Recently the Florida Clean Water Network and several other organizations and individuals filed a Petition for Mandamus at the Florida Supreme Court. This was only possible through the generosity and brilliance of attorney Steven A. Medina of Ft. Walton Beach, FL. The Petition seeks for better, if not full implementation of the Florida Public Trust Doctrine, which is part of the state Constitution. We are asking the Court to mandate that the Board of Trustees (Gov and Cabinet) review the use of mixing zones in our waters before giving parts of our rivers and estuaries away for private use. Please read the Petition and share your thoughts with us. The format is somewhat altered by the transfer from a pdf to this website.
If you don’t have time to read the Petition, at least click on this link to Karen Ahlers’ excellent photos of the people and businesses who currently use the waters that would be contaminated by the Georgia-Pacific/Koch Brothers’ pollution pipeline across the St. Johns River.
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 of ST. AUGUSTINE, an unincorporated Florida association, FLORIDA CLEAN WATER NETWORK, INC., a non-profit Florida corporation, and PUTNAM COUNTY ENVIRONMENTAL COUNCIL, INC., a non-profit Florida corporation, Petitioners,
vs. Case No. 1325
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,
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 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 Florida’s long 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.
Footnote 1: This petition is styled using the Florida constitution’s 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 Florida’s 1968 constitution, each Trustee has “equal footing,” and Cabinet members are “no longer expected, constitutionally, to capitulate to the Governor’s wishes.” [C1] By statute, the Trustees collectively have been designated as the “Board” of Trustees of 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 where applicable.
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. “Mixing” of 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.2 The 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 bottom, the industrial waste constantly will shoot out in both up and down stream directions.
Footnote 2: The mill currently discharges into Rice Creek. Although Georgia-Pacific maintains the river is a better location to discharge, it has no vested right from the Trustees at either location.
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.”3 Thus, 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.
Footnote 3: The 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” of sovereignty 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 when not 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 boundaries within which degradation by Georgia-Pacific will occur.
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.5 The pipeline structure itself is not 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.
Footnote 4: At least one other paper or pulp mill pipeline project is reliant on mixing zones (the Buckeye project in Taylor County) also may be constructed at some point. [D171] However, it is the imminent unconstitutional private use of mixing zones related to the Georgia-Pacific pipeline that justifies this Court immediately addressing the Trustee’s abdication.
Footnote 5: The private easement for the pipeline construction corridor was approved with limited information provided by the FDEP that did not include the mixing zones. 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 current Trustees notice of their intent to file this petition. [A26-7] Petitioners have received no response from any of the Trustees.
Footnote 6: The 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 the time of actual construction. In effect, the Trustees will be giving an additional much larger private easement away to a paper company causing substantially more harm 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 on their part.
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.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 appropriate vehicle for addressing claims of unconstitutionality ‘where functions of government will be adversely affected without an immediate determination.’”); see also 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) (“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. 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 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 Court’s constitutional views on a critical aspect of a subject it has been dealing with for more than a century. 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
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 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]
Footnote 7: EYC sometimes also has used the name Environmental Youth Congress. [A19]
Footnote 8: The 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 areas designated for Georgia-Pacific mixing zones. [A3-13, D1-9]
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 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 such lands may be authorized by law, but only when not contrary to the public interest.
Footnote 9: See also the references to Trustee duties in Part II.B., infra. 12
[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].10 In 1970, when Article X, Section 11 was amended by 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 use” of even “portions” of sovereignty lands may only be authorized when “not contrary to the public interest.” This was almost four years prior to the federal government’s passage of the modern Clean Water Act (Pub.L. 92-500, October 18, 1972).12 Both prior to the adoption of the Clean Water Act and thereafter, the Trustees repeatedly acknowledged jurisdiction over the water column.13 [C17-55]
Footnote 10: The first sentence embodies the general public trust doctrine, which became a part of Florida’s common law heritage as soon as Florida became a state. See Part III., infra, for discussion of pertinent case law.
Footnote 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.”
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.
Footnote 12: FDEP currently implements that act’s National Pollutant Discharge Elimination System (“NPDES”) permitting system for Florida. [D34-83, 115-32, 172-211]
Footnote 13: Petitioners’ appendix [C17-55] contains excerpts with numerous references to “water 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 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.”).
§ 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 public’s rights to use the affected areas.14 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.
Footnote 14: The 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 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. [C4-5] (emphasis added). The Trustees’ Conceptual State Lands Management Plan further 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 Trust Fund, 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 the purposes of discussion, Blacks’ Law Dictionary has been used for all definitions.
(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 another person 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 the benefit or the use of another called the cestui que trust.”
