IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT,

IN AND FOR LEON COUNTY, FLORIDA

KAREN AHLERS, NEIL ARMINGEON,
ENVIRONMENTAL YOUTH COUNCIL
ST. AUGUSTINE, FLORIDA CLEAN WATER
NETWORK, INC., and PUTNAM COUNTY
ENVIRONMENTAL COUNCIL, INC.,
Petitioners,
vs.

Case No. 12 CA 002715

RICK SCOTT, PAM BONDI,

JEFF ATWATER, and ADAM PUTNAM,
as Trustees of the Internal Improvement Trust Fund,
Respondents.
__________________________________________/
PETITIONERS MOTION FOR SUMMARY JUDGMENT
AND REPLY TO RESPONDENTS AND INTERVENERS
RESPONSES TO PETITION FOR WRIT OF MANDAMUS
Petitioners, Karen Ahlers, Neil Armingeon, Environmental Youth Counsel
St. Augustine, Florida Clean Water Network, Inc., and Putnam County
Environmental Council, Inc., through their undersigned attorney, move for
summary judgment and reply as follows to the responses filed by the Respondent
Trustees of the Internal Improvement Trust Fund and the Intervener GeorgiaPacific Consumer Operations LLC to the Petition for Writ of Mandamus:

Lack of a Clear Point of Entry on the Pipeline Easement Approval

The Trustees and Intervener have overlooked the fact that this case is about
the public trust doctrine and due process of law. The Trustees, even in their
exercise of discretion in the application of the public trust doctrine in a particular
situation, still must follow appropriate processes meant to ensure the publics
rights are protected and that the Trustees are fully informed.
Petitioners have not been granted the clear point of entry to administrative
proceedings to which they are entitled as a matter of law. At a minimum, the
Trustees cannot be allowed to deprive Floridians of a clear point of entry on these
facts. Intervener implicitly recognizes this fact, and by doing so, the need for entry
of a writ of mandamus. To support its position that the pipeline easement was
legally obtained, it alleges, without any citation to the record, that Petitioners
did not challenge the easement granted by the Trusteesthough provided the
opportunity under Chapter 120, Fla. Stat. [Int. Resp. 57, p. 13]
With a clear point of entry, Floridians would have been able to bring an
administrative challenge. Absent a clear point of entry, Floridians cannot be held to
have waived an opportunity to pursue an administrative hearing. This serious
procedural defect must be remedied.
No material dispute exists that the predecessor trustees approval of the
pipeline easement was, by operation of law, preliminary irrespective of its tenor.
2

See Capeletti Bros. v. State, 362 So. 2d 346, 348 (Fla. 1978), cert. denied, 368
So.2d 1374 (Fla. 1979). The predecessor trustees never gave Floridians a clear
point of entry to challenge their pipeline easement approval. Therefore, the act of
issuing the pipeline easement in effectuation of that preliminary approval was ultra
vires.
The Florida Department of Environmental Protection (FDEP), which
provides staff to the Trustees, just like for their predecessors, provides no contrary
evidence on that issue in the response it submitted on behalf of the Trustees, and
neither did the Intervener in its response. FDEP worked closely with employees of
Georgia-Pacific prior to the 2003 Trustees approval of the pipeline. [D10-28] For
whatever reason, inadvertent or intentional, the Trustees, and their staff at FDEP,
did not follow up their free-form process with APA processes as it relates to the
pipeline. See McDonald v. Department of Banking and Finance, 346 So.2d 569,
578 n. 5 (Fla. 1st DCA 1977).
As a matter of law, the facts show that the 2005 FDEPs notice of intent to
issue permit for the installation of the pipeline, published by Georgia-Pacific
Corp. in the Palatka Daily News, did not give a clear point of entry on the 2003
pipeline easement approval. [D84-100] A reasonable Floridian examining it would
have been appraised of the right to petition for a hearing on the permit, not on
the easement:
3

***

***

[D85] See Capeletti Bros. v. State, 362 So. 2d 346, 348 (Fla. 1978); see also 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
4

the interest of the State against the individual interest sought to be protected by
the Fourteenth Amendment, id., at 314.).
It appears that the public notice was intentionally designed to befuddle the
public. In contrast to the publics notice of intent to issue permit, which made it
appear that the easement approval was a done deal, Georgia-Pacific Corp. itself
received a much broader notice:

