petition for writ of mandamus - static...
TRANSCRIPT
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, and
FLORIDA CLEAN WATER
NETWORK, 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 Florida residing in
Duval County, ENVIRONMENTAL YOUTH COUNCIL ST. AUGUSTINE
(“EYC”), an unincorporated Florida association, and FLORIDA CLEAN WATER
NETWORK, INC. (“FCWN”), 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 Fund1 (“Trustees”). Petitioners Ahlers and Armingeon
and substantial numbers of members of EYC and FCWN are beneficiaries of the
constitutional public trust with rights to fish, swim, and other lawful uses in the
entire St. Johns River. These public uses are under imminent threat in defined
areas of the St. Johns River through the failure of the Trustees to require that
private easements be obtained for mixing zones used in association with pulp or
paper mill pipelines.
“Mixing” of pollutants within a defined area of the St. Johns River is
“private use” of the river that can only be authorized by the Trustees. The Trustees
may not ignore that as trustees they have sovereign responsibility over all private
uses, including mixing of pollutants, occurring on sovereignty lands. The Trustees
cannot by Florida Administrative Code Rule 18-21.002(1) hide behind any
ostensible vesting of responsibility for “water quality protection on sovereignty
and other lands … with the [Florida] Department of Environmental Protection”
1 Under Article IV, Section 4(f) of the Florida Constitution, “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.” By
statute, the Trustees acting in this joint capacity have been designated as the
“Board” of Trustees of the Internal Improvement Trust Fund. § 253.001, Fla. Stat.
This petition is intended to encompass the Trustees acting both individually as
Trustees and collectively as the Board of Trustees of the Internal Improvement
Trust Fund. This case is styled consistent with the Constitution’s terminology.
(“FDEP”). FDEP does not own the sovereignty lands, the Trustees do, in trust for
the all the people of this state. Nor does FDEP purport to authorize private
easements or other proprietary authorization for mixing zones. The result of this
“vest into non-existence” approach to sovereign obligations is a gaping proprietary
hole that threatens the St. Johns River and the public trust rights of Petitioners.
This approach to mixing zones will result in degradation of defined areas of the
river in favor of private use of these areas without an easement for the private use
of these areas. FDEP expressly allows degradation in mixing zones based on its
own rule adopted under a non-proprietary regulatory program and does not even
purport to require an easement for mixing zones.
The need for Trustee accountability is acute in relation to the planned use of
several private degradation areas on the river that will be emanating from a paper
mill pipeline in the very near future. The private degradation areas are so-called
“mixing zones” adjacent to a paper mill pipeline being constructed out into the
middle of the river where the mixing zone boundaries have been described by the
Florida Department of Environmental Protection (“FDEP”) 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.2 “[A] limited
2 Petitioners are not seeking relief in this petition concerning mixing zones
unrelated to paper or pulp mill pipelines, effects outside of mixing zones, thermal
discharges, or nitrogen or phosphorus acting as nutrients. Although non-thermal
defined region” by FDEP rule can be degraded “to reduce the costs of treatment.”
Fla. Admin. R. 62-4.244(1)(a).
The Trustees’ constitutional, statutory, and rule duties include carefully
reviewing these private degradation areas to ensure that they are not contrary to the
public interest and that they only receive Trustee authorization in accordance with
Florida law. Despite Article X, Section 11 of the Florida Constitution allowing
authorization of private use of sovereignty lands only if not contrary to the public
interest, the Trustees to date have not required private use of sovereignty lands for
degradation areas related to paper or pulp mill pipelines to be not contrary to the
public interest or even to be the subject of proprietary review and authorization.
Petitioners respectfully seek expedited resolution of this petition. Petitioners
recently learned that the pipeline project with several degradation areas relating to
the Georgia-Pacific paper mill in Putnam County is expected to be completed
within months.3 The project will privately use and degrade defined portions of the
components of discharges do travel to sovereignty lands beyond mixing zones, for
purposes of this facial challenge Petitioners assume FDEP has properly delineated
the areas that will actually be degraded. Petitioners are not aware of nutrient or
thermal mixing zones being contemplated for paper or pulp mill pipeline projects.
