Friends of the Hatchineha, Inc. v. State, Dept. of Environmental Regulation

• Decision Date: 14 May 1991
• Docket Number: No. 90-1489,90-1489
• Citation: 580 So.2d 267
• Parties: FRIENDS OF THE HATCHINEHA, INC., Appellant, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, et al., Appellees. 580 So.2d 267, 16 Fla. L. Week. D1357, 16 Fla. L. Week. 1430
• Court: Florida District Court of Appeals

Page 267

580 So.2d 267

FRIENDS OF THE HATCHINEHA, INC., Appellant, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION et al., Appellees.

No. 90-1489.

580 So.2d 267, 16 Fla. L. Week. D1357, 16 Fla. L. Week. 1430

District Court of Appeal of Florida,

First District.

May 14, 1991.

Robert L. Hovious and Richard F. Wall of Hartley & Wall, Orlando, for appellant.

Joseph W. Landers, Jr. of Landers and Parsons, Tallahassee, for appellees.

ERVIN, Judge.

Appellant, Friends of the Hatchineha, Inc. (Friends), appeals from a final administrative order entered by appellee, Department of Environmental Regulation (DER), denying its petition for a formal administrative hearing. Friends contends that DER's decision that the driveway under consideration qualified for the agricultural exemption to the dredge and fill permitting process was final agency action, from which Friends could seek a formal administrative hearing under Section 120.57, Florida Statutes (1989). We agree and reverse and remand for further proceedings.

On March 15, 1990, Friends filed a petition requesting a formal administrative hearing pursuant to Section 120.57, Florida Statutes (1989). Friends alleged that it was a nonprofit Florida corporation with environmental and conservancy concerns, having special emphasis on Lake Hatchineha and its surrounding lands, and that its members actively and regularly use the lake and have a substantial interest in the integrity and quality of its water, as well as the preservation of its natural vegetation habitat and ecological system.

Friends further stated that on or before November 1989, appellee Louis Fischer constructed a driveway without a permit through more than a mile of previously undisturbed wetlands near the lake, which was owned by appellee London Creek Associates (London Creek). Subsequently Sergeant Allen, an officer of the Florida Game and Fresh Water Fish Commission, observed the driveway, which he determined was built within DER's jurisdictional dredge and fill lands, and issued a complaint affidavit charging Fischer with violating Section 403.161, Florida Statutes (1989). ¹

Thereafter on December 28, 1989, DER inspected the driveway, and, as a result, issued a warning notice to Fischer for unauthorized dredging and filling without a permit. In defense, Fischer responded that the driveway was necessary to maintain cattle ranch operations on the property. As such, he claimed that it was exempt from DER's wetlands resource management authority pursuant to Section 403.927, Florida Statutes (1989). In a letter dated February 9, 1990, Friends requested an opportunity to participate in the administrative process prior to any final action by DER.

By letter dated February 27, 1990, DER informed Fischer that the department considered the access road exempt from the permitting requirements, pursuant to section 403.927. DER also notified Friends on the same date of its decision in a letter stating, "It is the department's position that the road qualifies for the agricultural exemption.... Until the use of the site changes to something other than agricultural, the department's position will not change."

Following receipt of that letter, Friends filed its petition for formal administrative hearing. Friends disputed Fischer's assertion that the driveway was necessary for cattle ranch operations on the property. Instead, Friends contended that the predominant purpose of the driveway was to provide access to Fischer's recently constructed residence.

London Creek and Fischer responded with a motion to dismiss Friends' petition, arguing that the exemptions are self-executing and are authorized, not by DER, but by operative statutes or rules. Accordingly, the motion continued, because DER takes no action concerning these exemptions, there was no action for Friends to contest.

On April 24, 1990, DER issued a final order dismissing the petition. DER held that the agricultural exemption deprived it of jurisdiction over the driveway, therefore, no agency action could be taken. It concluded, as a matter of law, that Friends' petition for a formal administrative hearing was inappropriate, because there had been no agency action.

Section 120.57(1), Florida Statutes (1989), provides for formal administrative proceedings to resolve disputed issues of material fact. To be entitled to a section 120.57 hearing, there must be final agency action affecting the petitioner's substantial interests, coupled with a disputed issue of material fact. General Dev. Utils., Inc. v. Florida Dep't of Envtl. Reg., 417 So.2d 1068, 1070 (Fla. 1st DCA 1982). Section 120.52(2), Florida Statutes (Supp.1988), defines agency action as "the whole or part of a rule or order, or the equivalent, or the denial of a petition to adopt a rule or issue an order."

