ARTICLES

   DEPARTMENT OF ENVIRONMENTAL PROTECTION UPDATE
       Thomas Mayton,
        Assistant General Counsel Florida Department of Environmental Protection
        (September, 1997)

A. Statutory and Rule Challenge Cases

Criminal/Environmental Law -- Section 403.161, which makes a violation of Chapter 403 or a permit issued by the Department of Environmental Protection a misdemeanor, is not unconstitutional. State of Florida v. Avatar Development Corp. and Amikam Tanel, 22 Fla. L. Weekly D1740b (Fla. 4th DCA July 16, 1997)

In January of 1994, the Department of Environmental Protection (Department) issued a permit authorizing Avatar to conduct certain dredge and fill activities. The permit required Avatar to notify the Department at least 48 hours before commencing the work authorized by the permit and to install floating turbidity curtains in the project area. In November of 1995, the State charged Avatar and Tanel by information with two misdemeanors under Sections 403.161(1)(b) and 403.161(5) of the Florida Statutes, for willfully violating the notice and turbidity control requires of the permit. The trial court dismissed the information, finding these statutory provision unconstitutional on three grounds because they: (1) violate Article I, Section 18 of the Florida Constitution; (2) violate Article II, Section 3 of the the Florida Constitution; and (3) they violate due process.

The Fourth District Court of Appeal reversed the trial court, holding that Sections 403.161(1)(b) and 403.161(5) were constitutional, and remanded to the trial court with instructions to reinstate the information. The Court reasoned that there was no violation of Article I, Section 18, because the Department had not conducted an administrative hearing or imposed any penalties upon the appellees. Thus, the Department had not exercised any quasi-adjudicatory powers over appellees. The Court devoted most of its attention to Article II, Section 3. The Court reasoned that there was no violation of Article II, Section 3, because a review of pertinent provisions of Chapter 403 of the Florida Statutes revealed that the Department is "subject to express legislative control and and guidance in the exercise of its authority" and that it is "especially suitable" for the Department to set terms and conditions for a permit to dredge and fill. Finally, the Court found no violation of due process because appellees received actual notice of the permit conditions when they received the permit.

Petition challenging three computer models as non-rule policy and a proposed rule to reestablish coastal construction control line (CCCL) for Palm Beach County dismissed because Section 161.053(2)(a) does not allow challenges to proposed CCCLs until such lines are adopted as a rule and Petitioners lacked standing. Concerned Citizens of Highland Beach, Inc.; James A. Barry, Jr. and Rosemarie Barry; and King Cayce and Patricia S. Cayce V. Dep; DOAH Case No. 97-2839RU; ALJ Michael M. Parrish (Final Order August 1, 1997).

Citizens challenged the Department's proposed rule to reestablish the coastal construction control line (CCCL) for Palm Beach County (the County) in a generally landward direction. In their petition, Citizens alleged that the Department had used three computer models to create the proposed CCCL for Palm Beach County, and that such models were unadopted agency statements of general applicability that violated Sections 120.54(1)(a) and 120.56(4)(c) of the Florida Statutes (Supp. 1996). The only harm alleged by Citizens was that their land would be subject to "increased regulation" from the Department once the proposed CCCL became effective. In their prayer for relief, Citizens requested the court to declare all three computer models invalid as unadopted rules and to prevent the Department from adopting the proposed CCCL for the County. In response, the Department filed a motion to dismiss Citizens' petition on two grounds -- lack of ripeness and lack of standing.

By order dated July 8, 1997, the court granted the Department's motion to dismiss on both grounds and granted Citizens ten days leave to file an amended petition. The court never used the term "lack of ripeness" in its order. However, the court stated that Section 161.053(2)(a) of the Florida Statutes prohibited any challenges to a proposed CCCL until the CCCL became effective, to facilitate the reestablishment of a CCCL designed to protect people and property. The court noted that as a tradeoff for the Department's initial insulation from a challenge to a proposed CCCL, the Legislature provided in Section 161.053(2)(a) two separate ways to challenge an adopted CCCL. A person can either challenge an adopted CCCL under Section 120.56(4) or request the Department to review the CCCL to determine whether the line is unduly restrictive or prevents a legitimate use of the owner's land, and the Department's determination is subject to judicial review under Chapter 120. The court noted that Section 161.053(2)(a) did not specifically mention Section 120.56(4) challenges. However, the court recognized that Citizens' ultimate goal was to prevent the Department from adopting the proposed CCCL, and held that Citizens' challenge to the computer models was "the functional equivalent of a proposed rule challenge under Section 120.56(2)...."

The court also held that Citizens lacked standing because Citizens failed to allege any injury from the Department's use of the computer models. The court noted that the only potential injury that Citizens might suffer would stem from the adoption of the CCCL in the future, and that such possible future injury was too "speculative and conjectural."

On August 1, 1997, the court entered a final order of dismissal because Citizens failed to file an amended petition.

Note: Section 161.053(1)(a) requires the Department to establish CCCLs taking into account the effects of a 100 year storm (among other things). Section 161.053(3) requires as a "critical priority" that by December 31, 1997, the Department reestablish CCCLs that had not been updated since June 30, 1980. The old CCCL for the County was established in 1979 and did not take into account the effects of a 100 year storm. Thus, the reestablishment of the County CCCL was a "critical priority" that for safety reasons could not be delayed by a challenge to the proposed rule.

B. Permitting Cases

Environmental association's petition could not be dismissed for lack of standing as an association based solely on its articles of incorporation. T.R.E.E.S. of St. Augustine, Inc. v. David B. Fleeman & Dep; DOAH Case No. 97-0715, ALJ Donald R. Alexander (DEP Order of Remand July 8, 1997)

T.R.E.E.S. of St. Augustine, Inc. (TREES), a nonprofit corporation, timely filed a petition challenging the Department's decision to issue David B. Fleeman a coastal construction control line (CCCL) permit to build six dune "walkovers" with gazebos seaward of the CCCL in an unincorporated portion of St. Johns County. Fleeman filed a motion to dismiss the amended petition for lack of standing as an association and attached a copy of TREES' articles of incorporation. TREES' articles of incorporation had not been attached to its amended petition. TREES' articles of incorporation state that the specific purpose for which it was organized was to protect and plant trees and educate people about trees. Fleeman argued that the relief requested by TREES in the proceeding was ultra vires and exceeded the scope of TREES' stated general and specific purposes of its articles of incorporation, because there were no trees in the project area. In its amended petition, TREES alleged that it had evolved as an organization from its originally stated purpose and had branched out into other environmental areas. Without an evidentiary hearing, the DOAH ALJ entered a recommended order of dismissal based solely on the articles of incorporation.

The Department entered an order of remand that rejected the recommended order of dismissal and remanded the case to DOAH for a final hearing. The Department reasoned that it is improper for a court or administrative agency to consider evidentiary matters beyond the four corners of the challenged pleading in ruling on a motion to dismiss a complaint or petition. The Department found that TREES' articles of incorporation did not constitute competent substantial evidence. The Department also noted that the issue of whether a nonprofit corporation had standing to sue under the Federal Administrative Procedure Act, because of limitations in its articles of incorporation, had been addressed in Save Our Wetlands, Inc. v. Sands, 711 F.2d 634 (5th Cir. 1983). In Save Our Wetlands, the trial court had found that the organization did have standing to sue under the Federal APA based on the testimony of the organization's president and a resolution passed by the organization's board, despite the more limited purposes set forth in the organization's articles of incorporation.