IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

KAREN AHLERS, NEIL ARMINGEON,
ENVIRONMENTAL YOUTH COUNCIL
ST. AUGUSTINE, FLORIDA CLEAN WATER
NETWORK, INC., and PUTNAM COUNTY
ENVIRONMENTAL COUNCIL, INC.,
Appellants,
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, and GEORGIA-PACIFIC
CONSUMER OPERATIONS LLC,
Appellees.
__________________________________________/
APPELLANTS REPLY BRIEF
Submitted by
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

TABLE OF CONTENTS
ARGUMENT 1
I.

APPELLANTS AFFIDAVITS DEMONSTRATE STANDING TO

CHALLENGE THE PRIOR TRUSTEES PRELIMINARY ACTION,
WHICH COULD NOT BE MADE FINAL THROUGH THE
DEFECTIVE NEWSPAPER NOTICE ..1

II.

IT IS THE RESPONSIBILITY OF THE TRUSTEES, SUBJECT TO

ADMINISTRATIVE PROCEDURES, NOT THE CIRCUIT JUDGE,
TO FIND THE FACTS AND APPLY THEIR OWN RULES IN
CONSIDERING THE FULL PROJECT COSTS AND
COMPENSATION OWED TO THE PEOPLE ..3

III.

TO ALLOW THE TRUSTEES TO CIRCUMVENT

ADMINISTRATIVE CHALLENGES BY APPELLANTS AND
OTHERS SIMILAR-SITUATED UNDER THESE
CIRCUMSTANCES WOULD BE CONSTITUTIONALLY
IMPROPER AND A DRASTIC STEP BACKWARD IN FLORIDA
ADMINISTRATIVE PROCEDURES ...5

IV.

THE TRUSTEES AGENT DOES APPEAR TO HAVE ACTED

IMPROPERLY, AND THE TRUSTEES HAVE DONE NOTHING
TO INVESTIGATE ITS CONDUCT ............8

V.

THE LOCAL ACTION RULE APPLIES .10

CONCLUSION .12
CERTIFICATE OF SERVICE .14
CERTIFICATE OF COMPLIANCE 15

ii

TABLE OF CITATIONS
Cases
Kruer v. Board of Trustees of the Internal Improvement Trust Fund, 647
So.2d 129 (Fla. 1st DCA 1994)..2

Statutes
Ch. 120, Fla. Stat. ...6
120.52(1)(a), Fla. Stat ..2
120.52(13), Fla. Stat..6

iii

ARGUMENT
I.

APPELLANTS AFFIDAVITS DEMONSTRATE

STANDING TO CHALLENGE THE PRIOR TRUSTEES
PRELIMINARY ACTION, WHICH COULD NOT BE
MADE FINAL THROUGH THE DEFECTIVE
NEWSPAPER NOTICE

No responsible landowner would be expected to allow his or her

property to become a dumping ground for toxic waste. If he or she had some
reason for doing so, he or she would be expect to negotiate a high price for
the privilege. Appellants want no more or less for the portions of the
publics property which they use and enjoy in the heart of the St. Johns
River. Where their Trustees fail in this regard, Appellants must be able to
hold them responsible.
The Trustees at pages 40-41 of their answer brief incorrectly imply
that Appellants and others similarly-situated should be deemed to lack
standing to challenge the prior Trustees preliminary approval. However,
while a majority voted to preliminarily approve the subject pipeline, these
prior Trustees never decided that Floridians like Appellants should have no
administrative rights to contest the preliminary approval. These prior
Trustees also never held at all, much less in a binding manner, that they may
overlook their own substantive rules, which readily demonstrate that the
Boards public interest review is intended to be quite expansive in nature.

To this day, their preliminary approval serves as the only Board action in
the premises.
The current Trustees seem to suggest that to allow Appellants to
challenge the prior Boards preliminary decision may cause the floodgates
to be opened. Citizens, presumably from anywhere in the state, would
somehow become entitled to challenge easements of sovereign submerged
lands in parts of the state where they have no connection other than Florida
citizenship.
In contrast, Appellants affidavits [II, 61-85] readily demonstrate that
they have standing and would have met the definition of party under
Section 120.52(13), Florida Statutes, in an administrative proceeding had
they received fair notice of FDEPs intent to take final action to issue an
easement. Whether or not every Florida citizen would have standing is not
the issuethese Florida citizens would. As citizens of the State with
standing, they are prejudicially affected by a misleading newspaper notice
that is purported to render the preliminary decision final and to take away
citizen rights to challenge Board approval.1

This case involves failure to comply with the public trust doctrine and due
process in the granting of a private easement, which is clearly a Board of
Trustees transaction subject to both the Boards substantive rules and to
administrative review. This situation aptly contrast with Kruer v. Board of
Trustees of the Internal Improvement Trust Fund, 647 So.2d 129 (Fla. 1st
2

II.

