structure, referencing an
expiration date of June 23, 2023. [IV, 507-15] This
easement did not include the space or matter,
including the water, above the subaqueous
sovereignty lands held in trust, nor does it include or
reference any associated mixing zones. Thus, this
easement did not include the private use by
Intervener Georgia-Pacific of the space and matter,
i.e., water, above the subaqueous sovereignty lands
held in trust nor did it include the mixing zones. The
narrowest mixing zones, for chronic toxicity, unionized
ammonia,
turbidity,
and
specific

The FDEP heightened public concern determination was also


consistent with this not having been a project for which a Board
of Trustees delegation to FDEP was operative under Florida
Administrative Code Rule 18-21.0051(5), even had the
application involving 220,977 square feet of private easement
[III, 443] not exceeded the 5 acre threshold in Florida
Administrative Code Rule 18-21.0051(2)(c), all of which is
consistent with the fact that the Board of Trustees preliminarily
took up the application in 2003.
2

A-97

conductance, are more than two times as wide as the


dimensions purportedly approved in the easement.
The
mixing
zones
are
economically
advantageous to the private user, Georgia-Pacific,
which not only makes money from the paper mill but
also saves money by sewering low purity sodium
sulfate (salt cake) rather than disposing it into a
landfill. [V, 666] No compensation has been paid by
Georgia-Pacific for its private use of the water
column and of submerged lands outside of the
preliminarily approved submerged lands easement
for the pipeline itself, the only compensation paid
having been limited to the narrow pipeline corridor
which is made up entirely of land and not having
taken into account the economic benefits to GeorgiaPacific from the ultimate project and purpose. [III,
443-IV, 465, 479-505]
Consistent with the free-form discussion of the
water column in the 2003 Board of Trustees hearing
relating to the proposed pipeline, the Board of
Trustees asserted jurisdiction over the water column
as part of its fiduciary responsibilities to the people
of the State of Florida both before and after passage
of the federal Clean Water Act (Pub.L. 92-500,
October 18, 1972). [III, 359-97]

The Course of the Proceedings

Petitioners filed a Petition for Writ of


Mandamus, including a detailed appendix, with the
Florida Supreme Court on July 2, 2012. [I, 8-V, 745]
Specifically, Petitioners sought a Writ of Mandamus
to force the Trustees of the Internal Improvement
Trust Fund to fulfill their obligations under Floridas
A-98

Public Trust Doctrine, integrated into the Florida


Constitution as Article X Section 11, to evaluate the
public interest associated with private use of portions
of sovereignty lands for paper and pulp mill mixing
zones that might impact the publics rights to use
the affected areas, and to comply with due process to
ensure that the interests of citizens and taxpayers
are protected.
On July 11, 2012, Georgia-Pacific filed a
Motion to Intervene which was granted on May 23,
2013. [V, 746-52] On July 12, 2012, The Public Trust
Environmental Legal Institute of Florida, Inc. filed
an Amicus Curiae Brief in support of the Petitioners.
[V, 753-7]
The Florida Supreme Court has statewide
jurisdiction and had original jurisdiction to issue a
Writ of Mandamus pursuant to Article V, Section
3(b)(8) of the Florida Constitution and Rules
9.030(a)(3) and 9.100(a) of the Florida Rules of
Appellate Procedure. However, on August 23, 2012
this case was transferred to the Circuit Court in Leon
County pursuant to Harvard v. Singletary, 733 So.2d
1020 (Fla. 1999). [I, 7] The Florida Supreme Court
expressly wrote that the transfer should not be
construed as a determination that the transferee
court has jurisdiction .
Chief Judge Charles A. Frances, who assigns
judges and controls dockets in the Second Judicial
Circuit, see Administrative Order 2010-10 and 201208, elected not to reassign the case. On May 23, 2013,
he issued an Order Scheduling Case Management
Conference for June 24, 2014, which was conducted
as scheduled. [V, 803-4] On June 25, 2013, he issued
A-99

an Alternative Writ of Mandamus, finding that


Petitioners mandamus petition was facially
sufficient, giving Respondents and Intervener sixty
days to show cause why the writ should not be issued,
giving Petitioners sixty days thereafter to reply to
Respondents and Interveners responses, and
requiring any motions for summary judgment or
partial summary judgment to be filed within fortyfive days after the close of the pleadings. [V, 807-8]
On August 23 and 26, 2013, respectively,
Respondents and Intervener responded in opposition
to the Alternative Writ of Mandamus and moved to
dismiss. [VI, 809-VII, 1108] On October 21, 2013,
Petitioners filed their reply and motion for summary
judgment. [VIII, 1109-50] On December 5, 2013,
Respondents and Intervener filed their separate
motions for summary judgment and responses
Petitioners motion for summary judgment. [VIII,
1155-1420, 1447-1466]
On February 6, 2014,
Petitioners submitted a response to Respondents
and Interveners motions for summary judgment.
[IX, 1421-46] On February 13, 2014 Chief Judge
Francis heard oral arguments on the motions for
summary judgment and allowed the parties to
submit proposed orders.
At all times, the Trustees have been
represented in the proceedings below by the Florida
Department of Environmental Protection (FDEP)
Office of General Counsel rather than their own
independent legal counsel. Because the negligent
and potentially improper conduct of FDEP staff is
involved, this placed FDEP in an effective position to
control the positions put forward by the Trustees,
A-100

including the proposed order that was submitted to


Chief Judge Francis.

Disposition in the Lower Tribunal

On June 20, 2014, Chief Judge Francis issued


a Final Judgment Denying Petition for Writ of
Mandamus, Denying Petitioners Motion for
Summary Judgment, Granting Respondents and
Intervenors Motions for Summary Judgment, and
Denying in Part and Granting in Part Petitioners
Request for Judicial Notice. [X, 1549-62] The
findings of fact and conclusions of law were virtually
verbatim what had been submitted by FDEP on
behalf of the Trustees. [X, 1536-48] In addition,
introductory sections included in the Final Judgment
were virtually verbatim from the proposed order
submitted by Georgia-Pacific. [X, 1517-35]
In accordance with FDEPs preference, the
Final Judgment has no discussion at all of the public
trust doctrine, which rigidly circumscribes the lawful
conduct of the Trustees. The Final Judgment
discusses National Pollutant Discharge Elimination
System (NPDES) permits issued by FDEP in 2002
and 2012, although it does not describe the particular
mixing zones approved in each, including the 2012
NPDES permits chronic toxicity mixing zone, or
acknowledge that they are for cost-saving purposes.
It has no discussion of the informal 2003 meeting of
the predecessor Trustees pertaining to the pipeline
easement proposal when preliminary approval was
given over the objection of then Attorney General
Charlie Crist. It has no discussion of the quality of
the 2005 constructive notice that was given in the
A-101

