08-005950 Earthmark Southwest Florida Mitigation, Llc vs. Resource Conservation Holding, Inc., And Department Of Environmental Protection Status: Closed Recommended Order on Monday, December 29, 2008.

Summary: The petition should be dismissed as untimely because the circumstances do not justify the application of equitable tolling.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EARTHMARK SOUTHWEST FLORIDA )

MITIGATION, LLC, )

)

Petitioner, )

)

vs. ) Case No. 08-5950

)

RESOURCE CONSERVATION HOLDING, INC., and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

This cause came before Bram D.E. Canter, an Administrative

Law Judge of the Division of Administrative Hearings (DOAH), on

the Emergency Motion to Dismiss, Request for Attorneys Fees, and

Alternative Motion to Strike filed by Respondent Resource

Conservation Holdings, Inc. A case management conference was

held by telephone to address the nature of the emergency

circumstances and to determine whether evidence was required to

resolve the untimeliness issue that appeared on the face of the

Petition for Formal Administrative Hearing. Following the

telephone conference, an Order was issued which set forth

expedited discovery instructions and identified three subjects

upon which evidence could be offered at an expedited hearing:

(1) The facts surrounding the request for notice of agency

action; (2) The practice of the Department with regard to

Florida Administrative Code Rule 62-343.090(2)(h); and (3) The

facts relevant to whether the permitted project qualifies for

the summary hearing proceeding described in Section 337.0261(4),

Florida Statutes (2008).

APPEARANCES

For Petitioner Earthmark Southwest Florida

Mitigation, LLC:

Tracy A. Marshall, Esquire

Anthony J. Cotter, Esquire

Gray Robinson, P.A.

301 East Pine Street, Suite 1400

Post Office Box 3068

Orlando, Florida 32802

For Respondent Resource Conservation Holding, Inc.:

Gary V. Perko, Esquire

Susan L. Stephens, Esquire

Hopping, Green & Sams, P.A.

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314-6526

For Respondent Department of Environmental Protection:

Ronald Woodrow Hoenstine, III, Esquire

Nona R. Schaffner, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

PRELIMINARY STATEMENT

The hearing was held on December 23, 2008, in Tallahassee,

Florida. Petitioner Earthmark Southwest Florida Mitigation, LLC

(Earthmark), presented two witnesses and Earthmark’s Exhibits 1

through 4, 6 and 7 were admitted into evidence. Respondent

Resource Conservation Holding, Inc. (RCH), presented one witness

and RCH’s Exhibits 1 through 9 were admitted into evidence. The

Department presented two witnesses and the Department’s Exhibits

1 through 4 were admitted into evidence. At the conclusion of

the presentation of evidence, the parties were allowed to make

closing arguments. The parties were informed that a ruling on

the motion to dismiss would be issued without post-hearing

written submittals and without a transcript of the hearing.

FINDINGS OF FACT

1. Earthmark operates the Corkscrew Regional Mitigation

Bank under contract with the South Florida Water Management

District (SFWMD).

2. RCH is a company in the business of sand and limestone

mining and was the applicant for Environmental Resource Permit

No. 0266397-001.

3. The Department is the state agency with the authority

and duty to regulate mining activities in Florida.

4. On August 20, 2008, the Department issued a Notice of

Intent to Issue Environmental Resource Permit No. 0266397-001

extract sand and limestone from a 1,365.5-acre tract of land

owned by RCH in Lee County.

5. On August 22, 2008, the Notice of Intent was published

in the Fort Myers News-Press, a daily newspaper of general

circulation in Lee County and nearby counties in the region.

The newspaper notice included a statement that a person desiring

to challenge the proposed action of the Department must file a

petition for hearing with the Department within 21 days.

6. No petition to challenge the proposed action was

received by the Department within 21 days of publication of the

newspaper notice.

7. On November 25, 2008, 43 days after the deadline stated

for the filing of a petition for hearing, Earthmark filed its

Petition for Formal Administrative Hearing with the Department.

On December 8, 2008, the Department referred the petition to

DOAH.

