17-000667 Kanter Real Estate, Llc vs. Department Of Environmental Protection
 Status: Closed
Recommended Order on Tuesday, October 10, 2017.


View Dockets  
Summary: Petitioner demonstrated that it met the criteria for an exploratory oil well established in section 377.241. The permit should be issued.

1STATE OF FLORIDA

4DEPARTMENT OF ENVIRONMENTAL PROTECTION

8KANTER REAL EST ATE, LLC, )

14)

15Petitioner, )

17)

18) OGC CASE NOS. 16-1446

23) 16-1447

25DEPARTMENT OF ENVIRONMENTAL) DOAH CASE NOS. 17-0666

32PROTECTION, ) 17 - 0667

37)

38Respondent, )

40)

41and )

43)

44CITY OF MIRAMAR AND BROW ARD )

51COUNTY, FLORIDA, )

54)

55Intervenors. )

57FINAL ORDER

59An Administrative Law Judge (ALJ) with the Division of Administrative Hearings

70(DOAH) on October 10, 2017 , submitted a Recommended Order (RO) to the Department of

84Environmental Protection (DEP or Department) in the above captioned administrative

94proceeding . A copy of the RO is attached hereto as Exhibit A. DEP timely filed its Exceptions

112on October 25 , 2017. The Intervenor Broward County filed its Exceptions untimely after 5 : 00

128p.m. on October 25 , 2017. The Intervenor City of Miramar filed a Notice of Joinder in DEP's

145Exceptions with DOAH untimely on October 27, 2017. On November 1 , 2017 , the Petitioner

159Kanter Real E s tate , LLC (Kanter) filed a motion to strike the City of Miramar ' s Untimely Notice

179of Joinder to DEP ' s Exceptions. Kanter filed responses to DEP ' s Exceptions on November 6,

1972017. This matter is now before the Secretary of the Department for final agency action .

213BACKGROUND

214On November 16, 2016, the Department of Environmental Protection (Department or

225DEP ) issued a Notice o f Denial - Oil & Gas Drilling Application (the Deni a l ). The basis for the

248Denial was that the Petitioner:

253failed to provide information show ing a balance of considerations

263in favor of issuance given the particular criteria specified in

273Section 3 77.241, Florida Statutes, "C rit er i a for Issuance of

286Permits. " Specifica lly , [Kanter]'s informati on did not show a

296balanc e in favor of issuance when considering the nature, character

307and locati on of the land s invol ved; the nature , type and extent of

322ownership of [Kanter]; and the proven or indicated likeliho od of

333the presence of oil in such quantities as to warran t the exploration

346and extraction of such products o n a commercially profitable basis.

357(RO page s 2- 3).

362On November 16, 2016, the Department also i ssued a notice of denial of an

377Environmental Resource Permit (the ERP Denial). The basis fo r the ERP Denial was that the

393Petitioner had not provided reasonable assurance that the proposed activity would comply with

406various provisions of the statutes, rul es . and Applicant's Handbook applicable to the activity.

421The Petitioner timely filed separate petit ion s challenging the Oil a nd Gas Denial and the

438ERP D e nial , both of which were dismis sed by the Departm en t with leave to amend. The

458Petitioner filed a separate Amended Pet ition for Formal Administrative Hearing for each of the

473denied permit applications o n January 13 , 2017. Those Amended Petitions were referred to the

488Division of Administrative Hearings on January 31, 2017, and thereafter consolidated. The

500hearing was scheduled to be held on May 22 through 26, 2017.

512On March 14, 2017 , Inter venor C i ty of Miramar (Miramar) filed its Petition to Intervene,

529which was granted, over objection, on March 24, 2017.

538On April14, 2017 , Intervenor Broward County, Florida (Broward County), filed its

549Verified Motion for Intervention, which was granted, over objection , on April 24 , 2017.

562On May 19 , 2017 , the parties filed a Joint Pre-hearing Stipulation for the Oil and Gas

578Permit (Pre-hearing Stipulation.), which contained, among other things, 52 stipulations of fact,

590each of which are adopted and incorporated herein. The Pre-hearing Stipulation identified the

603issues of fact remaining for disposition to be:

6111. Whether the nature, character, and location of the lands

621involved weighs toward the approval of exploratory drilling.

6292. Whether the nature , type , and extent of ownership of the

640applicant , " including such matters as the length of time the

650applicant has owned the rights claimed without having performed

659any of the exploratory operations so granted or authorized," weighs

669toward the approval of exploratory drilling.

6753. Whether, and the degree to which, Kanter can demonstrate

"685the indicated likelihood of the presence of oil , gas or related

696minerals in such quantities as to warrant the exploration and

706extraction of such products on a commercially profitable basis. "

715Pre-hearing Stipulation , pp. 22-23. See§§ 377.241(1) - (3) , Fla. Stat. (2017).

726On May 22, 2017, the Petitioner also filed a Motion in Limine on Historic Ownership and

742Use of Mineral Rights, which was denied by separate order , with the issues raised therein being

758subject to further analysis in the parties ' post-hearing submittals.

768The final hearing commenced on May 22, 2017. During the proceedings, the parties

781announced a stipulation on the record that all issues related to the environmental resource permit

796(ERP) had been resolved, and that the parties agreed that the Petitioner had met its burden of

813demonstrating entitlement to issuance of the ERP. Thus , the parties agreed that they would not

828submit detailed proposed findings of fact on that issue and would submit proposed recommended

842orders reflecting the agreement, which they did.

849A nine- vo lum e Hearing Transcript was filed with DOAH on July 10 , 2017. By

865agreement of the partie s, 30 days from the date of the filing of the Tran s cript was established as

886the time for filing po s t-hearing submittals. On August 7, 2017 , the Petitioner filed an unopposed

903Motion for Exten s ion of Time to Submit Proposed Recommended Orders , which was granted ,

918and extended the date for filing to August 17 , 2017. The parties timely filed Proposed

933Recommended Orders with the AU , who then issued his RO on October 10 ,2 017.

948SUMMARY OF THE RECOMMENDED ORDER

953In the RO , the ALJ r ecommended that the Department enter a final order issuing ERP

969No. 06-0336409-001 , and i ss uing Oil and Gas Drilling Permit No. OG 1366 with the conditions

986agreed upon and s tipulated by the Petitioner , including a condition requiring that if water i s to be

1005transported on-site , it will add additional tanks to meet water needs that would arise during the

1021drilling process , and a condition prohibiting fracking. (RO at page s 52 - 53).

1035On November 16 , 2016 , the Department entered its Notice of Denial of the Oil and Gas

1051Drilling Permit. (RO I 0). The Department denied the oil and gas drilling permit , because the

1067Petitioner failed to provide information showing a balance of considerations in favor of issuance

1081pursuant to Section 3 77.241 of the Florida Statutes. (RO I 0).

1093The Property

1095The ALJ found that the Petitioner holds fee title to all surface righ ts, and title to all

1113mineral rights , including rights to oil , gas, and ot her mineral interests , within Sect ion 23

1129Township 51 South , Range 38 East, where the exploratory well (Well Site) for the proposed oil

1145and gas drilling permit i s located. (RO 15). The ALJ also found that the Petitioner's property

1162is encumbered by a Flowage Easement held by the South Florida Water Management District

1176(SFWMD). The ALJ found that the Petitioner 's proposed exploratory we ll is consistent with the

1192Petitioner's ownership interest and the SFWMD Flowage Easement , because the Petitioner has

1204th e legal property right to locate and drill an exploratory well. (RO 16-17).

1218The ALJ found that the Petitioner's property, including the proposed Well Site, is in the

1233hjstoric Everglades , where water flowed naturally in a southerly direction. (RO 19) . Beginning

1247in the late 1800s , and extend i ng well into the 1 960s, canals, le vees, dikes , and channels were

1267constructed to drain , impound, or reroute the historic flows. (RO 20).

1278The ALJ found that the proposed Well Site is located in Water Conservation Area

1292(WCA)-3, whlch was constructed as part of the Ce ntral and Southern Florida Flood Control

1307project authorized by Co ngre ss in 1948, and was created primarily for flood control and water

1324supply. (RO 21). The ALJ found that in the early 1960's, two levees , L67-A and L67-C

1340separated WCA-3 into WCA-3A to the west and WCA-3B to the southeast , and that the Well

1356Site is in WCA-3A. (RO 22).

1362The ALJ found that the area between L67 - A and L67-C, along with a levee along the

1380Canal Miami , is known as the "Poc ket. " The ALJ found that the proposed Well Site is located

1398within the Pocket , on the southern side ofL67 - A. The AU also found that the L67-A and L67-

1417C, and their associated canals, have dramatically disrupted sheet flow , altered h ydro lo gy, and

1433degraded the natural habitat in the Pocket. The ALJ further found that the Pocket is impacted by

1450in vas i ve species, which have overrun the native species and transformed the area into a

1467monoculture of cattails. The AU also found that the L67-A and L67- C, and their associated

1483canals, impede wi ld life movement. (RO 25 - 27). Furthermore, the ALJ found that the

1499Department has permitted oil wells in the Raccoon Point wellfield within the Big Cypress

1513National Preserve. (RO 28-29).

1517The Biscayne Aquifer

1520The AU found that the Pocket i s not a significant recharge zone for the Biscayne

1536Aquifer. The AU also found that the proposed Well Site is not within any 30-day or 120-day

1553protection zones in places for local water supp l y wells. (RO 32).

1566The Sunniland Formation

1569The ALJ found that the preponderance of the evidence demon strates that active

1582generating source rock capable of producing hydrocarbons exists in the Sunniland Formation

1594beneath the Petitioner' s property. The ALJ also found that within the Sunniland Fonnation reef­

1609like buildups of shells were buried by other materials that formed an impermeable layer over the

1625porous oyster mounds , and aJlowed these mounds to become "traps" for oil migrating up from

1640lower layers. (RO 36, 38) . Furthermore, the ALJ found that the Sunniland Trend is an area of

1658limestone of greater porosity within the Sunniland Formation, and provide s a reasonable

1671extrapolation of areas that may be conducive to o il traps. (RO 43). The AU found that two

1689separate trends have been identified within the Sunnilan d Trend - the rudist-dominant West

1703Felda Trend, and the Felda Trend, both of which are oil-producing stra ta. The AU found that

1720the Felda Trend is more applicable to the Petitioner 's property. (RO 44). The ALJ concluded a

1737preponderance of the evidence indicates that the Petitioner 's property , including the proposed

1750Well Site, is within the Sunniland Trend and its Felda Trend subset. (RO 1j46).

