IN THE SUPREME COURT OF FLORIDA

KAREN AHLERS, a citizen and taxpayer

of Florida residing in Putnam County,

NEIL ARMINGEON, a citizen and taxpayer

of Florida residing in Duval County,

ENVIRONMENTAL YOUTH COUNCIL

ST. AUGUSTINE, an unincorporated

Florida association, and

FLORIDA CLEAN WATER

NETWORK, 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, and FLORIDA CLEAN WATER

NETWORK, INC. (“FCWN”), 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 Fund1 (“Trustees”). Petitioners Ahlers and Armingeon

and substantial numbers of members of EYC and FCWN are beneficiaries of the

constitutional public trust with rights to fish, swim, and other lawful uses in the

entire St. Johns River. These public uses are under imminent threat in defined

areas of the St. Johns River through the failure of the Trustees to require that

private easements be obtained for mixing zones used in association with pulp or

paper mill pipelines.

“Mixing” of pollutants within a defined area of the St. Johns River is

“private use” of the river that can only be authorized by the Trustees. The Trustees

may not ignore that as trustees they have sovereign responsibility over all private

uses, including mixing of pollutants, occurring on sovereignty lands. The Trustees

cannot by Florida Administrative Code Rule 18-21.002(1) hide behind any

ostensible vesting of responsibility for “water quality protection on sovereignty

and other lands … with the [Florida] Department of Environmental Protection”

1 Under Article IV, Section 4(f) of the Florida Constitution, “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.” By

statute, the Trustees acting in this joint capacity have been designated as the

“Board” of Trustees of the Internal Improvement Trust Fund. § 253.001, Fla. Stat.

This petition is intended to encompass the Trustees acting both individually as

Trustees and collectively as the Board of Trustees of the Internal Improvement

Trust Fund. This case is styled consistent with the Constitution’s terminology.

(“FDEP”). FDEP does not own the sovereignty lands, the Trustees do, in trust for

the all the people of this state. Nor does FDEP purport to authorize private

easements or other proprietary authorization for mixing zones. The result of this

“vest into non-existence” approach to sovereign obligations is a gaping proprietary

hole that threatens the St. Johns River and the public trust rights of Petitioners.

This approach to mixing zones will result in degradation of defined areas of the

river in favor of private use of these areas without an easement for the private use

of these areas. FDEP expressly allows degradation in mixing zones based on its

own rule adopted under a non-proprietary regulatory program and does not even

purport to require an easement for mixing zones.

The need for Trustee accountability is acute in relation to the planned use of

several private degradation areas on the river that will be emanating from a paper

mill pipeline in the very near future. The private degradation areas are so-called

“mixing zones” adjacent to a paper mill pipeline being constructed out into the

middle of the river where the mixing zone boundaries have been described by the

Florida Department of Environmental Protection (“FDEP”) 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.2 “[A] limited

2 Petitioners are not seeking relief in this petition concerning mixing zones

unrelated to paper or pulp mill pipelines, effects outside of mixing zones, thermal

discharges, or nitrogen or phosphorus acting as nutrients. Although non-thermal

defined region” by FDEP rule can be degraded “to reduce the costs of treatment.”

Fla. Admin. R. 62-4.244(1)(a).

The Trustees’ constitutional, statutory, and rule duties include carefully

reviewing these private degradation areas to ensure that they are not contrary to the

public interest and that they only receive Trustee authorization in accordance with

Florida law. Despite Article X, Section 11 of the Florida Constitution allowing

authorization of private use of sovereignty lands only if not contrary to the public

interest, the Trustees to date have not required private use of sovereignty lands for

degradation areas related to paper or pulp mill pipelines to be not contrary to the

public interest or even to be the subject of proprietary review and authorization.

Petitioners respectfully seek expedited resolution of this petition. Petitioners

recently learned that the pipeline project with several degradation areas relating to

the Georgia-Pacific paper mill in Putnam County is expected to be completed

within months.3 The project will privately use and degrade defined portions of the

components of discharges do travel to sovereignty lands beyond mixing zones, for

purposes of this facial challenge Petitioners assume FDEP has properly delineated

the areas that will actually be degraded. Petitioners are not aware of nutrient or

thermal mixing zones being contemplated for paper or pulp mill pipeline projects.

Nutrient effects, such as algae blooms, typically occur outside of defined mixing

zones. Certain thermal outfalls can involve winter refuges for manatees whose

elimination may be harmful. 3

[Pet. App. 00000008-9] At least one other paper or pulp mill pipeline project (the

Buckeye project in Taylor County) also would involve degradation zones on

sovereignty lands (the lower Fenholloway River and estuarine waters entering the

Gulf of Mexico). However, it is the imminent private use of degradation zones

St. Johns River, which has been designated an American Heritage River. The

Trustees to date have performed no public interest analysis of these degradation

zones. Based on conditional information, their predecessors in office only granted

an easement for the relatively narrow corridor of sovereignty lands directly

disturbed in pipeline construction.4 This is only a small fraction of the sovereignty

lands that will be privately used and allowed by FDEP mixing zones to be

degraded. By this fall the paper mill is expected to begin privately using

sovereignty lands in the heart of the slow-moving St. Johns River for mixing

degrading components of tens of millions of gallons per day of paper mill

discharge. The degrading components will be discharged in both up and down

stream directions a few inches from the river bottom. The discharge will occur

from a 1000-foot long diffuser structure placed on the pipeline.

Ignoring the degrading private use of sovereignty lands associated with the

mixing zones is a breach of fiduciary responsibility and amounts to

related to the Georgia-Pacific pipeline project that justifies this Court immediately

addressing the Trustee’s obligations. 4 The private easement for the pipeline construction corridor was approved by a

prior Governor and Cabinet operating with limited information provided by the

FDEP that did not even include the mixing zones. Long after the prior Trustees

approved the private pipeline easement itself, studies have now been undertaken

that allowed FDEP to determine the specific degradation zones that it would

authorize. Until recently, it was even unclear if the pipeline actually would be

constructed. Petitioners have given notice of their intent to file this petition to the

current Trustees in an attempt to resolve this matter without judicial intervention

because of the possibility that they were unaware of the situation.

unconstitutional in-kind corporate welfare by implied fiat. The Trustees have never

approved the Georgia-Pacific degradation zones. The existing Georgia-Pacific

private pipeline construction easement does not purport to apply to the zones.