[D89]
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
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, including 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 564.1
Trustees, and their staff at FDEP, are supposed to be looking out for the
beneficiaries, not the other way around. It should not be left up to Floridians to
explain administrative procedures to their Trustees or to decipher what hidden
meanings the Trustees or FDEP may have lurking somewhere in public notices to
the advantage of Intervener.
When the Trustees fail to follow important procedures that affect Floridians
due process rights, Floridians cannot be left without a remedy. It is not Floridians
fault that the Trustees have to plow the same ground twice, once informally and
another time formally. Capeletti, 362 So.2d at 348. Had the Trustees or their
predecessors provided Floridians a clear point of entry on the pipeline, this petition
indeed might have been avoided. But they did not get a clear point of entry.
Floridians, if they are able, willing, and inclined to do so, could assist the Trustees
to formulate final agency action if they are given a clear point of entry and
allowed to express their views of the public trust doctrine in an administrative

The duty to provide a clear point of entry in the context of a mandamus action
that also involves the public trust doctrine is discussed in the last section of this
motion and reply on clear legal duties, beginning at page 11.
6

hearing. The Trustees could then make a final and effective decision of what is in
the public interest.
The Trustees must begin acting responsibly on behalf of all Floridians and in
accordance with due process of law, including the APA. This would allow binding
decision-making concerning the public trust based on a full record rather than freeform preliminary decision-making based on the presentations of employees of
FDEP and Intervener. [C137-164] The Trustees ultra vires issuance of a private
easement to Intervener is not Floridians fault.
Remedies and Relief
In addition to not addressing the above fatal flaw in the process that led to
the issuance of the pipeline easement, Trustees and Intervener do not address the
public trust doctrine for the most part. Instead, the Trustees and Interveners main
argument concerns the alleged impropriety of Petitioners resorting to a petition for
the extraordinary writ of mandamus where Trustees allegedly have no clear legal
duties.
Petitioners will spend most of the remainder of this reply discussing the
clear legal duties that serve as the appropriate justification for mandamus. These
legal duties are quite clear, much more so than FDEPs public notice of intent to
issue permit. Before doing so, Petitioners note that the Trustees and Intervener also
argue the alleged adequacy of other remedies. Intervener also argues the alleged
7

overly broad relief sought by Petitioners.2 Petitioners will briefly address these
contentions.
No remedy the Trustees and the Intervener propose would be effective to
address the clear legal duties owed by the Trustees to Floridians pertaining to the
public trust over state sovereignty lands, including the duty to provide due process
in the administration of that trust.3 An administrative challenge to the FDEP
wastewater permit, which unlike the pipeline easement approval did provide a

It might also be noted that in paragraph 52 of its response, at page 12, Intervener
leaves out the significant word only in its supposed direct quotation from page
33 of the petition, which actually stated in pertinent part: 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. (Emphasis added.) Similarly, in the Trustees response, in paragraph 25, at
pages 9-10, it is suggested that Petitioners want the Trustees to have private or
even exclusive use of the river within the mixing zones. Obviously, that is
precisely the opposite of what Petitioners seek. Petitioners were not suggesting that
authorization should be granted but that it could only be granted after the Trustees
follow careful procedures, and unless such authorization is granted, the mixing
zones should not be put to use.
3
This case is about the Trustees public trust and due process responsibilities,
which are not matters over which FDEP, either in its regulatory role or its role as
staff to the Trustees, has authority. The Trustees, improperly, have never given the
public a clear point of entry to request an administrative hearing that Petitioners
could exhaust. This is not a case like Georgia-Pacific v. Young, 825 So. 2d 1044
(Fla. 2002), involving FDEPs responsibility to make a decision on disqualifying
its then secretary from deciding the prior Georgia-Pacific wastewater permit or its
authority to reconsider its own permitting decision. (Note that without referencing
Georgia-Pacific v. Young by name, Intervener in its response, at paragraph 21,
page 5, incorrectly and obliquely references that decision as involving an appellate
dismissal for lack of standing.)
8

clear point of entry, would not.4 Nor would an enforcement action under Section
403.412, Florida Statutes, for any hypothetical future violation of FDEP water
quality standards as they are now embodied in the FDEP permit for the St. Johns
River outfall, which allows the now-approved mixing zones.5 Nor would a
nuisance action, should Petitioners suffer damages, assuming they have standing to
bring such an action. Cf. Curd v. Mosaic Fertilizer LLC, 39 So. 3d 1216 (Fla.
2010) (fishermen entitled to recovery of economic loss damages absent any
property damaged by pollution).
None of these alleged remedies would address the obvious failure of the
Trustees to offer Floridians a clear point of entry so as to make even the pipeline
approval final and effective. None would provide any redress for the effective
give-away of public areas within the jurisdiction of the Trustees to Georgia4

