Peace River/Manasota Reg. Water Supply Auth. v. Imc Phosphates Co.

• Decision Date: 10 February 2009
• Docket Number: No. 2D06-3891.,No. 2D07-3116.,2D06-3891.,2D07-3116.
• Parties: PEACE RIVER/MANASOTA REGIONAL WATER SUPPLY AUTHORITY; Charlotte County; Sarasota County; Lee County; and Sierra Club, Appellants, v. IMC PHOSPHATES COMPANY n/k/a Mosaic Fertilizer, LLC; Department of Environmental Protection; Alan Behrens; and DeSoto Citizens Against Pollution, Inc., Appellees.
• Court: Florida District Court of Appeals

18 So.3d 1079

PEACE RIVER/MANASOTA REGIONAL WATER SUPPLY AUTHORITY; Charlotte County; Sarasota County; Lee County; and Sierra Club, Appellants, v. IMC PHOSPHATES COMPANY n/k/a Mosaic Fertilizer, LLC; Department of Environmental Protection; Alan Behrens; and DeSoto Citizens Against Pollution, Inc., Appellees.

No. 2D06-3891.

No. 2D07-3116.

District Court of Appeal of Florida, Second District.

February 10, 2009.

Rehearing Denied April 14, 2009.

Douglas Manson and Robert Birrenkott of Manson Law Group, P.A., Tampa; John R. Thomas of Thomas & Associates, P.A., St. Petersburg, for Appellant Peace River/Manasota Regional Water Supply Authority.

Edward P. de la Parte, Jr., and David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa, for Appellant Charlotte County.

Stephen E. DeMarsh, County Attorney, and David M. Pearce, Assistant County Attorney, Sarasota, for Appellant Sarasota County.

David M. Owen, County Attorney, and Susan Henderson, Assistant County Attorney, Fort Myers, for Appellant Lee County.

Leon Jacobs, Tallahassee, and Eric Huber, Boulder, Colorado, for Appellant Sierra Club.

Steven L. Brannock of Holland & Knight LLP, Tampa; Rory C. Ryan and Roger W. Sims of Holland & Knight LLP, Orlando; Robert L. Rhodes, Jr., of Holland & Knight LLP, Atlanta, GA; and Frank E. Matthews and Susan L. Stephens of Hopping Green & Sams, Tallahassee, for Appellee IMC Phosphates Company.

Francine M. Ffolkes, Administrative Law Counsel, and Justin G. Wolfe, Senior Assistant General Counsel, for Appellee Department of Environmental Protection.

No appearance for Appellees Alan Behrens and DeSoto Citizens Against Pollution, Inc.

VILLANTI, Judge.

The Peace River/Manasota Regional Water Supply Authority (the Authority), joined by three counties and the Sierra Club, appeals the final order issued by the Department of Environmental Protection (DEP) that granted various permits to IMC Phosphates Company (IMC) to operate a new phosphate mine. The Authority raises three grounds for review: (1) that the Administrative Law Judge (ALJ) erred when he determined that the Authority lacked standing to challenge IMC's permit application; (2) that the ALJ erred by refusing to consider evidence of the cumulative impact of IMC's proposed mining activities on the Peace River itself and the Peace River basin as a whole; and (3) that various procedural irregularities occurred that rendered portions of the proceedings fundamentally unfair. As to ground one, we hold that the Authority did have standing to challenge IMC's permit application and to prosecute this appeal, and we write to explain our reasoning. As to ground two, we affirm and write to explain why, given the plain language of the statutory provision at issue and the facts as found by the ALJ, such a conclusion is required. Finally, as to ground three, we affirm for the reasons explained in our companion opinion in Charlotte County v. IMC Phosphates Co., No. 2D06-3848, 18 So.3d 1089, 2009 WL 331661 (Fla. 2d DCA Feb. 10, 2009).

Background

The events culminating in this appeal began in 2000 when IMC filed a Consolidated Development Application with DEP seeking an environmental resource permit that was required before it could begin construction of a new phosphate mine on a 20,675-acre tract of land. At the same time, IMC sought approval of a conceptual reclamation plan, which would govern IMC's obligations to reclaim the wetlands after mining. After DEP issued a notice of intent to issue the permits in January 2003, the Authority, Charlotte County, Lee County, Alan Behrens, and DeSoto Citizens Against Pollution, Inc., filed petitions for formal administrative proceedings to challenge the issuance of the permits.¹ All of the petitions were subsequently consolidated.

In 2004, in response to certain DEP rulings concerning other pending permit applications, IMC filed an amended application that reduced the size of the proposed mining project to 4197 acres. After DEP issued revised notices of intent to issue the permits, Sarasota County filed a petition in opposition to the revised project. All of the administrative proceedings relating to this project were subsequently consolidated and set for hearing.

