IN THE SUPREME COURT OF FLORIDA

KAREN AHLERS, a citizen and taxpayer

of Florida residing in Putnam County,
NEIL ARMINGEON, a citizen and taxpayer
of Florida residing in Duval County,
ENVIRONMENTAL YOUTH COUNCIL
ST. AUGUSTINE, an unincorporated
Florida association, FLORIDA CLEAN WATER
NETWORK, INC., a non-profit Florida
corporation, and PUTNAM COUNTY
ENVIRONMENTAL COUNCIL, INC.,
a non-profit Florida corporation,
Petitioners,
vs.

Case No. _______

RICK SCOTT, Governor,

PAM BONDI, Attorney General,
JEFF ATWATER, Chief Financial Officer,
and ADAM PUTNAM,
Commissioner of Agriculture, as Trustees
of the Internal Improvement Trust Fund,
Respondents.
________________________________________/
PETITION FOR WRIT OF MANDAMUS
Petitioners, KAREN AHLERS, a citizen and taxpayer of Florida residing in
Putnam County, NEIL ARMINGEON, a citizen and taxpayer of Florida residing in
Duval County, ENVIRONMENTAL YOUTH COUNCIL ST. AUGUSTINE
(EYC), an unincorporated Florida association, FLORIDA CLEAN WATER
NETWORK, INC. (FCWN), a non-profit Florida corporation, and PUTNAM

COUNTY ENVIRONMENTAL COUNCIL, INC. (PCEC), a non-profit Florida

corporation, respectfully petition this Court for a writ of mandamus against
Respondents, RICK SCOTT, Governor, PAM BONDI, Attorney General, JEFF
ATWATER, Chief Financial Officer, and ADAM PUTNAM, Commissioner of
Agriculture, as Trustees of the Internal Improvement Trust Fund (Trustees).1
Petitioners respectfully seek the help of the Court to confront a new
unconstitutional phase in Floridas long history of providing assistance to paper
and pulp companies. Some of this assistance has been in-kind in the form of
sacrificed water bodies that in decades past were converted to depositories for
industrial pollutants. This time there is an express constitutional public trust
provision and corollary statutes and rules that must be satisfied. In addition, due
process must be met and administrative procedures provided to ensure that citizens
and taxpayers are protected.

This petition is styled using the Florida constitutions terminology referencing

Respondents. Under Article IV, Section 4(f), The governor as chair, the chief
financial officer, the attorney general, and the commissioner of agriculture shall
constitute the trustees of the internal improvement trust fund. Under Floridas
1968 constitution, each Trustee has equal footing, and Cabinet members are no
longer expected, constitutionally, to capitulate to the Governors wishes. [C1] By
statute, the Trustees collectively have been designated as the Board of Trustees
of the Internal Improvement Trust Fund. 253.001, Fla. Stat. The petition
encompasses the Trustees acting both as individual Trustees and collectively as a
board. References to Trustees also encompass their predecessor trustees where
applicable.
2

Petitioners Ahlers and Armingeon and substantial numbers of members of

EYC, FCWN, and PCEC are beneficiaries of the constitutional public trust with
rights to fish, swim, and recreate in the entire St. Johns River unless prevented
from doing so by private use validly authorized by the Trustees. The river is part of
the common heritage of the people, designated by Presidential Executive Order as
an American Heritage River. Their rights are under imminent threat in
designated areas of the river through the failure of the Trustees to require that their
authorization be obtained for private degradation zones used in association with
paper or pulp mill pipelines. Mixing of paper mill pollutants is private use of
sovereignty lands. This use requires proprietary authorization by the Trustees, if it
can occur at all.
In the very near future, several private degradation areas on the river will be
emanating from a newly constructed Georgia-Pacific paper mill pipeline in Putnam
County.2 The private degradation areas are so-called mixing zones adjacent to a
1000-foot diffuser structure located perpendicular across the middle of the river.
By fall the paper mill expects to begin using dedicated areas in the heart of the
slow-moving tidally-influenced St. Johns River for each day mixing tons of solids
and other wastes inconvenient to Georgia-Pacific. A few inches from the river

The mill currently discharges into Rice Creek. Although Georgia-Pacific

maintains the river is a better location to discharge, it has no vested right from the
Trustees at either location.
3

bottom, the industrial waste constantly will shoot out in both up and down stream
directions.
The zone boundaries have been determined, but never formally approved, by
the Florida Department of Environmental Protection (FDEP). Under FDEP rule,
a limited defined region can be significantly degraded to reduce the costs of
treatment.3 Thus, the public is being forced to use its common property to
subsidize Georgia-Pacific. Even if FDEP does one day give formal approval to
these mixing zones, the Trustees may not abdicate their own fiduciary
responsibilities carefully to review the mixing zones in a proprietary process that
conforms with due process and is subject to administrative fact-finding. Only then
will the Trustees be in a position to know whether the private use mixing zones are
contrary to the public interest, and if not, to establish appropriate terms and
conditions of authorization.

The mixing zones were developed under Florida Administrative Code Rule 624.244 for specified non-thermal components of paper mill discharges other than
nitrogen or phosphorus acting as nutrients. Petitioners are not seeking relief in this
petition concerning (a) public use of sovereignty lands; (b) potential effects
outside of defined paper or pulp pipeline-related mixing zones; (c) thermal
discharges; or (d) nitrogen or phosphorus acting as nutrients. Public use of
sovereignty lands is not covered by the last sentence of Art. X 11, Fla. Const.
(Private use of portions of such lands may be authorized by law, but only when
not contrary to the public interest.). See discussion in Part IV.D., infra; see also
Fla. Admin. Code R. 18-21.003(53) (defining public utilities). For purposes of
this facial challenge, Petitioners assume FDEP has properly defined the boundaries
within which degradation by Georgia-Pacific will occur.
4

FDEP does not own the sovereignty lands; the Trustees do, in trust for the
people. Nor does FDEP purport to grant proprietary authorization for mixing zones
or, where private use is determined to be appropriate, establish equitable
compensation from the private user to the people. In contrast, the Trustees duties
include conserving and protecting these areas to ensure that they are not subjected
to private use contrary to the publics rights to fish, swim and recreate and that
private use only is authorized in accordance with the public trust, due process, and
other law.
Petitioners seek expedited resolution of this petition. The Georgia-Pacific
pipeline project is expected to be placed into operation within months.4 [E16-7]
The Trustees have performed no public interest review of the private use
degradation zones and granted no authorization applying to them. In 2003, in a
split decision with the then Attorney General voting no, predecessor Trustees
approved a private easement for the pipeline corridor only. The decision was based
on extremely limited and provisional information, without giving the public a clear
point of entry to contest the decision.5 The pipeline structure itself is not

At least one other paper or pulp mill pipeline project reliant on mixing zones (the
Buckeye project in Taylor County) also may be constructed at some point. [D171]
However, it is the imminent unconstitutional private use of mixing zones related to
the Georgia-Pacific pipeline that justifies this Court immediately addressing the
Trustees abdication.
5
The private easement for the pipeline construction corridor was approved with
limited information provided by the FDEP that did not include the mixing zones.
5

significantly harmful, lying inert and largely subaqueous in an easement corridor

that is a fraction of the total defined mixing area that will be privately appropriated
for use by Georgia-Pacific.
When put into use, the paper mills degradation zones will constitute an
unauthorized and unconstitutional private use of sovereignty lands. Not a penny
will have been compensated to the citizens of Florida for the private use of
sovereignty lands, loss of resources, and loss of constitutionally-protected public
uses associated with the mixing zones.6 Most troubling, money cannot compensate
the people of this state for the creation of what are likely to become multigenerational if not permanent paper mill degradation areas in the heart of the St.
Johns River. This Court should take action to ensure that the Trustees cease
abdicating their fiduciary duties and do their job before the degrading private paper
mill use of mixing zones on the St. Johns River begins.
Because this action was taken by a prior Governor and Cabinet, on or about May
23, 2012, Petitioners Ahlers, Armingeon, EYC, and FCWN gave the current
Trustees notice of their intent to file this petition. [A26-7] Petitioners have received
no response from any of the Trustees.
6
The appraisal for the pipeline easement, and the easement document itself, on
their face did not cover the mixing zones. One cannot even assume that equitable
compensation was obtained for the largely subaqueous pipeline placement because
the Trustees have failed to obtain a required reappraisal immediately prior to the
time of actual construction. In effect, the Trustees will be giving an additional
much larger private easement away to a paper company causing substantially more
harm to state lands, and substantially more lost public use and enjoyment, than the
pipeline itself, without obtaining just compensation for the beneficiaries of the
trust, if the pipeline operations were to commence without appropriate action on
their part.
6

I. JURISDICTION AND QUESTION PRESENTED

This Court has original jurisdiction to issue a writ of mandamus pursuant to
Article V, Section 3(b)(8) of the Florida Constitution and Rules 9.030(a)(3) and
9.100(a) of the Florida Rules of Appellate Procedure. This case involves imminent
private use of public trust lands for paper mill cost-saving degradation areas,
without proper authorization from the Trustees, where the Attorney General herself
is a Trustee alleged to be acting in violation of fiduciary duties. All citizens and
taxpayers of the state, including those who will be required to enforce the law and
those who will be required to endure the uncompensated taking for private use of
public trust lands for degradation zones, will benefit from Court resolution of this
constitutional case. State public trust assets and functions of state government will
be adversely affected by protracted litigation concerning the Trustees
responsibilities.
The Trustees are acting ultra vires, in violation of the public trust embodied
in the Florida constitution, and in violation of due process under the Florida and
United States constitutions, by not exercising their own independent proprietary
judgment and responsibility to protect defined portions of the river from
unauthorized planned private degradation and by not even assuring that the public
receives clear notice of the right to request administrative proceedings on Trustee
decisions. See, e.g., Fla. House of Representatives v. Crist, 990 So.2d 1035 (Fla.
7

