No. ___________ ___________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

________________ KAREN AHLERS, NEIL ARMINGEON, ENVIRONMENTAL YOUTH COUNCIL

ST. AUGUSTINE, FLORIDA CLEAN WATER NETWORK, INC., and PUTNAM COUNTY

ENVIRONMENTAL COUNCIL, INC.,

Petitioners, v.

RICK SCOTT, PAM BONDI,

JEFF ATWATER, and ADAM PUTNAM, as Trustees of the Internal Improvement

Trust Fund, and GEORGIA-PACIFIC CONSUMER OPERATIONS LLC,

Respondents.

______________ On Petition for Writ of Certiorari to the District Court of Appeal, First District,

State of Florida

PETITION FOR WRIT OF CERTIORARI

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

LEGAL PRINTERS LLC, Washington DC ! 202-747-2400 ! legalprinters.com

i

QUESTION PRESENTED

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

ii

PARTIES TO THE PROCEEDINGS The petitioners, petitioners and appellants

below, are Karen Ahlers, Neil Armingeon, Environmental Youth Council St. Augustine, Florida Clean Water Network, Inc., and Putnam County Environmental Council, Inc.

The respondents, appellees below, are Rick

Scott, Pam Bondi, Jeff Atwater, and Adam Putnam, as Trustees of the Internal Improvement Trust Fund, who were the original respondents, and Georgia-Pacific Consumer Operations LLC., which was an intervenor.

RULE 29.6 STATEMENT

Environmental Youth Council St. Augustine is

an unincorporated association. Florida Clean Water Network, Inc. and Putnam County Environmental Council, Inc. are non-profit corporations, with no shares held by a publicly traded company.

Georgia-Pacific Consumer Operations LLC is a

limited liability corporation, with no shares held by a publicly traded company.

iii

TABLE OF CONTENTS Page

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

PARTIES TO THE PROCEEDINGS ..................... ii

RULE 29.6 STATEMENT ....................................... ii

TABLE OF AUTHORITIES ................................... v

OPINIONS BELOW ................................................. 1

STATEMENT OF JURISDICTION ........................ 1

CONSTITUTIONAL PROVISION INVOLVED ..... 2

STATEMENT OF THE CASE ................................. 2

A. The Public’s Property Interest and Recognized Procedural Rights .................................................. 3

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

HOW THE ISSUES WERE DECIDED BELOW ..................................................................... 6

REASONS THE WRIT SHOULD BE GRANTED ................................................................ 8

CONCLUSION ......................................................... 8

APPENDIX ............................................................ A-1

Opinion of District Court of Appeal ........... A-1

iv

Final Summary Judgment of Circuit Court ........................................................... A-3

Alternative Writ of Mandamus of Circuit Court ............................................. A-20

Order of the Supreme Court of Florida ... A-22

Order of the District Court of Appeal ...... A-24

Text of Newspaper Notice ........................ A-25

Original Petition for Writ of Mandamus ................................................ A-35

Portions of Initial Brief on Merits filed with District Court of Appeal .................. A-91

v

TABLE OF AUTHORITIES

FEDERAL CASES

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

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) .................. 6, 8

Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 186 (1987) ............................................................. 7

STATE CASES

Ahlers v. Scott, 169 So.3d 1164, 2015 WL 3402516 (Fla. 1st DCA 2015) ................. 1

Jenkins v. State, 385 So.2d 1356 (Fla. 1980)............................................................... 7

Florida Star v. B.J.F., 530 So.2d 286 (Fla. 1988) ...................................................... 7

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV ........................ 2, 3, 6

Fla. Const. Art. X, § 11 .................................. 3

FEDERAL STATUTES

28 U.S.C. § 1257 ............................................ 1

vi

STATE STATUTES

Fla. Stat. Ch. 120 .......................................... 4

STATE REGULATIONS

Fla. Admin. Code Ch. 18-21 .......................... 3

Fla. Admin. Code R. 18-21.003(51) ........... 3, 4

1

OPINIONS BELOW The opinion of the District Court of Appeal,

First District, State of Florida, 169 So.3d 1164, 2015 WL 3402516 (Fla. 1st DCA 2015) (Table), is included at A-1. The final summary judgment denying petition for writ of mandamus of the Circuit Court of the Second Judicial Circuit in Leon County, Florida, affirmed per curiam without explanation by the District Court of Appeal, is included at A-3. The alternative writ of mandamus of the Circuit Court is included at A-20. The order of the Supreme Court of Florida transferring the petition for writ of mandamus filed by Petitioners to the Circuit Court is included at A-22.1

JURISDICTION The District Court of Appeal entered its

opinion on May 27, 2015. The District Court of Appeal denied Petitioners’ timely motions for rehearing, clarification and certification and for rehearing en banc on July 9, 2015. The order denying these motions is included at A-24. This Court’s jurisdiction is invoked pursuant to 28 U.S.C. § 1257, final judgment having been rendered by the highest court of the State

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

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 Florida’s Internal Improvement Trust Fund, have resisted giving public notice of administrative rights to contest the private easement issuance. They do so because, they contend, on March 3, 2005, public notice was already given of the right to administratively contest issuance of the easement in the same newspaper.

This petition for writ of certiorari seeks Supreme Court review focused on whether the legal advertisement, the text of which can be read beginning at A-25 of the appendix and is discussed in

3

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

A. The Public’s Property Interest and

Recognized Procedural Rights Under Article X, Section 11, of the Florida

Constitution,3 “all the people” have a beneficial property interest in lands under navigable waters, such as the St. Johns River, which have not been alienated. The public trust doctrine as enunciated in the Florida Constitution among other things states, “Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest.”

Florida also has administrative regulations in Florida Administrative Code Chapter 18-21 governing “Sovereignty Submerged Lands 2 Implicit in this question is the understanding that Petitioners’ due process rights are implicated. See Section A., infra. 3 The section states:

Sovereignty lands.—The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. Sale of such lands may be authorized by law, but only when in the public interest. Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest.

4

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

B. The Legal Advertisement The legal advertisement based on which

Respondents contend Petitioners lost their administrative rights to contest the pipeline easement issuance was confusing and misleading, and grossly so. See A-25.

The title and lengthy initial paragraph of the legal advertisement dealt with another legal decision altogether, by a state agency, i.e., the decision of

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

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

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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 occurred—“have 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 applicant’s 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 person’s 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-of-entry to challenge the Department’s proposed agency action with respect to the requested sovereign authorization for the construction of the pipeline.” A-11.

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 Appeal’s 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 Appeal’s compliance with decisions of this Court, including Jones v. Flowers and Mullane v. Central Hanover Bank & Trust Co. and to settle that confusing and misleading newspaper notice does not meet due process under these circumstances.

9

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

A-1

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-2

Counsel, Tallahassee, attorneys for Trustees of the Internal Improvement Trust Fund, for Appellees. PER CURIAM.

AFFIRMED. CLARK, RAY, and MAKAR, JJ., CONCUR.

A-3

In the Circuit Court of the Second Judicial Circuit,

in and for Leon County, Florida KAREN AHLERS, a citizen and taxpayer of Florida residing in Putnam County, NEIL ARMINGEON, a citizen and taxpayer of Florida residing in Duval County, ENVIRONMENTAL YOUTH COUNCIL ST. AUGUSTINE, an unincorporated Florida association, FLORIDA CLEAN WATER NETWORK, INC., a non-profit Florida corporation, and PUTNAM COUNTY ENVIRONMENTAL COUNCIL, INC., a non-profit Florida corporation, Petitioners, vs. Case No. 2012-CA-2715 RICK SCOTT, Governor, PAM BONDI, Attorney General, JEFF ATWATER, Chief Financial Officer, and ADAM PUTNAM, Commissioner of Agriculture, as Trustees of the Internal Improvement Trust Fund, Respondents.

A-4

FINAL JUDGMENT DENYING PETITION FOR WRIT OF MANDAMUS, DENYING

PETITIONERS’ MOTION FOR SUMMARY JUDGMENT, GRANTING RESPONDENTS’ AND

INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT, AND DENYING IN PART AND

GRANTING IN PART PETITIONERS’ REQUEST FOR JUDICIAL NOTICE

THIS CASE came before the Court for hearing on Petitioners’ Motion for Summary Judgment and Request for Judicial Notice, and the Respondents’ and Intervenor’s Motions for Summary Judgment. After careful review of the Petition, the Amicus Curiae Brief, the Request for Judicial Notice, the responses, the Motions for Summary Judgment, and following oral argument by the parties, the Court enters the following order denying the Petition for Writ of Mandamus, denying Petitioners’ Motion for Summary Judgment, granting in part and denying in part Petitioners’ Request for Judicial Notice, and granting the Respondents’ and Intervenor’s Motions for Summary Judgment.

PROCEDURAL HISTORY

1. On July 2, 2012, Petitioners filed their Petition against the Trustees of the Internal Improvement Trust Fund (the “Trustees”) in the Supreme Court of the State of Florida. Shortly thereafter, on August 24, 2012, Petitioners’ Writ of Mandamus was transferred to the Circuit Court of the Second Judicial Circuit of Leon County, Florida. This Court granted Georgia-Pacific Consumer

A-5

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

A-6

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-Pacific’s 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-7

law. Fla. R. Civ. P. 1.510(c); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). Petitioners, Trustees, and Intervenors [sic] raise no disputed issues of material fact, but they disagree as to whether Petitioners or Respondents/Intervenor are entitled to judgment as a matter of law on the Petition.

PETITIONERS’ REQUEST FOR JUDICIAL NOTICE

12. Petitioners filed a Request for Judicial Notice on February 11, 2014, asking that this Court take judicial notice of the docket and filings in Florida Division of Administrative Hearings Case No. 97-002902 (the “DOAH Case”).

13. Pursuant to §90.202(5), Florida Statutes, judicial notice of the official actions of the legislative, executive and judicial branches of government is permissive, not mandatory.

14. Final Orders are considered official records of the legislative, executive, and judicial departments of the State but non-final pleadings on an administrative docket are not considered official records for purposes of judicial notice. Dykes v. Quincy Telephone Company, 539 So.2d 503 (Fla. 1st DCA 1989).

15. Petitioners’ Motion for Judicial Notice is granted as to the Final Order in the DOAH Case and denied as to all other docket items in the DOAH Case. The Court has reviewed all items included in Petitioners’ Request for Judicial Notice and notes that, even if Petitioners’ Request for Judicial Notice

A-8

had been granted in full, it would not have changed this Court’s ruling on the Petition for Writ of Mandamus or the Motions for Summary Judgment.

FINDINGS OF FACT

16. The Intervenor, Georgia-Pacific Consumer Operations, LLC, owns and operates a pulp and paper mill in Putnam County. The operation of the mill results in the discharge of treated effluent to the waters of the St. Johns River. The discharge of this treated effluent is authorized pursuant to a National Pollutant Discharge Elimination System (“NPDES”) permit issued by the Department of Environmental Protection (“Department”).

17. The NPDES permit authorizes the use of mixing zones for various pollutants. Mixing zones provide a limited opportunity for the discharges, such as the one at issue here, to mix with the ambient water column. The use of the mixing zones does not cause or contribute to the degradation of the St. Johns River. Indeed, the traditional public uses of the St. Johns River – fishing, swimming and recreating, continue to be protected. Mixing zones are common in the State of Florida and authorized pursuant to a rule of the Department. See – Fla. Admin. Code R. 62-244.

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

A-9

of the discharge pipeline, something that is acknowledged by Petitioners. Nevertheless, Petitioners contend they have a clear legal right to require a second sovereign authorization for the use of the mixing zones established in the NPDES permit.

19. Petitioners allege they are the beneficiaries of a constitutional public trust with a vested right to “fish, swim and recreate” in the waters of the St. Johns River. The Petitioners allege they are facing potential harm to their right to use the waters of the St. Johns River for swimming, fishing and recreation. However, the Petitioners do not allege that Georgia-Pacific’s use of the mixing zones has resulted in the degradation of the river, and moreover, no evidence to that effect was introduced in support of Petitioners’ Motion for Summary Judgment. At this juncture, the mill has been discharging to the St. Johns River for almost a year and a half without any evidence the discharge has adversely affected the Petitioners’ useand enjoyment of the St. Johns River.

20. The Department is vested with the statutory responsibility for water quality protection on sovereign submerged lands. Mixing zones are one component of the Department’s surface water quality standards. See – Fla. Admin. Code R. 62-302.200(31). Mixing zones protect traditional public uses of public waters such as fishing, swimming and recreating. The waters of the river within the mixing zone remain open, navigable and available for public use and enjoyment.

A-10

Georgia-Pacific’s 2002 NPDES Permit and Administrative Order

21. In August 2002, the Department issued a NPDES permit to Georgia-Pacific for the continued operation of the mill. Under approval and lawful delegation from the United States Environmental Protection Agency (“EPA”), the Department administers the federal NPDES permitting program in Florida.

22. At the time the Department issued the NPDES permit, the mill discharged treated effluent to Rice Creek, a tributary to the St. Johns River. Due to the nature of the pulping process, the mill’s discharge did not fully meet all of the Department’s water quality standards in Rice Creek. Subject to certain limitations, Georgia-Pacific’s 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 Department’s water quality standards. 23. The NPDES permit was accompanied by an Administrative Order which required Georgia-Pacific 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 Georgia-Pacific was able to meet applicable water quality

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

Georgia-Pacific’s Sovereign Authorization for

Construction of the Discharge Pipeline 25. In June 2004, Georgia-Pacific applied to the Department for an environmental resource permit for the construction of the effluent discharge pipeline. Georgia-Pacific’s 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 Georgia-Pacific’s 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 Department’s 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 Department’s 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-12

of the pipeline to the St. Johns River. In October 2012, Georgia-Pacific placed the pipeline into operation and redirected its effluent discharge to the St. Johns River.

Georgia-Pacific’s Application for Renewal of the

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

A-13

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-14

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

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responsible for ensuring that the discharge meets applicable water quality standards. The Department is the State agency vested with the responsibility for the environmental permitting of activities and water quality protection on sovereign lands. Pursuant to Secdtion 403.161(10), Florida Statutes, the Department is vested with the responsibility for developing a comprehensive program for the prevention and control of the pollution of the State’s waters. The Legislature has vested the Department with the statutory responsibility for developing and adopting water quality standards. §§403.061(10) and (11), Florida Statutes. The Trustees have adopted a rule which recognizes the Department is responsible for water quality protection on sovereignty lands. See – Fla. Admin. Code R. 18-21.002(1). 38. As part of these water quality standards, the Department is authorized to “establish reasonable zones of mixing for discharges into waters.” §4033.061(11), Florida Statutes. A moderating provision, such as mixing zone, is but one component of the Department’s 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 Department’s federally approved

A-16

NPDES permitting program. The mixing zones at issue are included as part of the NPDES permit the Department issued to Georgia-Pacific. 40. Water quality standards apply within the mixing zones and the traditional public uses of the receiving waters continue to be protected. The mixing zones at issue do not physically occupy the waters of the river. The water column within the mixing zone remains open and available for public uses – such as fishing swimming and recreating. There is no evidence that Georgia-Pacific’s mixign zones have adversely affected the Petitioners’ use and enjoyment of the waters of the St. Johns River. 41. Having found that Petitioners failed to demonstrate a clear legal duty on behalf of the Trustees, the Petition must fail. The Petition is flawed for other reasons, however.

