Professional Documents
Culture Documents
SCOTUS Petition For Writ of Certiorari in Karen Ahlers, Et Al. v. Rick Scott, Et Al.
SCOTUS Petition For Writ of Certiorari in Karen Ahlers, Et Al. v. Rick Scott, Et Al.
___________
___________________________________________
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,
Respondents.
STEVEN A. MEDINA
13 Longwood Drive
Shalimar, Florida 32579
[email protected]
850-621-7811
Counsel of Record
LEGAL PRINTERS
LLC,
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
B.
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
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
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.
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.
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
[email protected]
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
A-2
A-3
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
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
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
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
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
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
A-17
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
A-21
A-22
A-23
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
regardless of
publication.]
the
date
of
A-31
A-34
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
A-37
A-38
A-39
A-40
A-45
A-46
A-47
A-48
A-49
A-50
A-51
A-52
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
A-54
A-55
A-56
4.
A-57
A-58
A-59
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
A-62
A-64
A-65
A-66
A-67
A-68
A-69
A-71
30
A-72
A-73
32
A-74
A-75
A-76
A-77
A-80
A-81
A-82
A-85
A-86
C.
A-87
A-88
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
[email protected]
ATTORNEY FOR PETITIONERS
***
A-90
DCA
LT
A-94
A-97
II.
ARGUMENT
***
ASSUMING THE LEON COUNTY CIRCUIT
COURT
HAD
JURISDICTION,
THE
CIRCUIT
JUDGE
ABUSED
HIS
DISCRETION
Standard of Review
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
A-104
A-105
A-106
A-107
A-108
A-109
A.
whole:
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
(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
A-119
A-120
A-121
A-122
A-123
A-124
A-125
13
A-126
A-128
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
(Emphasis added.)15
A-130
A-131
A-132
A-133
A-134
A-136