Petitioners Response to Respondents' and Intervener's Motions for Summary Judgment

8/9/2019 Petitioners Response to Respondents' and Intervener's Motions for Summary Judgment

1/6

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT,

IN AND FOR LEON COUNTY, FLORIDA

KAREN AHLERS, NEIL ARMINGEON,

ENVIRONMENTAL YOUTH COUNCILST. AUGUSTINE, FLORIDA CLEAN WATER

NETWORK, INC., and PUTNAM COUNTYENVIRONMENTAL COUNCIL, INC.,

Petitioners,

vs. Case No. 12 CA 002715

RICK SCOTT, PAM BONDI,

JEFF ATWATER, and ADAM PUTNAM,as Trustees of the Internal Improvement Trust Fund,

Respondents.

__________________________________________/

PETITIONERS RESPONSE TO

RESPONDENTS AND INTERVENERS

MOTIONS FOR SUMMARY JUDGMENT

Petitioners, Karen Ahlers, Neil Armingeon, Environmental Youth Counsel

St. Augustine, Florida Clean Water Network, Inc., and Putnam County

Environmental Council, Inc., through their undersigned attorney, respond as

follows to the motions for summary judgment of the Respondent, Trustees of the

Internal Improvement Trust Fund, and the Intervener, Georgia-Pacific Consumer

Operations LLC:

The Georgia-Pacific pipeline was a matter of great public interest which the

Florida Department of Environmental Protection (FDEP) concedes only received


2/6

2

preliminary approval by actual living breathing Trustees, none of whom were

accurately informed about mixing zones, including the chronic toxicity mixing

zone which was only recently deemed to be needed.

Unlike the Fort Lee, New Jersey bridge scandal, we know the ultimate

intended financialbeneficiaries of Respondents motion for summary judgment

and the prior defective and deceptive notice by publication.Like the Fort Lee,

New Jersey bridge scandal, it is not yet clear which if any principals were aware of

the positions being taken by their agent FDEP at various points in time. De jure,

in their motion, the Trustees of the citizens seek to permanently sabotage the

constitutional public trust doctrine in this state as well as the Respondents due

process duties. Not even the Legislature could supersede the public trust doctrine

and due process requirements, which need no legislative sanction to be the sacred

rights of a class consisting of every Floridian, present and future, including their

rights to fish and bathe in an area that is now so degraded even FDEP has no

choice but to designate it as toxic.

Trustee transactions, such as the granting of pipeline easements, facilitating

using portions of a river for mixing toxic waste areclearly matters of great public

concern. Filed by FDEP on the Trusteesbehalf,their motion provides no

justification for the grossly deficient constructive notice by publication, which did


3/6

3

not remotely meet minimum due process requirements.1Respondents donot

deny much less remotely provide an excuse with respect to Petitioners express

suggestion that [i]tappears that the public notice was intentionally designed to

befuddle the public. (Pet. Mot., p. 5.)

FDEP has staff members, such as the two who have given affidavits in

support of Trustees motion, who should be free to submit environmental reports

within their personal knowledge and expertise to the Trustees about actual

conditions within the mixing zones, which can then be administratively-scrutinized

before the Florida Division of Administrative Hearings (DOAH) regarding their

effects on traditional rights within these zones, and how much money Georgia-

Pacific is saving from this private use of public lands. Those are detailed factual

questions within the primary jurisdiction of the Trustees, not the proper subjects

for this Court. The responsibility of the judiciary is to ensure that procedures are

followed to protect the publics rights in these regards, and here, they clearly have

not been. The Trustees, on a remand from DOAH, can decide if FDEP got it right

1In addition to the authority cited in Petitioners prior filings,seeNewberg on

Class Actions Ch. 8 (5th ed.). Taking a different tact, Georgia-Pacific makes the

patently ineffective attempt to mend the later defective constructive notice by

relying on the pre-decision notice of application, which did not even have within ita deeply buried notice of APA hearing rights as to the pipeline easement. While

it also would not salvage the later defective constructive notice, Georgia-Pacificlikewise wrongly insinuates that the undersigned was the lawyer for the

administrative petitioners at the time of the prior NPDES administrative hearing,

knowing full well that by then the undersigned had moved to another job andwithdrawn as counsel. (SeeEx. 1.)


4/6

4

or wrong in assessing the impacts on traditional rights and how much money is

involved.2

This Court has ample justification for entering summary judgment for

Petitioners. In the event the Court is not inclined to do so at this time, under no

circumstances should summary judgment be entered for Respondents and

Intervener. The full facts would take time to develop and resources beyond the

volunteer capabilities of Petitioners alone, but at this time it appears that this case

not only involves gross neglect of the Trustees duties under the public trust

doctrine and due process but also the possibility of intentional impropriety.3

WHEREFORE, Petitioners request that summary judgment be entered in

their favor against Respondents and denied to Respondents and Interveners, and in

the event the Court is not inclined to grant summary judgement in favor of

Petitioners at this time that the matter be set for a case management conference

concerning discovery and other matters consistent with any investigation that may

ensue by the federal government pertaining to the premises.

2This case involves failure to comply with the public trust doctrine and due

process in the granting of a private easement, which is clearly a Board of Trustees

transaction, in contrast toKruer v. Board of Trustees of the Internal Improvement

Trust Fund, 647 So.2d 129 (Fla. 1stDCA 1994) which involved an attempt to filean administrative petition to interfere in the settlement of a circuit court case. Nor

does this case involve a proposed rule, unlike State, Board of Trustees of theInternal Improvement Trust Fund, 794 So.2d 696 (Fla. 1st2001), and similarly

unlike last year where the Environmental Regulation Commission rejected an

FDEP attempt to promulgate inadequate water quality standards. (Exs. 2 and 3.)3SeeEx. 4.


5/6

5

Respectfully submitted on February 6, 2014.

___________________________Steven A. Medina

Attorney

Florida Bar No. 3706221104 N. Eglin Parkway

P.O. Box 1021Shalimar, Florida 32579

Phone: 850.621.7811

Fax: 850.362.0076

[email protected]

ATTORNEY FOR PETITIONERS

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing, with

attachments, was served by electronic mail upon the following on February 6,

2014:

W. Douglas Beason

Department of Environmental Protection3900 Commonwealth Blvd., M.S. 35

Tallahassee, Florida 32399-3000Email:[email protected]

[email protected]@dep.state.fl.us

Terry Cole, Esquire

Kellie Scott, EsquireGunster, Yoakley and Stewart

215 South Monroe Street, Suite 601

Tallahassee, Florida 32301

Email:[email protected]
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


6/6

6

[email protected]

[email protected]

Warren K. Anderson, Jr.

The Public Trust Environmental Legal Institute of Florida, Inc.2029 N. 3rd Street

Jacksonville Beach, Florida 32250Email:[email protected]

[email protected]

__________________________

Steven A. Medina
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

Petitioners Response to Respondents' and Intervener's Motions for Summary Judgment

Documents

Transcript of Petitioners Response to Respondents' and Intervener's Motions for Summary Judgment