21-000437 Egan Ranch, Llc vs. Babcock, Llc And St Johns River Water Management District Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, March 23, 2021.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

E GAN R ANCH , LLC,

Petitioner,

vs. Case No. 21-0437

B ABCOCK , LLC A ND S T J OHNS R IVER

W ATER M ANAGEMENT D ISTRICT ,

Respondents.

/

R ECOMMENDED O RDER OF D ISMISSAL

This cause came before the undersigned on Respondent, South Florida Water

Management District's (District), Motion to Dismiss and, in the Alternative, Motion

to Strike Immaterial Allegations (Motion) filed on February 17, 2021; and

Petitioner, Egan Ranch, LLC's (Egan Ranch), response filed on February 24, 2021.

Respondent, Babcock, LLC (Babcock) filed a joinder in the District's Motion on

March 8, 2021. The District's Motion is directed to the Amended Petition for

Administrative Hearing filed on February 9, 2021 (Amended Petition). The

Amended Petition challenges the District's proposed approval modifying Babcock's

existing environmental resource permit (Prior ERP Permit) for sand and coquina

excavation activities. The proposed modification (ERP Permit Modification)

increases the depth of excavation activities to 75 feet below the land service. Upon

review of the pleadings and applicable case law, the undersigned grants the

District's Motion and dismisses the Amended Petition for the reasons explained

below.

Legal Standards

In reviewing the motion to dismiss, the undersigned must assume the

allegations in the Amended Petition are true and apply every reasonable inference

in the Petitioner's favor. See Curd v. Mosaic Fertilizer, LLC , 39 So. 3d 1216, 1222

(Fla. 2010); Dep't of HRS v. S.A.P. , 835 So. 2d 1091, 1094 (Fla. 2002). In addition,

the undersigned's review is confined to the allegations within the "four corners" of

the Amended Petition and its attachments. See Santiago v. Mauna Loa Invs. , LLC ,

189 So. 3d 752, 756 (Fla. 2016). The undersigned cannot consider any factual

matters outside the Amended Petition and its attachments. See St. Francis

Parkside Lodge of Tampa Bay v. Dep't of HRS 486 So. 2d 32, 34 (Fla. 1st DCA

1986).

Standing

The Amended Petition contains allegations regarding Egan Ranch's "substantial

interests." In this type of environmental permitting proceeding, Egan Ranch must

demonstrate that its substantial environmental interests will be affected. In order

to maintain standing under section 120.57(1), Florida Statutes, a petitioner must

demonstrate that it will suffer an injury-in-fact which is of sufficient immediacy to

entitle it to a hearing, and that the injury is within the zone of interest which the

proceeding is designed to protect. See Agrico Chem. Co. v. Dep't of Envtl. Reg. , 406

So. 2d 478 (Fla. 2d DCA 1981). The first aspect of the test deals with the degree of

injury. The second deals with the nature of the injury. As more fully explained

below, Egan Ranch's substantial interest allegations citing operations under a prior

permit, violations of restrictions in a drainage easement agreement, taking of

private property rights, and unlawful trespass, are not legally cognizable in this

type of administrative proceeding. As such, Egan Ranch did not allege sufficient

facts to demonstrate its substantial environmental interests could reasonably be

expected to be affected by the agency's action. See, e.g. , St. Johns Riverkeeper, Inc. v.

St. Johns River Water Mgmt. Dist. , 54 So. 3d 1051, 1054 (Fla. 5th DCA 2011).

Legal Sufficiency

The Amended Petition contains allegations that are not legally cognizable in this

type of environmental administrative proceeding. Although Egan Ranch alleges

adverse flooding to its property under the District's permitting criteria, the

underlying facts all relate to supposed restrictions in a drainage easement

agreement, taking of private property rights, and unlawful trespass. These

allegations cannot be adjudicated in this administrative proceeding. See, e.g. ,

Ortega v. State, Dep't of Envtl. Prot. , 646 So. 2d 797 (Fla. 1st DCA 1994)(reflecting

that administrative agency did not have jurisdiction over takings claim); Buckley v.

Dep't of HRS 516 So. 2d 1008 (Fla. 1st DCA 1987); Miller v. State, Dep't of Envtl.

Reg. , 504 So. 2d 1325 (Fla. 1st DCA 1987)("agencies would not, by their nature,

ordinarily have jurisdiction to decide issues of law inherent in evaluation of private

property impacts."); see also Art. V, § 20(c)(3), Fla. Const. ("Circuit courts shall have

jurisdiction of . . . all actions involving the . . . right of possession of real property.").

In addition, Egan Ranch's allegations regarding the restrictions in a drainage

easement agreement between Egan Ranch and Babcock's predecessor in interest is

a contract interpretation issue vested solely in the judiciary. See Sandlake

Residences, LLC v. Ogilvie , 951 So. 2d 117, 119 (Fla. 5th DCA 2007); Eden Isles

Condo. Ass'n v. Dep't of Bus. & Prof'l Reg. , 1 So. 3d 291, 293 (Fla. 3rd DCA

2009)(reflecting that jurisdiction to interpret contracts is vested solely in the

judiciary).

Administrative Finality

Egan Ranch's allegations that could have been addressed in a challenge to the

Prior ERP Permit are not cognizable in this proceeding challenging the ERP Permit

Modification. See Friends of the Everglades, Inc. v. State, Dep't of Envtl. Reg. , 496

So. 2d 181 (Fla. 1st DCA 1986)(reflecting that the permitting requirement for a

modification does not cast upon the applicant the burden of providing "reasonable

assurances" anew with respect to the original project already constructed in

accordance with a valid permit); Conservancy of Southwest Fla. v. G.L. Homes of

Naples Assoc. II, Ltd., Case No. 06-4922, RO ¶ 109 (Fla. DOAH May 15, 2007; Fla.

SFWMD July 11, 2007). In addition, compliance or noncompliance with another

agency's permitting program should not be litigated in this administrative

permitting proceeding. See Save the St. Johns River v. St. Johns River Water Mgmt.

Dist. , 623 So. 2d 1193, 1198 (Fla. 1st DCA 1993).

Having reviewed the pleadings and case law and being otherwise duly advised, it

is, therefore,

R ECOMMENDED that the District enter a final order dismissing the Amended

Petition.

D ONE A ND O RDERED this 23rd day of March, 2021, in Tallahassee, Leon County,

Florida.

S

F RANCINE M. F FOLKES

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

www.doah.state.fl.us

C OPIES F URNISHED :

W. Nathan Meloon, Esquire Elizabeth S. Schoonover, Esquire

Widerman Malek, PL St. Johns River Water

1990 West New Haven Avenue, Suite 201 Management District

Melbourne, Florida 32904 4049 Reid Street

Palatka, Florida 32177

Robert Vincent Schwerer, Esquire

Hayskar Walker Schwerer Joel Thomas Benn, Esquire

Dundas & McCain, P.A. St. Johns River Water

130 South Indian River Drive, Suite 304 Management District

Fort Pierce, Florida 34950 4049 Reid Street

Palatka, Florida 32177

Ann B. Shortelle, Ph.D., Executive Director

St. Johns River Water

Management District

4049 Reid Street

Palatka, Florida 32177

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date

of this Recommended Order. Any exceptions to this Recommended Order should be

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