STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

 CASE NO. 88-4710RP


THE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA, Petitioner,

vs. 

BOARD OF PROFESSIONAL LAND SURVEYORS, DEPARTMENT OF PROFESSIONAL REGULATION OF THE STATE OF FLORIDA, Respondent,

and,

AGRICO CHEMICAL COMPANY, INTERNATIONAL MINERALS & CHEMICAL CORPORATION, MOBIL MINING AND MINERALS, FLORIDA LAND COUNCIL, INC., PAT WILSON, INC., A. DUDA & SONS, INC.,  LYKES BROS., INC., THE CORPORATION OF JESUS CHRIST OF LATTER DAY SAINTS, INC., SANTO J. PRETE, WALTER C. CALDWELL, ROBERT J. CLANTON, THE FLORIDA GAME AND FRESH WATER FISH COMMISSION, SHORELINE OWNERS AND RESIDENTS ASSOCIATION, FLORIDA FORESTRY ASSOCIATION, INC., FLORIDA CITRUS MUTUAL, FLORIDA SUGAR CANE LEAGUE, FLORIDA FRUIT AND VEGETABLE ASSOCIATION, FLORIDA FARM BUREAU FEDERATION, NEAL LAND AND TIMBER COMPANY, DAVID FINLAY CORBIN, FLORIDA AUDUBON SOCIETY, DRAKE RANCH, FLORIDA LAND TITLE ASSOCIATION, INC., and FLORIDA CATTLEMAN'S ASSOCIATION, Interveners. 


FINAL ORDER

On November 3, 4, 8, 9, 10, 15, 16, 17, 18, 21 and 22, 1988, a final hearing was held in this case in Tallahassee, Florida, to consider the challenge to proposed rules to be placed within Chapter 21HH-6, Florida Administrative Code. See Section 120.54(4), Florida Statutes. The Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (Trustees) is the petitioner in this challenge and is supported in opposing the proposed rules by The Florida Game and Fresh Water Fish Commission (Game and Fish) and Florida Audubon Society (Audubon). The Board of Professional Land Surveyors, Department of Professional Regulation of the State of Florida, (Surveyors), whose proposed rules are under challenge, together with the remaining interveners, support the validity of these rules.

Requests to extend the time for submission of proposed final orders and associated memoranda were made are granted. All had been filed by January 13, 1989, the last due date. As a result of extending the time for filing, the statutory requirement set out in Section 120.54(4)(c), Florida Statutes, for entry of a final order within 30 days from the conclusion of the hearing has been waived.

In preparing to issue the final order, due regard has been given to the proposed final orders and associated memoranda submitted by the parties. The parties proposed factual findings are addressed in an Appendix to the final order. The exhibits and transcript have also been examined in furthering understanding of this dispute.

APPEARANCES

For Petitioner: 

 

 

 

 

 

David G. Guest, Esquire

Jonathan A. Glogau, Esquire

Ronald G. Stowers, Esquire

Assistant Attorneys General

Department of Legal Affairs

111-36 South Magnolia Drive

Tallahassee, Florida 32301

Ross Burnaman, Esquire

Assistant General Counsel

Department of Natural Resources

3900 Commonwealth Boulevard

Tallahassee, Florida 32301

For Respondent:

 

Chris H. Bentley, Esquire

F. Marshall Deterding, Esquire

Rose, Sundstrom and Bentley

2548 Blairstone Pines Drive

Tallahassee, Florida 32301

For Interveners:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Robert R. Feagin, III, Esquire

Thomas J. Jones, Esquire

Lawrence E. Sellers, Jr., Esquire

Holland & Knight

Post Office Drawer ;310

Tallahassee, Florida 32302

L. M. Buddy Blain, Esquire

Douglas P. Manson, Esquire

Blain & Cone

202 Madison Street

Tampa, Florida 33602

James V. Antista, Esquire

Kenneth McLaughlin, Esquire

Florida Game and Fresh Water

Fish Commission

620 South Meridian Street

Tallahassee, Florida 32399-1600

Kathleen E. Moore, Esquire

Hopping, Boyd, Green & Sams

215 South Monroe Street

Tallahassee, Florida 32301

John E. Norris, Esquire

Norris & Koberlein

Community National Bank Building

201 N. Marion Street, Suite 301

Post Office Drawer 2349

Lake City, Florida 32056-2349

Joseph J. Gleason, Esquire

Florida Citrus Mutual

Post Office Box 89

Lakeland, Florida 33802

Philip S. Parsons, Esquire

Cindy L. Barin, Esquire

Landers & Parsons

Post Office Box 271

Tallahassee, Florida 32302

Scottie J. Witler, Esquire

General Counsel

Florida Farm Bureau Federation

Post Office Box 730

Gainesville, Florida 32602

J. Patrick Floyd, Esquire

408 Long Avenue

Post Office Drawer 950

Port St. Joe, Florida 32456

Kendrick Tucker, Esquire

Patrick Phelan, Esquire

Huey, Guilday, Kuersteiner

& Tucker

Post Office Box 1794

Tallahassee, Florida 32302

David Schwartz, Esquire

Charles Lee

Florida Audubon Society

1101 Audubon Way

Maitland, Florida 32751

Steve Lewis, Esquire

Janet E. Bowman, Esquire

Messer, Vickers, Caprello,

French & Madsen

Post Office Box 1876

Tallahassee, Florida 32302

Peter Guarisco, Esquire

2003 Apalachee Parkway

Tallahassee, Florida 32301

Marty Smith, Esquire

21 Northeast First Avenue

Post Office Box 1148

Ocala, Florida 32678

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


ISSUES

On September 2, 1988, the Surveyors caused to be published notice of rulemaking within Chapter 21HH-6, Florida Administrative Code, which included amendments to Rule 21HH-6.002 and the addition of proposed rule 6.0052. This rulemaking addresses standards utilized in surveys done to establish the ordinary high water mark (OHWM), also referred to as ordinary high water line (OHWL), and prompted the challenge.

Briefly stated, the challengers question the validity of the Surveyor's actions based on these allegations: (a) the Surveyors have materially failed to follow applicable rulemaking procedures set forth in Section 120.54, Florida Statutes; (b) the Surveyors have exceeded the grant of rulemaking authority; (c) the proposed rules enlarge, modify, or contravene the specific provisions of law implemented; (d) the proposed riles are vague, fail to establish adequate standards for agency decisions or vest unbridled discretion in the agency; (e) the rules are arbitrary and capricious; and (f) the rules violate Article II, Section 7, and Article X, Section 11, Florida Constitution (1968).

More specifically, the Trustees contend that they, rather than the Surveyors, have exclusive or primary rulemaking authority to establish the means by which an OHWM is determined, subject to court review. The Trustees also contend that the economic impact statement is insufficient, and that the rules under attack do not constitute minimum technical standards as advertised, but are instead an attempt to establish statements of legal principles pertaining to the location of an OHWM in a circumstance where this issue is unsettled in the courts, the forum ultimately responsible for resolving disputes related to the proper location of an OHWM.


FINDINGS OF FACT

TRUSTEES CLAIM OF EXCLUSIVITY

1. In their petition, the Trustees alleged that they have exclusive or primary authority to promulgate rules to establish a methodology for determining an OHWM, subject to judicial review. Through discovery the Trustees conceded that contrary to the allegations in the petition, neither Chapter 177, Florida Statutes (1987), Part II; Section 253.03(7), Florida Statutes (1987); State v. Florida National Properties, 338 So.2d 13 (Fla. 1976) [FLORIDA NATIONAL PROPERTIES]; 1/ Attorney General's Opinion 88-22, nor any other source granted them exclusive or primary authority to adopt rules. Moreover, at present the Trustees have not promulgated rules to this effect or which address the substance of OHWM determinations.

2. In their proposed final order, the Trustees speak in terms of their unique trust as guardians of sovereign lands. As such, they believe they have exclusive jurisdiction to propose definitions and standards to clarify the limits of their holdings and to identify the features which describe the property boundary. Reference is made to the Florida Constitution; Section 253.03(1)(b), Florida Statutes and case authority.

3. Having examined these claims, nothing about them preempts the authority of the Surveyors to attempt to enact rules on this subject.


RULE PROMULGATION

4. In promulgating the rules in question, the Surveyors held four public workshops on May 11, 1988; June 20, 1988; July 13, 1988; and August 4, 1988. Notice of rule adoption was published in Vol. 14, No. 35, September 2, 1988, Florida Administrative weekly, at page 3181.

5. On September 23, 1988, the Trustees brought this challenge to select rules contained within those noticed for promulgation. The details concerning the challenge are described subsequently. After the petition challenging the rules was filed, a public hearing was conducted on September 30, 1988.

6. The text found within the final version of the proposed rules contains a substantial number of suggestions from counsel for the three mining companies who are interveners in this cause and whose interest counsel was representing in appearing before the Surveyors in the promulgation process. Extensive contribution was also made by counsel was represents a number of other interveners in this case, among them Florida Land Council, Inc., and two licensed surveyors in Florida, Walter C. Caldwell and Robert J. Clanton. In addition to the input from these outside interests, the board members made their own thorough examination of the subject. Nonetheless; the final product that is proposed for rule adoption has an obvious connection to the views advanced by outside counsel.

7. The remarks received in the sessions associated with the rule enactment activities came from riparian owners and those who represent their interests. The Trustees or those expressing an opposing point of view were not prohibited from direct participation and in fact the Trustees were kept informed of the progress during the rule adoption process. Additionally, a lawyer on the Attorney General's staff who normally represents the Surveyors had initially given advice in the rule adoption process, until it was determined that the Attorney General , on behalf of the Trustees, was at odds with the provisions in the proposed rules relating to the OHWM. At that juncture the Surveyors were required to employ substitute counsel from a source outside the Attorney General's staff. In the final analysis the Trustees made no attempt to persuade the Surveyors to pursue a different course in adopting these rules. What was done in the enactment process was procedurally correct; the substance of what was done, however, is another matter.


PROPOSED RULES UNDER CHALLENGE

8. A number of definitions in proposed rule 21HH-6.002 relating to OHWM surveys have been challenged in his proceeding.

9. The first definition at issue is "accretion" defined at 21HH-6.002(1) as:

... the gradual and imperceptible accumulation of land along the shore or bank of a water body.

This definition is taken directly from, board of Trustees of the Internal Improvement Trust Fund v. Sand Key Associates, Ltd., 512 So.2d 934 (Fla. 1987) [SAND KEY]. For reasons set forth in the conclusions of law, while this definition is not found to be a technical standard, it is appropriate for placement in this rule because it coincides with applicable case law.

10. Likewise, the second definition at issue, "avulsion", also is taken from SAND KEY, and is acceptable. As stated at 21HH-6.002(2):

... the sudden or perceptible loss of or addition to land by the action of the water or a sudden change in the bed of a lake or the course of a stream.

11. The third definition is the word "bank" at 21HH-6.002(3), which states:

... the natural feature of a water bode that confines the bed and physically separates it from the adjacent lands.

This definition is an attempt to paraphrase from two federal cases, Howard v. Ingersoll, 54 U.S. 381 (1851) [HOWARD] and Oklahoma v. Texas, 260 U.S. 606 (1923), involving rivers with readily identifiable banks. On the question of whether the text set forth in the rule is a faithful adherence to the court language, the answer is in the negative. More fundamentally, the opportunity for defining the word "bank" as it applies to the identification of OHWM in Florida is one reserved to the Florida courts and federal courts who may interpret Florida Law, for reasons explained in the conclusions of law herein. Unless Florida courts or federal courts interpreting Florida Law have adopted the definition of "banks" addressed in the two federal opinions, the definitions are not available to this executive branch agency in its rule enactment. The Surveyors may only rely upon judicial precedents that have an immediate relationship to Florida case law. Unlike the courts in Florida and the legislature which may consider and adopt approaches in case opinions from other state and federal courts which are not part of the existing Florida case law, an executive agency does not possess such authority. The fact that the two cases under discussion were rendered by the Supreme Court does not establish controlling precedent in Florida, because they pertained to disputes among citizens and states unrelated to Florida and its citizens and unrelated to the establishment of the OHWM in Florida. Finally, the rule definition by its terms is arbitrary in that it fails to provide for the numerous water bodies in Florida that do not have well-defined banks and whose banks would not correspond to this definition.

12. The fourth definition is related to the term "bed" and is set forth at 21HH-6.002(4):

... the land beneath a water body that is subject to the continued presence and action of the water in ordinary years excluding swamp and overflowed lands. The upper mark of the bed is the ordinary high water mark (OHWM).

