IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_________________________

Appeal No. 09-11305-DD

_________________________

D. C. Docket No. 09-0041-CV-FTM-UA[99]-TBM

JENNIFER FRANKLIN PRESCOTT, et al.,

Plaintiff-Appellants,

versus

RICHARD A. LAZZARA, et al.

Defendant-Appellees.
__________________________________________

On Appeal from the U.S. District Court

for the Middle District of Florida, Fort Myers Division
___________________________________________

EMERGENCY MOTION FOR CRIMINAL PROSECUTION OF THE 11TH

CIRCUIT JUDGES WHO CONCEALED THE INVALIDITY OF EMINENT
DOMAIN FRAUD-SCHEME O.R.569/875 AND EXTENDED IT

EMERGENCY MOTION FOR RECUSAL OF ENTIRE CIRCUIT AND

INVALIDATION OF CONFISCATORY O.R.569/875 BASED ON CRIMES
OF FALSE PRETENSES, DELIBERATE DEPRIVATIONS, AND FRAUD

NOTICE OF FRAUDULENT 04/21/09 COURT OPINION

(April 22, 2009)

JENNIFER FRANKLIN PRESCOTT, AND

DR. JORG BUSSE, Appellants, pro se
P.O. Box 7561, Naples, FL 34101-7561
T: 239-595-7074; E-mail: JRBU@aol.com
 CONCESSIONS OF OWNERSHIP OF CONST.-PROTECTED LANDS

1. Here, it is uncontroverted that Appellants are the exclusive legal record

owners of riparian Gulf-front subject property [PID 12-44-20-01-

00015.015A]. See concessions in 11th Circuit Opinions.

LEE COUNTY LACKED EMINENT DOMAIN POWER

2. The Federal Courts concealed that Lee County had no conferred eminent

domain power. The 11th Circuit concocted:

“Florida provides him [Appellant] … inverse condemnation.” Opinion, p.8.

The Appellants evidenced that any condemnation under color of eminent

domain fraud-scheme was factually and legally impossible. The 11th Circuit

concocted “200 Acres” to deceive the public and conceal the absence of any

legal description and ascertainable boundaries in O.R.569/875.

ABSENT A LEGAL DESCRIPTION CONDEMNATION WAS IMPOSSIBLE

3. In the prima facie absence of any legal description, ascertainable boundaries,

public purpose/use, necessity, any condemnation of Appellants’ private lands in

private undedicated Cayo Costa was impossible and prohibited. The Federal

Courts concealed that unauthorized and unexecuted O.R.569/875 is an

eminent domain fraud-scheme and unenforceable as a matter of law.1

1
For the different Constitutional considerations involved in attacks for 'vagueness' and for 'overbreadth'
see Keyishian v. Board of Regents, 385 U.S. 589, 603-604, 608-610, 87 S.Ct. 675, 683, 684, 686-687, 17
L.Ed.2d 629.

2
 THE COURT CONCEALED INDISPUTABLE JURISDICTION FOR BRIBES

4. The Federal Courts concealed that Appellants’ claims met the threshold

jurisdictional requirements of 28 U.S.C. § 1343(3)2 for state deprivations,

because it is well established that "where the complaint, as here, is so drawn as

to seek recovery directly under the Constitution or laws of the United States

[here 4th, 14th, 1st, 7th, and 5th Amendments], the Federal court ... must

entertain the suit." Bell v. Hood, 327 U.S. 678, 681-82, 66 S.Ct. 773, 775-76,

90 L.Ed. 939(1946); Hagans v. Lavine, 415 U.S. 528, 538-39, 94 S.Ct. 1372,

1379-80, 39 L.Ed.2d 577(1974); Silva v. Vowell, 621 F.2d 640, 645-46(5th Cir.

1980), cert. denied, 449 U.S. 1125, 101 S.Ct. 941 (1981); Southpark Square

Ltd. v. City of Jackson, 565 F.2d 338, 341(5th Cir.1977).

