STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRIENDS OF THE ST. JOHNS, INC., ) and CHESTER BROWN, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1073

)

ST. JOHNS RIVER WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a hearing in this cause on October 18, 1982, in Palatka, Florida.

APPEARANCES

For Petitioners: Irby G. Pugh, Esquire

218 Annie Street Orlando, Florida 32806

For Respondent: E. Lee Worsham, Esquire

St. Johns River Water Management District

Post Office Box 1429 Palatka, Florida 32077

On April 29, 1982, the St. Johns River Water Management District ("Respondent") forwarded to the Division of Administrative Hearings a petition filed by Friends of the St. Johns, Inc., and Chester Brown ("Petitioners") opposing the action taken by the governing board of Respondent in voting to extend a cattle-grazing lease on District owned property. Thereafter, Respondent moved to dismiss the petition for lack of standing. At final hearing, argument was heard on the Motion to Dismiss. The parties stipulated, and the Hearing Officer ruled, to proceed with testimony and to allow Petitioners, within five days of conclusion of the hearing, to amend their petition to sufficiently allege standing. Respondent reserved the right to renew its Motion to Dismiss upon submission of proposed findings of fact and conclusions of law.

Pursuant to the Hearing Officer's order, Petitioners timely submitted an amended petition alleging that Respondent's action in leasing the property which is the subject matter of this proceeding for cattle-grazing activities is contrary to the intent of Section 373.59, Florida Statutes, and that that action is also violative of Section 403.021(2), Florida Statutes, governing the protection of water quality in waters of the state. Subsequently, Respondent

renewed its Motion to Dismiss, which will be ruled upon in the course of this Recommended Order.

At the final hearing in this cause, Petitioners called J. T. Turnipseed, Chester Brown, Alexander Dickison, Dennis Auth, Jerry Brooks, and Garry McLaughlin as their witnesses. Respondent called Carol Fall as its witness. The parties stipulated to the introduction of Hearing Officer's Exhibits 1 through 28, each of which was received into evidence.

Counsel for both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings are not included in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. Respondent is a water management district established pursuant to Chapter 373, Florida Statutes. Respondent purchased certain properties located in the St. Johns River Basin between State Road 46 and State Road 50 known as "Seminole Ranch" ("the property") in 1981, in part with moneys provided by the Water Management Lands Trust Fund pursuant to Section 373.59, Florida Statutes. The property is composed of approximately 28,000 acres abutting the St. Johns River.

   
   

2. Petitioner, Friends of the St. Johns, Inc., is an incorporated organization dedicated to the restoration and preservation of the ecology of the St. Johns River system. Membership in the organization numbers between three and four thousand, including group members, over half of whom use the river for recreational and other purposes. Many of the members of the group also own property fronting on the St. Johns River. Petitioner, Chester Brown, is a member of Friends of the St. Johns, Inc., and is also a landowner whose property is located north of Seminole Ranch bordering on the river. The St. Johns River in that location runs from south to north.

   
   

3. Contrary to its own staff's recommendation, the Respondent's governing board on March 10, 1982, voted to approve the execution of a cattle-grazing lease, leasing the property to C. W. Mann Bailey. The lease was executed on May 12, 1982, for a term of one year, commencing August 30, 1982, and expiring August 29, 1983.

   
   

4. The Upper St. Johns River Basin, in which the property is located, is a highly stressed marsh system that has historically sustained environmental degradation due to floodplain encroachment and agricultural impacts. From approximately 1938 until the time of the district's purchase of the property in 1981, the property had been used continuously for the grazing of cattle. At the time the property was purchased by the district, approximately 2,500 head of cattle were being grazed on the land. In addition, controlled burning to encourage the growth of forage material was utilized as a land management tool in both the upland and marshy portions of the property. The hydrology of the Upper St. Johns River Basin renders it susceptible to numerous unquantifiable sources of pollution. The predominant portion of the nutrient loading to the river system in the area of the property" occurs upstream of the property. Significant nutrient impacts are also attributable to the convergence of the Econlockhatchee River with the St. Johns River system downstream of the property. Recent water quality analyses conducted during high flow conditions

   reveal no increase in the concentration of nutrients in the area of the property between State Road 46, located to the south, and State Road 50 to the north.

   
   

5. The lease in dispute in this proceeding contains certain mitigating covenants which require the lessee, at his expense, to: restrict the number of cattle on the property to a 1,500-head daily average in order to better protect the ecosystem on the property; construct and maintain an access around the property perimeter for use as a fire break; repair and maintain all existing roadways on the property; abstain from timber removal except with district consent; maintain the premises in good repair; assist in protecting historic and archaeological sites on the property; guard against and report all fires and limit all controlled burns to the uplands, and then only with permission of the Florida Division of Forestry; protect threatened biota and species as designated by statute; report all violations of game laws to proper authorities; protect the property against trespassers and vandalism; and provide a resident manager to ensure compliance with these contractual covenants. In addition, the lessee is required under the terms of the lease to pay an annual rental to the district of $50,000. These mitigating covenants are particularly important in light of the short span of time in which the property was offered for purchase to the district and the decision to purchase, all of which occurred at a time when the district had little or no budgeted capacity to adequately manage the land.

