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, PAconstruction 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 32302-1110agency 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 32302-1110I 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.
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P.O, BOX. 1110, TALLAHASSEE, FLORIDA 82302-1110
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