FILED VERSION Petition for Writ of Mandamus With Signature

8/9/2019 FILED VERSION Petition for Writ of Mandamus With Signature

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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 taxpayerof Florida residing in Duval County,

ENVIRONMENTAL YOUTH COUNCILST. AUGUSTINE, an unincorporated

Florida association, FLORIDA CLEAN WATERNETWORK, 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 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


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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 Floridaslong 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 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.

1This petition is styled using the Florida constitutions 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 Floridas

1968 constitution, each Trustee has equal footing, and Cabinet members are nolonger expected, constitutionally, to capitulate to the Governors wishes. [C1] By

statute, the Trustees collectively have been designated as the Board of Trusteesof 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 whereapplicable.


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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. Mixingof 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.2The 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 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

2The mill currently discharges into Rice Creek. Although Georgia-Pacific

maintains the river is a better location to discharge, it has no vested right from theTrustees at either location.


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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.3Thus, 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 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.

3The 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 ofsovereignty 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 whennot 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 boundarieswithin which degradation by Georgia-Pacific will occur.


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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 publics 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 clear

point of entry to contest the decision.5The pipeline structure itself is not

4

At least one other paper or pulp mill pipeline project reliant on mixing zones (theBuckeye project in Taylor County) also may be constructed at some point. [D171]

However, it is the imminent unconstitutional private use of mixing zones related tothe Georgia-Pacific pipeline that justifies this Court immediately addressing the

Trustees abdication.

5The private easement for the pipeline construction corridor was approved withlimited information provided by the FDEP that did not include the mixing zones.


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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 mills 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 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.

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 currentTrustees notice of their intent to file this petition. [A26-7] Petitioners have receivedno response from any of the Trustees.6The 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 thetime of actual construction. In effect, the Trustees will be giving an additional

much larger private easement away to a paper company causing substantially moreharm 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 ontheir part.


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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 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.


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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 appropriatevehicle

for addressing claims of unconstitutionality where functions ofgovernment will

be adversely affected without an immediate determination.);see also Chiles v.


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Phelps, 714 So.2d 453, 455 (Fla. 1998) (mandamus and quo warranto appropriate

where the Governor sought mandamus challenging the Legislaturesoverride 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

candidates 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.).

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.


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See School Board of Volusia County v. Clayton, 691 So. 2d 1066, 1068 (Fla. 1997)

(requiring special injury or constitutional challenge);see alsoWhiley 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 positions

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 wait years to get this Courts constitutional views

on a critical aspect of a subject it has been dealing with for more than a century.


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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 fishing, swimming, and recreation

7EYC sometimes also has used the name Environmental Youth Congress. [A19]8The 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 areasdesignated for Georgia-Pacific mixing zones. [A3-13, D1-9]


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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

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


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beaches below mean high water lines, is held by the state, by virtue of its

sovereignty, in trust for all the people. Sale or private use of portions of suchlands 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].10In 1970, when Article X,

Section 11 was amendedby 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 useof even portionsof sovereignty lands may only

be authorized when not contrary to the public interest.This was almost four

years prior to the federal governments passage of the modern Clean Water Act

10The first sentence embodies the general public trust doctrine, which became a

part of Floridas common law heritage as soon as Florida became a state.See Part

III., infra, for discussion of pertinent case law.11SECTION 11. Sovereignty lands.The title to lands under navigable waters,

within the boundaries of the state, which have not been alienated, includingbeaches 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 maybe authorized by law, but only when not contrary to the public interest.


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(Pub.L. 92-500, October 18, 1972).12Both prior to the adoption of the Clean Water

Act and thereafter, the Trustees repeatedly acknowledged jurisdiction over the

water column.13[C17-55]

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.