The authority for this definition is from HOWARD; Harrison v. Fite, 148 F.2d 781 (8th Cir. 1906) [HARRISON] and Tilden v. Smith, 133 So. 708 (Fla. 1927) [TILDEN], according to the rule proponents. TILDEN is a landmark case in Florida jurisprudence establishing legal principles for location of the OHWM as a property boundary. HARRISON involves a property dispute associated with water bodies in Arkansas in which the court recognized that the title to soil under the waters of a lake or stream is determined by state law. The Court in that opinion establishes a definition of "bed" in Arkansas, a definition which has not been incorporated in Florida through court decision. Moreover, the definition in the proposed rule does not accurately state the Arkansas precedent. The Court's holding in HOWARD, concerning the definition of "bed" differs significantly from the proposed rule, and has not been incorporated into Florida law. TILDEN, in describing "bed" and the relationship to its "banks" is borrowed from the Minnesota Supreme Court, See Minnetouka Lake Improvement, 55 Minn. 513, 58 N.W. 295, 45 Am. St. Rep. 494. The TILDEN court observed at page 712:

"... high-water mark, as a line between a riparian owner and the public, is to be determined by examining the bed and banks, and ascertaining where the presence and action of the water are so common and usual, and so long continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as respects the nature of the soil itself... It is coordinate with the limit of the bed of the water; and that only is to be considered the bed which the water occupies sufficiently long and continuously to wrest it from the vegetation, and destroy its value for agricultural purposes....

The proposed rule is not an accurate restatement of the Florida law, as found in TILDEN. The proposed rule is an attempt to set forth an independent definition of "bed" without legal authority.

13. Likewise, the definition of "erosion" is not permissible. It is defined at 21HH-6.002(7) as ... the gradual and imperceptible wearing away of the earth along the shore or bank of a water body.

The statement of where the language in the proposed rule originated is identified as, Boyer on Florida Real Estate Transactions at page 13-37 and 65 C.J.S. Navigable Waters, Section 87 (1966) at page 273. These two sources contain definitions of erosion which are found respectively at pg. 13-37 in Boyer; "`Erosion is the gradual and imperceptible wearing away of land bordering on a body of water by the natural action of the elements'" and 65 C.J.S. at p. 273; "`Erosion is gradual eating away by current or tide of the soil of the riparian or littoral owner, and may result in the loss of title to the land occupied by water.'" These two sources in turn refer to Florida case law, and in the instance of 65 C.J.S. to other states' case law as well. Neither source has directly incorporated a Florida court definition of "erosion." An examination of the case law cited in this case reveals that the Florida courts have not defined "erosion" with exactitude. The proposed rule definition of "erosion" is unsupported by Florida law and inconsistent with the authorities that were cited. Moreover the Surveyors possess no authority to use those two sources, to either establish a definition or to construct a definition in their own right. The latter approach is what has occurred in this case and is without authority.

14. At 21HH-6.002(8), the term "gradual and imperceptible" is described as:

... that, although witnesses may periodically perceive changes in the waterfront, they could not observe them occurring. Even though the witnesses may see from the to time that progress has been made, they could not perceive it while the process is going on.

This definition is described as having been taken from SAND KEY. The rule is an accurate statement of Florida law set forth in that opinion.

15. The proposed rules define the word "navigable" at 21HH-6.002(11) to mean:

... that there is direct, competent and substantial evidence that the water body or portion thereof was being used, or was susceptible to being used, in its natural and ordinary condition, as a highway for commerce, over which trade and travel Was or may have been conducted in the customary modes of trade and travel on water when Florida became a state on March 3, 1845.

Authority for this definition comes from Odom v. Deltona Corporation, 341 So.2d 977 (Fla. 1977); Bucki v. Cone, 6 So. 160 (Fla. 1889); The Daniel Ball v. United States, 77 U.S. 557 (1871) [DANIEL BALL]; Oklahoma v. Texas, 258 U.S. 574 (1922) [OKLAHOMA 1922] and Baker v. State ex rel. Jones, 87 So.2d 497 (Fla. 1956) [BAKER]. In this instance, both federal and Florida case law may be utilized in ascertaining what it means for a water body to be navigable at the moment of statehood. A further explanation of this issue is set forth in the Conclusions of Law Florida achieved statehood an March 3, 1845. Were it not for the fact that the proposed rule attempts to establish an evidential standard, i.e., "...direct, competent and substantial evidence..." which is no where to be found in the cited cases, the rule would be permissible since it otherwise tracks the language of DANIEL BALL with allowance for Florida's admission date into the Union. However, since this impermissible evidentiary standard has been included, the proposed rule is invalid. Moreover, OKLAHOMA 1922 looks with favor on the propriety of using statements found in early publications as a source of evidence on the navigability question, whether that evidence is ultimately found to be compelling or hot. These historical publications correspond to indirect proof, contrary to the proposed rule.

16. By use of only direct proof, a reasonable possibility is presented that waters over which the Trustees have a legitimate claim to ownership will be found non-navigable, depriving the state of ownership.

17. The next definition is set forth in 21HH-6.002(12) and defines "non-tidal" as:

water bodies in which there is no ebb and flow of the tide. All water bodies referred to in Section 21HH-6.007 are non-tidal.

Stated authority for this definition is TILDEN and Black's Law Dictionary, Fifth Edition (1979). The definition is in keeping with the case authority cited and is acceptable.

18. "OHWM" or "OHWL" defined at 21HH-6.002(13) as:

the natural boundary that separates the bed of a non-tidal water body from its banks for navigable water bodies the OHWM is the title boundary between sovereignty submerged lands and riparian land; it is the actual, observable, physical mark impressed on the bank of a water body by the long continued presence and action of the cater during normal years, and reflects the point to which the water has exerted dominance over the bed so as to wrest the bed from terrestrial vegetation and destroy its value for agricultural purposes.

Generally, the OHWM is a visible mark in which parties providing for a water boundary between them would naturally have in their minds. In all cases the OHWM is a natural object, and is to be sought for as other natural objects are sought for and found by the distinctive appearances they present.  Generally, this natural boundary is capable, not only of being ascertained upon inquiring but also, of being seen and recognized in the common practical affairs of life. It neither takes in overflowed land beyond the bank, nor includes swamps or low grounds liable to be overflowed, but reclaimable for meadows or agriculture, or which being too low for reclamation though not always covered with water, may be used for cattle to range upon as natural unenclosed pasture.

The OWHM is an ambulatory boundary and is subject to gradual and imperceptible change due to erosion, accretion, reliction or submergence.

As authority for the rule citation is made to TILDEN; Goose Creek Hunting Club, Inc. v. United States, 518 F.2d 579 (Ct. Cl. 1975) [GOOSE CREEK]; HOWARD; The Riparian Developer's Dilemma: Locating the Boundary of Navigable Lakes and Rivers, Edgar B. Washburn in Real Property, Probate and Trust Journal, Vol. 18 (Fall 1983) at page 547; and FLORIDA NATIONAL PROPERTIES.

The basic meaning of OHWM in Florida, especially as it distinguishes swamp and overflowed lands described in the Act of Congress on September 28, 1850, which conferred upon the states "the whole of the swamp and overflowed land therein" from lands already granted to Florida at statehood, is set out in passages from TILDEN; Martin v. Busch, 112 So. 274 (Fla. 1927) [MARTIN]; and State ex rel. Ellis v. Gerbing, 56 Fla. 603, 47 So. 353 (Fla. 1908) [GERBING]. More specifically, in GERBING, at page 357 the court explains:

The act of Congress of September 28, 1850, granted the state "the whole of the swamp and overflowed lands therein." This grant did not include lands the title to which was not then in the United States. As the admission of the state of Florida into the union, "on equal footing with the original states, in all respects whatsoever," gave to the state in trust for the people the navigable waters of the state and lands thereunder, including the shores or space between ordinary high and low water marks, the title to such lands was not in the United States when the act of 1850 was passed granting swamp and overflowed lands to the state. A patent issued by the United States to the state, purporting to convey swamp and overflowed lards under the act of 1850 covering lands under the navigable waters of the state, does not affect the title held by the state to the lands under navigable waters by virtue of the sovereignty of the state. See Edwards v. Rolley, 96 Cal. 408, 31 Pac, 267, 31 Am. St. Rep. 234. The general act of Congress granting swamp and overflowed lands to the states does not cover tide lands. Mann v. Tacoma, 153 U.S. 273, 14 Sup. Ct. 820, 38 L.Ed. 714.

* * *

Swamp and overflowed lands within the state of Florida, not under navigable or tide waters, that became the property of the United States by the treaty of cession from Spain and had not been previously granted, were by the act of Congress approved September 28, 1850, granted tee statue for purposes of drainage and reclamation. Within the meaning of this act of Congress, swamp lands, as distinguished from overflowed lands, are such as require drainage to dispose of needless water or moisture on or in the lands, in order to make them fit for successful and useful cultivation.  Overflowed lands are those that are covered by non-navigable waters, or are subject to such periodical or frequent overflow of water, salt or fresh (not including lands between high and low water marks of navigable streams or bodies of water, nor lands covered and uncovered by the ordinary daily ebb and flow of normal tides of navigable waters), as to require drainage or levees or embankments to keep out the water and thereby render the lands suitable for successful cultivation.  When the lands are not covered by the waters of navigable streams or other bodies of navigable waters at ordinary high-water mark, and drainage, reclamation, or leveling is necessary to render the lands suitable for the ordinary purposes of husbandry, they are within the terms of the act of Congress, and the title passed to the state, if the land were the property of the United States at the date of the act of Congress making the grant to the state.

This opinion was followed in TILDEN, where, as indicated before, the Court relied on out of state precedent to construct a Florida definition of "OHWM" or "high cater mark." At page 712 the Court stated:

"In the case of fresh water rivers and lakes in which there is no ebb and flow of the tide, but which are subject to irregular and occasional changes of height, without fixed quantity or time, except that they are periodical, recurring with the wet or dry seasons of the year--high water mark, as a line between a riparian owner and the public, is to be determined by examining the bed and banks and ascertaining where the presence and action of the water are so common and usual, and so long continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as respects the nature of the soil itself. `High water mark' means what its language imports--a water mark. It is co-ordinate with the limit of the bed of the water; and that only is to be considered the bed which the water occupies sufficiently long and continuously to wrest it from vegetation, and destroy its value for agricultural purposes. Ordinarily the slope of the bank and the character of its soil are such that the water impresses a distinct character on the soil as well as on the vegetation. In some places, however, where the banks are low and flat, the water does not impress on the soil any well-defined line of demarcation between the bed and the banks."

"In such cases the effect of the water upon vegetation must be the principal test in determining the location of high-water mark as a line between the riparian owner and the public. It is the point up to which the presence and action of the water is so continuous as to destroy the value of the land for agricultural purposes by preventing the growth of vegetation, constituting what may be termed an ordinary agricultural crop."

* * *

"The high-water mark on fresh water rivers is not the highest point to which the Stream rises in times of freshets, but is the line which the river impresses upon the soil by covering it for sufficient periods to deprive it of vegetation and to destroy its value for agriculture.

Later that year, in MARTIN, further explanation was made concerning the OHWM in which the Court observed, at pages 283 and 284:

In 1845, the state, by virtue of its sovereignty, upon being admitted to the Union, became the owner of, and, unless lawfully conveyed or granted, still owns the beds of all navigable lakes to ordinary high-water mark, however shallow the water may be at the outside lines or elsewhere, if the water is in fact a part of the particular lake that is navigable for useful purposes,. See Illinois Steel Co. v. Bilot, supra. In flat territory or because of peculiar conditions, there may be little if any shore to navigable waters, or the elevation may be slight and the water at the outer edges may be shallow and affected by vegetable growth or other conditions, and the line of ordinary high-water mark may be difficult of accurate ascertainment; but, when the duty of determining the line of high-water mark is imposed or assumed, the best evidence attainable and the best methods available should be utilized in determining and establishing the line of true ordinary high-water mark, whether it is done by general or special meandering or by particular surveys of adjacent land. Marks upon the ground or upon local objects that are more or less permanent may be considered in connection with competent testimony, and other evidence in determining the true line of ordinary high-water mark. When the line of ordinary high-water mark is duly ascertained and established by competent authority, such line should be regarded as the true line, unless duly impeached for fraud or mistake.

These Florida Supreme Court cases define OHWM in Florida. The proposed rule is contrary to these opinions and is invalid. The proposed rule partially relies on the Florida cases, but the Surveyors have deliberately failed to explain in this proposed rule the appearance of OHWM in those places where the topography is low and flat, which is frequently the case in Florida. In addition, the detailed description of the OHWM line, set forth in the second paragraph to the proposed rule is from HOWARD, and is not the standard which has been accepted in Florida by Florida courts or federal courts interpreting Florida law. Moreover, from the evidence in this case it is not clear that the mark as a line is "generally" discernible. It is just as possible, if not more so, that "generally" it is not easily discernible and this rule does not make provision for what a surveyor is to do in that situation. The reference to swamps and overflowed lands at paragraph two in the proposed rule is from HOWARD in a section of that opinion not adopted by Florida courts or federal courts interpreting Florida law and is unavailable to the Surveyors in enacting the rule. It also comes from GOOSE CREEK, a federal navigational servitude case, which does not apply to the Florida determination of OHWM as a property boundary unless case law related to the Florida property boundary determination adopted this concept which it has not. The Florida description of swamp and overflowed lands is set out in GERBING. Nor has Florida accepted the idea of terrestrial vegetation extracted from GOOSE CREEK and placed in the proposed rule, as opposed to the more general reference to vegetation. On balance the proposed rule is arbitrary in its terms and not consistent with Florida law.