8. The Corkscrew Regional Mitigation Bank operated by

Earthmark is located on 632.5 acres of land adjacent to the

proposed sand and limestone mine.

9. The mitigation bank was established in the 1990s and

was originally operated by Mariner Properties Development, Inc.

(Mariner).

10. Negotiations began in 2006 between Earthmark

Mitigation Services, Inc., of which Petitioner Earthmark was a

subsidiary, to purchase from Mariner the contractual rights to

operate the mitigation bank. The purchase agreement was

executed in April 2007, and closed (all contingencies satisfied)

in March 2008.

11. Throughout the time that Mariner operated the

mitigation bank, it regularly employed the consulting services

of Kevin L. Erwin Consulting Ecologist, Inc. Erwin’s company

has its offices in Fort Myers. Erwin has had a long career in

environmental consulting and is knowledgeable about the

Department’s environmental permitting procedures.

12. In November 2007 and January 2008, Ervin was paid by

Earthmark for consulting services. In May 2008, Earthmark and

Erwin executed an agreement for consulting services.

13. Erwin is the Qualified Mitigation Supervisor for the

Corkscrew Regional Mitigation Bank.

14. On March 28, 2007, Erwin attended a meeting in Fort

Myers with SFWMD and Lee County employees, and other interested

persons to discuss, among other topics, mining activity in Lee

County. Erwin’s interests at the workshop were generalized. He

was not attending exclusively because of his association with

the Corkscrew Regional Mitigation Bank. He testified that he

was representing the interests of “three or four dozen”

clients. On the sign-in sheet for the workshop, under the

heading “Organization,” Erwin wrote KLECE, the initials of his

consulting company.

15. Howard Hayes, Program Administrator in the

Department’s Bureau of Mines and Minerals Regulation, was

invited to attend the meeting and to make a presentation. Hayes

testified that, during his presentation at the meeting, he

mentioned that a permit application for the Corkscrew Road

Excavation was pending at the Department. It was not made clear

in Hayes’ testimony whether he included details sufficient to

identify the location of the proposed Corkscrew Road

Excavation. It is logical that Hayes would mention the pending

permit application because mining activity in Lee County was a

prominent subject of the workshop.

16. Attached to Earthmark’s petition for hearing is an

affidavit by Erwin that includes the following statement:

On March 28, 2007, as a representative of

Earthmark, I requested, from the Program

Administrator of the FDEP Mines and Mineral

Regulation, that I be notified of any

actions concerning the proposed mine.

Erwin subsequently prepared an amended affidavit that changed

this statement to read as follows:

On March 28, 2007, I, as a representative of

the Mitigation Bank, requested from the

Program Administrator of the FDEP Bureau of

Mines and Minerals Regulation that I, on

behalf of the Mitigation Bank, be notified

of any agency action concerning the proposed

corkscrew excavation project (application

number 0266397-001).

17. The clarity and specificity of Erwin’s request for

notice, as described in his affidavit statements, with respect

to the permit application of interest to Erwin and the identity

of the mitigation bank as the entity for whom Erwin was making

the request, was not borne out in Erwin’s testimony at the

hearing. Erwin testified at the hearing that he does not recall

hearing Hayes mention the proposed Corkscrew Road Excavation.

Erwin testified that he asked Hayes to “keep us posted” about

meetings, permit applications, and proposed agency actions

regarding any mining proposals in Lee County. Erwin did not

specifically request to be informed about the Corkscrew Road

Excavation. Furthermore, although Erwin said that Hayes knew

that Erwin was associated with the Corkscrew Regional Mitigation

Bank, Erwin did not refer specifically to the mitigation bank

when he asked Hayes to “keep us posted.”

18. Erwin did not describe Hayes’ response to his oral

request for notice about mining permits, except that Hayes’

response was understood by Erwin to be in the affirmative.

Erwin did not say, for example, that Hayes told him, “Okay, I

will notify you when the Department issues its Notice of Intent

on the Corkscrew Road Excavation.” Erwin did not say that Hayes

made a written note to himself regarding Erwin’s request for

notice.