When put into use, the paper mill’s degradation zones will constitute an

unauthorized and unconstitutional private use of sovereignty lands. Not a penny

will have been compensated to the citizens of Florida for the private use of

sovereignty lands, loss of resources, and loss of constitutionally-protected public

uses. The appraisal for the pipeline easement on its face did not cover the mixing

zones, which had not even been authorized. Assuming that equitable compensation

was obtained for the pipeline itself, none has ever been obtained for the mixing

zones. In effect, the Trustees would be giving an additional much larger private

easement away to a paper company to save the company money and without

obtaining equitable compensation for the beneficiaries of the trust if the pipeline

were to proceed without action on their part.

Most troubling, money cannot compensate the citizens of Florida for the

creation of what are likely to become long-term if not permanent paper mill

degradation areas in the middle of the St. Johns River. Inaction by the Trustees

would allow this private degrading use of sovereignty lands regardless of whether

it in whole or in part might be contrary to the public interest. The mere fact that

FDEP, under a regulatory cost-saving program, approves degradation zones related

to a paper mill pipeline does not satisfy the Trustee’s separate and independent

fiduciary obligation to safeguard the public trust under the Florida Constitution,

statutes, and rules. This Court should take action to ensure that the Trustees do

their job before the private paper mill degradation of sovereignty lands begins.

I. JURISDICTION AND QUESTION PRESENTED

This Court has original jurisdiction to issue a writ of mandamus pursuant to

Article V, Section 3(b)(8) of the Florida Constitution and Rules 9.030(a)(3) and

9.100(a) of the Florida Rules of Appellate Procedure. The Trustees are acting ultra

vires and in violation of the public trust as mandated in the Florida Constitution by

not exercising their own independent proprietary responsibility to protect the river

from unauthorized private use. See, e.g., Fla. House of Representatives v. Crist,

990 So.2d 1035 (Fla. 2008) (Florida Governor exceeded his authority under the

separation of powers of Art. II, § 3, Fla. Const., when he entered into a compact

with an Indian Tribe that expanded casino gambling on tribal lands under the

Indian Gaming Regulatory Act, 25 U.S.C.S. §§ 2701-2721); Clearwater v.

Caldwell, 75 So.2d 765, 768 (Fla. 1954) (“The doctrine of ultra vires is much more

strictly applied to it than to a private corporation, for the limits of its power depend

on public law which all persons dealing with it are bound to know.”); Board of

Public Instruction v. Knight & Wall Co., 100 Fla. 1649, 1655, 132 So. 644, 646

(1931) (“Acquiring sites, erecting and equipping public school buildings would

without question be a public free school purpose. Persons dealing with boards of

public instruction are on notice of these provisions of the law and any contract for

the pledge of public school funds not contemplated hereby is ultra vires.”); cf.

Liberty Counsel v. Fla. Bar Bd. of Governors, 12 So.3d 183, 192 (Fla. 2009)

(“because there are no other legal or constitutional prohibitions against the actions

of the Family Law Section, we cannot conclude that the actions of the Bar were

unauthorized”).

Writ of mandamus is a proper remedy because this petition involves pure

questions of constitutional law, and functions of government will be adversely

affected unless an immediate determination is made by this Court. See Allen v.

Butterworth, 756 So.2d 52, 54 (Fla. 2000) (“[M]andamus is the appropriate vehicle

for addressing claims of unconstitutionality ‘where functions of government will

be adversely affected without an immediate determination.’”); Chiles v. Phelps,

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

the Governor sought mandamus challenging the Legislature’s override of vetoes

and members of the public sought quo warranto to enforce their public right to

have the Legislature act in a constitutional manner); Chiles v. Milligan, 659 So.2d

1055, 1056 (Fla. 1995) (citing Article V, section (3)(b)(8), in exercising original

jurisdiction where Governor sought mandamus to compel Secretary of State to

expunge unconstitutional proviso from official records); Moreau v. Lewis, 648

So.2d 124, 126 (Fla. 1995) (“We exercise our discretion [issuance of mandamus]

in this case because we believe that an immediate determination is necessary to

protect governmental functions.”); Hoy v. Firestone, 453 So. 2d 814, 815 (Fla.

1984) (recognizing jurisdiction under Article V, section 3(b)(8), to consider

petition for writ of mandamus directing the Secretary of State to place candidate’s

name on the ballot for nonpartisan judicial election); Republican State Executive

Comm. v. Graham, 388 So. 2d 556, 559 (Fla. 1980) (finding that the Court has

original jurisdiction to consider petition for mandamus when no facts are in

question and the issue involves a straightforward question of law).

Because this mandamus action seeks to vindicate constitutional public trust

rights and duties, Petitioners are entitled to bring it whether or not they are injured.

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

(requiring special injury “or” constitutional challenge); see also Whiley v. Scott, 79

So. 3d 702, 706 n. 4 (Fla. 2011) (“petition for writ of quo warranto is directed at

the action of the state officer and whether such action exceeds that position‘s

constitutional authority”). Although not required for the Court to exercise its

jurisdiction, Petitioners will be injured in their public rights and have a real,

personal, and immediate need for the Court to exercise its jurisdiction to enforce

and protect their public rights. Citizens including Petitioners Ahlers and

Armingeon and substantial numbers of members of EYC and FCWN are facing

imminent and long-lasting harm to their public rights to use and enjoy the trust

lands in the St. John River that will be degraded by mixing zones for no other

reason than to save Georgia-Pacific money. Likewise, fish and wildlife which use

this public property and are enjoyed by citizens including Petitioners should not be

left to suffer the degrading consequences of Trustee inaction in the face of

constitutional, statutory, and rule duties to act. Urgent access to the courts should

not be closed 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.”).

This is not a case where Petitioners have an administrative remedy and

therefore must seek an exception to the discretionary exhaustion of administrative

remedies doctrine. The Trustees have not instituted action to grant a private

easement to the now FDEP-authorized mixing zones. Their predecessors only

reviewed a private easement for the pipeline corridor and never reviewed the

mixing zones, which were not authorized by FDEP until years later. Rather, this is

a case where the Trustees are, thus far, failing to assert their constitutional

authority and carry out their constitutional duties. There is no administrative

remedy to exhaust because the Trustees are unconstitutionally electing not to

require a private easement for the mixing zones.

This is not a case where the Trustees are wrongly attempting to exercise or

expand their jurisdiction but rather where they are not exercising it at all.