While FDEP may or may not have done an adequate job under its statutes and
rules in issuing the wastewater permit, that is a different matter than the Trustees
clear legal duties pertaining to due process and the public trust. Neither the
Trustees nor Intervener suggests that the presence of a federally-approved
wastewater permitting program preempts the Trustees from protecting the water
column or satisfies their need to comply with due process in carrying out their
duties under the public trust doctrine.
5
Section 403.412(2)(e), Florida Statutes states:
No action pursuant to this section may be maintained if the person
(natural or corporate) or governmental agency or authority charged
with pollution, impairment, or destruction of the air, water, or other
natural resources of the state is acting or conducting operations
pursuant to currently valid permit or certificate covering such
operations, issued by the appropriate governmental authorities or
agencies, and is complying with the requirements of said permits or
certificates.
9

Pacific, without any meaningful, much less final and effective, Trustee review or
compensation, or for the effects on the publics benefits, use, and enjoyment of
state sovereignty lands now lying within the areas defined by FDEP as Interveners
mixing zones.
Petitioners standing is not being challenged. Whether or not Petitioners
suffer damages or special injuries or produce a toxicological study showing they or
riverine life are being harmed, they have a legitimate interest as beneficiaries in the
public trust at this location. Nor has the Trustees long-recognized jurisdiction over
the water column been preempted.6 See Murphy v. Department of Natural
Resources, 837 F.Supp. 1217, 1222-1225 (S.D. Fla. 1993) (examining preemption
issues involving Houseboat Row).
If the Court determines that the petition should be construed as seeking some
other effective remedy to ensure compliance with the Trustees clear legal duties,
Petitioners have no objection. As was requested in the petition at note 29, page 33:
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.
Similarly, the Court will define the relief it is willing to grant. It may issue
more narrow relief than originally envisioned in the petition. Because the petition
6

The Trustees jurisdiction over the water column is discussed in the next and final
section of this reply.
10

was filed with the Florida Supreme Court before the FDEP issued the final mixing
zones, this Court, like the Trustees and the Petitioners, no longer has a moving
target of uncertainty created by FDEP and Intervener. When the petition was
filed, Petitioners could only try to predict what the Interveners private degrading
use of the river would be. Likewise the petition advised the Florida Supreme Court
that it appears the Trustees may face a similar situation with another paper or pulp
mill pipeline at some point (Pet. n. 4, p. 5.). Under the current circumstances, the
Court may determine that it is appropriate for the relief to be more narrowly
fashioned to require compliance with the Trustees clear legal duties as concerns
the specific FDEP-approved mixing zones at issue rather than addressing private
paper and pulp pipeline mixing zones in general.
Clear Legal Duties
The Trustees owe clear legal duties to all Floridians (a) to exercise
continuing fiduciary responsibility over state sovereignty lands, including the area
of the St. Johns River subject to Interveners pipeline and mixing zones, on their
behalf consistent with the public trust, and (b) in doing so, to follow due process,
which, in the modern era, includes, but is not limited to, compliance with the APA.
Petitioners will expand on the APA issue before discussing other related aspects of
due process and the Trustees continuing fiduciary responsibilities. As discussed in
the first section of this motion and reply, approval of the pipeline easement
11

occurred through a free-form proceeding. In this section, Petitioners will first

expand on their discussion of that issue within the context of a mandamus action
involving the public trust doctrine and due process.
The Trustees no longer have a moving target concerning Interveners mixing
zones. Thus, they no longer have any policy rationale for deferring their own
compliance with the APA. They know that Intervener will degrade the river, and
they know where.
As the First District long ago stated:
[A]n 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.
[A]bsent waiver, we must regard an agency's free-form action as
only preliminary irrespective of its tenor. E. g., Couch
Construction Co. v. Department of Transportation, No. II-314, supra.