2008) (Florida Governor exceeded his authority under the separation of powers of
Art. II, 3, Fla. Const., when he entered into a compact with an Indian Tribe that
expanded casino gambling on tribal lands under the Indian Gaming Regulatory
Act, 25 U.S.C.S. 2701-2721); Clearwater v. Caldwell, 75 So.2d 765, 768 (Fla.
1954) (The doctrine of ultra vires is much more strictly applied to it than to a
private corporation, for the limits of its power depend on public law which all
persons dealing with it are bound to know.); Board of Public Instruction v. Knight
& Wall Co., 100 Fla. 1649, 1655, 132 So. 644, 646 (1931) (Persons dealing with
boards of public instruction are on notice of these provisions of the law and any
contract for the pledge of public school funds not contemplated hereby is ultra
vires.); cf. Liberty Counsel v. Fla. Bar Bd. of Governors, 12 So.3d 183, 192 (Fla.
2009) (because there are no other legal or constitutional prohibitions against the
actions of the Family Law Section, we cannot conclude that the actions of the Bar
were unauthorized).
Writ of mandamus is a proper remedy because this petition involves pure
questions of constitutional law, and functions of government will be adversely
affected unless an immediate determination is made by this Court. See Allen v.
Butterworth, 756 So.2d 52, 54 (Fla. 2000) ([M]andamus is the appropriate vehicle
for addressing claims of unconstitutionality where functions of government will
be adversely affected without an immediate determination.); see also Chiles v.
8

Phelps, 714 So.2d 453, 455 (Fla. 1998) (mandamus and quo warranto appropriate
where the Governor sought mandamus challenging the Legislatures override of
vetoes and members of the public sought quo warranto to enforce their public right
to have the Legislature act in a constitutional manner); Chiles v. Milligan, 659
So.2d 1055, 1056 (Fla. 1995) (citing Article V, section (3)(b)(8), in exercising
original jurisdiction where Governor sought mandamus to compel Secretary of
State to expunge unconstitutional proviso from official records); Moreau v. Lewis,
648 So.2d 124, 126 (Fla. 1995) (We exercise our discretion [issuance of
mandamus] in this case because we believe that an immediate determination is
necessary to protect governmental functions.); Hoy v. Firestone, 453 So. 2d 814,
815 (Fla. 1984) (recognizing jurisdiction under Article V, section 3(b)(8), to
consider petition for writ of mandamus directing the Secretary of State to place
candidates name on the ballot for nonpartisan judicial election); Republican State
Executive Comm. v. Graham, 388 So. 2d 556, 559 (Fla. 1980) (finding that the
Court has original jurisdiction to consider petition for mandamus when no facts are
in question and the issue involves a straightforward question of law) (The time
constraint imposed by the date of the general election is sufficiently critical that we
find a mandamus proceeding in this Court to be an appropriate remedy.).
Because this mandamus action seeks to vindicate constitutional public trust
rights and duties, Petitioners are entitled to bring it whether or not they are injured.
9

See School Board of Volusia County v. Clayton, 691 So. 2d 1066, 1068 (Fla. 1997)
(requiring special injury or constitutional challenge); see also Whiley v. Scott, 79
So. 3d 702, 706 n. 4 (Fla. 2011) (petition for writ of quo warranto is directed at
the action of the state officer and whether such action exceeds that positions
constitutional authority). Although not required for the Court to exercise its
jurisdiction, Petitioners will be injured in their public rights and need for the Court
to exercise its jurisdiction to enforce and protect their public rights. Citizens and
taxpayers, including Petitioners Ahlers and Armingeon and substantial numbers of
members of EYC, FCWN, and PCEC, are facing imminent and long-lasting harm
to their public rights to use and enjoy trust lands for swimming, fishing, and
recreation in the portions of the St. John River that will be degraded by mixing
zones to save Georgia-Pacific money. Petitioners should not be left to suffer the
degrading consequences of Trustee abdication in the face of constitutional,
statutory, and rule duties that have been disregarded. Timely and effective access
to justice should be open to beneficiaries of the public trust seeking vindication of
their rights and accountability of their fiduciaries. Art. I, 21, Fla. Const. (Access
to courts.The courts shall be open to every person for redress of any injury, and
justice shall be administered without sale, denial or delay.). The river and those it
benefits should not be forced to wait years to get this Courts constitutional views
on a critical aspect of a subject it has been dealing with for more than a century.
10

See, e.g., St. ex rel. Ellis v. Gerbing, 47 So. 353, 357 (Fla. 1908) (a swamp deed
does not affect the title held by the state to lands under navigable waters by virtue
of the sovereignty of the state).
II. STATEMENT OF THE CASE AND FACTS
A.

Parties
1.

Petitioners

Petitioner Karen Ahlers is a citizen and taxpayer of Florida residing in

Putnam County. [A1-13] Petitioner Neil Armingeon is a citizen and taxpayer of
Florida residing in Duval County. [A14-5] Petitioner EYC is an unincorporated
Florida association that works to protect the environment.7 [A16-9] Petitioner
FCWN is a non-profit Florida corporation that works to protect Florida waters.
[A20-2] Petitioner PCEC is a non-profit Florida corporation that works to protect
the environment in Putnam County. [A23-5] Florida public trust lands in which
Petitioners are interested include the St. Johns River, an American Heritage River.8
[D1-9] Petitioners Ahlers and Armingeon and substantial numbers of members of
Petitioners EYC, FCWN, and PCEC are citizens and taxpayers of Florida who use,
enjoy, and benefit from the St. Johns River for fishing, swimming, and recreation

EYC sometimes also has used the name Environmental Youth Congress. [A19]
The river is a world class fishing, swimming, and recreational use water body,
including major fishing tournaments that are based in nearby Palatka and other
useful, enjoyable, and beneficial activities that occur in and around the areas
designated for Georgia-Pacific mixing zones. [A3-13, D1-9]
11
8

and who enjoy the fish and wildlife at the river. [A1-25] These members of EYC
include substantial numbers of young adults whose rights are at stake but who were
not of the age of majority in 2003 when the Board approved a private easement for
the pipeline corridor. [A17]
2.

Respondents

Under Article IV Section 4(f) of the Florida constitution, Respondents are

the Trustees of the Internal Improvement Trust Fund. See also 253.001, Fla.
Stat. (The existence of the Board of Trustees of the Internal Improvement Trust
Fund is reaffirmed. All lands held in the name of the board of trustees shall
continue to be held in trust for the use and benefit of the people of the state
pursuant to s. 7, Art. II, and s. 11, Art. X of the State Constitution."); 253.12 ((1)
the title to all submerged lands owned by the state by right of its sovereignty
in navigable freshwater lakes, rivers, and streams, is vested in the Board of
Trustees of the Internal Improvement Trust Fund).9 [C1-91]
B. Subject Matter
1.

The Public Trust

In 1968, Florida voters substantially revised the state constitution. This

overhaul included the following provision on sovereignty lands:
Section 11. Sovereignty Lands. The title to lands under navigable waters,
within the boundaries of the state, which have not been alienated, including
9

See also the references to Trustee duties in Part II.B., infra.

12

beaches below mean high water lines, is held by the state, by virtue of its
sovereignty, in trust for all the people. Sale or private use of portions of such
lands may be authorized by law, but only when not contrary to the public
interest.
[B114-7] Under this version of the provision, While sale or private use of such
lands could be authorized by act of the Legislature, such authorization was possible
only when not contrary to the public interest. Dauer, M. J., Bartley, E. R.,
Marks, T. C., Proposed Amendments to the Florida Constitution, 1970 General
Election, Public Administration Clearing Service of the University of Florida,
Civic Information Series No. 50, p. 17 (1970) [B114-7].10 In 1970, when Article X,
Section 11 was amended by the voters to further tighten controls on sales (which
thereafter were required to be in the public interest), the operative language
pertaining to private use was unchanged.11 [Id.]
Hence, since 1968, by direct democratic action of the people, under the
Florida constitution private use of even portions of sovereignty lands may only
be authorized when not contrary to the public interest. This was almost four
years prior to the federal governments passage of the modern Clean Water Act
10

The first sentence embodies the general public trust doctrine, which became a
part of Floridas common law heritage as soon as Florida became a state. See Part
III., infra, for discussion of pertinent case law.
11
SECTION 11. Sovereignty lands.The title to lands under navigable waters,
within the boundaries of the state, which have not been alienated, including
beaches below mean high water lines, is held by the state, by virtue of its
sovereignty, in trust for all the people. Sale of such lands may be authorized by
law, but only when in the public interest. Private use of portions of such lands may
be authorized by law, but only when not contrary to the public interest.
13

(Pub.L. 92-500, October 18, 1972).12 Both prior to the adoption of the Clean Water
Act and thereafter, the Trustees repeatedly acknowledged jurisdiction over the
water column.13 [C17-55]
In addition to the Florida constitution, the Florida statutes make the
Trustees duties mandatory:
Said board of trustees . . . shall remain subject to and pay, fulfill,
perform, and discharge all debts, duties, and obligations of their trust,
existing at the time of the enactment hereof or provided in this
chapter.