Nonetheless, applying the three-factor exception to exhaustion of administrative

remedies test expressed in State of Florida, Department of Environmental

Regulation v. Falls Chase Special Taxing District, 424 So.2d 787, 795-6 (Fla. 1st

DCA 1982), (1) degradation of the river will by definition occur within the mixing

zones due to the Trustees’ inaction; (2) there is clarity that the Trustees’ have not

heretofore exercised their responsibility for protecting sovereignty lands with

respect to pulp and paper mill pipeline-related mixing zones; and (3) the Trustees

themselves have no special administrative understanding of the issues that is

superior to that of the Court. The Court is well-positioned to consider the proper

application of the public trust protections to navigable waters as it has been doing

for more than a century. The Court has a long history of resolving issues pertaining

to the public trust over navigable waters to ensure that public rights do not suffer

due to procedural misunderstandings or confusion. 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”). Moreover, a hypothetical administrative law judge somehow obtaining

jurisdiction because of a hypothetical point of entry over a non-existent proposed

Trustees’ decision to grant a private easement for the degradation zones would not

even consider the Trustees’ paramount constitutional obligations. See, e.g., Henry

Ross v. Department of Environmental Protection, 33 FALR 1654 (DOAH 2011)

(“DOAH is … without authority to determine the constitutionality of an existing

rule under the Florida Constitution. See Dep’t of HRS v. Fla. Med. Ctr, NME

Hospitals, Inc., 578 So. 2d 351, (Fla. 1st DCA 1991).”)

This issue needs immediate resolution. It involves the imminent private use

of public trust lands for paper mill cost-saving degradation areas without proper

authorization from the Trustees. Furthermore, it involves uncertainty for 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 private use of public trust

lands for degradation zones. Functions of state government and state public trust

assets will be adversely affected by protracted litigation concerning the Trustees’

responsibilities. See Republican State Executive Committee v. Graham, 388 So.2d

556, 559 (Fla. 1980) (“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.”).

II. STATEMENT OF THE CASE AND FACTS

Petitioners Karen Ahlers is a citizen and taxpayer of Florida residing in

Putnam County. Petitioner Neil Armingeon is a citizen and taxpayer of Florida

residing in Duval County. Petitioner EYC is an unincorporated Florida association

that works to protect the environment. Petitioner FCWN is a non-profit Florida

corporation that works to protect Florida waters. Petitioners Ahlers and Armingeon

and substantial numbers of members of Petitioners EYC and FCWN are citizens

and taxpayers of Florida who use and enjoy the St. Johns River and adjacent

springs and creeks for fishing, swimming, and recreation and who enjoy the fish

and wildlife on the river. These members of EYC include substantial numbers of

young adults whose rights are at stake but who were not even of the age of

majority in 2003 when the Board approved a private easement for the pipeline

corridor.

Florida’s public trust lands include the St. Johns River, an American

Heritage River. [Pet. App. 00000001-7] Since 1970, for the benefit of all present

and future Floridians, the Florida Constitution has stated in Article X, Section 11:

SECTION 11. Sovereignty lands.—The title to lands under

navigable waters, within the boundaries of the state, which have not

been alienated, including beaches below mean high water lines, is

held by the state, by virtue of its sovereignty, in trust for all the

people. Sale of such lands may be authorized by law, but only when in

the public interest. Private use of portions of such lands may be

authorized by law, but only when not contrary to the public interest.

This embodies the public trust doctrine which became a part of Florida’s common

law heritage as soon as Florida became a state.5

5 See case law discussed in part IV., infra, the Argument section of this petition.

Hence, by direct democratic action of Florida’s citizens, the time-honored

public trust doctrine became an express part of the Florida Constitution two years

before the federal government’s passage of the modern Clean Water Act (Pub.L.

92-500, October 18, 1972). FDEP currently implements that act’s National

Pollutant Discharge Elimination System (“NPDES”) permitting scheme under

delegated authority from the United States Environmental Protection Agency

(“USEPA”). [Pet. App. 0001-0150] Under Section 403.061(11), Florida Statutes,

FDEP is authorized to establish “reasonable zones of mixing for discharges into

waters.”6 FDEP in turn has a rule for establishing mixing zones in surface waters.

Fla. Admin. Code R. 62-4.244 (“Mixing Zones: Surface Waters”).

6 The department is authorized to establish reasonable zones of mixing for

discharges into waters:

(a) When a receiving body of water fails to meet a water quality

standard for pollutants set forth in department rules, a steam electric

generating plant discharge of pollutants that is existing or licensed

under this chapter on July 1, 1984, may nevertheless be granted a

mixing zone, provided that:

1. The standard would not be met in the water body in the absence

of the discharge;

2. The discharge is in compliance with all applicable technology-

based effluent limitations;

3. The discharge does not cause a measurable increase in the degree

of noncompliance with the standard at the boundary of the mixing

zone; and

4. The discharge otherwise complies with the mixing zone

provisions specified in department rules.

§ 403.061(11), Fla. Stat.

Under this rule, water quality in “a limited defined region” can be degraded

“to reduce the costs of treatment.” Fla. Admin. Code R. 62-4.244(1). Relying on its

regulations, FDEP now has authorized several so-called mixing zones for the

Georgia-Pacific pipeline project to reduce the costs of treatment for the paper mill,

with at least one more mixing zone, for chronic toxicity, planned but not yet

approved. [Pet. App. 0101-0150, 0383-0407, 041201-0518, 0531-0538] The 2002

NPDES permit set up an iterative process that required further analysis before any

of the mixing zones was considered to be authorized by FDEP. [Id.]

This iterative process was not complete until years after the prior Trustees took up

the private easement issue in 2003. [Id.]

FDEP has now determined the mixing zones that it is authorizing to

Georgia-Pacific to use. It has granted to Georgia-Pacific mixing zones of 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). [Id.] Areas within these mixing zones will have levels of pollution from un-

ionized ammonia, turbidity, specific conductance, color/transparency, and chronic

toxicity7 that, by definition, will not meet applicable water quality standards

designed to protect human health, wildlife, and recreation. [Id.]

7 The potential for a mixing zone for chronic toxicity is not actually even

referenced in the existing NPDES permit. However, it is in the new draft NPDES

permit for the facility [Pet. App. 0531-0538] and apparently is something that the

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

(“Title to tidal lands vested in state.—(1) Except submerged lands heretofore

conveyed by deed or statute, the title to all sovereignty tidal and submerged bottom

lands, including all islands, sandbars, shallow banks, and small islands made by the

process of dredging any channel by the United States Government and similar or

other islands, sandbars, and shallow banks located in the navigable waters, and

including all coastal and intracoastal waters of the state and 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”).