DER is authorized by the "Warren S. Henderson Wetlands Protection Act of 1984," Sections 403.91 through .929, Florida Statutes (1989), to adopt rules and regulations governing activities in waters to their landward extent. No person shall dredge or fill in, on, or over surface waters within DER's jurisdiction without a permit issued by the department, unless exempted by statute or rule. Sec. 403.913(1), Fla.Stat. (1989). Thus, DER is authorized by the statutes to create a permitting process for dredge and fill operations. Sec. 403.912(1), Fla.Stat. (1989). In granting such authority to DER, the legislature recognized the great value of farming to the state and that continued agricultural activity is compatible with wetlands protection. Sec. 403.927(1), Fla.Stat. (1989). It therefore exempted agricultural activities, as described in section 403.927(4)(a), from the Wetlands Protection Act pursuant to the provisions of section 403.927(2). ²

Appellees contend that DER's letters of February 27 to Fischer and appellant, expressing its opinion that the access road is exempt, do not constitute final agency action for which appellant would have a right to a section 120.57 hearing. Fischer and London Creek argue that DER has interpreted section 403.927 as creating a self-executing exemption for which no agency action is required. In support thereof, appellees rely upon several of DER's final agency orders. Of particular importance to their argument is Saltiel v. Leon County, 6 F.A.L.R. 6894 (Fla.Dept.Envtl.Reg.1984) which involved a dismissal of a petition for formal administrative hearing challenging DER's mosquito control exemption to the dredge and fill prohibition. Although it is unclear precisely what the facts were in Saltiel, it appears that a third party filed a petition in response to the issuance of a letter by DER to Leon County authorizing proposed maintenance work. Leon County had in fact met with the department prior to commencing the maintenance work to ascertain whether the work, which consisted of dredging material from a ditch, was exempt. In denying the third party's petition, DER explained that the exemptions are from permitting procedures. Because the department lacked sufficient manpower to process permit applications for all dredge and fill activities, it created exemptions to encourage appropriate dredge and fill practices and to eliminate the necessity of permitting for activity having insignificant impact on the environment. Id. at 6895. No action by the department was deemed necessary prior to an individual's undertaking the exemption activities; instead, the department had taken action when it developed and adopted the rule of exemption. The department's letters of exemption, pursuant to this theory, did not create the exemptions, but affirmed the individuals' apparent eligibility for exemptions. Therefore, according to the department, there was no basis for a petition for formal hearing of an individual's use of an exemption or of the agency's notifying an individual of his or her apparent eligibility for an exemption. Id. at 6895-96.

Additionally, appellees rely on Downing v. Glover, 9 F.A.L.R. 6423 (Fla.Dept.Envtl.Reg.1987). That case involved a petition for formal hearing in which Downing objected to the department's expressed intent to issue Glover a permit for construction of a bulkhead. Specifically the petitioner alleged that a docking structure to be associated with the bulkhead should not be exempt from permitting procedures. An exemption, however, exists for installation of certain private docking facilities, which DER found applied in that case. In dismissing the petition, DER reasoned that a petitioner may request a formal administrative hearing only if the agency action in question affects his or her interests. Because the department has no power to and does not authorize exemptions, and therefore takes no action concerning the use of the exemptions, there was no agency action for the petitioner to contest. Id. at 6423. See also Faller v. Department of Envtl. Reg., 10 F.A.L.R. 1351, 1356 (Fla.Div.Admin.Hearings 1988) (landowner's withdrawal of application for dredge and fill permit divested DER of authority).

Initially, before proceeding to the merits of our decision, we think it important to state what issues are not before us. No contention, first, has been raised that Friends does not have standing, as a substantially interested party, to contest the issuance of Fischer's exemption. Nor has any serious argument been asserted that the decision to exempt the activity as agricultural was only nonfinal, preliminary agency action which was subject to further agency review. See Florida League of Hosps. v. Hospital Cost Containment Bd., Dep't of Ins., 492 So.2d 431, 433 (Fla. 1st DCA 1986). It is essentially the department's position that in taking the action which it did, i.e., in issuing the letter of exemption, it took no agency action at all. If we correctly understand DER's novel and frankly, to us, rather confusing argument, it is that once DER determined the agricultural exemption applied, the department thereafter had no jurisdiction...