(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 the Internal 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 occupying a 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 and things within its boundaries… (Emphasis added). Therefore, management of state-owned lands is for the benefit of all the citizens of Florida; and to this end, a fiduciary relationship exists with this general public. The Florida Constitution (Article II, Section 7 and Article IX, Section 11), Chapter 253, Florida Statutes, and certain other 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 of development 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 and 3/15/1983). [C56-91]
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 FDEP’s 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] was not mentioned in the 2002 NPDES permit DEP granted for the facility [D34- 83].15 No 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 standards will not be met for chronic toxicity, un-ionized ammonia, turbidity, specific conductance, and color/transparency.17
Footnote 15: On the other hand, FDEP has determined that Georgia-Pacific will not need mixing 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]
Footnote 16: The 2002 NPDES permit set up an iterative process that required further analysis and administrative procedure before any of the mixing zones could be authorized by FDEP. [D40, 50] This process was never completed by administrative process, and none of the mixing zones mentioned in 2002 NPDES permit is currently approved 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]
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 any compensation paid was limited to the narrow subaqueous pipeline corridor based on an appraisal restricted to the subaqueous 50-foot pipeline corridor.20 The limited “public interest” analysis in the easement approval package did not refer or apply to the mixing zones.21
Footnote 17: In 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, which primarily 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 mill dioxin tests with detection limits set well above the water quality criterion. [D34- 83, 115-43, 172-211] If dioxin later materializes in streambed sediments, FDEP disregards the sediment data in assessing stream water quality. [D170] Cost savings also will result from allowing Georgia-Pacific to dump its “salt cake” into the mixing zones, driving up specific conductivity. [D144-63]
Footnote 18: Like 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 administrative procedures. [C5] Petitioners have attempted to raise the issues with the Trustees [A26-7] but received no response.
Footnote 19: The 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 project description of the Georgia-Pacific agenda item was: [C106].
Footnote 20: The 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]
Footnote 21: 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.” [C106] 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. The Trustee analysis of the project does not even reference the mixing zones or their possible effects:
Footnote 22: This petition is not using the term “corporate welfare” in reference to this form of 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” to corporations as “corporate welfare” (“[F]ree market ideology, of course, does not 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 Before the Subcommittee on Consumer Affairs, Foreign Commerce and Tourism of the Committee on Commerce, Science, and Transportation, United States Senate, 107th Congress 2nd Session, 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 of degradation 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 concerning the 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 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.
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.23 Id. However, with the advent of modern water pollution 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 will become more expensive in the future. Postponement for cost reasons only creates greater problems in the future.
Footnote 23: Although “Florida has wisely abandoned its legislative authorization to pollute the state’s 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 About Legal Protection for Remains of Florida’s Natural Environment, 23 U. Fla. L. Rev. 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’s history of exploitation. Fla. Laws Spec. Act. 1947, ch. 24952.”) [B118-73].
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, including those directly charged with protecting public interests, frequently subvert environmental protection in favor of private interests or perpetuating 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 to review continually the actions, and especially the inactions, of these agencies.
Little, J. W., New Attitudes About Legal Protection for Remains of Florida’s 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 the topic of water law. See Maloney, 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”).
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.
§ 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 activity” requiring 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 Administrative Code 18-21.001, as being “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:
The intent and purpose of this rule is:
(1) To aid in fulfilling the trust and fiduciary responsibilities of the Board 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 all the citizens of Florida;
(3) To manage, protect, and enhance sovereignty lands so that the public may continue to enjoy traditional uses including, but not limited 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 and wildlife propagation and management;
(5) To insure that all public and private activities on sovereignty lands which 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 Trustees’ predecessors themselves made the decision to authorize the pipeline corridor rather than purport to allow FDEP to decide the issue by any delegation. 24 [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.
Footnote 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 authorization and an environmental resource permit or wetland resource permit); see also Fla. Admin. Code R. 18-21.0051 (delegation of authority in relation to operating agreements between FDEP and water management districts).
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 FDEP’s “water quality protection” 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”) (see Ch. 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 FDEP’s water quality responsibility as follows:
(1) These rules are to implement the administrative and management responsibilities of the board and department regarding regarding sovereign submerged lands. Responsibility for environmental permitting of activities and water quality protection on sovereign and other lands is vested with the Department of Environmental Protection. These rules are considered cumulative. Therefore, a person planning an activity should consult other applicable department 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). The 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:
1. Under Article X, Section 11, of the Florida Constitution, sovereignty submerged lands are held in trust for all the people of this State. 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 to adopt rules and regulations governing the exercise of its statutory duties. Sections 253.03(1) and (7), Florida Statutes. The Department of Natural Resources, Division of State Lands (the “Department”), is empowered to “perform all staff duties and functions” related to the administration of the submerged lands held by Plaintiff. Section 253.002, 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 Defendant Barnett requested and Plaintiff issued the Consent of Use). The Rules “implement the administrative and management responsibilities” of both 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).