PETITIONERS HAVE OTHER AVAILABLE LEGAL REMEDIES

42. One seeking a writ of mandamus must show that he has a clear legal right to the performance of a clear legal duty by a public officer, and that he has no other available legal remedies. See Hatten v. State, 561 So.2d 562, 563 (Fla. 1990); Holcomb v. Department of Corrections, 609 So.2d 751, 753 (Fla. 1st DCA 1992). With respect to concerns about water quality degradation within a mixing zone, it is clear that the Petitioners have other available legal remedies. 43. Section 403.412.(2)(a)1, Florida Statutes, authorizes an action for injunctive relief against a governmental agency to compel the

A-17

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

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PETITIONERS FAILED TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES

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

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CONCLUSION In summary, it is hereby ORDERED AND ADJUDGED: (a) Respondent Trustees’ and Intervenor Georgia-Pacific’s 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

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In the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida

KAREN AHLERS, a citizen and taxpayer of Florida residing in Putnam County, NEIL ARMINGEON, a citizen and taxpayer of Florida residing in Duval County, ENVIRONMENTAL YOUTH COUNCIL ST. AUGUSTINE, an unincorporated Florida association, FLORIDA CLEAN WATER NETWORK, INC., a non-profit Florida corporation, and PUTNAM COUNTY ENVIRONMENTAL COUNCIL, INC., a non-profit Florida corporation, Petitioners, vs. Case No. 2012-CA-2715 RICK SCOTT, Governor, PAM BONDI, Attorney General, JEFF ATWATER, Chief Financial Officer, and ADAM PUTNAM, Commissioner of Agriculture, as Trustees of the Internal Improvement Trust Fund, Respondents.

ALTERNATIVE WRIT OF MANDAMUS THIS CAUSE having come before the Court upon Petitioner’ Petition for Writ of Mandamus, filed on July 2, 2012, the Court has considered the petition

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and otherwise being fully advised in the premises, is therefore ORDERED AND ADJUDGED: 1. Petitioners’ mandamus petition is facially sufficient. 2. Respondents and Intervenor have sixty (60) days to show cause why the writ should not be issued. 3. Thereafter, Petitioners will have sixty (60) days to reply to Respondents and Intervenor’s responses. 4. If a party wishes to move for summary judgment or partial summary judgment, they must do so within forty-five (45) days after the close of the pleadings. DONE AND ORDERED in Leon County Courthouse, Tallahassee, Florida, this 25 of June, 2013.

CHARLES A. FRANCIS Circuit Judge

Copies Furnished to: Douglas Beason Steven A. Medina Warren K. Anderson, Jr. Terry Cole

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

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

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

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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

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[Note: in retyping for this petition for writ of certiorari, the font size was increased substantially from the original advertisement.]

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

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addition, six 48-inch culverts (four new and 2 replacement culverts) are to be installed along the access road adjacent to the aforementioned bridge. Four sections of unused pipeline running along the same access road are to be removed to allow for wildlife crossing. A wetland classroom is to be constructed that includes a 10-foot wide, 500-foot long elevated boardwalk through wetland and a terminal platform over Rice Creek. Finally, 39.3 acres of forested wetlands buffering the bridge replacement area and wetland classroom will be conserved in a conservation easement. The activity occurs over sovereignty submerged lands that require private easements. The easements have been granted by the Board of Trustees. A 20-year private easement crossing Rice Creek was granted by the Board of Trustees on October 25, 1988 (Easement 00010(3822-54)). A 20-year private easement for the St. Johns River portion of the project was granted by the Board of Trustees on June 26, 2003 (BOT 542535742, Easement 3053D). The activity is located along Highway 216, Palatka, Florida, through wetland

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and uplands, crossing Rice Creek, and terminating in the St. Johns River, a class III water body; In Sections 25-26 & 37, township 09 South, Range 26 East, from approximately latitude 29º41’20”, longtitude 81º39”5”; not in approved Shellfish Harvesting Area, not in an Outstanding Florida Water. The Department will issue the permit with conditions unless a timely petition for administrative hearing is filed pursuant to section 120.569 and 120.57 of the Florida Statues [sic]. The procedures for petitioning for a hearing are set forth below. Rights of Affected Parties Mediation is not available. A person whose substantial interests are affected by the Department’s action may petition for an administrative proceeding (hearing) under section 120.569 and 120.57 of the Florida Statues [sic]. The petition must contain the information set forth below and must be filed (received by the Department) in the Office of General Counsel of the Department at 3900 Commonwealth Blvd., Mail Station 35, Tallahassee, Florida 32399-3000.

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Under rule 62-100.106(4) of the Florida Administrative Code, a person whose substantial interests are affected by the Department’s action may also request an extension of time to file a petition for an administrative hearing. The Department may, for good cause shown, grant the request for an extension of time. Requests for extension of time must be filed with the Office of General Counsel of the Department at 3900 Commonwealth boulevard [sic], Mail Station 35, Tallahassee, Florida 32399-3000, before the applicable deadline. A timely request for extension of time shall toll the running fo [sic] the time period for filing a petition until the request is acted upon. If a request is filed late, the Department may still grant it upon a motion by the requesting party showing that the failure to file a request for extension of time before the deadline was the result of excusable neglect. If a timely and sufficient petition for an administrative hearing is filed, other persons whose substantial interest will be affected by the outcome of the administrative process have the right to petition to intervene in the

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proceeding. Intervention will be permitted only at the discretion of the presiding officer upon the filing of a motion in compliance with rule 28-106.205 of the Florida Administrative Code. [Note the immediately following paragraph is not seen in its entirety in the copy of the advertisement provided by the Department to petitioners, where only the italicized portion is seen. A possibly similar paragraph is found in the 2/18/2005 “Consolidated Notice of Intent to Issue Environmental Resource Permit and Easement to Use Sovereignty Submerged Lands provided by the Department to Georgia-Pacific,” which states as follows:

In accordance with rules 28-106.111(2) and 62-110.106(3)(a)(4), petitions for an administrative hearing by the applicant must be filed within 14 days of publication of the notice or within 14 days of receipt of the written notice, whichever occurs first. Under section 120.60(3) of the Florida Statutes, however, any person who has asked the Department for notice of agency action may file a petition within

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14 days of receipt of such notice, regardless of the date of publication.]

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

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

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

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

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IN THE SUPREME COURT OF FLORIDA

KAREN AHLERS, a citizen and taxpayer of Florida residing in Putnam County, NEIL ARMINGEON, a citizen and taxpayer of Florida residing in Duval County, ENVIRONMENTAL YOUTH COUNCIL ST. AUGUSTINE, an unincorporated Florida association, FLORIDA CLEAN WATER NETWORK, INC., a non-profit Florida corporation, and PUTNAM COUNTY ENVIRONMENTAL COUNCIL, INC., a non-profit Florida corporation, Petitioners, vs. Case No. _______ RICK SCOTT, Governor, PAM BONDI, Attorney General, JEFF ATWATER, Chief Financial Officer, and ADAM PUTNAM, Commissioner of Agriculture, as Trustees of the Internal Improvement Trust Fund, Respondents. ________________________________________/

PETITION FOR WRIT OF MANDAMUS Petitioners, KAREN AHLERS, a citizen and taxpayer of Florida residing in Putnam County, NEIL ARMINGEON, a citizen and taxpayer of

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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 Florida’s 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

1 This petition is styled using the Florida constitution’s 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 Florida’s 1968 constitution, each Trustee has “equal footing,” and Cabinet members are “no longer expected, constitutionally, to capitulate to the Governor’s 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.

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constitutional public trust provision and corollary statutes and rules that must be satisfied. In addition, due process must be met and administrative procedures provided to ensure that citizens and taxpayers are protected.

Petitioners Ahlers and Armingeon and substantial numbers of members of EYC, FCWN, and PCEC are beneficiaries of the constitutional public trust with rights to fish, swim, and recreate in the entire St. Johns River unless prevented from doing so by private use validly authorized by the Trustees. The river is part of the common heritage of the people, designated by Presidential Executive Order as an “American Heritage River.” Their rights are under imminent threat in designated areas of the river through the failure of the Trustees to require that their authorization be obtained for private degradation zones used in association with paper or pulp mill pipelines. “Mixing” of paper mill pollutants is “private use” of sovereignty lands. This use requires proprietary authorization by the Trustees, if it can occur at all.

In the very near future, several private degradation areas on the river will be emanating from a newly constructed Georgia-Pacific paper mill pipeline in Putnam County.2 The private degradation areas are so-called “mixing zones” adjacent to a 1000-foot diffuser structure located perpendicular across the middle of the river. By fall the paper mill expects

2 The mill currently discharges into Rice Creek. Although Georgia-Pacific maintains the river is a better location to discharge, it has no vested right from the Trustees at either location.

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to begin using dedicated areas in the heart of the slow-moving tidally-influenced St. Johns River for each day mixing tons of solids and other wastes inconvenient to Georgia-Pacific. A few inches from the river bottom, the industrial waste constantly will shoot out in both up and down stream directions.

The zone boundaries have been determined, but never formally approved, by the Florida Department of Environmental Protection (“FDEP”). Under FDEP rule, a “limited defined region” can be significantly degraded “to reduce the costs of treatment.”3 Thus, the public is being forced to use its common property to subsidize Georgia-Pacific. Even if FDEP does one day give formal approval to these mixing zones, the Trustees may not abdicate their own fiduciary responsibilities carefully to review the mixing zones in a proprietary process that conforms with due process and is subject to administrative fact-finding. Only then will the

3 The mixing zones were developed under Florida Administrative Code Rule 62-4.244 for specified non-thermal components of paper mill discharges other than nitrogen or phosphorus acting as nutrients. Petitioners are not seeking relief in this petition concerning (a) “public use” of sovereignty lands; (b) potential effects outside of defined paper or pulp pipeline-related mixing zones; (c) thermal discharges; or (d) nitrogen or phosphorus acting as nutrients. “Public use” of sovereignty lands is not covered by the last sentence of Art. X § 11, Fla. Const. (“Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest.”). See discussion in Part IV.D., infra; see also Fla. Admin. Code R. 18-21.003(53) (defining “public utilities”). For purposes of this facial challenge, Petitioners assume FDEP has properly defined the boundaries within which degradation by Georgia-Pacific will occur.

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Trustees be in a position to know whether the private use mixing zones are “contrary to the public interest,” and if not, to establish appropriate terms and conditions of authorization.

FDEP does not own the sovereignty lands; the Trustees do, in trust for the people. Nor does FDEP purport to grant proprietary authorization for mixing zones or, where private use is determined to be appropriate, establish equitable compensation from the private user to the people. In contrast, the Trustees’ duties include conserving and protecting these areas to ensure that they are not subjected to private use contrary to the public’s rights to fish, swim and recreate and that private use only is authorized in accordance with the public trust, due process, and other law.

Petitioners seek expedited resolution of this petition. The Georgia-Pacific pipeline project is expected to be placed into operation within months.4 [E16-7] The Trustees have performed no public interest review of the private use degradation zones and granted no authorization applying to them. In 2003, in a split decision with the then Attorney General voting no, predecessor Trustees approved a private easement for the pipeline corridor only. The decision was based on extremely limited and provisional information, without giving the public a

4 At least one other paper or pulp mill pipeline project reliant on mixing zones (the Buckeye project in Taylor County) also may be constructed at some point. [D171] However, it is the imminent unconstitutional private use of mixing zones related to the Georgia-Pacific pipeline that justifies this Court immediately addressing the Trustee’s abdication.

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clear point of entry to contest the decision.5 The pipeline structure itself is not significantly harmful, lying inert and largely subaqueous in an easement corridor that is a fraction of the total defined mixing area that will be privately appropriated for use by Georgia-Pacific.

When put into use, the paper mill’s degradation zones will constitute an unauthorized and unconstitutional private use of sovereignty lands. Not a penny will have been compensated to the citizens of Florida for the private use of sovereignty lands, loss of resources, and loss of constitutionally-protected public uses associated with the mixing zones.6 Most troubling, money cannot compensate the people of this state for the creation of what are

5 The private easement for the pipeline construction corridor was approved with limited information provided by the FDEP that did not include the mixing zones. Because this action was taken by a prior Governor and Cabinet, on or about May 23, 2012, Petitioners Ahlers, Armingeon, EYC, and FCWN gave the current Trustees notice of their intent to file this petition. [A26-7] Petitioners have received no response from any of the Trustees. 6 The appraisal for the pipeline easement, and the easement document itself, on their face did not cover the mixing zones. One cannot even assume that equitable compensation was obtained for the largely subaqueous pipeline placement because the Trustees have failed to obtain a required reappraisal immediately prior to the time of actual construction. In effect, the Trustees will be giving an additional much larger private easement away to a paper company causing substantially more harm to state lands, and substantially more lost public use and enjoyment, than the pipeline itself, without obtaining just compensation for the beneficiaries of the trust, if the pipeline operations were to commence without appropriate action on their part.

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likely to become multi-generational if not permanent paper mill degradation areas in the heart of the St. Johns River. This Court should take action to ensure that the Trustees cease abdicating their fiduciary duties and do their job before the degrading private paper mill use of mixing zones on the St. Johns River begins. I. JURISDICTION AND QUESTION PRESENTED This Court has original jurisdiction to issue a writ of mandamus pursuant to Article V, Section 3(b)(8) of the Florida Constitution and Rules 9.030(a)(3) and 9.100(a) of the Florida Rules of Appellate Procedure. This case involves imminent private use of public trust lands for paper mill cost-saving degradation areas, without proper authorization from the Trustees, where the Attorney General herself is a Trustee alleged to be acting in violation of fiduciary duties. All citizens and taxpayers of the state, including those who will be required to enforce the law and those who will be required to endure the uncompensated taking for private use of public trust lands for degradation zones, will benefit from Court resolution of this constitutional case. State public trust assets and functions of state government will be adversely affected by protracted litigation concerning the Trustees’ responsibilities.

