Board of Trustees of Internal Imp. Trust Fund of State of Fla. v. Board of Professional Land Surveyors, s. 89-1293

• Decision Date: 13 September 1990
• Docket Number: 89-1294,Nos. 89-1293,s. 89-1293
• Parties: 15 Fla. L. Weekly D2324 The BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND OF the STATE OF FLORIDA and Florida Audubon Society, Appellants, v. BOARD OF PROFESSIONAL LAND SURVEYORS, Department of Professional Regulation of the State of Florida, et al., Appellees.
• Court: Florida District Court of Appeals

Page 1358

566 So.2d 1358

15 Fla. L. Weekly D2324

The BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND OF the STATE OF FLORIDA and Florida Audubon Society, Appellants, v. BOARD OF PROFESSIONAL LAND SURVEYORS, Department of Professional Regulation of the State of Florida, et al., Appellees.

Nos. 89-1293, 89-1294.

District Court of Appeal of Florida First District.

Sept. 13, 1990.

Robert A. Butterworth, Atty. Gen., David G. Guest, Jonathan A. Glogau, and Ronald G. Stowers, Asst. Attys. Gen., Kenneth Plante, General Counsel, Dept. of Natural Resources, Orlando, for appellant Board of Trustees.

David C. Schwartz, Orlando, and Joseph Z. Fleming, Miami, for appellant Florida Audubon Society.

Diane D. Tremor and Chris H. Bentley, of Rose, Sundstrom & Bentley, Tallahassee, for appellee/cross-appellant Board of Professional Land Surveyors.

Michael L. Rosen and Julian Clarkson, of Holland & Knight, Tallahassee, for appellees/cross-appellants Agrico Chemical Co., Florida Land Council, Inc., Florida Forestry Ass'n, Inc., Florida Land Title Ass'n, Inc., Florida Citrus Mut., Florida Farm Bureau Federation, Florida Cattlemen's Ass'n, Florida Sugar Cane League and Florida Fruit & Vegetable Ass'n.

Vance W. Kidder, of Spriggs & Kidder, Tallahassee, for appellee/cross-appellant Florida Cattlemen's Ass'n.

G. Steven Pfeiffer, Tallahassee, for amicus curiae 1000 Friends of Florida.

WENTWORTH, Judge.

Before us on appeal is a final order entered by the 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 6.0052(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 caselaw 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-6.0052(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...