DELIBERATE DEPRIVATIONS OF PATENTLY CLEAR JURISDICTION

5. [In 1875 Congress enlarged Federal jurisdiction by authorizing the 'Federal

question' jurisdiction presently contained in 28 U.S.C. § 1331. See 18 Stat. 470.
The Supreme Court reviewed the history in Zwickler v. Koota, 389 U.S. 241,
245-248, 88 S.Ct. 391, 393-395, 19 L.Ed.2d 444. The Act of March 3, 1875,
was the principal '* * * measure of the broadening Federal domain in the area
of individual rights,' McNeese v. Board of Education, etc., 373 U.S. 668, 673,
83 S.Ct. 1433, 1436, 10 L.Ed.2d 622. By that statute '* * * Congress gave the
Federal courts the vast range of power which had lain dormant in the
Constitution since 1789. These courts ceased to be restricted tribunals of fair
dealing between citizens of different states and became the primary and
powerful reliances for vindicating every right given by the Constitution, the
2
28 U.S.C. § 1343 provides: 'The district courts shall have original jurisdiction of any civil action
authorized by law to be commenced by any person: * * * (3) To redress the deprivation, under color of
any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured
by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens
or of all persons within the jurisdiction of the United States.'

3
 laws, and treaties of the United States.' (Emphasis added.) Frankfurter &
Landis, The Business of the Supreme Court: A Study in the Federal Judicial
System, 65. Indeed, even before the 1875 Act, Congress, in the Civil Rights Act
of 1871, subjected to suit, '(e)very person who, under color of any statute * * *
subjects, or causes to be subjected, any citizen of the United States or other
person * * * to the deprivation of any rights * * * secured by the Constitution
and laws * * *,' 42 U.S.C. § 1983; and gave the district courts 'original
jurisdiction' of actions '(t)o redress the deprivation, under color of any State
law * * * of any right * * * secured by the Constitution * * *.' 28 U.S.C. §
1343(3).] In conclusion, the Federal Court criminally concealed indisputable

Federal jurisdiction in exchange for Appellees’ bribes and kickbacks.

THE FEDERAL COURTS FABRICATED FOR BRIBES

6. The Court fabricated that Appellants’ suit is really an inverse condemnation

action under state law and that the Federal issues raised are merely "lurking in

the background." Johnston v. Byrd, 354 F.2d 982, 984(5th Cir.1965). This

argument is without merit, because the Courts now conceded that Appellants

have flatly alleged that an ‘unconstitutional temporary taking’ of their

property has occurred. Whatever rights Appellants may have under state law, it

is obvious that the Federal Constitution protects them from official takings of

their property for public use without just compensation. Webb's Fab. Pharm.,

Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 450, 66 L.Ed.2d 358(1980).

CONDEMNATION WAS EXPRESSLY PROHIBITED

7. Here, private use was expressly prohibited, and public use was legally and

factually impossible, whetther with or without compensation. Appellants’

Constitutional claims in this case are "not merely a background issue but

4
 instead constitute(s) not only the gist but the whole foreground of the lawsuit."

Creel v. City of Atlanta, 399 F.2d 777, 778(5th Cir.1968).

THE COURTS CONCEALED PROHIBITED PRIVATE USE

8. The Supreme Court has repeatedly stated that "one person's property may not be

taken for the benefit of another private person without a justifying public

purpose, even though compensation be paid." Thompson v. Consolidated Gas

Corp., 300 U.S. 55, 80, 57 S.Ct. 364, 376, 81 L.Ed. 510(1937); Cincinnati v.

Vester, 281 U.S. 439, 447, 50 S.Ct. 360, 362, 74 L.Ed. 950(1930); Madisonville

Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 251-252, 25 S.Ct. 251,

255-256, 49 L.Ed. 462(1905); Fallbrook Irrigation District v. Bradley, 164 U.S.

112, 159, 17 S.Ct. 56, 63, 41 L.Ed. 369(1896). Thus, in Missouri Pacific R. Co.

v. Nebraska, 164 U.S. 403, 17 S.Ct. 130, 41 L.Ed. 489(1896), where the "order

in question was not, and was not claimed to be, . . . a taking of private property

for a public use under the right of eminent domain," id., at 416, at 135(emphasis

added), the Court invalidated a compensated taking of property for lack of a

justifying public purpose. Here, the Federal Courts concealed the “lack of a

justifying public purpose” and the impossibility of any eminent domain power.