12

FDEP currently implements that acts National Pollutant Discharge Elimination

System (NPDES) permitting system for Florida. [D34-83, 115-32, 172-211]
13
Petitioners appendix [C17-55] contains excerpts with numerous references to
water column in the Trustees minutes between the years 1968-1974. See, e.g.,
Board of Trustee Minutes, 7/2/1971 (The Governor mentioned the state's position
that it had jurisdiction over the water column, and Mr. Stone asked the applicant to
furnish his office information.); 9/11/1972 (The Trustees also have
acknowledged the proposed work will be within an area of very productive
submerged bay bottom; the proposed spoil area is bordered on the waterward side
by intertidal red mangroves. Even if the spoil area is diked at the mean high water
line to eliminate some siltation, there will be substantial direct damage from
dredging and possible secondary adverse effects from silt placed in the water
column by the dredging.); 8/7/1973 (The limited construction required for the
installation of two bridges over submerged land should not have significant
adverse effects on marine biological resources provided every effort is made to
contain the by-products of construction on the uplands and keep disturbance of the
submerged lands and water column at a minimum.); 10/16/1973 (Survey and
Management: This project should have only limited direct adverse effects on
marine biological resources if measures are taken to prevent siltation of the
adjacent waters. The application does not show any proposed method of
stabilization for either interior or exterior shorelines. Such unvegetated,
unstabilizing marl shorelines contribute suspended fines to the water column.).
14

 253.02(1), Fla. Stat. The Trustees have the fiduciary responsibility,

completely independent of any regulatory responsibilities of the FDEP,
carefully to evaluate the public interest associated with private use of
portions of sovereignty lands that might impact the publics rights to use the
affected areas.14 The Trustees acting as a board are vested and charged with

14

The current cabinet website indicates that the Trustees continue to recognize the
public trust doctrine:
The Board of Trustees also administers the state's sovereignty lands,
those water bodies within the state's territorial limits that were
navigable at the date of statehood. These include coastal shores below
mean high water, and navigable fresh waters such as rivers and lakes
below ordinary high water. The public status of these lands is
protected by the Public Trust Doctrine as codified in Article X,
Section 11 of the Florida Constitution.
[C4-5] (emphasis added). The Trustees Conceptual State Lands Management Plan
further elaborates on their fiduciary responsibilities:
Prior to discussing the activities affecting the utilization of lands
vested in the Board of Trustees of the Internal Improvement Trust
Fund, it is essential to examine the legal concepts surrounding such
trust arrangements.
Important concepts warranting definition and discussion include: (l)
trust, (2) trustees, (3) cestui que trust, and (4) fiduciary. For the
purposes of discussion, Blacks Law Dictionary has been used for all
definitions.
(1) Trust - "A right of property, real or personal, held by one party for
the benefit of another." It is also defined as "a fiduciary relation with
respect to property subjecting person by whom the property is held to
equitable duties to deal with the property for the benefit of another
person which arises as the result of a manifestation of an intention to
create it."
(2) Trustee - "The person appointed, or required by law, to execute a
trust; one in whom an estate, interest, or power is vested, under an
express or implied agreement to administer or exercise it for the
benefit or the use of another called the cestui que trust."
15

the acquisition, administration, management, control, supervision,

conservation, protection, and disposition of state lands. 253.03(1), Fla.
Stat.

(3) Cestui que trust -"The person for whose benefit a trust is created or
who is to enjoy the income or the avails of it."
(4) Fiduciary - "A person holding the character of a trustee, or a
character analogous to that of a trustee, in respect to the trust and
confidence involved in it and the scrupulous good faith and candor
which it requires. "The "trust", per se, is established pursuant to
Chapter 253, Florida Statutes, and generally consists of those stateowned lands in which title is vested in the Board of Trustees of the
Internal Improvement Trust Fund. The trust also includes those
"fruits" of the trust that have been generated and returned to the trust
for administration by the Board. The beneficiary or "cestui que trust"
of the trust is the state, which, by extension, is the general citizenry of
Florida. "State" has been defined as "a people permanently occupying
a fixed territory bound together by common-law habits and custom
into one body politic exercising, through the medium of an organized
government, independent sovereignty and control over all persons and
things within its boundaries... (Emphasis added). Therefore,
management of state-owned lands is for the benefit of all the citizens
of Florida; and to this end, a fiduciary relationship exists with this
general public. The Florida Constitution (Article II, Section 7 and
Article IX, Section 11), Chapter 253, Florida Statutes, and certain
other statutes provide specific guidance in relation to the trust
and fiduciary obligations. Statutory direction such as "The Board of
Trustees of the Internal Improvement Trust Fund is hereby authorized
and directed to administer all state-owned lands and shall be
responsible for the creation of an overall and comprehensive plan of
development concerning the acquisition, management and disposition
of state-owned lands, so as to insure maximum benefit and use"
(Section 253.03(7), Florida Statutes) must, therefore, be executed
within the confines of this fiduciary relationship.
Conceptual State Lands Management Plan, p. 3 (3/17/1981, revised 7/7/1981 and
3/15/1983). [C56-91]
16

2.

The Mixing Zones

FDEP classifies the St. Johns River in the area of the mixing zones as Class
III, with designated uses of Fish Consumption; Recreation, Propagation and
Maintenance of a Healthy, Well-Balanced Population of Fish and Wildlife. Fla.
Admin. Code R. 62-302.400. Under Section 403.061(11), Florida Statutes, the
Legislature have given FDEP authority to establish reasonable zones of mixing
for discharges into waters. FDEP in turn has a rule for establishing mixing zones
in surface waters. Fla. Admin. Code R. 62-4.244 (Mixing Zones: Surface
Waters). Under this rule, water quality and the designated uses of a water body
may be significantly degraded in a limited defined region. Fla. Admin. Code
R. 62-4.244(1)(a) and (f). According to FDEPs policy judgment, significant
portions of a river effectively can be lost to the public for their FDEP-designated
use as long as the cumulative mixing zones on the river do not exceed 10% of its
length, Florida Administrative Code Rule 62-4.244(1)(i)1, which for the St. Johns
River would be 31 of its 310 miles. [D1] The mixing zones may be allowed so as
to provide an opportunity for mixing and thus to reduce the costs of treatment.
Fla. Admin. Code R. 62-4.244(1)(a).
Based on this rule, FDEP has defined several St. Johns River mixing zones
for the Georgia-Pacific pipeline project. [D34-83, 101-14, 172-211] The mixing
zone for chronic toxicity listed in the new proposed NPDES permit [D172-211]
17

was not mentioned in the 2002 NPDES permit DEP granted for the facility [D3483].15 No mixing zones have been approved by FDEP as required to take effect
under the 2002 NPDES permit.16 [D40, 50] Nonetheless, Georgia-Pacific will be
using the mixing zones in the St. Johns River when the pipeline is completed this
fall [E16-7].
The mixing zones are between 108 feet (33 meters) and 2408 feet (734
meters) in width for the 1000-foot distance of the diffuser structure that is attached
to the pipe (plus additional footage on both ends of the diffuser). [D34-83, 108-14,
172-211] While the Trustees are abdicating their responsibility, portions of the St.
Johns River will be constantly, and potentially permanently, degraded through
private use mixing zones, not finally approved even by FDEP, where water quality

15

On the other hand, FDEP has determined that Georgia-Pacific will not need
mixing zones for dissolved oxygen, total recoverable iron, total recoverable
cadmium, and total recoverable lead; mixing zones for these parameters are
eliminated from the new draft NPDES permit. [D108-14, 172-211]
16
The 2002 NPDES permit set up an iterative process that required further analysis
and administrative procedure before any of the mixing zones could be authorized
by FDEP. [D40, 50] This process was never completed by administrative process,
and none of the mixing zones mentioned in 2002 NPDES permit is currently
approved by FDEP. However, in recent years continuing FDEP staff review has
occurred, allowing the elimination of some mixing zones from consideration, and
the discernment of the need for the chronic toxicity mixing zone. [D101-14, 172211]
18

standards will not be met for chronic toxicity, un-ionized ammonia, turbidity,
specific conductance, and color/transparency.17
3.