The Trustees are acting ultra vires, in violation of the public trust embodied in the Florida constitution, and in violation of due process under the Florida and United States constitutions, by not exercising their own independent proprietary judgment and responsibility to protect defined

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

Writ of mandamus is a proper remedy because this petition involves pure questions of constitutional law, and functions of government will be adversely affected unless an immediate determination is made by this Court. See Allen v. Butterworth, 756 So.2d 52, 54 (Fla. 2000) (“[M]andamus is the appropriate

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

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

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wait years to get this Court’s constitutional views on a critical aspect of a subject it has been dealing with for more than a century. See, e.g., St. ex rel. Ellis v. Gerbing, 47 So. 353, 357 (Fla. 1908) (a swamp deed “does not affect the title held by the state to lands under navigable waters by virtue of the sovereignty of the state”). II. STATEMENT OF THE CASE AND FACTS A. Parties

1. Petitioners Petitioner Karen Ahlers is a citizen and

taxpayer of Florida residing in Putnam County. [A1-13] Petitioner Neil Armingeon is a citizen and taxpayer of Florida residing in Duval County. [A14-5] Petitioner EYC is an unincorporated Florida association that works to protect the environment.7 [A16-9] Petitioner FCWN is a non-profit Florida corporation that works to protect Florida waters. [A20-2] Petitioner PCEC is a non-profit Florida corporation that works to protect the environment in Putnam County. [A23-5] Florida public trust lands in which Petitioners are interested include the St. Johns River, an American Heritage River.8 [D1-9] Petitioners Ahlers and Armingeon and substantial numbers of members of Petitioners EYC, FCWN, and PCEC are citizens and taxpayers of Florida who use, enjoy, and benefit from the St. Johns River for 7 EYC sometimes also has used the name Environmental Youth Congress. [A19] 8 The river is a world class fishing, swimming, and recreational use water body, including major fishing tournaments that are based in nearby Palatka and other useful, enjoyable, and beneficial activities that occur in and around the areas designated for Georgia-Pacific mixing zones. [A3-13, D1-9]

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fishing, swimming, and recreation and who enjoy the fish and wildlife at the river. [A1-25] These members of EYC include substantial numbers of young adults whose rights are at stake but who were not of the age of majority in 2003 when the Board approved a private easement for the pipeline corridor. [A17]

2. Respondents Under Article IV Section 4(f) of the Florida constitution, Respondents are the Trustees of the Internal Improvement Trust Fund. See also §§ 253.001, Fla. Stat. (“The existence of the Board of Trustees of the Internal Improvement Trust Fund is reaffirmed. All lands held in the name of the board of trustees shall continue to be held in trust for the use and benefit of the people of the state pursuant to s. 7, Art. II, and s. 11, Art. X of the State Constitution."); 253.12 (“(1) … the title to … all submerged lands owned by the state by right of its sovereignty in navigable freshwater lakes, rivers, and streams, is vested in the Board of Trustees of the Internal Improvement Trust Fund”).9 [C1-91] B. Subject Matter 1. The Public Trust In 1968, Florida voters substantially revised the state constitution. This overhaul included the following provision on sovereignty lands:

Section 11. Sovereignty Lands. The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. Sale or

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

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private use of portions of such lands may be authorized by law, but only when not contrary to the public interest.

[B114-7] Under this version of the provision, “While sale or private use of such lands could be authorized by act of the Legislature, such authorization was possible ‘… only when not contrary to the public interest.’” Dauer, M. J., Bartley, E. R., Marks, T. C., Proposed Amendments to the Florida Constitution, 1970 General Election, Public Administration Clearing Service of the University of Florida, Civic Information Series No. 50, p. 17 (1970) [B114-7].10 In 1970, when Article X, Section 11 was amended by the voters to further tighten controls on “sales” (which thereafter were required to be “in” the public interest), the operative language pertaining to “private use” was unchanged.11 [Id.] Hence, since 1968, by direct democratic action of the people, under the Florida constitution “private use” of even “portions” of sovereignty lands may only be authorized when “not contrary to the public interest.” This was almost four years prior to the

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

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

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

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In addition to the Florida constitution, the Florida statutes make the Trustees’ duties mandatory:

Said board of trustees . . . shall remain subject to and pay, fulfill, perform, and discharge all debts, duties, and obligations of their trust, existing at the time of the enactment hereof or provided in this chapter.

§ 253.02(1), Fla. Stat. The Trustees have the fiduciary responsibility, completely independent of any regulatory responsibilities of the FDEP, carefully to evaluate the public interest associated with private use of portions of sovereignty lands that might impact the public’s rights to use the affected areas.14 The

14 The current cabinet website indicates that the Trustees continue to recognize the public trust doctrine:

The Board of Trustees also administers the state's sovereignty lands, those water bodies within the state's territorial limits that were navigable at the date of statehood. These include coastal shores below mean high water, and navigable fresh waters such as rivers and lakes below ordinary high water. The public status of these lands is protected by the Public Trust Doctrine as codified in Article X, Section 11 of the Florida Constitution.

[C4-5] (emphasis added). The Trustees’ Conceptual State Lands Management Plan further elaborates on their fiduciary responsibilities:

Prior to discussing the activities affecting the utilization of lands vested in the Board of Trustees of the Internal Improvement Trust Fund, it is essential to examine the legal concepts surrounding such trust arrangements.

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

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Trustees acting as a board are “vested and charged with the acquisition, administration, management, control, supervision, conservation, protection, and disposition” of state lands. § 253.03(1), Fla. Stat. 2. The Mixing Zones

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

Conceptual State Lands Management Plan, p. 3 (3/17/1981, revised 7/7/1981 and 3/15/1983). [C56-91]

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FDEP classifies the St. Johns River in the area of the mixing zones as Class III, with designated uses of “Fish Consumption; Recreation, Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish and Wildlife.” Fla. Admin. Code R. 62-302.400. Under Section 403.061(11), Florida Statutes, the Legislature have given FDEP authority “to establish reasonable zones of mixing for discharges into waters.” FDEP in turn has a rule for establishing mixing zones in surface waters. Fla. Admin. Code R. 62-4.244 (“Mixing Zones: Surface Waters”). Under this rule, water quality and the designated uses of a water body may be “significantly degraded” in “a limited defined region.” Fla. Admin. Code R. 62-4.244(1)(a) and (f). According to FDEP’s policy judgment, significant portions of a river effectively can be lost to the public for their FDEP-designated use as long as the cumulative mixing zones on the river do not exceed 10% of its length, Florida Administrative Code Rule 62-4.244(1)(i)1, which for the St. Johns River would be 31 of its 310 miles. [D1] The mixing zones “may be allowed so as to provide an opportunity for mixing and thus to reduce the costs of treatment.” Fla. Admin. Code R. 62-4.244(1)(a).

Based on this rule, FDEP has defined several St. Johns River mixing zones for the Georgia-Pacific pipeline project. [D34-83, 101-14, 172-211] The mixing zone for “chronic toxicity” listed in the new proposed NPDES permit [D172-211] was not mentioned in the 2002 NPDES permit DEP granted

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for the facility [D34-83].15 No mixing zones have been approved by FDEP as required to take effect under the 2002 NPDES permit.16 [D40, 50] Nonetheless, Georgia-Pacific will be using the mixing zones in the St. Johns River when the pipeline is completed this fall [E16-7].

The mixing zones are between 108 feet (33 meters) and 2408 feet (734 meters) in width for the 1000-foot distance of the diffuser structure that is attached to the pipe (plus additional footage on both ends of the diffuser). [D34-83, 108-14, 172-211] While the Trustees are abdicating their responsibility, portions of the St. Johns River will be constantly, and potentially permanently, degraded through private use mixing zones, not finally approved even by FDEP, where water quality standards will not be met

15 On the other hand, FDEP has determined that Georgia-Pacific 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, 172-211] 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]

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for chronic toxicity, un-ionized ammonia, turbidity, specific conductance, and color/transparency.17

3. The Private Pipeline Corridor Easement

The Trustees have made no findings concerning the public interest of allowing, or issued any document authorizing, the private use mixing zones.18 [C95-173] Zones of degradation or lost public use are not covered in any Trustee private easement or other proprietary authorization. Both in terms of the privately used area and the nature of the private use, the zones go beyond the existing easement.19

17 In addition to the fact that FDEP now has concluded that a chronic toxicity mixing zone will be required, Georgia-Pacific has been found by USEPA through high volume testing to exceed the applicable water quality for dioxin, which primarily is present in the solids, tons per day of which will be released into the mixing zones. [D115-43, 160-9] FDEP normally accepts paper and pulp mill dioxin tests with detection limits set well above the water quality criterion. [D34-83, 115-43, 172-211] If dioxin later materializes in streambed sediments, FDEP disregards the sediment data in assessing stream water quality. [D170] Cost savings also will result from allowing Georgia-Pacific to dump its “salt cake” into the mixing zones, driving up specific conductivity. [D144-63] 18 Like their predecessors [C94], the Trustees have not given the public notice of a clear point of entry to request an administrative hearing to challenge the Trustees’ thinking. The Trustees’ decision-making process does not list administrative procedures. [C5] Petitioners have attempted to raise the issues with the Trustees [A26-7] but received no response. 19 The narrowest of the mixing zones are more than two times as wide as the private easement, and, unlike the pipeline [C165-73], their effects would be significant and ongoing. [D34-83, 108-14, 172-211] The largest mixing zone, relating to color/transparency, is almost fifty times wider than the

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[C165-73] No compensation has been paid for the mixing zones, and any compensation paid was limited to the narrow subaqueous pipeline corridor based on an appraisal restricted to the subaqueous 50-foot pipeline corridor.20 The limited “public interest” analysis in the easement approval package did not refer or apply to the mixing zones.21 easement. The project description of the Georgia-Pacific agenda item was:

PROJECT DESCRIPTION 1. Preempted area (square feet): 220,997

Structure dimensions: 4,420 ft. long x 30 to 48 inches in diameter Easement dimensions: 4,420 ft. long x. 50 ft. wide

2. Dredging: Materials excavated from the river bottom will be temporarily stockpiled on adjacent barges. This material will be used for trench backfill after the pipe has been placed. There will be no material removed from the St. Johns River.

3. Navigational Data: Not applicable due to the subaqueous nature of the structure.

[C106]. 20 The special condition in the prior Trustees’ easement approval requiring reappraisal immediately prior to the beginning of pipeline construction has not even been met. [C100, 104, 107] 21 This analysis focused on facts that would not be germane to the mixing zones, including the notion that the buried pipeline itself “will maintain essentially natural conditions” and “will not significantly impact fish and wildlife, and other natural resources, including public recreation and navigation.” [C106] The approval package does not even discuss the existence of the mixing zones, their areas, or the nature of their private use of sovereignty lands. The Trustee analysis of the project does not even reference the mixing zones or their possible effects:

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The St. Johns River is approximately 7,500 feet wide at the point where the pipeline would be constructed and the new pipe would be approximately 4,420 feet long. The new pipeline would discharge treated wastewater through a diffuser near the middle of the river. The pipe would be constructed of high-density polyethylene. The initial 3,420-foot-long section of solid pie is 48 inches in diameter. The 1,000-foot-long diffuser segment will be three different diameters, successively reducing from 48 inches to 42 inches to 30 inches. Each portion of the diffuser will have two-inch nozzles attached to the top of the pipe at three-foot intervals and extending one foot upward from the top to the pipe. These nozzles will extend above the river bottom a few inches and will be angles up and down stream to enhance mixing with the river’s water. Pipeline construction would be done using barge mounted equipment operating with an area contained by a turbidity barrier or silt curtain. Materials excavated from the river bottom would be temporarily stockpiled on adjacent barges. This material would be used for trench backfill after the pipe has been placed. There would be no material removed from the river. A benthic survey was conducted on August 16, 1995 to determine the submerged lands characteristics at the project site. The results of the bottom sampling indicated that there was a narrow band of very young, sprouting seedlings of eelgrass, Vallisneria Americana, located 125 feet to 150 feet from the shoreline. No submerged or emergent vegetation or other life forms were observed along the remainder of the proposed pipeline corridor. No recent survey has been conducted.

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4. The Proprietary Authorization System That Applies to “Private Use” of Any Portion of the St. Johns River

Assistance to industry in the form of public water body degradation for a time was an integral part of state policy aimed at attracting industry to the state.22 This policy emanated in part from a

The pipe would be buried deep enough so as not to interfere with other activities in the river. However, the pipeline path would encroach into an area previously used for disposal of dredged materials by the Putnam County Port Authority. The spoil disposal area was authorized by Board of Trustees’ Easement No. 25099(2314-54) issued on May 13, 1970. The applicant has obtained authorization from the easement holder to encroach within the easement.

[C103] 22 This petition is not using the term “corporate welfare” in reference to this form of assistance. The term corporate welfare more commonly is associated with monetary assistance, such as the large tax credits paper and pulp companies receive. [E3-8] A public advocate has referred to any “government largess” to corporations as “corporate welfare” (“[F]ree market ideology, of course, does not extend to corporate welfare. The very corporations that sponsor this hypocritical campaign continue to feed at the public trough, using their political connections to obtain tax breaks, subsidies, inflated contracts and other government largess. This ideology is useful, it seems, only when it lines the pockets of those preaching it.” Prepared Statement of Joan Claybrook, President, Public Citizen, Hearing Before the Subcommittee on Consumer Affairs, Foreign Commerce and Tourism of the Committee on Commerce, Science, and Transportation, United States Senate, 107th Congress 2nd Session,

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constitutional fifteen-year tax exemption passed during the Great Depression. Maloney, F. E., Plager, S. J. and Baldwin, F. N., Water Law and Administration: The Florida Experience, § 111.2(c) p. 320-1 [B1-16]. Gradually, the policy was narrowed to focus statutorily on particular counties or water bodies.23 Id. However, with the advent of modern http://ftp.resource.org/gpo.gov/hearings/107s/87971.txt, p. 25 (July 18, 2002) (emphasis added).) As discussed infra, under the Trustees’ own rules if assistance legitimately can be provided to private companies in the form of degradation zones, the value of the assistance would need to be monetized to determine equitable compensation to the public. Before getting to the monetary issue, however, the Trustees would have to ascertain the public interest concerning the mixing zones, including all environmental, social and economic costs. Florida Administrative Code Rule 18-21.003(51) states:

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

23 Although “Florida has wisely abandoned its legislative authorization to pollute the state’s waters,” a remnant of this policy is at Section 403.191(3), Fla. Stat., which limits the effect of special legislation passed in 1947 for the Fenholloway River in Taylor County. Id. at 321; see also Little, J. W., New Attitudes About Legal Protection for Remains of Florida’s Natural Environment, 23 U. Fla. L. Rev. 459, 461 n. 13 (1970-1971) (“The ugly episode of turning the Fenholloway River into

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water pollution laws, experts on Florida water law quickly became concerned with variance provisions in state water pollution law, particularly when tied to cost-saving:

Most pollution control measures are expensive, and they probably will become more expensive in the future. Postponement for cost reasons only creates greater problems in the future.

Maloney, F. E., Plager, S. J. and Baldwin, F. N., Water Law and Administration: The Florida Experience, § 113.7(c) p. 336. Scholarly concern was heightened by the tendency of the Trustees, as well as of the predecessor to the FDEP and other state agencies, to become captive to private interests:

As Professor Sax has demonstrated, bureaucratic agencies, including those directly charged with protecting public interests, frequently subvert environmental protection in favor of private interests or perpetuating personal hegemony over bureaucratic processes. In other words, the very agencies created to afford protection sometimes may be the biggest impediments to obtaining it. … a duty of constant vigilance devolves upon the public media and concerned citizenry to

an industrial sewer with legislative approval is one of the darkest in Florida's history of exploitation. Fla. Laws Spec. Act. 1947, ch. 24952.”) [B118-73].

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review continually the actions, and especially the inactions, of these agencies.

Little, J. W., New Attitudes About Legal Protection for Remains of Florida’s Natural Environment, 23 U. Fla. L. Rev. at 498 (footnotes omitted). To ensure a complete approach to protecting the public interest in water, both pollution control laws and the public trust doctrine were considered under the topic of water law. See Maloney, F. E., Plager, S. J. and Baldwin, F. N., Water Law and Administration: The Florida Experience, § 13 at 27 (referring to “the historical marriage of the law governing title to beds with the public and private uses in the overlying waters”), § 132.2 p. 415 (calling for “the preparation of a legal brief for the citizens of Florida defining the relationship between public and private interests in water use”).