Palatka Daily News pertaining to the pipeline

easement, summarily finding that this notice


provided a clear point-of-entry to challenge the
Departments proposed agency action with respect to
the requested sovereign authorization for the
construction of the pipeline. [X, 1556] It concludes
that Appellants have alternative legal remedies of
suing under Section 403.412, Florida Statutes, if they
believe that water quality standards are being
violated and that Appellants are barred from
bringing this mandamus action because they needed
to exhaust available administrative remedies
pertaining to the 2012 NPDES permit available with
FDEP. [1559-61]
SUMMARY OF THE ARGUMENT
No judge of the Leon County Circuit Court
should have been entering any final judgment in this
case because, under the local action rule, the Leon
County Circuit Court lacked subject matter
jurisdiction. The judge from the Leon County Circuit
Court should have transferred the case to Putnam
County Circuit Court, and, even now, that is the
appropriate destination for this case.
If a judge from the Leon County Circuit Court
did have subject matter jurisdiction, the judge would
have needed to rule for Appellants on their motion
for summary judgment. Under no circumstances
should any judge have granted summary judgment
for Appellees.
The people have the right to expect that the
Trustees of public lands will rigorously execute their
public trust and due process responsibilities. That is
A-102

what fiduciaries are supposed to do. Where the


Trustees work through an agent, as here with FDEP,
they must ensure that their agent does the same. It
is easy to see why FDEP would not want the
Trustees, especially now, to begin doing their jobs.
FDEP is not a disinterested staffing entity but an
employer of material witnesses to what may have
been intentional fraud upon the public to circumvent
scrutiny of a private easement for the Georgia-Pacific
waste transfer pipeline.
That pipeline is designed to transfer tons of
toxic waste per day that Georgia-Pacific does not
want on its own property onto the property of the
public. That does not serve the public interest but
rather a private interest of the owners of GeorgiaPacific to make money using public lands as dumping
grounds. FDEP, in its regulatory capacity,
implements a separate statute to countenance crony
capitalism at the expense of a piece of Floridians
common heritage. The public trust doctrine does not
so countenance.
The Trustees must be held accountable in this
case because they and their agent have not acted
responsibly under both the public trust doctrine and
due process. Had the agent FDEP acted responsibly,
if only in the seemingly mundane matter of ensuring
that valid newspaper notice was issued, an
administrative proceeding might have resulted to
find the facts and formulate the Trustees action that
would be in the public interest, consistent with the
Trustees rigorous public trust responsibilities in
relation to Georgia-Pacifics pipeline. Given that the
Trustees are not willing to comply with their public
A-103

trust and due process obligations in relation to


Georgia-Pacific, the judicial branch must make them
do so.

II.

ARGUMENT
***
ASSUMING THE LEON COUNTY CIRCUIT
COURT
HAD
JURISDICTION,
THE
CIRCUIT
JUDGE
ABUSED
HIS
DISCRETION

Standard of Review

Beyond the overarching issue of subject


matter jurisdiction, see Section I., supra, assuming
arguendo the Leon County Circuit Court had
jurisdiction, Chief Judge Francis abused his
discretion.3 Judicial discretion to deny relief in
mandamus proceedings, including in the context of
easements,
public
property,
and
emerging
constitutional doctrines, is not unbridled. See People

of State of Illinois Collum v. Board of Education of


School Dist No 71, Champaign County, Ill, 333 U.S.
203, 68 S.Ct. 461, 92 L.Ed. 649 (1948) (construing the
First and Fourteenth Amendments, U.S. Supreme
Court reversed state appellate court which had

See Rosado v. State, 1 So.3d 1147 (Fla. 4th DCA 2009) (reversed
denial of petition for writ of mandamus to pro se litigant,
3

deeming that court-appointed counsel was obligated to submit


to him, free of charge, documentation from his case file prepared
at the public's expense; An appellate court reviews a trial
court's decision on a petition for writ of mandamus under the
abuse of discretion standard of review. See Topps v. State, 865
So.2d 1253, 1257 (Fla.2004) ("Since the nature of an
extraordinary writ is not of absolute right, the granting of such
writ lies within the discretion of the court.")).

A-104

affirmed denial of petition for mandamus which


alleged that religious teachers, employed by private
religious groups, were permitted to come weekly into
the school buildings; The prayer of her petition was
that the Board of Education be ordered to 'adopt and
enforce rules and regulations prohibiting all
instruction in and teaching of all religious education
in all public schools in Champaign District Number
71, * * * and in all public school houses and buildings
in said district when occupied by public schools.'.);
Nollan v. California Coastal Commission, 483 U.S.
825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987)
(construing the Takings Clause of the Fifth
Amendment, as incorporated against the States by
the Fourteenth Amendment, U.S. Supreme Court
reversed state appellate reversal of writ of
mandamus directing that a permit condition be
struck where California Coastal Commission granted
a permit to appellants to replace a small bungalow
on their beachfront lot with a larger house upon the
condition that they allow the public an easement to
pass across their beach, which was located between
two public beaches).4
In his concurring opinion in In re: Jane Doe 13-A, Case No.
1D13-5458 (Fla. 1st DCA 4-11-2014), Judge Wetherell recently
reviewed the abuse of discretion standard:
The seminal case in Florida discussing the
nature of judicial discretion and the appellate
standard for reviewing discretionary decisions
is Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.
1980). In that case, the Florida Supreme Court
explained that an abuse of judicial discretion
should be found only when no reasonable person
would agree with the lower court's ruling. Id. at