CONCEALMENT OF PROCEDURAL DUE PROCESS VIOLATIONS

9. Procedural due process requires notice and an opportunity to be heard before

any governmental deprivation of a property interest. Donaldson v. Clark, 819

5
 F.2d 1551, 1558(11th Cir.1987)(en banc)(citing Boddie v. Connecticut, 401

U.S. 371, 378-79, 91 S.Ct. 780, 786, 28 L.Ed.2d 113(1971). Thus, to determine

if a procedural due process violation occurred in this case, Federal Courts had

to resolve: (1) whether Appellants had a Constitutionally-protected property

interest in their lands; (2) whether they were deprived of that interest; and (3)

if they were deprived of a Constitutionally-protected property interest,

whether Appellees failed to use Constitutionally sufficient procedures before

that deprivation occurred. Kentucky Dept. of Corr. v. Thompson, 490 U.S.

454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506(1989); Logan v. Zimmerman

Brush Co., 455 U.S. 422, 432-33, 102 S.Ct. 1148, 1156, 71 L.Ed.2d 265(1982).

(1) The 11th Circuit conceded that Appellants are exclusive record owners who
had Constitutionally-protected interests in their Gulf-front lands.
(2) Here, the Appellees deliberately deprived the Appellants of said interest.
Eminent domain and/or any condemnation, whether direct or inverse, for
private use were unavailable to Lee County. The Appellees concealed that
condemnation [inverse and/or direct] was unavailable. Lee County’s
eminent domain fraud-scheme O.R.569/875 invoked Federal jurisdiction.
(3) On its face, O.R.569/875 was not a Constitutionally sufficient procedure,
but an admittedly unsigned/unexecuted eminent domain fraud-scheme.
CONCEALMENT OF SUBSTANTIVE DUE PROCESS VIOLATIONS

10. The Due Process Clause of the 14th Amendment provides "nor shall any State

deprive any person of life, liberty, or property, without due process of law."

6
 U.S. Const. Amend. XIV, Sec. 1. The Supreme Court's interpretation of this

clause explicates that the amendment provides two different kinds of

Constitutional protection: procedural due process and substantive due process.

A violation of either of these kinds of protection may form the basis for a suit

under section 1983. Id.1. The substantive component of the Due Process

Clause protects those rights that are "fundamental”. Appellants have a

fundamental Constitutionally-protected right to own their lands and exclude

the government. Here, the Federal Courts conspired to conceal Appellants’

said rights directly under the 14th, 4th, 5th, 1st, and 7th Amendments for bribes.

THE COURTS CONCEALED DIRECT APPEAL FROM CRIMES

11. Title 28 U.S.C. § 636(c)(3) provides that "an aggrieved party may appeal

directly to the appropriate U.S. court of appeals from the [fraudulent]

judgment of the magistrate in the same manner as an appeal from any other

judgment of a district court."3 The Courts concealed Appellants’ direct appeal

from the crimes [e.g., conspiracy, false pretenses, fraud, misprision of a

felony, misrepresentation] of corrupt Appellee Judges Pizzo, Lazzara, Steele,

Poster Chappell]. The District Court conspired not to file and wrongfully

reject Appellants’ pleadings under false pretenses of, e.g., “frivolity”,

3
E.g., Lee County had appealed directly to the 11th Circuit, pursuant to 28 U.S.C. Sec. 636(c)(3). The
11th Circuit reversed the magistrate judge's order, Reahard v. Lee County, 968 F.2d 1131, 1136 (11th
Cir.1992), and held that the magistrate judge had misapplied the test for regulatory takings.

7
 “vexatiousness”, “failure to state a claim”. The Federal Courts wrongfully

sanctioned Appellants to obstruct justice and prevent them from blowing the

whistle on said crimes of, e.g., false pretenses and deliberate deprivations.

INVALID O.R.569/875 EFFECTED AN UNCONST. TEMPORARY TAKING

12. Here, sham land “claim” O.R.569/875 was invalid and could not effect a

permanent taking. Eminent domain fraud-scheme O.R.569/875 admittedly

and concededly effected an “unconstitutional temporary taking”, because

eminent domain was expressly prohibited here under Florida’s and the Federal

Constitutions. The state eminent domain issues invoked Federal jurisdiction.

CONSPIRACY TO MISREPRESENT THE DEPRIVED LAND INTERESTS

13. The Supreme Court has specifically held that "a cause of action is a species of

property protected by the 14th Amendment's Due Process Clause." Logan v.

Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1154, 71 L.Ed.2d

265(1982). Tulsa Collection Services v. Pope, 485 U.S. 478, 485-86, 108 S.Ct.

1340, 1345, 99 L.Ed.2d 565(1988). Here, Appellants have a Constitutionally-

protected property interest in their lands, which the Appellees deliberately

deprived them of under false pretenses of eminent domain fraud-scheme

O.R.569/875. Here, the Federal Courts conspired to conceal that Appellees

8
 impaired Appellants’ fundamental Constitutionally-protected property

interests in their riparian Gulf-front lands and private easements.4

OBSTRUCTION OF INQUIRY AND DISCOVERY TO CONCEAL

14. The District Court erred in refusing to compel responses to Appellants’

discovery requests. Appellants proved an abuse of discretion and explained

how the responses would have created a genuine issue of material fact and

further exposed Appellees’ crimes of, e.g., false pretenses, deliberate

deprivations, and fraud. Appellants had “validly” stated their claims under §§

1983, 1985 and (1) alleged violations of their rights secured by the Constitution

and laws of the United States and (2) proved that the alleged deprivations were

deliberately committed by officials and judges acting under color of fictititous

state law and fraud-scheme O.R.569/875. A local government entity may be

held liable under § 1983 for Constitutional violations committed pursuant to a

governmental policy or custom such as here said extortion and fraud-scheme.

Monell v. Dept. of Soc. Servs. of New York, 436 U.S. 658(1978).

OBSTRUCTION OF JUST ADJUDICATION

15. The Federal Court’s conspired to ignore the factual question whether the

County unconstitutionally and temporarily expropriated/confiscated/took

Appellants’ private lands [PID 12-44-20-01-00015.015A] for private rather

4
The 11th Circuit and Florida courts held that even a mortgage is a Constitutionally-protected property
interest. Sarasota County v. Andrews, 573 So.2d 113(Fla. 2d DCA 1991).

9
 than for public use. The District Court conspired to refuse to act as would a

court of the State in applying to the facts of this case the settled state policy that

a County may not take a private citizen's land under the State's power of

eminent domain except for public use. Here in exchange for Appellees’ bribes,

the Federal Courts conspired to conceal the invalidity of eminent domain

fraud-scheme O.R.569/875 and extend said fraud under false pretenses of,

e.g., frivolity and sanctions. The Federal Courts had a duty to invalidate

O.R.569/875 on the grounds that the conceded “unconstitutional temporary

taking” was invalid and that any condemnation was impossible. That which

was never legally described in invalid O.R.569/875 could not be confiscated.

THE COURTS CONSPIRED TO CONCEAL CRIMES

16. The Federal Courts conspired to conceal the impropriety and invalidity of

said eminent domain fraud-scheme and forgery, which admittedly was never

signed and executed by Lee County. Here, "the naked question, uncomplicated

by [ambiguous language], is whether unexecuted fraud-scheme O.R.569/875

[which, e.g., lacks a legal description, public purpose/use, necessity, seal,

resolution number, names of any legislator] on its face is unconstitutional."

THE COURTS CONCEALED EQUAL PROTECTION RIGHTS

17. The Appellants filed their actions under 42 U.S.C. §§ 1983, 1985 proving that

Lee County, inter alia, violated their equal-protection rights by

10
 removing/eliminating the cloud of eminent domain fraud-scheme

O.R.569/875. The Federal Courts conspired to conceal that Appellants had the

same equal rights of Alice M. S. Robinson pursuant to Lee County Blue Sheet

980206 and O.R.2967/1084-1090. Said Courts knew that Lee County’s publicly

recorded removal of any cloud from O.R.569/875 exposed their crimes.