19. The next definition concerns the term "perceptible." The definition at 21HH-6.002(14) states:

... that witnesses may perceive changes as they take place.

Although no specific authority is cited, tide definition correctly describes the term in the context of the previous definition of gradual and imperceptible.

20. The term "reliction" is defined at 21HH-6.002(16) as:

... the gradual and imperceptible recession of water.

Authority for this definition is found in SAND KEY. Which states at page 936: "`Reliction' or `dereliction' is an increase of the land by gradual and imperceptible withdrawal of any body of water." (e.s.) By failing to include the full definition, the rule is unacceptable and invalid.

21. A definition is provided for the term "submergence" announced at 21HH-6.002(17) as:

... the gradual and imperceptible disappearance of land under water caused by natural rising waters and land subsidence.

Authority for this rule is cited as 65 C.J.S. Navigable Waters, Section 87 (1966) at page 274. The definition in the proposed rule fails to conform to the authority claimed in that it does not speak to the proprietorship interest being lost on this occurrence. Additionally, the proposed rule's definition does not comport with Florida case law found within footnotes in the authority cited by the Surveyors or otherwise argued in this case. Therefore, the proposed rule definition is unacceptable and invalid.

22. The attack on the definition of an OHWM or OHWL survey set out at 21HH-6.002(18)(i), which indicates that such form of survey is designed to accomplish the task in furtherance of the definition in the overall rules under discussion here, is acceptable to the extent that the rules have not been held invalid.

23. The definition of "swamp and overflowed lands" at 21HH-6.002(19) has also been challenged. The definition states:

Swamp and Overflowed Lands: shall mean lands that lie on the landward side of the ordinary high water line but that are so subject to inundation during the normal planting, growing or harvesting season of the region that they are not useful for normal agricultural purposes unless they are drained to remove excess water or diked to prevent flooding.

Authority for this definition reportedly is found in HOWARD and GERBING, as well as U.S. Department of the Interior, Bureau of Land Management's Manual of Surveying Instructions, (1973) at page 179. The manual is not the controlling law in Florida on property boundaries decided by establishment of the OHWM. HOWARD does not apply. GERBING is the controlling law and as can be seen, supra, the proposed rule definition lacks the precision in that opinion which is essential to understanding the concept of swamp and overflowed lands in Florida.

As example, the reminder regarding the unavailability to the riparian owner of lands between the high and low water mark is not mentioned. The proposed rule also fails to mention lands formed by state projects through the process of reliction that do not inure to the benefit of the riparian owner which might appear to be part of swamp and overflowed land but in fact belong to the sovereign. The latter circumstance is described in the MARTIN opinion.

The proposed rule is arbitrary and not a true reflection of Florida law except as to that portion which states, "Swamp and Overflowed Lands: shall mean lands that lie on the landward side of the ordinary high water line..."

24. "Terrestrial vegetation" is defined at 21HH-6.002(20) as being:

... land plants, that is plants that do not require standing or flowing water for germination, support, growth and survival, though they may tolerate periods of inundation during each year after they become established. Woody plant species, including trees, are classified as terrestrial vegetation.

Authority for enactment is said to be from HOWARD; Borough of Ford City v. United States, 345 F.2d 645 (3d Cir. 1965), cert. denied, 382 U.S. 902 (1962) [FORD CITY]; The Ordinary High Water Mark: Attempts at Settling an Unsettled Boundary Line, Frank E. Maloney, 13 U. Wyo. L. Rev. 465, 470 (1976); Simon Zunamon and Chicago Mill and Lumber Company v. United States, 80-78 Trial Division June 23, 1980, at page 14-15; and United States v. Cameron, 465 F.Supp. 1099 (M.D. Fla. 1978) [CAMERON]. The Wyoming Law Review article is a short comment on HOWARD concerning the concept of terrestrial vegetation written by Justice Curtis, which is not controlling Florida law. Neither are the federal cases involving federal projects such as a lock and dam, a flowage easement and removal of a dike thought to be in violation of Section 10 of the Rivers arid Harbors Act of 1899, 33 U.S.C. 403. The holdings do not relate to Florida law on property disputes over the location of the OHWM and having not been adopted by Florida courts as persuasive authority, are not available to the Surveyors in the rule enactment process. As stated previously, neither Florida courts nor federal courts interpreting Florida law have recognized the value of terrestrial vegetation as a concept in locating the OWHM. Nor have Florida courts adopted a legal concept that resembles this proposed rule in even the most remote fashion. The rule is therefore, arbitrary and contrary to Florida law.

25. The Trustees generally challenge proposed rule 21HH-6.0052 as being in excess of or an enlargement of the rule-making authority granted to the Surveyors under Section 472.027, Florida Statutes. Other provisions within that rule are challenged because they are, for reasons more specifically detailed, alleged to be invalid exercises of delegated legislative authority.

26. Proposed rule 21HH-6.0052 is entitled, "Ordinary High Water Mark (OHWM) Surveys." The intent of this proposal is announced at 21HH-6.0052(1) where it says:

Applicability and Intent.

This rule establishes additional technical standards, procedures, criteria and general methodology to be applied by land surveyors registered in the state of Florida for the determination of the location of the ordinary high water mark (OHWM). It is the intent that nothing in this rule is in conflict with established Federal and Florida law and existing principles of accepted land surveying standards. For the purpose of this rule, the terms ordinary high water mark (OHWM) and ordinary high water line (OHWL) may be used interchangeably.

 

27. There are provisions within this proposed rule which are accepted as being reasonably drawn minimum technical standards. They are 21HH-6.0052(2)(b), which says:

Surveys tied to corners or other monumentation. All OHWM surveys shall be tied to a government land office survey corner or some other well established survey monument such as a permanent reference monument of a recorded subdivision plat.

21HH-6.0052(2)(c), which says:

Sinuosities. The survey shall generally approximate the sinuosities of the OHWM with a meander line of accurately measured courses and distances connecting together meander or inflection points which the surveyor determines to be located upon the OHWM.

21HH-6.0052(2)(d), which says:

Bearings and distances. The survey drawing shall provide bearings and distances between adjacent points on the meander line and for ties from the line to the referenced monuments. Bearings should be based on either astronomic north or grid north of the Florida State Plane Coordinate System.

21HH-6.0052(2)(e), which says:

Course lengths. Courses shall be of such lengths as, in the opinion of the surveyor, are needed to accurately depict the irregularity of the ordinary high water-mark.

21HH-6.0052(2)(f), which says:

Dates. Each meander line of the survey shall be dated to indicate the date on which the meander points were actually established in the field. If a meander line is intended to locate the OHWM as it existed on some prior date, and the means by which the location was set, shall be noted on the face of the survey drawing.

21HH-6.0052(2)(g), which says:

Monumentation. All meander or inflection points on the OHWL survey shall be monumented either directly or by witness monuments

Each of these subsections is found within section (2), entitled: "Minimum Technical Standards for Ordinary High Water Mark Surveys", and language to that effect; "The following additional minimum technical standards shall apply to all OHWM surveys:"

28. Also within the proposed rule is 21HH-6.0052(2)(h), which says:

Independent judgment. The surveyor shall have responsibility for and shall exercise his independent judgment in making the final determination of the location of the OHWM.  The surveyor shall personally examine tee bed and the banks or shore of the water body to locate the positions of the OHWM.

Recognizing the limitations placed upon the surveyors by the fact that the ultimate decision concerning the proper placement of the OHWM is a decision left to the appropriate courts, and that determinations made in the present administrative order provide further limitations on the exercise of claimed delegated legislative authority, this provision is acceptable.

29. The balance of 21HH-6.0052 are attempts to provide legal principles mandating the methods by which the surveyors in Florida must locate the OHWM, analogous to the circumstance with proposed rule 21HH-6.002 previously discussed. The latter proposal is held to the same rigorous requirements of accurately restating Florida law, without creating net law. Proposed Rule 21HH-6.0052 identifies the process by which the substantial interests of the property owners on both sides of the OHWM are affected, notwithstanding the fact that disputes over this property boundary must be litigated to be resolved. The court is the ultimate arbiter, but absent a challenge to the propriety of the Surveyor's choice as to location of the OHWM, Surveyor's choice has the appearance of authority, and if these proposed rules are followed to the letter, it is an appearance that is misleading and harmful.

30. At 21HH-6.0052(2)(a), the surveyors are told:

Existent location unless prior date specified. The land surveyor will determine the location of the existent OHWM, unless explicitly requested to determine the location of the OHWM as it existed on a specified prior date.

This does not comport with the Florida law. In Florida, to locate the OHWM, one must understand the influences which man has had in regulating water levels. In those instances, such as the situation in MARTIN, the surveyors must depict the historical circumstance before man's activities to describe the true OHWM. In addition, under the law, a riparian owner cannot cause accretion to his or her land, or promote reliction by lowering the water to gain more land, but the proposed rule allows this arrangement by leaving a contemporary impression of OHWM which is not an accurate portrayal. See SAND KEY and Trustees v. Madeira Beach Nominee, Inc., 272 So.2d 209 (Fla. 2nd DCA 1973). When man's influence is not examined, the property owner, state or private interest, stands to lose property or gain property at someone else's expense, when the proposed rule calls for no more than the identification of the existing location, absent an explicit request to locate a line on a prior date. The surveyor, not the owner, has the presumed expertise to arrive at the true OHWM, whether or not man's intervening activities have altered the natural location of OHWM. If altered, this would necessarily entail use of an earlier date for depiction of the true OHWM. The proposed rule is arbitrary and contrary to Florida law in failing to recognize the need by the Surveyor to establish the natural location of OHWM as it existed at a prior date.

31. The steps taken in following the legal principles to establish an OHWM are seen by the proposed rule at 21HH-6.0052(2)(i) as:

The surveyor shall first examine the slope of the bank and character of its soil for a well-defined line of demarcation between the bed and the bank. The surveyor shall then consider the following factors:

1. The banks of a water body often form a marked escarpment at the limits of its bed.  Such escarpments are formed through the processes of erosion and over-bank deposits of sediment during high water, forming natural levees. The OHWL is located below and on the waterward side of the natural levees.

2. The OHWL is to be found at that point where the presence and action of the water is so common and usual and so long continued in all ordinary years that it prevents the establishment and growth of terrestrial vegetation.

3. The bed of a water body is unsuitable for agricultural purposes caused by the continued presence and action (1) the water flowing or washing over the bed. Larger particle sizes and decreased organic matter and clays, which result from the erosive and transportive effects of moving water, distinguish the sediments found in the bed of the water body from the soils found in the banks and in the swamp and overflowed lands that extend landward from the OHWL.

4. The factors enumerated in paragraphs 1., 2., and 3. are not to be considered as separate tests for determining the location of the OHWL, but should be considered together as complementary factors in locating the OHWL.

5. Supplemental evidence, including but not limited to historical accounts of water levels, use of adjacent lands for agriculture, statistical analyses of water levels, and prior surveys of the OHWM, may be used to support the primary criteria enumerated in paragraphs 1., 2. and 3. for determination of the OHWL.

The preamble to this proposed rule is said to be taken from TILDEN. The section at 21HH-6.0052(2)(i)1, is said to come from U.S. Department of the Interior, Bureau of Land Management's Manual of Surveying Instructions, (1973) at page 95. The provision at 21HH-6.0052(2)(i)2, is stated as coming from TILDEN; HOWARD and GOOSE CREEK. The provision at 21HH-6.0052(2)(i)3, is said to have its origins in TILDEN; GOOSE CREEK; HARRISON; and The Developer's Dilemma: Locating the Boundary of Lakes and Rivers, Edgar B. Washburn, Reed Property Probate, and Trust Journal Vol. 18 Fall 1983, at page 543 and Water Law Administration--The Florida Experience, (1968), F. Maloney and F. Baldwin, Chapter 3, page 70. The provision at 21HH-6.0052(2)(i)4, is said to be from FORD CITY. Finally, 21HH-6.0052(2)(i)5, is said to originate with TILDEN and CAMERON.

In the analysis, the preamble to 21HH-6.0052(2)(i) is sufficiently in keeping with the statement in Florida law to allow its inclusion in the proposed rules.

The provision at 21HH-6.0052(2)(i)1, is not the product of applicable Florida case law. Moreover, the proof in this case, as opposed to the surveyor's manual remarks, does not tend to describe how frequently (often) an escarpment may be seen. It suggests that escarpments are more expected in rivers with well defined banks, but not in rivers without well defined banks or lakes. Yet, the rule doesn't make this distinction. Also, testimony was given in the hearing to the effect that escarpments come about through erosion and over-bank deposit of sediment during high water events; however the levees that are formed also described as deposits, may or may not be indications of the OHWM. This levee formation is not described in the surveyor's Manual reference indicated as authority. In summary 21HH-6.0052(2)(i)1 is arbitrary and contrary to Florida law.