IT IS THE RESPONSIBILITY OF THE TRUSTEES,

SUBJECT TO ADMINISTRATIVE PROCEDURES, NOT
THE CIRCUIT JUDGE, TO FIND THE FACTS AND
APPLY THEIR OWN RULES IN CONSIDERING THE
FULL PROJECT COSTS AND COMPENSATION OWED
TO THE PEOPLE

Far from seeking the judicial branch to contravene the Trustees

discretion, Appellants seek to have the Trustees mandated to themselves
exercise their own specific responsibilities relating to the Georgia-Pacific
pipeline. These specific responsibilities include their own obligation to
exercise discretion in accordance with administrative procedures and their
own substantive rules, which up to now they are abdicating.
As stated in Appellants initial brief at page 47:
Because Georgia-Pacifics 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
DCA 1994), which involved an attempt to file an administrative petition to
interfere in the settlement of a circuit court case and moreover did not
involve mixing zones, where degradation will by definition will occur. This
court in Kruer expressly observed that there was no ongoing lease
proceeding under Chapter 253, Florida Statutes, pending before the Board in
which the Board was exercising its discretion and in footnote 2 stated:
Because it is unnecessary to our decision in this case, we
express no view as to whether appellants petition alleged facts
sufficient to afford him standing to object to the Boards
granting of a lease in a proceeding governed by section 253.12,
Florida Statutes.
3

material fact. The right approach is to insist that the Trustees

evaluate the truthfulness of FDEPs contention, subject to
administrative proceedings.
(Emphasis added.) It is the desire of the Appellees, including the Trustees
acting through their agent FDEP, to circumvent the Trustees own specific
responsibilities to find the facts and to apply the Boards own substantive
rules to the facts.
The Trustees answer brief at pages 44-45 even asks that the section
of the Appellants brief containing this language be stricken. Perhaps they
are implicitly suggesting that this language is unsupported by the record.
However, it is simply argument grounded in logical inference from the
procedural posture in the case below. It is recognition that the Trustees must
themselves act as the fiduciaries and do so based upon a mature record
applying their own rules in accordance with administrative procedures
rather than have the judicial branch invade the province of the Trustees and
make findings from an immature record, as occurred in the lower tribunal.
The Trustees themselves seek to evade their need to exercise their
own agency discretion one way or another in accordance with administrative
procedures, both to make sure the process is fair and, if the St. Johns River is
to be used as a storehouse for Georgia-Pacifics waste under some bizarre

interpretation of the public interest, to determine a fair price for the granted
privilege.

III.

TO ALLOW THE TRUSTEES TO CIRCUMVENT

ADMINISTRATIVE CHALLENGES BY APPELLANTS
AND OTHERS SIMILARLY-SITUATED UNDER THESE
CIRCUMSTANCES WOULD BE CONSTITUTIONALLY
IMPROPER AND A DRASTIC STEP BACKWARD IN
FLORIDA ADMINISTRATIVE PROCEDURES

Appellees seek to have the current Trustees egregious non-action,

in failing either to make their predecessors preliminary approval final or to
reject it under the Boards own rules, slip through the cracks. FDEP seems to
have forgotten that it itself conceded, on behalf of the Trustees, in the
Trustees own motion for summary judgment in the lower tribunal that the
Boards approval in 2003 was only preliminary. [VIII, 1213]
Indeed, the still preliminary nature of the approval was the obvious
motivation for FDEP to place (or more accurately, bury) references to Board
administrative review procedures (deep) within the newspaper notice. By
burying information deep within the notice, FDEP also apparently wanted to
try somehow to make the previous Board decision final without actually
letting substantially-interested Floridians like Appellants know their rights
were being curtailed.