Both prior to the adoption of the modern Clean Water Act and thereafter, the

Governor and Cabinet took the position that it had jurisdiction over the water

FDEP has determined that Georgia-Pacific needs. On the other hand, FDEP

apparently has determined that Georgia-Pacific will not need mixing zones for

dissolved oxygen, total recoverable iron, total recoverable cadmium, and total

recoverable lead, and mixing zones for these parameters are eliminated from the

new draft NPDES permit. [Pet. App. 041201-041207, 0531-0538]

column. See, e.g., Board of Trustee Minutes, 7/2/1971 (“The Governor mentioned

the state's position that it had jurisdiction over the water column, and Mr. Stone

asked the applicant to furnish his office information.”); 9/11/1972 (“The Trustees

also have acknowledged the proposed work will be within an area of very

productive submerged bay bottom; the proposed spoil area is bordered on the

waterward side by intertidal red mangroves. Even if the spoil area is diked at the

mean high water line to eliminate some siltation, there will be substantial direct

damage from dredging and possible secondary adverse effects from silt placed in

the water column by the dredging.”); 8/7/1973 (“The limited construction required

for the installation of two bridges over submerged land should not have significant

adverse effects on marine biological resources provided every effort is made to

contain the by-products of construction on the uplands and keep disturbance of the

submerged lands and water column at a minimum.”); 10/16/1973 (“Survey and

Management: This project should have only limited direct adverse effects on

marine biological resources if measures are taken to prevent siltation of the

adjacent waters. The application does not show any proposed method of

stabilization for either interior or exterior shorelines. Such unvegetated,

unstabilizing marl shorelines contribute suspended fines to the water column.”).

In this case, the public trust is being faced with a form of degradation

intentionally committed directly in the middle of a river—mixing zones that extend

significantly outward and upward from a paper mill pipeline constructed with a

lengthy diffuser structure across the deepest portion of river channel. The mixing

zones will allow the water column to be filled with concentrated paper mill effluent

that in theory will, given enough space and time, become diluted enough to not be

degrading outside of given areas. Rather than the structure being the point of the

exercise and the pollutants being incidental, as is the case with typical dock or

seawall construction, releasing pollutants to public trust lands is the objective of

Georgia-Pacific’s exercise. Moreover, more intensely than a discharge that meets

water quality standards, the structure lying on the river bottom will lead to areas of

intense private use and degradation, the areas known as mixing zones. These

mixing zones are used for the private convenience and purpose of “mixing” paper

mill wastewater with public waters to save the company money that would

otherwise be spent in treatment on private land.

The current cabinet website continues to affirm that the Trustees recognize

their responsibility under the public trust doctrine:

The Board of Trustees also administers the state's sovereignty lands,

those water bodies within the state's territorial limits that were

navigable at the date of statehood. These include coastal shores below

mean high water, and navigable fresh waters such as rivers and lakes

below ordinary high water. The public status of these lands is

protected by the Public Trust Doctrine as codified in Article X,

Section 11 of the Florida Constitution.

[http://cabinet.myflorida.com/cabprocess.html] (emphasis added). Nonetheless,

faced with this sophisticated and intentional new form of degradation that threatens

Florida waters for generations, the Trustees so far have made no findings

concerning the public interest of allowing mixing zones on sovereignty lands in the

St. Johns River for the private benefit of Georgia-Pacific. These mixing zones are

not covered in any Trustee private easement or other proprietary authorization.

They involve private use of sovereignty lands that goes beyond the narrow

Trustee-issued private easement for the pipeline. [Pet. App. 0435-0444] The

narrowest of the mixing zones is more than two times as wide as the private

easement, and, unlike the pipeline (for which the major impacts were during

construction), its effects would be significant and ongoing. [Pet. App. 041201-

041207] The largest mixing zone, relating to color/transparency, is almost fifty

times wider than the easement. [Id.]

The project description of the Georgia-Pacific agenda item explains that the

easement was for a 50-foot width only:

[Pet. App. 0315-0377] No compensation has been paid for the mixing zones and

any compensation paid was limited to the narrow subaqueous pipeline corridor.

[Id.] The appraisal that was performed was restricted to the subaqueous 50-foot

pipeline corridor. [Id.] Nor did the “public interest” analysis in the private

easement approval package apply to the mixing zones. [Id.] This analysis focused

on facts that would not be germane to the mixing zones, including the notion that

the buried pipeline itself “will maintain essentially natural conditions” and “will

not significantly impact fish and wildlife, and other natural resources, including

public recreation and navigation.” [Id.] The approval package does not even

discuss the existence of the mixing zones, their areas, or the nature of their private

use of sovereignty lands. [Id.]

Not only the size but also the nature of the mixing zones is completely

different than the pipeline corridor, which involves a passive structural installation

rather than ongoing environmental degradation. The Trustee analysis of the project

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

[Id.] The Trustees have the fiduciary responsibility, completely independent of any

responsibilities of the FDEP under its regulatory regime, to evaluate the public

interest associated with private use of sovereignty lands for mixing zones. This

Trustee responsibility is separate and apart from any FDEP evaluation that went

into determining that the mixing zones may be “reasonable” under FDEP rules.

In addition to the Florida Constitution itself, by statute the exercise of this public

trust obligation is mandatory:

Said board of trustees . . . shall remain subject to and pay, fulfill,

perform, and discharge all debts, duties, and obligations of their trust,

existing at the time of the enactment hereof or provided in this

chapter.

§ 253.02(1), Fla. Stat. (emphasis added). Nor may Trustees rely on narrow

constructions in order to minimize their public trust obligation:

It is intended that the provisions of this act shall be liberally construed

for accomplishing the work authorized and provided for or intended to

be provided for by this act, and when strict construction would result

in the defeat of the accomplishment of any part of the work authorized

by this act, and a liberal construction would permit or assist in the

accomplishment thereof, the liberal construction shall be chosen.

§ 253.785, Fla. Stat. The Trustees acting as a board are “vested and charged with

the acquisition, administration, management, control, supervision, conservation,

protection, and disposition” of state lands. § 253.03(1), Fla. Stat. 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 has

received the required lease, license, easement, or other form of

consent authorizing the proposed use.

(Emphasis added.)

The Trustees have stated by rule, Florida Administrative Code Rule 18-

21.002, 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.” Elsewhere, however, the Trustees’

rules suggest that FDEP’s biological assessment merely “may be considered in

evaluating specific requests to use sovereignty lands.” Fla. Admin. Code R. 18-

21.004(2)(c).

