vs. ) CASE NO. 78-2079RP
ST. JOHNS RIVER WATER )
Respondent. )
On December 4, 1978, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing took place in the Chamber of Commerce Building, 1005 East Strawbridge Avenue, Melbourne, Florida.
For Petitioner: Alan J. Miller, Esquire
For Respondent: H. M. Webb, Esquire
Whether or not the action taken by the Respondent, St. Johns River Water Management District, in the person of its Governing Board at a meeting held on March 15, 1978, and by an amendment to the action which took place on November 15, 1978, constituted the adoption of a rule, which is invalid for failure to meet the requirements of Section 120.54, Florida Statutes. (The motion and amendment stated the following:
"That the St. Johns River Water Management District close District-owned fee simple land in the St.
Johns Marsh to half-track or full-track vehicles which have as an integral part tires and/or rubber tracks for propulsion hut excluding
four-wheel and conventional to-wheel-drive vehicles, and direct staff to return to the Board within 90 days with an Impact of vehicu- lar use on Marsh ecosystems and the management policy with regard to these track vehicles, and
"1. A motion to ban all vehicles excepting boats from the District marsh held in fee simple."
THIS CAUSE comes on for consideration based upon the Petition for Administrative Determination filed by the Petitioner, Lacy Everett, and received by the State of Florida, Department of Administration, Division of Administrative Hearings, on November 9, 1978. This Petition was filed pursuant to provisions of Section 120.54(4), Florida Statutes. Subsequent to the receipt of the Petition, the Director of the Division of Administrative Hearings reviewed the Petition and made an order of assignment of the case to Charles C. Adams, Hearing Officer with the Division of Administrative Hearings. The date of the Order of Assignment was November 13, 1978.
By that Order, the Director of the Division of Administrative Hearings required that a final hearing be held within thirty (30) days of the date of the Order. The hearing was conducted on December 4, 1978.
The Petitioner, Lacy Everett, is a resident of Delray Beach, Florida. Beginning in 1957 and continuing through 1978, the Petitioner has hunted or desired to hunt in the area known as the St. Johns Marsh. This marshland Is under the ownership and control of the Respondent, St. Johns River Water Management District. During the pendency of the time that the petitioner has hunted in the subject area he has used half-track, four-wheel-drive and conventional two-wheel-drive vehicles. For the last nine years the type vehicle he has used has been a half-track vehicle. The petitioner has elected this method of transportation because in his judgment it is the only vehicle which would allow him access to the St. Johns Marsh.
The Petitioner has hunted in the St. Johns Marsh area on every weekend over a two-month period in each year during the time frame which began in 1957 up to 1578, in which year he was prohibited from using the half-track vehicle. He wishes to hunt in the St. Johns Marsh area in succeeding years and to use the half-track vehicle.
The Respondent, St. Johns River Water Management District, is an agency created pursuant to Chapter 373, Florida Statutes, which statute deals with the water resources of the State of Florida. Chapter 373, Florida Statutes, Part I, is entitled "State Water Resources Plan." The overall policy statement of that plan may be found in Section 373.016, Florida Statutes, which reads as follows:
"373.016 Declaration of policy.--
The waters in the state are among its basic resources. Such waters have not hereto- fore been conserved or fully controlled so as to realize their full beneficial use.
It is further declared to he the policy of the Legislature:
To provide for the management of water and related land resources;
To promote the conservation, development, and proper utilization of surface and ground water;
To develop and regulate dams, impoundments, reservoirs, and other works and to provide water storage for beneficial purposes;
To prevent damage from floods, soil erosion, and excessive drainage;
To preserve natural resources, fish and wildlife;
To promote recreational development, pro- tect public lands, and assist in maintaining the navigability of rivers and harbors; and
Otherwise to promote the health, safety, and general welfare of the people of this state.