The Private Pipeline Corridor Easement

The Trustees have made no findings concerning the public interest of

allowing, or issued any document authorizing, the private use mixing zones.18
[C95-173] Zones of degradation or lost public use are not covered in any Trustee
private easement or other proprietary authorization. Both in terms of the privately
used area and the nature of the private use, the zones go beyond the existing
easement.19 [C165-73] No compensation has been paid for the mixing zones, and

17

In addition to the fact that FDEP now has concluded that a chronic toxicity
mixing zone will be required, Georgia-Pacific has been found by USEPA through
high volume testing to exceed the applicable water quality for dioxin, which
primarily is present in the solids, tons per day of which will be released into the
mixing zones. [D115-43, 160-9] FDEP normally accepts paper and pulp mill
dioxin tests with detection limits set well above the water quality criterion. [D3483, 115-43, 172-211] If dioxin later materializes in streambed sediments, FDEP
disregards the sediment data in assessing stream water quality. [D170] Cost
savings also will result from allowing Georgia-Pacific to dump its salt cake into
the mixing zones, driving up specific conductivity. [D144-63]
18
Like their predecessors [C94], the Trustees have not given the public notice of a
clear point of entry to request an administrative hearing to challenge the Trustees
thinking. The Trustees decision-making process does not list administrative
procedures. [C5] Petitioners have attempted to raise the issues with the Trustees
[A26-7] but received no response.
19
The narrowest of the mixing zones are more than two times as wide as the
private easement, and, unlike the pipeline [C165-73], their effects would be
significant and ongoing. [D34-83, 108-14, 172-211] The largest mixing zone,
relating to color/transparency, is almost fifty times wider than the easement. The
19

any compensation paid was limited to the narrow subaqueous pipeline corridor
based on an appraisal restricted to the subaqueous 50-foot pipeline corridor.20 The
limited public interest analysis in the easement approval package did not refer or
apply to the mixing zones.21

project description of the Georgia-Pacific agenda item was:

[C106].
20
The special condition in the prior Trustees easement approval requiring
reappraisal immediately prior to the beginning of pipeline construction has not
even been met. [C100, 104, 107]
21
This analysis focused on facts that would not be germane to the mixing zones,
including the notion that the buried pipeline itself will maintain essentially natural
conditions and will not significantly impact fish and wildlife, and other natural
resources, including public recreation and navigation. [C106] The approval
package does not even discuss the existence of the mixing zones, their areas, or the
nature of their private use of sovereignty lands. The Trustee analysis of the project
20

4.

The Proprietary Authorization System That Applies to

Private Use of Any Portion of the St. Johns River

Assistance to industry in the form of public water body degradation for a

time was an integral part of state policy aimed at attracting industry to the state.22

does not even reference the mixing zones or their possible effects:

[C103]
22
This petition is not using the term corporate welfare in reference to this form
of assistance. The term corporate welfare more commonly is associated with
monetary assistance, such as the large tax credits paper and pulp companies
receive. [E3-8] A public advocate has referred to any government largess to
corporations as corporate welfare ([F]ree market ideology, of course, does not
21

This policy emanated in part from a constitutional fifteen-year tax exemption

passed during the Great Depression. Maloney, F. E., Plager, S. J. and Baldwin, F.
N., Water Law and Administration: The Florida Experience, 111.2(c) p. 320-1
[B1-16]. Gradually, the policy was narrowed to focus statutorily on particular
counties or water bodies.23 Id. However, with the advent of modern water pollution

extend to corporate welfare. The very corporations that sponsor this hypocritical
campaign continue to feed at the public trough, using their political connections to
obtain tax breaks, subsidies, inflated contracts and other government largess. This
ideology is useful, it seems, only when it lines the pockets of those preaching it.
Prepared Statement of Joan Claybrook, President, Public Citizen, Hearing Before
the Subcommittee on Consumer Affairs, Foreign Commerce and Tourism of the
Committee on Commerce, Science, and Transportation, United States Senate, 107th
Congress 2nd Session, http://ftp.resource.org/gpo.gov/hearings/107s/87971.txt, p.
25 (July 18, 2002) (emphasis added).) As discussed infra, under the Trustees own
rules if assistance legitimately can be provided to private companies in the form of
degradation zones, the value of the assistance would need to be monetized to
determine equitable compensation to the public. Before getting to the monetary
issue, however, the Trustees would have to ascertain the public interest concerning
the mixing zones, including all environmental, social and economic costs. Florida
Administrative Code Rule 18-21.003(51) states:
Public interest means demonstrable environmental, social, and
economic benefits which would accrue to the public at large as a
result of a proposed action, and which would clearly exceed all
demonstrable environmental, social, and economic costs of the
proposed action. In determining the public interest in a request for
use, sale, lease, or transfer of interest in sovereignty lands or
severance of materials from sovereignty lands, the board shall
consider the ultimate project and purpose to be served by said use,
sale, lease, or transfer of lands or materials.
23
Although Florida has wisely abandoned its legislative authorization to pollute
the states waters, a remnant of this policy is at Section 403.191(3), Fla. Stat.,
which limits the effect of special legislation passed in 1947 for the Fenholloway
River in Taylor County. Id. at 321; see also Little, J. W., New Attitudes About
Legal Protection for Remains of Floridas Natural Environment, 23 U. Fla. L. Rev.
22

laws, experts on Florida water law quickly became concerned with variance
provisions in state water pollution law, particularly when tied to cost-saving:
Most pollution control measures are expensive, and they probably will
become more expensive in the future. Postponement for cost reasons
only creates greater problems in the future.
Maloney, F. E., Plager, S. J. and Baldwin, F. N., Water Law and
Administration: The Florida Experience, 113.7(c) p. 336. Scholarly
concern was heightened by the tendency of the Trustees, as well as of the
predecessor to the FDEP and other state agencies, to become captive to
private interests:
As Professor Sax has demonstrated, bureaucratic agencies, including
those directly charged with protecting public interests, frequently
subvert environmental protection in favor of private interests or
perpetuating personal hegemony over bureaucratic processes. In other
words, the very agencies created to afford protection sometimes may
be the biggest impediments to obtaining it. a duty of constant
vigilance devolves upon the public media and concerned citizenry to
review continually the actions, and especially the inactions, of these
agencies.
Little, J. W., New Attitudes About Legal Protection for Remains of Floridas
Natural Environment, 23 U. Fla. L. Rev. at 498 (footnotes omitted). To
ensure a complete approach to protecting the public interest in water, both
pollution control laws and the public trust doctrine were considered under

459, 461 n. 13 (1970-1971) (The ugly episode of turning the Fenholloway River
into an industrial sewer with legislative approval is one of the darkest in Florida's
history of exploitation. Fla. Laws Spec. Act. 1947, ch. 24952.) [B118-73].
23

the topic of water law. See Maloney, F. E., Plager, S. J. and Baldwin, F. N.,
Water Law and Administration: The Florida Experience, 13 at 27
(referring to the historical marriage of the law governing title to beds with
the public and private uses in the overlying waters), 132.2 p. 415 (calling
for the preparation of a legal brief for the citizens of Florida defining the
relationship between public and private interests in water use).
Under the proprietary system for which the Trustees have fiduciary
responsibility, the Trustees must ensure that the private user will not cause
an interference with the publics rights in those portions of navigable waters,
unless this is not contrary to the public interest and just compensation is
provided. No person may commence any excavation, construction:
or other activity involving the use of sovereign lands of the state,
the title to which is vested in the board of trustees of the Internal
Improvement Trust Fund under this chapter, until the person has
received the required lease, license, easement, or other form of
consent authorizing the proposed use.
253.77(1), Fla. Stat. (emphasis added). This system was not intended to require
authorization for traditional public activities involving the use of sovereignty lands,
such as fishing, swimming, and recreation. In contrast, other activity requiring
authorization from the Trustees is activity that may diminish public use and
enjoyment of sovereignty lands. That was and is the most important part of the
Trustees obligation. In 2011, the Trustees repealed its intent section, Florida
24

Administrative Code 18-21.001, as being duplicative, unnecessarily burdensome,

or no longer necessary. [C11-4] However, this statement reveals the intent and
purpose behind the system, whether or not the Trustees wish to acknowledge it:
18-21.001 Intent.
The intent and purpose of this rule is:
(1) To aid in fulfilling the trust and fiduciary responsibilities of the
Board of Trustees of the Internal Improvement Trust Fund for the
administration, management and disposition of sovereignty lands;
(2) To insure maximum benefit and use of sovereignty lands for all
the citizens of Florida;
(3) To manage, protect, and enhance sovereignty lands so that the
public may continue to enjoy traditional uses including, but not
limited to, navigation, fishing and swimming;
(4) To manage and provide maximum protection for all sovereignty
lands, especially those important to public drinking water supply,
shellfish harvesting, aquaculture, public recreation, and fish and
wildlife propagation and management;
(5) To insure that all public and private activities on sovereignty lands
which generate revenues or exclude traditional public uses provide
just compensation for such privileges; and
(6) To aid in the implementation of the State Lands Management Plan.
Florida Administrative Code Chapter 18-21 is the Trustees set of rules for
Sovereignty Submerged Lands Management. Although failing to give the public
notice of the right to administratively protest the pipeline easement decision [C94],
the Trustees predecessors themselves made the decision to authorize the pipeline
corridor rather than purport to allow FDEP to decide the issue by any delegation.24

24

253.002(1), Fla. Stat. ([U]nless expressly prohibited by law, the board of

trustees may delegate to the department any statutory duty or obligation relating to
acquisition, administration, or disposition of lands .); Fla. Admin. Code R. 1821.00401(3) (consolidated notices of intent to issue or deny the proprietary
25