In internal FDEP documents from 2000-2001, it is revealed that FDEP

strategized with Georgia-Pacific about the idea of orchestrating a “concept[ual]

approval” by the Trustees that would be “contingent on receipt of all required

permits, authorizations & payments.” [Pet. App. 000001-000019] When the

Trustees took action on the pipeline easement proposal in 2003 none of the mixing

zones were yet authorized [Pet. App. 041201-041207]. Therefore, if FDEP’s

earlier logic controlled, the Trustees’ approval should merely have been conceptual

in nature.

At any rate, if pulp and paper mill pipeline-related mixing zones are the

private use of sovereignty lands, which Petitioners maintain as a matter of law, a

host of Trustees’ rules come into play that have not been applied concerning

proprietary authorization of the mixing zones. Under the public interest definition

in Florida Administrative Code Rule 18-21.003(51):

“Public interest” means demonstrable environmental, social, and

economic benefits which would accrue to the public at large as a

result of a proposed action, and which would clearly exceed all

demonstrable environmental, social, and economic costs of the

proposed action. In determining the public interest in a request for

use, sale, lease, or transfer of interest in sovereignty lands or

severance of materials from sovereignty lands, the board shall

consider the ultimate project and purpose to be served by said use,

sale, lease, or transfer of lands or materials.

Rule 18-21.004 provides numerous policies, standards, and criteria which

the Trustees say must be applied:

Management Policies, Standards, and Criteria.

The following management policies, standards, and criteria shall be

used in determining whether to approve, approve with conditions or

modifications, or deny all requests for activities on sovereignty

submerged lands, except activities associated with aquaculture. The

management policies, standards, criteria, and fees for aquacultural

activities conducted on or over sovereignty submerged lands are

provided in Rules 18-21.020 through 18-21.022, F.A.C.

(1) General Proprietary.

(a) For approval, all activities on sovereignty lands must be

not contrary to the public interest, except for sales which must be in

the public interest.

(b) All leases, easements, deeds or other forms of approval

for sovereignty land activities shall contain such terms, conditions, or

restrictions as deemed necessary to protect and manage sovereignty

lands.

***

(e) Equitable compensation shall be required for leases and

easements which generate revenues, monies or profits for the user or

that limit or preempt general public use. Public utilities and state or

other governmental agencies exempted by law shall be excepted from

this requirement.

***

(g) Activities on sovereignty lands shall be limited to water

dependent activities only unless the board determines that it is in the

public interest to allow an exception as determined by a case by case

evaluation….

***

(2) Resource Management.

(a) All sovereignty lands shall be considered single use lands

and shall be managed primarily for the maintenance of essentially

natural conditions, propagation of fish and wildlife, and traditional

recreational uses such as fishing, boating, and swimming. Compatible

secondary purposes and uses which will not detract from or interfere

with the primary purpose may be allowed.

(b) Activities which would result in significant adverse

impacts to sovereignty lands and associated resources shall not be

approved unless there is no reasonable alternative and adequate

mitigation is proposed.

(c) The Department of Environmental Protection biological

assessments and reports by other agencies with related statutory,

management, or regulatory authority may be considered in evaluating

specific requests to use sovereignty lands. Any such reports sent to the

department in a timely manner shall be considered.

***

(i) Activities on sovereignty lands shall be designed to

minimize or eliminate adverse impacts on fish and wildlife habitat,

and other natural or cultural resources. Special attention and

consideration shall be given to endangered and threatened species

habitat. …

If the mixing zones are private use of sovereignty lands, these and others of the

Trustee’s own rules would have to be carefully applied to the mixing zones to

safeguard the public trust.

At a recent workshop on the “Public Trust Doctrine” conducted by the

Florida Fish and Wildlife Conservation Commission (“FFWCC”), which also has

constitutional public trust responsibility for fresh water aquatic life, participants

aimed to ensure that all of that agency’s programs fulfilled the doctrine. [Pet. App.

051501-051807] They emphasized the importance of key aspects of the public trust

such as water use and quality and land use that were beyond their jurisdiction but

which are within the Trustees’ public trust responsibilities. [Id.] The Commission

expressly recognized, though, that it has “no power to delegate” trust

responsibilities and that “the state’s responsibility is to keep these trust resources

from being depleted or wasted.” [Id.] It calls for that trustee and the beneficiaries

to act in partnership. [Id.]

By some appearances [Pet. App. 000001-000019], FDEP’s partners have

been the pulp and paper industry more so than the citizens protected by the public

trust doctrine. Not long after the Governor and Cabinet gave their approval to the

Georgia-Pacific pipeline, the FDEP Secretary even took a job with a paper

company. [Pet. App. 037701-037702] But the buck does not stop with the FDEP

under the public trust doctrine, but with the Trustees.

At least when it comes to pulp and paper mill pipeline-related mixing zones,

the Trustees so far have not shared the FFWCC’s professed zeal for the public

trust. Nor have they so far even shown concern for related issues related to the

public treasury. Assuming the Trustees could validly market Florida’s heritage to a

paper company, under Florida Administrative Code Rule 18-21.011(2)(b)2

issuance of a private easement for a mixing zone would have to consider the

enhanced property value or profit to be gained by the grantee if the easement were

approved. If based on its independent careful analysis of all constitutional,

statutory, and proprietary management rule provisions the Trustees determine that

the private use associated with these mixing zones is not contrary to the public

interest and should be authorized, they must be willing to justify this on the face of

their decision (and determine the appropriate compensation) so that the

beneficiaries of the trust can evaluate the analysis and have an opportunity to hold

their state-elected Trustees accountable.

It is entirely possible that an informed and conscientious Trustee could come

to a different conclusion than FDEP, whose objective in approving the mixing

zones is to save money for the discharger. Trustees are obligated to achieve

different objectives. For instance, FDEP took into account in approving the

specific conductivity mixing zone the cost to the discharger of spending money to

avoid dumping waste such as salt cake into the surface water. [Pet. App. 0419-

0434, 0515-0518] Salt cake could be stored, put to use, or, if necessary, disposed

of on land, avoiding altogether the need for it to drive up specific conductivity in

the Georgia-Pacific discharge. If it is discharged it creates high levels of specific

conductivity. Under the Florida Constitution, the Trustees might find those

company savings for this mixing zone contrary to the public interest when weighed

against the impacts on citizens of Florida and deny a private easement for this

mixing zone.

