Exhibit "A"

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EGAN RANCH, LLC,

vs.

Petitioner,

Case No. 21-0437

BABCOCK, LLC AND ST JOHNS RIVER WATER MANAGEMENT DISTRICT,

Respondents.

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RECOMMENDED ORDER OF DISMISSAL

This cause came before the undersigned on Respondent, South Florida Water Management District's (District), Motion to Dismiss and, in the Alternative, Motion to Strike Immaterial Allegations (Motion) filed on February 17, 2021; and Petitioner, Egan Ranch, LLC's (Egan Ranch), response filed on February 24, 2021. Respondent, Babcock, LLC (Babcock) filed a joinder in the District's Motion on March 8, 2021. The District's Motion is directed to the Amended Petition for Administrative Hearing filed on February 9, 2021 (Amended Petition). The Amended Petition challenges the District's proposed approval modifying Babcock's existing environmental resource permit (Prior ERP Permit) for sand and coquina excavation activities. The proposed modification (ERP Permit Modification) increases the depth of excavation activities to 75 feet below the land service. Upon review of the pleadings and applicable case law, the undersigned grants the District's Motion and dismisses the Amended Petition for the reasons explained below.

Legal Standards

In reviewing the motion to dismiss, the undersigned must assume the allegations in the Amended Petition are true and apply every reasonable inference in the Petitioner's favor. See Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216, 1222

(Fla. 2010); Dep't of HRS v. S.A.P., 835 So. 2d 1091, 1094 (Fla. 2002). In addition, the undersigned's review is confined to the allegations within the "four corners" of the Amended Petition and its attachments. See Santiago v. Mauna Loa Invs., LLC, 189 So. 3d 752, 756 (Fla. 2016). The undersigned cannot consider any factual matters outside the Amended Petition and its attachments. See St. Francis Parkside Lodge of Tampa Bay v. Dep't of HRS 486 So. 2d 32, 34 (Fla. 1st DCA 1986).

Standing

The Amended Petition contains allegations regarding Egan Ranch's "substantial interests." In this type of environmental permitting proceeding, Egan Ranch must demonstrate that its substantial environmental interests will be affected. In order to maintain standing under section 120.57(1), Florida Statutes, a petitioner must demonstrate that it will suffer an injury-in-fact which is of sufficient immediacy to entitle it to a hearing, and that the injury is within the zone of interest which the proceeding is designed to protect. See Agrico Chem. Co. v. Dep't of Envtl. Reg., 406 So. 2d 478 (Fla. 2d DCA 1981). The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury. As more fully explained below, Egan Ranch's substantial interest allegations citing operations under a prior permit, violations of restrictions in a drainage easement agreement, taking of private property rights, and unlawful trespass, are not legally cognizable in this type of administrative proceeding. As such, Egan Ranch did not allege sufficient facts to demonstrate its substantial environmental interests could reasonably be expected to be affected by the agency's action. See, e.g., St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist., 54 So. 3d 1051, 1054 (Fla. 5th DCA 2011).

Legal Sufficiency

The Amended Petition contains allegations that are not legally cognizable in this type of environmental administrative proceeding. Although Egan Ranch alleges adverse flooding to its property under the District's permitting criteria, the

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underlying facts all relate to supposed restrictions in a drainage easement agreement, taking of private property rights, and unlawful trespass. These allegations cannot be adjudicated in this administrative proceeding. See, e.g., Ortega v. State, Dep't of Envtl. Prot., 646 So. 2d 797 (Fla. 1st DCA 1994)(reflecting that administrative agency did not have jurisdiction over takings claim); Buckley v. Dep't of HRS 516 So. 2d 1008 (Fla. 1st DCA 1987); Miller v. State, Dep't of Envtl.

Reg., 504 So. 2d 1325 (Fla. 1st DCA 1987)("agencies would not, by their nature, ordinarily have jurisdiction to decide issues of law inherent in evaluation of private property impacts."); see also Art. V, § 20(c)(3), Fla. Const. ("Circuit courts shall have jurisdiction of . . . all actions involving the . . . right of possession of real property.").

In addition, Egan Ranch's allegations regarding the restrictions in a drainage easement agreement between Egan Ranch and Babcock's predecessor in interest is a contract interpretation issue vested solely in the judiciary. See Sandlake Residences, LLC v. Ogilvie, 951 So. 2d 117, 119 (Fla. 5th DCA 2007); Eden Isles Condo. Ass'n v. Dep't of Bus. & Prof'l Reg., 1 So. 3d 291, 293 (Fla. 3rd DCA 2009)(reflecting that jurisdiction to interpret contracts is vested solely in the judiciary).

Administrative Finality

Egan Ranch's allegations that could have been addressed in a challenge to the Prior ERP Permit are not cognizable in this proceeding challenging the ERP Permit Modification. See Friends of the Everglades, Inc. v. State, Dep't of Envtl. Reg., 496 So. 2d 181 (Fla. 1st DCA 1986)(reflecting that the permitting requirement for a modification does not cast upon the applicant the burden of providing "reasonable assurances" anew with respect to the original project already constructed in accordance with a valid permit); Conservancy of Southwest Fla. v. G.L. Homes of Naples Assoc. II, Ltd., Case No. 06-4922, RO ¶ 109 (Fla. DOAH May 15, 2007; Fla. SFWMD July 11, 2007). In addition, compliance or noncompliance with another agency's permitting program should not be litigated in this administrative

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permitting proceeding. See Save the St. Johns River v. St. Johns River Water Mgmt. Dist., 623 So. 2d 1193, 1198 (Fla. 1st DCA 1993).

Having reviewed the pleadings and case law and being otherwise duly advised, it is, therefore,

RECOMMENDED that the District enter a final order dismissing the Amended Petition.

DONE AND ORDERED this 23rd day of March, 2021, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

W. Nathan Meloon, Esquire Widerman Malek, PL

S

FRANCINE M. FFOLKES

Administrative Law Judge 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

www.doah.state.fl.us

Elizabeth S. Schoonover, Esquire St. Johns River Water

1990 West New Haven Avenue, Suite 201 Melbourne, Florida 32904

Robert Vincent Schwerer, Esquire Hayskar Walker Schwerer Dundas & McCain, P.A.

130 South Indian River Drive, Suite 304 Fort Pierce, Florida 34950

Ann B. Shortelle, Ph.D., Executive Director St. Johns River Water

Management District 4049 Reid Street

Palatka, Florida 32177

Management District 4049 Reid Street

Palatka, Florida 32177

Joel Thomas Benn, Esquire St. Johns River Water Management District

4049 Reid Street

Palatka, Florida 32177

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NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

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Exhibit "B"

Docket for Case No: 21-000437

Orders for Case No: 21-000437