1764The Dollar Bay Formation

1768The ALJ found that the Dollar Bay Format i on, which exists beneath the Petitioner's

1783property at a shallower depth than the Sunniland Formation , has the potential for oil production.

1798(RO 1j51 ). The ALJ found that there have been three oil finds in the Dollar Ba y formation, with

1818at least one commercial production well. (RO 1j52).

1826Initial Exploratory Activities

1829The ALJ found that the Petitioner ' s expert testimony regarding the seismic data supports

1844a conclusion that the site is a " great prospect" for producing oil in such quantities as t o warrant

1863the exploration and extraction of such products on a commercially profitable basis. (RO 62).

1877Seismic Data Analysis

1880The AU found that the seismic li nes purchased by the Petitioner consist ofline 970,

1895which runs southwest to northeast along the L67-A l evee, and a portion of line 998, which runs

1913from northwest to southeast along the Miami Canal l evee. The ALJ also found that the anticline

1930beneath the proposed Well Site is a "prospect ," which is an area with geologica l characteristics

1946that are reasonably predicted to be commercially profitable.

1954Risk Analysis

1956The ALJ found that risk analysis for plays and prospects consists of four primary factors:

1971the trap; the reservoir; the source; and preservation and recovery. Each of the four factors has

1987three separate characteristics. Numeric scores are ass i gned to each of the factors based on

2003se i smic data; published maps and materials; well data, subsurface data, and evidence from other

2019plays and prospects; and other availab le information. Chance of s ucc ess is calculated based on

2036the quantity and qual it y of the data supporting the various factors to determine the likeli hood that

2055the prospect will produce flowable hydrocarbons. (RO 79). The analysis and scoring

2067performed by the Petitioner's expert Mr. Aldrich was found by the ALJ to be a reasonab l e and

2086factually supported assessment of the risk associated with each of the prospects that exist beneath

2101the proposed Well Site. The ALJ found that Mr. Aldrich's calculation that there was a four­

2117percent chance of success , which means a 96 percent chance of failure , at the Well Site for the

2135Dollar Bay prospect was reasonable and supported by the evidence. The AU also found that Mr.

2151Aldrich's calculation that there was a twenty-percent chance of s u ccess, which means an 80

2167percent chance of failure, at the Well Site for the Upper Sunniland play was reasonable and

2183supported by the evidence. (RO mf 80-82). The AU found that under the industry-accepted

2197means of risk assessment, there is a 23-percent chance of success that at least one zo ne will be

2216producti ve. (RO 83). The ALJ further found that a 23-percent chance that an exploratory well

2232will be productive , is , in the fie ld of o i l exploration and production, a very high chance of

2252success.

2253Commerc i a l Profitability

2258The P e titioner 's expert Mr. Aldrich te s tified that the Petitioner 's project would be

2276commercially self-supporting if it produced 100 , 000 barrel s at $50.00 per barrel. Since his

2291testimony was unrebutted, the ALJ accepted his testimony on this matter. The ALJ found that

2306the evidence su pport s a finding that reserves could r ange from an optimistic estimate of 3 to 1 0

2327milli on barrels, to a very conservative estimate of 200 barrels per ac re over 900 ac r es, or 180 ,000

2349barrels. The AU concluded that the preponderance of the ev i dence established the likelihood of

2365the pre s ence of oil in such quantit i es to warrant its exploration and extraction on a commercia ll y

2387profitable basis. ( RO 86-87).

2392STANDARDS OF REVIEW OF DOAB RECOMMENDED ORDERS

2399Section 120.57( 1 )(1) , Florida Statutes, prescri b es t hat an agency reviewing a

2414recommended orde r may not reject or modify the findings of fact ofthe ALJ "u nless the agency

2432first determines from a review of the entire record, and states with particularity in the order, t ha t

2451the findings of fact not were based on competent substan tial evidence. " § 120.57( 1 ){l) , Fla. Stat.

2469(2017) ; Char lotte County v. fMC Phosphat es Co., 18 So. 3d 1 089 (F l a. 2d DCA 2009); Wills v .

2492Fla . Ele c tions Comm ' n , 955 So. 2d 61 (Fla. 1st DCA 2007). The term "c ompetent substantial

2513evidence" does not relate to the quality, character, convincing power , probative value or weight

2527of the evidence. R ather, "competent substantial evide nce " refers to th e existe nce of some

2544evidence as to each essential element and as to it s admissibility u n der l egal rules of evidence. See

2565e.g., Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm ' n, 671 So. 2d 287, 289 n.3

2582(Fla. 5th DCA 1996); Nunez v. Nunez, 29 So. 3d 1 191, 1192 (F l a. 5th DCA 20 1 0).

2603A reviewing agency may not reweigh the evidence presented at a DOAH final hearing,

2617attempt to resolve conflicts therein , or judge the credibility of w itn esses. See, e.g. , Rogers v.

2634Dep ' t of Health, 920 So. 2d 27,30 (Fla. 1st DCA 2005); Belleau v . Dep't ofEnvtl. Prot., 695 So.

26562d 1305 , 1307 (Fla. I st DCA 1997); Dunham v. Highlands County School Bd., 652 So. 2d 894

2674(F la. 2d DCA 1995) . If there is competent substantial evidence to support an ALJ's fmdings of

2692fact, it is irrelevant that there may also be competent substantial evidence sup porting a contrary

2708finding. See , e.g., A rand Constr. Co. v. Dyer, 592 So. 2d 276, 280 (Fla. 1st DCA 1991 );

2727Conshor, Inc. v. Roberts, 498 So. 2d 622 (F l a. I st DCA 1986).

2742The ALJ's deci s ion to accept the testimony of one expert witness over that of anothe r

2760expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete

2776l ac k of any competent substantial evidence of record supporti n g th i s decision. See, e.g., Pea ce

2797River / Manasota R eg ' / Water Supply Authority v. fMC Phosphates Co., 18 So. 3d 1079 , 1088

2816(Fla. 2d DCA 2009); Collier Med. Ctr. v. State, Dep ' t of HRS, 462 So. 2d 83, 85 (Fla. 1st DCA

28381985) ; Fla. Chapter of Sierra Club v. Orlando Utils. Comm ' n, 436 So. 2d 383, 389 (Fla. 5th

2857DCA 1983). In addition, an agency has no authority to make independent or supplem ental

2872findings offact. See, e.g ., North Port, Fla. v. Consol. Minerals, 645 So. 2d 485, 487 (Fla. 2d

2890DCA 1994); Fla. Power &Light Co. v. Fla. Siting Bd., 693 So. 2d 1025 , 1026-1027 (Fla. 1st

2907DCA 1997).

2909Section 120.57(1 )(1), Florida Statutes , authorizes an agency to reject or modify an ALJ's

2923conclusions of law and interpretations of administrative rules "over which it ha s substan tiv e

2939jurisdiction. " See Barfi e ld v. Dep ' t of H ea lth, 805 So. 2d 1008 (Fla. 1st DCA 200 I); L.B. Bryan

2963& Co. v. Sch. Bd. of Broward County, 746 So. 2d 1 194 (Fla. 1 s t DCA 1999) ; Deep Lagoon Boat

2985Club , Ltd. v . Sheridan , 784 So. 2d 1140 (Fla. 2d DCA 2001 ). Considerable deference shou l d be

3005accorded to these agency interpretations of statutes and rule s within their regulatory jurisdiction ,

3019and such agency interpretations should not be overturned unless "cle arly erroneous." See, e.g. ,

3033Falk v . B e ard , 614 So. 2d 1086 , 1089 (Fla. 1993); Dep ' t of Envtl. Reg. v. Goldring, 477 So. 2d

3057532 , 534 (Fla. 1985). Furthermore , agency interpretations of sta tutes and rules within their

3071regulatory jurisdiction do not have to be the on l y reasonab l e interpretation s . I t is enough i f s u ch

3097agency int erpreta tion s are " permissible " ones. See, e.g., Suddath Van Line s. Inc . v . Dep ' t of

3119Envtl. Prot., 668 So. 2d 209 , 212 (Fla. 1st DCA 1996).

3130I f an ALJ improperly labels a conclusion o flaw as a finding of fact , the label should be

3149disregarded and the item treated as though it were actually a conclusion of law. See, e . g.,

3167Battaglia Properties v . Fla . Land and Water Adjudicatory Comm ' n, 629 So. 2d 161, 168 (Fla.

31865th DCA 1994). However , neither should th e agency lab e l what is essentially an ultimate factual

3204determination as a " conclusion of law" in order to modify or overturn what it ma y view as an

3223unfavorable finding of fact. See, e.g. , Stokes v. State , Bd. of Prof'! Eng ' rs, 952 So. 2d 1224 (Fla.

32431st D CA 2007).

3247Agencies do not have jurisdiction , however , to modify or reject rulings on the

3260adm i ssibili ty of evidence. Evide nt iary rulings of t h e ALJ that deal with "factual issues

3280s u sceptible to ord i nary methods of proof that a r e not infused with [agency] po l icy

3301considerations ," ar e not matters over w hi ch the agency has "s ubstantive juri s diction. " See

3319Martuccio v. Dep ' t of Prof'/ R eg ., 622 So. 2d 607, 609 (Fla. 1st DCA 1993 ); Heifetz v. Dep ' I of

3345Bus. R eg.,4 75So.2d 1277,1281 (Fla. 1stDCA 1985 ). Evidentiaryrulingsarematterswithin

3357the ALl's sound "p r eroga t ive ... as the finder o f fact " and ma y not be reversed o n agency

3381review. See Martuccio, 622 So. 2d at 609.

3389RULINGS ON EXCEPTIONS

3392In review in g a r ecom mended order and an y written excep tion s, the age nc y's final order

"3414s hall include an explicit ruling on each exce ption. " See§ 1 2 0.57(l)(k) , Fla. Stat. (2017).

