[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 08-14846 ELEVENTH CIRCUIT APRIL 21, 2009 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 08-00364-CV-FTM-29-SPC JENNIFER FRANKLIN PRESCOTT, JORG BUSSE, Plaintiffs-Appellants- Cross-Appellees, versus STATE OF FLORIDA, BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF RECREATION AND PARKS, HAROLD ..

The issues for determination are whether either of the properly proposed corridors (the FPL Corridor or the Alternate Corridor) for the Collier-Orange River #3 230-kV transmission line (the COR #3 Line) comply with the criteria in Section 403.529(4)(a)-(e), Florida Statutes (2003); and, if so, which of the corridors have the least adverse impacts with respect to the criteria in Section 403.529(4)(a)-(e), Florida Statutes, including cost. (All citations are to the 2002 version of the Florida Statutes unless otherwise indicated.) If the Florida Power & Light Company (FPL) Preferred Corridor (FPL Corridor) is determined to have the least adverse impacts, or if the two corridors are determined to be substantially equal in adverse impacts, the Siting Board must determine whether the FPL application for corridor certification should be approved in whole, with modifications or conditions, or denied. § 403.529(4) & (5)(c), Fla. Stat. If it is determined that the Alternate Corridor proposed by Collier Enterprises, Ltd. (CE) and Barron Collier Companies (BCC) has the least adverse impacts, including costs, since this corridor was rejected by FPL for consideration pursuant to Section 403.5271(1)(b), Florida Statutes, certification shall be denied or FPL shall be allowed to submit an amended application to include such corridor. § 403.529(5)(b), Fla. Stat.Florida Power & Light proved by a preponderance of the evidence that its proposed corridor complied with criteria under Section 403.529(4)(a)-(e) and should be certified rather than an alternate corridor proposed by Collier Enterprises and Barron Collier.