A-105

1203 ("If reasonable men could differ as to the


propriety of the action taken by the trial court,
then the action is not unreasonable and there
can be no finding of an abuse of discretion.").
However, the Court also emphasized that:
The trial court's discretionary
power is subject only to the test
of reasonableness, but that test
requires a determination of
whether there is logic and
justification for the result. The
trial courts' discretionary power
was never intended to be
exercised in accordance with
whim or caprice of the judge nor
in an inconsistent manner.
Judges dealing with cases
essentially alike should reach
the same result. Different
results
reached
from
substantially the same facts
comport with neither logic nor
reasonableness.
Id. (emphasis added); see also Albert v. Miami
Transit Co., 17 So. 2d 89, 90 (Fla. 1944)
("Judicial discretion is a discretion guarded by
the legal and moral conventions that mold the
acceptable concept of right and justice. If this is
not true, then judicial discretion, like equity,
will depend on the length of the judge's foot, the
state of his temper, the intensity of his
prejudice, or perhaps the zeal to reward or
punish a litigant."); Barber v. State, 5 Fla. 199,
206-09 (1853) (Thompson, J., concurring)
(explaining the important role that appellate
review of discretionary decisions plays in
preserving the rule of law and furthering
justice, and citing Lord Coke for the proposition

A-106

Courts must interpret and apply applicable


legal doctrines when they have jurisdiction over a
case. Sometimes bureaucrats fail to safeguard the
public interest. In that situation, typically a wellhealed commercial interest is the beneficiary.5 Such
is the case here. Whether or not FDEP applies its
own water quality regulations correctly, it may not,
as agent for the Trustees, undercut the Trustees
public trust and due process obligations.
The people of Florida are entitled to an
effective remedy, not a stern lecture by the offending
agent that they should tolerate the injustice.6 In this
that "whoever hath power to act at discretion, is
bound by the rule of reason and of law").
In re: Jane Doe 13-A, Case No. 1D13-5458 at pp. 10-11
(Wetherell, J., concurring).
5 This is crony capitalism, which is supposedly rejected by
Georgia-Pacific ownership. [V, 800-2]
6 Particularly where the agent has effectively insulated its
actions from administrative review through an invalid
constructive notice, upon discovery of the situation mandamus
must be available to the people of Florida to remedy the
situation as in the days before administrative review was
routinely available. Such relief should not just be available to
disfavored commercial interests. See State ex rel. Inv. Corp. of
South Fla. v. Board of Business Regulation, 227 So.2d 674, 677
(Fla., 1969) (Under the posture of this case, it is not necessary
for us to decide at this time the scope of the authority of the
Board of Business Regulations, or their power, to adopt the
rules of appellate procedure. Nor is it necessary to decide
whether the Board of Business Regulations has the authority
by appellate review to modify or set aside a discretionary order
of the Division of pari-mutuel wagering setting racing dates.
[I]n the situation here mandamus is an appropriate remedy
available to petitioner.) This is no less the case when public
duties under constitutional provisions approved by the people
of Florida are before a court. See Plante v. Smathers, 372 So.2d

A-107

case, the acceptable concept of right and justice, see


Albert v. Miami Transit Co., 17 So. 2d at 90, is
molded by the public trust and due process doctrines.
With no analysis of these doctrines, Chief Judge
Francis simply adopted FDEPs water quality
regulation only policy preference. FDEP has
pretenses of protecting the river but in reality is
allowing the degrading of the river, plus has the
specific incentive to cover up its ineptitude, if not
outright collusion, with Georgia-Pacific, in its agent
role for the Trustees. FDEP is not the disinterested
agent of the peoples so-called Trustees.7 Where
933 (Fla., 1979) (affirming granting of writ of mandamus to
Common Cause and individuals on the basis that article II,
section 8(a), is self-executing; that candidates for elected
constitutional office must make the full and public financial
disclosure prior to or at the time they qualify; and that, if a
candidate fails to make such disclosure, the secretary of state
must decline to accept the candidate's qualifying papers; Our
form of government is based upon an enlightened choice by an
informed electorate, and in Florida the people have expressly
declared their desire that this information be made available to
them by candidates for elected constitutional office.)
7 All of the Trustees of the peoples sacred trust property were
named as respondents in the petition for writ of mandamus, and
none has risen to the occasion or approached the case as a
trustee deserving of the name. None wishes to discipline his
or her own irresponsible agent and raise the ire of a powerful
transnational company. All of the Trustees, including the
Attorney General, should have recognized this conflict of
interest on the part of FDEP and provided the people of Florida
with their independent investigations of and responses to this
situation. See State ex rel. Shevin v. Yarborough, 257 So.2d 891
(Fla., 1972) (the Attorney General does have status to
represent the State as a consumer and to make all appropriate
effort to hold down the rates and in order to insure a

A-108

public officials do not comply with their public


obligations, denial of petition for writ of mandamus
should not be upheld by an appellate court. Tribune
Co. v. Cannella, 438 So.2d 516, 523 (Fla. 2d DCA
1983) (newspaper publisher obtained writ of
certiorari against trial court's denial of petition for
writ of mandamus to compel release of personnel files
of Tampa police officers, which petitioner requested
pursuant to Chapter 119, Florida Statutes (1981)),
quashed on other grounds, 458 So.2d 1075
(Fla.1984), appeal dismissed, 471 U.S. 1096, 105
S.Ct. 2315, 85 L.Ed.2d 835 (1985).8

continuance of that right peremptory writ should issue to that


end and for that purpose).
8 It is also important to note that this case comes before the
Court not based on a trial establishing the facts concerning the
public interest and FDEPs conduct. Summary judgment is
proper only if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Volusia
County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130
(Fla. 2000). It must clearly appear from the pleadings,
affidavits, depositions, and other evidence in the record that
there is no genuine issue of any material fact and that the
moving party is entitled to judgment as a matter of law. Fla. R.
Civ. P. 1.510(c). The party moving for summary judgment must
establish what the true factual picture is and thereby remove
any serious doubt as to a genuine issue of material fact. Suggs
v. Allen, 563 So. 2d 1132, 1133 (Fla. 1st DCA 1990). This case,
among other things, involves the construction of various legal
documents, including the FDEPs 2005 constructive notice,
which is grossly inadequate and misleading as a matter of law.
Assuming this case is ripe for summary disposition, but see
Section IID., infra, this Court will be making a de novo review
of the pertinent documents. See Volusia County v. Aberdeen at
Ormond Beach, L.P., 760 So. 2d at 130-1.

A-109

A.