Under the proprietary system for which the Trustees have fiduciary responsibility, the Trustees must ensure that the private user will not cause an interference with the public’s rights in those portions of navigable waters, unless this is not contrary to the public interest and just compensation is provided. No person may commence any excavation, construction:

or other activity involving the use of sovereign … lands of the state, the title to which is vested in the board of trustees of the Internal Improvement

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Trust Fund under this chapter, until the person has received the required lease, license, easement, or other form of consent authorizing the proposed use.

§ 253.77(1), Fla. Stat. (emphasis added). This system was not intended to require authorization for traditional public activities involving the use of sovereignty lands, such as fishing, swimming, and recreation. In contrast, “other activity” requiring authorization from the Trustees is activity that may diminish public use and enjoyment of sovereignty lands. That was and is the most important part of the Trustees’ obligation. In 2011, the Trustees repealed its “intent” section, Florida Administrative Code 18-21.001, as being “duplicative, unnecessarily burdensome, or no longer necessary.” [C11-4] However, this statement reveals the intent and purpose behind the system, whether or not the Trustees wish to acknowledge it:

18-21.001 Intent. The intent and purpose of this rule is: (1) To aid in fulfilling the trust and fiduciary responsibilities of the Board of Trustees of the Internal Improvement Trust Fund for the administration, management and disposition of sovereignty lands; (2) To insure maximum benefit and use of sovereignty lands for all the citizens of Florida; (3) To manage, protect, and enhance sovereignty lands so that the public may continue to enjoy traditional uses

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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

24 § 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).

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delegated “administration” or “disposition” duties by FDEP could eliminate the Trustees’ own “vested and charged” obligations for “control, supervision, conservation, [and] protection” of sovereignty lands. § 253.03(1), Fla. Stat. A mixing zone is not conservation and protection of sovereignty lands. While there are places FDEP protects water quality, mixing zones are not one of them.

The Trustees state in Florida Administrative Code Rule 18-21.002(1) that the Department of Environmental Protection “is vested” with “[r]esponsibility for environmental permitting of activities and water quality protection on sovereignty and other lands.” This is not a “delegation” of proprietary duties. The same rule also recognizes that FDEP’s “water quality protection” responsibility is “cumulative” with the proprietary rules. In 1993, FDEP was created out of a merger of the former Florida Department of Environmental Regulation (“FDER”) with the former Florida Department of Natural Resources (‘FDNR”) (see Ch. 93-213, Laws of Florida). The pre-merger version of the rule expressed the cumulative nature of the proprietary rules, maintained by the then FDNR, with FDEP’s water quality responsibility as follows:

(1) These rules are to implement the administrative and management responsibilities of the board and department regarding sovereign submerged lands. Responsibility for environmental permitting of activities and water quality protection on sovereign and other lands is vested with

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the Department of Environmental Protection. These rules are considered cumulative. Therefore, a person planning an activity should consult other applicable department rules as well as the rules of the Department of Environmental Protection.

Fla. Admin. Code R. 18-21.002(1) (3-15-1990) [C15] (emphasis added).25 The current version of the rule,

25 Applying this prior version of the rule, the Third District observed:

1. Under Article X, Section 11, of the Florida Constitution, sovereignty submerged lands are held in trust for all the people of this State. Private use of such submerged lands is allowed when "authorized by law." The legislature has authorized Plaintiff to administer the State's sovereignty lands, and has directed Plaintiff to adopt rules and regulations governing the exercise of its statutory duties. Sections 253.03(1) and (7), Florida Statutes. The Department of Natural Resources, Division of State Lands (the "Department"), is empowered to "perform all staff duties and functions" related to the administration of the submerged lands held by Plaintiff. Section 253.002, Florida Statutes. 2. In accordance with Section 253.03(7), Florida Statutes, Plaintiff has adopted rules governing the administration of sovereignty lands and those rules are contained in Chapter 18-21, Florida Administrative Code, (formerly, Chapter 16Q-21, in effect at the time Defendant Barnett requested and Plaintiff issued the Consent of Use). The Rules "implement the administrative and management responsibilities" of both Plaintiff and the

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approved in 2009, continues to recognize the cumulative nature of the proprietary rules with other, i.e., non-proprietary, rules of FDEP:

(1) These rules are to implement the administrative and management responsibilities of the Board, the Department of Environmental Protection and the Department of Agriculture and Consumer Services regarding sovereignty submerged lands. Responsibility for environmental permitting of activities and water quality protection on sovereignty and other lands is vested with the Department of Environmental Protection. The responsibility for managing aquacultural activities on sovereignty lands is vested with the Department of Agriculture and Consumer Services. These rules are considered cumulative. Therefore, a person planning an activity should consult other applicable rules of the Department of Environmental Protection and the Department of Agriculture and Consumer Services regarding aquacultural activities.

Department regarding sovereignty lands. Section 18-21.002(1), Florida Administrative Code.

Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, v. Barnett, 533 So.2d 1202, 1205 (Fla. 3d DCA 1988).

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

The Trustees’ rules allow FDEP’s biological assessment to “be considered in evaluating specific requests to use sovereignty lands,” not to take the place of proprietary authorization.26 Fla. Admin. Code R. 18-21.004(2)(c). A host of Trustees’ rules

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

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must be applied to the mixing zones.27 These include careful determination of just compensation for any

27 Rule 18-21.004 provides numerous policies, standards, and criteria that the Trustees must apply:

Management Policies, Standards, and Criteria. The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands, except activities associated with aquaculture. The management policies, standards, criteria, and fees for aquacultural activities conducted on or over sovereignty submerged lands are provided in Rules 18-21.020 through 18-21.022, F.A.C. (1) General Proprietary. (a) For approval, all activities on sovereignty lands must be not contrary to the public interest, except for sales which must be in the public interest. (b) All leases, easements, deeds or other forms of approval for sovereignty land activities shall contain such terms, conditions, or restrictions as deemed necessary to protect and manage sovereignty lands. ***

(e) Equitable compensation shall be required for leases and easements which generate revenues, monies or profits for the user or that limit or preempt general public use. Public utilities and state or other governmental agencies exempted by law shall be excepted from this requirement. ***

(g) Activities on sovereignty lands shall be limited to water dependent activities only unless the board determines that it is in

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mixing zones that are otherwise properly authorized by the Trustees.28

the public interest to allow an exception as determined by a case by case evaluation…. ***

(2) Resource Management. (a) All sovereignty lands shall be considered single use lands and shall be managed primarily for the maintenance of essentially natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming. Compatible secondary purposes and uses which will not detract from or interfere with the primary purpose may be allowed. (b) Activities which would result in significant adverse impacts to sovereignty lands and associated resources shall not be approved unless there is no reasonable alternative and adequate mitigation is proposed. (c) The Department of Environmental Protection biological assessments and reports by other agencies with related statutory, management, or regulatory authority may be considered in evaluating specific requests to use sovereignty lands. Any such reports sent to the department in a timely manner shall be considered. ***

(i) Activities on sovereignty lands shall be designed to minimize or eliminate adverse impacts on fish and wildlife habitat, and other natural or cultural resources. Special attention and consideration shall be given to endangered and threatened species habitat. …

28 Assuming the Trustees can validly market Florida waters to a private company, under Florida Administrative Code Rule 18-21.011(2)(b)2 issuance of a private easement for a mixing zone would have to consider the enhanced property value or profit to

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In 2003, an agenda item on the easement application came before the Governor and Cabinet only weeks after receipt of the easement application was publicly announced. [C94-164] The agenda item package the Governor and Cabinet had before them did not mention any of the mixing zones. [C95-136] Discussion of even the general concept of “mixing” in the meeting was highly limited, non-specific, and focused on the supposed benefits of obtaining greater dilution in the river, not on the conditions that would occur locally within mixing zones. [C137-64]

In summary, the prior Trustees’ lack of information about the mixing zones is at best a text book illustration of the need for due process and citizen participation to protect the public’s rights. Points of entry can sometimes cure selective education by staff and applicants intent on a certain outcome. Nonetheless, it is clear that the prior Trustees were not asked, and did not grant, a private easement or other proprietary authorization for the mixing zones, which to this day have never been approved even by FDEP regulatory procedures. The be gained by the grantee if the easement were approved. [See also C9-10, 56-91] However, the true value of the St. Johns River is immeasurable, not only to the people but also to the fish and wildlife the public enjoys. At a recent workshop on the public trust doctrine conducted by the Florida Fish and Wildlife Conservation Commission (“FFWCC”) participants discussed “the state’s responsibility is to keep these trust resources from being depleted or wasted,” and called for the FFWCC and public trust beneficiaries to act in partnership. [E9-15] In contrast, FDEP worked extensively with Georgia-Pacific to obtain the results sought by the company. [D10-28] Not long after Georgia-Pacific won approval for its pipeline, the FDEP Secretary took a job with a paper company. [E1-2]

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Trustees have never examined these mixing zones nor explained to the people they are required to serve why they are not contrary to the public interest, or set forth specific temporal, geographical, and financial terms of approved private use on the face of a sovereignty lands authorization. See Fla. Admin. Code R. 18-21.03(21) (“Easement” means a non-possessory interest in sovereignty lands created by a grant or agreement which confers upon the applicant the limited right, liberty, and privilege to use said lands for a specific purpose and for a specific time.”). The people, who are beneficiaries of the public trust, never have been informed that the Trustees actually have made a conscious decision concerning these private uses, nor for where, how long, and why, nor given the right to seek an administrative hearings to aid in the formulation or modification of such a decision.

III. NATURE OF RELIEF SOUGHT According to the publicly-announced intention of Georgia-Pacific, its paper mill pipeline to the St. Johns River will go online in the very near future. Since 1968, under the Florida Constitution, not even the Florida Legislature can allow Florida’s navigable waters to be treated like the private property of paper and pulp companies. These companies are not free to infringe upon traditional public rights, including fishing, swimming, and recreation, without the Trustees’ authorization, determination of the public interest, and obtaining of just compensation. The Trustees cannot simply abdicate responsibility for the situation. They are fiduciaries after all. Abdication will cause or contribute to the

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degradation of portions of the river every bit as much as an overt decision by the Trustees to authorize the private use, with the added flaw of failing to obtain the Trustees’ rationale, terms, and conditions, including just compensation.

The Court is respectfully requested to direct the Trustees to not abdicate their public trust responsibilities with respect to paper and pulp mill pipeline-related mixing zones in navigable waters, and specifically (a) that the Trustees’ require that these private mixing zones obtain the Trustees’ express authorization prior to use; and (b) that the Trustees only give such authorization after undertaking careful review of the mixing zones, in a process with clear points of entry to the public, to determine the public interest and all terms and conditions of authorization, including just compensation for the people. This matter has great urgency and should be decided expeditiously by this Court in favor of Petitioners.29 IV. ARGUMENT

A. The Public Trust in the River The portions of the St. Johns River where the Georgia-Pacific mixing zones will occur are sovereignty land. They are not portions of a watercourse where “the State of Florida has disclaimed any interest in the property as sovereign

29 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.

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land.” Cf. Kester v. Tewksbury, 701 So. 2d 443, 445 (4th DCA 1997). The river and the public trust include the water column as well as the sediments and all that lies beneath. Key early United States Supreme Court public trust cases made this point. Illinois Central Railroad Company v. Illinois, 146 U.S. 387, 456 (1892), quoted approvingly from Martin v. Waddell, 41 U.S. 367, 16 Pet. 367, 410 (1842) that “the people of each State” had the “absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the Constitution to the general government.”30 Similarly, this Court long has recognized that “[t]he rights of the people of the

30 “The primary importance of the classic public trust doctrine is that it prevents the public/government from being excluded from the use of water resources as a result of privatization of the resource or other abdication of public control.” Craig, R. K., States, Their Public Trust Doctrines, and Water Resources Management: How Relevant is Illinois Central Railroad These Days?,” American Bar Association, Section of Environment, Energy, and Resources (40th Annual Conference on Environmental Law, March 17-19, 2011). [B249-53] That the state public trust includes the water column as well as the underlying sediment continues to be the position of the federal government. The Submerged Lands Act, 43 U.S.C. 1301, et seq., in 1953 confirmed the states’ jurisdiction over “submerged lands and waters.” United States v. California, 436 U.S. 32, 37 (1978); Murphy v. Department of Natural Resources, 837 F.Supp. 1217, 1221 (S.D. Fla. 1993); Barber v. State of Hawai’i, 42 F.3d 1185, 1190 (9th Cir. 1994); Ankersen, T.T., Hamann, R., Anchoring Away: Government Regulation and The Rights of Navigation in Florida, Center for Governmental Responsibility, p. 5 (2006) (http://nsgl.gso.uri.edu/flsgp/flsgpt06002.pdf).

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States” are “in the navigable waters and the lands thereunder.” Broward v. Mabry, 58 Fla. 398, 50 So. 826, 829 (Fla. 1909).31

The focus of the public trust in navigable waters is to safeguard against use that is adverse to

31 Note also that Florida follows the doctrine of cujus est solum ejus est usque ad coelom. Orman v. J & D. J. Day and the Apalachicola Land Company, 5 Fla. 385, 389 (1853); Smith v. Guckenheimer & Sons, 42 Fla. 1, 27 So. 900, 905 (1900). As explained by Blackstone Commentaries, Bk. 2, Ch., p. 18:

Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards. Cujus est solum, ejus est usque ad coelum, is the maxim of the law, upwards; therefore no man may erect any building, or the like, to overhang another's land: and, downwards, whatever is in a direct line between the surface of any land, and the center of the earth, belongs to the owner of the surface; as is every day's experience in the mining countries. So that the word "land" includes not only the face of the earth, but every thing under it, or over it. And therefore if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows.

Section 253.12, Florida Statutes, also describes the Board as being vested with “all submerged lands owned by the state by right of its sovereignty in navigable freshwater lakes, rivers, and streams.” See also Trustee’s website (“navigable fresh waters such as rivers and lakes below ordinary high water”) [C4]; accord D’Alemberte, T., The Florida State Constitution, A Reference Guide, pp. 142-3 (Greenwood Press 1991) (“The issue of navigable waters and the title to those waters and the land beneath the water was one of the major legal issues of the 1970s and 1980s. At stake is the water property and land that was once navigable and now is sometimes dry. … The state received sovereignty land—state-owned lands—when it entered the Union. These lands included property up to the high-water mark along waterways.”).

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the public interest in those waters. While some of the public interest lies in and below the bed of a river, the bed of the river is not the sum total of the public’s interest in a river.32 The public has broad rights in

32 A navigable river is much more than its bed:

We are dealing with navigable rivers not "so-called lakes, ponds, swamps, or overflowed lands." We are not persuaded that the legislature intended by this statute to divest the state of title to navigable waters which were not, or could not be, conveyed to private owners. To accept this position would mean, inter alia, that if a navigable river gradually and imperceptively changed its course onto previously conveyed lands, the navigable river would become private property and the public would retain the dry river bed. The high and low water marks of navigable waters change over time, but these natural changes do not divest the public of ownership of the navigable waters. Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S. Ct. 517, 38 L. Ed. 2d 526 (1973); Municipal Liquidators, Inc. v. Tench, 153 So.2d 728 (Fla. 2d DCA), cert. denied, 157 So.2d. 817 (Fla. 1963).