Nutrient effects, such as algae blooms, typically occur outside of defined mixing
zones. Certain thermal outfalls can involve winter refuges for manatees whose
elimination may be harmful. 3
[Pet. App. 00000008-9] At least one other paper or pulp mill pipeline project (the
Buckeye project in Taylor County) also would involve degradation zones on
sovereignty lands (the lower Fenholloway River and estuarine waters entering the
Gulf of Mexico). However, it is the imminent private use of degradation zones
St. Johns River, which has been designated an American Heritage River. The
Trustees to date have performed no public interest analysis of these degradation
zones. Based on conditional information, their predecessors in office only granted
an easement for the relatively narrow corridor of sovereignty lands directly
disturbed in pipeline construction.4 This is only a small fraction of the sovereignty
lands that will be privately used and allowed by FDEP mixing zones to be
degraded. By this fall the paper mill is expected to begin privately using
sovereignty lands in the heart of the slow-moving St. Johns River for mixing
degrading components of tens of millions of gallons per day of paper mill
discharge. The degrading components will be discharged in both up and down
stream directions a few inches from the river bottom. The discharge will occur
from a 1000-foot long diffuser structure placed on the pipeline.
Ignoring the degrading private use of sovereignty lands associated with the
mixing zones is a breach of fiduciary responsibility and amounts to
related to the Georgia-Pacific pipeline project that justifies this Court immediately
addressing the Trustee’s obligations. 4 The private easement for the pipeline construction corridor was approved by a
prior Governor and Cabinet operating with limited information provided by the
FDEP that did not even include the mixing zones. Long after the prior Trustees
approved the private pipeline easement itself, studies have now been undertaken
that allowed FDEP to determine the specific degradation zones that it would
authorize. Until recently, it was even unclear if the pipeline actually would be
constructed. Petitioners have given notice of their intent to file this petition to the
current Trustees in an attempt to resolve this matter without judicial intervention
because of the possibility that they were unaware of the situation.
unconstitutional in-kind corporate welfare by implied fiat. The Trustees have never
approved the Georgia-Pacific degradation zones. The existing Georgia-Pacific
private pipeline construction easement does not purport to apply to the zones.
When put into use, the paper mill’s 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 constitutionally-protected public
uses. The appraisal for the pipeline easement on its face did not cover the mixing
zones, which had not even been authorized. Assuming that equitable compensation
was obtained for the pipeline itself, none has ever been obtained for the mixing
zones. In effect, the Trustees would be giving an additional much larger private
easement away to a paper company to save the company money and without
obtaining equitable compensation for the beneficiaries of the trust if the pipeline
were to proceed without action on their part.
Most troubling, money cannot compensate the citizens of Florida for the
creation of what are likely to become long-term if not permanent paper mill
degradation areas in the middle of the St. Johns River. Inaction by the Trustees
would allow this private degrading use of sovereignty lands regardless of whether
it in whole or in part might be contrary to the public interest. The mere fact that
FDEP, under a regulatory cost-saving program, approves degradation zones related
to a paper mill pipeline does not satisfy the Trustee’s separate and independent
fiduciary obligation to safeguard the public trust under the Florida Constitution,
statutes, and rules. This Court should take action to ensure that the Trustees do
their job before the private paper mill degradation of sovereignty lands 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. The Trustees are acting ultra
vires and in violation of the public trust as mandated in the Florida Constitution by
not exercising their own independent proprietary responsibility to protect the river
from unauthorized private use. 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) (“Acquiring sites, erecting and equipping public school buildings would
without question be a public free school purpose. 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 vehicle
for addressing claims of unconstitutionality ‘where functions of government will
be adversely affected without an immediate determination.’”); Chiles v. Phelps,
714 So.2d 453, 455 (Fla. 1998) (mandamus and quo warranto appropriate where
the Governor sought mandamus challenging the Legislature’s 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 candidate’s
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).
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 position‘s
constitutional authority”). Although not required for the Court to exercise its
jurisdiction, Petitioners will be injured in their public rights and have a real,
personal, and immediate need for the Court to exercise its jurisdiction to enforce
and protect their public rights. Citizens including Petitioners Ahlers and
Armingeon and substantial numbers of members of EYC and FCWN are facing
imminent and long-lasting harm to their public rights to use and enjoy the trust
lands in the St. John River that will be degraded by mixing zones for no other
reason than to save Georgia-Pacific money. Likewise, fish and wildlife which use
this public property and are enjoyed by citizens including Petitioners should not be
left to suffer the degrading consequences of Trustee inaction in the face of
constitutional, statutory, and rule duties to act. Urgent access to the courts should
not be closed 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.”).
