Mangrove Chapter of Izaak Walton League of America, Inc. v. Florida Game and Fresh Water Fish Com'n
| Decision Date | 14 January 1992 |
| Docket Number | No. 91-389,91-389 |
| Citation | 592 So.2d 1162 |
| Parties | 17 Fla. L. Weekly D228 MANGROVE CHAPTER OF IZAAK WALTON LEAGUE OF AMERICA, INC., and Friends of the Everglades, Inc., Appellants, v. FLORIDA GAME AND FRESH WATER FISH COMMISSION and Driscoll Properties, Inc., and Driscoll Foundation, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Michael F. Chenoweth, Homestead, for appellants.
James V. Antista, Gen. Counsel, Jennifer L. Mason, Certified Legal Intern, Florida Game and Fresh Water Fish Com'n, for appellee Florida Game and Fresh Water Fish Com'n.
William R. Roberts & Tom R. Moore of Roberts & Egan, P.A., Tallahassee, for appellees Driscoll Properties, Inc. and Driscoll Foundation, Inc.
This is an appeal by the Mangrove Chapter of Izaak Walton League of America, Inc. and Friends of the Everglades, Inc. from the Game and Fresh Water Fish Commission's (GFC) final order permitting appellees Driscoll Properties, Inc. and Driscoll Foundation, Inc. [the intervenors below] to destroy nests and habitat of certain endangered rodent species incidental to developing portions of the subdivision Harbor Course South. The appellants raise issues as to (1) GFC's failure to enact proper rules, (2) the improper delegation to Monroe County of habitat regulation, (3) lack of an evidentiary predicate for permitting, (4) improper rejection of a hearing officer's language with respect to the need for pet control through an enforceable covenant, and (5) the GFC's alleged substitution of a federal standard for the state standard in permit issuance. We affirm on all issues except issue 4, as to which we reverse and remand because of the GFC's lack of clear authority to enforce a pet control covenant.
The endangered species which the appellants are seeking to protect are the Key Largo cotton mouse (peromyscus gossypinus allapaticola) and the Key Largo woodrat (neatoma floridana smalli). 1 The GFC issued a permit to the appellees (the Driscoll entities) on a subdivision-wide basis in Harbor Course South, North Key Largo, Monroe County, to destroy nests and habitat of the above endangered species, incidental to land clearing operations and building construction. The GFC action was pursuant in part to Rule 39-27.002(1), F.A.C. and was conditioned on various requirements, including mitigation by which the permittees would provide certain land as alternative habitat and enhance other sites for the rodents' benefit. Rule 39-27.002(1), F.A.C. states that:
No person shall pursue, molest, harm, harass, capture or possess any endangered species or parts thereof or their nests or eggs except as authorized by specific permit, permits being issued only when the permitted activity will clearly enhance the survival potential of the species.
To challenge the permit issuance the appellants, the Mangrove Chapter of the Izaak Walton League and the Friends of the Everglades, both elected a section 120.57(1), F.S., adjudicatory hearing. The hearing officer allowed the appellants to consolidate these actions, and the developers/permittees were allowed to intervene in the hearing. The record from the hearing shows that the GFC had previously taken a lot-by-lot approach in ascertaining whether any subject endangered species or any nests might require GFC protection from development activities. The agency was engaged in an evolving policy to protect the overall habitat of woodrats and cotton mice, in addition to the species themselves and their nests. The hearing officer heard testimony and took evidence regarding (1) the actual physical presence or absence of the subject endangered species in some but not all lots of Harbor Course South, and (2) the efficacy of mitigation requirements imposed. Numerous exhibits were introduced and many experts testified in these proceedings.
The hearing officer issued a recommended order which essentially concluded that the GFC had authority to issue the permit pursuant to incipient agency policy within the framework of its existing rules. The parties then submitted various exceptions, and the GFC reviewed the hearing officer's Findings of Fact and Conclusions of Law. The GFC in its final order adopted the hearing officer's conclusions of law with some modifications in limited instances. The GFC agreed with all 95 Findings of Fact with the exception of the deletion of two sentences as to the alleged lack of enforcement mechanism for a required covenant in the subdivision deeds against free-ranging domestic animals.
As a threshold question, appellants assert that this court should review the entire GFC regulatory framework and determine that due process is denied to litigants, since the agency is not necessarily subject to Chapter 120, Florida Statutes. We decline to consider this issue because the agency voluntarily elected to subject itself to a Chapter 120 proceeding, where the parties were provided with notice and an opportunity to be heard. See Florida Public Service Commission v. Central Corporation, 551 So.2d 568 (Fla. 1st DCA 1989).
Appellants next contend that the GFC has no authority to issue the permit and allow the permittees to engage in a taking or destruction of nests and habitat incidental to land clearing and building subject to Rule 39-27.002(1), F.A.C. They argue in the alternative that, even if such authority exists, there is a conflict with the existing rule prohibiting the killing or wounding of an endangered species, Rule 39-27.0011, F.A.C. They further assert there is no competent substantial evidence for the taking of nests or destruction of nests and habitat pursuant to the agency rules or policy. The GFC counterargues on these points (1) that it could properly grant the permit under Rule 39-27.002(1), F.A.C., which states in part that the permitted activity "[must] clearly enhance the survival potential of the [endangered] species", or (2) that it was authorized to issue the permit under incipient agency policy if its actions are to be so characterized.
We find that appellants' contentions on this issue are not persuasive. First, the GFC's actions in issuing the permit on a subdivision-wide basis with mitigation requirements set forth as conditions to the issuance of the permit, are clearly consistent with achieving the objectives of the rule. And to the extent it may involve a novel application of the rule and past practice, the challenged permit is characterized as a permissible act of incipient agency policy. See Gar-Con Development, Inc. v. State, Department of Environmental Regulation, 468 So.2d 413 (Fla. 1st DCA 1985) rev. den., Department of Environmental Regulation v. Gar-Con Development, Inc., 479 So.2d 117 (Fla.1985); Ganson v. State, Department of Administration, 554 So.2d 516 (Fla. 1st DCA 1989).
The record shows that the area which is to be cleared is primarily a fragmented, tropical hardwood, hammock area, in which the presence of the subject endangered species is minimal at best. This court, in considering the testimony of the experts, has a limited review function even when, as here, there are some apparent conflicts as to the extent of the subject species' population in the affected area of Harbor Course South. See Graham v. Estuary Properties, Inc. 399 So.2d 1374, 1379 (Fla.1981); cert. den. 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981). The cleared area (approximately 50 acres) is on private property, which was previously subjected to development in the surrounding area in the 1970's. The GFC mitigated potential habitat loss by demanding that the permittees revegetate a nearly six-acre plot for the woodrats and cotton mice, and revegetate an easement area. Upon consideration of these facts, we conclude that the GFC has taken a reasonable approach to solving the problem of enhancing the habitat of the subject endangered species in an area of human encroachment.
The GFC's decision here, to utilize a subdivision-wide rather than lot-by-lot approach to permit issuance, has by its own admission redefined the unit basis for application of its authority. The GFC appears to have made an extensive record in this case to allow its policy to mature and be perfected through adjudication on a case by case basis. This approach is in keeping with long-standing precedent, premised on the policy that agencies should have the burden of exposition when they exercise their discretion in favor of adjudicatory resolution of a dispute in lieu of an immediate rulemaking proceeding. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla....
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