Coastal Petroleum, Inc. v. American Cyanamid, 492 So.2d at 343. As stated by the Second District in Brannon v. Boldt, 958 So.2d 367 (Fla. 2d DCA 2007):

Riparian rights are rights to use the water. Broward v. Mabry, 58 Fla. 398, 50 So. 826, 829 (Fla. 1909). There are two categories of riparian rights. Id. at 830. The public has the right to use navigable waters for navigation, commerce, fishing, and bathing and "other easements allowed by law." Id. Owners of riparian land share these rights with the public. Id. The public's right to use navigable waters or the shore derives from the public trust doctrine. See

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

Hayes v. Bowman, 91 So. 2d 795, 799 (Fla. 1957). The doctrine embodies the common law rule that the sovereign held title to all the land below the high-water mark in trust for the use of the people. Id. The specific nature of the trust in favor of all the subjects . . . was that those subjects should have the free use of such waters and shores. The waters . . . were of common right, public for every subject to navigate upon and fish in without interruption; . . . the shore was also of common right public. The use of each was in the subjects for the inherent privileges of passage and navigation and fishing, as public rights . . . . State v. Black River Phosphate Co., 32 Fla. 82, 13 So. 640, 643 (Fla. 1893); see also Hayes, 91 So. 2d at 799 (noting that the principle uses of the water were navigation, bathing, and fishing).

958 So.2d at 372 (footnote omitted); see also Christie, D.R., Marine Reserves, The Public Trust Doctrine and Intergenerational Equity, Journal of Land Use, Vol. 19:2, 427, 434 (“The state has the authority to regulate public trust uses to minimize conflicts and assure the protection of waters and wildlife that are fundamental to the enjoyment of all other public trust uses.”); Tiffany Real Property § 263, p. 591 (1903) (“The private owner of land under water is entitled to the ice formed on the water, while the public are entitled to that formed over land belonging to the state.”).

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from the shore, unaccompanied by a general right to bathe there …”).

B. The Trustees’ Fiduciary Obligation Not to Abdicate Constitutional and Other Procedural Safeguards in the Protection of the People’s Rights to the River

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

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While the Trustees may ultimately make decisions on private use mixing zones with which some members of the public disagree, abdication of procedural safeguards is inexcusable because it avoids processes established to ensure the Trustees are careful and forthright in their decisions. The Trustees are the citizens’ fiduciaries with respect to sovereignty lands and should act worthy of this trust, both procedurally and substantively.

A trustee responsibility is a heavy fiduciary burden that must be carefully undertaken in the interest of the beneficiaries of the trust, not in the interest of private companies who wish to degrade that trust to make and save money. Trustees should not forget who they are working for or allow FDEP’s unofficial mixing zone decisions to somehow morph into sovereign submerged lands authorization by atrophy of Trustee procedural responsibilities:

The Trustees are fiduciaries for plaintiff, not established agents. Their role is to manage the Trust assets for the benefit of those entitled to share in the Trust assets, both the income and the principal. That the Trustees may engage the services of an expert in managing Trust assets to assist them in

Capeletti Bros. v. State, 362 So. 2d 346, 348 (Fla. 1978). In addition, the Trustees now are informed that Georgia-Pacific will be using mixing zones that will impact the public interest in the St. Johns River. Thus, the nature of the new information which the Trustees must now consider, and give the citizens of Florida the opportunity to adjudicate through administrative procedures, has far greater importance to the public interest than the mere construction of a pipeline.

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

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who is apparently honest and properly qualified, and reasonable supervision is used over him, the trustees will not be held responsible for loss or damage caused by the negligence or dishonesty of the agent. [c.o.] But, if the regular course of business in administering the trust does not require that the trustee part with the custody of the funds . . . and a loss [is] thereby eventually sustained, the trustee will be liable to make such loss good."); Mann v. Cooke, 624 So. 2d 785 (Fla. 1st DCA 1993) (by law trustee may not delegate discretionary trust powers).

Morgan Stanley DW Inc. v. Halliday, 873 So. 2d 400, 404 (Fla. 4th DCA 2004); see also In re the ESTATE of Brewer CORBIN, 391 So. 2d 731, 732 (3d DCA 1980) (“An estate's personal representative acts as a fiduciary of the beneficiaries, Dacus v. Blackwell, 90 So.2d 324 (Fla. 1956), and is, in practical effect, a trustee of an express trust. Beck v. Beck, 383 So.2d 268, 271 (Fla.3d DCA 1980).”). This is certainly no less the case when the trustees are state-elected officials and the trust document is the organic law of the state. See Secret Oaks Owner’s Association, Inc. v. Department of Environmental Protection, 704 So.2d 702, 705-6 (Fla. 5th DCA 1998) (“in the exercise of its fiduciary duties”); see also generally, Reimer, M.K., The Public Trust Doctrine: Historic Protection for Florida’s Navigable Rivers and Lakes, Fla. Bar J. LXXV, No. 4 (April 2001).

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The Trustees may not have acted previously in cases of this precise sort.34 (A paper mill pipeline 34 The Conceptual State Lands Management Plan has not been revised in almost three decades. Ironically, the plan itself acknowledges the risk of Trustees rigidly acting on the basis of yesterday’s information rather than as the flexible competent land managers any private beneficiary would expect:

The Plan, like the ongoing management program, must remain flexible enough to accommodate necessary changes. A static plan would soon become an anachronism as new legislative and administrative directions are implemented. To avoid this problem, provisions must be made to establish an orderly process for continuous updating of the adopted Plan. The preferred update process would involve placing additions, deletions, or modifications on the normal Board Agenda for policy-level direction and guidance. This would provide the most timely Plan modification system, while maximizing public notice and input. Such modifications could be proposed by either the public, departmental staff, or directly by the Board. Affirmative Board action on such Agenda items would effectively accomplish the required modification. II. GOALS A. Achieve full proprietary responsibility for the management of those state-owned lands vested in the Board of Trustees of the Internal Improvement Trust Fund. Chapter 253.03, Florida Statutes, establishes the legal basis for the Board of Trustees to assume an active role in the administration of those state-owned lands vested in the Board of Trustees. Section 253.03(7), Florida Statutes, directs the Board of Trustees "...to administer to all state-owned lands...so as to insure maximum

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benefit and use." In a legal context the word "Administer" means "to superintend the execution, use, or conduct of; to manage affairs; to take charge of business. The Board of Trustees, in meeting its obligations as both title holder and administrator of certain state-owned lands, must assert a proprietary role in the acquisition, management, and disposition of those lands. State-owned lands should be managed with recognition that land is a resource and not a commodity. Consistent with this concept, state-owned lands should be treated with equal or greater proprietary respect than that usually afforded privately owned lands.

Conceptual State Lands Management Plan, p. 5 (3/17/1981, revised 7/7/1981 and 3/15/1983) (emphasis in original). For instance, when it was adopted, the plan “strongly discouraged placement of sanitary landfills or other similar facilities on state-owned lands.” The reasoning involved applies equally to allowing Georgia-Pacific to dump in mixing zones:

Activities of this nature often preclude or severely restrict management options. Additionally, use of state-owned property for purposes such as sanitary landfills rarely benefits the public at large. Instead, such uses usually benefit only a very limited segment of the population. It is questionable whether using state-owned lands for sanitary landfills meet the statutory test of "maximum benefit and use". Policies 1. Discourage use of state-owned lands for sanitary landfills and similar facilities and uses. 2. Consider use of state-owned lands for sanitary landfills, or similar activities, only when no alternative locations are available.

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with large mixing zones emanating from a lengthy diffuser structure constructed across Florida’s only American Heritage River thankfully has never happened before.) But they have acted in analogous cases, i.e., cases involving other sorts of activities that are different in type but have similar although far lesser impacts. In Board of Trustees of the Internal Improvement Trust Fund v. Levy, 656 So. 2d 1359, 1360 (Fla. 1st DCA 1995), the First District examined the history in Florida of the public trust doctrine concerning sovereignty lands. Although it was a dock case, its description of the doctrine is equally applicable to the mixing zone form of private use on sovereignty lands:

The appellee concedes the power and authority of the state, acting through the Board of Trustees of the Internal Improvement Trust Fund, to prohibit altogether the construction of docks or other structures waterward of the mean or ordinary high water line within aquatic preserves. This authority is based, in part, upon the adoption in Florida of the "Public Trust Doctrine," a principle derived from the English common law, incorporated into the organic law of this state pursuant to a

Such instances will require a detailed land reclamation plan acceptable to the Board. 3. Phase out existing sanitary landfill leases as expeditiously as possible. 4. Prohibit non-state agency sanitary landfills and similar facilities on state-owned lands.

Plan at p. 25. [ ]

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constitutional amendment in 1970, followed by legislative action authorizing private use of portions of sovereignty lands under navigable waters when not contrary to the public interest. See Hayes v. Bowman, 91 So. 2d 795 (Fla. 1957); Yonge v. Askew, 293 So. 2d 395 (Fla. 1st DCA 1974); Graham v. Edwards, 472 So. 2d 803 (Fla. 3d DCA 1985), rev. denied, 482 So. 2d 348 (Fla. 1986); Krieter v. Chiles, 595 So. 2d 111 (Fla. 3d DCA 1992), rev. denied, 601 So. 2d 552 (Fla.1992), cert. denied, 121 L. Ed. 2d 244, 113 S. Ct. 325 (1992). The "Public Trust Doctrine" is embodied in the following language found in Article X of the Florida Constitution…. In Levy the Trustees successfully argued that

they were entitled to reject docks beyond 500 feet in length. Board of Trustees of the Internal Improvement Trust Fund v. Levy, 656 So. 2d at 1360 (“This rule challenge was filed by Dr. Levy, appellee, in response to the decision of the Division of State Lands, acting as staff for the Trustees, denying Dr. Levy's request to extend his existing 500-foot dock to approximately 600 feet in order to reach greater water depth. … The denial of Levy's request for the dock extension was based upon Florida Administrative Code rule 18-201.004(5)(a)1. (1994), which in essence provides that all docking facilities, whether for private residences, commercial, industrial or public, must comply with certain standards and criteria, the first being that no dock

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"shall extend waterward of the mean or ordinary high water mark more than 500 feet or 20 percent of the width of the water body at that particular location whichever is less ....").

Here Petitioners are focused on the opposite situation—Trustees who have not carried out their public trust responsibility when it comes to paper mill mixing zones. But here too the Trustees must not act arbitrarily and must establish a clear basis for their conduct. The Trustees have altogether failed to make an analysis of this private use of submerged lands. In Levy, the Trustees were diligent, as fiduciaries would be expected to be, and duly credited by the Court:

[A] logical and reasonable basis for the maximum dock length is found in the evidence of record as recited in the order under review. The hearing officer found, in part, that no single-family docks in aquatic preserves extend over 500 feet into the water. Further, in Charlotte Harbor, the average length of a single-family residential dock is 200 feet. In promulgating the predecessor to the rule in question, originally adopted in 1981, the trustees attempted to balance competing interests such as environmental, aesthetic, recreational, and private commercial. There was some concern that previously authorized docks had infringed upon the riparian access of adjacent upland owners. The 500-foot limitation was

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added to the rule by amendment in 1985. In setting the criteria for dock length, the hearing officer found, the trustees attempted to set a limit that would not result in the denial of more than a negligible number of dock applications, based on historic dock application data and predominant vessel lengths of under 27 feet. Indeed, as the hearing officer found in deciding that the rule was not capricious: "The 500-foot limitation appears to have been the product of a process involving the thoughtful balancing of varying factors." In our view, these findings of fact contained in the order under review are inconsistent with the conclusion that the rule is arbitrary. To the contrary, we view these findings as ample to show that the trustee's decision was a reasoned one, supported by facts and logic, and that their decision could in no sense be labeled "despotic." Agrico, 365 So. 2d at 763.

656 So.2d at 1363.35 The proprietary documents facially demonstrate that the

35 Docks themselves effect light penetration, but mostly from a distance. In contrast, Georgia-Pacific will have light-blocking color/transparency and turbidity mixing zones directly in the water, emanating upward and outward from the bottom of the river. The potential impacts or barriers created by the mixing zones could significantly reduce populations of anadromous species and adversely affect the public’s fishing opportunities. Yet thus far the Trustees have shown no concern for or even

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Trustees have not thus far carefully evaluated the mixing zones, much less given a proprietary easement for them. No diligent fiduciary conduct has occurred, and significant uncompensated damage to the people of Florida’s constitutionally-protected assets is imminent. Even if the Trustees’ predecessors had approved the pipeline itself in accordance with proper public notice of the right to request an administrative hearing, the nature of the use of public trust resources is about to change abruptly and semi-permanently with the use of the mixing zones.36

awareness of the mixing zones. Unlike the dock of someone such as Dr. Levy, the agent of transparency loss in this case is physically in the water, whereas much of a dock is a few feet above the water. 36 The fact that the Trustees’ predecessors sometimes may have done a poor job of safeguarding the public trust against Georgia-Pacific or other paper and pulp companies does not excuse the current Trustee’s continuation of the negligent pattern. Whatever rights the pipeline easement holder was previously granted by the Trustees’ predecessors are held subject to the Trustees’ continuing authority over sovereignty lands. See Secret Oaks Owner’s Association, Inc. v. Department of Environmental Protection, 704 So.2d 702, 706 (Fla. 5th DCA 1998) (“Whatever rights a riparian owner enjoys have been held subject to the state’s ownership of the sovereign lands.”) The easement holder at most has the unexercised right to seek authorization from the Trustees for additional private use in the river associated with the mixing zones. See Parlato v. Secret Oaks Owners Association, 793 So.2d 1158 (Fla. 1st DCA 2001) (riparian easement holder determined to be entitled to apply to put dock on St. Johns River). And even if private use mixing zones eventually are authorized by the Trustees, this must not be because of corporate welfare and, as a further safeguard, it

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C. The Court Need Not Reach All Aspects of the Public Trust Doctrine

As discussed supra at note 3, this petition is limited in its scope to private use mixing zones associated with paper and pulp mill pipelines. It primarily rests on a portion of the Florida constitution that by its terms does not apply to “public use” or “public utilities.”37 In addition, Florida’s

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

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constitutional public trust doctrine, at issue in this petition, is by its terms limited to sovereignty lands.38 Nor is the Court being

flow of water through the Canal to dilute the sewage and carry it away. In the nature of things it was not practicable to stop the deposit without substituting some other means of disposal.”). Public sewage disposal also can raise concern for public water supply. Darling v. City of Newport News, 249 U.S. at 542 (“The fundamental question as to the rights of holders of land under tidal waters does not present the conflict of two vitally important interests that exists with regard to fresh water streams. There the needs of water supply and of drainage compete.”). 38 In contrast, some legal scholars have advocated for extension of public trust analysis to disputes involving air and other interests beyond the water or other sovereignty lands. In a seminal article discussing this position, Joseph L. Sax observed that the doctrine historically had not been extended this far. Sax, J. L., The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 472, 556-7 (1969-1970). It historically applied to “waters”:

It is clear that the historical scope of public trust law is quite narrow. Its coverage includes, with some variation among the states, that aspect of the public domain below the low-water mark on the margin of the sea and the great lakes, the waters over those lands, and the waters within rivers and streams of any consequence. Sometimes the coverage of the trust depends on a judicial definition of navigability, but that is a rather vague concept which may be so broad as to include all waters which are suitable for public recreation.

