Appellants' Motion for Rehearing, Clarification, And Certification
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Transcript of Appellants' Motion for Rehearing, Clarification, And Certification
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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 MOTION FOR REHEARING, CLARIFICATION, AND CERTIFICATION
Appellants, by and through their undersigned attorney, move for
rehearing, clarification, and certification pursuant to Florida Rule of
Appellate Procedure 9.330. Appellants hereby specifically include in this
motion a request that the District Court of Appeal, First District, enter a
written opinion because, as further set forth below, the decision was entered
without opinion, and Appellants believe that a written opinion would
provide a legitimate basis for Florida Supreme Court review. In accordance
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with the rule, the undersigned attorney for Appellants states as follows in
support of this motion:
I express a belief, based upon a reasoned and studied
professional judgment, that a written opinion will provide a
legitimate basis for supreme court review because, for the
specific reasons set forth below, the supreme court would be
likely to grant review if an opinion were written.
1. This matter concerns Floridians property and Floridians
substantive and process interests in their own trustees conduct concerning a
Georgia-Pacific pipeline on Floridians property.1 The pipeline transfers
waste materials from Georgia-Pacifics Palatka paper mill into the St. Johns
River, producing not fully quantified but certainly vast cost-savings for and
profits to Georgia-Pacific. This month marks the third anniversary of
Appellants attempt to get straight answers from their trustees--about how
Georgia-Pacific got its private pipeline easement finalized and about why
Georgia-Pacific is not, at the very least, paying just compensation under
their trustees own rules. It should go without saying that a trustee should
not be covering up potential agent misconduct.
2. On May 27, 2015, the District Court of Appeal filed a decision
without a written opinion in this case which merely stated PER CURIAM.
1 Appellants also have raised a serious question of this courts own
jurisdiction given that the Florida property at issue lies in another district.
This issue was not raised in the lower tribunal but remains part of this case.
See Appellants initial brief, pp. 19-21.
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AFFIRMED. The District Court of Appeal should, at the very least, provide
a written opinion.
3. This appeal raises serious questions about the Trustees of the
Internal Improvement Trust Fund and their so-called agent, the State of
Florida Department of Environmental Protection, whose conduct as agent is
very much under scrutiny. Protecting Floridians substantive and procedural
rights relating to the St. Johns River is not a trivial matter or one
undeserving of a stated basis of decision by the Florida appellate courts.
4. From its inception in the Florida Supreme Court, Appellants
original proceeding has been seeking a Florida Supreme Court determination
and vindication of rights which they have as citizens of the State of Florida
in relation to the Trustees:
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 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.
[I, 14]
5. With a written opinion the Florida Supreme Court would have
two bases for discretionary review, even without certification by the District
Court of Appeal. By not providing a written opinion, the District Court of
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Appeal is depriving the Florida Supreme Court of these bases for
discretionary review.
6. Under Article V, Section 3(b)(2) of the Florida Constitution, the
Florida Supreme Court:
(3) May review any decision of a district court of appeal that
expressly declares valid a state statute, or that expressly
construes a provision of the state or federal constitution, or that
expressly affects a class of constitutional or state officers, or
that expressly and directly conflicts with a decision of another
district court of appeal or of the supreme court on the same
question of law.
(Emphasis added.) See also Fla. R. App. P. 9.030(a)(2)(A)(ii) and (iii)
(expressly construe a provision of the state or federal constitution and
expressly affect a class of constitutional or state officers).
7. In addition, the Florida Supreme Court [m]ay review any
decision of a district court of appeal that passes upon a question certified by
it to be of great public importance. Art. V, 3(b)(4), Fla. Const.; see also
Fla. R. App. P. 9.030(a)(2)(A)(v) (pass upon a question certified to be of
great public importance). This matter involves questions of great public
importance, and, in addition to being the subject of rehearing and a written
opinion, should be certified by the District Court of Appeal to do so. This
will provide an additional basis for discretionary review and further
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illustrates why the Florida Supreme Court would be unlikely to deny
discretionary review if the opportunity arises. These questions include:
WHETHER 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
INDEPENDENT PROPRIETARY JUDGMENT AND
RESPONSIBILITY TO PROTECT THE ST. JOHNS RIVER FROM
UNCOMPENSATED PRIVATE DEGRADATION ASSOCIATED
WITH GEORGIA-PACIFICS PIPELINE AND BY ALLOWING THE PIPELINE WITHOUT GIVING THE PUBLIC CLEAR
NOTICE OF THE RIGHT TO REQUEST ADMINISTRATIVE
PROCEEDINGS ON THE TRUSTEES DECISION TO AUTHORIZE THE PIPELINE.
8. The Florida Supreme Court and all of the courts of this state
should want to channel public participation into Chapter 120, Florida
Statutes, administrative processes expressly provided by the Florida
Legislature for formulating substantive action by the Trustees. If Florida is
not to have arbitrary rule and undue influence by the powerful few, its
sovereign assets must be substantively and procedurally protected at least as
well as the private assets of Georgia-Pacific.
9. The Trustees and their agent are supposed to be acting as
fiduciaries not mercenaries. Instead, they are keeping the profits flowing to
Georgia-Pacific by allowing public property to be used as private dumping
grounds. Georgia-Pacific dumps into the St. Johns River so that it can save
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and make a lot of money. It assumes an entitlement to do this. [V, 666]
Appellants justifiably resent the fact that their trustees are not only
facilitating this entitlement but also are allowing their own administrative
processes and rules for substantive review to be circumvented in order to do
so, as detailed in Appellants briefs.
10. No responsible private land owner would allow Georgia-Pacific
to do this to her or him, at least without just compensation. It is gross asset
mismanagement for the Trustees to do so. Moreover, it is a severe breach of
trust for the Trustees also to sanction their agents gross negligence, if not
intentional obstruction, trickery, and collusion, in approving Georgia-
Pacifics publication of a highly misleading public notice in the newspaper
to cut off citizens administrative law rights to challenge the Trustees
approval of the pipeline. [IV, 600-616]
11. Likely, if it had the opportunity to provide discretionary review,
the Florida Supreme Court would review these serious issues involving
Floridians substantive and procedural rights and their trustees corollary
substantive and procedural duties. Likely the Florida Supreme Court does
not want citizens to be wholly reliant upon extra-judicial means such as
internet petitions for federal criminal investigations or civil disobedience to
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fight for justice involving their property and their participation rights meant
to ensure protection of their property.
12. Therefore, for the specific reasons stated above, Appellants
undersigned attorney believes it is likely that if the Florida Supreme Court is
given the opportunity to provide appellate review in this matter it will do so.
WHEREFORE, Appellants move for rehearing, clarification, and
certification, including, at the very least, a written opinion.
Dated this 10th
day of June, 2015.
___________________________
Steven A. Medina
Attorney
Florida Bar No. 370622
P.O. Box 1021
Shalimar, Florida 32579
Phone: 850.621.7811
Fax: 850.362.0076
ATTORNEY FOR APPELLANTS
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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 10th day of June,
2015:
Jack Chisolm, Senior Assistant General Counsel
Florida Department of Environmental Protection
3900 Commonwealth Blvd, MS 35
Tallahassee, Florida 32399-3000
Email: [email protected]
Terry Cole, Esquire
Kellie Scott, Esquire
Gunster, Yoakley and Stewart
215 South Monroe Street, Suite 601
Tallahassee, Florida 32301
Email: [email protected]
Warren K. Anderson, Jr.
The Public Trust Environmental Legal Institute of Florida, Inc.
2029 N. 3rd Street
Jacksonville Beach, Florida 32250
Email: [email protected]
__________________________
Steven A. Medina