As heretofore noted, the concept of terrestrial vegetation set out in 21HH-6.0052(2)(i)2, is not the Florida law. The reason for Florida's failure to speak to terrestrial vegetation may well be that plant varieties, such as cypress trees, are technically terrestrial vegetation, but may survive in a water environment, once inundation occurs. Therefore, in order to avoid the possibility of easy reliance on the existence and placement of that plant species, once established and growing, as a means to describe where the OHWM is to be found, other measures, such as are referred to by Florida Courts, should also be understood and employed. Florida courts refer to the concept of wresting vegetation, which destroys its value as an agricultural crop, in places where the water has impressed a distinct mark on the soil and vegetation. Where the banks are low, and a well-defined mark has not been left by the water, the concept relates to destruction of the value of the land for agricultural purposes by the water's action, to the extent it prevents vegetation which constitutes an ordinary agricultural crop from growing. See MARTIN at page 712. The proposed rule is arbitrary and contrary to Florida law.

Rule 21HH-6.0052(2)(i)3, is not based on Florida case law. Likewise, the reference to swamps and overflowed lands, has the additional problem of not coinciding with the language in the claimed authority which supports the validity of the rule. The Surveyors may not construct a rule without regard for Florida law, and Florida law contains no legal principles similar to those in the proposed rule. The rule is outside Florida law, and in the one respect contrary to claimed authority. The proposed rule is unacceptable.

The prior provisions in 21HH-6.0052(2)(i)1, 2, and 3 having failed, 21HH-6.0052(2)(i)4, must also fail because it may not stand alone, nor may that provision at 21HH-6052(2)(i)5.

32. The provisions within 21HH-6.0052(2)(j) attempt to define those lands landward of the OHWM, wherein it is stated:

(j) Lands not included. The following lands are landward of the OHWM of a water body:

1. Swamp or overflowed lands, and floodplains adjacent to a water body that are subject to periodic flooding when the water body overflows its banks.

2. Beds of non-navigable streams which connect with the navigable water bodies.

3. Non-navigable sloughs, arms, bays, marshes, flood channels and similar features that are connected to but are distinct from the main body or channel of a navigable water body, as distinguished from the shallow and non-navigable margin of the main body or channel of the water body.

4. Any man-made flooded area, excavation, canal, dredged area, or widened channel or border, of or connected to a non-tidal navigable water body. In such case, the last location of the natural ordinary high water mark shall be fixed using the best evidence available so as to exclude such man-made change or feature, and shall be so noted on the drawing.

As authority, citation is made to HOWARD; TILDEN; U.S. Department of the Interior, Bureau of Land Management's Manual of Surveying Instructions, (1973) at page 94; United States v. Claridge, 416 F.2d 933 (9th Cir. 1969) cert. denied, 397 U.S. 961 (1970) [CLARIDGE]; Clement v. Watson, 58 So. 25 (Fla. 1972) [CLEMENT]; and Iowa-Wisconsin Bridge Company v. United States, 84 F.Supp. 852 (Ct. Cl. 1949) cert. denied, 339 U.S. 982 (1950) [IOWA].

At 21HH-6.0052(2)(j)1, the reference to the exclusion of swamp and overflowed lands is in keeping with Florida law. The balance of the provision is not. While TILDEN, at page 711, regards the idea of a high-water mark found in floods or freshets as beyond the landward extent of the OHWM, Florida law does not speak in terms of flood plains adjacent to water bodies, which are periodically flooded when the water bodies overflow their banks. It is not clear in this proposed rule what is meant by the term floodplain, and Florida courts have not enunciated a definition. Also unclear is what the term periodic flooding means and to what extent banks need be breached or overtopped to constitute flooding. HOWARD doesn't control, and reference to CLARIDGE, a quiet title case to lands on the Arizona side of the Colorado River, is misplaced in that Florida courts have not adopted the concepts in that opinion. Further, CLARIDGE speaks of overflow on the floodplain, but not about overflowing banks. The proposed rule is acceptable in part, as previously stated. The balance is arbitrary and contrary to Florida law.

The provisions at 21HH-6.0052(2)(j)2, is in keeping with BAKER and is acceptable.

In discussing 21HH-6.0052(2)(j)3, the foundation case in Florida is CLEMENT, a tidal case, which states, at page 26, that the shore is land bordering navigable waters lying between ordinary high and low water, and does not include lands not immediately bordering the navigable water which is covered by water but which are not navigable. This latter category would be areas such as mud flats, shallow inlets, and lowlands which are covered by water more or less permanently, or at intervals, and not ordinarily useful for public navigation. BAKER follows this rationale, stating that a non-navigable arm, connected to a navigable lake, is not considered part of the lake. The City of Tarpon Springs v. Smith, 88 So. 613 (Fla. 1921) excludes non-navigable salt marshes from the state's holdings as landowner. Lopez v. Smith, 109 So.2d 176 (Fla. 2d DCA 1959) excludes non-navigable branches to the Manatee River from the State's holdings as land owner. The IOWA case is not applicable Florida law, and may not be relied upon as authority for the proposed rule. IOWA involved a federal dam project on the Mississippi River, where alleged damage caused by that project was addressed by an eminent domain claim. The above-cited Florida cases, which identify categories of land not subject to state sovereignty claims, based upon their navigability, are not as expansive as the rule. Consequently, the rule is outside the authority of Florida law.

The provision at 21HH-6.0052(2)(j)4, is acceptable, in that it details water courses not belonging to the state.

33. The provision at 21HH-6.0052(2)(k) states:

Current Location Presumed to be Natural Location. The current location of the OHWM shall be presumed to be its natural location unless there is obvious, competent and substantial evidence that a change has occurred as the result of natural or man-made avulsion. If there is such evidence of avulsion, the location of the OHWL of a non-tidal water body shall be locate at its last natural position before the avulsion.

As authority, reference is made to Municipal Liquidators v. Tench, 153 So.2d 728 (Fla. 1963) [TENCH] and Schultz v. City of Dania, 156 So.2d 560 (Fla. 2d DCA 1963) [SCHULTZ]. TENCH was a property dispute at Tampa Bay, in which the issue was whether the land bordering the bay had disappeared as a result of avulsion, or by erosion and/or submergence. The opinion details Florida law concerning accretion, erosion, submergence and avulsion. It states that there is a presumption favoring accretion or erosion, as contrasted with avulsion, in explaining the phenomenon. Further, according to TENCH the person who claims rights to land under water must prove that the land caved off suddenly. SCHULTZ is another tidal case, involving a quiet title action for property on the Atlantic Ocean. It discusses erosion and avulsion, and cites to TENCH. SCHULTZ asserts that, in Florida, in the absence of contrary evidence, changes to land are the product of accretion, not sudden or violent force. The standard of proof where avulsion is claimed to be responsible, is by a preponderance. These cases do not hold that the current location of the OHWM is presumed to be the natural location. They are related to the right to advance property claims in instances where the face of the land changes, not with the question of whether the current or former line is the natural location of OHWM. Nor do they hold that the current location of OHWM is presumed to be the natural location, unless there is "...obvious, competent and substantial evidence that a change has occurred as the result of natural or man-made avulsion." The evidential standard is not associated with any decisions of applicable courts in Florida, wherein competent evidence is demanded, but the other proposed standards of proof, obvious and substantial, don't exist. The standards of obvious and substantial are fabricated by the Surveyors, and, by inference, are an attempt to limit the Surveyor's responsibility for establishing the natural location of OHWM, whether as seen at the point of the survey, or at some earlier date. It is an undertaking that, by the facts of this case, is not always determined by resort to obvious evidence. The rule is contrary to Florida law and arbitrary.

34. It should be noted that substantial effort in the hearing was devoted to describing specific water bodies in trying to identify the differences between types of water bodies within Florida and outside Florida, and how the proposed would operate. While this information serves the reasonable purpose of generally educating the trier of fact, a specific discussion of that evidence is not crucial to the treatment of she dispute, wherein the essential question is whether the proposed rules comport with applicable court law as it is applied to the issues associated with determining the location of the OHWM in surveys designed to accomplish that end. Likewise, the debate waged concerning whether this survey process is one in which a multi-disciplinary approach is needed involving hydrologists, botanists, agronomists, soil scientists, etc., as argued by the challengers to the rule, or one in which surveyors are responsible for the work and consult other experts as needed, is not relevant. The focus in this decision making process is no more than the rule promulgation, and the choice of language in the text of the proposed rules.


ECONOMIC IMPACT

35. The economic impacts of the proposed rules under challenge, according to the rule promulgation announcement, are limited to costs associated with development and adoption of the proposed rules, with no significant costs attributable to surveyors, to individuals who retain their services, to the State of Florida, or to the general public. Contrary to this assertion, the influence of the proposed rules on the surveyors, the state, in the person of the Trustees and the general public whom the Trustees represent, and the general public as owners of riparian property, is significant. To allow the use of the proposed rules by surveyors, when the proposed rules are not a correct statement of Florida law, and where they go beyond the limits in the enabling legislation in their enactment, is to create an environment of confusion. To do so is to encourage claims to land which are not legitimate, to hinder legitimate land claims, and to increase potential costs of litigation to remedy the ill effects of the proposed rules, and potential costs of the Surveyors for defending against administrative complaints of non-compliance with the proposed rules. These concerns have not been addressed in the economic impact statement to the proposed rules.


STANDING

36. On March 3, 1845, when Florida became a state, it took title to lands beneath the navigable waters of the state, both in water bodies tidally influenced, and those non-tidal water bodies, found within Florida. Currently these lands, to the extent they have not been conveyed by the sovereign, and some portion of the original lands have not been, are held in trust and administered by the Trustees. This is in furtherance of the responsibility announced in Article II, Section 7 and Article X, Section 11 of the Florida Constitution (1968) and various provisions within Chapter 253, Florida Statutes. The line which demarks the landward extent of these holdings is tee OHWM or OHWL. Therefore, rules, which have as their purpose the discussion and placement of the boundary line, affect the Trustees' substantial interest in their attempt to protect property held in trust for Florida citizens. To that extent, the Trustees have standing to perfect this challenge to the proposed rules.

37. Agrico Chemical Company, International Minerals & Chemical Corporation, and Mobil Mining and Minerals Company, mining companies who operate in Florida, own lands in Polk County, Florida. Such lands are coursed by, or contain, water bodies for which the determination of the ordinary high water line may become relevant in a dispute with Coastal Petroleum Company (but not with the Trustees) involving the geographical extent of a lease granted to Coastal by the State. If the proposed rules are adopted, it may be contended that the proposed rules are relevant to the determination of the ordinary high water line issue in this dispute. Accordingly, Interveners' substantial interests could be affected by the adoption of the proposed rules, and, therefore, Interveners have standing to participate in this proceeding.

38. Walter C. Caldwell and Robert J. Clanton are licensed professional land surveyors in the State of Florida, and as such, all minimum technical standards oil other requirements adopted by the Board of Professional Land Surveyors will regulate them in the practice of their profession, and therefore they have standing.

39. Pat Wilson, Inc., A. Duda & Sons, Inc., Lykes Bros., Inc., The Corporation of the President of the Church of Jesus Christ of Latter Day Saints, Inc., d/b/a Deseret Ranches of Florida, and Santo J. Prete, own lands in Florida that are coursed by, or contain, meandered water bodies, for which ordinary high water line is the real property boundary.

40. Florida Land Council, Inc., is a not for profit, Florida corporation, whose general scope of interests include the preservation of private property owner's rights, and the solving of problems relating to land or land ownership witch minimal government involvement or cost. These problems include the location, description and documentation of properly with water boundaries.

41. Florida Land Council, Inc.'s are individuals who are major Florida land owners, or who own, with others, large tracts of Florida lands, or who are authorized representatives of major Florida land owners.

42. At least 50% of the members of the Florida Land Council, Inc., own, or are authorized to represent land owners who own, property adjacent to meandered, non-tidal water bodies. Florida Land Council, Inc. members own property located adjacent to the Kissimmee River, St. Johns River, Lake Winder and Crooked Lake. Other members own property located adjacent to other non-tidal water bodies which Petitioner may assert are navigable. As such the most recently described parties have a substantial interest in these proceedings and have standing.

43. Game and Fish, in accordance with Chapter 372, Florida Statutes, owns, operates, and manages lands for wildlife conservation and human recreation. The ownership interest involves lands adjacent to navigable water bodies held by the Trustees. The management and operation functions include navigable waters held by the Trustees which border private, as well as public, riparian owners. In these circumstances, Game and Fish has reason to be concerned about the rules under challenge which speak to the boundary between the sovereign and riparian owners, and join with the Trustees in attacking the rules at issue. Substantial interest and standing have been demonstrated.

44. Shoreline Owners and Residents Association (SORA) is a non-profit association duly organized under the laws of Florida.

45. SORA was created for the purpose of representing the interests and protecting the private property rights of its members. SORA is authorized by its Articles of Incorporation to participate in the adjudication or other determination of issues of interest to shoreline property owners and residents in administrative, regulatory, legislative and educational forums where such issues are discussed or determined.

46. A substantial number of SORA's members own property adjacent to non-tidal water bodies which Petitioner may assert are navigable, including the Apalachicola River, the Kissimmee River, and Lake Jackson.

