Title: State of Fl., DER vs. Falls Chase Special Taxing District, Elba, Inc, and Sunshine Development, Inc.
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Title: State of Fl., DER vs. Falls Chase Special Taxing District, Elba, Inc, and Sunshine Development, Inc.
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Abstract: Jake Varn Collection - State of Fl., DER vs. Falls Chase Special Taxing District, Elba, Inc, and Sunshine Development, Inc. (JDV Box 86)
General Note: Box 22, Folder 4 ( Court Cases in The State Of Florida - 1982 ), Item 4
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IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA


STATE OF FLORIDA, DEPARTMENT ) NOT FINAL UNTIL TIME EXPIRES TO
OF ENVIRONMENTAL REGULATION, FILE REHEARING PETITION AND
) DISPOSITION THEREOF IF FILED.
Appellant,
)
vs. CASE NO. SS-439
)
FALLS CHASE SPECIAL TAXING
DISTRICT, ELBA, INC., and )
SUNSHINE DEVELOPMENT, INC.,

Appellees.






Opinion filed July 23, 1982.

An Appeal from the Circuit Court for Leon County.
Charles E. Miner, Jr., Judge.

William L. Hyde, Assistant General Counsel, for Appellant.

J. D. Boone Kuersteiner; and Kenneth F. Hoffman, of Rogers,
Towers, Bailey, Jones & Gay, for Appellees.

Stephen W. Metz, Amicus Curiae.






BOOTH, J.

This cause is before us on appeal by the State of Florida,

Department of Environmental Regulation [DER], from an order of
1
the circuit court granting the motion of Falls Chase [appellee]

for judgment on the pleadings.

The issues presented on appeal are the jurisdiction of the

trial court to entertain suit for declaratory relief and the

correctness of the judgment below as to the jurisdiction of DER.

The facts are essentially undisputed. The land in ques-

tion is located on Upper Lake Lafayette, a privately owned

body of fresh water in Leon County. At times in the past,



1. Falls Chase Special Taxing District, created by Leon
County Ordinance No. 75-6, enacted February, 1975, as a public
body pursuant to Section 1.01(9), Florida Statutes. Other
appellees are Sunshine Land Developma.nzt, Inc. and Elba, Inc.,
landowners within the district. Intervenors below and in this
court are Clean Water, Inc., a non-profit corporation, and Mrs.
Saltiel, an owner cf property on Lake Lafayette.








portions of this property have been subject to inundation by

waters of the lake, but sinkhole development in the lake, a

natural phenomenon, has caused the lowering of the water level.

The area sought to be regulated by DER has been dry for a

number of years. Past uses include timbering, farming and

grazing of cattle.

It is uncontroverted that the lands are "uplands," as
2
defined by DER rule, not subject to DER dredge and fill

regulation under that rule.

It is stipulated by the parties that there are no sover-

eignty lands involved in this dispute..

In December of 1978, and again in February of 1979, repre-

sentatives of DER met with representatives of the District for

briefing and on-site inspection in connection with planned

construction and installation of domestic waste-water collection

systems and treatment facilities, and to determine if any portions

of the property were subject to dredge and fill regulation under

Chapter 403.

Prior to this inspection, DER had determined the extent

of its dredge and fill jurisdiction over privately owned fresh-
3
water areas by means of an "aquatic plant vegetation index,"

as required by Section 403.817, Florida Statutes. DER repre-

sentatives continued to abide by the provisions of that statute

and by Florida Administrative Code Rule 17-4.02, and to affirm

to appellees the lack of jurisdiction over dredge and fill opera-

tions on the property until March of 1979.

On March 21, 1979, The Secretary of the Department of

Environmental Regulation met with the representatives of the

District and stated that the agency was considering making a

claim of dredge and fill jurisdiction to the "ordinary high

water line" boundary.

On April 5, 1979, the Deputy General Counsel of DER

wrote to appellees setting out DER's intention to use the


2. Fla.Admin.Code Rule 17-4-.02, as amended in 1975 and in
effect at the time pertinent to this litigation, is set out in
note 10 infra.

3. Id.


- 2-








"ordinary high water mark" on the particular property as

the determinant of its dredge and fill jurisdiction, stating

that a survey crew would be sent out to establish that line

and concluding:

Until this line is determined we request
that no further filling be done in this
area until an ordinary high water line is
established. We intend to take enforcement
action for the work which has gone on
to date unless a satisfactory resolution is
reached to these apparent violations. We
will offer your client the opportunity for
an informal conference to discuss a resolu-
tion of the violation prior to initiating
a formal enforcement action. If you wish
to take advantage of this offer, please
contact me within ten days from the date
of this letter.

