IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT,

IN AND FOR LEON COUNTY, FLORIDA

KAREN AHLERS, NEIL ARMINGEON,
ENVIRONMENTAL YOUTH COUNCIL
ST. AUGUSTINE, FLORIDA CLEAN WATER
NETWORK, INC., and PUTNAM COUNTY
ENVIRONMENTAL COUNCIL, INC.,
Petitioners,
vs.

Case No. 12 CA 002715

RICK SCOTT, PAM BONDI,

JEFF ATWATER, and ADAM PUTNAM,
as Trustees of the Internal Improvement Trust Fund,
Respondents.
__________________________________________/
PETITIONERS RESPONSE TO
RESPONDENTS AND INTERVENERS
MOTIONS FOR SUMMARY JUDGMENT
Petitioners, Karen Ahlers, Neil Armingeon, Environmental Youth Counsel
St. Augustine, Florida Clean Water Network, Inc., and Putnam County
Environmental Council, Inc., through their undersigned attorney, respond as
follows to the motions for summary judgment of the Respondent, Trustees of the
Internal Improvement Trust Fund, and the Intervener, Georgia-Pacific Consumer
Operations LLC:
The Georgia-Pacific pipeline was a matter of great public interest which the
Florida Department of Environmental Protection (FDEP) concedes only received

preliminary approval by actual living breathing Trustees, none of whom were

accurately informed about mixing zones, including the chronic toxicity mixing
zone which was only recently deemed to be needed.
Unlike the Fort Lee, New Jersey bridge scandal, we know the ultimate
intended financial beneficiaries of Respondents motion for summary judgment
and the prior defective and deceptive notice by publication. Like the Fort Lee,
New Jersey bridge scandal, it is not yet clear which if any principals were aware of
the positions being taken by their agent FDEP at various points in time. De jure,
in their motion, the Trustees of the citizens seek to permanently sabotage the
constitutional public trust doctrine in this state as well as the Respondents due
process duties. Not even the Legislature could supersede the public trust doctrine
and due process requirements, which need no legislative sanction to be the sacred
rights of a class consisting of every Floridian, present and future, including their
rights to fish and bathe in an area that is now so degraded even FDEP has no
choice but to designate it as toxic.
Trustee transactions, such as the granting of pipeline easements, facilitating
using portions of a river for mixing toxic waste are clearly matters of great public
concern. Filed by FDEP on the Trustees behalf, their motion provides no
justification for the grossly deficient constructive notice by publication, which did

not remotely meet minimum due process requirements.1 Respondents do not

deny much less remotely provide an excuse with respect to Petitioners express
suggestion that [i]t appears that the public notice was intentionally designed to
befuddle the public. (Pet. Mot., p. 5.)
FDEP has staff members, such as the two who have given affidavits in
support of Trustees motion, who should be free to submit environmental reports
within their personal knowledge and expertise to the Trustees about actual
conditions within the mixing zones, which can then be administratively-scrutinized
before the Florida Division of Administrative Hearings (DOAH) regarding their
effects on traditional rights within these zones, and how much money GeorgiaPacific is saving from this private use of public lands. Those are detailed factual
questions within the primary jurisdiction of the Trustees, not the proper subjects
for this Court. The responsibility of the judiciary is to ensure that procedures are
followed to protect the publics rights in these regards, and here, they clearly have
not been. The Trustees, on a remand from DOAH, can decide if FDEP got it right
1

In addition to the authority cited in Petitioners prior filings, see Newberg on

Class Actions Ch. 8 (5th ed.). Taking a different tact, Georgia-Pacific makes the
patently ineffective attempt to mend the later defective constructive notice by
relying on the pre-decision notice of application, which did not even have within it
a deeply buried notice of APA hearing rights as to the pipeline easement. While
it also would not salvage the later defective constructive notice, Georgia-Pacific
likewise wrongly insinuates that the undersigned was the lawyer for the
administrative petitioners at the time of the prior NPDES administrative hearing,
knowing full well that by then the undersigned had moved to another job and
withdrawn as counsel. (See Ex. 1.)
3

or wrong in assessing the impacts on traditional rights and how much money is
involved.2
This Court has ample justification for entering summary judgment for
Petitioners. In the event the Court is not inclined to do so at this time, under no
circumstances should summary judgment be entered for Respondents and
Intervener. The full facts would take time to develop and resources beyond the
volunteer capabilities of Petitioners alone, but at this time it appears that this case
not only involves gross neglect of the Trustees duties under the public trust
doctrine and due process but also the possibility of intentional impropriety.3
WHEREFORE, Petitioners request that summary judgment be entered in
their favor against Respondents and denied to Respondents and Interveners, and in
the event the Court is not inclined to grant summary judgement in favor of
Petitioners at this time that the matter be set for a case management conference
concerning discovery and other matters consistent with any investigation that may
ensue by the federal government pertaining to the premises.
2

This case involves failure to comply with the public trust doctrine and due
process in the granting of a private easement, which is clearly a Board of Trustees
transaction, in contrast to Kruer v. Board of Trustees of the Internal Improvement
Trust Fund, 647 So.2d 129 (Fla. 1st DCA 1994) which involved an attempt to file
an administrative petition to interfere in the settlement of a circuit court case. Nor
does this case involve a proposed rule, unlike State, Board of Trustees of the
Internal Improvement Trust Fund, 794 So.2d 696 (Fla. 1st 2001), and similarly
unlike last year where the Environmental Regulation Commission rejected an
FDEP attempt to promulgate inadequate water quality standards. (Exs. 2 and 3.)
3
See Ex. 4.
4

Respectfully submitted on February 6, 2014.

___________________________
Steven A. Medina
Attorney
Florida Bar No. 370622
1104 N. Eglin Parkway
P.O. Box 1021
Shalimar, Florida 32579
Phone: 850.621.7811
Fax: 850.362.0076
stevenamedina@yahoo.com
ATTORNEY FOR PETITIONERS

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing, with
attachments, was served by electronic mail upon the following on February 6,
2014:
W. Douglas Beason
Department of Environmental Protection
3900 Commonwealth Blvd., M.S. 35
Tallahassee, Florida 32399-3000
Email: Doug.Beason@dep.state.fl.us
Shayna.Holton@dep.state.fl.us
DEP.Water@dep.state.fl.us
Terry Cole, Esquire
Kellie Scott, Esquire
Gunster, Yoakley and Stewart
215 South Monroe Street, Suite 601
Tallahassee, Florida 32301
Email: tcole@gunster.com
5

kscott@gunster.com
bfrazier@gunster.com
Warren K. Anderson, Jr.
The Public Trust Environmental Legal Institute of Florida, Inc.
2029 N. 3rd Street
Jacksonville Beach, Florida 32250
Email: taowalkerwarren@gmail.com
andrewdouglasmiller@gmail.com

__________________________
Steven A. Medina