3431Howe ve r , the agency ne e d not rule on an except ion that "does not clearly identify the di sp uted

3454porti on of the recommended order by page number or par agra ph , that doe s not identify the leg a l

3476basis for the exception, or that does not include appropriate and specifi c citations to the record. "

3493I d.

3495A part y that file s no exceptions t o certai n findings of fact " has thereby exp ressed it s

3516agreement with, or at lea s t wa iv ed any objection to, those findings of fact. " Envtl. Coal. ofF/a.,

3536In c. v. Br oward County , 586 So. 2d 1212 , 1213 (Fla. 1st DCA 1991 ); see also Colonnade Med.

3556Ctr. , In c. v. State of Fla., Agency for Health Care Admin. , 847 So. 2d 540 , 542 (Fla. 4th DCA

35762003). However, an agency head reviewing a recommended order is free to modify or rej ect any

3593erron eo u s conclusion s of law over which t h e agency has s ub stant i ve juri s diction , e v en when

3620exceptions are not filed. See § 120.57(1 )(I), F la . Stat. (2 01 7); Barfield v. Dep ' t of Health, 805 So.

36442d 1008 (Fla . 1st DCA 2001); Fla. Publi c Employee Council, v. Daniels , 646 So. 2d 813, 816

3663(Fla. 1st DCA 1994).

3667RULINGS ON DEP ' S EXCEPT IONS

3674DEP Exception No. I regarding Paragr a ph 62

3683DEP takes exception to the findin gs of fact in paragraph 62 , stating that the findings are

3700not s upp orted by co mp etent substantial ev id ence. Paragraph 62 contains one sente nce

3718summarizing the testimony of Kanter's expert Mr. Pollister r ega rd ing whether the proposed well

"3734si te is a 'g reat prospect ' for producing oi l in such quantities to warrant exp l oration and

3755extraction of such products o n a commercially profitable ba s i s . " (RO 62). D EP co rrectl y noted

3777that counsel fo r Kanter asked Mr. P oll is t er the following que s tion:

3794So, Mr. P ollister , do you have an opinion of whether there is a proven or indicated

3811likelihood in the presence of oil in s uch quantities as to wa rr ant the ex pl o r ation

3832and ex tr actio n of such products on a co mmerci ally profitable ba sis at the Kanter

3851proposed oil site?

3854(T. Vol. I , p. 97 lines 1 2-1 7). DEP then acknow l edged that counsel for DEP objected to

3874the que s tion , but was overruled b y th e AU. (T. Vol. I, p 97 lin e 18 - p. 98 line 1 7) . DEP

3902argues th at Kanter's co un se l re-phrased the question as fo ll ows: " But what is your

3921op i nion?" (T. Vol. I , p. 98 line 20). The ALJ overru l ed D EP's objection to the question ,

3942and the A L J stated "M r. Pollister, yo u may answer the question ." (T. Vol. I , p. 98 lines 1 6

3966- 17). Mr. Pollister t est ifi ed t hat h e believe s that the propo se d site is a "great prospect"

3990based on hi s review of two lines of seismic data. (T. Vol. I , p. 99 lin es 8-13). As a re su l t ,

4015competent substantial evidence supports the ALJ's fmding i n paragraph 62 , as explai ned

4029above.

4030Furthermore , DEP is required to accept the ALJ's evidentiary rulings , s ince

4042evidentiary rulings are matters withi n the A LJ ' s sound " prerogative ... as the finder of

4060fact" and may not be reversed on agency review. Martuccio v . Dep ' t of Prof'! Regu latio n ,

4080622 So. 2d 607 , 609 (Fla. 1st DCA 1 993). Reading the expert's testimony , D E P 's

4098objection, and the ALJ's rulings as a who le , the first argument in DEP 's exception to

4115paragraph 62 is denied.

4119Next, DEP argues that the findings in paragraph 62 should be rejected for two additional

4134reasons. DEP argues that given the question presented to the witness and his answer, the

4149testimony cannot be construed to express an opinion regarding any likely quantity of oil, or of

4165commercial profitability. However, the AU 's finding is a reasonable inference from the record

4179testimony. The ALJ can " draw permissible inferences from the evidence." Heifetz v. Dep ' t of

4195Bus. Regulation, 475 So. 2d 1277, 1281 (Fla. 1 51 DCA 1985). S ee also Walk e r v. Bd. of Prof/

4217Eng ' rs, 946 So. 2d 604 , 605 (F la. 1st DCA 2006) (" It is the hearing officer's function to consider

4239all the evidence presented , resolve conflicts, judge credibility of witnesses, draw permissible

4251inferences from the evidence, and reach ultimate findings of fact based on competent, substantial

4265evidence."). Therefore, DEP 's exception to paragraph 62 based on its fir st reason is denied.

4282DEP then argues that the findings in paragraph 62 should be rejected , because the AU

4297erred in overruling DEP 's objection regarding the question that resulted in the testimony

4311summarized in paragraph 62 of the RO and from which DEP filed its exception. Agencies do not

4328have jurisdiction to modify or reject rulings on the admissibility of evidence. Evidentiary rulings

4342of the ALJ that deal with "factual issues susceptible to ordinary method s of proof that are not

4360infused with [agency] policy considerations;· are not matters over which the agency bas

"4374s ubstantive jurisdiction ." See Martuccio v. Dep ' t of Prof'/ Regulation , 622 So. 2d 607, 609 (Fla.

43931st DCA 1993); see Barfield v. Dep ' t of Health, 805 So. 2d 1008 (Fla. 1 5 1 DCA 2002).

4414Evidentiary rulings are matters within the ALJ 's sound " prerogative ... as the finder of fact" and

4431may not be reversed on agency review. See Martu c cio, 622 So. 2d at 609. Thus , DEP's

4449exception to paragraph 62 based on the above rea son is also denied .

4463DEP notes that Mr. Pollister's testimony cited in paragraph 62 of the RO is " the only

4479scintilla of evidence that would arguably support a general finding regarding commercial

4491profitability." Section 120.57(1 )(1), Fla. Stat. , states that an agency r eviewing a recommended

4505order may not reject or modify the findings of fact of an administrative law judge, unless the

4522agency determines that the findings of fact were not based on competent substantial evidence.

4536The term "competent substantial evidence " does not relate to the quality, character, convincing

4549power, probative value or we i ght of the evidence; rather it refers to the existence of some

4567quantity of evidence. Scholastic Book Fairs, in c. v. Unemployment Appeals Comm ' n, 671 So. 2d

4584287, 289 n.3 (F l a 5lh DCA 1996). As a result , "a scintilla of evidence· · constitutes the existence

4604of some quantity of evidence; and thus , competent substantial evidence exists to support the

4618finding in paragraph 62 that the "site is a 'great' prospect for producing oi l in such quantities as

4637to warrant the exploration and extractio n of such products on a commercially profitab l e basis."

4654(T. Vol. I, p. 971 i nes 12-17; T. Vol. I, p. 98line 21). DEP 's exception to paragraph 62 based on

4676the above reason is also denied.

4682Finally, DEP argues that no competent substantial evidence supported any projection of

4694future price. However, the ALJ's findi n g is a reasonable inference from the record test i mony

4712regarding current prices. The ALJ can "draw permissible inferences from the evidence." Heifetz,

4725475 So. 2d at 1 281. See also Walker, 946 So. 2d at 605 ( " It i s the hearing officer's function to

4748consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw

4760perm i ssible inferences from t he evide n ce, a n d reach ultimate findings of fact based on

4780competent, substantial evidence."). DEP 's exception to paragraph 62 based on its final argument

4795is denied.

4797Therefore , based on the foregoing reasons , DEP 's Exception No. l is denied.

4810DEP Exception No.2 regarding Paragraph 86

4816DEP take s exception to the findings in paragraph 86, which find that the Kanter project

4832would be commercially self-supporting if it produced 100,000 barrels at $50.00 per barrel. DEP

4847argues that the AU's findings are not supported by competent substantial evidence.

4859However , the ALJ's finding is supported by competent substantial evidence in the form

4872of expert testimony from Jeffrey Aldrich. (T. Vol. V , p. 422 line 21 - p. 423 line 9). Therefore,

4891DEP 's exception to paragraph 86 is denied.

4899DEP Exception No. 3 regarding Paragraph 87 and footnote 9

4909DEP takes exception to the finding s of fact in paragraph 87 and footnote 9 , arguing that

4926no competent substantial evidence supports the find in gs in the first sentence, second sentence, or

4942footnote 9. DEP argues that the finding in the first se nt e nc e is not supported by competent

4962substantia l evidence, because the testimony concerning estimated volumes refers to "fields" and

4975not "reserves" as stated in the findings of fact. However , Kanter 's expert, Mr. Aldrich, refers to

" 4992reserves " and not ·'fields·· when he testified that " I wou ld expect [this prospect] to fall along

5009that line trend and that the expected reserve s i ze that you would get would be someplace within

5028the 3 to 10 million barrels , yes." (T. Vol. V , p. 341 line s 8-11) (emphasis added). Therefore,

5046DEP's exception to the first sentence of paragraph 87 is denied.

5057D EP takes exception to the second sentence of paragraph 87 , arguing that no competent

5072substantial evidence supports the commercial profitability from either a single well or a

5085combinat ion of we ll s. DEP argued that the on l y testimony supporting the AU's finding that

5104there was a " lik el ih ood of the presence of oil in such quantities as to warrant its exploration and

5125extraction on a commercially profitable basi s" was related to the installation and associated costs

5140of a sing le exploratory well - not a ''field,"' as described in Mr. A ldri ch's testimony. However ,

5160as explained above , Mr. Aldrich ' s testimony refers to · ·re serves " and not ''fields' · when he

5179testified that the reserve s i ze would get somep l ace within 3 to 10 million barrels. (T. Vol. V, p.

5201341 lines 8-11 ). Mr. Aldrich specifically testified that the proposed drilling prospect would be

5216commercially profitability as follows:

5220Q. Okay . And at curre nt oil prices, i s this prospect worth drilling to an oil

5238production company?

5240A. Yes , sir. It doesn't take much.

5247Q. Which is?