[U]ntil proceedings are had satisfying Section 120.57, or an

opportunity for them is clearly offered and waived, DOT is powerless
to suspend Capeletti's certificate of qualification. General
Development Corp. v. Division of State Planning, 353 So.2d 1199
(Fla. 1st DCA 1978); Harris v. Florida Real Est. Comm'n, 358 So.2d
1123, 1125 (Fla. 1st DCA 1978); J. A. Jones Constr. Co. v.
Department of General Services, 356 So.2d 863 (Fla. 1st DCA 1978).
DOT is likewise impotent to condition Capeletti's bidding privileges,
pending completion of Section 120.57 proceedings, on posting of a
bond.
See Capeletti Bros. v. State, 362 So. 2d 346, 348-9 (Fla. 1978) (emphasis added).
Further, and of great importance to this mandamus action, in part because an
ultra vires issuance of an easement already has occurred based on the preliminary
12

approval of the Trustees, giving Floridians a clear point of entry to challenge the
approval is no longer discretionary. Rather, it is past due. The requirement to give
Floridians a clear point of entry was not a matter of policy discretion under these
circumstances. As the First District stated in General Dev. Utils. v. Fla. Dep't of
Envtl. Regulation, 417 So. 2d 1068, 1070 (Fla. 1st DCA 1982):
We reject the notion that GDU has no redress until such time as it
applies for new permits and has its application rejected. The essential
ingredients of a 120.57 hearing are present, i.e., final agency action
affecting the petitioner's substantial interests coupled with a disputed
issue of material fact. If section 120.57 is to be "the Act's wider point
of entry for those with varied or general complaints concerning
agency action: those against whom the agency has instituted
adjudicatory proceedings, those whose impending injury is not wholly
and precisely traceable to a rule invalidly exercising delegated
legislative authority, those whose substantial interests are threatened
by several agency causes or simply by agency action which is
proceeding arbitrarily, imperiously, or obliviously," then GDU has
presented a compelling case. State ex rel. Department of General
Services v. Willis, 344 So.2d 580, 591 (Fla. 1st DCA 1977).
We pointed out in Capeletti Brothers, Inc. v. State Department of
Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978) that 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." Now we find it necessary to add a postscript: simply
providing a point of entry is not enough if the point of entry is so
remote from the agency action as to be ineffectual as a vehicle for
affording a party whose substantial interests are or will be affected by
agency action a prompt opportunity to challenge disputed issues of
material fact in a 120.57 hearing. The opportunity afforded GDU in
this instance does not meet this standard.
(Emphasis added.)
13

This failure of due process denies APA rights to all Floridians. Floridians
looking into the Trustees processes find that the basic outline of the decisionmaking process the Trustees publishes on-line does not mention the APA:

[C5] However, the Trustees come within the definition of agency set forth in
Section 120.52(1)(a), Florida Statutes (The Governor; each state officer ).
Florida Administrative Code Rule 18-21.00401, 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 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
14

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.)
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 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
15

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 trustees-owned 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 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.
It is also significant that, had members of the public been given the
opportunity to request an administrative hearing, the recommended order was
required to go back to the Trustees a second time for approval of a final order.
(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. )
Until Floridians are given a clear point of entry to request an administrative
proceeding under Section 120.57, Florida Statutes, final agency action could not
and cannot be taken. Yet here we have Intervener degrading a defined portion of

16

the St. Johns River every day through a pipeline constructed based on an easement
issued with only preliminary Trustees approval.
If the Trustees or their predecessors had given Floridians a clear point of
entry to contest the preliminary approval of the pipeline using APA procedures,
Floridians could have explored and challenged the full public trust dimensions of
the Trustees preliminary approval. Florida Administrative Code Rule 1821.003(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.
When the Trustees predecessors gave approval to the pipeline, most of
the discussion logically concerned the water column of the St. Johns River or Rice
Creek. [C137-164] Early in the free-form proceeding, the then governor stated:

17

[C144] It was unclear in 2003 whether the pipeline ever would be needed:

[C144-145]
The then trustees were at major disadvantages that an administrative hearing
conducted on behalf of the trustees could have helped to address. Not only were
18

the FDEP mixing zones not final and effective, and the one for chronic toxicity not
yet proposedthe agenda item package provided by FDEP to the Trustees did not
even mention, much less explore the anticipated boundaries and conditions within,
the then anticipated mixing zones. [C95-136]
At the Trustees hearing, the diluting capability of the river was discussed,
but not the conditions that would exist in the mixing zones themselves:

19

[C148-149]
Considerable water quality concern, and honest confusion, much of it
centered on the concept of mixing, was expressed by the then attorney general.