47. The determination of the validity of the Respondent's proposed ordinary high water mark rules falls within SORA's general scope of interest and activity.

48. The relief requested by SORE is appropriate for an association to receive on behalf of its members. The substantial interests of the members are affected by this case and the members have standing through SORA.

49. The Florida Forestry Association is a trade association that represents Florida's forestry community. There are nearly 2,000 members in the Association. Theme members consist of major timber companies and small landowners.

50. There are 15 million acres of commercial land in the state. The 14 major timber companies own or manage over four and a half million acres of land, in addition to hundreds of small landowners who own various parcels anywhere from 10 acres to 80,000 acres in size.

51. In addition, there are other members in the association such as consultants, equipment suppliers, or loggers, who may have non-ownership interest in, or involvement on, other lands.

52. Frequently, there are navigable water bodies interspersing lands in which the Association is interested. Properties close to these water bodies, especially in the northern part of the state, constitute manageable forest lands which the members have either owned, or directly managed, for 100 years-plus.

53. As a consequence, the substantial interest of this Association is at issue, and the Association has standing to protect the position of its members.

54. Florida Citrus Mutual (Mutual), includes members who own Florida lands coursed by, or which water bodies contain, for which the determination of the ordinary high water line (OHWL) may become relevant. As owners of much lands, any methodologies, standards, or criteria used to establish OHWL, will substantially affect these property interests. Accordingly, Mutual's substantial interest could be affected by the adoption, or the finding of invalidity, of the proposed rule. Therefore, Mutual, has standing to participate in this proceeding.

55. Florida Sugar Cane League, and Florida Fruit and Vegetable Association include members who own Florida lands that are coursed by, or contain, water bodies, for which the determination of the OHWL may become relevant. As such, any methodologies, standards, or criteria used to establish OHWL will substantially affect the aforestated property interests. Accordingly, their substantial interests could be affected by the adoption, or the finding of invalidity of the proposed rule, and therefore, they have standing to participate in this proceeding.

56. The Florida Farm Bureau Federation is a private, non-profit, cooperative membership association chartered in Florida in 1941. It currently has 70,000 members, many of whom are landowners or lessees of lands engaged in agricultural operations, who potentially would be adversely impacted by the outcome of these proceedings. Consequently, it has shown standing to represent the interest of its members.

57. Neal Land and Timber Company owns land along the Apalachicola River, in the non-tidal area, approximately two-miles in length. The substantial interest of the company is affected by the rule and it has standing.

58. Dr. David Finlay Corbin is the part owner of approximately 2,402 acres of hardwood swampland in various tracts along the Apalachicola River, in Calhoun County, Florida. At this location, the Apalachicola River is a navigable, non-tidal water body.

59. The deed to Dr. Corbin's properties provides, in pertinent part, that his lands extend to, and meander along, the western bank of the Apalachicola River. Dr. Corbin has standing to participate as a party intervener by virtue of the fact that his substantial interest will be affected by the outcome of this proceeding.

60. Audubon's purposes include the preservation of bird species and wildlife, and the preservation of lands and waters in their natural state to support avian and other wildlife. Audubon has a direct, substantial interest in the ability of its members to use and enjoy state lands and waters.

61. Audubon owns property on Lake Butler in Florida. The deed to the property describes the property boundary in relation to the Waters of Lake Butler.

62. Lake Butler was meandered in a survey by the United States Deputy Surveyor, at about the time Florida was admitted to the Union, in 1845.

63. Many recreational boaters currently use Lake Butler. Audubon's property on Lake Butler, during part of the year, has many wood storks and other wildlife on it. Wood storks are an endangered species.

64. Audubon has standing to participate in the challenge to the proposed rules.

65. Drake Ranch Partnership, includes members who own lands in Florida that are coursed by or contain water bodies for which the determination of the OWHL may become relevant. As owners of such lands any methodologies, standards or criteria used to establish OHWL will substantially affect these property interests. Accordingly, its substantial interest could be affected by the rule adoption or a finding of its invalidity. Therefore, Drake Ranch has standing to participate in this proceeding.

66. Florida Land Title Association is a trade association that owns no land. Its members are insurers of titles to land authorized by the Insurance Commissioner of this state to insure titles.

67. In the past decades, the Association has insured titles to hundreds of thousands of acres of land throughout the State of Florida, some of which borders on bodies of water. Being in the business of insuring titles to property, its members could be adversely affected by the decision in this case.

68. In the past the Association's members have relied on case law and existing methods of determining the OHWL when issuing title insurance policies.

69. This is sufficient connection to this proceeding to demonstrate standing.

70. Florida Cattleman's Association is an unincorporated agricultural trade association with approximately 4,600 members. Those members, large or small, graze cattle on more than 9 million acres in the State of Florida. Many of those have water bodies on, adjacent to, or flowing through them. The Association's members are substantially affected by the outcome of this case. Under these circumstances the Association has standing to participate in this proceeding.


CONCLUSIONS OF LAW

AUTHORITY TO CONDUCT HEARING

71. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this dispute. See Section 120.54, Florida Statutes.


STANDING

72. For reasons set forth in the foregoing findings of fact every party which was an original participant in this case or which was granted leave to intervene has proven its standing. See generally, Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978); State Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979); Professional Fire Fighters of Florida v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981); Florida Medical Association, Inc. v. Department of Professional Regulation, 426 So.2d 1112 (Fla. 1st DCA 1983) and Montgomery v. Department of Health and Rehabilitative Services, 468 So.2d 1014 (Fla. 1st DCA 1985). This decision is based in part on the doctrine of associational standing, enunciated in Florida Home Builders Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982) and the right to intervene in a proceeding to support proposed rules as an intervener, recognized in Florida Electric Power Coordinating Group, Inc. v. County of Manatee, et al, 417 So.2d 752 (Fla. 1st DCA 1982).

73. Similarly, the Trustees are entitled to participate in this proceeding through the Office of the Attorney General. No statute or rule bars the Trustees from being represented by the Attorney General, who customarily acts as the legal representative for the state. The argument by the Surveyors concerning the limits of the general delegation from the Trustees to the Executive Director of the Department of Natural Resources to bring a suit in the name of the Department after consultation with the Attorney General, except where the matter is controversial or an issue of significant public interest does not promote dismissal of this petition. Assuming that the delegation has any relationship to actions of the Trustees as opposed to those of the Department, the word suit is read to encompass administrative litigation. Furthermore, notwithstanding the fact that the present litigation may be perceived as controversial, it is for the other Trustees, not the Surveyors Board, to give expression to opposition to the decision by the Attorney General to bring this rule challenge.


BURDEN OF PROOF AND LIMITS ON

AUTHORITY TO ENACT RULES

74. The burden of proof in this case resides with the challengers, and this proof must be preponderant. See Agrico Chemical Company v. State, 365 So.2d 759 (Fla. 1st DCA 1978) and Island Harbor Beach Club, Ltd. v. Department of Natural Resources, 495 So.2d 209 (Fla. 1st DCA 1986), review denied 503 So.2d 327.

75. In making their case the challengers must demonstrate that the Surveyors have invalidly exercised the authority delegated to the Surveyors through legislation which empowers the Surveyors to carry out their regulatory responsibilities. The bases for challenge are defined at Section 120.52(8), Florida Statutes as:

a) The agency has materially failed to follow the applicable rulemaking procedures set forth in s.120.54;

b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s.120.54(7); 

c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s.120.54(7)

d) The rule is vague, fails to establish adequate standards for agency decision, or vests unbridled discretion in the agency or

e) The rule is arbitrary or capricious.

76. These criteria assume that the Surveyors, as a board, were created by statute, not by a specific constitutional provision. The powers reposed in the Surveyors are merely those powers granted by statute. They possess no inherent authority to promulgate rules to achieve purposes which Board members find important. See Gardinier, Inc. v. Florida Department of Pollution Control, 300 So.2d 75 (Fla. 1974); Fiat Motors of North America, Inc. v. Calvin, 356 So.2d 908 (Fla. 1st DCA 1978); State v. Falls Chase Special Tax District, 424 So.2d 787 (Fla. 1st DCA) cert. denied., 436 So.2d 98 (Fla. 1983); Department of Administration, Division of Retirement v. Albanese, 445 So.2d 639 (Fla. 1st DCA 1984) and Grove Isle, Ltd. v. State of Florida, Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984).


STATED AUTHORITY TO PROMULGATE RULES:  Distinction between Technical Standards and Legal Principles

77. The sole statutory authority cited by the Surveyors when they published the rules under challenge was Section 472.027, Florida Statutes, which says:

The Board shall adopt rules relating to the practice of land surveying which establish minimum technical standards to assure the achievement of no less than minimum degrees of accuracy, completeness, and quality in order to assure adequate and defensible real property boundary locations and other pertinent information provided by land surveyors under the authority of ss.472.001-472.039.

78. The rules which have been challenged are for the most part, an attempt to establish legal principles governing the process for determining the OHWM. For the most part they do not establish minimum technical standards, i.e., provide a "how to" manual for surveyors in the conventional sense. Examples of minimum technical standards may be found in proposed Rules 21HH-6.003, 6.004, 6.005 and 6.006. By contrast, when describing the OHWM survey the Surveyors paraphrase, create and delete legal principles based upon their analysis of decisional law from Florida, the federal system and from other states. They express their own ideas about what the legal principles should be in order to assist licensees in the practice of surveying. The Surveyors have no mandate for these activities under the rubric of establishing minimum technical standards. They may not create law concerning the identification of OHWM.

79. The caveat found at 21HH-6.0052(1), "...It is the intent that nothing in this rule is in conflict with Federal and Florida law and existing principles of accepted land surveying standards...", does not save the rules. People will rely upon OHWM surveys conducted under the instructions found in the proposed rules concerning the attempt to announce legal principles for locating OHWM. In addition, the surveyors can be held accountable under the disciplinary provisions of Chapter 472, Florida Statutes, if they failed to follow the proposed rules.

80. There is no statutory guidance in any of the legislative enactments the Surveyors may rely upon to explain how to locate an OHWM.

81. To the extent that the proposed rules are inconsistent with the Florida decisional law the Trustees and riparian owners would be forced to seek redress in court to remedy any misapprehension concerning the true boundary between the sovereign and the riparian owner caused by the application of the proposed rules. This assumes, however, that the Trustees know of each OHWM survey, which is a matter of chance. There is no legal obligation to advise the Trustees whenever an OHWM survey is commissioned and completed. To monitor OHWM surveying and the potential activities pursuant to the survey results in areas where the Trustees might assert ownership claims is extremely onerous, if not impossible. In summary, establishing legal principles under the guise of technical standards not only affects practicing surveyors, but property owners as well, and the result is generally adverse to the Trustees.

82. Because the challenged rules are principally a pronouncement of the Surveyors' choice among legal principles for finding the OHWM and not minimum technical standards, they are arguably subject to invalidation even if other statutory authority exists which would allow the establishment of those legal principles, for no authority other than Section 427.027, Florida Statutes, was stated when the proposed Rules were published. See Capeletti Brothers, Inc. v. DOT, 49 So.2d 855 (Fla. 1st DCA 1986) [CAPELETTI]. CAPELETTI invalidated a Department of Transportation rule for failure to state statutory authority. A similar outcome could be anticipated where the challenged rules fail to describe any authority for the Surveyors to establish substantive legal principles for finding the OHWM. More significantly, no other statute grants the Surveyors authority to establish substantive legal principles for locating OHWM, even as guidance to the licensees, assuming the Surveyors could overcome the holding in CAPELETTI.

83. Section 427.005(4)(a), Florida Statutes, defines the practice of land surveying to include:

"among other things, any professional service or work, the adequate performance of which involves the application of special knowledge of the principles of mathematics, the related physical and applied sciences, and the relevant requirements of law for adequate evidence of the act of measuring, locating, establishing or reestablishing lines, angles, elevations, natural and manmade features.. on the earth, the surface and immediate surface... on the beds or surface of bodies of water..."

Also, the Surveyors generally may promulgate rules necessary to carry out their duties and exercise their authority, in a manner not inconsistent with law. See Section 472.008, Florida Statutes. While surveyors in Florida are expected to be knowledgeable about legal principles derived from court opinions, their board may not undertake to create substantive legal principles concerning the location of an OHWM. To do so is to act outside the Surveyor's statutory authority and inconsistent with law. What the Surveyors may do for the benefit of its licensees is to precisely codify, restate, or recapitulate, the decisional law of Florida. To the extent that the law in Florida is less comprehensive than that desired by the Surveyors, is unfavorable to perceptions held by the Surveyors, is unclear or has correctly deviated from federal case decisions, Florida law cannot be modified by creation, mischaracterization, addition, omission, or substitution of legal principles by Board Rule. This is precisely what is done in the proposed Rules.