This is not a case where Petitioners have an administrative remedy and
therefore must seek an exception to the discretionary exhaustion of administrative
remedies doctrine. The Trustees have not instituted action to grant a private
easement to the now FDEP-authorized mixing zones. Their predecessors only
reviewed a private easement for the pipeline corridor and never reviewed the
mixing zones, which were not authorized by FDEP until years later. Rather, this is
a case where the Trustees are, thus far, failing to assert their constitutional
authority and carry out their constitutional duties. There is no administrative
remedy to exhaust because the Trustees are unconstitutionally electing not to
require a private easement for the mixing zones.
This is not a case where the Trustees are wrongly attempting to exercise or
expand their jurisdiction but rather where they are not exercising it at all.
Nonetheless, applying the three-factor exception to exhaustion of administrative
remedies test expressed in State of Florida, Department of Environmental
Regulation v. Falls Chase Special Taxing District, 424 So.2d 787, 795-6 (Fla. 1st
DCA 1982), (1) degradation of the river will by definition occur within the mixing
zones due to the Trustees’ inaction; (2) there is clarity that the Trustees’ have not
heretofore exercised their responsibility for protecting sovereignty lands with
respect to pulp and paper mill pipeline-related mixing zones; and (3) the Trustees
themselves have no special administrative understanding of the issues that is
superior to that of the Court. The Court is well-positioned to consider the proper
application of the public trust protections to navigable waters as it has been doing
for more than a century. The Court has a long history of resolving issues pertaining
to the public trust over navigable waters to ensure that public rights do not suffer
due to procedural misunderstandings or confusion. 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”). Moreover, a hypothetical administrative law judge somehow obtaining
jurisdiction because of a hypothetical point of entry over a non-existent proposed
Trustees’ decision to grant a private easement for the degradation zones would not
even consider the Trustees’ paramount constitutional obligations. See, e.g., Henry
Ross v. Department of Environmental Protection, 33 FALR 1654 (DOAH 2011)
(“DOAH is … without authority to determine the constitutionality of an existing
rule under the Florida Constitution. See Dep’t of HRS v. Fla. Med. Ctr, NME
Hospitals, Inc., 578 So. 2d 351, (Fla. 1st DCA 1991).”)
This issue needs immediate resolution. It involves the imminent private use
of public trust lands for paper mill cost-saving degradation areas without proper
authorization from the Trustees. Furthermore, it involves uncertainty for 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 private use of public trust
lands for degradation zones. Functions of state government and state public trust
assets will be adversely affected by protracted litigation concerning the Trustees’
responsibilities. See Republican State Executive Committee v. Graham, 388 So.2d
556, 559 (Fla. 1980) (“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.”).
II. STATEMENT OF THE CASE AND FACTS
Petitioners Karen Ahlers is a citizen and taxpayer of Florida residing in
Putnam County. Petitioner Neil Armingeon is a citizen and taxpayer of Florida
residing in Duval County. Petitioner EYC is an unincorporated Florida association
that works to protect the environment. Petitioner FCWN is a non-profit Florida
corporation that works to protect Florida waters. Petitioners Ahlers and Armingeon
and substantial numbers of members of Petitioners EYC and FCWN are citizens
and taxpayers of Florida who use and enjoy the St. Johns River and adjacent
springs and creeks for fishing, swimming, and recreation and who enjoy the fish
and wildlife on the river. These members of EYC include substantial numbers of
young adults whose rights are at stake but who were not even of the age of
majority in 2003 when the Board approved a private easement for the pipeline
corridor.
Florida’s public trust lands include the St. Johns River, an American
Heritage River. [Pet. App. 00000001-7] Since 1970, for the benefit of all present
and future Floridians, the Florida Constitution has stated in Article X, Section 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.