   
   

6. The disputed lease represents but one component of an interim land management plan, the benefits, including income to compensate for management expenses, surveillance, and maintenance, provide the district with a Provisional management option until a comprehensive, fiscally feasible, land management plan is developed and implemented. The district has, apparently, determined that upon expiration of the current lease, the property will not again be leased for cattle grazing.

   
   

7. The record in this proceeding clearly establishes that long-term use of property abutting the St. Johns River for cattle grazing has had adverse water quality impacts on the receiving waters. This fact is due both to deposition of fecal material into the water column, both directly and through runoff, and by cattle cropping marsh vegetation thereby adversely affecting both primary productivity and repropogation of plant species. However, the record also establishes that most damage attributable to cattle raising is not irreversible, and that, once cattle are removed the marsh will recover. In addition, the record in this cause is completely devoid of any evidence quantifying the impact of cattle grazing on the property on the adjacent marsh and river systems as indicated above, cattle grazing has been continuously conducted on the property since approximately 1938. As a result, it cannot be found on the basis of this record that cattle-grazing activities conducted on the property in any way violate water quality criteria contained in Chapter 403, Florida Statutes, or Chapter 17, Florida Administrative Code, or have any quantifiable affect at all on the surrounding ecosystem.

   
   

8. The record in this cause clearly establishes that the governing board of the district was faced with a decision requiring weighing the continued effect of cattle grazing on the property against its present ability to effectively manage the property on a short-term basis. In resolving this dilemma the governing board chose a middle ground whereby mitigating covenants were placed in the lease to lessen the prior impact of cattle grazing on the property and its surrounding area, and at the same time allow effective management of the property over the short term until a comprehensive land management plan could be developed. This decision has ample factual support in the record, and is a rational and reasoned response to the board's dilemma.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1) , Florida Statutes.

   
   

10. The district has specific authority under Section 373.139, Florida Statutes, to purchase land for the conservation and protection of water resources. In addition, the district is empowered by Section 373.093(1), Florida Statutes, to lease any lands or interest in land to which it has acquired title ". . . [f]or the best price and terms obtainable, to be determined by the board."

    
    

11. The property in question in this proceeding was purchased in part with funds obtained by Respondent pursuant to Section 373.59, Florida Statutes, which provides, in part, that:

    
    

    . . . Land acquired with moneys from the fund shall be managed and main- tained in an environmentally acceptable manner, and to the extent practicable, in such a way as to restore and pro- tect their natural state and condition.

    
    

12. The "substantial interests" of Petitioners, Friends of the St. Johns, Inc., and Chester Brown, will be determined by agency action in this proceeding, within the intent and meaning of Section 120.57, Florida Statutes, and they therefore have standing to maintain this proceeding. Accordingly, Respondent's Motion to Dismiss the Amended Petition is hereby DENIED.

    
    

13. The Petitioners in this cause, as the parties seeking affirmative relief, bear the burden of establishing by a preponderance of the evidence that the proposed agency action in this cause either violates the agency's statutory mandate, or is otherwise arbitrary and capricious. See, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Thus, in Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978), the court held that:

    
    

    A capricious action is one which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic. Administrative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as

    a reasonable person would accept as adequate to support a conclusion.

    
    

14. It is specifically held, as a matter of law, that the governing board of the district properly weighed the factors outlined above in reaching its decision to execute the disputed lease. In addition, there is ample competent evidence in this cause to support that decision. Accordingly, Petitioners have failed to meet their burden of proof in order to entitle them to the relief requested. It is, therefore,

RECOMMENDED:

That, based upon the foregoing Findings of Fact and Conclusions of Law, the governing board of the St. Johns River Water Management District enter a Final Order denying the relief requested by Petitioners, and dismissing this cause, with prejudice.

DONE AND ENTERED this 4th day of March, 1983, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1983.

COPIES FURNISHED:

Irby G. Pugh, Esquire

218 Annie Street Orlando, Florida 32806

E. Lee Worsham, Esquire St. Johns River Water

Management District Post Office Box 1429 Palatka, Florida 32077

E. D. Vergara, Executive Director St. Johns Water Management District Post Office Box 1429

Palatka, Florida 32077

Victoria Tschinkel, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 82-001073

Orders for Case No: 82-001073