20

He repeatedly tried to get help understanding the impact on the river of using it as
the new discharge location:

***

21

***

[C150, 152]
He was specifically concerned about what would happen in the river where
the new discharge system would be located:

22

***

***

23

[C155-156]
The FDEP failed to mention much less detail the anticipated degradation
within the projected mixing zones in the St. Johns River, where the loading would
now be located:

24

25

[C158-159]
The attorney general then unsuccessfully moved to amend the Cabinets
proposed decision to limit the pollution loading to the existing amount:

26

[C160-163] Ultimately he voted no on the proposed easement agenda item. [C163]

This free-form discussion of the water column by the predecessor trustees,
including the attempt by the then attorney general to focus on the actual effects in
the river, followed the long-recognized jurisdiction of the Trustees over the water
column. Both prior to the adoption of the Clean Water Act and thereafter, Floridas
sovereign trustees repeatedly have acknowledged jurisdiction over the water
column. (Pet. n. 13, p. 14.) [C17-55]
Interveners suggestion, not argued by the Trustees, that this longrecognized jurisdiction awaits a specific legislative enactment such as that found in
Section 253.68, Florida Statutes, relating to aquaculture7 is unfounded and actually

Aquaculture activities as defined in Section 253.68, Florida Statutes, includes

activities that are non-preemptive, temporary in nature, and which obviously take
place in the water column, which in turn has always been subject to sovereign
jurisdiction:
Aquaculture activities means any activities, as determined by board
rule, related to the production of aquacultural products, including, but
not limited to, producing, storing, handling, grading, sorting,
transporting, harvesting, and aquaculture support docking.
The Trustees similarly define aquaculture and aquaculture activities in Florida
Administrative Code Rule 18-21.003 as follows:
27

proves Petitioners point. That section allows the Trustees to lease or authorize
the use of submerged lands to which it has title for the conduct of aquaculture
activities and grant exclusive use of the bottom and the water column to the extent
required by such activities.8 If the Trustees did not have jurisdiction over the
water column to begin with they could not grant exclusive use of it to aquaculture
users.9 Indeed, in Section 253.68(1), the Legislature even refers to the water

(10) Aquaculture means the cultivation of aquatic organisms and

associated activities, including, but not limited to grading, sorting,
transporting, harvesting, holding, storing, growing and planting.
(11) Aquaculture Activities means any activities related to the
production of aquacultural products, including, but not limited to,
producing, storing, handling, grading, sorting, transporting,
harvesting, and aquacultural support docking.
8
This section is discussed in Murphy v. Department of Natural Resources, 837
F.Supp. 1217, 1223 (S.D. Fla. 1993) (control over the water column is simply a
necessary adjunct incident to its ownership (in the public trust) of the submerged
land. Section 253.68, for example, grants the Board of Trustees of the Internal
Improvement Trust Fund the authority to lease submerged lands to which it has
title ... and [to] grant exclusive use of the bottom and the water column to the
extent required by such activities. Fla. Stat. 253.68 (1991)).
9
Portions of Florida Administrative Code Rule 18-21.002(1) omitted from the
Trustees quotation (Trustees Resp. 16, p. 7) further illustrate this point. In
italics below is the sentence included by the Trustees, and in bold-face are other
sentences that undercut the Interveners theory relating to aquaculture:
(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
28

column as publicly owned, a concept that implicitly refers to common law

sovereignty over the water column:
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.)10
Relatedly, a proposed use of the water column need not be preemptive to
implicate the Trustees fiduciary obligations. The degree to which an otherwiseapproved private use will allow the applicant to make money or to interfere with
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.
The Department of Agriculture and Consumer Services has responsibility for
managing aquaculture activities, just as the FDEP has environmental permitting
and water quality protection responsibility on sovereignty land. Both clearly
refer to the water column and are expressly made cumulative with the Boards
independent public trust responsibilities. Neither the Trustees nor the Intervener
contend that the Trustees delegated public trust responsibilities to the FDEP in
this case. Cf. Fla. Admin. Code R. 18-21.0051.
10
Section 253.75, Florida Statutes, has similar language evidencing the Trustees
pre-existing jurisdiction over the water column:
(c) To designate in advance areas of submerged land and water
column owned by the state for which they recommend reservation for
uses that may possibly be inconsistent with the conduct of aquaculture
activities. Such uses shall include, but not be limited to, recreational,
commercial and sport fishing and other traditional uses, exploration
for petroleum and other minerals, and scientific instrumentation. The
existence of such designated areas shall be considered by the board in
granting leases under this act.
(Emphasis added.)
29

traditional uses of the public, i.e., whether it will be partial or full, must be
carefully evaluated by the Trustees in the determination of equitable compensation.
Under Florida Administrative Code Rule 18-21.004(1)(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.
(Emphasis added.)
More important even than money to the state treasury are the vital public
interests that can be infringed upon by activities on state sovereignty lands. Long
before the current Trustees felt it should be eliminated as duplicative,
unnecessarily burdensome, or no longer necessary, the intent of the Trustees own
rule demonstrated this:
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 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;