12FDEP currently implements that actsNational Pollutant Discharge EliminationSystem (NPDES) permitting system for Florida. [D34-83, 115-32, 172-211]13Petitioners appendix [C17-55] contains excerpts with numerous references towater 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 tofurnish his office information.); 9/11/1972 (The Trustees also have

acknowledged the proposed work will be within an area of very productivesubmerged 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 waterline to eliminate some siltation, there will be substantial direct damage fromdredging 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 thesubmerged lands and water column at a minimum.); 10/16/1973 (Survey and

Management: This project should have only limited direct adverse effects onmarine 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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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 publics rights to use the

affected areas.14The Trustees acting as a board are vested and charged with

14The 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 werenavigable at the date of statehood. These include coastal shores belowmean 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 Planfurther 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 TrustFund, it is essential to examine the legal concepts surrounding such

trust arrangements.Important concepts warranting definition and discussion include: (l)

trust, (2) trustees, (3) cestui que trust, and (4) fiduciary. For thepurposes of discussion, Blacks Law Dictionary has been used for alldefinitions.

(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 anotherperson 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 thebenefit or the use of another called the cestui que trust."


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the acquisition, administration, management, control, supervision,

conservation, protection, and disposition of state lands. 253.03(1), Fla.

Stat.

(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 theInternal 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 general citizenry of

Florida. "State" has been defined as "a people permanently occupyinga 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 andthings within its boundaries... (Emphasis added). Therefore,

management of state-owned lands is for the benefit of all the citizensof Florida; and to this end, a fiduciary relationship exists with this

general public. The Florida Constitution (Article II, Section 7 andArticle IX, Section 11), Chapter 253, Florida Statutes, and certainother 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 ofdevelopment 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 and3/15/1983). [C56-91]


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2. The Mixing Zones

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 FDEPs 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]


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was not mentioned in the 2002 NPDES permit DEP granted for the facility [D34-

83].15No 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

15On the other hand, FDEP has determined that Georgia-Pacific will not needmixing 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]16The 2002 NPDES permit set up an iterative process that required further analysis

and administrative procedure before any of the mixing zones could be authorizedby FDEP. [D40, 50] This process was never completed by administrative process,

and none of the mixing zones mentioned in 2002 NPDES permit is currentlyapproved 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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standards will not be met 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[C165-73] No compensation has been paid for the mixing zones, and

17In 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, whichprimarily 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 milldioxin tests with detection limits set well above the water quality criterion. [D34-

83, 115-43, 172-211] If dioxin later materializes in streambed sediments, FDEPdisregards the sediment data in assessing stream water quality. [D170] Costsavings also will result from allowing Georgia-Pacific to dump its salt cakeinto

the mixing zones, driving up specific conductivity. [D144-63]18Like 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 administrativeprocedures. [C5] Petitioners have attempted to raise the issues with the Trustees

[A26-7] but received no response.19The 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 easement. The


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any compensation paid was limited to the narrow subaqueous pipeline corridor

based on an appraisal restricted to the subaqueous 50-foot pipeline corridor.20The

limited public interestanalysis in the easement approval package did not refer or

apply to the mixing zones.21

project description of the Georgia-Pacific agenda item was:

[C106].20The 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]

21This analysis focused on facts that would not be germane to the mixing zones,

including the notion that the buried pipeline itself will maintain essentially naturalconditions andwill 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 thenature of their private use of sovereignty lands. The Trustee analysis of the project


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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

does not even reference the mixing zones or their possible effects:

[C103]22This petition is not using the term corporate welfare in reference to this formof 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 tocorporations as corporate welfare ([F]ree market ideology, of course, does not


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This policy emanated in part from a 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.23Id.However, with the advent of modern water pollution

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 Beforethe Subcommittee on Consumer Affairs, Foreign Commerce and Tourism of the

Committee on Commerce, Science, and Transportation, United States Senate, 107th

Congress 2ndSession,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 ofdegradation 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 concerningthe 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 aresult of a proposed action, and which would clearly exceed alldemonstrable 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.