The Legislature recognizes that the water resource problems of the state vary from region to region, both in magnitude and complexity. It is therefore the intent of the Legislature to vest in the Department of Environmental Regulation or its successor agency the power and responsibility to accomplish the conservation, protection, management, and control of the waters of the state and with sufficient flexibility and discretion to accomplish these ends through delegation of appropriate powers to the various water management districts. The department may exercise any power heroin authorized to be exercised by a water management district; however, to the greatest extent practicable, such power should be delegated to the governing board
of a water management district."
To implement those policies, certain water management districts were created pursuant to Section 373.069, Florida Statutes. Respondent, St. Johns River water Management District, was one of the agencies established to create and exercise the overall policies of the State Water Resources Plan.
Chapter 373, Florida Statutes, Part I, also allowed for agencies, such as the St. Johns River Water Management District, to purchase land as a means to effectuate management policies. This authority is granted in Section 373.086, Florida Statutes.
In keeping with the statutory authority granted through Chapter 373, Florida Statutes, the Respondent, St. Johns River Water Management District, purchased the property known as the St. Johns Marsh and holds fee simple title to that land.
On March 15, 1978, at a meeting of the Governing Board of the St. Johns River Water Management District a motion was made and amended to the effect that:
"The St. Johns River Water Management District close District-owned fee simple land in the St. Johns Marsh to half-track or full-track vehicles having as an integral part tires and/or rubber tracks for propulsion but excluding four-wheel and conventional two-wheel-drive vehicles, and
direct staff to return to the Board within 90 days with an impact of vehicular use on Marsh ecosystems and a management policy with regard to these track vehicles, and that emergency vehicles be excluded from the prohibition proposed."
That motion was seconded and carried unanimously by the directors present at the meeting. The terms and conditions of this motion may be found In the copy of the minutes made of the meeting held on March 15, 1978, which is Petitioner's Exhibit No. 2 admitted into evidence. At the meeting certain members of the public were allowed to speak on the issue of the motion, among these were persons who desired to use track vehicles in the St. Johns Marsh. The minutes do not indicate that the Petitioner was among those persons speaking. However, it was stipulated between the parties that the Petitioner did attend certain public hearings before the St. Johns River Water Management District Governing Board which dealt with the question of utilization of track vehicles in the St. Johns Marsh.
On June 21, 1978, at a meeting of the Governing Board of the St. Johns River Water Management District, the question of the prohibition of certain vehicles in the St. Johns Marsh was raised. In the course of that discussion one of the staff members presented four possible alternatives on the question of the continuation of the prohibition against the utilization of the aforementioned classes of vehicles. Those alternatives were that "(1) no action with no ban; (2) continue ban and extend the study period; (3) discontinue the ban-extend the study period; and (4) continue the ban with no more study." The matter was further considered in the course of the meeting and, under a motion which was carried unanimously, a decision was made to extend the ban for 90 days, meaning that the prohibition against the utilization of the type vehicles mentioned in the March 15, 1978, action would be extended for 90 days. Another element of the motion was that the public be notified that the final decision on the matter would be made by the Governing Board in 90 days and that no public hearing be advertised if it was not necessary. The discussion as reported in the minutes of the Governing Board of the St. Johns River Water Management District may be found in Petitioner's Exhibit No. 3 admitted into evidence.
The Governing Board of the St. Johns River Water Management District met on October 13, 1978, and discussed the matter of a ban on half-track vehicles in the 8t. Johns Marsh. At that time a motion was made to extend the ban on utilization of half-track vehicles in the St. Johns Marsh until the next Board meeting, at which time a public hearing would be held. The expressed rationalization for extending the ban was due to the fact that there was in the mind of the Respondent an immediate danger to the public welfare in the area where the ban was imposed. The motion as stated was carried unanimously.
Again, this discussion may be found in the minutes of the Governing Board of the St. Johns River Water Management District for the date of October 13, 1978.
These minutes are found as Petitioner's Exhibit No. 4 admitted into evidence.