[C100-36] Moreover, no exercise of delegated administration or disposition

duties by FDEP could eliminate the Trustees own vested and charged
obligations for control, supervision, conservation, [and] protection of
sovereignty lands. 253.03(1), Fla. Stat. A mixing zone is not conservation and
protection of sovereignty lands. While there are places FDEP protects water
quality, mixing zones are not one of them.
The Trustees state in Florida Administrative Code Rule 18-21.002(1) that
the Department of Environmental Protection is vested with [r]esponsibility for
environmental permitting of activities and water quality protection on sovereignty
and other lands. This is not a delegation of proprietary duties. The same rule
also recognizes that FDEPs water quality protection responsibility is
cumulative with the proprietary rules. In 1993, FDEP was created out of a
merger of the former Florida Department of Environmental Regulation (FDER)
with the former Florida Department of Natural Resources (FDNR) (see Ch. 93213, Laws of Florida). The pre-merger version of the rule expressed the cumulative
nature of the proprietary rules, maintained by the then FDNR, with FDEPs water
quality responsibility as follows:
(1) These rules are to implement the administrative and
management responsibilities of the board and department regarding
authorization and an environmental resource permit or wetland resource permit);
see also Fla. Admin. Code R. 18-21.0051 (delegation of authority in relation to
operating agreements between FDEP and water management districts).
26

sovereign submerged lands. Responsibility for environmental

permitting of activities and water quality protection on sovereign and
other lands is vested with the Department of Environmental
Protection. These rules are considered cumulative. Therefore, a
person planning an activity should consult other applicable
department rules as well as the rules of the Department of
Environmental Protection.
Fla. Admin. Code R. 18-21.002(1) (3-15-1990) [C15] (emphasis added).25 The
current version of the rule, approved in 2009, continues to recognize the
cumulative nature of the proprietary rules with other, i.e., non-proprietary, rules of
FDEP:

25

Applying this prior version of the rule, the Third District observed:
1. Under Article X, Section 11, of the Florida Constitution,
sovereignty submerged lands are held in trust for all the people of this
State. Private use of such submerged lands is allowed when
"authorized by law." The legislature has authorized Plaintiff to
administer the State's sovereignty lands, and has directed Plaintiff to
adopt rules and regulations governing the exercise of its statutory
duties. Sections 253.03(1) and (7), Florida Statutes. The Department
of Natural Resources, Division of State Lands (the "Department"), is
empowered to "perform all staff duties and functions" related to the
administration of the submerged lands held by Plaintiff. Section
253.002, Florida Statutes.
2. In accordance with Section 253.03(7), Florida Statutes, Plaintiff
has adopted rules governing the administration of sovereignty lands
and those rules are contained in Chapter 18-21, Florida Administrative
Code, (formerly, Chapter 16Q-21, in effect at the time Defendant
Barnett requested and Plaintiff issued the Consent of Use). The Rules
"implement the administrative and management responsibilities" of
both Plaintiff and the Department regarding sovereignty lands.
Section 18-21.002(1), Florida Administrative Code.
Board of Trustees of the Internal Improvement Trust Fund of the State of Florida,
v. Barnett, 533 So.2d 1202, 1205 (Fla. 3d DCA 1988).
27

(1) These rules are to implement the administrative and

management responsibilities of the Board, the Department of
Environmental Protection and the Department of Agriculture and
Consumer Services regarding sovereignty submerged lands.
Responsibility for environmental permitting of activities and water
quality protection on sovereignty and other lands is vested with the
Department of Environmental Protection. The responsibility for
managing aquacultural activities on sovereignty lands is vested with
the Department of Agriculture and Consumer Services. These rules
are considered cumulative. Therefore, a person planning an activity
should consult other applicable rules of the Department of
Environmental Protection and the Department of Agriculture and
Consumer Services regarding aquacultural activities.
Fla. Admin. Code R. 18-21.002(1) (9-1-2009) [C16] (emphasis added).
The Trustees rules allow FDEPs biological assessment to be considered in
evaluating specific requests to use sovereignty lands, not to take the place of
proprietary authorization.26 Fla. Admin. Code R. 18-21.004(2)(c). A host of

26

That the Trustees depend upon FDEP for staffing, Section 253.002(1), Florida
Statutes, does not remove the Trustees fiduciary responsibility to control,
conserve, protect, and supervise sovereignty lands and to supervise the staff at
FDEP. FDEP documents during 2000-2001 reveal FDEP strategizing with the
private user, Georgia-Pacific, about obtaining authorization for the pipeline from
the Trustees. [D10-28] [C]oncept[ual] approval was discussed that would be
contingent on receipt of all required permits, authorizations & payments. [D1028] When the Trustees took action on the pipeline easement proposal in 2003 none
of the mixing zones had been finally approved by FDEP, and none have been to
this day. The conceptual nature of the Trustees actual decision is consistent with
the lack of public notice of the opportunity to seek an administrative hearing on the
decision. [C94] FDEP, as staff to the Trustees, would have been expected to be
aware of the need to give the public a clear point of entry to make the Trustees
decision final, because this administrative requirement has been known to state
agencies for decades. See Capeletti Bros. v. State, 362 So. 2d 346, 348 (Fla. 1978)
(an agency must grant affected parties a clear point of entry, within a specified
time after some recognizable event in investigatory or other free-form proceedings,
28

Trustees rules must be applied to the mixing zones.27 These include careful
determination of just compensation for any mixing zones that are otherwise
properly authorized by the Trustees.28

to formal or informal proceedings under Section 120.57. Absent waiver, we

must regard an agency's free-form action as only preliminary irrespective of its
tenor.), cert. den. 368 So.2d 1373 (Fla. 1979). When giving public notice of
issuing a FDEP permit, the staff often included a point of entry for interested
persons to contest the FDEPs decision, but this never occurred with the Trustees
decision on the pipeline. [C94; D29-33, 84-100]
27
Rule 18-21.004 provides numerous policies, standards, and criteria that the
Trustees must apply:
Management Policies, Standards, and Criteria.
The following management policies, standards, and criteria shall be
used in determining whether to approve, approve with conditions or
modifications, or deny all requests for activities on sovereignty
submerged lands, except activities associated with aquaculture. The
management policies, standards, criteria, and fees for aquacultural
activities conducted on or over sovereignty submerged lands are
provided in Rules 18-21.020 through 18-21.022, F.A.C.
(1) General Proprietary.
(a) For approval, all activities on sovereignty lands must be
not contrary to the public interest, except for sales which must be in
the public interest.
(b) All leases, easements, deeds or other forms of approval
for sovereignty land activities shall contain such terms, conditions, or
restrictions as deemed necessary to protect and manage sovereignty
lands.
***
(e) Equitable compensation shall be required for leases and
easements which generate revenues, monies or profits for the user or
that limit or preempt general public use. Public utilities and state or
other governmental agencies exempted by law shall be excepted from
this requirement.
***
(g) Activities on sovereignty lands shall be limited to water
dependent activities only unless the board determines that it is in the
29

public interest to allow an exception as determined by a case by case

evaluation.
***
(2) Resource Management.
(a) All sovereignty lands shall be considered single use lands
and shall be managed primarily for the maintenance of essentially
natural conditions, propagation of fish and wildlife, and traditional
recreational uses such as fishing, boating, and swimming. Compatible
secondary purposes and uses which will not detract from or interfere
with the primary purpose may be allowed.
(b) Activities which would result in significant adverse
impacts to sovereignty lands and associated resources shall not be
approved unless there is no reasonable alternative and adequate
mitigation is proposed.
(c) The Department of Environmental Protection biological
assessments and reports by other agencies with related statutory,
management, or regulatory authority may be considered in evaluating
specific requests to use sovereignty lands. Any such reports sent to the
department in a timely manner shall be considered.
***
(i)
Activities on sovereignty lands shall be designed to
minimize or eliminate adverse impacts on fish and wildlife habitat,
and other natural or cultural resources. Special attention and
consideration shall be given to endangered and threatened species
habitat.
28
Assuming the Trustees can validly market Florida waters to a private company,
under Florida Administrative Code Rule 18-21.011(2)(b)2 issuance of a private
easement for a mixing zone would have to consider the enhanced property value or
profit to be gained by the grantee if the easement were approved. [See also C9-10,
56-91] However, the true value of the St. Johns River is immeasurable, not only to
the people but also to the fish and wildlife the public enjoys. At a recent workshop
on the public trust doctrine conducted by the Florida Fish and Wildlife
Conservation Commission (FFWCC) participants discussed the states
responsibility is to keep these trust resources from being depleted or wasted, and
called for the FFWCC and public trust beneficiaries to act in partnership. [E9-15]
In contrast, FDEP worked extensively with Georgia-Pacific to obtain the results
sought by the company. [D10-28] Not long after Georgia-Pacific won approval for
its pipeline, the FDEP Secretary took a job with a paper company. [E1-2]
30

In 2003, an agenda item on the easement application came before the

Governor and Cabinet only weeks after receipt of the easement application was
publicly announced. [C94-164] The agenda item package the Governor and
Cabinet had before them did not mention any of the mixing zones. [C95-136]
Discussion of even the general concept of mixing in the meeting was highly
limited, non-specific, and focused on the supposed benefits of obtaining greater
dilution in the river, not on the conditions that would occur locally within mixing
zones. [C137-64]
In summary, the prior Trustees lack of information about the mixing zones
is at best a text book illustration of the need for due process and citizen
participation to protect the publics rights. Points of entry can sometimes cure
selective education by staff and applicants intent on a certain outcome.
Nonetheless, it is clear that the prior Trustees were not asked, and did not grant, a
private easement or other proprietary authorization for the mixing zones, which to
this day have never been approved even by FDEP regulatory procedures. The
Trustees have never examined these mixing zones nor explained to the people they
are required to serve why they are not contrary to the public interest, or set forth
specific temporal, geographical, and financial terms of approved private use on the
face of a sovereignty lands authorization. See Fla. Admin. Code R. 18-21.03(21)
(Easement means a non-possessory interest in sovereignty lands created by a
31

grant or agreement which confers upon the applicant the limited right, liberty, and
privilege to use said lands for a specific purpose and for a specific time.). The
people, who are beneficiaries of the public trust, never have been informed that the
Trustees actually have made a conscious decision concerning these private uses,
nor for where, how long, and why, nor given the right to seek an administrative
hearings to aid in the formulation or modification of such a decision.
III. NATURE OF RELIEF SOUGHT
According to the publicly-announced intention of Georgia-Pacific, its paper
mill pipeline to the St. Johns River will go online in the very near future. Since
1968, under the Florida Constitution, not even the Florida Legislature can allow
Floridas navigable waters to be treated like the private property of paper and pulp
companies. These companies are not free to infringe upon traditional public rights,
including fishing, swimming, and recreation, without the Trustees authorization,
determination of the public interest, and obtaining of just compensation. The
Trustees cannot simply abdicate responsibility for the situation. They are
fiduciaries after all. Abdication will cause or contribute to the degradation of
portions of the river every bit as much as an overt decision by the Trustees to
authorize the private use, with the added flaw of failing to obtain the Trustees
rationale, terms, and conditions, including just compensation.

