STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA AUDUBON SOCIETY, )

)

Petitioner, )

)

vs. ) CASE NOs. 77-1202RP

) 77-1402RP

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

APPEARANCES

For Petitioner: David Gluckman, Esquire For Respondent: Kent Zaiser

FINAL ORDER

1. By separate petitions the Florida Audubon Society challenges certain procedures and proposed rules of the Department of Natural Resources dealing with the granting of easements over state owned lands. Because of the similar issues of law and fact involved between the same parties, the separate petitions were consolidated and heard before the undersigned on September 2, 1977. By stipulation the parties agreed to extend the time available for the submission of memoranda.

   
   

2. The first petition alleged that the department had a practice of granting easements across public lands and that this amounted to the existence of a policy of the department which fell under the definition of a rule in Section 120.54(14), Florida Statutes. There is no dispute that the department has not presently adopted administrative rules dealing with easements across state lands and that if the department has such a "policy" which does fit the definition of a rule, the rule must be invalid for failure to comply with the formal requirements of Section 120.54, F.S. Straugh v. O'Rirodan, 338 So.2d 332 (Fla.1976). Dept. of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977).

   
   

3. In the second petition the Florida Audubon Society challenges the validity of rules proposed by the Department of Natural Resources which will be located in Chapter 16C, Florida Administrative Code.

   
   

4. The department objects to the standing of the Petitioner to maintain these proceedings. The Petitioner, Florida Audubon Society, is a nonprofit corporation composed of 35,000 members which among other things owns and leases lands many of which tracts are located adjacent to publicly owned lands administered by the Board of Trustees of the Internal Improvement Trust Fund.

   
   

5. Section 120.54(4) and 120.56, F.S., require that persons who seek an administrative determination of the validity of administrative rules must be

   "substantially affected" by the rules. Here, the department's practice of granting easements across public lands can be seen to affect the interests of the Petitioner. Adequate testimony was presented that the bird sanctuaries and other parcels of lands controlled by the Petitioner can be affected by the granting of various easements to private interest. Further, it is the opinion of the undersigned that the standing requirements to entitle a person to receive an administrative determination of the validity of administrative rules pursuant to Chapter 120, F.S., are less stringent than those which would be applied had this been a action in a court of this state. It is therefore determined that the Petitioner does have adequate standing to maintain this proceeding as a party. See City of Key West v. Askew, 324 So.2d 655 (Fla. 1st DCA 1975).

   
   

6. The Petitioner challenges the department's position that it is entitled to issue easements across state lands by alleging such a practice to be an invalid rule. "Rule" is defined in Section 120.52(14), F.S., as:

   
   

   "'Rule' means each agency statement of general applicability that implements, interprets or

   prescribes law or policy or describes the organization, procedure, or practice requirements of and agency. . ."

   
   

7. To be a rule the acts of the department must somewhere encompass the concept of a "statement". From the petition filed in this proceeding, the Florida Audubon Society has not articulated or alleged that the department has made any statement which would qualify for the definition of a rule. The undersigned Hearing Officer has the impression that the Petitioner takes the position that by the very nature of granting easements the department has issued a statement to the effect that it interprets the applicable statutes to give it this authority. The Petitioner challenges the authority of the department to issue such easements without specific statutory authority. It is the finding of this Hearing Officer that if the department has issued such a statement of policy or operates under such a policy the Petitioner has not clearly established that such exists.

   
   

8. It is a difficult endeavor to precisely define the boundaries of the definition of a rule as it appears in Chapter 120, F.S., and to separate and precisely define when an agency action results in the adoption of an order or a rule. It suffices to say without further deliberation that the naked issuance of easements by the department does not necessarily amount to the use or adoption of a rule. Every order an agency enters carries with it the implicit statement that the agency has the authority to do so. By using the Petitioner's reasoning one could transform every agency order into a statement which fits the definition of a rule. That is clearly not the intention of Chapter 120, F.S.

   
   

9. In McDonald v. Dept. of Banking and Finance, 346 So.2d, 559 (Fla. 1st DCA 1977) the court recognized the impossibility of an agency adopting all aspects of its "incipient" policy as rules and recognized the option of developing policy thought the adoption of orders:

   
   

   "There are quantitative limits to the detail of policy that can effectively be promulgated as rules, or assimilated; and even the agency that knows its rules may wisely sharpen its purposes through adjudication before casting rules."

10. That is what the Department of Natural Resources has done in this instance. Where it has granted easements across public lands without rules, it now has proposed rules pursuant to Section 120.54, F.S., to cover this practice. These rules have been designated in Chapter 16C, Florida Administrative Code.

    
    

11. In the second petition filed in this consolidated proceeding the Petitioner challenges the validity of these proposed rules.