CASE LAW AND THE OHWM

84. When Florida was admitted to the Union on March 3, 1845, its admission was on "equal footing" with the original states which formed the Union. This doctrine is as announced in Pollard's Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565 (1845); Barney v. Keokuk, 94 U.S. 324, 24 L.Ed. 224 (1877) and Shivley v. Bowlby, 152 U.S. 1, 38 L.Ed. 331, 14 S.Ct. 48 (1894). The GERBING court recognized this doctrine in Florida. Under GERBING "equal footing" means that at statehood Florida gained from the federal government all rights and powers related to property and sovereignty the original states possessed, except any rights or authority withheld by the act which admitted Florida to the Union. Those exceptions have no influence in this case. Through statehood Florida obtained the right to own and hold the lands under navigable waters within Florida, subject to federal navigational easements, and federal control over navigation which is derived from the U.S. Constitution. This land has been held in trust by Florida since that time for purposes of navigation and other uses. The Trustees are presently charged with maintaining the trust. See Article X, Section 11, Florida Constitution and Chapter 253, Florida Statutes.

85. In examining the implications of receipt by Florida of navigable waters, the meaning of "navigability" is a question of federal law, to be determined factually as of the time Florida became a state. See United States v. State of Oregon, 295 U.S. 1, 55 S.Ct. 610 (1935). The specific definition of navigability in the federal law for freshwater bodies is set out in DANIEL BALL and carried forth in Broward v. Nabry, 50 So. 826 (Fla. 1909).

86. The initial boundary line between the riparian owner's property and the navigable waters Florida obtained at the time of statehood is fixed by federal law; however, the title to the beds in those navigable waters was absolutely vested with the state and is not subject to later defeasance by operation of any doctrine of federal common law. From that foment forward, state, not federal law, controlled the resolution of disputes over ownership of land which had passed under the "equal footing" doctrine and riparian lands adjoining the lands thus conveyed. See Oregon ex rel. State Land Board v. Corvallis Sand and Gravel Company, 429 U.S. 363, 50 L.Ed. 2d 550, 97 S.Ct. 582 (1977) and Phillips Petroleum v. Mississippi, 484 U.S. ___ , 98 L.Ed. 277, 108 St.Ct. ___ (1988).

87. As a consequence, in all aspects of OHWM determinations the Surveyors', having no express statutory opportunity to establish rules in substance concerning this process, are limited to a restatement of applicable law. Further, it is the Florida law which pertains and may be restated in the proposed rules. The exception is that federal law on navigability determinations may be used in the restatement related to the point in time where Florida became a state. Since the OHWM is ambulatory in its nature, the fact that its initial location at statehood under federal law may remain constant over time is more a theoretical possibility than a probability given the facts presented in this case. In any event, the Florida law would govern the outcome in any dispute between the sovereign and a riparian owner beyond statehood and that is the crucial consideration in examining the proposed rules.

88. Under the circumstances set forth in the, facts and in accordance with the legal discussion, some of the proposed rules are invalid. Effectively, those provisions, as described in the facts: fail to accurately portray Florida law, as opposed to law in other jurisdictions; are arbitrary in their terms; and in some instances fail to adhere to the authority established in other jurisdictions or discussions in publications claimed as a basis for rule enactment. The Surveyors also create their own statement of law on the subject independent of any other authority, all in the absence of express authority to establish a set of legal principles for finding the OHWM in a survey directed to that end. The provisions are invalid under Section 120.52(8), Florida Statutes, because:

(b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

(c) The rule enlarges, modifies or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

(d) The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; and

(e) The rule is arbitrary or capricious.

89. The provisions in the proposed rules which are declared invalid are proposed Rule 21HH-6.002(3), (4), (7), (11), (13), (16), (17), (19) after the words, "Swamp and Overflowed Lands: shall mean lands that lie on the landward side of the ordinary high water line..." and (20) and proposed Rule 21HH-6.0052(2)(a); (2)(i)1 through 5; (2)(j)1 after the words, "swamp or overflowed lands..."; (2)(j)3 and (2)(k)


ECONOMIC IMPACT

90. For reasons as described in the fact finding, the provisions within the proposed rules which have been held invalid did not have an adequate analysis of their economic impact. See Section 120.54(2)(b) and (d), Florida Statutes and Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937 (Fla. 1st DCA 1983). They are invalid for this reason, independent of the other infirmities expressed in this order.

91. The other challenges to the proposed Rules have no merit, and are dismissed.


EVIDENTIAL RULINGS AND RELATED MATTERS

92. At the time of hearing ruling was reserved on the admission of certain exhibits. The parties were given leave to submit written argument on the issue of their admissibility. Having considered these matters, Trustees' exhibits, (identified in the record as Petitioners' exhibits), numbers 24, 70 and 81A are admitted. In addition, the written information associated with the photographs, Petitioners' exhibits numbers 36, 38 and 40 is admitted. Petitioners' exhibits 66, 143, 165 (Houston deposition September 15), 166 (Houston deposition October 30), 167 (Niece deposition) and exhibit 4 to Petitioner's exhibit 170 (Haney deposition), are denied admission. Further, exhibit 1 (Sanders deposition) offered by Florida Land Council and the other clients represented by Messrs. Blain and Nanson, is denied admission.

93. Florida Citrus Mutual filed an index with attachments, described as supporting the rules under challenge, on January 27, 1989. This material was filed without permission and much beyond the time for submission of exhibits, or for that matter submission of proposed final orders and associated memoranda. All these items post-date the rulemaking sessions. The admission of this material is opposed by the Trustees, who filed a motion to strike. Having examined the material, it is denied admission as part of the record. It was filed late and is irrelevant.

94. Florida Land Council and the other clients represented by Messrs. Blain and Manson filed an index and written remarks made to the Surveyors when the rules under scrutiny in this proceeding were promulgated. The filing date was January 23, 1989. As with Florida Citrus Mutual this filing was untimely, although the information on its face was relevant. It has been met with a motion to strike filed by the Trustees. After consideration, the filing of the remarks is denied admission as part of the record.


CORRECTIONS TO TRANSCRIPT

95. On December 15, 1988, counsel for the Trustees wrote to the court reporter who had reported and transcribed these proceedings and enclosed a list of suggested corrections to the transcript. After checking the stenotype notes the reporter agreed to the suggested changes on December 16, 1988. Copies of these items of correspondence were filed in this case and with such filing the changes are accepted.

96. The Surveyors have also moved to correct the transcript concerning the depositions of Houston, Petitioners' exhibits 165 and 166 and Niece, Petitioners' exhibit 167 as well as admission of any exhibits attached to the Haney deposition, Petitioners' exhibit 170 and the Simpson deposition, Petitioners' exhibit 168. The Surveyors maintain that the transcript is in error in showing that these items had been admitted at the conclusion of the hearing. By response, the Trustees as sponsors of these exhibits take no issue with this suggestion. Rulings on the admission of these exhibits have already been made in an earlier portion of this order.

97. The Trustees also ask that the record be, clarified concerning reference at page 1082 in the transcript to show that Petitioners' exhibit 80W is the actual remark, not Trustees exhibit 80K. This motion states that the Surveyors do not oppose and no other party has come forth with an objection. The motion to correct the transcript at page 1082 is granted.

DONE and ORDERED this 17th day of April 1989, in Tallahassee, Leon County, Florida.

 

_________________________________

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of April, 1989.

 


ENDNOTE

1/ Any further reference to a case beyond the initial citation shall be abbreviated and in boldface print.


APPENDIX

The following is a discussion of proposed facts offered by the various parties in this case.

Trustees Facts

Paragraphs 1 through 67 are not necessary to the resolution of the dispute.

Paragraphs 68 through 78 are subordinate to facts found.

Paragraphs 79 through 85 are not to the resolution of the dispute.

Paragraph 86 is subordinate to facts found.

Paragraphs 87 and 88 are not necessary to the resolution of the dispute.

Paragraph 89 is subordinate to facts found.

Paragraphs 90 and 91 are not necessary to the resolution of the dispute.

Paragraph 92 is subordinate to facts found.

Paragraphs 93 through 106 are not necessary to resolution of the dispute.

Paragraph 107 is subordinate to facts found.

Paragraphs 108 through 110 are not necessary to the resolution of the dispute.

Paragraphs 111 and 112 are subordinate to facts found.

Paragraph 113 is not necessary to the resolution of the dispute.

Paragraphs 114 and 115 are subordinate to facts found.

Paragraphs 116 through 125 are not necessary to the resolution of the dispute.

Paragraphs 126 through 129 are subordinates to facts found.

Paragraphs 130 through 144 are not necessary to the resolution of the dispute.

Paragraph 145 is subordinate to facts found.

Paragraphs 146 through 157 are not necessary to the resolution of the dispute.

Paragraphs 158 and 159 are subordinate to facts found.

Paragraphs 160 through 165 are not necessary to the resolution of the dispute.

Paragraph 166 is subordinate to facts found.

Paragraphs 167 through 169 are not necessary to the resolution of the dispute.

Surveyor's Facts

Paragraphs 1 through 3 are not necessary it 0 the resolution of the dispute.

Paragraph 4 is subordinate to facts found.

Paragraphs 5 and 6 are not necessary to the resolution of the dispute.

Paragraphs 7 through 13 are subordinate to facts found.

The first sentence to paragraph 14 is subordinate to facts found. The remaining sentences within that paragraph and paragraph 15 are not necessary to the resolution of the dispute.

Paragraphs 16 through 18 are subordinate to facts found.

Paragraph 19 is subordinate to facts found except in the instance where it is suggested that the process of rule adoption was reasonable. That suggestion is rejected.

Paragraphs 20 through 23 are not necessary to the resolution of the dispute.

Paragraph 24 is correct in its suggestion that "wind fall" may not be the word to describe the possibility of gains by private owners by the use of the proposed rules; however, the proposed rules by their effect may promote advantages to the private owners.

Paragraphs 25 through 31 are necessary to the resolution of the dispute.

Paragraph 32 is subordinate to facts found.

In discussing paragraph 33, the evidence does show that Florida surveyors have deferred to some of the suggestions set forth in the proposed rules in conducting their work. To the extent they have taken on the statements in their entirety, they have acted inconsistently with Florida law. The idea of the exercise of independent judgment in locating and surveying ordinary high water line, is consistent with the facts found in this final order.

Paragraphs 34 through 41 are not necessary to the resolution of the dispute.

By paragraph 42, whether or not the Surveyors have historically made determinations through the employment of historical evidence concerning navigability may be open to debate. Nonetheless, the proposed rules limit the use of historical information as a basis for determination of OHWM and are rejected for that reason, among others.

Paragraph 43, while it is agreed that the proposed rules may not require the OHWM to be necessarily placed waterward of cypress trees or any other type of tree ore terrestrial vegetation, that is a result that could be achieved through the use of this inaccurate statement of Florida law.

Paragraph 44 is subordinate to facts found.

Paragraph 45 is contrary to facts found.

Paragraph 46 in the suggestion that OHWM survey is common for surveyors is accepted. It is not necessary to make findings concerning the cost of these surveys or the additional costs that might be made known if it were necessary on all occasions to engage other disciplines in the process of an OHWM survey.

Paragraphs 47 and 48 are not necessary to the resolution of the dispute.

Paragraph 49 is subordinate to facts found.

Paragraphs 50 through 53 are not necessary to the resolution of the dispute, with the exception of the treatment of certain exhibits which have been spoken to in a ruling in the Conclusions of Law.

Paragraph 54 is not necessary to the resolution of the dispute.

Paragraphs 55 and 56 are contrary to facts found.

Paragraph 57 is subordinate to facts found.

Paragraphs 58 through 60 are contrary to facts found.

Paragraph 61 is not necessary to the resolution of the dispute.

Agrico Chemical Company, International Minerals and Chemical Company and Mobil Mining and Minerals Company Facts

Paragraphs 1 through 3 are subordinate to facts found.

Florida Land Council, Inc., et al Facts

(parties represented by Messrs. Blain and Manson)

Paragraphs IA, 1 through 5 are subordinate to facts found.

Paragraph IB facts are dealt with in discussing the Surveyors facts.

Game and Fish Facts

Paragraph 1 is subordinate to facts found.

Paragraphs 1 through 24 are more detailed than are necessary in order to describe the standing of this intervener. The elements of these proposed facts necessary to describe the standing have been incorporated into the Final Order.

SORA Facts

Paragraphs 1 through 5 are subordinate to facts found.

Florida Sugar Cane League and Florida Fruit and Vegetable Association Facts

Paragraphs 1 and 3 are not necessary to the resolution to the dispute.

Paragraph 4 is subordinate to facts found.

Audubon Facts

Paragraph 1 through 3 are subordinate to facts found.

Paragraphs 4 and 5 are not necessary to the resolution of the dispute.

Paragraph 6 is subordinate to facts found.

Paragraphs 7 and 8 are not necessary to the resolution of the dispute.

Paragraph 9 is subordinate to facts found.

Paragraph 10 is not necessary to the resolution of the dispute.

Paragraphs 11 and 12 are subordinate to facts found.

Drake Ranch Partnership Facts

Paragraphs 1 and 2 are subordinate to facts found.

Florida Land Title Association Facts

Paragraphs 1 and 2 are subordinate to facts found.


