Greene v. State Dept. of Natural Resources, AD-232

• Decision Date: 14 May 1982
• Docket Number: No. AD-232,AD-232
• Citation: 414 So.2d 251
• Parties: C. Ray GREENE, Jr., Appellant, v. STATE of Florida DEPARTMENT OF NATURAL RESOURCES/State of Florida Board of Trustees of the Internal Improvement Trust Fund, Appellees.
• Court: Florida District Court of Appeals

Page 251

414 So.2d 251

C. Ray GREENE, Jr., Appellant, v. STATE of Florida DEPARTMENT OF NATURAL RESOURCES/State of Florida Board of Trustees of the Internal Improvement Trust Fund, Appellees.

No. AD-232.

District Court of Appeal of Florida,

First District.

May 14, 1982.

Peter A. Portley of Portley & Sullivan, Pompano Beach, and Ross A. McVoy of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellant.

John W. Williams, St. Petersburgh, for appellees.

SHIVERS, Judge.

This is an appeal from a Department of Natural Resources order denying appellant's petition for an administrative hearing pursuant to Section 120.57(1), Florida Statutes (1979). We affirm.

On February 5, 1981, appellant, as a State citizen, filed a "Verified Petition and Complaint Pursuant to Section 403.412(5), Fla.Stat., For Formal Administrative Hearing Pursuant to Section 120.57(1), Fla.Stat., and Injunctive Relief Pursuant to Section 403.412(2), Fla.Stat." The petition alleged the State's proposed 32 million dollar acquisition of Westlake, a tract in Broward County approved by appellees, did not qualify for the State's environmentally endangered land (EEL) purchase program because it did not meet the legal criteria for the determination of an EEL parcel. Appellant contended the reports and evaluations prepared by the DNR staff assisting the Conservation and Recreation Land Committee (CARL), and other independent reports, factually established that Westlake did not meet the criteria for an EEL purchase.

The CARL program was created by Section 253.023, Florida Statutes (1979) for the purpose of recommending the acquisition of EELs by the State in order to preserve valuable and irreplaceable natural resources. The criterion and procedure for selection of EEL parcels was promulgated by appellees in Rule 16Q-2.05, Florida Administrative Code, which sets forth the seven steps for purchase evaluations which must be satisfied prior to a recommendation of acquisition by the CARL selection committee. Under Chapter 259, Florida Statutes (1979), the CARL selection committee is authorized to submit an annual evaluation of proposed EEL sites and to recommend the acquisition of such sites on a priority basis to the Governor and Cabinet sitting as the Board of Trustees of the Internal Improvement Trust Fund (Board). Prior to making a recommendation for the acquisition of an EEL parcel to the Board, DNR must hold a public hearing in the county in which the proposed land parcel is located and submit a report of the meeting to the Board along with the recommendation for acquisition. In turn, the Board shall approve in whole or in part the EEL list submitted by the Committee. Once the selection committee's list is approved by the Board, DNR commences negotiations for the voluntary acquisition of the lands on the list. However, since the list of lands are only proposals and the negotiations voluntary, there is no certainty that a particular parcel will ultimately be acquired by the State.

On December 16, 1980, the Board met and considered the CARL Committee's final priority acquisition list, which included the recommended purchase of Westlake. Appellant's representative was present and argued to the Board that Westlake did not meet the legal requirements for Board consideration. However, the Board approved the proposed purchase. After considering appellant's petition for a formal hearing and injunctive relief, DNR entered the appealed order on February 26, 1981, denying the petition on the following grounds:

A petition for a formal administrative hearing pursuant to Section 120.57(1) was premature in that the acceptance of the final report by the Governor and Cabinet resulted in no action which affected the substantial interest of any citizen or class of citizens in this determination.

Also, on the face of the pleadings the petitioner states no substantial interest whatsoever which would be affected by the action taken by the Governor and Cabinet in accepting and approving the C.A.R.L. Selection Final Report.

In summary the Department denies your petition for a 120.57(1), F.S., hearing and denies the complaint and petition for injunctive relief on the grounds that there is no license or permit involved which would properly serve as final agency action for a 403.412 verified complaint challenge and there is no action, either already taken or pending which affects the petitioner's substantial interests.

DNR correctly denied the petition for a Section 120.57 formal hearing because appellant alleged no special injury or substantial interest which would be affected by the Board's acceptance of the CARL Committee's proposed acquisition of Westlake. Section 120.57(1) applies only to Agency decisions which affect the substantial interests of a party. Section 120.52(10)(b), Florida Statutes (1979), defines a "party" as "any other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party." Rule 28-5.201(2)(b), Florida Administrative Code, requires that all petitions for formal administrative proceedings contain, among other things, an explanation of how a party's substantial interests would be affected by the agency action. Based upon appellant's petition below, he lacks the...