23Although Florida has wisely abandoned its legislative authorization to pollutethe states 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 AboutLegal Protection for Remains of Floridas Natural Environment, 23 U. Fla. L. Rev.
http://ftp.resource.org/gpo.gov/hearings/107s/87971.txthttp://ftp.resource.org/gpo.gov/hearings/107s/87971.txt


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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 willbecome 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, includingthose directly charged with protecting public interests, frequently

subvert environmental protection in favor of private interests orperpetuating 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 toreview continually the actions, and especially the inactions, of these

agencies.

Little, J. W.,New Attitudes About Legal Protection for Remains of Floridas

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

459, 461 n. 13 (1970-1971) (The ugly episode of turning the Fenholloway River

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


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the topic of water law. SeeMaloney, 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 publics 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 Trust Fund under this chapter, until the person hasreceived 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 activityrequiring

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


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Administrative Code 18-21.001, asbeing 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 theBoard 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 allthe citizens of Florida;

(3) To manage, protect, and enhance sovereignty lands so that the

public may continue to enjoy traditional uses including, but notlimited 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 andwildlife propagation and management;

(5) To insure that all public and private activities on sovereignty landswhich 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 Trusteespredecessors themselves made the decision to authorize the pipeline

corridor rather than purport to allow FDEP to decide the issue by any delegation.24

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


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[C100-36] Moreover, no exercise of 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 FDEPswater qualityprotection 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) (seeCh. 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 FDEPs water

quality responsibility as follows:

(1) These rules are to implement the administrative and

management responsibilities of the board and department regarding

authorization and an environmental resource permit or wetland resource permit);

see also Fla. Admin. Code R. 18-21.0051 (delegation of authority in relation tooperating agreements between FDEP and water management districts).


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sovereign submerged lands. Responsibility for environmental

permitting of activities and water quality protection on sovereign andother lands is vested with the Department of Environmental

Protection. These rules are considered cumulative.Therefore, a

person planning an activity should consult other applicabledepartment 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).25The

current version of the rule, approved in 2009, continues to recognize the

cumulative nature of the proprietary rules with other, i.e., non-proprietary, rules of

FDEP:

25Applying 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 thisState. 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 toadopt rules and regulations governing the exercise of its statutory

duties. Sections 253.03(1) and (7), Florida Statutes. The Departmentof Natural Resources, Division of State Lands (the "Department"), is

empowered to "perform all staff duties and functions" related to theadministration of the submerged lands held by Plaintiff. Section253.002, 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 DefendantBarnett requested and Plaintiff issued the Consent of Use). The Rules

"implement the administrative and management responsibilities" ofboth Plaintiff and the 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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(1) These rules are to implement the administrative and

management responsibilities of the Board, the Department ofEnvironmental Protection and the Department of Agriculture and

Consumer Services regarding sovereignty submerged lands.

Responsibility for environmental permitting of activities and waterquality protection on sovereignty and other lands is vested with the

Department of Environmental Protection. The responsibility formanaging 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 andConsumer Services regarding aquacultural activities.

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

The Trustees rules allow FDEPs biological assessment to be considered in

evaluating specific requests to use sovereignty lands,not to take the place of

proprietary authorization.26Fla. Admin. Code R. 18-21.004(2)(c). A host of

26

That the Trustees depend upon FDEP for staffing, Section 253.002(1), FloridaStatutes, does not remove the Trustees fiduciary responsibility to control,

conserve, protect, and supervise sovereignty lands and to supervise the staff atFDEP. FDEP documents during 2000-2001 reveal FDEP strategizing with the

private user, Georgia-Pacific, about obtaining authorization for the pipeline fromthe Trustees. [D10-28] [C]oncept[ual] approval was discussed that would becontingent 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 thedecision. [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 Trusteesdecision 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 specifiedtime after some recognizable event in investigatory or other free-form proceedings,


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Trustees rules must be applied to the mixing zones.27These include careful

determination of just compensation for any mixing zones that are otherwise

properly authorized by the Trustees.28

to formal or informal proceedings under Section 120.57. Absent waiver, wemust 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 ofissuing a FDEP permit, the staff often included a point of entry for interested

persons to contest the FDEPs decision, but this never occurred with the Trustees

decision on the pipeline. [C94; D29-33, 84-100]27Rule 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 sovereigntysubmerged lands, except activities associated with aquaculture. The

management policies, standards, criteria, and fees for aquaculturalactivities 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 inthe public interest.