5250A. It would probably be economical at about 100,000.

5260Q. So 100 ,000 barrels, which is much below where you had pegged it?

5274A. Yes, sir.

5277Q . And w h a t price of oil are you u sing in yo ur mind.

5295A. About $50 a barrel.

5300Q. Which is about where it is today?

5308A. Yes, sir.

5311(T. Vol. V, p 422 line 21 - p. 423 line 9).

5323DEP further argues that no competent subs tantial evidence supported any projection of

5336the future price per barrel. Howe ver, the ALl's finding i s a reasonab le inference from the record

5355testimony regarding current prices per barrel. As sta ted above, the ALJ can "draw permissible

5370inferences from the evidence." Heifetz, 475 So. 2d at 1281. See also Walker, 946 So. 2d at 605.

5388DEP 's exception to the second sentence in paragraph 87 is thus denied .

5402DEP takes exception to the findings of fact in footnote 9 arguing that the footnote should

5418be construed, in part , as conclus ions oflaw. DEP first argues that there is no competent

5434substantial evidence to support the finding of fact that under the Petroleum Reserve Management

5448System (PRMS) auditing standards, oil companies are not allowed to develop any economic

5461models with re spect to prospective petroleum reserves that have not been proven. However, the

5476ALJ's finding is supported by competent substantia l evidence in the form of expert testimony

5491from Jeffrey Aldrich. (T. Vol. lX, p. 840 line 23 - p. 841 line 25). Thus , DEP 's exce ption to

5512footnote 9 for the above reason is denied.

5520Next, DEP argues that footnote 9 contai n s an "erroneous conclusion of law , that an

5536economic projection or analysis is ' inappropriate. "' Howev er, the ALJ's finding i s supported by

5553competent substantia l evidence in the form of expert testimony from Jeffr ey Aldrich, and s hould

5570not be reclassified as a conclus ion of law. {T. Vol. IX, p. 840 line 23 - p. 841 line 25).

5591Specifically, Kanter 's expert Jeffrey Aldrich testified that the Petroleum Re serve Management

5604System auditing standards contain three auditing classifications - standards for commercial

5615reserves, standards for discovered reserves that are not commercial yet, and standards for

5628prospective resources , known as prospects . He explained that "we have whole guidelines on

5642them (prospective resources] , and they do not have any economics run on th em. We ' re actually

5660not allowed to state any economics on them under the PRMS gu ideline s." The ALJ's finding is

5678supported by competent substantial evidence in the form of expert testimony from Jeffrey

5691Aldrich . {T. Vol. lX, p. 840 line 23- p. 841 line 18). Thus , D E P 's exception to footnote 9 for

5714the above reason is denied.

5719Next, DEP argues that footnote 9 contains an erroneous conclusion oflaw that economic

5732projections s hould be made after the project i s complete. Contrary to DEP 's argument , the

5749ALr s finding is supported by competent su b stan tial evidence in the form of expert testimony

5767from Jeffrey Aldrich, and should not be reclassified as a conclusion oflaw. (T. Vol. IX, p. 840

5784line 23 - p. 841 line 18 ). As explained by Kanter's expert witness Jeffre y Aldrich economic runs

5803are not allowed to be conducted for prospective resources under the Petroleum Reserve

5816Management System that establishes auditing standards for the petroleum industry. Thus , DEP 's

5829exception to footnote 9 for the above reason is denied.

5839Therefore, based on t h e foregoing reasons, DEP's exceptions to both sentences in

5853paragraph 87 and footnote 9 are denied.

5860DEP Exceptions N o.4, S, 6, 7, and 8 regarding Paragraphs 99 , 100 , 103, 109 , and 110

5877DEP takes exception to conclusions of l aw in paragraphs 99, 100 , 103, 109, a nd 11 0.

5895The ALJ has interpreted Section 377.241, Florida S tatu tes, i n P a r agraphs 99, 100 a nd 1 03, to

5918place an "overr iding legislat i ve concern'' with the effect of divided mineral interests on rights of

5936s u rface ow n e r ship. (RO 99 and I 00). Furthermo r e, the ALJ, cite d to a DOAH permit

5960challenge in which the applicant withdrew i ts app li cation before the deadline for the final order,

5978and thu s DEP 's Secretary did not have the opportunity to accept or reject counsel's a r guments or

5998the ALJ's legal conclus i ons when the ALJ quote d that " When enacted in 1961 , the overa ll

6017purpose of the statute was to institute a permit process in order to protect landowners from undue

6034burden s from mineral leases." Mosher v. Dep ' t ofEnvtl. Prot ., Case No. 13-4254 and 13-4920

6052(DOAH Recommended Order June 3, 2014; Application withdrawn by Stipulat i o n b ef or e DEP 's

6071Secretary wrote the F i n al Order) (RO 103).

"6081T h e r ev i ewing agency is not bound by the legal arguments mad e or legal positions

6101advocated by it s attorneys of r e cord in the DOAH pro ceedings." Haile Cmty. Ass 'n v. Florida

6121Indu s. & Dep ' t of Envtl. Prot., Case No. 95-5531, 1996 WL 533801, at *9, n . 1 (F l a. D EP

6146Se pt ember 5, 1996, Fla. DOAH July 23, 1996), citing Ridgewood Properties v. Dep ' t ofCmty.

6164Affairs, 562 So . 2d 322, 323 (Fla. 1990); Cordes v. D ep ' t of Envtl. Regulation, 582 So. 2 d 652,

6187655 (Fla. pt DCA 1991); Tamaron Utilities, Inc . v. Dep 't ofEnvtl. Prot., 16 F.A.L.R. 31 1 2,3124

6207n. 3 (Fla. DE P 1994). Accordingly, argume n ts of counsel in a formal proceeding, w h en not later

6228endorsed by th e agency head in a final order, are of no va lu e in providing agency practice or

6249previou s interpretations of rules or statutes. Thus, arguments made in the Mosher case hold no

6265value in DEP's interpretation of Chapter 377, F lorida Statutes.

6275In stead , I conclude that the overall purpose of Section 3 77.24 1 , F l orida Statutes, is to

6294identify seve r a l factors for DEP to weigh and balance w h en evaluating whet he r to i ss u e an oi l or

6322gas permit. Coastal Petroleum Co. v. Florida Wildlife Fed ' n, In c. 766, So. 2d 226, 228 (Fla. 1st

6342DCA 1999) (Appellate court agreed that D EP is to weigh and balance the cr i teria in Sect i on

6363377.421 to d e t ermine whether to issue an oi l drilling pennit). The int erpretat i o n of Section

6385377.241 in this Final Order is more rea so nable than that of the ALJ in RO paragraphs 99, 100,

6405and 10 3. See§ 120.57(1)(1), Fla . Stat. (2017).

6414Thus , DEP 's exceptions No.4, 5 , and 6 t o c on cl u sions of l aw in paragraphs 99 , 100, and

6437103 of the RO are granted. The ALl's co n c lu s ions are accord i ngly modified in this Final Order.

6460S ee § 3 77.2 4 1 (2), Fla. Stat. (20 17) .

6473DEP 's exception No. 7 take s exception to conc l usion of l aw in paragraph 109 of the RO .

6495D EP argues that the ALJ 's conclusion of law in paragraph 1 09 is inco nsistent with existing

6514administrative and judicia l interpretation. The ALJ conclu d ed that the " property upon which the

6530Well Site i s t o be loc ated h as no special characteristics that would make it susce ptible to

6551pollution" and that "t h e area i s far less l ikely to impact natural resources t han ot h er D epartment­

6575permitted well s." (RO 1 09).

6581DEP administers and enforces the provisions of both c h apter 373 and chap ter 377,

6597Florida Statutes, and the rule s promulgated thereunde r , i ncl udi ng those applicable to oil and gas

6616permitting . ( RO 2 on page 8); see also § 1 20.57(1 )( 1 ), Fla. Stat. (2017) (agency can reject or

6639modify a judge's conclusions of la w and in terpre tation s of a dmini strative rules " over which it

6659has substantive jurisdiction."): MacPherson v. Sch. Bd . of Monroe County, 505 So. 2d 682, 683

6676(Fla. 3d D C A 1987); Sie ss v . Dep ' t of H e alth & Rehab. S e rv s ., 468 So. 2d 4 78 , 4 78 (Fla. 2d

6709DCA 19 8 5) ; All es v . De p ' t of Prof ' l R eg ulation , 423 So. 2d 6 2 4 , 626 (Fla. 5th DCA 1982).

6739I conclude that the overall purpose of Section 3 77.24 I (I) of the Florida Statutes is to

6757weigh and balance the " nature, character and location ofthe lands involved " when evaluating

6770whether to issue an oil or gas permit. Coastal Petroleum, Final Order at 6 , citing

6785§ 377.241, Fla. Stat. (2017) ( " The first crit e rion to be considered by the Department is the

6804'nature , character, and location of the lands involved. '" ). The lands proposed for the Well Site

6821are located in the endangered Everglades ecosystem, which is world renowned for its unique

6835environmental characteristics. In accordance with the Everglades Forever Act, the Florida

6846Legislature has dedicated the Everglades to long term restoration. See§ 373 .4 592, Fla. Stat.

6861(2017) (Section 373.4592(17) , Florida Statutes , shall be known as the Everglades Forever Act).

6874Thus , DEP ' s exception No.7 to conclusions oflaw in paragraph 109 of the RO is

6890granted. The interpretation in this Final Order i s more reasonable than that of paragraph 109 in

6907the ALJ ' s RO. See§ 120.57( 1 )(l), Fla. Stat. (2017). The ALJ"s conclusions are accordingly

6925modified in this Final Order.

6930DEP takes exception to conclus i on oflaw in paragraph 110 of the RO , concluding that it

6947should be rejected, because it is inconsistent with existing administrative and judicia l

6960interpretation.

