17-002570RP Pelican Bay Foundation, Inc. vs. Florida Fish And Wildlife Conservation Commission Status: Closed DOAH Final Order on Wednesday, January 10, 2018.

Summary: The rule challenge is dismissed because it does not state a cause of action as a rule challenge, there being no part of the proposed rule which Petitioner seeks to invalidate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PELICAN BAY FOUNDATION, INC.,

Petitioner,

vs. Case No. 17 - 2570RP

FLORIDA FISH AND WILDLIFE

CONSERVATION COMMISSION,

Respondent,

and

THE CITY OF NAPLES FLORIDA,

Intervenor.

_________________________ ______/

FINAL ORDER OF DISMISS AL

Intervenor moved to dismiss the rule challenge petition,

arguing that Petitioner cannot challenge a proposed rule for

what is not in the rule. The Administrative Law Judge denied

the motion, rea soning that all agency action is subject to

review by substantially affected persons, and Petitioner alleged

it was substantially affected by the determination of the

Florida Fish and Wildlife Conservation Commission not to

establish a slow speed zone in t he Clam Bay system. A ruling

was also made that PetitionerÓs claims w ere reviewable in a rule

challenge proceeding. After further consideration, it is

concluded that IntervenorÓs motion to dismiss was meritorious.

Section 379.2431 (2) (n) , Florida Statute s, authorizes the

Commission to designate by rule portions of state waters which

manatees inhabit periodically . The statute also authorizes the

Commission to adopt rules to regulate motorboat speed within

such waters to protect manatees from collisions wi th motorboats.

The statutory wording suggests a two - part process where, first,

the Commission designates the waters and , second, the Commission

adopts boating restrictions for these waters if determined to be

necessary. However, the record shows that the Commission does

not follow a two - step process. There is only one step: the

Commission considers a waterbodyÓs use by manatees and

motorboats and establishes boat restrictions in the waterbody by

rule when the Commission determines the restrictions are

n ecessary.

Pursuant to the statute , the Commission adopted Florida

Administrative Code Rule 68C - 22.001(2), which sets forth

ÐstandardsÑ that the Commission shall use in Ðdetermining

whether restrictions are necessary to protect manatees or

manatee habitats Ñ in waterbodies that manatees inhabit

periodically.

Petitioner contends that, in excluding Clam Pass and Outer

Clam Bay from proposed rule 68C - 22.023(2)(c), which identifies

the waterbodies in Collier County in which a slow speed

restriction will apply, the Commission did not use the best

available information as mandated by s ection 379.2431 (2) .

Petitioner also contends the Commission contravened this statute

bec ause the Commission based its decision not to impose a slow

speed restriction for the Clam Ba y system on factors that are

not listed in the statute or in the CommissionÓs rules.

Petitioner does not seek to remove any of the waterbodies that

are included in the proposed rule where slow speed zones will be

established to protect manatees.

An admin istrative law judge Ðmay declare the proposed rule

wholly or partly invalid.Ñ £ 120.56(2)(b), Fla. Stat. (2017).

Here, there is no part of the proposed rule to declare invalid.

It is not a proper remedy, and the Administrative Law Judge

lacks legal auth ority, to undo the protection for manatees that

the Commission established for several waterbodies in Collier

County, when no objection has been raised regarding these

waterbodies.

The two grounds raised by Petitioner for invalidating the

proposed rule -- t hat it is arbitrary and contravenes the law

implemented Î - are not directed to anything appearing in the

proposed rule. Nothing in the proposed rule is arbitrary and

nothing contravenes the law implemented.

Petitioner is challenging the validity of a decis ion made

by the Commission in the rulemaking process, which is not

mentioned, described, or materially shown in the proposed rule.

This situation differs from one where a party requests that

something be added to a proposed rule, the addition is not

adopt ed by the agency, and the party seeks to demonstrate that

the adopted provisions are invalid without the requested

addition. Here, there is nothing in the proposed rule that is

invalid due to the Clam Bay system not being included.

No reported decisional law was found involving a similar

scenario. If PetitionerÓs challenge is in the nature of a

challenge to Commission action that determin ed the substantial

interest of Petitioner, reviewable under section 120.569, or, as

seems more likely, a matter that c an only be raised in a

petition for rulemaking pursuant to section 120.54(7), it cannot

be transformed into either by the Administrative Law Judge

because the Commission would have original jurisdiction of such

matters.

Accordingly, it is

ORDERED that th e rule challenge petition is DISMISSED.

DONE AND ORDERED this 10th day of January , 2018 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto B uilding

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of January , 2018 .

COPIES FURNISHED:

Amy Taylor P etrick, Esquire

Lewis Longman & Walker, P.A.

515 North Flagler Drive, Suite 1500

West Palm Beach, Florida 33401

(eServed)

Harold "Bud" G. Vielhauer, General Counsel

Florida Fish and Wildlife

Conservation Commission

Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1050

Tracey Scott Hartman, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Telsula Christy Morgan, Esquire

Lewis Longman & Walke r, P.A.

Suite 1500

515 North Flagler Drive

West Palm Beach, Florida 33401

(eServed)

Robert P. Diffenderfer, Esquire

Lewis, Longman and Walker, P.A.

Suite 1500

515 North Flagler Drive

West Palm Beach, Florida 33401

(eServed)

John Leslie Wharton, Esquire

Dean, Mead, & Dunbar

Suite 815

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Eugene Nochols ÐNickÑ Wiley II, Executive Director

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahas see, Florida 32399 - 1600

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Pepper Building

Room 680

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Reddick, Chief

Anya Grosenbaugh

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to section 120.68, Florida

Statut es. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rend ition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the District Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.