(b) All leases, easements, deeds or other forms of approvalfor sovereignty land activities shall contain such terms, conditions, orrestrictions 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 orthat limit or preempt general public use. Public utilities and state or

other governmental agencies exempted by law shall be excepted fromthis requirement.

***

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


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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 essentiallynatural conditions, propagation of fish and wildlife, and traditional

recreational uses such as fishing, boating, and swimming. Compatiblesecondary 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 adequatemitigation 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 evaluatingspecific 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 specieshabitat.

28Assuming 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 privateeasement for a mixing zone would have to consider the enhanced property value or

profit to 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 WildlifeConservation Commission (FFWCC)participants discussed the states

responsibility is to keep these trust resources from being depleted or wasted, andcalled 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 forits pipeline, the FDEP Secretary took a job with a paper company. [E1-2]


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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 mixingin 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 informationabout the mixing zones

is at best a text book illustration of the need for due process and citizen

participation to protect the publics 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

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. SeeFla. Admin. Code R. 18-21.03(21)

(Easement means a non-possessory interest in sovereignty lands created by a


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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

Floridas navigable waters to be treated like theprivate 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 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.


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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 land. Cf.

Kester v. Tewksbury, 701 So. 2d 443, 445 (4thDCA 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

29In the event the Court deems this petition more appropriately should have beenframed 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 ofthe people.


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trust cases made this point.Illinois Central Railroad Company v. Illinois, 146 U.S.

387, 456 (1892), quoted approvingly fromMartin 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.30Similarly, this Court long has recognized that [t]he rights of the

people of the States are in the navigable waters and the lands thereunder.

Broward v. Mabry, 58 Fla. 398, 50 So. 826, 829 (Fla. 1909).31

30The 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 resultof 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 statepublic 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. UnitedStates 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 Hawaii, 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).

31Note also that Florida follows the doctrine of cujus est solum ejus est usque adcoelom. 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). Asexplained 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 maximof the law, upwards; therefore no man may erect any building, or the like, to


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

that is adverse to 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 publics interest in a river.32The public has broad rights in its navigable

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 grantsthereby all his mines of metal and other fossils, his woods, his waters, andhis 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 navigablefreshwater lakes, rivers, and streams.See also Trustees website (navigable fresh

waters such as rivers and lakes below ordinary high water) [C4]; accordDAlemberte, 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 the1970s and 1980s. At stake is the water property and land that was once navigable

and now is sometimes dry. The state received sovereignty landstate-ownedlandswhen it entered the Union. These lands included property up to the high-

water mark along waterways.).32A 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 anavigable river gradually and imperceptively changed its course onto

previously conveyed lands, the navigable river would become privateproperty 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 navigablewaters. Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S. Ct. 517, 38


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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 ageneral

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 fornavigation, commerce, fishing, and bathing and "other easementsallowed 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 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 markin 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. Thewaters . . . were of common right, public for every subject to navigate

upon and fish in without interruption; . . . the shore was also ofcommon right public. The use of each was in the subjects for the

inherent privileges of passage and navigation and fishing, as publicrights . . . .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 arefundamental 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 overland belonging to the state.).


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and public right of fishing in the sea, and 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 Peoples 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 publics property.33

33The 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 persons due [t]he

means employed must be such as one desirous of actually informing the absenteemight 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 Stateagainst 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 CapelettiBros. v. State, 362 So. 2d 346, 348 (Fla. 1978). In addition, the Trustees now are


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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 FDEPs 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. Theirrole 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 theTrustees may engage the services of an expert in managing Trust

assets to assist them in 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 theirpurported waiver of her right of access to a court to seek redress for

loss occasioned thereby.

informed that Georgia-Pacific will be using mixing zones that will impact thepublic 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 greaterimportance to the public interest than the mere construction of a pipeline.