32

The Court is respectfully requested to direct the Trustees to not abdicate

their public trust responsibilities with respect to paper and pulp mill pipelinerelated mixing zones in navigable waters, and specifically (a) that the Trustees
require that these private mixing zones obtain the Trustees express authorization
prior to use; and (b) that the Trustees only give such authorization after
undertaking careful review of the mixing zones, in a process with clear points of
entry to the public, to determine the public interest and all terms and conditions of
authorization, including just compensation for the people. This matter has great
urgency and should be decided expeditiously by this Court in favor of Petitioners.29
IV. ARGUMENT
A.

The Public Trust in the River

The portions of the St. Johns River where the Georgia-Pacific mixing zones
will occur are sovereignty land. They are not portions of a watercourse where the
State of Florida has disclaimed any interest in the property as sovereign land. Cf.
Kester v. Tewksbury, 701 So. 2d 443, 445 (4th DCA 1997).
The river and the public trust include the water column as well as the
sediments and all that lies beneath. Key early United States Supreme Court public

29

In the event the Court deems this petition more appropriately should have been
framed as a quo warranto petition or to seek other more appropriate relief,
Petitioners ask that this petition be deemed to be in the form or to seek the relief
deemed most appropriate by the Court so as to do justice and protect the rights of
the people.
33

trust cases made this point. Illinois Central Railroad Company v. Illinois, 146 U.S.
387, 456 (1892), quoted approvingly from Martin v. Waddell, 41 U.S. 367, 16 Pet.
367, 410 (1842) that the people of each State had the absolute right to all their
navigable waters, and the soils under them, for their own common use, subject
only to the rights since surrendered by the Constitution to the general
government.30 Similarly, this Court long has recognized that [t]he rights of the
people of the States are in the navigable waters and the lands thereunder.
Broward v. Mabry, 58 Fla. 398, 50 So. 826, 829 (Fla. 1909).31

30

The primary importance of the classic public trust doctrine is that it prevents the
public/government from being excluded from the use of water resources as a result
of privatization of the resource or other abdication of public control. Craig, R. K.,
States, Their Public Trust Doctrines, and Water Resources Management:
How Relevant is Illinois Central Railroad These Days?, American Bar
Association, Section of Environment, Energy, and Resources (40th Annual
Conference on Environmental Law, March 17-19, 2011). [B249-53] That the state
public trust includes the water column as well as the underlying sediment
continues to be the position of the federal government. The Submerged Lands Act,
43 U.S.C. 1301, et seq., in 1953 confirmed the states jurisdiction over submerged
lands and waters. United States v. California, 436 U.S. 32, 37 (1978); Murphy v.
Department of Natural Resources, 837 F.Supp. 1217, 1221 (S.D. Fla. 1993);
Barber v. State of Hawaii, 42 F.3d 1185, 1190 (9th Cir. 1994); Ankersen, T.T.,
Hamann, R., Anchoring Away: Government Regulation and The Rights of
Navigation in Florida, Center for Governmental Responsibility, p. 5 (2006)
(http://nsgl.gso.uri.edu/flsgp/flsgpt06002.pdf).
31
Note also that Florida follows the doctrine of cujus est solum ejus est usque ad
coelom. Orman v. J & D. J. Day and the Apalachicola Land Company, 5 Fla. 385,
389 (1853); Smith v. Guckenheimer & Sons, 42 Fla. 1, 27 So. 900, 905 (1900). As
explained by Blackstone Commentaries, Bk. 2, Ch., p. 18:
Land hath also, in its legal signification, an indefinite extent, upwards as
well as downwards. Cujus est solum, ejus est usque ad coelum, is the maxim
of the law, upwards; therefore no man may erect any building, or the like, to
34

The focus of the public trust in navigable waters is to safeguard against use
that is adverse to the public interest in those waters. While some of the public
interest lies in and below the bed of a river, the bed of the river is not the sum total
of the publics interest in a river.32 The public has broad rights in its navigable

overhang another's land: and, downwards, whatever is in a direct line

between the surface of any land, and the center of the earth, belongs to the
owner of the surface; as is every day's experience in the mining countries. So
that the word "land" includes not only the face of the earth, but every thing
under it, or over it. And therefore if a man grants all his lands, he grants
thereby all his mines of metal and other fossils, his woods, his waters, and
his houses, as well as his fields and meadows.
Section 253.12, Florida Statutes, also describes the Board as being vested with all
submerged lands owned by the state by right of its sovereignty in navigable
freshwater lakes, rivers, and streams. See also Trustees website (navigable fresh
waters such as rivers and lakes below ordinary high water) [C4]; accord
DAlemberte, T., The Florida State Constitution, A Reference Guide, pp. 142-3
(Greenwood Press 1991) (The issue of navigable waters and the title to those
waters and the land beneath the water was one of the major legal issues of the
1970s and 1980s. At stake is the water property and land that was once navigable
and now is sometimes dry. The state received sovereignty landstate-owned
landswhen it entered the Union. These lands included property up to the highwater mark along waterways.).
32
A navigable river is much more than its bed:
We are dealing with navigable rivers not "so-called lakes, ponds,
swamps, or overflowed lands." We are not persuaded that the
legislature intended by this statute to divest the state of title to
navigable waters which were not, or could not be, conveyed to private
owners. To accept this position would mean, inter alia, that if a
navigable river gradually and imperceptively changed its course onto
previously conveyed lands, the navigable river would become private
property and the public would retain the dry river bed. The high and
low water marks of navigable waters change over time, but these
natural changes do not divest the public of ownership of the navigable
waters. Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S. Ct. 517, 38
35

waters. Coastal Petroleum, Inc. v. American Cyanamid, 492 So.2d 339, 342-3 (Fla.
1986); State ex rel. Ellis v. Gerbing, 47 So. 353, 355 (1908); see also White v.
Hughes, 190 So. 446, 449 (Fla. 1939) (It is difficult, indeed to imagine a general

L. Ed. 2d 526 (1973); Municipal Liquidators, Inc. v. Tench, 153 So.2d

728 (Fla. 2d DCA), cert. denied, 157 So.2d. 817 (Fla. 1963).
Coastal Petroleum, Inc. v. American Cyanamid, 492 So.2d at 343. As stated by the
Second District in Brannon v. Boldt, 958 So.2d 367 (Fla. 2d DCA 2007):
Riparian rights are rights to use the water. Broward v. Mabry, 58 Fla.
398, 50 So. 826, 829 (Fla. 1909). There are two categories of riparian
rights. Id. at 830. The public has the right to use navigable waters for
navigation, commerce, fishing, and bathing and "other easements
allowed by law." Id. Owners of riparian land share these rights with
the public. Id. The public's right to use navigable waters or the shore
derives from the public trust doctrine. See Hayes v. Bowman, 91 So.
2d 795, 799 (Fla. 1957). The doctrine embodies the common law rule
that the sovereign held title to all the land below the high-water mark
in trust for the use of the people. Id.
The specific nature of the trust in favor of all the subjects . . . was that
those subjects should have the free use of such waters and shores. The
waters . . . were of common right, public for every subject to navigate
upon and fish in without interruption; . . . the shore was also of
common right public. The use of each was in the subjects for the
inherent privileges of passage and navigation and fishing, as public
rights . . . .
State v. Black River Phosphate Co., 32 Fla. 82, 13 So. 640, 643 (Fla.
1893); see also Hayes, 91 So. 2d at 799 (noting that the principle uses
of the water were navigation, bathing, and fishing).
958 So.2d at 372 (footnote omitted); see also Christie, D.R., Marine Reserves, The
Public Trust Doctrine and Intergenerational Equity, Journal of Land Use, Vol.
19:2, 427, 434 (The state has the authority to regulate public trust uses to
minimize conflicts and assure the protection of waters and wildlife that are
fundamental to the enjoyment of all other public trust uses.); Tiffany Real
Property 263, p. 591 (1903) (The private owner of land under water is entitled
to the ice formed on the water, while the public are entitled to that formed over
land belonging to the state.).
36

and public right of fishing in the sea, and from the shore, unaccompanied by a
general right to bathe there ).
B.