Id. (emphasis added; footnoted omitted). This case also plainly involves private use within the Trustee’s public trust

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asked to assess the public interest with respect to the mixing zones for the Trustees. That is the Trustees’ responsibility, which they may not abdicate.

V. CONCLUSION The sovereignty lands of the St. Johns

River are no less the people’s lands because they happen to be within the area of Georgia-Pacific’s intentional degradation zones rather than under a residential dock or permanently-moored houseboat. Fiduciaries in any sense of the word must carefully look at anticipated private use mixing zones associated with paper or pulp mill pipelines. They must expressly determine whether they are contrary to the public interest and ensure that they are authorized only in accordance with clear terms and conditions that are fair to the interests of the people, whose property the companies are despoiling.

Dated June ____, 2012. Respectfully submitted,

responsibilities. It does not require an ecological analysis to discern the Trustee’s jurisdiction. The St. Johns River will be adversely affected by these private use mixing zones—the zones by definition will allow degradation directly in public water. Cf. Hunter, D. B., An Ecological Perspective on Property: A Call for Judicial Protection of the Public’s Interest in Environmentally Critical Resources, 12 Harv. Envtl. L. Rev. 311, 358 (1988) (described the “improved version of the harm/benefit distinction” in Just v. Marinette, 56 Wis.2d 7, 201 N.W.2d 761 (1972), where a filling permit on private property was denied because it would affect the public's right in navigable waters).

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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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IN THE DISTRICT COURT OF APPEAL OF FLORIDA

FIRST DISTRICT KAREN AHLERS, NEIL ARMINGEON, ENVIRONMENTAL YOUTH COUNCIL ST. AUGUSTINE, FLORIDA CLEAN WATER NETWORK, INC., and PUTNAM COUNTY ENVIRONMENTAL COUNCIL, INC., Appellants/Petitioners Below, v. DCA NO: 1D14-3243 LT CASE NO: 2012 CA 2715 RICK SCOTT, PAM BONDI, JEFF ATWATER, and ADAM PUTNAM, as Trustees of the Internal Improvement Trust Fund, Appellees/Respondents Below, and GEORGIA-PACIFIC CONSUMER OPERATIONS LLC, Appellee/Intervener Below. __________________________________________/

INITIAL BRIEF ON MERITS ***

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STATEMENT OF THE CASE AND OF THE FACTS

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

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The St. Johns River is Florida’s longest river, a critical natural resource, and an American Heritage River. [IV, 519-25] It is a navigable water at, and up and down river from, the Georgia-Pacific outfall. [II, 63-73] The subaqueous land beneath the St. Johns River at issue in this case is thus “held by the state, by virtue of its sovereignty, in trust for all the people.” Art. X Sec. 11, Fla. Const.

Georgia-Pacific’s Putnam County paper-mill pipeline is currently discharging massive amounts of waste into the St. Johns River. [V, 688-727] This effluent includes various constituents, including solids, up to 17,500 pounds per day of which may be discharged to the river. [IV, 624-727]

Via a pipeline, this effluent is discharged into “mixing zones” in both up and down stream directions from a diffuser structure with nozzles that protrude a short distance above the river bottom. [III, 445, 493; IV, 624, 695] These mixing zones are contained within the St. Johns River. In the area of the applicable mixing zones, river water will be rendered chronically toxic and exceed otherwise applicable standards for un-ionized ammonia, turbidity, specific conductance, and color/transparency, with the color/transparency mixing taking substantially more river area to be accomplished. Specifically, the mixing zones are 33 meters in width for chronic toxicity, un-ionized ammonia, turbidity, and specific conductance, and 734 meters in width for color, all for the 1000-foot distance of the diffuser structure that is attached to the pipe (plus additional footage on both ends of the diffuser). [IV, 550-99, 624-30; V, 688-727] Although

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the mixing zones are in water which is on and above the subaqueous sovereignty lands held in trust, the term “mixing zones” is not synonymous with the subaqueous sovereignty lands held in trust. [IV, 624-30] Other portions of the pipeline project physically lay beneath the subaqueous sovereignty lands held in trust beneath the St. Johns River that is “held by the state, by virtue of its sovereignty, in trust for all the people.” [III, 446]

The mixing zone boundaries now have been defined by the Florida Department of Environmental Protection (FDEP) but were not formally approved until late 2012 with FDEP’s issuance of a new National Pollutant Discharge Elimination System (NPDES) permit for the facility. [VI, 845-927] FDEP’s regulatory evaluation focuses on its “water quality standards,” not the potential impacts of solids and other constituents of a discharge on the river bottom, including the river bottom within the mixing zones. In 2003, when the Board of Trustees preliminarily voted to approve the Georgia-Pacific Sovereignty Submerged Lands Easement for the pipeline itself during a free form proceeding,1 none of the mixing zones had been authorized by FDEP, and the mixing zone for chronic toxicity was not even proposed. [IV, 556, 566]

The FDEP briefing package provided to the Board of Trustees did not mention the anticipated mixing zones. [III, 442-IV, 478] The general subject of the river’s diluting capability in comparison to that

1 The Trustees conceded in their motion for summary judgment that the Board of Trustees approval in 2003 was only preliminary. [VIII, 1213]

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of the then current discharge location in Rice Creek was mentioned at the Board of Trustee’s 2003 meeting, but the anticipated mixing zones, anticipated conditions in the mixing zones, and the anticipated effect on the people’s traditional uses such as fishing, swimming, and recreation in the mixing zones were not discussed. [IV, 479-506]

Respondents have never granted even preliminary approval for Intervener Georgia-Pacific’s private use mixing zones or of submerged lands below the mixing zones outside of the pipeline easement, which are also subaqueous sovereignty lands held in trust. Nor was a determination made by the Board of Trustees even preliminarily as to whether Georgia-Pacific’s private use of the submerged lands which potentially may be smothered in paper mill solids and of the water above the subaqueous sovereignty lands held in trust would be “contrary to the public interest.” [III, 446-8] In 2005, FDEP directed Georgia-Pacific to publish in the Palatka Daily News a lengthy and grossly confusing “notice of intent to issue permit.” [IV, 600-616] Because DEP and Georgia-Pacific had closely cooperated for years in relation to every detail of this project [IV, 526-44], it is unlikely that Georgia-Pacific was surprised by any aspect of this notice. After describing at some length what appears to be a FDEP wetlands permit, the newspaper notice stated:

The activity occurs over sovereignty submerged lands that require private easements. The easements have been granted by the Board of Trustees. A 20-year private easement crossing Rice

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Creek was granted by the Board of Trustees on October 25, 1988 (Easement 0010(3822-54)). A 20-year private easement for the St. Johns River portion of the project was granted by the Board of Trustees on June 26, 2003. (BOT 542535742, Easement 30680).

[IV, 601] (Emphasis added.) This clearly suggested that the easements were matters that had already been decided. It also stated much further down in the notice that “this intent to issue constitutes an order of the Department on its own behalf on the application for the regulatory permit and on behalf of the Board of Trustees of the Internal Improvement Trust Fund on the application to use sovereignty submerged lands,” without clarifying if this was about the 1988 application, the 2003 application, or both. [IV, 602]

This published notice of intent to issue permit substantially differed in its clarity and content from the “Consolidated Notice of Intent to Issue Environmental Resource Permit and Easement to Use Sovereignty Submerged Lands” issued to Georgia-Pacific at the same time. [IV, 605-13] The Consolidated Notice of Intent to Issue Environmental Resource Permit and Easement to Use Sovereignty Submerged Lands also stated [IV, 610]:

The Department has determined that the proposed activity, because of its size, potential effect on the environment or the public, controversial nature, or

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location, is likely to have a heightened public concern or likelihood of request for administrative proceedings. Therefore, pursuant to Section 373.413(4), F.S., and paragraph 62-343.090(2)(k), F.A.C., you (the applicant) are required to publish at your expense the enclosed Notice of Intent to Issue.2

In 2009, the Board of Trustees, acting through its agent FDEP, purported to issue the 20-year private easement to Georgia-Pacific for the subaqueous effluent outfall structure, referencing an expiration date of June 23, 2023. [IV, 507-15] This easement did not include the space or matter, including the water, above the subaqueous sovereignty lands held in trust, nor does it include or reference any associated mixing zones. Thus, this easement did not include the private use by Intervener Georgia-Pacific of the space and matter, i.e., water, above the subaqueous sovereignty lands held in trust nor did it include the mixing zones. The narrowest mixing zones, for chronic toxicity, un-ionized ammonia, turbidity, and specific

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

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

The Course of the Proceedings

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

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Public Trust Doctrine, integrated into the Florida Constitution as Article X Section 11, to evaluate the public interest associated with private use of portions of sovereignty lands for paper and pulp mill “mixing zones” that might impact the public’s rights to use the affected areas, and to comply with due process to ensure that the interests of citizens and taxpayers are protected.

On July 11, 2012, Georgia-Pacific filed a Motion to Intervene which was granted on May 23, 2013. [V, 746-52] On July 12, 2012, The Public Trust Environmental Legal Institute of Florida, Inc. filed an Amicus Curiae Brief in support of the Petitioners. [V, 753-7] The Florida Supreme Court has statewide jurisdiction and had original jurisdiction to issue a Writ of Mandamus pursuant to Article V, Section 3(b)(8) of the Florida Constitution and Rules 9.030(a)(3) and 9.100(a) of the Florida Rules of Appellate Procedure. However, on August 23, 2012 this case was transferred to the Circuit Court in Leon County pursuant to Harvard v. Singletary, 733 So.2d 1020 (Fla. 1999). [I, 7] The Florida Supreme Court expressly wrote that the transfer should not be construed as “a determination that the transferee court has jurisdiction ….” Chief Judge Charles A. Frances, who assigns judges and controls dockets in the Second Judicial Circuit, see Administrative Order 2010-10 and 2012-08, elected not to reassign the case. On May 23, 2013, he issued an Order Scheduling Case Management Conference for June 24, 2014, which was conducted as scheduled. [V, 803-4] On June 25, 2013, he issued

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an Alternative Writ of Mandamus, finding that Petitioners’ mandamus petition was facially sufficient, giving Respondents and Intervener sixty days to show cause why the writ should not be issued, giving Petitioners sixty days thereafter to reply to Respondents’ and Intervener’s responses, and requiring any motions for summary judgment or partial summary judgment to be filed within forty-five days after the close of the pleadings. [V, 807-8] On August 23 and 26, 2013, respectively, Respondents and Intervener responded in opposition to the Alternative Writ of Mandamus and moved to dismiss. [VI, 809-VII, 1108] On October 21, 2013, Petitioners filed their reply and motion for summary judgment. [VIII, 1109-50] On December 5, 2013, Respondents and Intervener filed their separate motions for summary judgment and responses Petitioners’ motion for summary judgment. [VIII, 1155-1420, 1447-1466] On February 6, 2014, Petitioners submitted a response to Respondents’ and Intervener’s motions for summary judgment. [IX, 1421-46] On February 13, 2014 Chief Judge Francis heard oral arguments on the motions for summary judgment and allowed the parties to submit proposed orders.

At all times, the Trustees have been represented in the proceedings below by the Florida Department of Environmental Protection (FDEP) Office of General Counsel rather than their own independent legal counsel. Because the negligent and potentially improper conduct of FDEP staff is involved, this placed FDEP in an effective position to control the positions put forward by the Trustees,

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including the proposed order that was submitted to Chief Judge Francis.

Disposition in the Lower Tribunal On June 20, 2014, Chief Judge Francis issued

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

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Palatka Daily News pertaining to the pipeline easement, summarily “finding” that this notice “provided a clear point-of-entry to challenge the Department’s proposed agency action with respect to the requested sovereign authorization for the construction of the pipeline.” [X, 1556] It concludes that Appellants have alternative legal remedies of suing under Section 403.412, Florida Statutes, if they believe that “water quality standards” are being violated and that Appellants are barred from bringing this mandamus action because they needed to “exhaust available administrative remedies” pertaining to the 2012 NPDES permit available with FDEP. [1559-61]

SUMMARY OF THE ARGUMENT No judge of the Leon County Circuit Court should have been entering any final judgment in this case because, under the local action rule, the Leon County Circuit Court lacked subject matter jurisdiction. The judge from the Leon County Circuit Court should have transferred the case to Putnam County Circuit Court, and, even now, that is the appropriate destination for this case.

If a judge from the Leon County Circuit Court did have subject matter jurisdiction, the judge would have needed to rule for Appellants on their motion for summary judgment. Under no circumstances should any judge have granted summary judgment for Appellees.

The people have the right to expect that the Trustees of public lands will rigorously execute their public trust and due process responsibilities. That is

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what fiduciaries are supposed to do. Where the Trustees work through an agent, as here with FDEP, they must ensure that their agent does the same. It is easy to see why FDEP would not want the Trustees, especially now, to begin doing their jobs. FDEP is not a disinterested staffing entity but an employer of material witnesses to what may have been intentional fraud upon the public to circumvent scrutiny of a private easement for the Georgia-Pacific waste transfer pipeline.

That pipeline is designed to transfer tons of toxic waste per day that Georgia-Pacific does not want on its own property onto the property of the public. That does not serve the public interest but rather a private interest of the owners of Georgia-Pacific to make money using public lands as dumping grounds. FDEP, in its regulatory capacity, implements a separate statute to countenance crony capitalism at the expense of a piece of Floridians’ common heritage. The public trust doctrine does not so countenance.

The Trustees must be held accountable in this case because they and their agent have not acted responsibly under both the public trust doctrine and due process. Had the agent FDEP acted responsibly, if only in the seemingly mundane matter of ensuring that valid newspaper notice was issued, an administrative proceeding might have resulted to find the facts and formulate the Trustees’ action that would be in the public interest, consistent with the Trustees’ rigorous public trust responsibilities in relation to Georgia-Pacific’s pipeline. Given that the Trustees are not willing to comply with their public

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trust and due process obligations in relation to Georgia-Pacific, the judicial branch must make them do so.

ARGUMENT

*** II. ASSUMING THE LEON COUNTY CIRCUIT

COURT HAD JURISDICTION, THE CIRCUIT JUDGE ABUSED HIS DISCRETION

Standard of Review Beyond the overarching issue of subject

matter jurisdiction, see Section I., supra, assuming arguendo the Leon County Circuit Court had jurisdiction, Chief Judge Francis abused his discretion.3 Judicial discretion to deny relief in mandamus proceedings, including in the context of easements, public property, and emerging constitutional doctrines, is not unbridled. See People of State of Illinois Collum v. Board of Education of School Dist No 71, Champaign County, Ill, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948) (construing the First and Fourteenth Amendments, U.S. Supreme Court reversed state appellate court which had

3 See Rosado v. State, 1 So.3d 1147 (Fla. 4th DCA 2009) (reversed denial of petition for writ of mandamus to pro se litigant, deeming that “court-appointed counsel was obligated to submit to him, free of charge, documentation from his case file prepared at the public's expense”; “An appellate court reviews a trial court's decision on a petition for writ of mandamus under the abuse of discretion standard of review. See Topps v. State, 865 So.2d 1253, 1257 (Fla.2004) ("Since the nature of an extraordinary writ is not of absolute right, the granting of such writ lies within the discretion of the court.")”).