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(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.
[C11-14]
Sovereign responsibility for the water column existed under the English law
as an intrinsic part of the public trust doctrine, which is now part of the Florida
Constitution:
Under English law, all navigable waters and the land beneath them
were held in trust by the sovereign for the benefit of the public. See
Merrill-Stevens Co. v. Durkee, 62 Fla. 549, 57 So. 428, 431 (1911);
State v. Black River Phosphate Co., 32 Fla. 82, 13 So. 640, 643
(1893). This arrangement has become known as the Public Trust
Doctrine. Martin v. Lessee of Waddell, 41 U.S. (16 Pet.) 367, 410411, 10 L.Ed. 997 (1842). States such as Florida, which joined the
Union after the original thirteen, acquired from the Federal
Government rights in the lands within the State, including the lands
between the high and low tide marks and the water that periodically
covers it. United States v. Kaiser Aetna, 408 F.Supp. 42, 48 (D.Haw.
1976), aff'd in part, rev'd in part on other grounds, 584 F.2d 378
(9th Cir.1978), rev'd on other grounds, 444 U.S. 164, 100 S.Ct. 383,
62 L.Ed.2d 332 (1979); see also MerrillStevens, 57 So. at 431; State
ex rel. Ellis v. Gerbing, 56 Fla. 603, 47 So. 353, 356 (1908). In
Florida, these lands are held in the public trust by the Board of
Trustees of the Internal Improvement Trust Fund. Fla.Stat.Ann.
*1220 1220 253.01 (West Supp.1993); see also Fla. Const. art. X,
11 (incorporating the Public Trust Doctrine).
Murphy v. Department of Natural Resources, 837 F.Supp at 1219. Control of the
water column is a necessary adjunct of the ownership of state sovereignty
submerged lands. Id., 837 F.Supp. at 1223.

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The public interest in these lands arises from the fact that they contain
common waters that the public can readily access for customary uses, such as
swimming and fishing. In 1968, when the public trust doctrine became part of the
Florida Constitution, this doctrine included as a component the duty of the
sovereign to control the water column in trust for all the people. Even if the second
sentence of Article X, Section 11 did not exist, or does not strictly-speaking use the
term water column as opposed to the underlying land, it would be antithetical to
the public trust doctrine to construe it to allow private use of the water column
contrary to the public interest. This would not only harm the sovereigns ability to
protect the underlying land but also the sovereigns ability to protect the commons
from private activities that would interfere with the publics beneficial uses.
Indeed, typically the interests of greatest concern to the public will relate to what
goes on the sovereignty submerged land rather than what goes beneath the land.
By definition what goes on the land is in the water column.
Well prior to the constitutional elevation of the public trust doctrine, in fact
from its earliest beginnings in Florida, the doctrine recognized the public interest in
the waters themselves as well as the soil beneath them, even prohibiting the
legislature from interfering with them:
[A]t the time of the passage of our riparian act the navigable waters of
the State and the soil beneath them, including the shore or space
between high and low water marks, were the property of the State, or
of the people of the State in their united or sovereign capacity, and
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were held not for the purposes of sale or conversion into other values,
or reduction into several or individual ownership, but for the use and
enjoyment of the same by all the people of the State for, at least, the
purposes of navigation and fishing, and other implied purposes; and
the law-making branch of the government of the State considered as
the fiduciary or representive of the people, were, when dealing with
such lands and waters, limited in their powers by the real nature and
purposes of the tenure of the same, and must be held to have acted
with a due regard for the preservation of such lands and waters to the
uses for which they were held.
State v. Black River Phosphate Co., 32 Fla. 82, 13 So. 640, 648 (1893) (emphasis
added). Nothing in the modern era of pollution laws takes away the Trustees
public trust responsibility for the water column.
The Trustees, who are supposed to acting as fiduciaries, now know that their
own staff, the FDEP, is administering cost-saving mixing zone provisions,
allowing defined areas of the St. Johns River to be degraded by Intervener. When
the Trustees finally give Floridians a clear point of entry on the pipeline, as they
must, the mixing zones will be justiciable facts to be taken into account in
assessing the public interest and, in the event they grant any easement at all, in
determining compensation to the public. No second easement process will be
necessary in this situation because the mixing zones can now be definitively
considered in any administrative hearing on the pipeline easement and taken into
account in any final and effective order approved by the Trustees.
Interveners unwanted solids and chemicals are released to the larger
navigable water body of the St. Johns River with its greater diluting capability, but
33