The Trustees Fiduciary Obligation Not to Abdicate

Constitutional and Other Procedural Safeguards in the Protection
of the Peoples Rights to the River

The Trustees job is zealously to protect the public and its rights. The mixing
zones, as demonstrated on the face of the Georgia-Pacific private easement and in
the associated Trustee approval, have not received careful substantive scrutiny by
the Trustees on behalf of the public trust or indeed any meaningful Trustee scrutiny
at all. The Trustees have yet to assess the environmental, social, and economic
costs of the mixing zones, Florida Administrative Code Rule 18-21.003(51), which
will be far greater than the limited physical impacts of the pipeline on the bed of
the river. They have failed to ensure compliance even with due process and
administrative law notice requirements in the way they go about their business
conserving and protecting the publics property.33

33

The Trustees being now informed that their predecessors failed to give the public
notice of a clear point of entry to contest the earlier decision to approve the pipe
corridor easement must rectify the situation. Jones v. Flowers, 547 U.S. 220, 229,
234 (2006) (In Mullane, we stated that when notice is a persons due [t]he
means employed must be such as one desirous of actually informing the absentee
might reasonably adopt to accomplish it, 339 U. S., at 315, and that assessing the
adequacy of a particular form of notice requires balancing the interest of the State
against the individual interest sought to be protected by the Fourteenth
Amendment, id., at 314.) (What steps are reasonable in response to new
information depends upon what the new information reveals.); see also Capeletti
Bros. v. State, 362 So. 2d 346, 348 (Fla. 1978). In addition, the Trustees now are
37

While the Trustees may ultimately make decisions on private use mixing
zones with which some members of the public disagree, abdication of procedural
safeguards is inexcusable because it avoids processes established to ensure the
Trustees are careful and forthright in their decisions. The Trustees are the citizens
fiduciaries with respect to sovereignty lands and should act worthy of this trust,
both procedurally and substantively.
A trustee responsibility is a heavy fiduciary burden that must be carefully
undertaken in the interest of the beneficiaries of the trust, not in the interest of
private companies who wish to degrade that trust to make and save money.
Trustees should not forget who they are working for or allow FDEPs unofficial
mixing zone decisions to somehow morph into sovereign submerged lands
authorization by atrophy of Trustee procedural responsibilities:
The Trustees are fiduciaries for plaintiff, not established agents. Their
role is to manage the Trust assets for the benefit of those entitled to
share in the Trust assets, both the income and the principal. That the
Trustees may engage the services of an expert in managing Trust
assets to assist them in the performance of their fiduciary
responsibilities hardly makes them agents of the Trust beneficiary in
order to bind her personally to their hiring of that assistance or to their
purported waiver of her right of access to a court to seek redress for
loss occasioned thereby.

informed that Georgia-Pacific will be using mixing zones that will impact the
public interest in the St. Johns River. Thus, the nature of the new information
which the Trustees must now consider, and give the citizens of Florida the
opportunity to adjudicate through administrative procedures, has far greater
importance to the public interest than the mere construction of a pipeline.
38

Fiduciaries are generally not able to avoid the negligent performance

of their own special responsibilities by handing them off to someone
else. See State ex rel. Simmons v. Harris, 119 Fla. 375, 378, 161 So.
374 (1935) ("We think that it is so elementary as not to be questioned
that a trustee holding a fund subject to specific disposition cannot
legally create another trusteeship and pass the fund into the hands of,
and control of, that newly created trustee, so as to place the fund
beyond the reach of the [beneficiary] . . . entitled to the trust fund.");
Thomas v. Carlton, 106 Fla. 648, 659, 143 So. 780, 785 (1932)
("Sometimes, circumstances are such that a trustee, in the
performance of his duties, has to have the assistance of others. In
cases where the employment of agents is authorized, or it is
reasonably necessary for the performance of the duties of the trust, if
the trustee, while acting prudently and with reasonable care, employs
an agent, who is apparently honest and properly qualified, and
reasonable supervision is used over him, the trustees will not be held
responsible for loss or damage caused by the negligence or dishonesty
of the agent. [c.o.] But, if the regular course of business in
administering the trust does not require that the trustee part with the
custody of the funds . . . and a loss [is] thereby eventually sustained,
the trustee will be liable to make such loss good."); Mann v. Cooke,
624 So. 2d 785 (Fla. 1st DCA 1993) (by law trustee may not delegate
discretionary trust powers).
Morgan Stanley DW Inc. v. Halliday, 873 So. 2d 400, 404 (Fla. 4th DCA 2004); see
also In re the ESTATE of Brewer CORBIN, 391 So. 2d 731, 732 (3d DCA 1980)
(An estate's personal representative acts as a fiduciary of the beneficiaries, Dacus
v. Blackwell, 90 So.2d 324 (Fla. 1956), and is, in practical effect, a trustee of an
express trust. Beck v. Beck, 383 So.2d 268, 271 (Fla.3d DCA 1980).). This is
certainly no less the case when the trustees are state-elected officials and the trust
document is the organic law of the state. See Secret Oaks Owners Association,
Inc. v. Department of Environmental Protection, 704 So.2d 702, 705-6 (Fla. 5th
39

DCA 1998) (in the exercise of its fiduciary duties); see also generally, Reimer,
M.K., The Public Trust Doctrine: Historic Protection for Floridas Navigable
Rivers and Lakes, Fla. Bar J. LXXV, No. 4 (April 2001).
The Trustees may not have acted previously in cases of this precise sort.34 (A
paper mill pipeline with large mixing zones emanating from a lengthy diffuser

34

The Conceptual State Lands Management Plan has not been revised in almost
three decades. Ironically, the plan itself acknowledges the risk of Trustees rigidly
acting on the basis of yesterdays information rather than as the flexible competent
land managers any private beneficiary would expect:
The Plan, like the ongoing management program, must remain
flexible enough to accommodate necessary changes. A static plan
would soon become an anachronism as new legislative and
administrative directions are implemented. To avoid this problem,
provisions must be made to establish an orderly process for
continuous updating of the adopted Plan.
The preferred update process would involve placing additions,
deletions, or modifications on the normal Board Agenda for policylevel direction and guidance. This would provide the most timely Plan
modification system, while maximizing public notice and input. Such
modifications could be proposed by either the public, departmental
staff, or directly by the Board. Affirmative Board action on such
Agenda items would effectively accomplish the required modification.
II. GOALS
A. Achieve full proprietary responsibility for the management of those
state-owned lands vested in the Board of Trustees of the Internal
Improvement Trust Fund.
Chapter 253.03, Florida Statutes, establishes the legal basis for the
Board of Trustees to assume an active role in the administration of
those state-owned lands vested in the Board of Trustees. Section
253.03(7), Florida Statutes, directs the Board of Trustees "...to
administer to all state-owned lands...so as to insure maximum benefit
and use." In a legal context the word "Administer" means "to
superintend the execution, use, or conduct of; to manage affairs; to
take charge of business.
40

structure constructed across Floridas only American Heritage River thankfully has
never happened before.) But they have acted in analogous cases, i.e., cases
involving other sorts of activities that are different in type but have similar
although far lesser impacts. In Board of Trustees of the Internal Improvement Trust

The Board of Trustees, in meeting its obligations as both title holder

and administrator of certain state-owned lands, must assert a
proprietary role in the acquisition, management, and disposition of
those lands. State-owned lands should be managed with recognition
that land is a resource and not a commodity. Consistent with this
concept, state-owned lands should be treated with equal or greater
proprietary respect than that usually afforded privately owned lands.
Conceptual State Lands Management Plan, p. 5 (3/17/1981, revised 7/7/1981 and
3/15/1983) (emphasis in original). For instance, when it was adopted, the plan
strongly discouraged placement of sanitary landfills or other similar facilities on
state-owned lands. The reasoning involved applies equally to allowing GeorgiaPacific to dump in mixing zones:
Activities of this nature often preclude or severely restrict
management options. Additionally, use of state-owned property for
purposes such as sanitary landfills rarely benefits the public at large.
Instead, such uses usually benefit only a very limited segment of the
population. It is questionable whether using state-owned lands for
sanitary landfills meet the statutory test of "maximum benefit and
use".
Policies
1. Discourage use of state-owned lands for sanitary landfills and
similar facilities and uses.
2. Consider use of state-owned lands for sanitary landfills, or similar
activities, only when no alternative locations are available. Such
instances will require a detailed land reclamation plan acceptable to
the Board.
3. Phase out existing sanitary landfill leases as expeditiously as
possible.
4. Prohibit non-state agency sanitary landfills and similar facilities on
state-owned lands.
Plan at p. 25. [ ]
41

Fund v. Levy, 656 So. 2d 1359, 1360 (Fla. 1st DCA 1995), the First District
examined the history in Florida of the public trust doctrine concerning sovereignty
lands. Although it was a dock case, its description of the doctrine is equally
applicable to the mixing zone form of private use on sovereignty lands:
The appellee concedes the power and authority of the state, acting
through the Board of Trustees of the Internal Improvement Trust
Fund, to prohibit altogether the construction of docks or other
structures waterward of the mean or ordinary high water line within
aquatic preserves. This authority is based, in part, upon the adoption
in Florida of the "Public Trust Doctrine," a principle derived from the
English common law, incorporated into the organic law of this state
pursuant to a constitutional amendment in 1970, followed by
legislative action authorizing private use of portions of sovereignty
lands under navigable waters when not contrary to the public interest.
See Hayes v. Bowman, 91 So. 2d 795 (Fla. 1957); Yonge v. Askew,
293 So. 2d 395 (Fla. 1st DCA 1974); Graham v. Edwards, 472 So. 2d
803 (Fla. 3d DCA 1985), rev. denied, 482 So. 2d 348 (Fla. 1986);
Krieter v. Chiles, 595 So. 2d 111 (Fla. 3d DCA 1992), rev. denied,
601 So. 2d 552 (Fla.1992), cert. denied, 121 L. Ed. 2d 244, 113 S. Ct.
325 (1992). The "Public Trust Doctrine" is embodied in the following
language found in Article X of the Florida Constitution.
In Levy the Trustees successfully argued that they were entitled to reject
docks beyond 500 feet in length. Board of Trustees of the Internal Improvement
Trust Fund v. Levy, 656 So. 2d at 1360 (This rule challenge was filed by Dr.
Levy, appellee, in response to the decision of the Division of State Lands, acting as
staff for the Trustees, denying Dr. Levy's request to extend his existing 500-foot
dock to approximately 600 feet in order to reach greater water depth. The denial
of Levy's request for the dock extension was based upon Florida Administrative
42