THE FEDERAL COURTS WERE OBJECTIVELY BIASED

18. The Appellants proved that the Defendant corrupt Federal Judges were biased.

The legal standard to establish judicial bias requires the facts to be such as would

convince a reasonable person that bias existed. Here, no reasonable person could

have possibly concluded that fraud-scheme O.R.569/875 was a legislative

act/resolution, because said sham “claim” was prima facie

defective/unconstitutional and never executed by Lee County. Here, a reasonable

person knew that the 11th Circuit is reportedly corrupt, because it accepts bribes

for fixing cases and conceals public record evidence. No reasonable person can

trust the 11th Circuit, because it fabricated that Appellants did not pursue state

remedies even though the Defendant corrupt Federal Judges themselves removed

Appellants’ State action to the District Court. The 11th Circuit engages in crimes

of, e.g., false pretenses, deliberate deprivations, misrepresentation, fraud, and

racketeering. It conspired to extend said fraud-scheme under color of eminent

domain forgery O.R.569/875 which is devoid of any ascertainable boundaries.

The 11th Circuit knew that here it was as if O.R.569/875 had never existed. Here,

11
 the Appellants presented self-authenticating public-record evidence, and the

facts indisputably indicated, that the corrupt Judges were biased.

EMINENT DOMAIN BUREAU CONTROVERTED THE 11TH CIRCUIT

19. The Eminent Domain Bureau, Gen. Civil Litigation Division, of the Florida

Attorney General’s Office, was established to provide legal resources for

governmental agencies considering exercising eminent domain to acquire property

for public use. Here, the Federal Courts concealed that said Bureau established

that Lee County had no condemnation power to confiscate private property for a

private purpose, whether with or without the payment of full compensation for the

uncertain lands illegally “claimed” in fraud-scheme O.R.569/875. Here, the

Federal Courts conspired to conceal said Bureau’s legal advice on legal

requirements for proper exercise of eminent domain.

CONDEMNATION FRAUD AND CRIMES

20. Appellants blew the whistle on Appellees’ criminal eminent domain fraud-

scheme O.R.569/875. Here, there was a history of bribery and fraud. Plaintiff-

Appellants based the evidence of the pattern of racketeering activity on letters

mailed by the Appellee Officials. Said letters constituted acts of mail fraud. The

letters and Court opinions contained fraudulent statements and furthered said

eminent domain fraud-scheme. Here, the Federal Courts engaged in a scheme to

defraud Plaintiff-Appellants through sham eminent domain “claims”. Absent any

12
 legal description and ascertainable boundaries, the Court’s Opinions furthered

said fraud-scheme and were sufficient to constitute mail fraud:

“Under Florida law, counties can exercise eminent domain over any land…”

See sham 03/05/2009 Court Opinion.

21. Appellants had sufficiently alleged a “pattern” on the basis of the mailings on the

public record. Appellants proved an ongoing scheme to use forged eminent

domain “claim” O.R.569/875 for wrongful purposes. Said mailings in the public

domain were part of that ongoing fraud-scheme. The Court concealed that Lee

County had removed the fictitious cloud of O.R.569/875 pursuant to Blue Sheet

980206 and O.R.2967/1084-1090. See also § 1961(1). Here, Appellants lost

property value by reason of said eminent domain fraud-scheme. Appellants

evidenced a pattern of racketeering activity for decades. Here, the officials have

had a history of engaging in this type of criminal behavior.

22. Appellants’ RICO claim was aided by acts beyond mail and wire fraud. Here,

officials threatened Appellants unless they cooperated with said condemnation

fraud-scheme. Officials threatened, e.g., suspension of Appellant’s driver’s

license, fires and/or arson, destruction and seizure of Appellants’ property,

deliberate deprivations of Appellants’ immigration privileges. Such criminal

activity constituted extortion under 18 U.S.C. § 1951. The continual threats,

sanctions, rejection of Appellants’ pleadings, and false pretenses of fraud-

scheme O.R.569/875 constituted blatant extortion. Here, Appellants’ RICO

13
 claims based on eminent domain fraud-scheme O.R.569/875 arose out of a pattern

of extortion and bribery. The Appellants seek civil and criminal prosecution of

the Defendant-Appellee Officials and Judges and injunctive relief from eminent

domain fraud-scheme O.R.569/875. The enforcement of fictitious and non-

ascertainable boundaries is an emergency and crime, which this Court has been

extending in exchange for Appellees’ bribes.