To give another example of competing value judgments wherein informed

and conscientious proprietary Trustees may not reach the same conclusion as

FDEP, Georgia-Pacific has been found by USEPA to exceed the limits of federal

dioxin standards in its discharge. [Pet. App. 044401-044418, 0515-0518] Georgia-

Pacific contends that dioxin pollution is caused by “legacy” solids left over from

past mill operations. [Pet. App. 0494-0514] In any event, FDEP now has

concluded that a chronic toxicity mixing zone will be required. [Pet. App. 041201-

041207, 0519-0530] The solids also contribute to the turbidity and color in

Georgia-Pacific’s effluent, so that it had to obtain mixing zones from FDEP. [Id.]

Informed and conscientious Trustees might be expected to ask if Georgia-Pacific

has alternatives to disposing of its dioxin-contaminated sediments on sovereignty

lands.

When the prior Trustees conducted a hearing in 2003 on the pipeline

easement, they did not have benefit of an understanding of what types of mixing

zones were being authorized by FDEP. Their briefing package did not discuss

mixing zones at all. [Pet. App. 0315-0377] Nor had FDEP itself yet finally

authorized any mixing zones. [Pet. App. 0071-0100] At the Trustee hearing,

discussion of mixing in the river was minimal and focused on a comparison of the

dilution capacities of the river and Rice Creek. [Pet. App. 0151-0314] They were

not being asked to grant a private easement or other proprietary authorization for

the mixing zones. In fact, they were only being asked to approve construction of

the pipeline as a contingency in the event compliance could not be achieved in

Rice Creek, which was then still an open question. [Id.]

Under the Florida Constitution, the Trustees have fiduciary responsibility for

open, honest, and full proprietary evaluation of any and all private use of

sovereignty lands that will be undertaken by Georgia-Pacific. Neither they nor

their predecessors have done that. They should not put the citizens of Florida on a

slippery slope to suffering a perpetual paper mill mixing zone private easement by

implication and Trustee neglect. Now that FDEP has finally established at least

some of the mixing zones that will be required, the Trustees can no longer defer

taking specific proprietary action on the mixing zones. So far they have not carried

out their public trust responsibility in the case of pulp and paper mill pipeline-

related mixing zones.

If the Trustees truly believe a mixing zone is justified under public trust

principles, they should explain why and establish the specific temporal,

geographical, and financial terms of the approved private use on the face of a

sovereignty lands authorization. Easements for degrading public trust land through

mixing zones cannot simply be assumed to be granted by implication because of a

pipeline easement. The public should not be forced to guess as to whether the

Trustees have authorized a private use, where, how long, and why. See Fla. Admin.

Code R. 18-21.03(21) (“Easement” means a non-possessory interest in sovereignty

lands created by a grant or agreement which confers upon the applicant the limited

right, liberty, and privilege to use said lands for a specific purpose and for a

specific time.”).

III. NATURE OF RELIEF SOUGHT

The Georgia-Pacific pipeline will go online in the very near future without

proprietary review of, or authorization for, its mixing zones.8 Therefore, this matter

has great urgency and should be decided expeditiously by this Court in favor of

Petitioners. The nature of relief sought by this petition is a writ of mandamus

directing the Trustees to require that mixing zones related to paper or pulp mill

pipelines not be placed into operation without (1) the private user first obtaining

authorization from the Trustees and without the mixing zones being determined by

the Trustees to be not contrary to the public interest and otherwise in compliance

with state law; and (2) equitable compensation being paid by the private

beneficiary.

IV. ARGUMENT

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 are asking to exploit that trust. Trustees should not forget

8 The Georgia-Pacific pipeline is the first but not the only pipeline of this kind

underway in Florida; the decision in this matter may have implications for a similar

scheme in the Fenholloway River where the owner of the Buckeye pulp mill also

seeks to save money by discharging effluent that would require multiple mixing

zones since it will violate otherwise applicable water quality criteria.

who they are working for or allow FDEP’s mixing zone decisions to somehow

morph into sovereign submerged lands authorization by atrophy of Trustee

responsibilities:

The Trustees are fiduciaries for plaintiff, not established agents. Their

role is to manage the Trust assets for the benefit of those entitled to

share in the Trust assets, both the income and the principal. That the

Trustees may engage the services of an expert in managing Trust

assets to assist them in the performance of their fiduciary

responsibilities hardly makes them agents of the Trust beneficiary in

order to bind her personally to their hiring of that assistance or to their

purported waiver of her right of access to a court to seek redress for

loss occasioned thereby.

Fiduciaries are generally not able to avoid the negligent performance

of their own special responsibilities by handing them off to someone

else. See State ex rel. Simmons v. Harris, 119 Fla. 375, 378, 161 So.

374 (1935) ("We think that it is so elementary as not to be questioned

that a trustee holding a fund subject to specific disposition cannot

legally create another trusteeship and pass the fund into the hands of,

and control of, that newly created trustee, so as to place the fund

beyond the reach of the [beneficiary] . . . entitled to the trust fund.");

Thomas v. Carlton, 106 Fla. 648, 659, 143 So. 780, 785 (1932)

("Sometimes, circumstances are such that a trustee, in the

performance of his duties, has to have the assistance of others. In

cases where the employment of agents is authorized, or it is

reasonably necessary for the performance of the duties of the trust, if

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

an agent, who is apparently honest and properly qualified, and

reasonable supervision is used over him, the trustees will not be held

responsible for loss or damage caused by the negligence or dishonesty

of the agent. [c.o.] But, if the regular course of business in

administering the trust does not require that the trustee part with the

custody of the funds . . . and a loss [is] thereby eventually sustained,

the trustee will be liable to make such loss good."); Mann v. Cooke,

624 So. 2d 785 (Fla. 1st DCA 1993) (by law trustee may not delegate

discretionary trust powers).

Morgan Stanley DW Inc. v. Halliday, 873 So. 2d 400, 404 (Fla. 4th

DCA 2004); see

also In re the ESTATE of Brewer CORBIN, 391 So. 2d 731, 732 (3d DCA 1980)

(“An estate's personal representative acts as a fiduciary of the beneficiaries, Dacus

v. Blackwell, 90 So.2d 324 (Fla. 1956), and is, in practical effect, a trustee of an

express trust. Beck v. Beck, 383 So.2d 268, 271 (Fla.3d DCA 1980).”). This is no

less the case when the trustees are state-elected officials and the trust document is

the organic law of the state embodying the original common law of the state. See

Secret Oaks Owner’s Association, Inc. v. Department of Environmental Protection,

704 So.2d 702, 705-6 (Fla. 5th DCA 1998) (“in the exercise of its fiduciary

duties”); see also generally, Reimer, M.K., The Public Trust Doctrine: Historic

Protection for Florida’s Navigable Rivers and Lakes, Fla. Bar J. LXXV, No. 4

(April 2001). The “sovereign,” in this case figuratively so in the person of the

Trustees as public servants, owns the river on behalf of all the people of the State.