Code rule 18-201.004(5)(a)1. (1994), which in essence provides that all docking
facilities, whether for private residences, commercial, industrial or public, must
comply with certain standards and criteria, the first being that no dock "shall
extend waterward of the mean or ordinary high water mark more than 500 feet or
20 percent of the width of the water body at that particular location whichever is
less ....").
Here Petitioners are focused on the opposite situationTrustees who have
not carried out their public trust responsibility when it comes to paper mill mixing
zones. But here too the Trustees must not act arbitrarily and must establish a clear
basis for their conduct. The Trustees have altogether failed to make an analysis of
this private use of submerged lands. In Levy, the Trustees were diligent, as
fiduciaries would be expected to be, and duly credited by the Court:
[A] logical and reasonable basis for the maximum dock length is
found in the evidence of record as recited in the order under review.
The hearing officer found, in part, that no single-family docks in
aquatic preserves extend over 500 feet into the water. Further, in
Charlotte Harbor, the average length of a single-family residential
dock is 200 feet. In promulgating the predecessor to the rule in
question, originally adopted in 1981, the trustees attempted to balance
competing interests such as environmental, aesthetic, recreational, and
private commercial. There was some concern that previously
authorized docks had infringed upon the riparian access of adjacent
upland owners. The 500-foot limitation was added to the rule by
amendment in 1985. In setting the criteria for dock length, the hearing
officer found, the trustees attempted to set a limit that would not result
in the denial of more than a negligible number of dock applications,
based on historic dock application data and predominant vessel
lengths of under 27 feet. Indeed, as the hearing officer found in
43

deciding that the rule was not capricious: "The 500-foot limitation
appears to have been the product of a process involving the thoughtful
balancing of varying factors." In our view, these findings of fact
contained in the order under review are inconsistent with the
conclusion that the rule is arbitrary. To the contrary, we view these
findings as ample to show that the trustee's decision was a reasoned
one, supported by facts and logic, and that their decision could in no
sense be labeled "despotic." Agrico, 365 So. 2d at 763.
656 So.2d at 1363.35 The proprietary documents facially demonstrate that the
Trustees have not thus far carefully evaluated the mixing zones, much less
given a proprietary easement for them. No diligent fiduciary conduct has
occurred, and significant uncompensated damage to the people of Floridas
constitutionally-protected assets is imminent. Even if the Trustees
predecessors had approved the pipeline itself in accordance with proper
public notice of the right to request an administrative hearing, the nature of
the use of public trust resources is about to change abruptly and semipermanently with the use of the mixing zones.36

35

Docks themselves effect light penetration, but mostly from a distance. In

contrast, Georgia-Pacific will have light-blocking color/transparency and turbidity
mixing zones directly in the water, emanating upward and outward from the
bottom of the river. The potential impacts or barriers created by the mixing zones
could significantly reduce populations of anadromous species and adversely affect
the publics fishing opportunities. Yet thus far the Trustees have shown no concern
for or even awareness of the mixing zones. Unlike the dock of someone such as Dr.
Levy, the agent of transparency loss in this case is physically in the water, whereas
much of a dock is a few feet above the water.
36
The fact that the Trustees predecessors sometimes may have done a poor job of
safeguarding the public trust against Georgia-Pacific or other paper and pulp
companies does not excuse the current Trustees continuation of the negligent
44

C.

The Court Need Not Reach All Aspects of the Public Trust
Doctrine

As discussed supra at note 3, this petition is limited in its scope to

private use mixing zones associated with paper and pulp mill pipelines. It
primarily rests on a portion of the Florida constitution that by its terms does
not apply to public use or public utilities.37 In addition, Floridas

pattern. Whatever rights the pipeline easement holder was previously granted by
the Trustees predecessors are held subject to the Trustees continuing authority
over sovereignty lands. See Secret Oaks Owners Association, Inc. v. Department
of Environmental Protection, 704 So.2d 702, 706 (Fla. 5th DCA 1998) (Whatever
rights a riparian owner enjoys have been held subject to the states ownership of
the sovereign lands.) The easement holder at most has the unexercised right to
seek authorization from the Trustees for additional private use in the river
associated with the mixing zones. See Parlato v. Secret Oaks Owners Association,
793 So.2d 1158 (Fla. 1st DCA 2001) (riparian easement holder determined to be
entitled to apply to put dock on St. Johns River). And even if private use mixing
zones eventually are authorized by the Trustees, this must not be because of
corporate welfare and, as a further safeguard, it will be necessary to employ
the rent or consideration for the benefit of the whole people, Illinois Central
Railroad Company v. Illinois, 146 U.S. at 457 (quoting Stockton v. Baltimore and
New York Railroad Company, 32 Fed. Rep. 9, 19, 20 (1887).
37
Not only is Petitioners narrow approach focused on private use consistent
with the facts of the case and the constitutional language cited, but also it is
consistent with historical rulings of the United States Supreme Court and this
Court. Both have shown considerable flexibility under the public trust doctrine in
relation to public utilities. For instance, it has been recognized that the public
interest may necessitate public utilities discharging municipal wastewater into tidal
waters. Darling v. City of Newport News, 249 U.S. 540, 544 (1919) (one of the
very most important public uses of water already partly polluted, and in the
vicinity of half a dozen cities and towns to which that water obviously furnished
the natural place of discharge); see also Gibson v. City of Tampa, 135 Fla. 637,
185 So. 319, 321 (citing Darling v. City of Newport News in ruling that the city
was not required to furnish a disinfectant plant but could be liable for damages to
an oyster bar leaseholder). But even here, using the great natural purifying basis
45

constitutional public trust doctrine, at issue in this petition, is by its terms

limited to sovereignty lands.38 Nor is the Court being asked to assess the

was practical necessity and had to take into account [w]hatever science may
accomplish in the future. Darling v. City of Newport News, 249 U.S. at 542-3; cf.
Wisconsin v. Illinois, 278 U.S. 367, 417 (1928) (Had an injunction then issued
and been enforced, the Port of Chicago almost immediately would have become
practically unusable because of the deposit of sewage without a sufficient flow of
water through the Canal to dilute the sewage and carry it away. In the nature of
things it was not practicable to stop the deposit without substituting some other
means of disposal.). Public sewage disposal also can raise concern for public
water supply. Darling v. City of Newport News, 249 U.S. at 542 (The
fundamental question as to the rights of holders of land under tidal waters does not
present the conflict of two vitally important interests that exists with regard to fresh
water streams. There the needs of water supply and of drainage compete.).
38
In contrast, some legal scholars have advocated for extension of public trust
analysis to disputes involving air and other interests beyond the water or other
sovereignty lands. In a seminal article discussing this position, Joseph L. Sax
observed that the doctrine historically had not been extended this far. Sax, J. L.,
The Public Trust Doctrine in Natural Resource Law: Effective Judicial
Intervention, 68 Mich. L. Rev. 472, 556-7 (1969-1970). It historically applied to
waters:
It is clear that the historical scope of public trust law is quite
narrow. Its coverage includes, with some variation among the states,
that aspect of the public domain below the low-water mark on the
margin of the sea and the great lakes, the waters over those lands,
and the waters within rivers and streams of any consequence.
Sometimes the coverage of the trust depends on a judicial definition
of navigability, but that is a rather vague concept which may be so
broad as to include all waters which are suitable for public recreation.
Id. (emphasis added; footnoted omitted). This case also plainly involves private use
within the Trustees public trust responsibilities. It does not require an ecological
analysis to discern the Trustees jurisdiction. The St. Johns River will be adversely
affected by these private use mixing zonesthe zones by definition will allow
degradation directly in public water. Cf. Hunter, D. B., An Ecological Perspective
on Property: A Call for Judicial Protection of the Publics Interest in
Environmentally Critical Resources, 12 Harv. Envtl. L. Rev. 311, 358 (1988)
(described the improved version of the harm/benefit distinction in Just v.
46

public interest with respect to the mixing zones for the Trustees. That is the
Trustees responsibility, which they may not abdicate.
V. CONCLUSION
The sovereignty lands of the St. Johns River are no less the peoples
lands because they happen to be within the area of Georgia-Pacifics
intentional degradation zones rather than under a residential dock or
permanently-moored houseboat. Fiduciaries in any sense of the word must
carefully look at anticipated private use mixing zones associated with paper
or pulp mill pipelines. They must expressly determine whether they are
contrary to the public interest and ensure that they are authorized only in
accordance with clear terms and conditions that are fair to the interests of the
people, whose property the companies are despoiling.

Marinette, 56 Wis.2d 7, 201 N.W.2d 761 (1972), where a filling permit on private
property was denied because it would affect the public's right in navigable waters).
47