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affirmed denial of petition for mandamus which alleged that religious teachers, employed by private religious groups, were permitted to come weekly into the school buildings; “The prayer of her petition was that the Board of Education be ordered to 'adopt and enforce rules and regulations prohibiting all instruction in and teaching of all religious education in all public schools in Champaign District Number 71, * * * and in all public school houses and buildings in said district when occupied by public schools.'.”); Nollan v. California Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987) (construing the Takings Clause of the Fifth Amendment, as incorporated against the States by the Fourteenth Amendment, U.S. Supreme Court reversed state appellate reversal of writ of mandamus directing that a permit condition be struck where California Coastal Commission granted a permit to appellants to replace a small bungalow on their beachfront lot with a larger house upon the condition that they allow the public an easement to pass across their beach, which was located between two public beaches).4

4 In his concurring opinion in In re: Jane Doe 13-A, Case No. 1D13-5458 (Fla. 1st DCA 4-11-2014), Judge Wetherell recently reviewed the abuse of discretion standard:

The seminal case in Florida discussing the nature of judicial discretion and the appellate standard for reviewing discretionary decisions is Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). In that case, the Florida Supreme Court explained that an abuse of judicial discretion should be found only when no reasonable person would agree with the lower court's ruling. Id. at

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1203 ("If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion."). However, the Court also emphasized that:

The trial court's discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification for the result. The trial courts' discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner. Judges dealing with cases essentially alike should reach the same result. Different results reached from substantially the same facts comport with neither logic nor reasonableness.

Id. (emphasis added); see also Albert v. Miami Transit Co., 17 So. 2d 89, 90 (Fla. 1944) ("Judicial discretion is a discretion guarded by the legal and moral conventions that mold the acceptable concept of right and justice. If this is not true, then judicial discretion, like equity, will depend on the length of the judge's foot, the state of his temper, the intensity of his prejudice, or perhaps the zeal to reward or punish a litigant."); Barber v. State, 5 Fla. 199, 206-09 (1853) (Thompson, J., concurring) (explaining the important role that appellate review of discretionary decisions plays in preserving the rule of law and furthering justice, and citing Lord Coke for the proposition

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Courts must interpret and apply applicable legal doctrines when they have jurisdiction over a case. Sometimes bureaucrats fail to safeguard the public interest. In that situation, typically a well-healed commercial interest is the beneficiary.5 Such is the case here. Whether or not FDEP applies its own water quality regulations correctly, it may not, as agent for the Trustees, undercut the Trustees’ public trust and due process obligations.

The people of Florida are entitled to an effective remedy, not a stern lecture by the offending agent that they should tolerate the injustice.6 In this

that "whoever hath power to act at discretion, is bound by the rule of reason and of law").

In re: Jane Doe 13-A, Case No. 1D13-5458 at pp. 10-11 (Wetherell, J., concurring). 5 This is crony capitalism, which is supposedly rejected by Georgia-Pacific ownership. [V, 800-2] 6 Particularly where the agent has effectively insulated its actions from administrative review through an invalid constructive notice, upon discovery of the situation mandamus must be available to the people of Florida to remedy the situation as in the days before administrative review was routinely available. Such relief should not just be available to disfavored commercial interests. See State ex rel. Inv. Corp. of South Fla. v. Board of Business Regulation, 227 So.2d 674, 677 (Fla., 1969) (“Under the posture of this case, it is not necessary for us to decide at this time the scope of the authority of the Board of Business Regulations, or their power, to adopt the rules of appellate procedure. Nor is it necessary to decide whether the Board of Business Regulations has the authority by appellate review to modify or set aside a discretionary order of the Division of pari-mutuel wagering setting racing dates. [I]n the situation here mandamus is an appropriate remedy available to petitioner.”) This is no less the case when public duties under constitutional provisions approved by the people of Florida are before a court. See Plante v. Smathers, 372 So.2d

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case, “the acceptable concept of right and justice,” see Albert v. Miami Transit Co., 17 So. 2d at 90, is molded by the public trust and due process doctrines. With no analysis of these doctrines, Chief Judge Francis simply adopted FDEP’s “water quality regulation only” policy preference. FDEP has pretenses of “protecting” the river but in reality is allowing the “degrading” of the river, plus has the specific incentive to cover up its ineptitude, if not outright collusion, with Georgia-Pacific, in its agent role for the Trustees. FDEP is not the disinterested agent of the people’s so-called Trustees.7 Where

933 (Fla., 1979) (affirming granting of writ of mandamus to Common Cause and individuals on the basis “that article II, section 8(a), is self-executing; that candidates for elected constitutional office must make the full and public financial disclosure prior to or at the time they qualify; and that, if a candidate fails to make such disclosure, the secretary of state must decline to accept the candidate's qualifying papers”; “Our form of government is based upon an enlightened choice by an informed electorate, and in Florida the people have expressly declared their desire that this information be made available to them by candidates for elected constitutional office.”) 7 All of the Trustees of the people’s sacred trust property were named as respondents in the petition for writ of mandamus, and none has risen to the occasion or approached the case as a “trustee” deserving of the name. None wishes to discipline his or her own irresponsible agent and raise the ire of a powerful transnational company. All of the Trustees, including the Attorney General, should have recognized this conflict of interest on the part of FDEP and provided the people of Florida with their independent investigations of and responses to this situation. See State ex rel. Shevin v. Yarborough, 257 So.2d 891 (Fla., 1972) (“the Attorney General does have status to represent the State as a consumer and to make all appropriate effort to hold down the rates and in order to insure a

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

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

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A. The Circuit Judge Failed to “Rigidly Circumscribe” the Trustees’ Authority by the Public Trust Doctrine

The Trustees want to allow Georgia-Pacific to

use public waters “for private good.” This is the opposite of their sacred trust to the citizenry of Florida. The Trustees’ public trust authority is “rigidly circumscribed by this common law doctrine” known as the public trust doctrine. 5F, LLC v. Dresing, __ So.3d __, 39 Fla. L. Weekly D1473, D1476 (Fla. 2d DCA 7/16/2014) (quoting Mariner Props Dev., Inc. v. Bd of Trs. of the Internal Improvement Trust Fund, 743 So.2d 1121, 1122 (Fla. 1st DCA 1999)). This authority cannot “be stripped from the State.” Id. (citing State ex rel. Ellis v. Gerbling, 47 So. 353, 355 (Fla. 1908)). The states “cannot abdicate general control over such lands and the waters thereon, since such abdication would be inconsistent with the implied legal duty of the states to preserve and control such lands and the waters thereon and the use of them for the public good.” Id. (emphasis added).

Article X Section 11 of the Florida Constitution (see also Section 253.001, Florida Statutes) further expressly mandates that the Trustees hold all lands under navigable waters in trust for all people, and that the private use of such lands be authorized only when not contrary to the public interest. The crux of the public trust doctrine issue before the Court is whether the Trustees failed to perform any of their duties to act as fiduciaries of this land held in trust for the use and enjoyment of

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its citizens when Georgia-Pacific sought to use the land for the site of a pipeline to discharge toxic waste into the St. Johns River in order to save money in its paper mill operation.

The Trustees’ position seems to be that the public’s environmental, social, and economic concerns in the Trustees’ decision-making process must be only about what goes on beneath the river bottom and not take into account what goes on both on and above the river bottom. This is akin to suggesting that an absent real property owner would not care that his or her fiduciary were allowing potentially tons per day of chronically toxic or otherwise degraded waste to be left on his or her property.

It is not the law-making branch of government’s prerogative to allow such an infringement to the public’s traditional rights, and certainly such intent should not be presumed by the judicial branch. See State v. Black River Phosphate Co., 32 Fla. 82, 13 So. 640, 648 (1893). The Trustees suggest that, as a matter of law, because the Legislature has not affirmatively acted to give the Trustees omnibus responsibility for the water column, only FDEP can be interested in the water column as it relates to the impacts of pollution, even if it is clear on the face of FDEP rules that it may be acting for cost-saving reasons to benefit a private user in the form of a polluter. See Fla. Admin. Code R. 62-4.244(1)(a) (mixing zones “may be allowed so as to provide an opportunity for mixing and thus to reduce the costs of treatment”).

While the term “water column” has not been

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defined in Florida case law it has been referenced by Florida Courts. See, e.g., Avatar Development Corp. v. State, So.2d 199 (Fla. 1998); Morton v. Hardwick Stove Co., 138 So.2d 807 (Fla. 2nd DCA 1961) (although the Morton case does not involve a “water column” as the term is used in this case). For the purposes of this case the term “water column” is understood to mean that section of water above the subaqueous sovereignty lands held in trust, the limits of which are defined: on the bottom by the subaqueous sovereignty lands held in trust; on the top by the surface of the water; and on the sides by the borders of the subaqueous sovereignty land held in trust itself. The term “water column” is defined in Section 253.67(4), Florida Statutes, as “the vertical extent of water, including the surface thereof, above a designated area of submerged bottom land.” However, this definition is only explicitly applicable to Sections 253.67-253.75. Nevertheless, the term “water column” as used in this context is consistent with the definition provided in Section 253.67(4).

Article X Section 11 of the Florida Constitution states in whole:

Sovereignty lands.— The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. Sale of such lands may be authorized by

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

Section 253.001, Florida Statutes, states in whole:

Board of Trustees of the Internal Improvement Trust Fund; duty to hold lands in trust.— The existence of the Board of Trustees of the Internal Improvement Trust Fund is reaffirmed. All lands held in the name of the board of trustees shall continue to be held in trust for the use and benefit of the people of the state pursuant to s. 7, Art. II, and s. 11, Art. X of the State Constitution.

Article II Section 7 of the Florida Constitution states in part:

(a) It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise and for the conservation and protection of natural resources.

Section 253.12, Florida Statutes, states in part:

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Title to tidal lands vested in state.— (1) [T]he title to all … submerged lands owned by the state by right of its sovereignty in navigable freshwater lakes, rivers, and streams, is vested in the Board of Trustees of the Internal Improvement Trust Fund.

The provisions of Chapter 253 of the Florida Statutes:

shall be liberally construed for accomplishing the work authorized and provided for or intended to be provided for by this act, and when strict construction would result in the defeat of the accomplishment of any part of the work authorized by this act, and a liberal construction would permit or assist in the accomplishment thereof, the liberal construction shall be chosen.

§ 253.785, Fla. Stat. Pursuant to Florida Administrative Code Rule 18-21.005:

(1) … It is the intent of the Board that the form of authorization shall grant the least amount of interest in the sovereignty submerged land necessary for the

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activity. … For activities not specifically listed, the Board will consider the extent of interest needed and the nature of the proposed activity to determine which form of authorization is appropriate.

(e) Easement. A sovereignty submerged land easement is required for the following public or private activities. …6. Oil, gas and other pipelines.

7. Intake and discharge structures more than 10 feet waterward of the mean or ordinary high water line.

(3) Requests for … easements on sovereignty submerged lands shall be processed in accordance with the notice and hearing requirements of Section 253.115, F.S.

Section 253.115’s notice and hearing requirements include:

(1) After receiving an application in compliance with such forms as may be required by this chapter requesting the board to … grant an easement on, over,

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under, above, or across any land to which it holds title, the board must provide notice of the application. … (2) … If the board of trustees, the department, or a water management district, as is appropriate, determines that the sale, lease, exchange, or granting of an easement is not contrary to the public interest, or is in the public interest when required by law, it may approve the proposed activity. …

(Emphasis added.) Thus Chapter 253, Florida Statutes, makes it explicit that when presented with a request for an easement for a private use of space on, over, under, or above sovereignty land, the Trustees shall determine that the granting of the easement is not contrary to the public interest, and only then may it approve the proposed activity. Florida Administrative Code Rule 18-21.004 further sets out criteria the Respondents must analyze in determining whether to grant an easement for use of sovereignty land. It states in part:

The following management policies, standards, and criteria shall be used in determining whether to approve … all requests for activities on sovereignty submerged lands …

(1) General Proprietary. (a) For approval, all activities on

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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

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

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… (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 sense—by the erection of buildings and the like—is not material.” Id.9

9 Florida courts have recognized the controlling precedent of U.S. v. Causby on a number of occasions. See, e.g., Fields v. Sarasota-Manatee Airport Authority, 512 So.2d 961 (Fla. 2nd DCA 1987); Hillsborough County Aviation Authority v. Benitez, 200 So.2d 194 (Fla. 2nd DCA 1967) (citing Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962) which itself summarized Causby as stating, “the use of land presupposes the use of some of the airspace above it.”). These cases involve a landowner’s right to prevent another’s interference with the landowner’s use of the material above his/her land. There are many similar but distinct cases that involve a landowner’s right to the material above, and below, his/her land. See, e.g., Village of Tequesta v. Jupiter Inlet Corporation, 371 So.2d 663 (Fla. 1979) (holding that the “English rule” which held “to whomsoever the soil belongs, he owns also to the sky and to the depths” was replaced by the so-called “American” or “reasonable use” rule which holds “use your own property so as not to injure that of another”); Koch v. Wick, 87 So.2d 47 (Fla.1956); Cason v. Florida Power Co., 74 Fla. 1, 76 So. 535 (Fla. 1917); Bassett v. Salisbury Manufacturing Co., 43 N.H. 569 (1862). Nonetheless, the Florida Supreme Court reiterated in Village of Tequesta that “[t]he right of the owner to ground water underlying his land is

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The public trust doctrine is an ancient legal stewardship doctrine protecting the public’s interest in public lands and waters. It has evolved and expanded over 1,500 years and has been continually recognized and enforced by Florida courts. The doctrine holds that there are certain lands and waters which are sovereign and are held in trust for the equal benefit for all the people. Some private use of the trust assets may be allowed, but only if the proposed private use is not contrary to the public interest. See generally, Brickell v. Trammell, 82 So. 221, 226 (Fla. 1919); State v. Black River Phosphate Co., 13 So. 640, 644 (Fla. 1893)). Taken together, Article X Section 11 of the Florida Constitution, Sections 253.01 and 253.12, Florida Statutes, as well as long-standing legal principles stand for the proposition that the Trustees have a constitutional duty to control the use of the water column above the subaqueous sovereignty lands held in trust. Thus, private use of the water column above the subaqueous sovereignty lands held in trust may be authorized by the Respondents, “but only when not contrary to the public interest.” Art. X Sec. 11. Fla. Const. The Office of the Governor of Florida, one of the parties that makes up the

to the usufruct of the water and not to the water itself” (emphasis added), “usufruct” being defined as “a right to use and enjoy the fruits of another’s property for a period without damaging or diminishing it.” Thus, Florida recognizes the long-standing property law principle that the ownership of a particular piece of land, here sovereign submerged land, presupposes the use of the material, here water, above it, and that this is a separate and distinct issue from whether that landowner owns the water above his/her land.

