ECOSWF, INC. v. State

886 So. 2d 1013
CourtDistrict Court of Appeal of Florida
DecidedOctober 28, 2004
Docket1D03-0784, 1D03-1717
StatusPublished

This text of 886 So. 2d 1013 (ECOSWF, INC. v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
ECOSWF, INC. v. State, 886 So. 2d 1013 (Fla. Ct. App. 2004).

Opinion

886 So.2d 1013 (2004)

ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA, INC., Appellant,
v.
STATE of Florida, Department of Environmental Protection, Appellee.
Environmental Confederation of Southwest Florida, Inc. and Manasota-88, Inc., Appellants,
v.
IMC Phosphates, Inc. and State of Florida, Department of Environmental Protection, Appellees.

Nos. 1D03-0784, 1D03-1717.

District Court of Appeal of Florida, First District.

October 28, 2004.

*1015 David G. Guest and Aliki Moncrief, Tallahassee, for appellants.

Thomas M. Beason, Chief Deputy General Counsel; and Teresa L. Mussetto, Assistant General Counsel, Department of Environmental Protection, Tallahassee, for Department of Environmental Protection; Steven L. Brannock and Sarah C. Pellenbarg, of Holland & Knight LLP, Tampa; and Lawrence E. Sellers, Jr., of Holland & Knight LLP, Tallahassee, for IMC Phosphates, Inc., appellees.

WOLF, C.J.

These two consolidated cases involve timely appeals of final orders from the Department of Environmental Protection (DEP) dismissing appellants', Environmental Confederation of Southwest Florida's (ECOSWF) and Manasota-88, Inc.'s (Manasota-88), petitions for formal administrative hearing, challenging in one case the DEP's renewal of a permit to operate an underground injection well in Charlotte County, and challenging in the other case the decision of the DEP to issue a phosphate mining permit to IMC Phosphates, Inc. (IMC). The DEP dismissed both petitions on the ground that appellants could not establish standing under the requirements of revised section 403.412(5), Florida Statutes.

The issues in this case are (1) whether an amendment to section 403.412(5), Florida Statutes, relating to standing to challenge decisions of DEP, is violative of the single subject requirement found in article III, section 6 of the Florida Constitution, and (2) whether the alleged single subject violation is rendered moot by the subsequent readoption of the revised section 403.412, Florida Statutes. We hold that while the dispute was not rendered moot by the subsequent reenactment of the statute, no single subject violation occurred.

Mootness

Section 403.412(5), Florida Statutes, was amended by chapter 2002-261, Laws of Florida, effective July 2002.[1] Chapter *1016 2002-261 covers a variety of subjects relating to environmental protection, including Everglades restoration funding and modification of the Florida Land and Water Adjudicatory Commission's review authority over certain water management district rules and final orders, in addition to amending section 403.412(5), Florida Statutes.

Prior to the amendment, section 403.412 allowed any citizen to intervene as a party in an administrative proceeding by filing a verified pleading stating that the contested project or permit had or would have "the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state." § 403.412(5), Florida Statutes (2000). In Manasota-88, Inc. v. Department of Environmental Regulation, 441 So.2d 1109 (Fla. 1st DCA 1983), this court held that a citizen has standing to "intervene" as described in section 403.412(5), when the department issues a notice of proposed action, not when the matter is later referred to the Division of Administrative Hearings. This construction of the term "intervene" essentially affords any citizen the right to not just intervene in ongoing proceedings, but to initiate a challenge to a proposed permit as well.

The revisions to section 403.412(5) substantially limited participation in the permitting process in two ways. Section 9 of chapter 2002-261 defines the term "intervene" to mean that a citizen may only join an ongoing proceeding (a proceeding where another party has raised a challenge to the granting or denial of a permit). It also states that a party may only initiate a proceeding upon the showing of a "substantial interest."[2]

In both cases before us, appellants filed their petitions during the "window period," that time between the effective date of the amendments and the subsequent codification in the Florida Statutes.[3] The appellants' petitions were denied.

ECOSWF and Manasota-88 argue that chapter 2002-261 violates article III, section 6 of the Florida Constitution, which requires laws to encompass only one subject and matters properly connected to that subject. Appellants assert that there is no logical connection between the subjects contained within chapter 2002-261. They also argue that the legislative history indicates that the original bill was used as a "cloak" to pass unpopular legislation.

*1017 DEP and IMC argue that appellants' single subject challenge is no longer a live controversy because the amendments to section 403.412(5) were reenacted as part of the legislature's biennial readoption of the Florida Statutes and that the reenacted statute should be retroactively applied to the time that the petition was filed, regardless of whether it was filed during a window period.