COPIES FURNISHED:

The Honorable Robert A. Butterworth

Attorney General

The Capitol

Tallahassee, Florida 32399-1050

David G. Guest, Esquire

Jonathan A. Glogau, Esquire

Ronald G. Stowers, Esquire

Assistant Attorneys General

Department of Legal Affairs

111-36 South Magnolia Drive

Tallahassee, Florida 32301

Chris H. Bentley, Esquire

F. Marshall Deterding, Esquire

Rose, Sundstrom and Bentley

2548 Blairstone Pines Drive

Tallahassee, Florida 32301

Ross Burnaman, Esquire

Assistant General Counsel

Department of Natural Resources

3900 Commonwealth Boulevard

Tallahassee, Florida 32301

Robert R. Feagin, III, Esquire

Thomas J. Jones, Esquire

Lawrence E. Sellers, Jr., Esquire

Holland & Knight

Post Office Drawer 810

Tallahassee, Florida 32302

L. M. Buddy Blain, Esquire

Douglas P. Manson, Esquire

Blain & Cone

202 Madison Street

Tampa, Florida 33602

James V. Antista, Esquire

Kenneth McLaughlin, Esquire

Florida Game and Fresh Water

Fish Commission

620 South Meridian Street

Tallahassee, Florida 32399-1600

Kathleen E. Moore, Esquire

Hopping, Boyd, Green & Sams

215 South Monroe Street

Tallahassee, Florida 32301

John E. Norris, Esquire

Norris & Koberlein

Community National Bank Building

201 N. Marion Street, Suite 301

Post Office Drawer 2349

Lake City, Florida 32056-2349

Joseph J. Gleason, Esquire

Florida Citrus Mutual

Post Office Box 89

Lakeland, Florida 33802

Philip S. Parsons, Esquire

Cindy L. Bartin, Esquire

Landers & Parsons

Post Office Box 271

Tallahassee, Florida 32302

Scottie J. Butler, Esquire

General Counsel

Florida Farm Bureau Federation

Post Office Box 730

Gainesville, Florida 32602

J. Patrick Floyd, Esquire

408 Long Avenue

Post Office Drawer 950

Port St. Joe, Florida 32456

Fendrick Tucker, Esquire

Patrick Phelan, Esquire

Huey, Guilday, Kuersteiner

& Tucker

Post Office Box 1794

Tallahassee, Florida 32302

David Schwartz, Esquire

Charles Lee

Florida Audubon Society

1101 Audubon Way

Maitland, Florida 32751

Steve Lewis, Esquire

Janet E. Bowman, Esquire

Messer, Vickers, Caparello,

French & Madsen

Post Office Box 1876

Tallahassee, Florida 32302

Peter Guarisco, Esquire

2003 Apalachee Parkway

Tallahassee, Florida 32301

Marty Smith, Esguire

21 Northeast First Avenue

Post Office Box 1148

Ocala, Florida 32678

Allen R. Smith, Jr.

Executive Director

Board of Professional Land Surveyors

130 North Monroe Street

Tallahassee, Florida 32399

Liz Cloud, Chief

Bureau of Administrative Code

1802 The Capitol

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director

Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399-1300


A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.


=================================================================

DISTRICT COURT OPINION

=================================================================

CASE NOS. 89-1293, 89-1294

DOAH CASE NO. 88-4710RP

THE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA and FLORIDA AUDUBON SOCIETY, Appellants, 

vs.

BOARD OF PROFESSIONAL LAND SURVEYORS, DEPARTMENT OF PROFESSIONAL REGULATION OF THE STATE OF FLORIDA, et al. Appellees.

 

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

 

Opinion filed September 13, 1990.

Appeals from an order of the Division of Administrative Hearings of the State of Florida.

Robert A. Butterworth, Attorney General; David G. Guest, Jonathan A. Clogau, and Ronald G. Stowers, Assistant Attorneys General; Kenneth Plante, General Counsel, Department of Natural Resources, for appellant Board of Trustees; David C. Sonartz and Joseph Z. Fleming, for appellant Florida Audubon Society.

Diane D. Tremor and Chris H. Bentley, of Rose, Sundstrom & Bentley, for appellee/cross-appellant Board of Professional Land Surveyors; Michael L. Rosen and Julian Clarkson, of Holland & Knight, for appellees/cross-appellants Agrico Chemical Co., Florida Land Council, Inc., Florida Forestry Association, Inc., Florida Land Title Association, Inc., Florida Citrus Mutual, Florida Farm Bureau Federation, Florida Cattlemen's Association, Florida Sugar Cane League and Florida Fruit & Vegetable Association; Vance W. Kidder, of Spriggs & Kidder, for appellee/cross-appellant Florida Cattlemen's Association; G. Steven Pfeiffer, for amicus curiae 1000 Friends of Florida.

WENTWORTH, J.

Before us on appeal is a final order entered by he Division of Administrative Hearings (DOAH) upon an administrative rule challenge to certain rules proposed by the Board of Professional Land Surveyors (Board of Surveyors) which purport to delineate the way in which the ordinary high water line or mark (OHWL or OHWM) of certain bodies of water in this state are to be established by survey. According to the parties, the OHWL of a given body of water may constitute the demarcation between privately-owned uplands and sovereign submerged lands, and because of an abundance in this state of flat and low-lying lands which border on navigable bodies of water, there is a need to establish a uniform method for determining an OHWL.

Subsequent to a rule challenge hearing held pursuant to section 120.54(4), Florida Statutes, the hearing officer entered his final order, finding most of the contested rules invalid but concluding that certain specified rules constituted a valid exercise of the Board of Surveyors' delegated legislative authority. The Board of Trustees of the Internal Improvement Trust Fund (Trustees) seeks review of the final order insofar as it finds valid any of the challenged rules, and the Board of Surveyors cross-appeals the hearing officer's specific determinations of invalidity. We affirm the hearing officer to the extent that he invalidated certain of the contested rules, but reverse his determination that certain other of the contested provisions were valid.

The Board of Surveyors published a notice of rulemaking in September 1988, and according to this notice the proposed rules were intended, inter alia, to "clarify and refine provisions in the existing rule" relating to technical standards for land surveying, and to "add minimum technical standards for Ordinary High Water Line (OHWL) surveys." After notice was provided, the attorney general initiated a challenge to certain of the proposed rules on behalf of the Board of Trustees, the body authorized by section 253.04(1), Florida Statutes, to protect and conserve state lands. Several other parties eventually joined one side or the other in the rule challenge proceeding. As an initial matter, we agree that the Trustees had a substantial interest in the outcome of the proceeding, and find no error in allowing the attorney general to petition for rule challenge on their behalf in the absence of any opposition from the Trustees.

After conducting extensive hearings and considering the proposed final orders and associated memoranda of the respective parties, the hearing officer issued his final order in April 1989. The hearing officer found invalid the following contested provisions in the proposed rules: 21HH-6.002(3), 6.002(4), 6.002(7), 6.002(11), 6.002(13), 6.002(16), 6.002(17), that part of 6.002(18)(i) which incorporates other invalid rules, 6.002(19), 6.002(20), and 21HH-6.0052(2)(a), 6.0052(2)(i)(except for the preamble, which was found to be valid), part of 6.052(2)(j)(1), 6.0052(2)(j)(3), and 6.0052(2)(k). The final order indicates that the hearing officer's determinations of invalidity were based primarily on his conclusion that the proposed rules were a "pronouncement of the Surveyors' choice among legal principles for finding the OWHM," and that they did not precisely restate or embody the case law of Florida relating to the scope of sovereign submerged land ownership and the concept of the ordinary high water line. In particular part, the final order reads:

The rules which have been challenged are, for the most part, an attempt to establish legal principles governing the process for determining the OHWM... [W]hen describing the OHWM survey the Surveyors paraphrase, create and delete legal principles based on their analysis of decisional law from Florida, the federal system, and from other states.  They express their own ideas about what the legal principles should be in order to assist licensees in the practice of surveying.

In the same order, the hearing officer found valid the following contested provisions: 21HH-6.002(1), 6.002(2), 6.002(8), 6.002(12), 6.002(14), 21HH-6.005(2)(b)-(h), part of 6.0052(2)(j)(1), 6.0052(2)(j)(2), and 6.0052(2)(j)(4). These provisions were found either to restate accurately the relevant decisional law or to constitute "minimum technical standards."

On appeal, the Trustees argue that all of the contested rules are invalid because they do not accurately codify the extant decisional law relating to the establishment of an OHWL. The Board of Surveyors asserts that all of the rules merely delineate certain technical standards to be employed in an OHWL survey, and that they therefore fall within the scope of the Board of Surveyors' grant of legislative authority to promulgate such technical standards.

We find it unnecessary to decide whether the proposed rules accurately restate the decisional law on sovereign submerged land ownership because we find that the contested rules, with certain exceptions, constitute an invalid exercise of the Board of Surveyors' delegated legislative authority. All rulemaking authority delegated to administrative agencies is of course limited by the statute conferring the power. Department of Professional Regulation v. Florida Society of Professional Land Surveyors, 475 So.2d 939, 942 (Fla. 1st DCA 1985). According to section 120.52, Florida Statutes, a proposed rule is an invalid exercise of delegated legislative authority if it "goes beyond the powers, functions, and duties delegated by the Legislature." If the agency has exceeded its grant of rulemaking authority, or if the rule enlarges, modifies, or contravenes the specific provisions of law implemented, such infractions are among those requiring a conclusion that the proposed rule is an invalid exercise of delegated legislative authority. s. 120.52, F.S.

The statute upon which the Board of Surveyors relied for its rulemaking authority is section 472.027, Florida Statutes. This section provides:

Minimum technical standards for land surveying. The Board shall adapt rules relating to the practice of land surveying which establish minimum technical standards to assure the achievement of no less than minimum degrees of accuracy, completeness, and quality in order to assure adequate and defensible real property boundary locations bind other pertinent information provided by land surveyors under the authority of ss. 472.001- 472.039. (e.s.)

The "practice of land surveying" is defined by section 472.005(4)(a), Florida Statutes as follows:

Any professional service or work, the adequate performance of which involves the application of special knowledge of the principles of mathematics, the related physical and applied sciences, and the relevant requirements of law for adequate evidence of the act of measuring natural and manmade features... for the purpose of determining or establishing the facts of size, shape, topography... and orientation of improved or unimproved real property....

Clearly, the only authority granted to the Board of Surveyors under the above statutes is to promulgate rules which provide "minimum technical standards" to ensure that surveys are accurately measured, complete, and of sufficient quality in those respects to provide legally defensible real property boundaries. Although section 472.027, Florida Statutes, may authorize a rule directing a surveyor to measure the placement or reach of water and to record that location and the time that the measurement was taken, we do not read that statute to provide a predicate for the surveyors to define any such fixed point as the ordinary high water line or to circumscribe thereby the legal consequences that flow from the fixing of such a point. The determination of rights of parties to a riparian boundary dispute is instead a matter subject ultimately to judicial resolution under all applicable law.

Although an executive agency may, in drafting rules, properly restate or interpret pertinent case law, that agency activity like all others is constrained by the applicable legislative grant of functional authority. Even assuming there may be a need for administrative promulgation of such rules as those here in question, we conclude that the challenged rules do not fall within the scope of the grant of authority to the Board of Surveyors. 1/ In so finding, we need not reach the issue of whether the rules comport precisely with decisional law on sovereign submerged land ownership and the ordinary high water line. Therefore, to the extent that the final order invalidates specified portions of the proposed rules, we affirm. In addition we find the following proposed rules constitute an invalid exercise of delegated legislative authority: Rules 21HH-6.002(1), 6.002(2), 6.002(8), 6.002(12), 6.002(14), 21HH-6.0052(2)(h), the preamble to 6.0052(2)(i), and all of 6.0052(2)(j). To the extent that the order is inconsistent with this determination, we reverse.

With respect to appellant's dispute as to dicta in the order invalidating Rule 21HH-6.0052(2)(j)3, we find the rule, like the others challenged here, represents an action by the Board which exceeds its grant of rulemaking authority, and affirm its invalidation on that basis. We need not, accordingly, reach the question of whether the hearing officer applied an improper "tidelands rule" in his analysis, nor the question of which rule is applicable in determining whether a non-navigable arm of a lake is a part of the navigable water body for sovereign lands purposes.

Affirmed in part, reversed in part, and remanded for further consistent proceedings.

SMITH and JOANOS, JJ., CONCUR.


ENDNOTE

1/ We acknowledge that agencies' functions in specific instances will not be entirely separate and discrete as indicated by Department of Professional Regulation, Board of Professional Engineers v. Florida Society of Professional Land Surveyors, 475 So.2d 939, 944 (Fla. 1st DCA 1985), where this court noted that it could not there discern "any overt legislative intend to create an absolute wall or barrier" between the two professions so as to preclude the Board of Professional Engineers from promulgating a rule defining engineering surveys, which included certain acts which could have been described as land surveying as well. This court concluded that specific rulemaking authority to approve courses of study relating to engineering surveys authorized the board's definitional rule.