The Circuit Judge Failed to Rigidly


Circumscribe the Trustees Authority
by the Public Trust Doctrine

The Trustees want to allow Georgia-Pacific to


use public waters for private good. This is the
opposite of their sacred trust to the citizenry of
Florida. The Trustees public trust authority is
rigidly circumscribed by this common law doctrine
known as the public trust doctrine. 5F, LLC v.
Dresing, __ So.3d __, 39 Fla. L. Weekly D1473, D1476
(Fla. 2d DCA 7/16/2014) (quoting Mariner Props

Dev., Inc. v. Bd of Trs. of the Internal Improvement


Trust Fund, 743 So.2d 1121, 1122 (Fla. 1st DCA

1999)). This authority cannot be stripped from the


State. Id. (citing State ex rel. Ellis v. Gerbling, 47
So. 353, 355 (Fla. 1908)). The states cannot abdicate
general control over such lands and the waters
thereon, since such abdication would be inconsistent
with the implied legal duty of the states to preserve
and control such lands and the waters thereon and
the use of them for the public good. Id. (emphasis
added).
Article X Section 11 of the Florida
Constitution (see also Section 253.001, Florida
Statutes) further expressly mandates that the
Trustees hold all lands under navigable waters in
trust for all people, and that the private use of such
lands be authorized only when not contrary to the
public interest. The crux of the public trust doctrine
issue before the Court is whether the Trustees failed
to perform any of their duties to act as fiduciaries of
this land held in trust for the use and enjoyment of
A-110

its citizens when Georgia-Pacific sought to use the


land for the site of a pipeline to discharge toxic waste
into the St. Johns River in order to save money in its
paper mill operation.
The Trustees position seems to be that the
publics environmental, social, and economic
concerns in the Trustees decision-making process
must be only about what goes on beneath the river
bottom and not take into account what goes on both
on and above the river bottom. This is akin to
suggesting that an absent real property owner would
not care that his or her fiduciary were allowing
potentially tons per day of chronically toxic or
otherwise degraded waste to be left on his or her
property.
It is not the law-making branch of
governments prerogative to allow such an
infringement to the publics traditional rights, and
certainly such intent should not be presumed by the
judicial branch. See State v. Black River Phosphate
Co., 32 Fla. 82, 13 So. 640, 648 (1893). The Trustees
suggest that, as a matter of law, because the
Legislature has not affirmatively acted to give the
Trustees omnibus responsibility for the water
column, only FDEP can be interested in the water
column as it relates to the impacts of pollution, even
if it is clear on the face of FDEP rules that it may be
acting for cost-saving reasons to benefit a private
user in the form of a polluter. See Fla. Admin. Code
R. 62-4.244(1)(a) (mixing zones may be allowed so as
to provide an opportunity for mixing and thus to
reduce the costs of treatment).
While the term water column has not been
A-111

defined in Florida case law it has been referenced by


Florida Courts. See, e.g., Avatar Development Corp.
v. State, So.2d 199 (Fla. 1998); Morton v. Hardwick
Stove Co., 138 So.2d 807 (Fla. 2nd DCA 1961)
(although the Morton case does not involve a water
column as the term is used in this case). For the
purposes of this case the term water column is
understood to mean that section of water above the
subaqueous sovereignty lands held in trust, the
limits of which are defined: on the bottom by the
subaqueous sovereignty lands held in trust; on the
top by the surface of the water; and on the sides by
the borders of the subaqueous sovereignty land held
in trust itself. The term water column is defined in
Section 253.67(4), Florida Statutes, as the vertical
extent of water, including the surface thereof, above
a designated area of submerged bottom land.
However, this definition is only explicitly applicable
to Sections 253.67-253.75. Nevertheless, the term
water column as used in this context is consistent
with the definition provided in Section 253.67(4).
Article X Section 11 of the Florida
Constitution states in whole:
Sovereignty lands.
The title to lands under
navigable waters, within the
boundaries of the state, which
have
not
been
alienated,
including beaches below mean
high water lines, is held by the
state, by virtue of its sovereignty,
in trust for all the people. Sale of
such lands may be authorized by
A-112

whole:

law, but only when in the public


interest. Private use of portions
of such lands may be authorized
by law, but only when not
contrary to the public interest.
Section 253.001, Florida Statutes, states in

Board of Trustees of the Internal


Improvement Trust Fund; duty
to hold lands in trust.
The existence of the Board of
Trustees
of
the
Internal
Improvement Trust Fund is
reaffirmed. All lands held in the
name of the board of trustees
shall continue to be held in trust
for the use and benefit of the
people of the state pursuant to s.
7, Art. II, and s. 11, Art. X of the
State Constitution.
Article II Section 7 of the Florida Constitution
states in part:
(a) It shall be the policy of the
state to conserve and protect its
natural resources and scenic
beauty. Adequate provision shall
be made by law for the abatement
of air and water pollution and of
excessive and unnecessary noise
and for the conservation and
protection of natural resources.
Section 253.12, Florida Statutes, states in
part:
A-113

Title to tidal lands vested in


state.
(1) [T]he title to all
submerged lands owned by the
state by right of its sovereignty in
navigable
freshwater
lakes,
rivers, and streams, is vested in
the Board of Trustees of the
Internal Improvement Trust
Fund.
The provisions of Chapter 253 of the Florida
Statutes:
shall be liberally construed for
accomplishing
the
work
authorized and provided for or
intended to be provided for by
this act, and when strict
construction would result in the
defeat of the accomplishment of
any part of the work authorized
by this act, and a liberal
construction would permit or
assist in the accomplishment
thereof, the liberal construction
shall be chosen.
253.785, Fla. Stat.
Pursuant to Florida Administrative Code Rule
18-21.005:
(1) It is the intent of the Board
that the form of authorization
shall grant the least amount of
interest in the sovereignty
submerged land necessary for the
A-114

activity. For activities not


specifically listed, the Board will
consider the extent of interest
needed and the nature of the
proposed activity to determine
which form of authorization is
appropriate.
(e)
Easement.
A
sovereignty
submerged
land easement is required
for the following public or
private activities.
6. Oil, gas and other
pipelines.
7.
Intake
and
discharge
structures
more
than
10
feet
waterward of the
mean or ordinary
high water line.
(3) Requests for easements on
sovereignty submerged lands
shall be processed in accordance
with the notice and hearing
requirements of Section 253.115,
F.S.
Section 253.115s notice and hearing
requirements include:
(1) After receiving an application in
compliance with such forms as may be
required by this chapter requesting the
board to grant an easement on, over,
A-115

under, above, or across any land to


which it holds title, the board must
provide notice of the application.
(2) If the board of trustees, the
department, or a water management
district, as is appropriate, determines
that the sale, lease, exchange, or
granting of an easement is not contrary
to the public interest, or is in the public
interest when required by law, it may
approve the proposed activity.
(Emphasis added.) Thus Chapter 253, Florida
Statutes, makes it explicit that when presented with
a request for an easement for a private use of space
on, over, under, or above sovereignty land, the
Trustees shall determine that the granting of the
easement is not contrary to the public interest, and
only then may it approve the proposed activity.
Florida Administrative Code Rule 18-21.004
further sets out criteria the Respondents must
analyze in determining whether to grant an
easement for use of sovereignty land. It states in
part:
The
following
management
policies, standards, and criteria
shall be used in determining
whether to approve all
requests
for
activities
on
sovereignty submerged lands
(1) General Proprietary.
(a) For approval, all
activities
on
A-116

sovereignty lands
must
be
not
contrary to the
public
interest,
except for sales
which must be in
the public interest.