Since the Board decision was preliminary in 2003, it remains

preliminary to this day. The Trustees have not remedied the matter because
they hope this lawsuit will go away. No authority cited by Appellees
remotely justifies a vague and misleading notice by publication being
allowed to serve as the means for cutting off the administrative rights of
substantially-interested Floridians like Appellants.
Administrative rights that were denied to Appellants and others
similarly-situated clearly encompass not only the FDEP but also the
fiduciaries, each one of whom is vested with the non-discretionary duty of
applying the Board rules to their decision-making. Each Trustee in his or her
official capacity is an agency subject to Chapter 120, Florida Statutes. See
120.52(1)(a), Fla. Stat. (The Governor; each state officer and state
department .).
Because the notice by publication was invalid, and yet purports to
effect a waiver of rights, it must be re-noticed in a fair manner to ensure that
citizens like Appellants can participate if they wish and so that the Board can
be forced to apply its own rules and respect due process. As it stands, an
easement has been illegally-issued based on a preliminary approval never
made final, and the Georgia-Pacific pipeline was constructed on the basis of
that illegally-issued easement. The prior Boards action remains merely

preliminary. The staff of FDEP had no authority to make the preliminary

decision final without following due process of law, which includes fair
notice of agency action as well as opportunity for hearing in accordance with
administrative law.
There is nothing drastic about this interpretation. It is plain vanilla.
For the Trustees, who are supposed to be acting as fiduciaries, to seek to
have any court countenance otherwise is outrageous. It is the current
Trustees who now seek to carve out a shocking new domain wherein their
agent FDEP is entitled to engineer misleading public notices to cut off
citizen rights with the intended result to give preliminary board approvals
the appearance of becoming final and serve as the colorable predicate for
issuing ultra vires easements. This would be a giant step backward in the
need for careful, open, meaningful, and reviewable proprietary procedures in
the State of Florida. Adherence to the public trust doctrine and to
administrative procedures is the foundation for fairness by the Trustees and
should not be circumvented through FDEP gamesmanship or the Trustees
abdication.

IV.

THE TRUSTEES AGENT DOES APPEAR TO HAVE

ACTED IMPROPERLY, AND THE TRUSTEES HAVE
DONE NOTHING TO INVESTIGATE ITS CONDUCT

At pages 44-5 of their answer brief the Trustees assert as character

assassination the assertion that there was something improper and quite
possibly corrupt involved in FDEPs machinations involved in the
newspaper notice. Facts are stubborn things. Apparent corruption is a logical
inference from the facts in evidence as well as from the utter silence of
FDEP in the proceedings below on this very issue.
Appellants motion for summary judgment methodically examined the
publicly-available evidence and, based on this evidence, claimed, It appears
that the public notice was intentionally designed to befuddle the public.
[VIII, 1113] The Trustees did not contest this contention (much less suggest
that it was character assassination). Therefore, in Appellants response to
Appellants motion for summary judgment, Appellants stated:
Filed by FDEP on the Trustees behalf, their motion
provides no justification for the grossly deficient constructive
notice by publication, which did not remotely meet minimum
due process requirements. Respondents do not deny much
less remotely provide an excuse with respect to Petitioners
express suggestion that [i]t appears that the public notice
was intentionally designed to befuddle the public.
[IX, 1422-23] (Emphasis added.)

In the face of the Appellants repeated assertions of the impropriety of

the notice by publication and moreover the apparent intent to mislead the
public, the Trustees below never once suggested that they had any
explanation for FDEPs conduct or had undertaken any investigation at all
of FDEPs actions concerning the facts and circumstances of the newspaper
notice. The Trustees have no basis for now on appeal for the first time
seeking to strike similar allegations, much less to admonish Appellants for
continuing to apply logic to facts.
This situation should be embarrassing both to FDEP and to the
Trustees who are effectively countenancing FDEPs behavior, but that does
not make it character assassination. It is the fact-driven context for a patently
unconstitutional problem of lack of reasonable notice by publication.
Further, these facts buttress the conclusion that mandamus is
necessary because this problem will only go away if the judicial branch steps
in and specifically requires it to be remedied. FDEP is not going to impress
upon the Board the need to do so. It is the very agent whose conduct needs
to be carefully scrutinized by the Trustees. By the nature of the situation it
has an obvious conflict of interest and cannot serve as the unbiased reporter
of its own failures as an agent. These failures are a central component of the

Trustees failures. In the premises, FDEP is the antithesis of what a

fiduciaries agent should be.
Appellants should not be forced to sugar-coat FDEPs conduct under
the pretense of avoiding character assassination. Exactly who did what and
why at FDEP are obviously not matters FDEP has any intention of
divulging. There certainly appears to have been an effort by an unknown
person or persons at FDEP to make the prior Trustees preliminary approval
final through a grossly misleading newspaper notice. This notice lacked
the truth-in-labelling, openness, and simple readable clarity of the direct
notice by mail which FDEP was, at virtually the same time, mailing to
Georgia-Pacific. If Georgia-Pacific needed a clear and understandable
notice, so, it should be obvious, did the citizens of the State of Florida. If this
was not the result of corruption, it is a strangely coincidental case of gross
negligence.