Before the next meeting of the Governing Board of the St. Johns River Water Management District was convened, the Petitioner requested a "draw out" hearing before the St. Johns River Water Management District. This request was made pursuant to Subsection 120.54(16), Florida Statutes. That request may be found as the Respondent's Exhibit No. 2 admitted into evidence. In his prayer for relief the Petitioner states that to proceed under Subsection 120.54(3), Florida Statutes, would not protect his interest and, therefore, it is necessary to proceed under Subsection 120.54(16), Florida Statutes. The request for
hearing also alludes to the fact that the proposed rule had been published in the Florida Administrative weekly on October 20, 1978, and the rule published was the one originally adopted 00 March 15, 1978, as extended by the various meetings of the Governing Board of the St. Johns River Water Management District held in the interim period.
On November 14, 1978, a public hearing was held on the question of the motion which had been passed on March 15, 1978, and is the subject of this hearing. At the November 14, 1978, meeting the existence of the request for hearing under Subsection 120.54(16), Florida Statutes, was brought to the attention of the Governing Board, as well as the Petition which is the subject of this cause filed with the Division of Administrative Hearings. It was also discussed that an injunction suit was to be instituted against the Petitioner, Lacy Everett, on the basis that Mr. Everett intended to use a half-track vehicle to hunt on Use St. Johns Marsh in spite of the prohibition which had been instituted on March 15, 1978. The attorney for Mr. Everett was allowed to speak to the Board in the course of the meeting and expressed his legal theory of the case, as well as relating certain hearsay information pertaining to experiences which had been reported in the Florida Everglades pertaining to the utilization of half-track vehicles. The minutes of the November 14, 1978, meeting may be found as Petitioner's Exhibit No. 5 admitted into evidence.
On November 15, 1978, the Governing Board of the St. Johns River Water Management District again met and considered the question of the use of off-road vehicles in the St, Johns Marsh. According to the minutes of the meeting, the attorney for the Respondent characterized the request for a "draw out" hearing made by the Petitioner as being a request for a Section 120.57, Florida Statutes, hearing if the Respondent adopted the prohibition against the use of off-road vehicles as a rule. The minutes indicate that the attorney for the Respondent then instructed the Governing Board that in view of the absence of Petitioner's attorney at the November 15, 1978, hearing, the Board need not contact the Petitioner further on the question of the prohibition of off-road vehicles in the St. Johns Marsh. Subsequent to that instruction by the attorney for the Respondent, certain motions were made and passed as follows:
"1. A motion to ban all vehicles excepting boats from the District marsh held in fee simple.
This motion is to authorize our attorney to publish and advertise for rule adoption a rule prohibiting all vehicles excepting boats from the District marsh field in fee simple. Emergency vehicle use, District vehicle use and vehicle use necessary for ranch and
farm operations of adjacent property owners shall be excepted from this rule.
This motion will also authorize appropri- ate officers to arrest and prosecute all persons violating the Board's order on vehicle use in the marsh fee simple ownership.
This motion is also to authorize nod ratify conjunctive suits against all persons violating the Board's order on vehicle use in the marsh
fee simple ownership."