(e)
Equitable
compensation shall
be required for
easements which
limit or preempt
general public use.
(7) General Conditions for
Authorizations.
All
authorizations granted by
rule or in writing under
Rule 18-21.005, F.A.C.,
except
those
for
geophysical testing, shall
be subject to the general
conditions as set forth in
paragraphs (a) through (i)
below.
The
general
conditions shall be part of
all authorizations under
this chapter, shall be
binding upon the grantee,
and shall be enforceable
under Chapter 253 or 258,
Part II, F.S.
(a) Authorizations
A-117

are valid only for


the
specified
activity or use. Any
unauthorized
deviation from the
specified activity or
use
and
the
conditions
for
undertaking
that
activity or use shall
constitute
a
violation. Violation
of the authorization
shall
result
in
suspension
or
revocation of the
grantees use of the
sovereignty
submerged
land
unless cured to the
satisfaction of the
Board.
(b) Authorizations
convey no title to
sovereignty
submerged land or
water column, nor
do they constitute
recognition
or
acknowledgment of
any other persons
title to such land or
water.
A-118

(Emphasis added.)
The role of the Trustees is to manage
sovereignty land for the beneficiaries, i.e. the public,
not the private user. Morgan Stanley DW Inc. v.
Halliday, 873 So. 2d 400, 404 (Fla. 4th DCA 2004). A
landowner owns at least as much of the space above
the ground as they can occupy or use in connection
with the land. U.S. v. Causby, 328 U.S. 256, 66 S.Ct.
1062, 1067, (1942) (citing Hinman v. Pacific Air
Transport, 9 Cir., 84 F.2d 755). The fact that he does
not occupy it in a physical senseby the erection of
buildings and the likeis not material. Id.9
9

Florida courts have recognized the controlling precedent of

U.S. v. Causby on a number of occasions. See, e.g., Fields v.


Sarasota-Manatee Airport Authority, 512 So.2d 961 (Fla. 2nd
DCA 1987); Hillsborough County Aviation Authority v. Benitez,
200 So.2d 194 (Fla. 2nd DCA 1967) (citing Griggs v. Allegheny
County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962) which
itself summarized Causby as stating, the use of land

presupposes the use of some of the airspace above it.). These


cases involve a landowners right to prevent anothers
interference with the landowners use of the material above
his/her land. There are many similar but distinct cases that
involve a landowners right to the material above, and below,
his/her land. See, e.g., Village of Tequesta v. Jupiter Inlet
Corporation, 371 So.2d 663 (Fla. 1979) (holding that the
English rule which held to whomsoever the soil belongs, he
owns also to the sky and to the depths was replaced by the socalled American or reasonable use rule which holds use
your own property so as not to injure that of another); Koch v.
Wick, 87 So.2d 47 (Fla.1956); Cason v. Florida Power Co., 74
Fla. 1, 76 So. 535 (Fla. 1917); Bassett v. Salisbury
Manufacturing Co., 43 N.H. 569 (1862). Nonetheless, the
Florida Supreme Court reiterated in Village of Tequesta that
[t]he right of the owner to ground water underlying his land is

A-119

The public trust doctrine is an ancient legal


stewardship doctrine protecting the publics interest
in public lands and waters. It has evolved and
expanded over 1,500 years and has been continually
recognized and enforced by Florida courts. The
doctrine holds that there are certain lands and
waters which are sovereign and are held in trust for
the equal benefit for all the people. Some private use
of the trust assets may be allowed, but only if the
proposed private use is not contrary to the public
interest. See generally, Brickell v. Trammell, 82 So.
221, 226 (Fla. 1919); State v. Black River Phosphate
Co., 13 So. 640, 644 (Fla. 1893)).
Taken together, Article X Section 11 of the
Florida Constitution, Sections 253.01 and 253.12,
Florida Statutes, as well as long-standing legal
principles stand for the proposition that the Trustees
have a constitutional duty to control the use of the
water column above the subaqueous sovereignty
lands held in trust. Thus, private use of the water
column above the subaqueous sovereignty lands held
in trust may be authorized by the Respondents, but
only when not contrary to the public interest. Art.
X Sec. 11. Fla. Const. The Office of the Governor of
Florida, one of the parties that makes up the
to the usufruct of the water and not to the water itself
(emphasis added), usufruct being defined as a right to use
and enjoy the fruits of anothers property for a period without
damaging or diminishing it. Thus, Florida recognizes the longstanding property law principle that the ownership of a
particular piece of land, here sovereign submerged land,
presupposes the use of the material, here water, above it, and
that this is a separate and distinct issue from whether that
landowner owns the water above his/her land.