WHEREFORE, Appellants demand based on publicly recorded and self-

authenticating extortion and fraud-scheme O.R.569/875

1. An Order directing the Clerk to forward a copy of eminent domain fraud-scheme

O.R.569/875 to Federal and Florida law enforcement for prosecution of the
conspiring Officials and Judges who conceal its illegality;
2. An Order enjoining this Circuit from any further crimes such as, e.g., false
pretenses, deliberate deprivations, fraud, misrepresentation, misprision of
felonies;
3. An Order vacating and staying this Court’s 04/21/2009 sham Opinion, because it
conceals the illegality of extortion and fraud-scheme O.R.569/875 and further
evidences of this Court’s pattern of racketeering activities;
4. An Order recusing the entire Circuit for [extrajudicial] conspiracy to conceal the
prima facie invalidity of forgery O.R.569/875 and for extension of said
extortion and fraud-scheme;
5. An Order mandating emergency just adjudication of Appellants’ state eminent
domain issues, “unconstitutional temporary takings” and other independent ripe
Federal claims;

14
6. An Order vacating and staying any and all orders by this Circuit, because it
conspires to obstruct justice under false pretenses that eminent domain fraud
and extortion-scheme O.R.569/875 is a legislative act;
7. An Order declaring eminent domain extortion and fraud-scheme O.R.569/875
null-and-void-ab-initio;
8. An Order enjoining enforcement of unduly vague O.R.569/875, which is devoid
of any legal description and ascertainable boundaries;
9. An Order enjoining Appellees’ disparate treatment of the Appellants, who have
the same equal rights of Alice M. S. Robinson under Blue Sheet 980206;
10. An Order declaring any and all clouds removed and eliminated pursuant to Lee
County Blue Sheet 980206 and O.R.2967/1084-1090;
11. An Order enjoining this corrupt Circuit from concealing that Appellants have
fundamental Constitutionally-protected interests in their lands and easements.

/S/JENNIFER FRANKLIN PRESCOTT, Appellant, pro se

P.O. Box 845, Palm Beach, FL 33480-0845
T: 561-400-3295; E-mail: JRBU@aol.com

/S/DR. JORG BUSSE, Appellant, pro se

P.O. Box 7561, Naples, FL 34101-7561
T: 239-595-7074; E-mail: JRBU@aol.com

15
VIA U.S.P.S. CERTIFIED MAIL W/ RET. REC.
Geronimo Garcia, F.B.I. Senior Supervisory Resident Agent
Steven E. Ibison, F.B.I. Special Agent-In-Charge
Bret Hood, Special Agent
Federal Bureau of Investigation
U.S. Department of Justice
2000 Main ST, Suite 800
Fort Myers, FL 33901
T: 239-337-7171

19
11TH CIRCUIT FRAUD, CORRUPTION, CASE-FIXING, BRIBERY
UNDER FALSE PRETENSES THAT NULL AND VOID O.R.569/875
IS A PURPORTED “LEGISLATIVE ACT”:

THE 11TH CIRCUIT

• CONCOCTED A “LEGISLATIVE ACT” [NO RECORD EXISTS];
• CONCEALS O.R.569/875’s PRIMA FACIE INVALIDITY;
• PERVERTED SAID SHAM “CLAIM” INTO A “LEGISLATIVE ACT”;
• OBSTRUCTED JUSTICE FOR APPELLEES’ BRIBES.

UNEXECUTED O.R.569/875 IS INVALID FOR MANY REASONS:

1. IT IS UNCONSTITUTIONAL AND IPSE DIXIT CONFISCATORY

2. NO ASCERTAINABLE LEGAL BOUNDARIES
3. NO LEGAL DESCRIPTION – SURVEY IMPOSSIBLE
4. NO SIGNATURE(S) BY LEE COUNTY COMMISSIONERS
5. NO EXECUTION BY LEE COUNTY, FLORIDA
6. NO IDENTIFIABLE “LEGISLATOR”
7. NO RESOLUTION NUMBER
8. NO RECORD OR ENTRY IN COUNTY RESOLUTION BOOK(S)
9. NO NOTARIAL ACKNOWLEDGMENT
10. NO SEAL
11. NO IDENTIFIABLE PUBLIC USE/PURPOSE
12. NO NECESSITY
13. PUBLIC USE FACTUALLY AND LEGALLY IMPOSSIBLE
14. EXPRESSLY PROHIBITED BY FLORIDA CONSTITUTION
15. VIOLATES FLORIDA’S EMINENT DOMAIN STATUTES
16. VIOLATES 14TH CONSTITUTIONAL AMENDMENT
17. VIOLATES 4TH CONSTITUTIONAL AMENDMENT
18. VIOLATES 5TH CONSTITUTIONAL AMENDMENT
19. DECEPTION OUTSIDE JUDICIAL CAPACITY AND JURISDICTION
Case 2:07-cv-00228-JES-SPC Document 89-2 Filed 08/06/2007 Page 5 of 10
 STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION

JOHN LAY AND JANET LAY,

Petitioners, OGC CASE NOs. 01-0203

01-0204
VS. DOAH CASE NOs. 01-1541
01-1542
DEPARTMENT OF ENVIRONMENTAL DEP01-0860; DEP01-0876
PROTECTION,

Respondent.

_____________________________________/

FINAL ORDER

On August 14, 2001, an Administrative Law Judge with the Division of Administrative Hearings (hereafter
"DOAH") submitted his Recommended Order to the Department of Environmental Protection (hereafter "Department"). A
copy of the Recommended Order was also furnished to pro se Petitioners, John and Janet Lay (hereafter the "Lays").' A
copy of the Recommended Order is attached hereto as Exhibit A. Exceptions to the Recommended Order were timely
filed on behalf of the Department. The Recommended Order and the Exceptions are now before the Secretary of the
Department for final agency action.

BACKGROUND

The Lays are the owners of Lots 16 and 17, Cayo Costa Subdivision, located on Cayo Costa Island in Lee
County, Florida. On July 12, 2000, the Lays filed a consolidated application for exemption from the need to obtain an
environmental resource permit and for a consent of use for a 208 square foot single-family dock. A portion of the
proposed dock project would be built on sovereign submerged lands owned by the State of Florida underlying a lagoon
west of Pelican Bay. Due to the Department's focus on minimizing adverse impacts on mangroves bordering the lagoon,
the Lays eventually agreed to submit additional information and to reduce the size of their proposed dock to 58 square
feet. The revised application was granted by the Department on August 21, 2000, in DEP File No. 36-0172390-001.
The consent of use included General Consent Conditions. Among other things, they stated: "The Letter of
Consent associated with these General Consent Conditions as well as these conditions themselves are subject to
modification after five (5) years in order to reflect any applicable changes in statutes, rule or policies of the Board [of
Trustees of the Internal Improvement Trust Fund] or its designated agent [DEP] .,, 2 There were no other conditions or
statements regarding modification or revocation of the consent of use.
After obtaining their exemption and consent of use in DEP File No. 36-0172390-001, the Lays determined that
they needed a larger dock. On September 11, 2000, the Lays applied for another exemption and consent of use for a 114
square foot single family dock. This application was granted by the Department on October 14, 2000 in DEP File No.
36-0172390-002. This consent of use contained the same General Consent Conditions as the first consent of use for the
proposed 58 square foot dock. Like the original consent of use issued to the Lays, no provisions were set forth in the
consent of use issued in DEP File No. 36-0172390-002 regarding modification or revocation.
In January of 2001, the County Attorney for Lee County sent the Department a copy of a boundary survey of Lots
16 and 17 prepared by Ted B. Urban, a professional land surveyor. See, the Lays' "Exhibit A" admitted into evidence at
the DOM final hearing. This boundary survey reflects that the Lays' proposed dock facility would have to traverse a strip of
land above mean high water ("MHW') approximately 10-15 feet in width. This strip of land east of the boundaries of Lots
16 and 17 and above the MHW is designated as a "road easement" on the boundary survey.
Based primarily on its review of this boundary survey, the Department concluded that the Lays were not "upland
riparian" landowners within the purview of Rule 1821.004(3)(b), Florida Administrative Code ("F.A.C."). Accordingly, the
Department issued a letter dated January 18, 2001, notifying the Lays that the prior consents of use of sovereign
submerged lands issued in DEP File Nos. 36-0172390-001 and 360172390-002 "are hereby revoked." See "DEP Ex. 15"
admitted into evidence at the DOM final hearing. The Lays then filed a petition contesting the Department's agency action
proposing to revoke the two prior consents of use.
DOAH PROCEEDING
Case 2:07-cv-00228-JES-SPC Document 89-2 Filed 08/06/2007 Page 4 of 10