19. Hayes remembers seeing and talking to Erwin at the

meeting in Fort Myers. Hayes said that Erwin was one of several

people that stood around him after Hayes’ presentation to ask

Hayes questions or to discuss mining issues. However, Hayes

does not recall being asked by Erwin to give him notice of

mining permit applications or proposed Department actions on

mining permits, in general, or the Corkscrew Road Excavation, in

particular.

20. It is Hayes’ practice to take notes at meetings and

workshops and to include in his notes any request that he

receives from a person to be notified of proposed agency

action. Hayes took notes during the March 28, 2007 meeting,

which were admitted into evidence, but Hayes made no note that

Erwin (or anyone else) had requested notice of mining permit

applications or proposed Department actions on mining permits.

21. In the past, the Department’s Bureau of Mines and

Minerals Regulation has accepted both written and oral requests

for notification of proposed agency action. When such a request

is made, a note is placed in the Department’s permit application

file as a reminder to send the person who made the request a

copy of the Notice of Intent. No note was placed in the permit

application file for the Corkscrew Road Excavation.

22. The preponderance of the evidence, taking into account

the credibility of the witnesses, supports a finding that,

whatever Erwin said to Hayes on March 28, 2007, his words were

not effective to cause Hayes to understand that Erwin was making

a formal request for notice of the Corkscrew Road Excavation

that required Hayes to place a note in the permit application

file and to send Erwin a copy of the Notice of Intent when it

was issued.

23. Earthmark claims that it first became aware of the

Corkscrew Road Excavation when it was informed by Erwin in

October 2008. Erwin testified that he first learned about the

mining permit from a SFWMD employee and received a copy of the

Notice of Intent on October 7, 2008. By that date, the 21-day

deadline for filing a petition had already passed.

24. From the March 2007 workshop in Fort Myers to

October 2008, a period of almost 19 months, neither Erwin nor

any employee or agent of Earthmark made an inquiry at the

Department about proposed mining activity in Lee County. If

Erwin knew about the proposed Corkscrew Road Excavation in

March 2007, as indicated in his affidavits, the fact that he

never inquired about the proposed mine is difficult to

understand. Erwin said he made no inquiry because he trusted

the Department to inform him.

25. After being informed by Erwin about the Corkscrew Road

Excavation on or about October 7, 2008, Earthmark waited 20 days

to file with the Department a Request for Extension of Time to

File a Petition for Formal Administrative Hearing. Earthmark

requested an extension of 21 days, to November 17, 2008, which

the Department granted. Earthmark then waited until

November 17, 2008, to file a second request for an extension of

time to file a petition. The Department denied the second

request and ordered Earthmark to file its petition no later than

November 25, 2008. Earthmark filed its petition on November 25,

2008, 39 days after it was informed about the mining permit.

CONCLUSIONS OF LAW

26. Florida Administrative Code Rule 62-343.090(2)(h)

provides:

A notice of receipt of a complete or

substantially complete application shall be

provided to any persons who have filed a

written request for notification of any

pending applications affecting the

particular area in which the proposed

activity is to occur. Where a person has

requested notice of the intended agency

action for a specific application, the

Department shall provide such person with

notice of such intended agency action on

that specific application.

27. RCH argues that, pursuant to this rule, a person is

not entitled to notice of the Department’s intended action on a

permit application unless the request for notice was made in

writing. Petitioner argues that because the rule only refers to

a written request in the first sentence regarding “pending

applications,” but not in the second sentence regarding

“intended agency action,” a written request is not required for

the latter.

28. It is unlikely that the rule was intended to make a

distinction regarding the formality of the request for notice,

depending on whether the subject was a permit application or

intended agency action. For one reason, logic would suggest

that notice of intended agency action, because of the legal

rights and procedures that pertain thereto, would be the subject

that is more deserving of the requirement for a written

request. Evidence was not presented regarding the Department’s

original intent when it promulgated the rule, which is

applicable to all types of Department permits. This particular

dispute is made moot, however, by the practice of the Bureau of

Mines and Minerals Regulation to provide notice to persons

without regard to whether they requested notice in writing or

orally.