6961As explained above, DEP administers and enforces the provisions of chapter 377, Florida

6974Statutes , and the rules promulgated thereunder , including those appl i cable to oil and gas

6989permitting. (RO 1\ on page 8) ; see also§ 120.57(1)(1) , Fla. Stat. (2017) (agency can reject or

7005modify a judge's conclusions of law and interp r etations of admin i strative rules "over which it

7023has substantive jurisdiction."); MacPherson, 505 So. 2d at 683 Siess, 468 So. 2d at 478; Alles ,

7040423 So. 2d at 626.

7045ln paragraph No. 110 , the AU concluded that the " greater weight ofthe evidence

7058establishes that the potential for hannful discharges and the potential for harm to groundwater

7072and the public water supply are insignificant " and that impos s ibility cannot be the permitting

7088standard. (RO 1j 11 0). DEP argues that the degree of risk has no bearing on application of

7106Section 377.241 (1 ); instead , the nature of the lands involved is what is at issue. In sup p ort of

7127this position , DEP quoted the Florida Wildlif e Federation v. Coastal Petrol e um Co. Final Order:

7144Apparently the ALJ reaches her conclusion that Coa s tal ' s permit ' meets ' the first

7162criterion on the basis that the chance of an oil spill is remote. (Finding of Fact 38).

7179However, Petitioners correctly point out that the relevant criterion is not the

7191chance of a blowout , but the nature ofthe l ands involved."

7202Fla . Wildlife Fed ' n , Inc . v . Coastal Petroleum Co. , Case Nos. 96-4222 and 96-5038 , 1998

7221WL 30004 7 at * 5 (Fla. DOAH April 8, I 998; Fla . DEP May 22, 1998) (Coastal Petroleum Final

7242Order).

7243I agree with the ALJ ' s conclusion that " impossibility of risk " from an oil and gas

7260exploratory drilling operation is not the permitting standard. (RO 1111 0). However, I also agree

7275with DEP ' s conclusion that it is not the degree of risk that has bearing on application of Section

7295377.241 (I). I nstead, Section 377.241 (1 ) , Florida Statutes , directs the Department t o consider the

" 7312nature , character, and location of the lands involved." § 377.241 (1 ), Fla. Stat. (2017).

7327The ALJ's conclusions of law in paragraph 110 are inconsistent with existing

7339administrative , judicial and statutory interpretation. See Coastal P e trol e um Final Order , 1998

7354WL 300047 at *5.

7358Therefore, DEP ' s exception No.8 to the conclusion of law in paragraph 110 of the RO is

7376granted in part, and denied in part. The ALJ 's conclusion s are modified in thi s Final Order to

7396weigh the "nature, character , and location of the lands involved'. in accordance with§ 377.241 ,

7410F l orida Statutes. The interpretation in this Final Order i s more reasonab l e than that of paragraph

7430I 09 in the ALJ's RO. See§ 120.57(1 )(1) , Fla. Stat. (2017). The ALJ's conc lu s i ons are

7450accordingly modified in this Final Order.

7456DEP Exceptions No.9, 10 and 11 regarding Paragraphs 113 , 115, and 116

7468DEP takes exception to conclusions of law in paragraphs 1 1 3, 115, and 116 ofthe RO ,

7485w hi c h interpret Section 377.241, Florida Statutes, when DEP i s determining whether to i ssue an

7504oil and gas permit. Spec ifi cally, Section 377.241(2) , Florida Statutes , directs DEP to consider

7519the following fac t ors "(2) The nature , type and exten t of ownership of the applicant, in cluding

7538s ch u matters as the length of time the applicant has owned the rights claimed without having

7556performed any of the exploratory operations so granted or authorized."§ 377.24 1(2) , Fla. Stat.

7571(2017).

7572DEP administers and enforces the provisions of chapter 377 , Florida Statutes, and the

7585rules promulgated thereunder, including those applicable to oi l and gas permitting. (RO 2 o n

7601page 8); see also§ 12 0.57(1)(1), Fla. Stat. (2017) (agency can reject or modify a judge 's

7618conclusions of law and interpretations of administrative rules "over which it has substantive

7631jurisdiction. " ); MacPh e rson, 505 So. 2d at 683 Siess, 468 So. 2d at 478; Alles, 423 So. 2d at 626.

7653In paragraph 11 3 , the ALJ concludes that t he primary co n sidera ti on of Section

7671377.241(2) is the balance between the le gal interests of the fee simple owner versus the interests

7688of the mineral rights owners, s tating tha t a balance is unnecessary, si n ce Kanter holds the surface

7708interests and the mineral rights to the proposed Well Site. (RO 113). DEP argues that Kanter

7724has conveyed away virtually all rights to surface development through conveyance of th e

7738flowage easement over the subject property .

7745I reject the ALJ's interpretation of Section 377.241 (2) that the primary consideration of

7759Section 377.241(2) is the balance between the legal interests of the fee simp le owner versus t h e

7778interests of the mineral right owners and the ALJ's conclusion that a balance is unnecessary,

7793since Kanter holds the surface interest and mineral rights to the proposed well site. I conclude

7809that whether the permit applicant holds both the surface interest and the mineral rights to the

7825proposed well sit e is but one factor to balance when determining whether to issue an oil and gas

7844permit. Section 3 77.241 (2) also requires DEP to weigh the " l e ngth of time the applicant has

7863owned the rights claimed without having performed any ... exploratory operations."

7874§ 377.241 (2), Fla. Stat. (2017). The interpretation of Section 377.241 in this Final Order is more

7891reasonable than that of the ALJ. See § 120.57(1 )(1), Fla. Stat. (20 17).

7905The ALJ's int erpretat ion of Section 377.42 1 , Florida Statutes, implies that the three

7920criteria to be considered by DEP when determining whether to issue an oil and gas permit are a

7938checklist. The three criteria do not constitute a pass-fail checklist for an applicant; rather , they

7953are guidelines for balancing interests.

7958Instead, Section 377.421, Florida Statutes, should be interpreted as calling for a weighing

7971process where each criterion is evaluated and then weighed against the other factors. See Coastal

7986Petroleum Final Order, 1 998 WL 300047 at *10 (DEP's Final Order concluded that the ALJ's

"8002Conclusions of Law again misread the statutory criterion as a pass-fail test. ... The

8016Department is charged instead with balancing interests .") The First District Court of Appeal

8031approved thi s weighing and balancing process on appeal in Coastal Petroleum Co. v. Florida

8046Wildlife Fed ' n, Inc. 766, So. 2d 226, 228 (Fla. l st DCA 1999).

8061Furthermore, the canon of statutory construction known as the reenactment canon direct s

8074an agency that when a court has interpreted part of a statute, subsequent reenactment of the same

8091statutory provisions may be considered legislative approval of the previous judicial

8102interpretation. Remington v. City of O ca la / United Self Insur ed, 940 So. 2d 1207, 1 210 (Fla. 1 s t

8125D CA 2006); Sam's Club v. Bair , 678 So. 2d 902, 903-04 (Fla. 1st DCA 1 996). Following

8143Coastal Petroleum, the legislature amended or " reenacted " Section 377.241, Florida Statutes,

8154without changing the text of the three factors. Ch. 2013-205 , § 12 , at 11 , Laws of Florida. See

8172also, e.g., Music City, Inc. v. Duncan 's Estate, 185 Colo. 245,248,523 P . 2d 983 , 985 ( 1 975)

8194(" [W]here a legislature re-enacts or amends a statute and does not change a sect ion previously

8211interpreted by settled judicial construction, it must be concluded that the legislature has agreed

8225with the judicial construction.").

8230Therefore, DEP 's exception No.9 to the conclusions of law in paragraph 11 3 of the RO

8247is granted. The interpretation ofSection 377.241 in this Final Order is more reasonable than that

8262of the ALJ. See§ 120.57(1)(1), F l a. Stat. (2017). The ALJ's conclusions are modified in this

8279Final Order to reflect that DEP must consider the length of time the permit applicant has owned

8296the rights claimed without having performed any exploratory operat ion s, evaluate each criterion

8310listed in Section 377.421(1) - (3), Florida Statutes, and then weigh and balance each of the three

8327criteria against each other.§§ 377.241 (I) - (3), Fla. Stat. (2017).

8338DEP takes exception to conclusions of law in paragraphs 115, and 116 , which interpret

8352Section 3 77.241, Florida Statutes. In paragraphs 115 and 1 1 6, the ALJ conc lude s that there is no

8373factual or legal basis to give any weight to the fact that Kanter has owned its property, including

8391the Well Site, si nce 1975. DEP argues that there is no dispute that Kanter owned the land but

8410has not applied for a permit for at least 39 years. DEP also points out that in the Coastal

8429Petroleum oil and gas permit application final order, the second factor weighed against the

8443permit applica nt , because the applicant h ad delayed seeking an oil and gas permit for "many

8460years." DEP argued that the Coastal Petrol e um final order analysis focused on the applicant's

8476delay in exploring for petroleum , rather than the type of interest held by the appl i cant.

8493I reject the ALJ ' s interpretation of Sectio n 3 77.241 (2), Florida Statutes, that no weight

8511should be given to the fact that Kanter has owned its property, including the Well Site , since

8528I975 without performing any exploratory operations. The correct interpretation of Sect io n

8541377.241(2) requires DEP to consider the length of time the permit applicant ha s owned the rights

8558claimed without having perfonned any exploratory opera tion s. § 377 .24I (2), Fla. Stat. (2017).

8574The interpretation of Section 3 77.241 in this Final Order i s more reasonable than that of the ALJ .

8594See § I 20.57(1)(1) , F l a. Stat. (20I7).

8603Therefore , DEP 's exceptions No.9 , 10, and II to the conclu s ions of l aw in paragraphs

8621113 , 1I5, and 116 of the RO are granted. The ALJ ' s conclusions are modified in this Final

8640Order to reflect that DEP must weigh t h e length of time the perm it applicant has owned th e

8661rights claimed without having performed any exploratory operations, eva lu ate each criterion

8674listed in Section 377 . 24I , Florida Statutes , and then weigh and balance each of the three criteria

8692agai n st each other.§ 377.241, Fla. Stat. (20I7).

8701DEP Exception No. 12 regarding Paragraph 119

8708DEP takes exception to the ALJ ' s conclusions of la w in paragraph 119 that " Section

8725377.241 ( 3) requires con s idera tion of whe th er there is an ' indicated likelihood· of the presence of

8747oil in commercially-profitable quantities. Subsection (3) does not require a guarantee. " (RO

8759119). DEP argues that paragraph 1 19 shou ld be r ejected in its entirety. The rulings in DEP

8778Except ion s No. 1, 2 and 3 above are incorporated herein.