the Trustees now know that this does not prevent their degrading defined portions
of the water column on state submerged land with no compensation. Had
Floridians trustees not gone ahead and issued an ultra vires private easement, it
might have been understandable for their trustees to delay a decision on the
pipeline until FDEP had determined the boundaries of the mixing zones. This
would have been somewhat akin to the courts deferring in the first instance to
FDEP under the primary jurisdiction doctrine. See Flo-Sun, Inc. v. Kirk, 783 So.2d
1029 (Fla. 2001). As pointed out in Flo-Sun, 783 So.2d at 1037-38, It is
important to note that the application of the doctrine of primary jurisdiction is a
matter of deference, policy and comity, not subject matter jurisdiction. The
Florida Supreme Court reiterated:
[T]he doctrine of primary jurisdiction does not serve to divest the
circuit court of jurisdiction; it merely counsels that when issues arise
which have been placed within the special competence of an
administrative body, the court should practice judicial restraint.
Id. at 1041.
Here though, it is too late for restraint by the Trustees because the pipeline
easement already has been issued, ultra vires, and the mixing zones are now in
place and being used every day. The Trustees and Intervener would like for
Floridians who care about the St. Johns River to go away and never come back,
leaving the Intervener to enjoy its mixing zones in the heart of the St. Johns River
at public expense, in all likelihood for generations. That is not how situations with
34

overlapping jurisdiction should work. See Flo-Sun, 783 So.2d at 1041 (the trial
court dismissed Respondents' complaint with prejudice. This determination is
contrary to the general rule cited above that primary jurisdiction simply requires
that the court postpone or suspend judicial determination of the issues. It certainly
does not support, nor does it mandate, dismissal with prejudice.)
Until and unless the Trustees issue a proposed agency action with a clear
point of entry that allows Floridians to request an APA proceeding where they can
submit evidence as to the full range of public interest involved in the Trustees
decision-making, the Trustees and their predecessors have violated and are
continuing to violate their clear legal duties to (a) to function as the publics
fiduciaries concerning the Intervener, and (b) in doing so, to follow due process,
including the giving of a clear point of entry to the public and the otherwise
diligent following of administrative processes.
Conclusion
It is a shame that FDEP, rather than each Trustee, is addressing the issues
raised in this mandamus proceeding. Trustee approval of paper and pulp mill
pollution pipelines is among the most important individual decisions a trustee of
state sovereignly submerged lands could ever make. Not all Trustees will
necessarily see things the same way. Accordingly, they do not all have to vote the
same way in their review of a recommended order of approval coming back from
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an administrative hearing. Each should be separately accountable to Floridians,

present and future, for her or his vote, which might at that stage only involve
political accountability. At this stage, however, legal accountability is
involved for failure to perform clear legal duties owed as trustees to
Floridians.
Paper and pulp mill pollution pipelines in Florida tend to be multigenerational parts of the landscape, and the landscape where they come out is
degraded because of what comes out the pipes, which is why they are highly
controversial matters of great public interest. They outlive many living breathing
Floridians. So, Petitioners believe, it is time for todays Floridians to not only stand
up for themselves but also for tomorrows Floridians. That is what Petitioners have
done to the best of their ability in their petition and in this motion and reply.
When Article X, Section 11 says in trust for all the people, it means all
living breathing Floridians, now and in the future. Living breathing Floridians,
many of whom like to fish and swim, do not want to, nor do they expect to be
allowed to, degrade large defined areas of public water bodies for free.
Intervener does. It gets to use these public spaces to rid itself of its industrial waste
until, at their boundaries, according to modeling, the waste is sufficiently diluted to
not kill fish anymore or otherwise harm the natural conditions. To do otherwise
would raise its costs.
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FDEP, at long last, after the filing of the petition in this proceeding, finally
and effectively under its permitting jurisdiction, says that this is fine under its
costs-based mixing rule. Thus far, it is with the current Trustees presumed
incipient blessing. They have allowed a response to be filed on their behalf
opposing Petitioners attempt to force the matter to be addressed by them in a final
and effective manner, as required by law.
Their predecessor trustees in 2003 held a political meeting where they
ostensibly tried to get a handle on the situation concerning the projected conditions
in the river before giving what we now know was non-binding approval to the
pipeline. However, their staff at FDEP, which has prepared their response here,
gave them no information about mixing zones. Now a mixing zone for chronic
toxicity has been added to the river that was not even proposed in 2003. Therefore,
it is conjectural whether under the current circumstances, had they known them,
they would have given their blessing as a board.
Perhaps they would have, by 2:1 majority vote. In 2003, Georgia-Pacific still
had Rice Creek as its environmental hostage. It said that its willingness to do
improvements that might save Rice Creek from Georgia-Pacifics continuing
degradation was contingent on the predecessor trustees giving it advance approval
for a pipeline easement to facilitate dumping into the river if FDEP, as a permitting
agency rather than as staff to the trustees, ever allowed them to do so because of
37