Prior to the hearing, IMC filed what was essentially a motion in limine seeking to exclude any evidence of the cumulative impacts of this project and others on the Peace River and the Peace River basin based on the provisions of section 373.414(8)(b), Florida Statutes (2004). The ALJ granted this motion, thus precluding the Authority from presenting evidence concerning the cumulative impacts of all of the previous and pending unrelated mining activity in the Peace River basin and the potential "big picture" incremental impact of IMC's proposed project. In light of this ruling, the Authority proffered its cumulative impacts evidence during the hearing.

Also prior to the hearing, IMC filed a "Motion to Challenge Standing of All Petitioners," alleging as to the Authority that it did not have standing to challenge the issuance of the permit because its substantial interests would not be affected if the permit issued. The parties then stipulated to the ALJ considering the standing issue during the administrative hearing on the merits.²

After eight weeks of testimony, the ALJ issued his recommended order. In that order, the ALJ found that the Authority did not have standing because its substantial interests were not affected by the order; however, the ALJ noted that the issue was moot because the Authority had fully participated in all the proceedings. The ALJ also reaffirmed his ruling that IMC was not required to address the cumulative impacts of the project under the plain language of section 373.414(8)(b). In addition, the ALJ recommended that DEP grant IMC's permit application but only after implementing a series of additional permit conditions that would strengthen the environmental protections. After further proceedings not relevant to the issues discussed in this opinion, DEP adopted the majority of the recommended order, including the ALJ's rulings on standing and the admissibility of the evidence concerning cumulative impacts. Based on the ALJ's findings of fact and conclusions of law and DEP's own analysis of the law, DEP granted the permits sought by IMC but with the additional conditions recommended by the ALJ. The Authority then brought this appeal of DEP's ruling.

Standard of Review

In an appeal from final administrative action, this court reviews the findings of fact made by the ALJ and adopted by the administrative agency to determine whether they are supported by competent, substantial evidence. § 120.68(7)(b), Fla. Stat. (2004); see also Pauline v. Lee, 147 So.2d 359, 363 (Fla. 2d DCA 1962); Reily Enters., LLC v. Fla. Dep't of Envtl. Prot., 990 So.2d 1248, 1251 (Fla. 4th DCA 2008); Maynard v. Fla. Unemployment Appeals Comm'n, 609 So.2d 143, 145 (Fla. 4th DCA 1992). This court "shall not substitute its judgment for that of the administrative law judge as to the weight of the evidence on any disputed finding of fact." § 120.68(10); see also Pauline, 147 So.2d at 363 (holding that this court will not "substitute its judgment for that of the administrative fact finder who heard the testimony and was in a position to evaluate the credibility of witnesses" because "[e]vidence is weighed by the administrative agency and not by the courts"); Maynard, 609 So.2d at 145 ("[T]he credibility of witnesses and testimony is a matter which falls solely within the purview of the ... finder of fact".). Moreover, when an agency has exercised its discretion on a matter, this court "shall not substitute its judgment for that of the agency on an issue of discretion." § 120.68(7); see also Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So.2d 594, 597 (Fla. 1st DCA 2000) ("[A] discretionary decision must be affirmed on appeal if the agency has not exceeded the scope of its discretionary authority."). However, this court reviews the agency's conclusions of law de novo. § 120.68(7)(d); see also Sw. Fla. Water Mgmt. Dist., 773 So.2d at 597.

The Authority's claims concerning both standing and the cumulative impacts evidence are claims concerning statutory interpretation and the application of the statutes to the facts of the case. Thus we review the interpretation of the statutory language de novo, but we must defer to the ALJ's factual findings that are supported by competent, substantial evidence when applying the statute to the facts.

Standing in the Proceedings Below

The Authority first contends that the ALJ and DEP erred by determining that the Authority did not have standing in the administrative proceedings. While this argument is technically moot since the ALJ allowed the Authority to fully participate below, we address the issue because it is raised by IMC in every permitting case and because the ALJ's and DEP's conclusions on this issue are incorrect.

As a general proposition, "[s]tanding is a legal concept that requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly." Hayes v. Guardianship of Thompson, 952 So.2d 498, 505 (Fla. 2006); see also Hutchison v. Chase Manhattan Bank, 922 So.2d 311, 315 (Fla. 2d DCA 2006); Gen. Dev. Corp. v. Kirk, 251 So.2d 284, 286 (Fla. 2d DCA 1971) ("Standing is, in the final analysis, that sufficient interest in the outcome of litigation which will warrant the court's entertaining it."). Thus standing depends on the nature of the injury asserted and the purpose and scope of the administrative proceeding. Agrico Chem. Co. v. Dep't of Envtl. Regulation, 406 So.2d 478, 482 (Fla. 2d DCA 1981); Friends of the Everglades, Inc. v. Bd. of Trs. of the Internal Improvement Trust Fund, 595 So.2d 186, 189 (Fla. 1st DCA 1992); see also Hayes, 952 So.2d at 505. It does not depend on the elements or merits of the underlying claim. See St....