Appellants' Motion for Rehearing en Banc

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 EN BANC

Appellants, by and through their undersigned attorney, move for

rehearing en banc pursuant to Florida Rule of Appellate Procedure 9.331. In

accordance with the rule, the undersigned attorney for Appellants states as

follows in support of this motion:

I express a belief, based on a reasoned and studied professional

judgment, that the panel decision is of exceptional importance,

for the specific reasons set forth below.

1. This matter concerns Floridians property and Floridians

substantive and process interests in their own trustees conduct concerning a

2

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.

AFFIRMED. By separate motion for rehearing, clarification, and

certification, Appellants are asking the District Court of Appeal, at the very

least, to provide a written opinion. Whether or not that motion is granted,

this motion should be because of the exceptional importance of the panel

decision. Even in its present PCA format the panel decision is of

exceptional importance.

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.

3

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

Appeal is depriving the Florida Supreme Court of these bases for

discretionary review.

4

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 reheard en banc and the subject of 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

illustrates not only why the Florida Supreme Court would be unlikely to

deny discretionary review if the opportunity arises but also why the panel

decision is of exceptional importance.

5

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

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

6

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

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 the panel decision is of exceptional

importance.

WHEREFORE, Appellants move for rehearing en banc.

7

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

[email protected]

ATTORNEY FOR APPELLANTS

8

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]

[email protected]

[email protected]

Terry Cole, Esquire

Kellie Scott, Esquire

Gunster, Yoakley and Stewart

215 South Monroe Street, Suite 601

Tallahassee, Florida 32301


[email protected]

[email protected]

Warren K. Anderson, Jr.

The Public Trust Environmental Legal Institute of Florida, Inc.

2029 N. 3rd Street

Jacksonville Beach, Florida 32250


[email protected]

__________________________

Steven A. Medina

Appellants' Motion for Rehearing en Banc

Documents

Transcript of Appellants' Motion for Rehearing en Banc