The river intrinsically includes the water column as well as the sediments

and all that lies beneath. Florida follows the doctrine of cujus est solum ejus est

usque ad coelom. Orman v. J & D. J. Day and the Apalachicola Land Company, 5

Fla. 385, 389 (1853); Smith v. Guckenheimer & Sons, 42 Fla. 1, 27 So. 900, 905

(1900). As explained by Blackstone Commentaries, Book 2, Chapter 2, p. 18:

phrase appears in Blackstone's Commentaries, Book 2, Chapter 2, p. 18:

Land hath also, in its legal signification, an indefinite extent, upwards

as well as downwards. Cujus est solum, ejus est usque ad coelum, is

the maxim of the law, upwards; therefore no man may erect any

building, or the like, to overhang another's land: and, downwards,

whatever is in a direct line between the surface of any land, and the

center of the earth, belongs to the owner of the surface; as is every

day's experience in the mining countries. So that the word "land"

includes not only the face of the earth, but every thing under it, or

over it. And therefore if a man grants all his lands, he grants thereby

all his mines of metal and other fossils, his woods, his waters, and his

houses, as well as his fields and meadows.

The essence of the public trust is that it protects the public’s rights. While

some of the public interest lies in and below the sediments of the river, these are

not the sum total of the public’s rights in the river. Protection of the water in the

river is necessarily a part of the protection of the public trust rights of all

Floridians. These rights include the rights to fish, swim, and use and enjoy other

lawful uses in the water that will be degraded by these mixing zones. 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). As stated by the Second District in

Brannon v. Boldt, 958 So.2d 367 (Fla. 2d DCA 2007):

Riparian rights are rights to use the water. Broward v. Mabry, 58 Fla.

398, 50 So. 826, 829 (Fla. 1909). There are two categories of riparian

rights. Id. at 830. The public has the right to use navigable waters for

navigation, commerce, fishing, and bathing and "other easements

allowed by law." Id. Owners of riparian land share these rights with

the public. Id. The public's right to use navigable waters or the shore

derives from the public trust doctrine. See Hayes v. Bowman, 91 So.

2d 795, 799 (Fla. 1957). The doctrine embodies the common law rule

that the sovereign held title to all the land below the high-water mark

in trust for the use of the people. Id.

The specific nature of the trust in favor of all the subjects . . . was that

those subjects should have the free use of such waters and shores. The

waters . . . were of common right, public for every subject to navigate

upon and fish in without interruption; . . . the shore was also of

common right public. The use of each was in the subjects for the

inherent privileges of passage and navigation and fishing, as public

rights . . . .

State v. Black River Phosphate Co., 32 Fla. 82, 13 So. 640, 643 (Fla.

1893); see also Hayes, 91 So. 2d at 799 (noting that the principle uses

of the water were navigation, bathing, and fishing).

958 So.2d at 372 (footnote omitted); see also Christie, D.R., Marine Reserves, The

Public Trust Doctrine and Intergenerational Equity, Journal of Land Use, Vol.

19:2, 427, 434 (“The state has the authority to regulate public trust uses to

minimize conflicts and assure the protection of waters and wildlife that are

fundamental to the enjoyment of all other public trust uses.”); Tiffany Real

Property § 263, p. 591 (1903) (“The private owner of land under water is entitled

to the ice formed on the water, while the public are entitled to that formed over

land belonging to the state.”).

The mixing zones, as demonstrated clearly on the face of the Georgia-

Pacific private easement and in the associated Trustee approval, have not received

careful Trustee scrutiny on behalf of the public trust. The Trustees are the citizens’

fiduciaries with respect to sovereignty lands and should act worthy of this trust.

The Trustees may not have acted previously in cases of this precise sort because of

the novelty of the equipment, incompleteness or lack of clarity of the user’s

application to the Trustees, and the audacity of the private user. But they have

acted in analogous cases, i.e., cases involving other sorts of activities that are

different in type but have similar although far lesser impacts. In situations

involving docks over sovereignty lands the Trustees have effectively evaluated the

effects of conduct and even acted proactively to make sure the effects of conduct

are carefully circumscribed.

In Board of Trustees of the Internal Improvement Trust Fund v. Levy, 656

So. 2d 1359, 1360 (Fla. 1st DCA 1995), the First District examined the history in

Florida of the public trust doctrine concerning sovereignty lands. Although it was a

dock case, its description of the doctrine is equally applicable to the mixing zone

form of private use of sovereignty lands:

The appellee concedes the power and authority of the state, acting

through the Board of Trustees of the Internal Improvement Trust

Fund, to prohibit altogether the construction of docks or other

structures waterward of the mean or ordinary high water line within

aquatic preserves. This authority is based, in part, upon the adoption

in Florida of the "Public Trust Doctrine," a principle derived from the

English common law, incorporated into the organic law of this state

pursuant to a constitutional amendment in 1970, followed by

legislative action authorizing private use of portions of sovereignty

lands under navigable waters when not contrary to the public interest.

See Hayes v. Bowman, 91 So. 2d 795 (Fla. 1957); Yonge v. Askew,

293 So. 2d 395 (Fla. 1st DCA 1974); Graham v. Edwards, 472 So. 2d

803 (Fla. 3d DCA 1985), rev. denied, 482 So. 2d 348 (Fla. 1986);

Krieter v. Chiles, 595 So. 2d 111 (Fla. 3d DCA 1992), rev. denied,

601 So. 2d 552 (Fla.1992), cert. denied, 121 L. Ed. 2d 244, 113 S. Ct.

325 (1992). The "Public Trust Doctrine" is embodied in the following

language found in Article X of the Florida Constitution….

Whatever rights the pipeline easement holder was previously granted by the

Trustees’ predecessors are held subject to the Trustees’ continuing authority over

sovereignty lands. See Secret Oaks Owner’s Association, Inc. v. Department of

Environmental Protection, 704 So.2d 702, 706 (Fla. 5th DCA 1998) (“Whatever

rights a riparian owner enjoys have been held subject to the state’s ownership of

the sovereign lands.”) The existing private easement may entitle the easement

holder to seek authorization from the Trustees for additional private use in the

heart of the river associated with the mixing zones, now that some of the mixing

zones have been finalized by FDEP for regulatory purposes. But the easement

holder has not done so, and nor have the Trustees requested that it do so, causing

uncertainty for Petitioners and the Florida public in general. See Parlato v. Secret

Oaks Owners Association, 793 So.2d 1158 (Fla. 1st DCA 2001) (riparian easement

holder determined to be entitled to apply to put dock on St. Johns River).

