STATE OF FLORIDA eae DIVISION OF ADMINISTRATIVE, HEARINGS! 55 ; JOSEPH L. CUTTER, Wey Petitioner, and AMERICAN CANOE ASSOCIATION, Intervenor, vs. DOAH Case No. 97-2902 OGC Case No. 97-1040 BUCKEYE FLORIDA, L.P., and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondents. ase f BUCKEYE FLORIDA, L.P.'s MOTION TO DISMISS PETITION Buckeye Florida, L. (Buckeye), under rule 28- 106.204, F.A.C., hereby moves for entry of an order dismissing the petition in this case. In support thereof, Buckeye states: 1. This case addresses a proposed action by the Board of Trustees of the Internal Improvement Trust Fund to approve a sovereign submerged lands lease. This case was previously consolidated for final hearing with DOAH case numbers 97-4439 and 97-4583. The lease in question would autherize, for purposes of state proprietary purposes, the construction of a pipeline within the river segments addressed in the lease. Buckeye has already obtained an 8 the environmental resource permit that author 10. BOX 1110, TALLAHASSEE, FLORIDA 32302-1110 ‘OERTEL, FERNANDEZ, COLE & BRYANT, PAconstruction of a pipeline outside of the river crossings in question that would allow the conveyance of treated industrial wastewater to the estuary of the Fenholloway River. The environmental resource permit was the subject of 4 separate administrative hearing (DOAH case number 97-0692, ending in a final order authorizing the issuance of an environmental resource permit). Buckeye also requires a separate permit for the operation of that pipeline under the National Pollutant Discharge Elimination System (NPDES) program. 2. The sole remaining petitioner in this case, Joseph L. Cutter, is deceased. A copy of a death certificate is attached as Exhibit A. 3.0ne other initial petitioner, Sharon Cutter, withdrew her petition on September 15, 1997. 4. In his amended petition of September 22, 1997, the deceased represented that certain environmencal and recreational interests would = be ~— affected = by the proposed agency action. 5. The Petitioner's request for administrative hearing is moot as a result of the death of the Petitioner. See Holereft vy. Agency for Health Care Administra uv F.A.L.R. 162 (DOAH Final Order 1994). Alternatively stated, there is no petitioner in these proceedings whose substantial interests are or could be affected by proposed ‘OERTEL, FERNANDEZ, COLE & BRYANT, A, >. BOX 1110, TALLAHASSEE, FLORIDA 32302-1110agency action. ‘Therefore, the petition should be dismissed and jurisdiction relinguished to the referring agency for entry of a final order confirming the proposed agency action. 6. Such an order is appropriate notwithstanding the intervention of American Canoe Association, The rights of that intervenor are subordinate to the rights of the parties; with no remaining petitioners, the claims asserted by the intervenors are “foreclosed.” Environmental Confederation of Southwest Florida, Inc. v. IMC Phosphates, Inc., 857 So. 2d 207, 211 (Fla. 1** DCA 2003); Humana of Florida, Inc. v. Department of Health and Human Services, Inc., 500 So. 2d 186, 188(Fla. 1% DCA 1986). 7. Under the circumstances, it would be appropriate either to dismiss the petition or, in the alternative, relinquish jurisdiction to the Department for entry of a final order dismissing the petition for lack of starding and for mootness. § 120.57(1) (i), Fla. Stat. For the foregoing reasons, a dispute of material fact no longer exists, Buckeye is entitled to entry of a final order in its favor as a matter of law. WHEREFORE Buckeye requests entry of an order dismissing the petition and relinquishing jurisdiction to the referring agency for entry of a final order dismissing the petition. 3 ‘OERTEL, FERNANDEZ, COLE & BRYANT, PA, P.O. BOX 1110, TALLAHASSEE, FLORIDA 32302-1110I HEREBY CERTIFY that a true and correct copy of the foregoing have been furnished by U.S. Mail and telecopy to: Betsy Hewitt W. Douglas Beason Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Steven A. Medina Levin, Papantonio, Thomas, Mitchell 316 South Baylen Street Post Office Box 12308 Pensacola, Florida 32581 on this 20th day of May, 2005. Respectfully submitted, BZ Lop” TERRY COLE Florida Bar Number: 133550 JEFFREY BROWN Florida Bar Number: 643430 OERTEL, FERNANDEZ, COLE & BRYANT P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 850/521-0700 Attorneys for Buckeye Florida, L.P. F:\sBrom\buckeye-2075-001 Wotion te dismisse2.dec 4 P.O, BOX. 1110, TALLAHASSEE, FLORIDA 82302-1110 ‘OERTEL, FERNANDEZ, COLE & BRYANT,Brkt ‘ as OFFICE of VITAL STATISTICS CERTIFIED COPY CERTIFICATE OF DEATH ate = CORDA _ 92. 3 bE Joseph Leslie cutter Yale SRE BT a TSR re a oe Novenber 056-32-0959 __ | sgt ere ees errr eres April 30, 1940 Glens Fall, New York _|_ Ker SERAEE GF Den sa in a 9 Fe SEO ND eee fe | rioxise taylor _ Perey i478 Waldo cieete a ben] Oe ae eee “oes een ngm gem compitee 2 i ao 32348_| son vite [Pee [Oe 1 ee Toner A FA A iestey John cutter Gdeline Rolette BA) (Snacon cuceer | Puare watdo cizele, Posy, Floriia 32348 a Ey) peer Se ee ase BM (nce cme teem A aes | Re tt vi ehese Sent pHing RA. i aL es __|_perty, "eh B Nov. Alo, £00; B:17 Pe oy BE Big we Sear inbits ewrecahromEN TAN CAT ae nS ROGET oF CERTPER PISCAN EGIL BIAUNER ip) Dr. Leonard J. Yaldenberger 2626 Care Drive Suite 200 Tallchassee, Florida 32308 “Bea SUBREGISTAN — SIGNATURE AND DATE | ae = Te ou A, AEGISTE Fy ‘ I : A ' EXHIBIT A : U pate tesvess MAY 05-2005 State Registrar REN ST He Efom ane otecone svseeuny rename nccy ees aes WARNING: RSC RMT ETSMDS te Prenr hasane buck cceane Socom UneE ATE HEALTH! 81673073 (MLN ebb?790743%