8790Thus , D E P 's exception No. I2 to paragraph I 19 of the RO i s denied.

8808DEP Exceptio n No. 13 regarding Paragraph 120 and the ALJ's recommendations

8820DEP takes exception to the ALJ's conclusion in paragraph 120 and his recommendation ,

8833arguing that each of the factors weigh against the applicant obtaining a permit. Alternatively,

8847DEP argues that if a contrary conclusion is reached, then DEP shou ld reweigh the factors in

8864Section 377.241, Florida Statutes, and deny the application for Oil and Gas Permit No. OG 1366.

8880The rul i ngs above in DEP Exceptions No. 1 through 12 are incorporated herein.

8895Thus, DEP's exception to the ALJ's conclusion of law in pa r agraph 120 , and DEP's

8911exception to the ALl's recommendation , are granted to the extent that DEP is directed to

8926evaluate each of the three factors in Section 377.241 and then weigh each ofthe factors against

8942the other factors. This interpretation of Section 3 77.241 in this Final Order is more reasonable

8958than that of the AU. See § 120.57(1 )(1), Fla. Stat. (20 17).

8971U pon re-weighing the three factors in Section 3 77.241, Florida Statutes, against each

8985other, I conclude that the proposed oil and gas exploratory permit must be denied.

8999R U LINGS ON BROW ARD COUNTY'S EXCE PTIONS

9008Broward Co un ty Exception No .1

9015Broward County takes except i on to the ALJ's Conclusion of Law in paragraph 109 that

"9031T h e property upon which the Well Site is to be located ha s no special characteristics that would

9051make it suscept i ble to pollution."

9058The deadline to file exceptions expired at 5:00p.m. on October 25, 2017. S ee Fla.

9073Admin. CodeR. 28-106.217(1) (Exceptions and Re spo n ses) ('·Part ie s may file exceptions to

9089findings of fact and conclusions oflaw contained in recomm ended orders with the agency

9103responsible for rendering final agency action within 15 days of entry of the recommended

9117o rder. ' ') and Fla. Admin. CodeR. 28-106.104(3) ("Any document received by the office ofthe

9134agency clerk before 5:00p . m. shall be filed as of that day but any document received after 5:00

9153p.m. sha ll be filed as of 8:00a.m. on the next regular bus i ness day: '). Broward County filed its

9174exception s with DEP after 5:00p.m. on October 25 , 20 17 ; and thus , Broward County ' s

9191exceptions were filed late. Because Broward Coun ty 's exceptions were filed late , B roward

9206County 's Exception No. 1 is rejected.

9213Broward County Except ion No. 2

9219Broward County takes exception to the last sentence of the conclusion of law in

9233paragraph 120 , which states that '"balancing policy interests is the province of the [Department)'

9248[Id. at 12] , the Department is nonetheless constrained by the evidence in this case, which

9263establishes no reasonable basis in fact or law to deny the App li cation. "

9277The dead li ne to file exceptions expired at 5:00p.m. on October 25, 2017. See Fla.

9293Admin. CodeR. 28-106.217 (Exceptions and Response s) ("Parties may file exceptions to

9306findings of fact and conclusions oflaw contained in recommended orders with the agency

9319responsible fo r rendering final agency action within 15 days of entry of the recommended

9334order.") and Fla. Admin. CodeR. 28-106.1 04(3) ("Any document received by the office of the

9351agency clerk before 5:00 p.m. s hall be filed as of that day but any document r eceive d after 5:00

9372p.m. shall be filed as of 8:00a.m. on the next r egular business day."). Broward County filed its

9391exceptions with DEP after 5:00p.m. on October 25, 2017; and thus, Broward County's

9404exceptions were filed late . Because Broward County's exceptions were filed late, Broward

9417County ' s Exception No. 2 is rejected.

9425RULINGS ON CITY OF MIRAMAR'S NOTICE OF JOINDER IN DEP ' S EXCE P TIONS

9440The City of Miramar filed a Notice of J oinder in DEP 's Exce ption s with the Division of

9460Administrative Hearings on October 27, 2017.

9466Parties may file exceptions with the agency responsible for issuing the final order within

9480I 5 days after entry ofDOAH ' s recommended order. The deadline to file except i ons with DEP

9499expired at 5:00p.m. on October25, 2017. See Fla. Admin. CodeR. 28-106.2 1 7(1) (Exceptions

9513and Responses) ("Part i es may file exceptions to findings of fact and conclusions oflaw

9529contained in recommended o rder s with the agency responsible for rendering final agency action

9544within 15 days of entry of the recommended order.") and Fla. Admin. Code R. 28 -1 06.1 04(3)

9563("Any document received by the office of the agency clerk before 5:00p.m. s hall be filed as of

9582that day but any document received after 5:00p.m. shall be filed as of 8:00a.m. on the next

9599regular business day.'} Not only did the City of Miramar untimely file its Notice of Joinder in

9616DEP's Exceptions, but it filed its notice with the wrong e ntit y. The Notice of Joinder shou ld

9635have been filed with DEP; however, the city incorrectly filed its notice with DOAH. Because the

9651Ci t y of Miramar's Notice of Joinder in DEP' s Except ion s was filed lat e and incorrectly with

9672DOAH instead of DEP, the City of Miramar's joinder in DEP's exceptions is rejected.

9686CONCLUSION

9687DEP must weigh and balance the three factors identified in Section 377.421, Florida

9700Statutes, against each other to determine whether the proposed exploratory well drilling permit

9713for oil should be issued . In accordance with Section 377.24 1 , Florida Statutes, the "lands

9729involved" are located in the environmentally sensitive Everglades. (RO 19). In addition, the

9742permit applicant has chosen not to exercise its mineral rights for a long time, which weighs

9758against issuanc e of the permit. (RO 114).

9766In weighing and balancing the three factors in Section 377.24 I (1) - (3), DEP must

9782consider the significance of the environmentally sensitive Everglades. The Florida Legislature

9793emphasized the significance of the Everglades , when it stated in Section 373.4592) known as the

9808Everglades Forever Act, that:

9812(a) The Legis l ature finds th a t the Everg l ades ecological system not only

9829contributes to South Florida)s water supply , flood control, and recreation, but

9840serves as the habi t at for diverse species of wi ld life and plant life. The sys t em is

9861unique in the world and one of Florida's great treasures. The Everglades

9873eco logical system is endangered as a result of adverse changes in water quality,

9887and in the quantity, distribution, and timing of flows, and, therefore, must be

9900restored and protected.

9903(e) It is the intent ofthe Le gislature to pursue comprehensive and innovative

9916solutions to issues of water quality , water quantity, hydroperiod, and invasion of

9928exotic species which face the Everglades ecosystem. The Legislature recognizes

9938that the Everglades ecosystem must be restored both in terms of water quality and

9952water quantity and must be preserved and protected i n a manner that is long term

9968and comprehensive. The Legislature furthe r recognizes that the EAA and adjacent

9980areas provide a base for an agricultural industry, which in tum provides important

9993products, jobs, and income regionally and nationally. It is the intent of the

10006Legislature to preserve natural values in the Everglades while also maintaining

10017the quality of life for all residents of South Florida, including those in agriculture,

10031and to minimize the impact on South Florida jobs, including agricu ltural , tourism,

10044and natural resource-related jobs, all of which contribute to a robust regional

10056economy.

10057§ 373.4592(1)(a) and (e), Fla. Stat. (2017). See also§ 373.4592( 1 7), Fla. Stat. (2017) (Section

10073373.4592 shall be known as the "Everglades Forever Act").

10083In the Coastal Petroleum Final Order, DEP concluded that the balancing test in Section

100973 77.241, Florida Statutes, weighed against issuance of an oil and gas exploratory permit to the

10113permit applicant, Coasta l Petroleum Company. DEP concluded as follows:

10123Weighing evidence is the province of the trier of fact, but balancing policy

10136interests is the province of the agency. Cross v. Dep 't of Health & Rehab. Servs.,

10152658 So. 2d 1139, 1143 (Fla . 1st D CA 1 995) ("Striking the proper balance between

10170. . . competing policy considerations" is a decision to be made by an agency, as

10186guided by the l egis l ature); Florida Power Corp. v. Dep ' t of Envtl. Regulation, 638

10204So. 2d 545, 546 (Fla. 1st DCA), review denied, 650 So. 2d 149 (Fla. 1994)

10219(affmning DER's determination "that the public interest in the extent of the

10231impact on the environment ... was a policy matter for its detennination and not

10245a question of fact to be resolved by the hearing officer."). In the present case, the

10262balance tips against issuance of a permit to drill an exploratory well nine miles

10276south of St. George I sland.

10282Fla. Wildl(fe Fed ' n , Inc. v. Coastal Petroleum, Case Nos. 96-4222 and 96-5038, 1998 WL

10298300047 at *12 (Fla. DEP May 22, 1998).

10306Similarly , in the pre sent case using the same criteria in Section 377.241, Florida Statutes,

10321the balance tips against issuance of an oil and gas permit to drill an exploratory well in the

10339environmentally sensitive Everglades.

10342DEP ha s not issued an oil and gas exploration permit since 1967 within the Everglades

10358lands subject to co n servation and restoration under§ 373.4592, Florida Statutes. Thus, the last

10373oil and gas exploration permit within such lands was 50 years ago , 1 well before Section

103893 73.4592, known as the Everglade s Forever Act, was enacted by the Florida Legis lature in 1991.

10407See ch. 91-80, §§ 1, 2 (1991). The Florida Legislature has not amended it s position regarding the

10425need to preserve and restore the Everglades since 1991, nor has D EP issued an oil and gas

10443exploration permit within this boundary of the Everglades once such lands became subject to

10457restoration under the Everglades Forever Act. See§ 373.4592, Florida Statutes.