It is well-settled that a single subject violation is cured upon readoption of the Florida Statutes. See Salters v. State, 758 So.2d 667, 670 (Fla.2000). If a challenge to a permit is filed between the effective date of the amendment and the subsequent reenactment, as here, then the court must determine whether the statute in question should be applied retroactively or prospectively only. In order for a law to apply retroactively, the court must determine (1) if there is evidence that the legislature clearly intended for the law to be applied retroactively, and (2) if so, whether the retrospective application of that law is constitutionally permissible. See Pondella Hall for Hire v. Lamar, 866 So.2d 719, 722 (Fla. 5th DCA 2004). In the absence of clear legislative intent that a law apply retroactively, the general rule is that procedural statutes apply retroactively and substantive statutes apply prospectively. Id.

The legislature did not expressly state in chapter 2002-261 that the amendment was to apply retroactively. This court must, therefore, determine whether the legislatively created right to initiate an administrative proceeding is substantive or procedural.

The original enactment of section 403.412, Florida Statutes, gave citizens of the state substantive rights to challenge certain environmental permits. See Fla. Wildlife Fed'n v. State Dep't of Envtl. Regulation, 390 So.2d 64, 66 (Fla.1980). Determination of who has standing is encompassed within these substantive rights. See Caloosa Property Owners Ass'n v. Palm Beach County Bd. of County Comm'rs, 429 So.2d 1260, 1267 (Fla. 1st DCA 1983) ("Part of the process of designing a new cause of action includes delineation of who has standing.").

The changes to section 403.412(5) made by chapter 2002-261 eliminate the appellants' previous right to initiate a proceeding upon notice of DEP's intent to issue a permit. See Manasota-88, Inc., 441 So.2d at 1111 (finding petitioners could intervene and initiate further proceedings upon notice of proposed agency action which allegedly would have effect of impairing or polluting material resources of the state). Essentially a class of people no longer have a right where one existed before.

The DEP and IMC rely on Rothermel v. Florida Parole & Probation Commission, 441 So.2d 663 (Fla.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hernandez-Molina v. State
860 So. 2d 483 (District Court of Appeal of Florida, 2003)
Smith v. Department of Ins.
507 So. 2d 1080 (Supreme Court of Florida, 1987)
Caloosa Prop. Owners Ass'n v. Palm Beach County Bd.
429 So. 2d 1260 (District Court of Appeal of Florida, 1983)
Pondella Hall for Hire, Inc. v. Lámar
866 So. 2d 719 (District Court of Appeal of Florida, 2004)
Moffitt v. Willis
459 So. 2d 1018 (Supreme Court of Florida, 1984)
Humana of Florida, Inc. v. DEPT. OF HEALTH
500 So. 2d 186 (District Court of Appeal of Florida, 1986)
Rothermel v. FLA. PAROLE & PROBATION COM'N
441 So. 2d 663 (District Court of Appeal of Florida, 1983)
Manasota-88, Inc. v. DEPT. OF ENVTL. REG.
441 So. 2d 1109 (District Court of Appeal of Florida, 1983)
Salters v. State
758 So. 2d 667 (Supreme Court of Florida, 2000)
Tormey v. Moore
824 So. 2d 137 (Supreme Court of Florida, 2002)
Jackson v. Florida Dept. of Corrections
790 So. 2d 381 (Supreme Court of Florida, 2001)
State v. Canova
94 So. 2d 181 (Supreme Court of Florida, 1957)
State v. Thompson
750 So. 2d 643 (Supreme Court of Florida, 1999)
State v. Lee
356 So. 2d 276 (Supreme Court of Florida, 1978)
State v. Leavins
599 So. 2d 1326 (District Court of Appeal of Florida, 1992)
Florida Senate v. Fl. Public Emp. Council 79
784 So. 2d 404 (Supreme Court of Florida, 2001)
Florida Wildlife Federation v. STATE, ETC.
390 So. 2d 64 (Supreme Court of Florida, 1980)
State Ex Rel. Crump v. Sullivan
128 So. 478 (Supreme Court of Florida, 1930)
Nichols v. Yandre
9 So. 2d 157 (Supreme Court of Florida, 1942)
Environmental Confederation of Southwest Florida, Inc. v. State
852 So. 2d 349 (District Court of Appeal of Florida, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
886 So. 2d 1013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ecoswf-inc-v-state-fladistctapp-2004.