the inability of the improvements to meet water quality standards in Rice Creek.
Georgia-Pacific no longer has Rice Creek but it still has human hostages. It no
longer has Rice Creek to degrade as the backdrop for trustee approval. But it does
provide jobs and does not hesitate to announce that it can produce these same
products around the world if Florida is not a friendly place for its cost-saving
degradation of the commons:

[C142]
We know that one of the trustees in 2003, then the states highest law
enforcement officer, voted no even with this hostage-taking and with a biased
presentation by FDEP and Intervener. [C163] He was within his discretion to do
so. All the then trustees, including him, knew that as trustees they should be
concerned about what goes in the water column, i.e. on the land, as well as what
gets buried within it.
Discretion ostensibly is the Trustees main defense. However, at least in
FDEPs view, based on its narrow agenda item briefing package and the response
it has filed on behalf of the Trustees, to the extent the Trustees have to be involved
38

in protecting the commons, they should be narrowly involved to avoid focusing on

the water column. We would expect Intervener to take that absolutist position, but
it is disappointing to see the Trustees allowing themselves to be aligned with this
view.
This case concerns whether Floridians can ever get to challenge the Trustees
concerning this state of affairs. If it cannot be done in this case, with these unrebutted and strong facts, the answer must be no. Petitioners, to whom Trustees
owe fiduciary duties, disagree with this state of affairs. They believe that
Intervener should not be allowed to degrade designated portions of the commons,
and certainly not for free. This case concerns whether their trustees hold unbridled
discretion and can never be legally called to task, even when the degradation
areas are meticulously defined by FDEP, complete with precise boundaries, and
even when the Trustees are flouting Florida law relating to the necessary physical
conduit to the degradation areas.
The commons, every bit of them, are to be managed on behalf of all
Floridians, both those living now and those living in the future. Their trustees
should not be above the law, including administrative law. If the Trustees, as
fiduciaries of the commons, want to contend in an administrative proceeding that
Floridians should be content swimming and fishing in industrial wastewater
mixing zones, including one established by FDEP for chronic toxicity, they
39

should be given the opportunity to do so. Perhaps one of Interveners principals

who professes to be against corporate cronyism [E18-20] will show up at the
administrative hearing and explain how Floridians have many other places to fish
and swim and are just being selfish for wanting to undertake these traditional uses
without fear in the mixing zones. They are after all now Interveners mixing
zones. FDEP has said so. He should have the right to appear, and to be sworn and
testify, about Interveners right to degrade the commons and the vulnerability of
the employee hostages it holds. But so too should Petitioners, and to present any
other admissible evidence and to cross-examine him and Interveners undoubtedly
numerous experts.
One thing that may be hard to get an expert for Intervener to credibly
explain is why Floridians should allow degradation of their heritage to be done for
free so that Intervener can lower its costs. Corporate cronyism in the commons of
Florida needs to stop. Administrative discovery concerning, among other things,
how much money is being saved by Intervener using portions of the St. Johns
River for mixing its waste might be revelatory, even to the current Trustees.
WHEREFORE, Petitioners move for summary judgment and such other
relief as the Court deems appropriate.

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Respectfully submitted on October 21, 2013.

___________________________
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

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing, with
attachments, was served by electronic mail upon the following on October 21,
2013:
W. Douglas Beason
Department of Environmental Protection
3900 Commonwealth Blvd., M.S. 35
Tallahassee, Florida 32399-3000
Email: Doug.Beason@dep.state.fl.us
Shayna.Holton@dep.state.fl.us
DEP.Water@dep.state.fl.us
Terry Cole, Esquire
Kellie Scott, Esquire
Gunster, Yoakley and Stewart
215 South Monroe Street, Suite 601
Tallahassee, Florida 32301
Email: tcole@gunster.com
kscott@gunster.com
bfrazier@gunster.com
Warren K. Anderson, Jr.
The Public Trust Environmental Legal Institute of Florida, Inc.
2029 N. 3rd Street
Jacksonville Beach, Florida 32250
Email: taowalkerwarren@gmail.com
andrewdouglasmiller@gmail.com

__________________________
Steven A. Medina

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