This embodies the public trust doctrine which became a part of Florida’s common
law heritage as soon as Florida became a state.5
5 See case law discussed in part IV., infra, the Argument section of this petition.
Hence, by direct democratic action of Florida’s citizens, the time-honored
public trust doctrine became an express part of the Florida Constitution two years
before the federal government’s passage of the modern Clean Water Act (Pub.L.
92-500, October 18, 1972). FDEP currently implements that act’s National
Pollutant Discharge Elimination System (“NPDES”) permitting scheme under
delegated authority from the United States Environmental Protection Agency
(“USEPA”). [Pet. App. 0001-0150] Under Section 403.061(11), Florida Statutes,
FDEP is authorized to establish “reasonable zones of mixing for discharges into
waters.”6 FDEP in turn has a rule for establishing mixing zones in surface waters.
Fla. Admin. Code R. 62-4.244 (“Mixing Zones: Surface Waters”).
6 The department is authorized to establish reasonable zones of mixing for
discharges into waters:
(a) When a receiving body of water fails to meet a water quality
standard for pollutants set forth in department rules, a steam electric
generating plant discharge of pollutants that is existing or licensed
under this chapter on July 1, 1984, may nevertheless be granted a
mixing zone, provided that:
1. The standard would not be met in the water body in the absence
of the discharge;
2. The discharge is in compliance with all applicable technology-
based effluent limitations;
3. The discharge does not cause a measurable increase in the degree
of noncompliance with the standard at the boundary of the mixing
zone; and
4. The discharge otherwise complies with the mixing zone
provisions specified in department rules.
§ 403.061(11), Fla. Stat.
Under this rule, water quality in “a limited defined region” can be degraded
“to reduce the costs of treatment.” Fla. Admin. Code R. 62-4.244(1). Relying on its
regulations, FDEP now has authorized several so-called mixing zones for the
Georgia-Pacific pipeline project to reduce the costs of treatment for the paper mill,
with at least one more mixing zone, for chronic toxicity, planned but not yet
approved. [Pet. App. 0101-0150, 0383-0407, 041201-0518, 0531-0538] The 2002
NPDES permit set up an iterative process that required further analysis before any
of the mixing zones was considered to be authorized by FDEP. [Id.]
This iterative process was not complete until years after the prior Trustees took up
the private easement issue in 2003. [Id.]
FDEP has now determined the mixing zones that it is authorizing to
Georgia-Pacific to use. It has granted to Georgia-Pacific mixing zones of 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). [Id.] Areas within these mixing zones will have levels of pollution from un-
ionized ammonia, turbidity, specific conductance, color/transparency, and chronic
toxicity7 that, by definition, will not meet applicable water quality standards
designed to protect human health, wildlife, and recreation. [Id.]
7 The potential for a mixing zone for chronic toxicity is not actually even
referenced in the existing NPDES permit. However, it is in the new draft NPDES
permit for the facility [Pet. App. 0531-0538] and apparently is something that the
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
(“Title to tidal lands vested in state.—(1) Except submerged lands heretofore
conveyed by deed or statute, the title to all sovereignty tidal and submerged bottom
lands, including all islands, sandbars, shallow banks, and small islands made by the
process of dredging any channel by the United States Government and similar or
other islands, sandbars, and shallow banks located in the navigable waters, and
including all coastal and intracoastal waters of the state and 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”).
Both prior to the adoption of the modern Clean Water Act and thereafter, the
Governor and Cabinet took the position that it had jurisdiction over the water
FDEP has determined that Georgia-Pacific needs. On the other hand, FDEP
apparently has determined that Georgia-Pacific will not need mixing zones for
dissolved oxygen, total recoverable iron, total recoverable cadmium, and total
recoverable lead, and mixing zones for these parameters are eliminated from the
new draft NPDES permit. [Pet. App. 041201-041207, 0531-0538]
column. 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.”).
In this case, the public trust is being faced with a form of degradation
intentionally committed directly in the middle of a river—mixing zones that extend
significantly outward and upward from a paper mill pipeline constructed with a
lengthy diffuser structure across the deepest portion of river channel. The mixing
zones will allow the water column to be filled with concentrated paper mill effluent
that in theory will, given enough space and time, become diluted enough to not be
degrading outside of given areas. Rather than the structure being the point of the
exercise and the pollutants being incidental, as is the case with typical dock or
seawall construction, releasing pollutants to public trust lands is the objective of
Georgia-Pacific’s exercise. Moreover, more intensely than a discharge that meets
water quality standards, the structure lying on the river bottom will lead to areas of
intense private use and degradation, the areas known as mixing zones. These
mixing zones are used for the private convenience and purpose of “mixing” paper
mill wastewater with public waters to save the company money that would
otherwise be spent in treatment on private land.