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Appellees in this case, has acknowledged that the


state has jurisdiction over the water column. On July
2, 1971, The Governor mentioned the states position
that it had jurisdiction over the water column .
Board of Trustees Minutes, 7/2/1971.10 [III, 372-83]
Moreover, Chapter 253, Florida Statutes,
itself recognizes that the Respondents have authority
over the space above the subaqueous sovereignty
land held in trust. Section 253.665(1) states that the
Board of Trustees of the Internal Improvement
Trust Fund of this state is authorized and
empowered to grant unto riparian owners
easements permitting such riparian owners to
construct, maintain and operate structures and
facilities on, in and under the bed of any navigable
stream or any river owned in whole or in part by the
state . And explicitly, Section 253.68(1) states:
To the extent that it is not
contrary to the public interest
the board of trustees may lease or
authorize the use of submerged
lands to which it has title for the
The notion that the public trust doctrine applies above
subaqueous sovereignty land held in trust is also followed in
other jurisdictions. In Palmer v. Commonwealth of Virginia
Marine Resources Commission, 48 Va. App. 78, 628 S.E.2d 84
(2006 Va. App.), the Virginia Marine Resources Commission
informed a private landowner who had built a shed at the end
of his pier that his pier was in violation of the public trust
doctrine and must be removed. The Court ruled in favor of the
Virginia Marine Resources Commission and held that the
Commonwealth had a right to control all structures built over
subaqueous land, even where those structures do not actually
touch the land itself.
10

A-121

conduct of aquaculture activities


and grant exclusive use of the
bottom and the water column to
the extent required by such
activities. Such leases or
authorizations may permit use of
the submerged land and water
column for either commercial or
experimental purposes. Prior
to the granting of any such leases
or authorizations, the board shall
by rule establish and publish
guidelines to be followed when
considering applications for lease
or authorization. Such guidelines
shall be designed to protect the
publics interest in submerged
lands and the publicly owned
water column.
(Emphasis added.) While this particular section
relates to aquaculture activities, of which
discharging paper mill effluent is not included, it is
clear that the Florida Legislature has itself
recognized the Respondents authority and
responsibility of managing the water column above
these subaqueous sovereignty lands held in trust in
such a manner as to protect the publics interest in
submerged lands and the publicly owned water
column.11
11 That both sovereignty lands and the associated water column
are to be protected by the Trustees as fiduciaries under the
Public Trust Doctrine is supported by the language in the
aforementioned provisions, e.g.:

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Respondents may delegate to the FDEP


authority over sovereignty lands and the water
column above these subaqueous sovereignty lands
held in trust as Section 253.002 states in part,
Department of Environmental
Protection, water management
districts, Fish and Wildlife
Conservation Commission, and
Department of Agriculture and
Consumer Services; duties with
respect to state lands.
(1) The
Department
of
Environmental Protection shall
perform all staff duties and
functions
related
to
the
acquisition, administration, and
disposition of state lands, title to
-Section 253.67(4) defines water column
as the vertical extent of water,
including the surface thereof, above a
designated area of submerged bottom
land.;
-Florida Administrative Code Rule 1821.004(7)(b)
recognizes
sovereign
submerged land as something distinct
from the water column when it states,
[a]uthorizations convey no title to
sovereignty submerged land or water
column.
But it is also supported by common sense. A pipeline could be
used to transport effluent across the entirety of the bottom of a
river like the St. Johns, from one side of the river to the other
with its endpoint somewhere beyond the far bank of the river.
And thus a pipeline does not necessarily dump its contents into
the water column even though the pipeline itself rests on
sovereign submerged land.

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which is or will be vested in the


Board of Trustees of the Internal
Improvement Trust Fund.
Unless expressly prohibited by
law, the board of trustees may
delegate to the department any
statutory duty or obligation
relating to the acquisition,
administration, or disposition of
lands, title to which is or will be
vested in the board of trustees.
However, the board of trustees
shall retain the authority to take
final
agency
action
on
establishing any areas for
leasing, new leases, expanding
existing lease areas, or changing
the type of lease activity in
existing leases.12
The FDEP has been given statutory authority to establish
reasonable mixing zones in the St. Johns River.
403.061(11), Fla. Stat. However, this duty is separate and
distinct from the Constitutional duty (originally bestowed to the
Trustees but potentially delegated by the Trustees to FDEP) to
make a determination that the Interveners private use of the
water above the subaqueous sovereignty lands held in trust is
not contrary to the public interest as required by Article X
Section 11 of the Florida Constitution. The FDEPs duty to
establish reasonable mixing zones is pursuant to Chapter 403
of the Florida Statutes, the Florida Air and Water Pollution
Control Act. 403.011, Fla. Stat. The provisions of this act
were enacted in the exercise of the police powers of this state
for the purpose of protecting the health, peace, safety, and
general welfare of the people of this state. The FDEP was
given original authority to establish reasonable mixing zones
12

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The public trust duty at issue in this case,


i.e., to make a determination that Georgia-Pacifics
private use of the water above the subaqueous
sovereign land is not contrary to the public interest,
is originally with the Trustees pursuant to Article X
Section 11 of the Florida Constitution and Chapter
253 of the Florida Statutes, and only via separate
action by the Trustees may that authority be
delegated to the FDEP under Section 253.002,
Florida Statutes. Moreover the provisions of Chapter
253, Florida Statutes, were enacted [f]or the purpose
of assuring the proper application of the Internal
Improvement Trust Fund and the Land Acquisition
Trust Fund. 253.02(1), Fla. Stat. Thus, FDEPs
regulatory authority to establish mixing zones is
irrelevant to the proprietary responsibilities at issue
here.
The Trustees, or the FDEP if so delegated,
shall perform, and discharge all duties, and
obligations of their trust over sovereignty lands.
253.02(1), Fla. Stat. (emphasis added). These duties
and obligations include authorizing [p]rivate use of
portions of such lands but only when not contrary
to the public interest. Art. X, 11, Fla. Const.
Neither the Trustees, nor the FDEP if so delegated,
may abdicate their fiduciary responsibilities under
the public trust doctrine, as reiterated in Article X
Section 11 of the Florida Constitution and Chapter
253 of the Florida Statutes, and fail to review
whether the private use of the water above the
directly by Sections 403.031(2) and 403.061, not through a
delegation of authority by the Respondents.

A-125

subaqueous sovereignty lands held in trust is


contrary to the public interest.
B.

The Circuit Judge Overlooked Due


Process,
Which
Also
Rigidly
Circumscribes the Trustees Authority,
and Which Does Not Sanction Binding
the People of Florida through Defective
Constructive Notice of Approval of a
Private Easement on Public Trust
Lands
The Trustees obligations by their own rules
include, but are not limited to, taking a careful and
wide-ranging analysis of the public interest,
considering all demonstrable environmental, social,
and economic costs of the ultimate project and
purpose to be served.13 In determining the public
interest, the Trustees obligations also include
ensuring that the people, including Appellants, are
afforded due process.

13

Florida Administrative Code Rule 18-21.003(51) states:


Public
interest
means
demonstrable
environmental, social, and economic benefits
which would accrue to the public at large as a
result of a proposed action, and which would
clearly exceed all demonstrable environmental,
social, and economic costs of the proposed
action. In determining the public interest in a
request for use, sale, lease, or transfer of
interest in sovereignty lands or severance of
materials from sovereignty lands, the board
shall consider the ultimate project and purpose
to be served by said use, sale, lease, or transfer
of lands or materials.