The Trustees’ rules allow FDEP’s biological assessment to “be considered in evaluating specific requests to use sovereignty lands,” not to take the place of proprietary authorization. 26 Fla. Admin. Code R. 18-21.004(2)(c). A host of Trustees’ rules must be applied to the mixing zones.27 These include careful determination of just compensation for any mixing zones that are otherwise properly authorized by the Trustees.28
Footnote 26: That the Trustees depend upon FDEP for staffing, Section 253.002(1), Florida Statutes, does not remove the Trustees’ fiduciary responsibility to control, conserve, protect, and supervise sovereignty lands and to supervise the staff at FDEP. FDEP documents during 2000-2001 reveal FDEP strategizing with the private user, Georgia-Pacific, about obtaining authorization for the pipeline from the Trustees. [D10-28] “[C]oncept[ual] approval” was discussed that would be “contingent 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 the decision. [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 Trustees’ decision 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 specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under Section 120.57. … Absent waiver, we must 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 of issuing a FDEP permit, the staff often included a point of entry for interested persons to contest the FDEP’s decision, but this never occurred with the Trustees’ decision on the pipeline. [C94; D29-33, 84-100]
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 29 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. …
Footnote 28: Assuming 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 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. [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 Wildlife Conservation Commission (“FFWCC”) participants discussed “the state’s responsibility is to keep these trust resources from being depleted or wasted,” and called 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 for its pipeline, the FDEP Secretary took a job with a paper company. [E1-2]
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 “mixing” in 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 information about the mixing zones is at best a text book illustration of the need for due process and citizen participation to protect the public’s 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. 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.”). 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 Florida’s navigable waters to be treated like the private 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.
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 (4th DCA 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 trust cases made this point. Illinois Central Railroad Company v. Illinois, 146 U.S. 387, 456 (1892), quoted approvingly from Martin 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.”30 Similarly, 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
Footnote 29: In the event the Court deems this petition more appropriately should have been framed 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 of the people.
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 state public 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.” United States 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 Hawai’i, 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).
Footnote 31: Note also that 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, 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 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.
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 navigable freshwater lakes, rivers, and streams.” See also Trustee’s website (“navigable fresh waters such as rivers and lakes below ordinary high water”) [C4]; accord D’Alemberte, 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 the 1970s and 1980s. At stake is the water property and land that was once navigable and now is sometimes dry. … The state received sovereignty land—state-owned lands—when it entered the Union. These lands included property up to the high- water mark along waterways.”).
Footnote 32: A 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 a navigable river gradually and imperceptively changed its course onto previously conveyed lands, the navigable river would become private property 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 navigable waters. Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S. Ct. 517, 38 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 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 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 public’s property.33
Footnote 33: The 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 person’s due … [t]he means employed must be such as one desirous of actually informing the absentee might 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 State’ against ‘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 Capeletti Bros. v. State, 362 So. 2d 346, 348 (Fla. 1978). In addition, the Trustees now are informed that Georgia-Pacific will be using mixing zones that will impact the public 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 greater importance to the public interest than the mere construction of a pipeline.
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 FDEP’s 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. 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 certainly no less the case when the trustees are state-elected officials and the trust document is the organic 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 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 structure constructed across Florida’s 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. In Board of Trustees of the Internal Improvement Trust
Footnote 34: The 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 yesterday’s information rather than as the flexible competent land managers any private beneficiary would expect:
The Plan, like the ongoing management program, must remain flexible 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 Plan modification system, while maximizing public notice and input. Such modifications could be proposed by either the public, departmental staff, or directly by the Board. Affirmative Board action on such Agenda items would effectively accomplish the required modification.
A. 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 of those state-owned lands vested in the Board of Trustees. Section 253.03(7), Florida Statutes, directs the Board of Trustees “…to administer 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; to take charge of business.
The Board of Trustees, in meeting its obligations as both title holder and 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 greater proprietary 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 on state-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 for sanitary landfills meet the statutory test of “maximum benefit and use”.
1. 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 to the Board.
3. Phase out existing sanitary landfill leases as expeditiously as possible.
4. Prohibit non-state agency sanitary landfills and similar facilities on state-owned 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….
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
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 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. In Levy, 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 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 1363.35 The 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 Florida’s 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
Footnote 35: Docks themselves effect light penetration, but mostly from a distance. In contrast, Georgia-Pacific will have light-blocking color/transparency and turbidity mixing zones directly in the water, emanating upward and outward from the bottom of the river. The potential impacts or barriers created by the mixing zones could significantly reduce populations of anadromous species and adversely affect the public’s fishing opportunities. Yet thus far the Trustees have shown no concern for or even awareness of the mixing zones. 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.