The current cabinet website continues to affirm that the Trustees recognize
their responsibility under 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.
[http://cabinet.myflorida.com/cabprocess.html] (emphasis added). Nonetheless,
faced with this sophisticated and intentional new form of degradation that threatens
Florida waters for generations, the Trustees so far have made no findings
concerning the public interest of allowing mixing zones on sovereignty lands in the
St. Johns River for the private benefit of Georgia-Pacific. These mixing zones are
not covered in any Trustee private easement or other proprietary authorization.
They involve private use of sovereignty lands that goes beyond the narrow
Trustee-issued private easement for the pipeline. [Pet. App. 0435-0444] The
narrowest of the mixing zones is more than two times as wide as the private
easement, and, unlike the pipeline (for which the major impacts were during
construction), its effects would be significant and ongoing. [Pet. App. 041201-
041207] The largest mixing zone, relating to color/transparency, is almost fifty
times wider than the easement. [Id.]
The project description of the Georgia-Pacific agenda item explains that the
easement was for a 50-foot width only:
[Pet. App. 0315-0377] No compensation has been paid for the mixing zones and
any compensation paid was limited to the narrow subaqueous pipeline corridor.
[Id.] The appraisal that was performed was restricted to the subaqueous 50-foot
pipeline corridor. [Id.] Nor did the “public interest” analysis in the private
easement approval package apply to the mixing zones. [Id.] 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.” [Id.] 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. [Id.]
Not only the size but also the nature of the mixing zones is completely
different than the pipeline corridor, which involves a passive structural installation
rather than ongoing environmental degradation. The Trustee analysis of the project
does not even reference the mixing zones or their possible effects:
[Id.] The Trustees have the fiduciary responsibility, completely independent of any
responsibilities of the FDEP under its regulatory regime, to evaluate the public
interest associated with private use of sovereignty lands for mixing zones. This
Trustee responsibility is separate and apart from any FDEP evaluation that went
into determining that the mixing zones may be “reasonable” under FDEP rules.
In addition to the Florida Constitution itself, by statute the exercise of this public
trust obligation is 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. (emphasis added). Nor may Trustees rely on narrow
constructions in order to minimize their public trust obligation:
It is intended that the provisions of this act 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. The 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. 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 Trust Fund under this chapter, until the person has
received the required lease, license, easement, or other form of
consent authorizing the proposed use.
(Emphasis added.)
The Trustees have stated by rule, Florida Administrative Code Rule 18-
21.002, 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.” Elsewhere, however, the Trustees’
rules suggest that FDEP’s biological assessment merely “may be considered in
evaluating specific requests to use sovereignty lands.” Fla. Admin. Code R. 18-
21.004(2)(c).
In internal FDEP documents from 2000-2001, it is revealed that FDEP
strategized with Georgia-Pacific about the idea of orchestrating a “concept[ual]
approval” by the Trustees that would be “contingent on receipt of all required
permits, authorizations & payments.” [Pet. App. 000001-000019] When the
Trustees took action on the pipeline easement proposal in 2003 none of the mixing
zones were yet authorized [Pet. App. 041201-041207]. Therefore, if FDEP’s
earlier logic controlled, the Trustees’ approval should merely have been conceptual
in nature.
At any rate, if pulp and paper mill pipeline-related mixing zones are the
private use of sovereignty lands, which Petitioners maintain as a matter of law, a
host of Trustees’ rules come into play that have not been applied concerning
proprietary authorization of the mixing zones. Under the public interest definition
in Florida Administrative Code Rule 18-21.003(51):
“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.
Rule 18-21.004 provides numerous policies, standards, and criteria which
the Trustees say must be applied:
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 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. …
If the mixing zones are private use of sovereignty lands, these and others of the
Trustee’s own rules would have to be carefully applied to the mixing zones to
safeguard the public trust.