10467Having considered the applicable law in light of the ruling s on the above Exceptions, and

10483being otherwise duly advised, it is

10489ORDERED that:

10491A. The Recommended Order (Exhibit A) is adopted , except as modified by the above

10505rulings on Exceptions , and is incorporated by reference herein;

10514B. ERP Permit No. 06 -0 336409-001 i s APPROVED; and

10525DEP acknowledges t h at the RO does not identify when the last permit was issued in the

10543Everglades. According l y , this specific information did not form the basis of the agency's

10558decision, but merely reflects that DEP has not changed its long-standing policy to deny oil and

10574gas permits within lands subject to Everglades restoration.

10582C. Oil and Gas Drilling Permit No. OG 1366 i s DE N IED.

10596JUDICIAL REVI E W

10600Any party to this proceeding h as the right to seek judicial review of the Final Order

10617pursuant to Section 120.68, Florida Statutes , by the fil i ng of a Not i ce of Appeal pu r sua nt to Rul e

106429. 1 1 0 , Florida Rule s of Appellate Procedure, with the clerk of the Department in the Office of

10662General Counsel , 3900 Commonwealth Boulevard , M.S. 35 , Tallahassee , Florida 32399-3000;

10672and by filing a copy of the Not i ce of Appeal accompanied by the applicab l e filing f ees with the

10695appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from

10711the date this Final Order is filed with the clerk of the Department.

10724DONE AND ORDERE D this Q'1\\t- day ofNovember , 2017, in Tallahassee , F l orida.

10738STATE OF FLORIDA DEPARTMENT

10742OF ENVIRONMENTAL PROTECTION

10745/ /

10747z

10748NOAH V ALENSTEIN

10751Secretary

10752Matjory Stoneman Doug l as Building

107583900 Commonwealth B ou l evard

10764Tallahassee , Florida 32399-3000

10767FILED ON THIS D ATE PURSUANT TO § 120.52 ,

10776FLORIDA STATUTES , WITH THE DESIGN ATED

10782DEPARTMENT CLERK, RECEIPT OF WHI CH I S

10790HEREBY ACKNOWLEDGED.

10792CERTIFICATE OF SERVICE

10795I HEREBY CERTIFY that a copy of the forego in g Final Order has been sent by

10812electronic mail to:

10815Douglas P. Manson , Esquire Adam Abraham Schwartzbaum , Esquire

10823Brian Bolves , Esquire Weiss Serota He l fman Cole & Bi erman

10835Christine Senne, Esquire 200 East Bro ward Boulevard , Suite 1900

10845Chris R. Tanner , Esquire Fort Lauder dale , Florida 33301

10854Paria Shirzadi, Esquire Aschwartzbaum@wsh-law .com

10859Manson Bolves Donaldson V am , P .A.

108661101 West Swann Avenue Michael Christopher Owens, Esqu ire

10875Tampa, Florida 33606-2637 County Attorney's Office

10881dmanson@mansonbol ves.com Government Center

10885bbolves@rnansonbol ves.com 115 South Andrews Avenue , Suite 423

10893csenne@Ma n sonBol ves.com Fort Lauder dale , Florida 33301

10902ctanne r@man sonbo l ves.com mowens @ broward.org

10910pheeter@MansonBolves.com

10911Jeffrey Brown , Esquire

10914Department of Environmental Protection

109183900 Commonwealth Blvd., M.S. 35

10923Tallahassee, FL 32399 - 3000

10928Jeffrey.brown@dep.state.tl.us

10929and by electronic filing to:

10934Division of Administrative Hearings

10938The DeSoto Building

109411230 Apalachee Parkway

10944Tallahassee, FL 32399-1550

10947v-

10948this .2 .' 1 day ofNovember, 2017.