In Levy the Trustees successfully argued that they were entitled to reject

docks beyond 500 feet in length. Board of Trustees of the Internal Improvement

Trust Fund v. Levy, 656 So. 2d at 1360 (“This rule challenge was filed by Dr.

Levy, appellee, in response to the decision of the Division of State Lands, acting as

staff for the Trustees, denying Dr. Levy's request to extend his existing 500-foot

dock to approximately 600 feet in order to reach greater water depth. … The denial

of Levy's request for the dock extension was based upon Florida Administrative

Code rule 18-201.004(5)(a)1. (1994), which in essence provides that all docking

facilities, whether for private residences, commercial, industrial or public, must

comply with certain standards and criteria, the first being that no dock "shall

extend waterward of the mean or ordinary high water mark more than 500 feet or

20 percent of the width of the water body at that particular location whichever is

less ....").

Here Petitioners are focused on the opposite situation—Trustees who have

not carried out their public trust responsibility when it comes to paper mill mixing

zones. But here too the Trustees should establish a clear basis for its conduct. The

Trustees have altogether failed to make a careful analysis of this private use of

submerged lands. They must not be allowed to adopt a head-in-the-sands approach

to effects outside of the pipeline itself. This would be as far away from the

responsible conduct of the Trustees in the Levy case as could be imaginable. In

Levy, the Trustees were diligent as fiduciaries would be expected to be:

[A] logical and reasonable basis for the maximum dock length is

found in the evidence of record as recited in the order under review.

The hearing officer found, in part, that no single-family docks in

aquatic preserves extend over 500 feet into the water. Further, in

Charlotte Harbor, the average length of a single-family residential

dock is 200 feet. In promulgating the predecessor to the rule in

question, originally adopted in 1981, the trustees attempted to balance

competing interests such as environmental, aesthetic, recreational, and

private commercial. There was some concern that previously

authorized docks had infringed upon the riparian access of adjacent

upland owners. The 500-foot limitation was added to the rule by

amendment in 1985. In setting the criteria for dock length, the hearing

officer found, the trustees attempted to set a limit that would not result

in the denial of more than a negligible number of dock applications,

based on historic dock application data and predominant vessel

lengths of under 27 feet. Indeed, as the hearing officer found in

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

appears to have been the product of a process involving the thoughtful

balancing of varying factors." In our view, these findings of fact

contained in the order under review are inconsistent with the

conclusion that the rule is arbitrary. To the contrary, we view these

findings as ample to show that the trustee's decision was a reasoned

one, supported by facts and logic, and that their decision could in no

sense be labeled "despotic." Agrico, 365 So. 2d at 763.

656 So.2d at 1363.

Docks themselves effect light penetration, but mostly from a distance.

In contrast, Georgia-Pacific and Buckeye will have light-blocking

color/transparency and turbidity mixing zones directly in the water,

emanating upward from the bottom of the river where any grass struggling

to grow would be rooted.9 Yet thus far the Trustees have shown no concern

for, or even awareness of, the now authorized mixing zones, which had not

even been established the one time the Trustees’ predecessors took up the

matter. Unlike the dock of someone such as Dr. Levy, the agent of

transparency loss in this case is physically in the water, whereas much of a

dock is a few feet above the water. Similarly, just as the Trustees should be

attentive to addressing substances such as copper that may be emanating

from docks, they also should pay attention to the nature of the mixing zones,

which by definition will be degrading public trust property. The chronic

9 The same turbidity and color pollution problems will exist for the Buckeye

discharge in the Fenholloway River’s mouth if that pipeline is built.

toxicity mixing zone is continuing to undergo FDEP permitting review as

the pipeline gets over closer to starting to discharge. The already authorized

mixing zones include turbidity, un-ionized ammonia, and color, as well as

solids likely to have dioxin in excess of standards and high specific

conductance, compounds that could have been alternatively disposed of on

land without threatening sovereignty lands if only Georgia-Pacific were

required to do so.

The proprietary documents and associated Trustee reviews, and the

subsequently established mixing zones, 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 Florida’s

constitutionally-protected assets is imminent.

V. CONCLUSION

The sovereignty lands of the St. Johns River are no less the people’s

lands because they happen to be in the pathway of Georgia-Pacific’s

intentional pollution flows rather than under a residential dock.

Conscientious fiduciaries would carefully look at anticipated private use on

sovereignty lands and expressly determine whether it is contrary to the

public interest as the Florida Constitution requires them to do. If allowing

the private use of sovereignty lands to go forward at all, they would ensure

that the harm is minimized, with full compensation to the taxpayer.

A conscientious Trustee might not be troubled by the prospect of

additional costs to the pulp and paper industry if that was the price for better

protection of sovereignty lands. The Trustees’ duty is to represent current

and future beneficiaries of the trust not pulp and paper companies. FDEP’s

goals are far murkier as it implements a “cost-saving” mixing zone scheme

that assumes degradation of public property is allowable. A conscientious

Trustee would certainly be willing to ask tough questions and fully explain

his or her decision concerning the authorization of mixing zones on

sovereignty lands.

Dated May ____, 2012.

Respectfully submitted,

___________________________

Steven A. Medina

Attorney

Florida Bar No. 370622

1104 N. Eglin Parkway

P.O. Box 1021

Shalimar, Florida 32579

Phone: 850.621.7811

Fax: 850.362.0076

stevenamedina@yahoo.com

ATTORNEY FOR PETITIONERS

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the PETITION

FOR WRIT OF MANDAMUS was served by regular U.S. mail upon the

following on June ___, 2012: The Honorable Rick Scott, Governor,

Executive Office of the Governor, The Capitol, Tallahassee, Florida 32399-

0001; The Honorable Pam Bondi, Attorney General, Department of Legal

Affairs, The Capitol, Tallahassee, Florida 32399-1050; The Honorable Jeff

Atwater, Chief Financial Officer, Department of Financial Services, The

Capitol, Tallahassee, Florida 32399-0300; and The Honorable Adam

Putnam, Commissioner, Department of Agriculture and Consumer Services

The Capitol, Tallahassee, Florida 32399-0810.

___________________________

Steven A. Medina

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this Petition is typed in Times New Roman

14-point font and complies with Florida Rule of Appellate Procedure

9.100(l).

___________________________

Steven A. Medina