At a recent workshop on the “Public Trust Doctrine” conducted by the
Florida Fish and Wildlife Conservation Commission (“FFWCC”), which also has
constitutional public trust responsibility for fresh water aquatic life, participants
aimed to ensure that all of that agency’s programs fulfilled the doctrine. [Pet. App.
051501-051807] They emphasized the importance of key aspects of the public trust
such as water use and quality and land use that were beyond their jurisdiction but
which are within the Trustees’ public trust responsibilities. [Id.] The Commission
expressly recognized, though, that it has “no power to delegate” trust
responsibilities and that “the state’s responsibility is to keep these trust resources
from being depleted or wasted.” [Id.] It calls for that trustee and the beneficiaries
to act in partnership. [Id.]
By some appearances [Pet. App. 000001-000019], FDEP’s partners have
been the pulp and paper industry more so than the citizens protected by the public
trust doctrine. Not long after the Governor and Cabinet gave their approval to the
Georgia-Pacific pipeline, the FDEP Secretary even took a job with a paper
company. [Pet. App. 037701-037702] But the buck does not stop with the FDEP
under the public trust doctrine, but with the Trustees.
At least when it comes to pulp and paper mill pipeline-related mixing zones,
the Trustees so far have not shared the FFWCC’s professed zeal for the public
trust. Nor have they so far even shown concern for related issues related to the
public treasury. Assuming the Trustees could validly market Florida’s heritage to a
paper company, under Florida Administrative Code Rule 18-21.011(2)(b)2
issuance of a private easement for a mixing zone would have to consider the
enhanced property value or profit to be gained by the grantee if the easement were
approved. If based on its independent careful analysis of all constitutional,
statutory, and proprietary management rule provisions the Trustees determine that
the private use associated with these mixing zones is not contrary to the public
interest and should be authorized, they must be willing to justify this on the face of
their decision (and determine the appropriate compensation) so that the
beneficiaries of the trust can evaluate the analysis and have an opportunity to hold
their state-elected Trustees accountable.
It is entirely possible that an informed and conscientious Trustee could come
to a different conclusion than FDEP, whose objective in approving the mixing
zones is to save money for the discharger. Trustees are obligated to achieve
different objectives. For instance, FDEP took into account in approving the
specific conductivity mixing zone the cost to the discharger of spending money to
avoid dumping waste such as salt cake into the surface water. [Pet. App. 0419-
0434, 0515-0518] Salt cake could be stored, put to use, or, if necessary, disposed
of on land, avoiding altogether the need for it to drive up specific conductivity in
the Georgia-Pacific discharge. If it is discharged it creates high levels of specific
conductivity. Under the Florida Constitution, the Trustees might find those
company savings for this mixing zone contrary to the public interest when weighed
against the impacts on citizens of Florida and deny a private easement for this
mixing zone.
To give another example of competing value judgments wherein informed
and conscientious proprietary Trustees may not reach the same conclusion as
FDEP, Georgia-Pacific has been found by USEPA to exceed the limits of federal
dioxin standards in its discharge. [Pet. App. 044401-044418, 0515-0518] Georgia-
Pacific contends that dioxin pollution is caused by “legacy” solids left over from
past mill operations. [Pet. App. 0494-0514] In any event, FDEP now has
concluded that a chronic toxicity mixing zone will be required. [Pet. App. 041201-
041207, 0519-0530] The solids also contribute to the turbidity and color in
Georgia-Pacific’s effluent, so that it had to obtain mixing zones from FDEP. [Id.]
Informed and conscientious Trustees might be expected to ask if Georgia-Pacific
has alternatives to disposing of its dioxin-contaminated sediments on sovereignty
lands.
When the prior Trustees conducted a hearing in 2003 on the pipeline
easement, they did not have benefit of an understanding of what types of mixing
zones were being authorized by FDEP. Their briefing package did not discuss
mixing zones at all. [Pet. App. 0315-0377] Nor had FDEP itself yet finally
authorized any mixing zones. [Pet. App. 0071-0100] At the Trustee hearing,
discussion of mixing in the river was minimal and focused on a comparison of the
dilution capacities of the river and Rice Creek. [Pet. App. 0151-0314] They were
not being asked to grant a private easement or other proprietary authorization for
the mixing zones. In fact, they were only being asked to approve construction of
the pipeline as a contingency in the event compliance could not be achieved in
Rice Creek, which was then still an open question. [Id.]