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Due process includes, but is not limited to,


clear and understandable notice that a common
citizen without legal training would be likely to
understand of the opportunity to be heard and
challenge any preliminary approval by the Board of
Trustees. It is not an opportunity for an agent of the
Trustees to use artifice to hide these very rights from
the people of Florida so as to manufacture a colorable
title for Georgia-Pacific. Due process requires
actually trying to inform the affected members of the
public, not confusing, misleading, or overwhelming
the public with cryptic information.
Importantly, for present purposes, due process
requirements are a matter for the judicial branch to
define. See Jones v. Flowers, 547 U.S. 220, 229 (2006)
(In Mullane, we stated that when notice is a
persons due [t]he means employed must be such
as one desirous of actually informing the absentee
might reasonably adopt to accomplish it, 339 U. S.,
at 315, and that assessing the adequacy of a
particular form of notice requires balancing the
interest of the State against the individual interest
sought to be protected by the Fourteenth
Amendment, id., at 314.).
In Nelson v. Wakulla County, 985 So. 2d 564,
576-7 (Fla. 1st DCA 2008), the First District, in
construing class action notice requirements,
explained how a notice meeting due process should
be worded. It stated:
In class action litigation, due
process requires that the absent class
members be afforded notice of the suit,
an opportunity to be heard and
A-127

participate in the litigation, and, in


actions for damages, a chance to opt out
of the litigation. Judges effectively
serve as guardians of the interests of
absent class members in class actions,
assuring that their interests are not
sacrificed.
Significant
due
process
protection extends to settlement in class
action litigation, including expanded
oversight by judicial officers to protect
the interests of absent class members
against trade-off or unfair compromise.

[T]he notice must be worded concisely


and clearly, in plain, easily understood
language; it should be drafted in a way
that it is understandable by the people
to whom it is directed.

(Citations omitted; emphasis added.) The trial court


also was upheld with respect to its finding fault with
notices and forms which make the settlement
proposal appear to be a done deal, with the only
option available to the recipient being to accept it and
file a claim. 985 So.2d 564; see also Newberg on
Class Actions, Ch. 8 (5th ed.). Members of the public
who might be concerned about the Georgia-Pacific
discharge made possible by the Board of Trustees
grant of a private easement should not be expected to
decipher and take legal action based on the abovereferenced vague and misleading newspaper notice

A-128

required by the Trustees agent FDEP.14


Florida Administrative Code Rule 1821.00401, within the Trustees rules, acknowledges
APA applicability:
(4) For an application reviewed
under this section for which the request
for proprietary authorization to use
sovereign submerged lands has not
been delegated to the Department or a
water management district to take final
action without action by the Board, the

application shall be reviewed and final


agency action taken in accordance with

the
procedures
in
Sections
373.427(2)(a)-(c), F.S.
(5) Upon the issuance of the
consolidated notice of intent to issue or
deny, or upon issuance of the
recommended consolidated notice of
intent to issue or deny pursuant to
subsection (4), the Department or water
management district shall be deemed to
be in compliance with the timeframes

The First District long has expressed the need for clear
points of entry. See McDonald v. Department of Banking and
Finance, 346 So.2d 569, 578 n. 5 (Fla. 1st DCA 1977); Capeletti
Bros. v. State, 362 So. 2d 346, 348 (Fla. 1st DCA 1978), cert.
denied, 368 So.2d 1374 (Fla. 1979); General Dev. Utils. v. Fla.
Dep't of Envtl. Regulation, 417 So. 2d 1068, 1070 (Fla. 1st DCA
1982). This is inconsistent with a possible point of entry buried
deep within a newspaper notice that appears to be about
something else, i.e., an FDEP permit, and even evidenced that
a decision had already been made about the private easement
issues by the decision-maker, the Board of Trustees.
14

A-129

for approval or denial in Section


120.60(1), F.S. Failure to satisfy these
timeframes shall not result in approval
by default of the application to use
sovereign submerged lands. Also, if an
administrative
proceeding
under
Section 120.57, F.S., is properly
requested on both the proprietary
authorization and the environmental
resource permit or the wetland resource
permit under this section, the review
shall be conducted as a single
consolidated administrative proceeding.

If an administrative proceeding under


Section 120.57, F.S., is properly
requested on either: the proprietary
authorization; or the environmental
resource permit or the wetland resource
permit under this section; final agency

action shall not be taken on either


authorization until the administrative
proceeding is concluded.

(Emphasis added.)15

Section 373.427(2)(a)-(c), Florida Statutes, further


demonstrates that the Trustees have failed to meet procedural
requirements:
(2) In addition to the provisions set
forth in subsection (1) and notwithstanding s.
120.60, the procedures established in this
subsection shall apply to concurrently reviewed
applications
which
request
proprietary
authorization to use board of trustees-owned
submerged lands for activities for which there
has been no delegation of authority to take final
15

A-130

agency action without action by the board of


trustees.
(a) Unless waived by the applicant,
within 90 days of receipt of a complete
application, the department or water
management
district
shall
issue
a
recommended consolidated intent to grant or
deny on all of the concurrently reviewed
applications,
and
shall
submit
the
recommended consolidated intent to the board
of trustees for its consideration of the
application to use board of trustees-owned
submerged
lands.
The
recommended
consolidated intent shall not constitute a point
of entry to request a hearing pursuant to ss.
120.569 and 120.57. Unless waived by the
applicant, the board of trustees shall consider
the board of trustees-owned submerged lands
portion of the recommended consolidated intent
at its next regularly scheduled meeting for
which notice may be properly given, and the
board of trustees shall determine whether the
application to use board of trustees-owned
submerged lands should be granted, granted
with modifications, or denied. The board of

trustees shall then direct the department or


water management district to issue a notice of
intent to grant or deny the application to use
board of trustees-owned submerged lands.