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Fiduciaries are generally not able to avoid the negligent performance

of their own special responsibilities by handing them off to someoneelse. 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 cannotlegally create another trusteeship and pass the fund into the hands of,

and control of, that newly created trustee, so as to place the fundbeyond 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 isreasonably necessary for the performance of the duties of the trust, if

the trustee, while acting prudently and with reasonable care, employs

an agent, who is apparently honest and properly qualified, andreasonable supervision is used over him, the trustees will not be heldresponsible 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 thecustody 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. 4thDCA 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. SeeSecret Oaks Owners Association,

Inc. v. Department of Environmental Protection, 704 So.2d 702, 705-6 (Fla. 5th


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DCA 1998) (in the exercise of its fiduciary duties);see also generally, Reimer,

M.K., The Public Trust Doctrine: Historic Protection for Floridas Navigable

Rivers and Lakes, Fla. Bar J. LXXV, No. 4 (April 2001).

The Trustees may not have acted previously in cases of this precise sort.34(A

paper mill pipeline with large mixing zones emanating from a lengthy diffuser

34The 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 yesterdays information rather than as the flexible competent

land managers any private beneficiary would expect:The Plan, like the ongoing management program, must remainflexible 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 Planmodification system, while maximizing public notice and input. Such

modifications could be proposed by either the public, departmentalstaff, or directly by the Board. Affirmative Board action on such

Agenda items would effectively accomplish the required modification.II. GOALSA. 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 ofthose state-owned lands vested in the Board of Trustees. Section

253.03(7), Florida Statutes, directs the Board of Trustees "...toadminister to all state-owned lands...so as to insure maximum benefit

and use." In a legal context the word "Administer" means "to

superintend the execution, use, or conduct of; to manage affairs; totake charge of business.


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structure constructed across Floridas 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. InBoard of Trustees of the Internal Improvement Trust

The Board of Trustees, in meeting its obligations as both title holderand 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 greaterproprietary 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 onstate-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 forsanitary landfills meet the statutory test of "maximum benefit and

use".Policies1. 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. Such

instances will require a detailed land reclamation plan acceptable tothe Board.

3. Phase out existing sanitary landfill leases as expeditiously aspossible.

4. Prohibit non-state agency sanitary landfills and similar facilities on

state-owned lands.Plan at p. 25. [ ]


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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, actingthrough 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 withinaquatic 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 statepursuant to a constitutional amendment in 1970, followed bylegislative 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.

InLevythe 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


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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 "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 situationTrustees 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. InLevy, 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 isfound in the evidence of record as recited in the order under review.

The hearing officer found, in part, that no single-family docks inaquatic 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 balancecompeting interests such as environmental, aesthetic, recreational, and

private commercial. There was some concern that previously

authorized docks had infringed upon the riparian access of adjacentupland owners. The 500-foot limitation was 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 resultin the denial of more than a negligible number of dock applications,

based on historic dock application data and predominant vessellengths of under 27 feet. Indeed, as the hearing officer found in


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deciding that the rule was not capricious: "The 500-foot limitation

appears to have been the product of a process involving the thoughtfulbalancing 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 thesefindings as ample to show that the trustee's decision was a reasoned

one, supported by facts and logic, and that their decision could in nosense be labeled "despotic."Agrico, 365 So. 2d at 763.

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

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 Floridas

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

35Docks themselves effect light penetration, but mostly from a distance. Incontrast, Georgia-Pacific will have light-blocking color/transparency and turbidity

mixing zones direct

FILED VERSION Petition for Writ of Mandamus With Signature

Documents

Transcript of FILED VERSION Petition for Writ of Mandamus With Signature