Under the Florida Constitution, the Trustees have fiduciary responsibility for
open, honest, and full proprietary evaluation of any and all private use of
sovereignty lands that will be undertaken by Georgia-Pacific. Neither they nor
their predecessors have done that. They should not put the citizens of Florida on a
slippery slope to suffering a perpetual paper mill mixing zone private easement by
implication and Trustee neglect. Now that FDEP has finally established at least
some of the mixing zones that will be required, the Trustees can no longer defer
taking specific proprietary action on the mixing zones. So far they have not carried
out their public trust responsibility in the case of pulp and paper mill pipeline-
related mixing zones.
If the Trustees truly believe a mixing zone is justified under public trust
principles, they should explain why and establish the specific temporal,
geographical, and financial terms of the approved private use on the face of a
sovereignty lands authorization. Easements for degrading public trust land through
mixing zones cannot simply be assumed to be granted by implication because of a
pipeline easement. The public should not be forced to guess as to whether the
Trustees have authorized a private use, where, how long, and why. See Fla. Admin.
Code R. 18-21.03(21) (“Easement” means a non-possessory 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.”).
III. NATURE OF RELIEF SOUGHT
The Georgia-Pacific pipeline will go online in the very near future without
proprietary review of, or authorization for, its mixing zones.8 Therefore, this matter
has great urgency and should be decided expeditiously by this Court in favor of
Petitioners. The nature of relief sought by this petition is a writ of mandamus
directing the Trustees to require that mixing zones related to paper or pulp mill
pipelines not be placed into operation without (1) the private user first obtaining
authorization from the Trustees and without the mixing zones being determined by
the Trustees to be not contrary to the public interest and otherwise in compliance
with state law; and (2) equitable compensation being paid by the private
beneficiary.
IV. ARGUMENT
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 are asking to exploit that trust. Trustees should not forget
8 The Georgia-Pacific pipeline is the first but not the only pipeline of this kind
underway in Florida; the decision in this matter may have implications for a similar
scheme in the Fenholloway River where the owner of the Buckeye pulp mill also
seeks to save money by discharging effluent that would require multiple mixing
zones since it will violate otherwise applicable water quality criteria.
who they are working for or allow FDEP’s mixing zone decisions to somehow
morph into sovereign submerged lands authorization by atrophy of Trustee
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 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, 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 no
less the case when the trustees are state-elected officials and the trust document is
the organic law of the state embodying the original common law of the state. See
Secret Oaks Owner’s 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 Florida’s Navigable Rivers and Lakes, Fla. Bar J. LXXV, No. 4
(April 2001). The “sovereign,” in this case figuratively so in the person of the
Trustees as public servants, owns the river on behalf of all the people of the State.
The river intrinsically includes the water column as well as the sediments
and all that lies beneath. 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, Book 2, Chapter 2, p. 18:
phrase appears in Blackstone's Commentaries, Book 2, Chapter 2, 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.
The essence of the public trust is that it protects the public’s rights. While
some of the public interest lies in and below the sediments of the river, these are
not the sum total of the public’s rights in the river. Protection of the water in the
river is necessarily a part of the protection of the public trust rights of all
Floridians. These rights include the rights to fish, swim, and use and enjoy other
lawful uses in the water that will be degraded by these mixing zones. 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). 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 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.”).
The mixing zones, as demonstrated clearly on the face of the Georgia-
Pacific private easement and in the associated Trustee approval, have not received
careful Trustee scrutiny on behalf of the public trust. The Trustees are the citizens’
fiduciaries with respect to sovereignty lands and should act worthy of this trust.
The Trustees may not have acted previously in cases of this precise sort because of
the novelty of the equipment, incompleteness or lack of clarity of the user’s
application to the Trustees, and the audacity of the private user. 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 situations
involving docks over sovereignty lands the Trustees have effectively evaluated the
effects of conduct and even acted proactively to make sure the effects of conduct
are carefully circumscribed.
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 of 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 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….
