Coastal Petroleum Co. v. FLA. WILDLIFE FEDERATION INC., 98-1998.

• Court: Florida District Court of Appeals
• Writing for the Court: BARFIELD, C.J.
• Citation: Coastal Petroleum Co. v. FLA. WILDLIFE FEDERATION INC., 766 So.2d 226 (Fla. App. 1999)
• Decision Date: 06 October 1999
• Docket Number: No. 98-1998.,98-1998.
• Parties: COASTAL PETROLEUM COMPANY, Appellant, v. FLORIDA WILDLIFE FEDERATION, INC.; Sierra Club, Florida Chapter; Florida Audubon Society, Inc.; Robert A. Butterworth, Attorney General; St. George Island Civic Club; and Department of Environmental Protection, Appellees.

766 So.2d 226

COASTAL PETROLEUM COMPANY, Appellant, v. FLORIDA WILDLIFE FEDERATION, INC.; Sierra Club, Florida Chapter; Florida Audubon Society, Inc.; Robert A. Butterworth, Attorney General; St. George Island Civic Club; and Department of Environmental Protection, Appellees.

No. 98-1998.

District Court of Appeal of Florida, First District.

October 6, 1999.

Opinion on Rehearing June 26, 2000.

John K. Aurell of Ausley & McMullen, Tallahassee, Susan W. Fox of MacFarlane, Ferguson & McMullen, Tampa, and Robert J. Angerer and Robert J. Angerer, Jr. of Angerer & Angerer, Tallahassee, for Appellant.

David G. Guest, and S. Ansley Samson, Earthjustice Legal Defense Fund, Tallahassee, for Appellees Florida Wildlife Federation, Inc., Sierra Club, Florida Chapter, and Florida Audubon Society, Inc.

Barbara Sanders, Apalachicola, for Appellee St. George Island Civic Club.

Maureen M. Malvern, Senior Assistant General Counsel, and Andrew J. Baumann, Senior Assistant General Counsel, Office of General Counsel, and Jonathan A. Glogau, Assistant Attorney General, for Appellee Department of Environmental Protection.

Monica K. Reimer, Assistant Attorney General, Tallahassee, for Appellee Robert A. Butterworth, Attorney General.

BARFIELD, C.J.

In what may be one of the final chapters in the continuing saga of the appellant's quest to extract oil from beneath the Gulf of Mexico, it challenges an order of the Florida Department of Environmental Protection (DEP) denying its application for a drilling permit, ostensibly because oil extraction is potentially too dangerous to the environment. The appellant contends that the order must be reversed because DEP's interpretation of the applicable statute will result in an unconstitutional taking of its property. We affirm the order.

The decision in this case turns on the interpretation of section 377.241, Florida Statutes (1997):

Criteria for issuance of permits. The division, in the exercise of its authority to issue permits as hereinafter provided, shall give consideration to and be guided by the following criteria:

(1) The nature, character and location of the lands involved, whether rural, such as farms, groves, or ranches, or urban property vacant or presently developed for residential or business purposes or are in such a location or of such a nature as to make such improvements and developments a probability in the near future.

(2) The nature, type and extent of ownership of the applicant, including such matters as the length of time the applicant has owned the rights claimed without having performed any of the exploratory operations so granted or authorized.

(3) The proven or indicated likelihood of the presence of oil, gas or related minerals in such quantities as to warrant the exploration and extraction of such products on a commercially profitable basis.

The appellant asserts that in the past, DEP has issued permits when each criterion of section 377.241 "has been met," but that when DEP announced its intention to issue a drilling permit in this case, a group of environmental organizations challenged the decision, arguing that DEP was wrongly interpreting the statute, which requires the agency to "weigh" the criteria of section 377.241, balancing environmental interests against the right to explore for oil. Following an evidentiary hearing and the issuance of an order in which the hearing officer recommended granting the permit with a multi-million dollar surety, DEP reconsidered its past practice and agreed with the environmental petitioners that "meeting" each criterion was not legally sufficient. It then "balanced" the criteria and determined that issuance of a drilling permit was too dangerous to the coastal environment.

The appellant contends that DEP cannot "change its mind"...