In the case at bar, the enabling legislation authorizes rules by which the boundary indicators on a parcel of riparian property can be recorded, with no discernible explicit or implicit necessity for definition of the legal concept of the ordinary high water line of a body of water under Florida law.


MANDATE From DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

Case No. 89-1293

Your Case No. 88-4710RP

To the Honorable Charles C. Adams, Hearing Officer WHEREAS, in that certain cause filed in this Court styled:

THE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA 

v. 

BOARD OF PROFESSIONAL LAND SURVEYORS, DEPARTMENT OF PROFESSIONAL REGULATION OF THE STATE OF FLORIDA

and

AGRICO CHEMICAL COMPANY, INTERNATIONAL MINERALS, et al

The attached opinion was rendered on September 13, 1990.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable Douglass B. Shivers

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 16th day of October, 1990.

 

___________________________________________

Clerk, District Court of Appeal of Florida, First District


=================================================================

POST DISTRICT COURT OPINION ORDER

=================================================================

CASE NO. 88-4710RP

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS THE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA, Petitioner/Appellant, and FLORIDA AUDUBON SOCIETY, Intervener/Appellant,

vs. 

BOARD OF PROFESSIONAL LAND SURVEYORS, DEPARTMENT OF PROFESSIONAL REGULATION OF THE STATE OF FLORIDA, Respondent/Appellee,

FLORIDA CATTLEMEN'S ASSOCIATION, FLORIDA LAND COUNSEL, PAT WILSON, INC., A. DUDA & SONS, INC., LYKES BROS., INC., ET AL., Interveners/Appellees. 

ORDER

By opinion in the District Court of Appeal, First District, State of Florida, Case Nos. 89-1293 and 89-1294, in the case of The Board of Trustees of the Internal Improvement Trust Fund of the State of Florida and Florida Audubon Society, Appellants, vs. Board of Professional Land Surveyors, Department of Professional Regulation of the State of Florida, et al., Appellees, the appellate court affirmed the final order in the administrative proceeding which had held invalid the following contested provisions in proposed rules of the Board of Professional Land Surveyors, Department of Professional Regulation of the State of Florida:

21HH-6.002(3), 6.002(4), 6.002(7), 6.002(11), 6.002(13), 6.002(16), 6.002(17), the part of 6.001(18)(i) which incorporated other invalid rules, 6.002(19), 6.002(20), and 21HH6.0052(2)(a), 6.0052(2)(i)(except for the preamble, which was found to be valid), part of 6.0052(2)(j)(1), 6.0052(2)(j)(3), and 6.0052(2)(k)

In addition to upholding the invalidation of the aforementioned provisions within the proposed rules the court invalidated these additional proposed rules:

Rules 21HH-6.002(1), 6.002(2), 6.002(8), 6.002(12), 6.002(14), 21HH-6.0052(2)(h), the preamble to 6.0052(2)(i), and all of 6.0052(2)(j).

Thus the court affirmed the final order appealed from in part and reversed in part in the manner described in the previous paragraphs. The court remanded for further proceedings consistent with its findings as contemplated by the mandate issued in this case on October 16, 1990. By references which have been offered in the prior paragraphs to the present order the final order dated April 17, 1989, is amended to conform to the court opinion.

DONE and ORDERED this 6th day of December, 1990, at Tallahassee, Florida.

 

___________________________________

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of December, 1990.

 


COPIES FURNISHED:

The Honorable Robert A. Butterworth

Attorney General

The Capitol

Tallahassee, Florida 32399-1050

David G. Guest, Esquire

Jonathan A. Glogau, Esquire

Ronald G. Stowers, Esquire

Assistant Attorneys General

Department of Legal Affairs

111-36 South Magnolia Drive

Tallahassee, Florida 32301

Chris H. Bentley, Esquire

Diane Tremor

Rose, Sundstrom and Bentley

2548 Blairstone Pines Drive

Tallahassee, Florida 32301

Ross Burnaman, Esquire

Assistant General Counsel

Department of Natural Resources

3900 Commonwealth Boulevard

Tallahassee, Florida 32301

Robert R. Feagin, III, Esquire

Thomas J. Jones, Esquire

Lawrence E. Sellers, Jr., Esquire

Holland & Knight

Post Office Drawer 810

Tallahassee, Florida 32302

L. M. Buddy Blain, Esquire

Douglas P. Manson, Esquire

Blain & Cone

202 Madison Street

Tampa, Florida 33602

James V. Antista, Esquire

Kenneth McLaughlin, Esquire

Florida Game and Fresh Water

Fish Commission

620 South Meridian Street

Tallahassee, Florida 32399-1600

Kathleen E. Moore, Esquire

Hopping, Boyd, Green & Sams

215 South Monroe Street

Tallahassee, Florida 32301

John E. Norris, Esquire

Norris & Koberlein

Community National Bank Building

201 N. Marion Street, Suite 301

Post Office Drawer 2349

Lake City, Florida 32056-2349

Joseph J. Gleason, Esquire

Florida Citrus Mutual

Post Office Box 89

Lakeland, Florida 33802

Philip S. Parsons, Esquire

Cindy L. Bartin, Esquire

Landers & Parsons

Post Office Box 271

Tallahassee, Florida 32302

Scottie J. Butler, Esquire

General Counsel

Florida Farm Bureau Federation

Post Office Box 730

Gainesville, Florida 32602

J. Patrick Floyd, Esquire

408 Long Avenue

Post Office Drawer 950

Port St. Joe, Florida 32456

Fendrick Tucker, Esquire

Patrick Phelan, Esquire

Huey, Guilday, Kuersteiner

& Tucker

Post Office Box 1794

Tallahassee, Florida 32302

David Schwartz, Esquire

Charles Lee

Florida Audubon Society

1101 Audubon Way

Maitland, Florida 32751

Steve Lewis, Esquire

Janet E. Bowman, Esquire

Messer, Vickers, Caparello,

French & Madsen

Post Office Box 1876

Tallahassee, Florida 32302

Peter Guarisco, Esquire

2003 Apalachee Parkway

Tallahassee, Florida 32301

Marty Smith, Esguire

21 Northeast First Avenue

Post Office Box 1148

Ocala, Florida 32678

Allen R. Smith, Jr.

Executive Director

Board of Professional Land Surveyors

130 North Monroe Street

Tallahassee, Florida 32399

 


=================================================================

ORDER ON MOTION TO TAX COSTS AND FOR ATTORNEYS' 

FEES IN RESPONSE TO THE MOTION TO TAX COSTS

=================================================================

CASE NO. 88-4710RP

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

THE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA, Petitioner/Appellant, and FLORIDA AUDUBON SOCIETY, Intervener/Appellant,

vs. 

BOARD OF PROFESSIONAL LAND SURVEYORS, DEPARTMENT OF PROFESSIONAL REGULATION OF THE STATE OF FLORIDA, Respondent/Appellee, 

FLORIDA CATTLEMEN'S ASSOCIATION, FLORIDA LAND COUNSEL, PAT WILSON, INC., A. DUDA & SONS, INC., LYKES BROS., INC., ET AL., Interveners/Appellees.

ORDER ON MOTION TO TAX COSTS AND FOR ATTORNEYS' FEES IN RESPONSE TO THE MOTION TO TAX COSTS

The Board of Trustees of the Internal Improvement Trust Fund of the State of Florida has moved to tax costs against the Board of Professional Land Surveyors, Department of Professional Regulation of the State of Florida. The costs requested are set out in an itemization supported by an affidavit. As authority, reference is made to Section 57.041, Florida Statutes, (1989) and Rule 9.400, Florida Rules of Appellate Procedure together with a number of case citations.

The Board of Professional Land Surveyors, Department of Professional Regulation of the State of Florida has responded to

the motion arguing that Section 57.041, Florida Statutes (1989), and Rule 9.400, Florida Rules of Appellate Procedure do not provide a basis for the award of costs. This party also offers case authority for its position. Moreover the Respondent has moved for the imposition of attorneys fees against the Petitioner related to the preparation of the response to the motion to tax costs. For authority in its effort to obtain attorneys fees Respondent refers to Section 120.57(1)(b)5., Florida Statutes. It argues that the motion to tax costs was filed for an improper or frivolous purpose. Petitioner has not offered a response to the countervailing motion for attorneys fees.

In view of the case authorities cited by the Respondent and in consideration of the nature of an administrative proceeding compared to a court action in which a judgement is recovered under Section 57.041, Florida Statutes (1989), as contrasted with the final order outcome in a challenge to a proposed rule under Section 120.54, Florida Statutes, Petitioner is not entitled to recover its costs pursuant to the former statutory reference. Section 57.041, Florida Statutes (1989) is inapplicable to this proceeding. Likewise, Rule 9.400, Florida Rules of Appellate Procedure, does not assist the Petitioner in its attempt to recover the itemized costs on this occasion. The only cost item listed that could conceivably be recovered would be associated with transcript preparation. To be successful in this contention it would be necessary to establish that the transcript preparation was incidental to the pursuit of the appeal. It was not. The principal basis of its preparation was to assist the parties in submitting proposed final orders and the hearing officer in entry of the final order. This meant that it was not necessary to call for its preparation to perfect the appeal, thereby becoming an appellate cost. It was a cost item in the lower tribunal which does not have statutory or rule authority to tax the cost where incurred at this juncture. See also Bryan v. Department of Business Regulation, Division of Beverage, 316 So.2d 637 (Fla. 1st DCA 1975). The cases which Petitioner has cited in its motion to tax costs, while helpful in understanding those instances in which costs may be pursued in a court action, have no utility in the administrative forum absent a foundation in statute or rule to employ their holdings.

Although the decision on the motion to tax costs does not favor the Petitioner, having considered these matters they are not such that sanctions would be appropriate through assessment of attorneys fees for responding to the motion to tax costs as envisioned by Section 120.57(1)(b)5., Florida Statutes. Therefore, it is ORDERED:

1. The motion to tax costs is denied.

2. The motion for attorneys fees in responding to the motion to tax costs is denied.

DONE and ORDERED this 6th day of December, 1990, at Tallahassee, Florida.

 

___________________________________

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of December, 1990.

 


COPIES FURNISHED:

The Honorable Robert A. Butterworth

Attorney General

The Capitol

Tallahassee, Florida 32399-1050

David G. Guest, Esquire

Jonathan A. Glogau, Esquire

Ronald G. Stowers, Esquire

Assistant Attorneys General

Department of Legal Affairs

111-36 South Magnolia Drive

Tallahassee, Florida 32301

Chris H. Bentley, Esquire

Diane Tremor

Rose, Sundstrom and Bentley

2548 Blairstone Pines Drive

Tallahassee, Florida 32301

Ross Burnaman, Esquire

Assistant General Counsel

Department of Natural Resources

3900 Commonwealth Boulevard

Tallahassee, Florida 32301

Robert R. Feagin, III, Esquire

Thomas J. Jones, Esquire

Lawrence E. Sellers, Jr., Esquire

Holland & Knight

Post Office Drawer 810

Tallahassee, Florida 32302

L. M. Buddy Blain, Esquire

Douglas P. Manson, Esquire

Blain & Cone

202 Madison Street

Tampa, Florida 33602

James V. Antista, Esquire

Kenneth McLaughlin, Esquire

Florida Game and Fresh Water

Fish Commission

620 South Meridian Street

Tallahassee, Florida 32399-1600

Kathleen E. Moore, Esquire

Hopping, Boyd, Green & Sams

215 South Monroe Street

Tallahassee, Florida 32301

John E. Norris, Esquire

Norris & Koberlein

Community National Bank Building

201 N. Marion Street, Suite 301

Post Office Drawer 2349

Lake City, Florida 32056-2349

Joseph J. Gleason, Esquire

Florida Citrus Mutual

Post Office Box 89

Lakeland, Florida 33802

Philip S. Parsons, Esquire

Cindy L. Bartin, Esquire

Landers & Parsons

Post Office Box 271

Tallahassee, Florida 32302

Scottie J. Butler, Esquire

General Counsel

Florida Farm Bureau Federation

Post Office Box 730

Gainesville, Florida 32602

J. Patrick Floyd, Esquire

408 Long Avenue

Post Office Drawer 950

Port St. Joe, Florida 32456

Fendrick Tucker, Esquire

Patrick Phelan, Esquire

Huey, Guilday, Kuersteiner

& Tucker

Post Office Box 1794

Tallahassee, Florida 32302

David Schwartz, Esquire

Charles Lee

Florida Audubon Society

1101 Audubon Way

Maitland, Florida 32751

Steve Lewis, Esquire

Janet E. Bowman, Esquire

Messer, Vickers, Caparello,

French & Madsen

Post Office Box 1876

Tallahassee, Florida 32302

Peter Guarisco, Esquire

2003 Apalachee Parkway

Tallahassee, Florida 32301

Marty Smith, Esguire

21 Northeast First Avenue

Post Office Box 1148

Ocala, Florida 32678

Allen R. Smith, Jr.

Executive Director

Board of Professional Land Surveyors

130 North Monroe Street

Tallahassee, Florida 32399

 


A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120. 68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.


BACK