Title: Opinion File 73-84 thru 73-87
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Permanent Link: http://ufdc.ufl.edu/WL00003352/00001
 Material Information
Title: Opinion File 73-84 thru 73-87
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 73-84 thru 73-87
General Note: Box 14, Folder 3 ( Opinions 1972 - 1973 - 1972 - 1973 ), Item 37
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003352
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text



.7 3-84


-.KE WORDS





October 29, 1973


TO: LMB
FR: TEC
RE: SWFWMD (R)

Issue:
Assuming for the moment that basin boards may employ
counsel and possess the requisite "capacity to sue,"
may a basin board join or intervene in a suit previously
commenced by the Pinellas County Commission contesting
the validity of an order promulgated by the SWFWMD (R)
as it affects the residents of Pinellas County?

Conclusion:
The basin board may not intervene because no interests
or rights of the board have been impaired by the District's
order. Mere disagreement with the propriety of an order
does not amount to the requisite interest in the dispute
to permit joinder; the basin board itself must be "aggrieved"
by the order.

Reasoning:
(A) Access to the courts for purposes of disputing orders
rendered by the SWFWMD (R) is not available to every person
who asserts that the order is invalid or inappropriate.
373.173 (1) F.S. (1971) limits the availability of the
right to appeal such orders to "any person, natural or
artificial, aggrieved by such action" .

Neither that section nor that chapter of the statutes
expressly define:

(1) "any person, natural or artificial," or

(2) "aggrieved by such action."

Nor have the foregoing terms been the subject of judicial
interpretation by the courts in this context.








Page 2
10/29/73


In keeping with the assumption that a basin board possesses
the "capacity to sue," I also assume that in proper cir-
cumstances the basin board is a "person, natural or
artificial." Access to the courts to contest the District's
order would seem to conditioned upon a showing that the
basin board was "aggrieved by such action."

This limitation upon the availability of judicial review
seems to be an attempt on the part of the legislature to
provide persons whose interests are injured or jeopardized
by District actions a right to review while at the same
time prohibiting harassment of the District by persons
whose interests are not affected adversely by the District
actions. Viewed in this light it becomes apparent that
373.173 (1) F.S. (1971) is a legislative parallel to
the judicial doctrine of "standing" in constitutional liti-
gation.

The District order in dispute here regulates the rate of
withdrawal of water from various well fields owned and
operated by Pinellas County for the benefit of Pinellas
County residents. It seems apparent the Pinellas County
itself is aggrieved by this action because the order
restricts the use which the County can make of property
it owns or leases. Indirectly, the order would seem to
affect adversely the average citizen of Pinellas County
because the residents of Pinellas County receive a portion
of their potable water from these well fields.

However, it seems unlikely that a basin board located
within Pinellas County could be considered directly or
indirectly "aggrieved by such action." While the
members of the basin board may be affected indirectly because
of residency within Pinellas County, they are not affected,
or more properly aggrieved, in their representative capacity
as basin board members. This conclusion is based on the
fact that the basin board possesses no proprietary interest
in the well fields or in the water derived from the well
fields. In my mind the plain meaning of "aggrieved" does
not extend to situations in which one agency disagrees with
another yet the order in dispute does not impinge upon any
proprietary or pecuniary interest of the agency seeking
review. The fact that the basin board feels that the District
order was inappropriate or uncalled for does not mean iat
the basin board suffered because of the order unless the







Page 3
10/29/73


order impinged upon some right possessed by the basin and
restricted its use. In my opinion such does not appear
to be the case.

(B) Recognizing that the foregoing analysis is largely
based upon personal opinion, I have looked elsewhere for
helpful analogies.

(1) The closest parallel is with the method established
by 120.31 F.S. (1971) providing a procedure to be
followed in seeking judicial review of administrative
"orders." However, this section doesn't expressly
mention who possesses the right to such review. By
implication from the term "order" as defined in 120.21
(3) F.S. (1971) it would appear that only those persons
who are the subject of the "order" possess the right to
appeal. This would be an interpretation consistent with
the quasi-judicial procedure utilized in formulating
the "order." Arguing by analogy it would appear that
only Pinellas County could pursue an appeal from the
District "order" because it too was promulgated after
a "quasi-judicial" procedure and Pinellas County was
the entity to whom the order was addressed.

(2) 120.30 (1) F.S. (1971) established a method for
obtaining judicial review of agency "rules". Although
"rules" are promulgated by "quasi-legislative" pro-
cedures, this section is relevant to the present dis-
cussion because judicial review of these "rules" is
expressly made available to "any affected party". This
term has been interpreted on several occasions by the
courts.

Where the "rule" prohibits certain persons from engaging
in certain legitimate enterprises, the "rule" affects
those persons. The party need not be adversely affected
in order to obtain review. Bayne vs. Fla. State Board
of Dispensing Opticians, 212 So. 2d. 762 (Fla., 1968)

Under the Florida APA, "affected party" is confined to
those persons whose rights are affected by the rule
and does not extend to the agency which adopted it.
Polar Ice Cream Co. vs. Andrews 146 So. 2d. 609 (1962).

Relief by judicial review may be sought when the
interests of the affected party are subject to sub-






-\ 7 3-{'7
Page 4
10/29/73


stantial injury by the mere existence of the "rule".
Stadnik vs. Shell's City Inc., 140 So. 2d. 871 (Fla.
1962). Under this line of cases it seems unlikely that
a basin board may properly be considered an "affected
party".

(3) 5 U.S.C. 702 provides in part that a person
adversely affected or aggrieved by agency action within
the meaning of a relevant statute, is entitled to judicial
review thereof. This provision relates tohe Federal
Admin. Procedure Act upon which in large part the Florida
Admin. Procedure Act was based.

In interpreting this section the Federal Courts have
evolved an "injury in fact" test for determining
whether or not a person is "aggrieved" by agency action.
See Sierra Club vs. Morton (1972) 92 S. Ct. 1361,
405, US.727, where the U.S. Supreme Court found that
an environmental protection group lacked standing to
object to agency action. The fact that the organization
was "interested" in the subject of the actin was
insufficient absent a showing that the party seeking
review was itself among the injured.

See also Nuclear Data Inc. vs. Atomic Energy
Commission (1972) 344 F. Supp. 719 (D.C. Ill.).



TEC/gh


cc: MGG


L




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