    
    

12. The rules in question establish procedures for the application for and granting of easements.

13. Rules 16C-09,05, 16C-09.06, 16C-12.09, and 16C-12.10 deal with the

application for easements across public lands and state the general requirements for the application for such privileges. The requirements deal with procedural matters such as the name and address of the applicant, a statement of the proposed use, the finishing of surveys of the land and evidence of title.

1. The Petitioner challenges the rules for several reasons. First, is that the rules go beyond the Department of Natural Resources' authority in that it is alleged the department has no power to grant easements across state lands. Further, since the rules do not require a finding that easements can only be given when it is in the public interest, the Petitioner maintains they are fatally defective.

   
   

2. Florida Statutes regarding the granting of easements across public lands are ambiguous. Section 370.03(1), F.S., appears to forbid the sale or disposition of water bottoms by the Board of Trustees of the Internal Improvement Trust Fund or other political entities. However, Section 253.12 permits the Department of Natural Resources to sell and convey submerged lands when it would be in the public interest upon such terms and conditions as it sees fit. Further, Section 253.03(7), F.S. gives the Department of Natural Resources the general responsibility for administering all state owned lands. In addition, Section 253.77(1), F.S., requires that before a party be given permission to use sovereignty lands of the state, it receive from the Board of trustees of the Internal Improvement Trust Fund an appropriate lease, license, easement or other form of consent. . . (Emphasis added).

   
   

3. The Petitioner is correct when it advances the position that there is no specific statutory authority granting the Board of Trustees of the Internal Improvement Trust Fund (DNR) the power to grant easements. However, it is uncontroverted that the state may sell sovereignty funds under certain conditions.

   
   

4. Sovereignty lands of the state are those which the state acquired by virtue of achieving statehood. These lands which are those covered by navigable waters, were held by the United States, in trust for the future states. Upon achieving statehood, Florida became vested with such sovereignty lands and has the responsibility to hold these lands in a public trust for the benefit of all the people. Broward v. Mabry, 50 So.2d 826 (Fla. 1909). Fla. National Properties v. TIITF, 338 So.2d 13 (Fla. 1976).

   
   

5. When the state sells or grants limited interests over sovereignty lands it has long been recognized that it may only do so when it is in the public interest. Hayes v. Bowman, 91 So.2d 795 (Fla. 1957). Yonge v. Askew, 293 So.2d 395 (Fla. 1st DCA 1974). Illinois Central R.R. v. Illinois, 146 U.S. 387 (1892).

6. An easement over lands can be described as a grant of limited use of the land. It is difficult to conclude that where the Trustees of the Internal Improvement Trust Fund have the power to grant fee simple deeds to sovereignty lands that they cannot also grant limited interests in those same lands. This is particularly true when one considers that Chapter 253, F.S., gives the Trustees the broad responsibility of holding and managing state lands as they see fit. The decisions of Florida courts have deferred tot he discretion of the Trustees. Hayes v. Bowman, supra.

   
   

7. It is therefore concluded that the Trustees of the Internal Improvement Trust Fund do have the authority to grant easements to sovereignty lands and that the proposed rules do not go beyond their power and authority.

   
   

8. The final argument raised by the Petitioner in its challenge to the proposed rules is that since the rules fail to require that easements be granted only when they are found to be in the public interest, the rules are therefore invalid. Assuming that the Trustees are so restricted in their ability to grant easements, a reading of the rule makes it apparent that they are not intended to act in an excluding manner. That is to say, the rules in question inform the public how they may apply for such easements and state the general requirements for what information the Trustees require to consider such applications complete. But the rules are not intended to be, nor is there a reason that they should be, and exclusive statement of all the law applicable to easements over public lands. There is no requirement that an administrative rule codify every aspect of an agency's responsibility in order to be valid.

   
   

9. By merely leaving out whatever requirement the law may impose upon the Trustees when considering applications for an easement in no way jeopardizes the validity of the proposed rule. If, when considering particular applications for easements, the Trustees overlook a legal requirement, such may invalidate that particular action. But in no way can it act to invalidate a rule the only purpose of which is to inform the public of what information they must submit to the agency when they wish to apply for an easement over state lands.

It is, therefore ORDERED:

That the petitions of the Florida Audubon Society are denied.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of October, 1977.

KENNETH G. OERTEL, Director

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

David Gluckman, Esq 3348 Mahan Drive

Tallahassee, Florida 32302

Kent A. Zaiser, Esq.

Department of Natural Resources Crown Building, 202 Blount Street Tallahassee, Florida 32304 Attorney for Respondent

Carroll Webb, Executive Director Administrative Procedure Committee Room 120, Holland Building Tallahassee, Florida 32304

Ms. Liz Cloud Department of State

403 East Gaines Street Tallahassee, Florida 32302

Docket for Case No: 77-001202RP

Orders for Case No: 77-001202RP