10955STATE OF FLORIDA DEPARTMENT

10959OF ENVIRONMENTAL PROTECTION

10962sT ACEY n : WLEY

10967Administrative Law Counsel

109703900 Commonwealth Blvd ., M.S. 35

10976Tallahassee, FL 32399-3000

10979Telephone 850/245-2242

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 12/01/2017
Proceedings: Kanter Real Estate, LLC's Response to Exceptions filed.
PDF:
Date: 12/01/2017
Proceedings: Respondent's Exceptions to Recommended Order filed.
PDF:
Date: 12/01/2017
Proceedings: Broward County's Exceptions to Recommended Order filed.
PDF:
Date: 12/01/2017
Proceedings: Agency Final Order filed.
PDF:
Date: 11/27/2017
Proceedings: Agency Final Order
PDF:
Date: 10/27/2017
Proceedings: City of Miramar?s Notice of Joinder in Support of Department of Environmental Protection?s Exceptions to Recommended Order (filed in Case No. 17-000667).
PDF:
Date: 10/27/2017
Proceedings: City of Miramar?s Notice of Joinder in Support of Department of Environmental Protection?s Exceptions to Recommended Order filed.
PDF:
Date: 10/10/2017
Proceedings: Recommended Order
PDF:
Date: 10/10/2017
Proceedings: Recommended Order (hearing held May 22-26, 2017). CASE CLOSED.
PDF:
Date: 10/10/2017
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 08/23/2017
Proceedings: City of Miramar?s Notice of Joinder in Support of Proposed Recommended Orders of Department of Environmental Protection and Broward County, Florida (filed in Case No. 17-000667).
PDF:
Date: 08/23/2017
Proceedings: City of Miramar?s Notice of Joinder in Support of Proposed Recommended Orders of Department of Environmental Protection and Broward County, Florida filed.
PDF:
Date: 08/22/2017
Proceedings: Intervenor Broward County's Proposed Recommended Order (filed in Case No. 17-000667).
PDF:
Date: 08/22/2017
Proceedings: Respondent Department of Environmental Protection's Proposed Recommended Order filed.
PDF:
Date: 08/21/2017
Proceedings: Respondent Department of Environmental Protection's Proposed Recommended Order filed.
PDF:
Date: 08/21/2017
Proceedings: Petitioner Kanter Real Estate, LLC's Proposed Recommended Order filed.
PDF:
Date: 08/17/2017
Proceedings: Order Granting Proposed Recommended Order Page Limit and Filing Date Extension.
PDF:
Date: 08/16/2017
Proceedings: Kanter Real Estate, LLC's Motion for Increasing the Page Limit for, and Extending the Deadline to Submit, Proposed Recommended Orders filed.
PDF:
Date: 08/08/2017
Proceedings: Order Granting Motion for Extension of Time.
PDF:
Date: 08/07/2017
Proceedings: Kanter Real Estate, LLC's Motion for Extension of Time to Submit Proposed Recommended Orders filed.
Date: 07/10/2017
Proceedings: Transcript of Proceedings Volumes I-IX (not available for viewing) filed.
PDF:
Date: 06/26/2017
Proceedings: Order Denying Motion in Limine.
PDF:
Date: 06/26/2017
Proceedings: Order on Designation of Transcript Excerpts.
PDF:
Date: 06/23/2017
Proceedings: Kanter Real Estate, LLC's Response to Department's Objections filed.
PDF:
Date: 06/16/2017
Proceedings: Objections and Cross-Designations to Petitioner's Exhibit 123 (Reeves Deposition Transcript) filed.
PDF:
Date: 06/02/2017
Proceedings: Kanter Real Estate, LLC's Notice of Filing Transcript Excerpts and Exhibits from the Deposition of Daniel Reeves filed.
Date: 05/22/2017
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 05/22/2017
Proceedings: Petitioner's Motion in Limine on Historic Ownership and Use of Mineral Rights (filed in Case No. 17-000667).
PDF:
Date: 05/22/2017
Proceedings: Joint Pre-hearing Stipulation for Environmental Resource Permit Proceeding filed.
PDF:
Date: 05/19/2017
Proceedings: Joint Pre-hearing Stipulation for Oil and Gas Permit Proceeding filed.
PDF:
Date: 05/18/2017
Proceedings: Order Granting Extension of Time.
PDF:
Date: 05/17/2017
Proceedings: Joint Motion for Extension of Time to File Joint Pre-hearing Stipulations (filed in Case No. 17-000667).
PDF:
Date: 05/16/2017
Proceedings: Order Denying Motion in Limine and for Reconsideration.
PDF:
Date: 05/15/2017
Proceedings: Notice of Cancellation of Deposition (of Stevens, Chad) filed.
PDF:
Date: 05/15/2017
Proceedings: Notice of Cancellation of Deposition (of DEP Corporate Representative) filed.
PDF:
Date: 05/11/2017
Proceedings: Petitioner's Response in Opposition to Respondent's Motion in Limine and for Reconsideration, and Petitioner's Motion in Limine Regarding Local Ordinances and Land Use Plans filed.
PDF:
Date: 05/10/2017
Proceedings: Petitioner, Kanter Real Estate, LLC's Notice of Taking Video Deposition Duces Tecum (Charles Preston) filed.
PDF:
Date: 05/10/2017
Proceedings: Order Denying Motion for Protective Order.
PDF:
Date: 05/10/2017
Proceedings: Petitioner, Kanter Real Estate, LLC's Response to Respondent, Department of Environmental Protection's Amended Motion for Protective Order filed.
PDF:
Date: 05/09/2017
Proceedings: Respondent's Amended Motion for Protective Order filed.
PDF:
Date: 05/09/2017
Proceedings: Respondent Department of Environmental Protection's Notice of Taking Deposition Duces Tecum (of Kanter Real Estate, LLC) filed.
PDF:
Date: 05/09/2017
Proceedings: Stipulated Protective Order Regarding Confidential Information.
PDF:
Date: 05/09/2017
Proceedings: Respondent's Motion for Protective Order (counsel for the department) filed.
PDF:
Date: 05/09/2017
Proceedings: Petitioner, Kanter Real Estate, LLC's Notice of Taking Deposition Duces Tecum (T. Woods) filed.
PDF:
Date: 05/09/2017
Proceedings: Petitioner, Kanter Real Estate, LLC's Notice of Taking Deposition Duces Tecum (Corporate Representative) filed.
PDF:
Date: 05/09/2017
Proceedings: Petitioner, Kanter Real Estate, LLC's Notice of Taking Deposition Duces Tecum (C. Stevens) filed.
Date: 05/08/2017
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 05/08/2017
Proceedings: Respondent Department of Environmental Protection's Notice of Taking Deposition Duces Tecum (of Bob Howard) filed.
PDF:
Date: 05/08/2017
Proceedings: Respondent Department of Environmental Protection's Notice of Taking Telephonic Deposition Duces Tecum (of Carol Howard) filed.
PDF:
Date: 05/08/2017
Proceedings: Respondent Department of Environmental Protection's Notice of Taking Telephonic Deposition Duces Tecum (of Jeffrey Aldrich) filed.
PDF:
Date: 05/08/2017
Proceedings: Respondent Department of Environmental Protection's Notice of Taking Telephonic Deposition Duces Tecum (of Ed Pollister) filed.
PDF:
Date: 05/08/2017
Proceedings: Respondent Department of Environmental Protection's Notice of Taking Telephonic Deposition Duces Tecum (of Phil Lakin) filed.
PDF:
Date: 05/08/2017
Proceedings: Notice of Telephonic Status Conference (status conference set for May 8, 2017; 4:00 p.m.).
PDF:
Date: 05/08/2017
Proceedings: Broward County's Response in Support of Department's Motion in Limine and for Reconsideration of the Order Dated April 24, 2017 filed.
PDF:
Date: 05/05/2017
Proceedings: Petitioner, Kanter Real Estate, LLC's Notice of Taking Deposition Duces Tecum (of Reeves) filed.
PDF:
Date: 05/05/2017
Proceedings: Joint Motion for Stipulated Protective Order Regarding Confidential Information filed.
PDF:
Date: 05/05/2017
Proceedings: Petitioner, Kanter Real Estate, LLC's Notice of Taking Deposition Duces Tecum (of Mulkey) filed.
PDF:
Date: 05/04/2017
Proceedings: Respondent's Motion in Limine and for Reconsideration, in Part, of the Order Dated April 24, 2017 filed.
PDF:
Date: 05/03/2017
Proceedings: Petitioner, City of Cape Coral's Amended Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 05/02/2017
Proceedings: Intervenor Broward County's Final Witness Disclosure filed.
PDF:
Date: 05/02/2017
Proceedings: Notice of Cancellation of Taking Deposition Duces Tecum (May 2, 2017 Deposition of Kirkman, Jody) filed.
PDF:
Date: 05/02/2017
Proceedings: Kanter Real Estate, LLC's Final Witness Disclosures filed.
PDF:
Date: 05/01/2017
Proceedings: Respondent's Final Witness Disclosure filed.
PDF:
Date: 05/01/2017
Proceedings: Petitioner, Kanter Real Estate, LLC's Third Amended Notice of Taking Deposition Duces Tecum (of Kirkman, Jody) filed.
PDF:
Date: 05/01/2017
Proceedings: Petitioner, Kanter Real Estate, LLC's Second Amended Notice of Taking Deposition Duces Tecum (of Kirkman, Jody) filed.
PDF:
Date: 04/27/2017
Proceedings: City of Miramar?s Response to Kanter Real Estate, LCC?s First Request for Production filed.
PDF:
Date: 04/27/2017
Proceedings: City of Miramar?s Notice of Serving Answers to Petitioner?s First Set of Interrogatories filed.
PDF:
Date: 04/27/2017
Proceedings: City of Miramar?s Response to Kanter Real Estate, LLC's Requests for Admissions filed.
PDF:
Date: 04/25/2017
Proceedings: Notice of Filing Executed Verification filed.
PDF:
Date: 04/24/2017
Proceedings: Kanter Real Estate, LLC's Expert Witness Disclosures filed.
PDF:
Date: 04/24/2017
Proceedings: Respondent's Expert Witness Disclosures filed.
PDF:
Date: 04/24/2017
Proceedings: Order Granting Petition to Intervene.
PDF:
Date: 04/21/2017
Proceedings: Petitioner, Kanter Real Estate, LLC's Motion to Dismiss Broward County's Verified Motion for Intervention filed.
PDF:
Date: 04/17/2017
Proceedings: Kanter Real Estate, LLC's Answers to Department of Environmental Protection's Second Set of Interrogatories filed.
PDF:
Date: 04/14/2017
Proceedings: Respondent Department of Environmental Protection's Third Request for Production of Documents to Petitioner filed.
PDF:
Date: 04/14/2017
Proceedings: Respondent, Department of Environmental Protection, Notice of Service of Third Set of Interrogatories filed.
PDF:
Date: 04/14/2017
Proceedings: Verified Motion for Intervention (filed by Broward County.) (filed in Case No. 17-000667).
PDF:
Date: 04/14/2017
Proceedings: Verified Motion for Intervention (filed by Broward County.) filed.
PDF:
Date: 04/13/2017
Proceedings: Department's Response and Objections to Petitioner's Request for Production filed.
PDF:
Date: 04/12/2017
Proceedings: Petitioner, Kanter Real Estate, LLC's Notice of Taking Deposition Duces Tecum (of Al Linero, P.E) filed.
PDF:
Date: 04/11/2017
Proceedings: Petitioner, Kanter Real Estate, LLC's Notice of Taking Deposition Duces Tecum (of Monica Sovacool) filed.
PDF:
Date: 04/10/2017
Proceedings: Petitioner, Kanter Real Estate, LLC's Amended Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 04/03/2017
Proceedings: Petitioner, Kanter Real Estate, LLC's Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 04/03/2017
Proceedings: Respondent, Department of Environmental Protection, Notice of Service of Answers to Petitioner, Kanter Real Estate, LLC's First Set of Interrogatories filed.
PDF:
Date: 04/03/2017
Proceedings: Respondent's Answers to Petitioner's First Request for Admissions filed.
PDF:
Date: 03/31/2017
Proceedings: Petitioner's Notice of Service of Answers to Department of Environmental Protection's First Set of Interrogatories filed.
PDF:
Date: 03/30/2017
Proceedings: Notice of Service of Kanter Real Estate, LLC's First Request for Admissions to City of Miamar filed.
PDF:
Date: 03/27/2017
Proceedings: Kanter Real Estate, LLC's First Request for Production of Documents to Intervenor City of Miramar filed.
PDF:
Date: 03/27/2017
Proceedings: Notice of Service of Kanter Real Estate, LLC's First Set of Interrogatories to Intervenor City of Miramar filed.
PDF:
Date: 03/24/2017
Proceedings: Order Granting Petition to Intervene.
PDF:
Date: 03/23/2017
Proceedings: City of Miramar?s Motion for Leave to File a Reply to Kanter?s Response in Opposition to City?s Motion to Intervene filed.
PDF:
Date: 03/23/2017
Proceedings: Petitioner, Kanter Real Estate, LLC's Notice of Taking Deposition Duces Tecum (of Corporate Representative) filed.
PDF:
Date: 03/23/2017
Proceedings: Petitioner Kanter Real Estate, LLC's Motion to Strike City of Miramar's Reply to Kanter Real Estate, LLC's Response in Opposition to City's Petition to Intervene Into Formal Administrative Hearing filed.
PDF:
Date: 03/23/2017
Proceedings: City of Miramar's Reply to Kanter Real Estate, LLC's Response in Opposition to City's Petition to Intervene Into Formal Administrative Hearing filed.
PDF:
Date: 03/23/2017
Proceedings: City of Miramar's Reply to Kanter Real Estate, LLC's Response in Opposition to City's Petition to Intervene Into Formal Administrative Hearing (filed in Case No. 17-000667).
PDF:
Date: 03/22/2017
Proceedings: Petitioner, Kanter Real Estate, LLC's Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 03/21/2017
Proceedings: Petitioner Kanter Real Estate, LLC's Response in Opposition to City of Miramar's Petition to Intervene Into Formal Administrative Hearing filed.
PDF:
Date: 03/16/2017
Proceedings: Respondent Department of Environmental Protection's Second Request for Production of Documents to Petitioner filed.
PDF:
Date: 03/16/2017
Proceedings: Notice and Certificate of Service of Respondent DEP's Second Set of Interrogatories to Petitioner Kanter Real Estate, LLC filed.
PDF:
Date: 03/15/2017
Proceedings: Notice of Service of Petitioner, Kanter Real Estate, LLC's First Request for Production of Documents to Defendant, Florida Department of Environmental Protection filed.
PDF:
Date: 03/14/2017
Proceedings: Petition to Intervene into Formal Administrative Hearing (filed by City of Miramar) (filed in Case No. 17-000667).
PDF:
Date: 03/14/2017
Proceedings: Petition to Intervene into Formal Administrative Hearing (filed by City of Miramar) filed.
PDF:
Date: 03/06/2017
Proceedings: Notice of Appearance (Brian Bolves; filed in Case No. 17-000667).
PDF:
Date: 03/03/2017
Proceedings: Notice of Appearance (Paria Shirzadi) filed.
PDF:
Date: 03/03/2017
Proceedings: Kanter Real Estate, LLC's Request for Admissions to Florida Department of Environmental Protection (filed in Case No. 17-000667).
PDF:
Date: 03/03/2017
Proceedings: Kanter Real Estate, LLC's First Set of Interrogatories to Florida Department of Environmental Protection (filed in Case No. 17-000667).
PDF:
Date: 03/01/2017
Proceedings: Respondent Department of Environmental Protection's First Request for Production of Documents to Petitioner filed.
PDF:
Date: 03/01/2017
Proceedings: Notice and Certificate of Service of Respondent DEP's First Set of Interrogatories to Petitioner Kanter Real Estate, LLC filed.
PDF:
Date: 02/10/2017
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 02/10/2017
Proceedings: Notice of Hearing (hearing set for May 22 through 26, 2017; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 02/10/2017
Proceedings: Order of Consolidation (DOAH Case Nos. 17-0666, 17-0667).
PDF:
Date: 02/02/2017
Proceedings: Initial Order.
PDF:
Date: 01/31/2017
Proceedings: Notice of Denial Oil and Gas Drilling Application filed.
PDF:
Date: 01/31/2017
Proceedings: Kanter Real Estate, LLC's Amended Petition for Formal Administrative Hearing filed.
PDF:
Date: 01/31/2017
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
E. GARY EARLY
Date Filed:
01/31/2017
Date Assignment:
02/02/2017
Last Docket Entry:
12/01/2017
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related DOAH Cases(s) (2):

Related Florida Statute(s) (10):

Related Florida Rule(s) (2):