In considering the facts and law involved in this dispute, the initial question to be resolved concerns the standing of the Petitioner to challenge the
action prohibiting off-road vehicles which was taken on March 15, 1978, and amended on November 15, 1978. Petitioner has demonstrated his standing by establishing the long term pattern of his usage of the St. Johns Marsh for purposes of hunting and proving his reliance on the restricted classes of vehicles to transport him into the hunting area. Therefore, he is a proper party within the meaning of Subsection 120.52(10)(b), Florida Statutes, which reads:
"Any other person who, as a matter of con- stitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceed- ing, or whose substantial interests will be effected by proposed agency action, and who
makes an appearance as a party." (emphasis added)
Moreover, under the provisions of Subsection 120.54(4)(a), Florida Statutes, the person substantially effected may seek an administrative determination of the invalidity of any proposed rule, using as a grounds the fact that the proposed rule is an invalid exercise of delegated legislative authority. See Sarasota County Anglers Club, Inc. v. Burns, 193 So.2d 691 (1 Fla.App. 1967), Sarasota County Anglers Club, Inc. v. Kirk, 200 So.2d 178 (Fla. 1967) and City of Key West v. Askew, 324 So.2d 655 (1 Fla.App. 1975)
On the merits of the Petition filed with the Division of Administrative Hearings, the Petitioner is correct when he asserts that the procedural provisions of Section 120.54, Florida Statutes, have not been complied with and the Respondent has agreed with this contention by written stipulation. This noncompliance with the provisions of Section 120.54, Florida Statutes, pertains to the procedural requirements for summarization, a statement of authority, a statement of the estimate of the economic impact, notice and publication. The Petitioner is incorrect when he asserts that the Respondent has no legal authority for the promulgation of a rule pertaining to the regulation of the use of vehicles in the St. Johns Marsh which is held in fee simple by the Respondent. Respondent does have authority to regulate and that authority is found in Subsections 373.016 and 373.086, Florida Statutes. These provisions allow for the purchase of the land and for the protection of the environment and efficient use of water resources in the area of their concern. Therefore, the prohibition of vehicular traffic in the St. Johns Marsh is not per se an invalid exercise of legislative authority. Thus, the inquiry becomes one of whether or not the action taken of March 15, 1978, and the amendment to that action which occurred on November 15, 1978, is a rule and subject to the procedural requirements of Section 120.54, Florida Statutes.
In Subsection 120.52(14) a rule is defined as: "(14) 'Rule' means each agency statement of
general applicability that implements, interprets, or prescribes law or policy or describes the organi- zation, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an exist-
ing rule. The term also includes the amendment or repeal of a rule. The term does not include:
Internal management memoranda which
do not affect either the private interests of any
person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum.
Legal memoranda or opinions issued to
an agency by the Attorney General or agency legal opinions prior to their use in connection with an agency action.
The preparation or modification of:
Agency budgets.
Contractual provisions reached as a result of collective bargaining.
Agricultural marketing orders under chapter 573 or chapter 601.
Curricula by an educational unit."
The action taken by motion on March 15, 1978, and the November 15, 1978, amendment found in Motion No. 1 on that day's agenda should be analyzed in view of the definition of a rule stated in Subsection 120.52(14), Florida Statutes. When this is done, the inescapable conclusion that must be reached is that the original action of March 15, 1978, and the amendment of November 15, 1978, in which additional categories of vehicles were banned, were agency statements of general applicability that implemented and interpreted or described law or policy of that agency. Those actions of the two dates mentioned have broad application and have present and prospective effect. They, therefore, are not properly characterized as a rule which the agency Intends to adopt. They constitute a rule which exists and the passage and implementation of this rule is an invalid exercise of delegated legislative authority within the meaning of Section 120.56, Florida Statutes, because the rule was not passed in accordance with the procedures required by Section 120.54, Florida Statutes. (Although the Petitioner has not plead his case under the provisions of Section 120.56, Florida Statutes, the issues are duly joined and there is no prejudice to the parties in considering the case as a Section 120.56, Florida Statutes, dispute. The standing which the Petitioner had to assert his claim under Section 120.54, Florida Statutes, would exist in a Section 120.56, Florida Statutes, hearing because he is substantially affected by the stated rule for the same reasons as set forth in the discussion of his Petition under Section 120.54, Florida Statutes.)