29. Nevertheless, this does not resolve the timeliness

issue, because the Department has no memory or record of an oral

request from Erwin to be notified of proposed action on the

Corkscrew Road Excavation. Therefore, the timeliness of

Earthmark’s petition must be analyzed under the doctrine of

equitable tolling.

30. The doctrine of equitable tolling can cure an

otherwise untimely petition under certain circumstances. The

leading case on the doctrine is Machules v. Dept. of Admin. , 523

So. 2d 1132 (Fla. 1988), which held that equitable tolling

should apply when a person has been misled or lulled into

inaction, has in some extraordinary way been prevented from

asserting his or her rights, or has timely filed in the wrong

forum. In this case, the doctrine can only cure the

untimeliness of Earthmark’s petition if Earthmark can show that

it was misled or lulled into inaction by the Department.

31. As the party asserting the applicability of equitable

tolling, Earthmark has the burden to prove by a preponderance of

the evidence the existence of facts that justify application of

the doctrine. See Dept. of Envtl. Reg. v. Puckett Oil Co. , 577

So. 2d 988 (Fla. 1st DCA 1991) (late filing presumed to be a

waiver of rights, but may be rebutted at an evidentiary

hearing).

32. When equitable tolling is premised on the content of

an oral conversation, as it is in this case, it is essential to

know the words that were exchanged with some precision. Erwin

did not describe his oral request made to Hayes with precision

or consistency. This situation highlights the risk that a

person takes when he or she make an oral request for notice,

rather than a written request.

33. Florida Administrative Code Rule 62-343.090(2)(h)

refers to a request for notice of the “intended agency action

for a specific application.” It was not made clear that Erwin

asked Hayes to be notified specifically about the Corkscrew Road

Excavation. If his request entitled Erwin to be notified about

the Corkscrew Road Excavation, then it also entitled Erwin to be

notified about all mining permits issued in Lee County, into the

indefinite future.

34. RCH argued that Earthmark cannot invoke the doctrine

of equitable tolling because it was Mariner, not Earthmark, that

was the operator of the Corkscrew Regional Mitigation Bank at

the time Erwin made his request for notification. RCH also

argued that, if Earthmark can rely on Erwin’s request for

notice, so could the “three or four dozen” other clients that

Erwin said he represented at the March 2007 workshop. That

would expand the entitlement to Department notice beyond the

person who requests notice to any undisclosed parties that the

requesting persons later say they made the request on behalf

of. This issue does not have to be decided, however, because it

is concluded that Erwin’s reliance on his request for notice to

Hayes was unreasonable.

35. Under the circumstances shown by the more persuasive

evidence, it was unreasonable for Erwin to rely on his oral

request to Hayes and Hayes’ response to that request as the sole

means by which Erwin would protect the potential interest of a

client associated with the Corkscrew Regional Mitigation Bank in

filing a petition for hearing to challenge a proposed mining

permit that might adversely affect the mitigation bank.

36. Earthmark failed to show by a preponderance of the

evidence that it was mislead or lulled into inaction by the

Department, or that other considerations of equity require that

the deadline for filing the petition be tolled.

37. Although Earthmark’s petition for hearing was

untimely, the record evidence is sufficient to demonstrate a

plausible claim of timeliness by Earthmark and a reasonable

concern about the operation of a limestone mine adjacent to the

Corkscrew Regional Mitigation Bank. Therefore, Earthmark did

not participate in the proceeding for an improper purpose and

should not be required to pay the attorney’s fees and costs

incurred by RCH in this proceeding.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of

Law, it is recommended that Earthmark’s Petition for Formal

Administrative Hearing be DISMISSED as untimely.

DONE AND ENTERED this 29th day of December, 2008, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of December, 2008.

COPIES FURNISHED :

Ronald Woodrow Hoenstine, III, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Frank E. Matthews, Esquire

Hopping, Green & Sams, P.A.

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314-6526

Anthony J. Cotter, Esquire

Gray Robinson, P.A.

301 East Pine Street, Suite 1400

Post Office Box 3068

Orlando, Florida 32802

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Michael W. Sole, Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order of Dismissal. Any

exceptions to this Recommended Order of Dismissal should be filed

with the agency that will issue the Final Order in this case.