Unless waived by the applicant, within 14 days


following the action by the board of trustees, the
department or water management district shall
issue a notice of consolidated intent to grant or
deny on the application to use board of trusteesowned submerged lands, in accordance with the
directions of the board of trustees, together with
all of the concurrently reviewed applications.
(Emphasis added.)
The FDEP notice of intent to issue permit was not a

A-131

The clear and unmet legal duty of the Trustees


to ensure that their agent FDEP gave newspaper
notice that meets due process by itself was enough to
require granting of mandamus to Appellants.
Depending on the issue, the Trustees could consider
the qualified biological opinions of FDEP. See Fla.
Admin. Code R. 18-21.004(2)(c) (The Department of
Environmental Protection biological assessments
and reports by other agencies with related statutory,
management, or regulatory authority may be
considered in evaluating specific requests to use
sovereignty lands. Any such reports sent to the
department in a timely manner shall be
considered.). However, that does not dispense with
the need to comply with due process, including all
administrative law requirements. Moreover, public
trust responsibility is not limited to biological or
even environmental issues but also may include
social and economic issues. See Fla. Admin. Code
notice of intent to grant or deny the application to use board of
trustees-owned submerged lands, the latter of which the
Trustees have yet to direct issuance. After members of the
public are given the opportunity to request an administrative
hearing, the recommended order is required to go back to the
Trustees a second time for approval of a final order. 373.427(c),
Fla. Stat. (the board of trustees shall determine what action to
take on any recommended order issued under ss. 120.569 and
120.57 on the application to use board of trustees-owned
submerged lands, and shall direct the department or water
management district on what action to take in the final order
concerning the application to use board of trustees-owned
submerged lands Any provisions relating to authorization to
use board of trustees-owned submerged lands shall be as
directed by the board of trustees. ).

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R. 18-21.003(51) (Public interest definition).16


C.

The Circuit Judge Left the People of


Florida with No Remedy Against Their
Own Negligent Trustees and Wrongly
Limited the People of Florida to
Lawsuits Enforcing Water Quality
Standards and Permit Challenges
Chief Judge Franciss conclusion of law that
Appellants have other available remedies is
incorrect circular reasoning as a matter of law. This
is merely a restatement of FDEPs policy desire that
water quality standards, including the giant costsaving degradation loopholes called mixing zones,
should be deemed contemporaneous with public
interest. Hence, the Section 403.412(2)(a)1 and 2
remedies identified by FDEP, and adopted in Chief
Franciss Final Judgment, are to seek to compel
enforcement of the Departments water quality
standards and to enjoin any violation of the
mixing zones established in the NPDES permit.
Similarly, the supposed administrative remedy of
challenging the NPDES permit would have merely
Because of the failure of FDEP to give constitutionallyacceptable constructive notice of its private easement for the
pipeline, the Court need not consider whether in some cases a
second legal authorization will be needed to cover
intentionally-degraded areas of the river. Georgia-Pacific still
has not received a first legal authorization. Consideration of
the degradation areas can be rolled into consideration of any
legal authorization for the pipeline that may come in the future.
For now, the Georgia-Pacific pipeline itself is illegal, and
Georgia-Pacific and FDEP, which are both highly sophisticated
entities, only have themselves to blame for any hardship.
16

A-133

obtained implementation of mixing zone and other


regulations FDEP itself claims allow GeorgiaPacifics free toxic dumping.17
D.

The Circuit Judge Presumed That


Dumping From the Illegally-Approved
Structure Is Not Harmful and
Overlooked
Apparent
Corruption
Involving the Trustees Agent, Which
Issued the Defective Constructive
Notice
Because Georgia-Pacifics mixing zones by
definition degrade a defined area of the river, in this
case with toxic waste, the claim by FDEP that this
degradation is speculation and that the people of
Florida should be willing to swim, fish, and recreate
in toxic waste shown to harm riverine life, implicitly
adopted by Chief Judge Francis, at most would raise
a disputed issue of material fact. The right approach
is to insist that the Trustees evaluate the
truthfulness of FDEPs contention, subject to
None of these remedies would ensure that the public trust
doctrine has been met and that due process rights are protected.
The people are entitled, among other things, to a careful,
detailed, and administratively cognizable public interest
assessment by the Trustees of the costs and benefits of the
ultimate project, which would include not only the pipeline itself
but also the intentionally-degraded areas adjacent to the
pipeline. Nor would Section 403.412, Florida Statutes recover
one penny of the profits and cost-savings obtained by GeorgiaPacific through the use of the pipeline and associated areas as
dumping grounds. Dumping on public property should not be
encouraged and never be free, and Trustees who wish to allow
avoidable and free dumping should not only make their desires
known but also be subject to administrative challenge.
17

A-134

administrative proceedings. Similarly, if FDEP is


now for the first time contending that it did not in
fact collude with Georgia-Pacific to rig the defective
constructive notice, FDEP should be given every
opportunity to explain itself to the public and the
Trustees. It has not remotely done so. If fiduciary
responsibility means anything it means that the
Trustees is responsible for both the negligence and
the corruption of its agent. The Trustees failure to
hold FDEP accountable is merely more evidence of
their failures in their public trust and due process
obligations.
CONCLUSION
The Leon County Circuit Judges Final
Judgment should be reversed and remanded based
on lack of subject matter jurisdiction, with directions
to transfer the case to Putnam County Circuit Court.
In the event the Court finds that the Leon
County Circuit Judge had subject matter
jurisdiction, it should reverse the Final Judgment
and remand for entry of final summary judgment in
favor of Appellants requiring that the Trustees meet
their fiduciary obligations under the public trust
doctrine and due process. The Leon County Circuit
Judge also overlooked disputed issues of material
fact that prevent, under any set of circumstances, a
ruling that the Trustees have met their fiduciary
obligations to the people.
The Trustees have abdicated their public trust
and due process responsibilities in favor of
acquiescence in the ineptitude if not outright
corruption of their agent FDEP with respect to
A-135

Georgia-Pacific. They have failed to enforce


rigorously the public trust doctrine and due process
in the protection of the public interest. Even today
they are allowing their agent FDEP to subvert their
own continuing responsibilities, to cover up its own
questionable conduct, and to hold up inapposite
remedies as ameliorative.
No sensible private land owner would want
toxic waste dumped on its property, especially for
free. The people have the right to expect that their
Trustees will be at least this sensible with public
trust property, and if they fail to do so, fully
answerable in accordance with due process for
breaching their fiduciary responsibilities.
Respectfully submitted on this 28th day of
October, 2014.
Steven A. Medina
Attorney
Florida Bar No. 370622
P.O. Box 1021
Shalimar, Florida 32579
Phone: 850.621.7811
Fax: 850.362.0076
stevenamedina@yahoo.com
ATTORNEY FOR
APPELLANTS
***

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