The Respondent has tried to argue that the action it has taken on March 15, 1978, and extended up to and including the amendment of November 15, 1978, found in agenda motion No. 1 is an order of the agency not subject to attack under the provisions of Section 120.54, Florida Statutes. It urges that the actions taken under various hearings before the Governing Board of the St. Johns River Water Management District were preliminary to the passage of a proposed rule and that the authorization for the publication and advertisement of the rule did not take place until November 15, 1978, as Motion No. 2 on the agenda which has been spoken of. Had the Respondent requested studies by its staff on the feasibility of prohibiting certain classes of vehicles from being allowed to operate in the St. Johns Marsh as opposed to an absolute prohibition of certain classes of vehicles, then the Respondent's argument would be persuasive. In fact, the Respondent has implemented policy which prohibits specific members of the general public from utilizing the disputed area and has done so without affording an opportunity to those individual citizens to be heard on the question of the passage of such a rule and without following the mandated requirements found in Section 120.54, Florida Statutes.
Respondent also argues that a "draw out" hearing was given in accordance with the requirements of Subsection 120.54(16), Florida Statutes, arid Section 120.57, Florida Statutes. Therefore, any challenge to the action taken in that proceeding before the Respondent may not be made by a collateral attack under the provisions of Section 120.54, Florida Statutes, that alleges that the action is a rule.
This Order does not undertake to consider the propriety of the action taken in the Section 120.57, Florida Statutes, hearing held before the Governing Board of the St. Johns River Water Management District. That action is viewed as an effort on the part of the Petitioner to protect himself against the short- term implications of the prohibition against the utilization of his half-track vehicle in the St. Johns Marsh, That in no way prohibits the Petitioner from filing an Independent attack against the rule itself under the provisions of either Section 120.54, Florida Statutes, or Section 120.56, Florida Statutes. Once the Respondent has entered its order in the Section 120.57, Florida Statutes, hearing, which was the "draw out" hearing requested under Section 120.54(16), Florida Statutes, the Petitioner may appeal or not at his discretion. The underlying rule of March 15, 1978, as amended November 15, 1978, because of its prospective application is a proper subject of a rule challenge on the ground that its passage did not comply with the procedural requirements of Section 120.54, Florida Statutes. The Division of Administrative Hearings has exclusive jurisdiction over rule challenges filed pursuant to Section 120.54, Florida Statutes, and/or Section 120.56, Florida Statutes, and this remedy does not constitute a collateral scrutiny of agency action by a Hearing Officer within the meaning of the case of State Dept. of Health, Etc. v. Barr, 359 So.2d 503 (1 Fla.App. 1978).
In the Barr case the Court indicated that the Respondents in the appeal could not on the one hand request a declaratory statement from an agency which was subject to appeal, and then make a collateral attack on that declaratory statement on the basis that the declaratory statement was an improperly promulgated rule. The Barr case facts may be distinguished from the facts sub judice, in that this Petitioner sought to protect himself via the Section 120.57, Florida Statutes, hearing, against the short-term acts of the Respondent which were prohibiting the utilization of the vehicles at the moment, and concurrently challenged the underlying basis of the actions which the agency was taking by filing his rules case under the provisions of Section 120.54, Florida Statutes. By pursuing these remedies, the Petitioner is not subjecting the Respondent to harassment through duplicitous litigation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this cause.
Based upon a full consideration of the facts herein, it is concluded as a matter of law that the motion made on March 15, 1978, which prohibited utilization of half-track or full-track vehicles having as an integral part tires and/or rubber tracks for propulsion from being used in the St. Johns Marsh, and as amended and reinstated on November 15, 1978, to prohibit all classes of vehicles, excepting boats, from being used in the St. Johns Marsh, is a rule within the meaning of the Administrative Procedures Act. As such, said rule is invalid in its entirety because of the Respondent's failure to comply with the procedural provisions of Section 120.54, Florida Statutes.
DONE and ORDERED this 3rd day of January, 1979, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Alan J. Miller, Esquire Post Office Box 1151
H. M. Webb, Esquire
Frederick O. Rouse, Executive Director
St. Johns River Water Management District Route 2, Box 695
Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32304
Ms. Liz Cloud Department of State Room 1802, The Capitol