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Appellees in this case, has acknowledged that the state has jurisdiction over the water column. On July 2, 1971, “The Governor mentioned the state’s position that it had jurisdiction over the water column ….” Board of Trustees Minutes, 7/2/1971.10 [III, 372-83]

Moreover, Chapter 253, Florida Statutes, itself recognizes that the Respondents have authority over the space above the subaqueous sovereignty land held in trust. Section 253.665(1) states that the “Board of Trustees of the Internal Improvement Trust Fund of this state is authorized and empowered to grant unto riparian owners … easements … permitting such riparian owners … to construct, maintain and operate structures and facilities on, in and under the bed of any navigable stream or any river owned in whole or in part by the state ….” And explicitly, Section 253.68(1) states:

To the extent that it is not contrary to the public interest … the board of trustees may lease or authorize the use of submerged lands to which it has title for the

10 The notion that the public trust doctrine applies above subaqueous sovereignty land held in trust is also followed in other jurisdictions. In Palmer v. Commonwealth of Virginia Marine Resources Commission, 48 Va. App. 78, 628 S.E.2d 84 (2006 Va. App.), the Virginia Marine Resources Commission informed a private landowner who had built a shed at the end of his pier that his pier was in violation of the public trust doctrine and must be removed. The Court ruled in favor of the Virginia Marine Resources Commission and held that the Commonwealth had a right to control all structures built over subaqueous land, even where those structures do not actually touch the land itself.

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conduct of aquaculture activities and grant exclusive use of the bottom and the water column to the extent required by such activities. … Such leases or authorizations may permit use of the submerged land and water column for either commercial or experimental purposes. … Prior to the granting of any such leases or authorizations, the board shall by rule establish and publish guidelines to be followed when considering applications for lease or authorization. Such guidelines shall be designed to protect the public’s interest in submerged lands and the publicly owned water column.

(Emphasis added.) While this particular section relates to aquaculture activities, of which discharging paper mill effluent is not included, it is clear that the Florida Legislature has itself recognized the Respondents’ authority and responsibility of managing the water column above these subaqueous sovereignty lands held in trust in such a manner as to protect the public’s interest in submerged lands and the publicly owned water column.11

11 That both sovereignty lands and the associated water column are to be protected by the Trustees as fiduciaries under the Public Trust Doctrine is supported by the language in the aforementioned provisions, e.g.:

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Respondents may delegate to the FDEP authority over sovereignty lands and the water column above these subaqueous sovereignty lands held in trust as Section 253.002 states in part,

Department of Environmental Protection, water management districts, Fish and Wildlife Conservation Commission, and Department of Agriculture and Consumer Services; duties with respect to state lands.— (1) The Department of Environmental Protection shall perform all staff duties and functions related to the acquisition, administration, and disposition of state lands, title to

-Section 253.67(4) defines water column as “the vertical extent of water, including the surface thereof, above a designated area of submerged bottom land.”; -Florida Administrative Code Rule 18-21.004(7)(b) recognizes sovereign submerged land as something distinct from the water column when it states, “[a]uthorizations convey no title to sovereignty submerged land or water column….

But it is also supported by common sense. A pipeline could be used to transport effluent across the entirety of the bottom of a river like the St. Johns, from one side of the river to the other with its endpoint somewhere beyond the far bank of the river. And thus a pipeline does not necessarily dump its contents into the water column even though the pipeline itself rests on sovereign submerged land.

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which is or will be vested in the Board of Trustees of the Internal Improvement Trust Fund. … Unless expressly prohibited by law, the board of trustees may delegate to the department any statutory duty or obligation relating to the acquisition, administration, or disposition of lands, title to which is or will be vested in the board of trustees. … However, the board of trustees shall retain the authority to take final agency action on establishing any areas for leasing, new leases, expanding existing lease areas, or changing the type of lease activity in existing leases.12

12 The FDEP has been given statutory authority to “establish reasonable” “mixing zones” in the St. Johns River. § 403.061(11), Fla. Stat. However, this duty is separate and distinct from the Constitutional duty (originally bestowed to the Trustees but potentially delegated by the Trustees to FDEP) to make a determination that the Intervener’s private use of the water above the subaqueous sovereignty lands held in trust is not contrary to the public interest as required by Article X Section 11 of the Florida Constitution. The FDEP’s duty to establish reasonable mixing zones is pursuant to Chapter 403 of the Florida Statutes, the “Florida Air and Water Pollution Control Act.” § 403.011, Fla. Stat. The provisions of this act were “enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state.” The FDEP was given original authority to establish reasonable mixing zones

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The public trust duty at issue in this case, i.e., to make a determination that Georgia-Pacific’s private use of the water above the subaqueous sovereign land is not contrary to the public interest, is originally with the Trustees pursuant to Article X Section 11 of the Florida Constitution and Chapter 253 of the Florida Statutes, and only via separate action by the Trustees may that authority be delegated to the FDEP under Section 253.002, Florida Statutes. Moreover the provisions of Chapter 253, Florida Statutes, were enacted “[f]or the purpose of assuring the proper application of the Internal Improvement Trust Fund and the Land Acquisition Trust Fund….” § 253.02(1), Fla. Stat. Thus, FDEP’s regulatory authority to establish mixing zones is irrelevant to the proprietary responsibilities at issue here.

The Trustees, or the FDEP if so delegated, “shall … perform, and discharge … all … duties, and obligations of their trust…” over sovereignty lands. § 253.02(1), Fla. Stat. (emphasis added). These duties and obligations include authorizing “[p]rivate use of portions of such lands … but only when not contrary to the public interest.” Art. X, §11, Fla. Const. Neither the Trustees, nor the FDEP if so delegated, may abdicate their fiduciary responsibilities under the public trust doctrine, as reiterated in Article X Section 11 of the Florida Constitution and Chapter 253 of the Florida Statutes, and fail to review whether the private use of the water above the

directly by Sections 403.031(2) and 403.061, not through a delegation of authority by the Respondents.

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subaqueous sovereignty lands held in trust is “contrary to the public interest.”

B. The Circuit Judge Overlooked Due

Process, Which Also Rigidly Circumscribes the Trustees’ Authority, and Which Does Not Sanction Binding the People of Florida through Defective Constructive Notice of Approval of a Private Easement on Public Trust Lands

The Trustees obligations by their own rules include, but are not limited to, taking a careful and wide-ranging analysis of the “public interest,” considering “all demonstrable environmental, social, and economic costs” of “the ultimate project and purpose to be served.”13 In determining the public interest, the Trustees’ obligations also include ensuring that the people, including Appellants, are afforded due process.

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

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

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“Due process” includes, but is not limited to, clear and understandable notice that a common citizen without legal training would be likely to understand of the opportunity to be heard and challenge any preliminary approval by the Board of Trustees. It is not an opportunity for an agent of the Trustees to use artifice to hide these very rights from the people of Florida so as to manufacture a colorable title for Georgia-Pacific. Due process requires actually trying to inform the affected members of the public, not confusing, misleading, or overwhelming the public with cryptic information.

Importantly, for present purposes, due process requirements are a matter for the judicial branch to define. See Jones v. Flowers, 547 U.S. 220, 229 (2006) (“In Mullane, we stated that ‘when notice is a person’s due … [t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it,’ 339 U. S., at 315, and that assessing the adequacy of a particular form of notice requires balancing the ‘interest of the State’ against ‘the individual interest sought to be protected by the Fourteenth Amendment,’ id., at 314.”).

In Nelson v. Wakulla County, 985 So. 2d 564, 576-7 (Fla. 1st DCA 2008), the First District, in construing class action notice requirements, explained how a notice meeting due process should be worded. It stated:

In class action litigation, due process requires that the absent class members be afforded notice of the suit, an opportunity to be heard and

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participate in the litigation, and, in actions for damages, a chance to opt out of the litigation. … Judges effectively serve as guardians of the interests of absent class members in class actions, assuring that their interests are not sacrificed. … Significant due process protection extends to settlement in class action litigation, including expanded oversight by judicial officers to protect the interests of absent class members against trade-off or unfair compromise. … [T]he notice must be worded concisely and clearly, in plain, easily understood language; it should be drafted in a way that it is understandable by the people to whom it is directed.

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

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required by the Trustees’ agent FDEP.14 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

14 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.

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

(Emphasis added.)15

15 Section 373.427(2)(a)-(c), Florida Statutes, further demonstrates that the Trustees have failed to meet procedural requirements:

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

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agency action without action by the board of trustees.

(a) Unless waived by the applicant, within 90 days of receipt of a complete application, the department or water management district shall issue a recommended consolidated intent to grant or deny on all of the concurrently reviewed applications, and shall submit the recommended consolidated intent to the board of trustees for its consideration of the application to use board of trustees-owned submerged lands. The recommended consolidated intent shall not constitute a point of entry to request a hearing pursuant to ss. 120.569 and 120.57. Unless waived by the applicant, the board of trustees shall consider the board of trustees-owned submerged lands portion of the recommended consolidated intent at its next regularly scheduled meeting for which notice may be properly given, and the board of trustees shall determine whether the application to use board of trustees-owned submerged lands should be granted, granted with modifications, or denied. The board of trustees shall then direct the department or water management district to issue a notice of intent to grant or deny the application to use board of trustees-owned submerged lands. Unless waived by the applicant, within 14 days following the action by the board of trustees, the department or water management district shall issue a notice of consolidated intent to grant or deny on the application to use board of 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

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The clear and unmet legal duty of the Trustees to ensure that their agent FDEP gave newspaper notice that meets due process by itself was enough to require granting of mandamus to Appellants. Depending on the issue, the Trustees could consider the qualified biological opinions of FDEP. See Fla. Admin. Code R. 18-21.004(2)(c) (“The Department of Environmental Protection biological assessments and reports by other agencies with related statutory, management, or regulatory authority may be considered in evaluating specific requests to use sovereignty lands. Any such reports sent to the department in a timely manner shall be considered.”). However, that does not dispense with the need to comply with due process, including all administrative law requirements. Moreover, public trust responsibility is not limited to “biological” or even “environmental” issues but also may include “social” and “economic” issues. See Fla. Admin. Code

“notice of intent to grant or deny the application to use board of trustees-owned submerged lands,” the latter of which the Trustees have yet to direct issuance. After members of the public are given the opportunity to request an administrative hearing, the recommended order is required to go back to the Trustees a second time for approval of a final order. §373.427(c), Fla. Stat. (“the board of trustees shall determine what action to take on any recommended order issued under ss. 120.569 and 120.57 on the application to use board of trustees-owned submerged lands, and shall direct the department or water management district on what action to take in the final order concerning the application to use board of trustees-owned submerged lands … Any provisions relating to authorization to use board of trustees-owned submerged lands shall be as directed by the board of trustees. …”).

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R. 18-21.003(51) (“Public interest” definition).16 C. The Circuit Judge Left the People of

Florida with No Remedy Against Their Own Negligent Trustees and Wrongly Limited the People of Florida to Lawsuits Enforcing Water Quality Standards and Permit Challenges

Chief Judge Francis’s conclusion of law that Appellants have “other available remedies” is incorrect circular reasoning as a matter of law. This is merely a restatement of FDEP’s policy desire that water quality standards, including the giant cost-saving degradation loopholes called mixing zones, should be deemed contemporaneous with “public interest.” Hence, the Section 403.412(2)(a)1 and 2 “remedies” identified by FDEP, and adopted in Chief Francis’s Final Judgment, are to “seek to compel enforcement of the Department’s water quality standards” and “to enjoin any … violation” of “the mixing zones established in the NPDES permit.” Similarly, the supposed “administrative remedy” of challenging the NPDES permit would have merely

16 Because of the failure of FDEP to give constitutionally-acceptable constructive notice of its private easement for the pipeline, the Court need not consider whether in some cases a “second” legal authorization will be needed to cover intentionally-degraded areas of the river. Georgia-Pacific still has not received a “first” legal authorization. Consideration of the degradation areas can be rolled into consideration of any legal authorization for the pipeline that may come in the future. For now, the Georgia-Pacific pipeline itself is illegal, and Georgia-Pacific and FDEP, which are both highly sophisticated entities, only have themselves to blame for any hardship.

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obtained implementation of mixing zone and other regulations FDEP itself claims allow Georgia-Pacific’s free toxic dumping.17

D. The Circuit Judge Presumed That Dumping From the Illegally-Approved Structure Is Not Harmful and Overlooked Apparent Corruption Involving the Trustees’ Agent, Which Issued the Defective Constructive Notice

Because Georgia-Pacific’s mixing zones by definition degrade a defined area of the river, in this case with toxic waste, the claim by FDEP that this degradation is speculation and that the people of Florida should be willing to swim, fish, and recreate in toxic waste shown to harm riverine life, implicitly adopted by Chief Judge Francis, at most would raise a disputed issue of material fact. The right approach is to insist that the Trustees evaluate the truthfulness of FDEP’s contention, subject to

17 None of these “remedies” would ensure that the public trust doctrine has been met and that due process rights are protected. The people are entitled, among other things, to a careful, detailed, and administratively cognizable “public interest” assessment by the Trustees of the costs and benefits of the ultimate project, which would include not only the pipeline itself but also the intentionally-degraded areas adjacent to the pipeline. Nor would Section 403.412, Florida Statutes recover one penny of the profits and cost-savings obtained by Georgia-Pacific through the use of the pipeline and associated areas as dumping grounds. Dumping on public property should not be encouraged and never be free, and Trustees who wish to allow avoidable and free dumping should not only make their desires known but also be subject to administrative challenge.

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administrative proceedings. Similarly, if FDEP is now for the first time contending that it did not in fact collude with Georgia-Pacific to rig the defective constructive notice, FDEP should be given every opportunity to explain itself to the public and the Trustees. It has not remotely done so. If fiduciary responsibility means anything it means that the Trustees is responsible for both the negligence and the corruption of its agent. The Trustees failure to hold FDEP accountable is merely more evidence of their failures in their public trust and due process obligations.

CONCLUSION The Leon County Circuit Judge’s Final Judgment should be reversed and remanded based on lack of subject matter jurisdiction, with directions to transfer the case to Putnam County Circuit Court.

In the event the Court finds that the Leon County Circuit Judge had subject matter jurisdiction, it should reverse the Final Judgment and remand for entry of final summary judgment in favor of Appellants requiring that the Trustees meet their fiduciary obligations under the public trust doctrine and due process. The Leon County Circuit Judge also overlooked disputed issues of material fact that prevent, under any set of circumstances, a ruling that the Trustees have met their fiduciary obligations to the people.

The Trustees have abdicated their public trust and due process responsibilities in favor of acquiescence in the ineptitude if not outright corruption of their agent FDEP with respect to

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Georgia-Pacific. They have failed to enforce rigorously the public trust doctrine and due process in the protection of the public interest. Even today they are allowing their agent FDEP to subvert their own continuing responsibilities, to cover up its own questionable conduct, and to hold up inapposite remedies as ameliorative.

No sensible private land owner would want toxic waste dumped on its property, especially for free. The people have the right to expect that their Trustees will be at least this sensible with public trust property, and if they fail to do so, fully answerable in accordance with due process for breaching their fiduciary responsibilities.

Respectfully submitted on this 28th day of October, 2014. Steven A. Medina Attorney Florida Bar No. 370622 P.O. Box 1021 Shalimar, Florida 32579 Phone: 850.621.7811 Fax: 850.362.0076 stevenamedina@yahoo.com

ATTORNEY FOR APPELLANTS ***