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 Owner’s 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 state’s ownership of
the sovereign lands.”) The existing private easement may entitle the easement
holder to seek authorization from the Trustees for additional private use in the
heart of the river associated with the mixing zones, now that some of the mixing
zones have been finalized by FDEP for regulatory purposes. But the easement
holder has not done so, and nor have the Trustees requested that it do so, causing
uncertainty for Petitioners and the Florida public in general. 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).
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 "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 situation—Trustees who have
not carried out their public trust responsibility when it comes to paper mill mixing
zones. But here too the Trustees should establish a clear basis for its conduct. The
Trustees have altogether failed to make a careful analysis of this private use of
submerged lands. They must not be allowed to adopt a head-in-the-sands approach
to effects outside of the pipeline itself. This would be as far away from the
responsible conduct of the Trustees in the Levy case as could be imaginable. In
Levy, the Trustees were diligent as fiduciaries would be expected to be:
[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 single-family 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 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.
Docks themselves effect light penetration, but mostly from a distance.
In contrast, Georgia-Pacific and Buckeye will have light-blocking
color/transparency and turbidity mixing zones directly in the water,
emanating upward from the bottom of the river where any grass struggling
to grow would be rooted.9 Yet thus far the Trustees have shown no concern
for, or even awareness of, the now authorized mixing zones, which had not
even been established the one time the Trustees’ predecessors took up the
matter. 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. Similarly, just as the Trustees should be
attentive to addressing substances such as copper that may be emanating
from docks, they also should pay attention to the nature of the mixing zones,
which by definition will be degrading public trust property. The chronic
9 The same turbidity and color pollution problems will exist for the Buckeye
discharge in the Fenholloway River’s mouth if that pipeline is built.
toxicity mixing zone is continuing to undergo FDEP permitting review as
the pipeline gets over closer to starting to discharge. The already authorized
mixing zones include turbidity, un-ionized ammonia, and color, as well as
solids likely to have dioxin in excess of standards and high specific
conductance, compounds that could have been alternatively disposed of on
land without threatening sovereignty lands if only Georgia-Pacific were
required to do so.
The proprietary documents and associated Trustee reviews, and the
subsequently established mixing zones, facially demonstrate that the
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 Florida’s
constitutionally-protected assets is imminent.
V. CONCLUSION
The sovereignty lands of the St. Johns River are no less the people’s
lands because they happen to be in the pathway of Georgia-Pacific’s
intentional pollution flows rather than under a residential dock.
Conscientious fiduciaries would carefully look at anticipated private use on
sovereignty lands and expressly determine whether it is contrary to the
public interest as the Florida Constitution requires them to do. If allowing
the private use of sovereignty lands to go forward at all, they would ensure
that the harm is minimized, with full compensation to the taxpayer.
A conscientious Trustee might not be troubled by the prospect of
additional costs to the pulp and paper industry if that was the price for better
protection of sovereignty lands. The Trustees’ duty is to represent current
and future beneficiaries of the trust not pulp and paper companies. FDEP’s
goals are far murkier as it implements a “cost-saving” mixing zone scheme
that assumes degradation of public property is allowable. A conscientious
Trustee would certainly be willing to ask tough questions and fully explain
his or her decision concerning the authorization of mixing zones on
sovereignty lands.
Dated May ____, 2012.
Respectfully submitted,
___________________________
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
ATTORNEY FOR PETITIONERS
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the PETITION
FOR WRIT OF MANDAMUS was served by regular U.S. mail upon the
following on June ___, 2012: The Honorable Rick Scott, Governor,
Executive Office of the Governor, The Capitol, Tallahassee, Florida 32399-
0001; The Honorable Pam Bondi, Attorney General, Department of Legal
Affairs, The Capitol, Tallahassee, Florida 32399-1050; The Honorable Jeff
Atwater, Chief Financial Officer, Department of Financial Services, The
Capitol, Tallahassee, Florida 32399-0300; and The Honorable Adam
Putnam, Commissioner, Department of Agriculture and Consumer Services
The Capitol, Tallahassee, Florida 32399-0810.
___________________________
Steven A. Medina
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Petition is typed in Times New Roman
14-point font and complies with Florida Rule of Appellate Procedure
9.100(l).
___________________________
Steven A. Medina