C. The Court Need Not Reach All Aspects of the Public Trust Doctrine
As discussed supra at note 3, this petition is limited in its scope to private use mixing zones associated with paper and pulp mill pipelines. It primarily rests on a portion of the Florida constitution that by its terms does not apply to “public use” or “public utilities.”37 In addition, Florida’s constitutional public trust doctrine, at issue in this petition, is by its terms limited to sovereignty lands.38 Nor is the Court being asked to assess the public interest with respect to the mixing zones for the Trustees. That is the Trustees’ responsibility, which they may not abdicate.
Footnote 36: The fact that the Trustees’ predecessors sometimes may have done a poor job of safeguarding the public trust against Georgia-Pacific or other paper and pulp companies does not excuse the current Trustee’s continuation of the negligent pattern. 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 easement holder at most has the unexercised right to seek authorization from the Trustees for additional private use in the river associated with the mixing zones. 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). And even if private use mixing zones eventually are authorized by the Trustees, this must not be because of corporate welfare and, as a further safeguard, it will be “necessary to … employ the rent or consideration for the benefit of the whole people,” Illinois Central Railroad Company v. Illinois, 146 U.S. at 457 (quoting Stockton v. Baltimore and New York Railroad Company, 32 Fed. Rep. 9, 19, 20 (1887).
Footnote 37: Not only is Petitioners’ narrow approach focused on “private use” consistent with the facts of the case and the constitutional language cited, but also it is consistent with historical rulings of the United States Supreme Court and this Court. Both have shown considerable flexibility under the public trust doctrine in relation to public utilities. For instance, it has been recognized that the public interest may necessitate public utilities discharging municipal wastewater into tidal waters. Darling v. City of Newport News, 249 U.S. 540, 544 (1919) (“one of the very most important public uses of water already partly polluted, and in the vicinity of half a dozen cities and towns to which that water obviously furnished the natural place of discharge”); see also Gibson v. City of Tampa, 135 Fla. 637, 185 So. 319, 321 (citing Darling v. City of Newport News in ruling that the city was “not required to furnish a disinfectant plant” but could be liable for damages to an oyster bar leaseholder). But even here, “using the great natural purifying basis” was “practical necessity” and had to take into account “[w]hatever science may accomplish in the future.” Darling v. City of Newport News, 249 U.S. at 542-3; cf. Wisconsin v. Illinois, 278 U.S. 367, 417 (1928) (“Had an injunction then issued and been enforced, the Port of Chicago almost immediately would have become practically unusable because of the deposit of sewage without a sufficient flow of water through the Canal to dilute the sewage and carry it away. In the nature of things it was not practicable to stop the deposit without substituting some other means of disposal.”). Public sewage disposal also can raise concern for public water supply. Darling v. City of Newport News, 249 U.S. at 542 (“The fundamental question as to the rights of holders of land under tidal waters does not present the conflict of two vitally important interests that exists with regard to fresh water streams. There the needs of water supply and of drainage compete.”).
Footnote 38: In contrast, some legal scholars have advocated for extension of public trust analysis to disputes involving air and other interests beyond the water or other sovereignty lands. In a seminal article discussing this position, Joseph L. Sax observed that the doctrine historically had not been extended this far. Sax, J. L., The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 472, 556-7 (1969-1970). It historically applied to “waters”:
It is clear that the historical scope of public trust law is quite
narrow. Its coverage includes, with some variation among the states, that aspect of the public domain below the low-water mark on the margin of the sea and the great lakes, the waters over those lands, and the waters within rivers and streams of any consequence. Sometimes the coverage of the trust depends on a judicial definition of navigability, but that is a rather vague concept which may be so broad as to include all waters which are suitable for public recreation.
Id. (emphasis added; footnoted omitted). This case also plainly involves private use within the Trustee’s public trust responsibilities. It does not require an ecological analysis to discern the Trustee’s jurisdiction. The St. Johns River will be adversely affected by these private use mixing zones—the zones by definition will allow degradation directly in public water. Cf. Hunter, D. B., An Ecological Perspective on Property: A Call for Judicial Protection of the Public’s Interest in Environmentally Critical Resources, 12 Harv. Envtl. L. Rev. 311, 358 (1988) (described the “improved version of the harm/benefit distinction” in Just v. Marinette, 56 Wis.2d 7, 201 N.W.2d 761 (1972), where a filling permit on private property was denied because it would affect the public’s right in navigable waters).
The sovereignty lands of the St. Johns River are no less the people’s lands because they happen to be within the area of Georgia-Pacific’s intentional degradation zones rather than under a residential dock or permanently-moored houseboat. Fiduciaries in any sense of the word must carefully look at anticipated private use mixing zones associated with paper or pulp mill pipelines. They must expressly determine whether they are contrary to the public interest and ensure that they are authorized only in accordance with clear terms and conditions that are fair to the interests of the people, whose property the companies are despoiling.