V.

THE LOCAL ACTION RULE APPLIES

The jurisdictional issue of a lower tribunal was not envisioned when

the Appellants filed their petition for mandamus directly before the States
highest court, which has statewide jurisdiction. In hindsight, it would have
been appropriate for the lower tribunal to review the issue, ideally at the

10

time of the initial remand. But it did not, and because the issue is
jurisdictional, it nonetheless must be scrutinized in this appeal.
The Trustees suggest that because constitutional issues are involved
the local action rule is negated. The fact that this was public property
implicates both the public trust and due process, which happen to be
constitutional doctrines. However, the petition for mandamus was directly
aimed at the constitutional infirmities involving a specific recorded Board of
Trustees real estate transaction involving public property. These infirmities
were and are imminently and continuously facilitating, under color of a
private easement issued by FDEP, Georgia-Pacific using an illegallyapproved pipeline. The fact that the infirmities were constitutional in
nature does not extricate this matter from the local action rule.
Nor does the fact that the infirmities may be capable of repetition at
another paper mill pipeline location do so. In footnote four of the mandamus
petition, Appellants did advise the Florida Supreme Court of another paper
mill project that could involve similar issues, but it remained clear that the
Georgia-Pacific pipeline was the basis for the Courts jurisdiction:
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 Trustees abdication.
11

[I, 12] (Emphasis added.)

CONCLUSION
The local action rule appears to require this matter to be transferred to
Putnam County circuit court for action where the subject real property is
located. But if it does not, the lower tribunal still must be reversed for
abusing its discretion.
The lower tribunal overlooked that the Trustees are ignoring their own
substantive rules. These rules require them to reach a fully-informed
decision on the costs and benefits of private actions on sovereign submerged
land. Georgia-Pacifics dumping of tons per day of toxic waste onto public
lands is a cost-saving measure. It smothers the river bottom using FDEPapproved mixing zones. That is clearly part of the public interest that must
be carefully reviewed and determined by the Trustees and has not been.
These mixing zones were not even covered by the not finally-approved
easement, which was itself only preliminarily approved by a prior Board.
These substantive rules also require the Trustees to recoup for the taxpayers
the major financial windfall to Georgia-Pacific from not having to landapply its toxic waste.

12

And even if the Boards substantive rules were not being violated
each and every day the Board fails to act, a patently misleading newspaper
notice facilitated the issuance of the invalid easement that makes the
dumping possible. This can only be remedied by re-noticing using proper,
fair, and clear language. That will allow Appellants and others similarsituated to formally involve themselves with their Trustees as they see fit to
protect the adversely-affected portions of the river and the public treasury.
Respectfully submitted on this 20th day of January, 2015.

___________________________
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

13

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
was served by electronic mail upon the following on this 20th day of January,
2015:
Jack Chisolm, Senior Assistant General Counsel
Florida Department of Environmental Protection
3900 Commonwealth Blvd, MS 35
Tallahassee, Florida 32399-3000
Email: Jack.Chisolm@dep.state.fl.us
Deitra.Henderson@dep.state.fl.us
DEP.Defense@dep.state.fl.us
Terry Cole, Esquire
Kellie Scott, Esquire
Gunster, Yoakley and Stewart
215 South Monroe Street, Suite 601
Tallahassee, Florida 32301
Email: tcole@gunster.com
kscott@gunster.com
bfrazier@gunster.com
Warren K. Anderson, Jr.
The Public Trust Environmental Legal Institute of Florida, Inc.
2029 N. 3rd Street
Jacksonville Beach, Florida 32250
Email: taowalkerwarren@gmail.com
andrewdouglasmiller@gmail.com

__________________________
Steven A. Medina

14

CERTIFICATE OF FONT COMPLIANCE

I HEREBY CERTIFY that the size and style of type used in this brief
is 14-point Times New Roman, in compliance with Florida Rule of
Appellate Procedure 9.210.

__________________________
Steven A. Medina

15