Appellees continually and consistently denied DER's
5
claim of jurisdiction. In May of 1979, the parties entered

into a stipulation allowing Falls Chase to continue construction

and giving DER permission to come onto the property in an
6
attempt to identify an ordinary high water line. That line

was not identified by the agency until August of 1979. By

certified letter of August 9, 1979, The Secretary of the Depart-

ment of Environmental Regulation advised appellees, in part, as

follows:

The Department has determined that the ordinary
high water line of Upper Lake Lafayette lies
between 44.8 and 46.6 feet mean sea level ...

For the purpose of this proceeding the depart-
ment intends to exert its regulatory jurisdiction
under Chapter 403, Florida Statutes, below 44.8
feet mean sea level.




4. "Ordinary high water mark" is not one of the criteria
for jurisdiction specified in Section 403.817, Florida Statutes,
set out in text infra, or Fla.Admin.Code Rule 17-4.02, as it
existed in 1979, set out in note 11 infra.

5. .Falls Chase, as appellee, asserted the agency's lack of
jurisdiction in the related administrative appeal in Case No.
79-1462, but the appeal was dismissed on other grounds.

6. The stipulation of May 15, 1979 also provided, inter
alia, that DER would waive its right to seek fines or penalties
from Falls Chase while the survey was pending. Falls Chase agreed
to limit its filling activities to specified areas, to submit after-
the-fact permit applications for areas found to be within DER
jurisdiction and to remove fill and restore affected sites within
90 days of DER's denial of.applications or exhaustion of available
judicial review of DER action.

Appellees Sunshine and Elba, private landowners, were
not parties to this stipulation.


- 3 -









Accordingly, you are hereby directed to submit
the'appropriate after-the-fact permit applications
for the areas depicted on Exhibit F to the stipu-
lation which are below the 44.8 feet contour level
within thirty days of the receipt of this letter.
Failure to do so shall constitute a violation of
the terms and conditions of the stipulation and
Sections 403.087(1) and 403.161(1)(b), Florida
Statutes, and Sections 17-4.03 and 17-4.28,
Florida Administrative Code, and shall be subject
to appropriate enforcement action by the Department.

You are further directed to cease the placement
of fill materials in those areas depicted in Exhibit
F to the Stipulation which are below the 44.8
contour line. Failure to do so shall constitute
a violation of the terms and conditions of the
Stipulation and Sections 403.087(1) and 403.161(1)
(b), Florida Statutes, and Sections 17-4.03 and
17-4.28, Florida Administrative Code, and shall
be subject to appropriate enforcement action by
the Department.

On August 28, 1979, Falls Chase filed a petition for writ

of prohibition against DER with this court. The writ was denied
7
September 6, 1979, by unpublished order. DER's contention

that this court's denial of prohibition precludes further
8 8
consideration of the jurisdictional issue is without merit.



7. This court's Case No. PP-106. The record reveals no
consideration of the merits of the controversy.

8. The extraordinary writ of prohibition is a prerogative
writ, not a'writ of right, State ex rel. Washburn v. Hutchins, 101
Fla. 773, 777, 135 So. 298, 299 (1931), and its denial without
written opinion does not bar subsequent consideration of jurisdic-
tional issues, see, e.g., Public Employees Relations Commission
v. District School Board, 374 So.2d 1005, 1010 (Fla. 2d DCA 1979),
cert. denied, 383 So.2d 1193 (Fla. 1980):

It would be pure speculation to attribute
any particular reasoning to the majority of
the two prior panels of this court which decided
that PERC's suggestions for writ of prohibition
should be denied. The point is that those
denials could have rested on reasons other than
the merits of the jurisdictional question posed
in those prior proceedings. This being the
case, we hold that this court's prior denials
of PERC's suggestions for writ of prohibition
do not foreclose us from considering the juris-
dictional issue on this appeal. (emphasis
supplied)

See State v. Howell, 546 P.2d 858, 859 (Ct.App.N.M. 1976):

Does the Supreme Court's denial of a Writ of
Prohibition preclude our review of the trial
court's denial of defendant's motion to dismiss?
Our answer is in the negative. ... [A] denial of
a Writ of Prohibition may be for a variety of
reasons ... Thus, the denial of a Writ of
Prohibition has no specific finality. (emphasis
supplied)


- 4 -









On September 11, 1979, appellees filed a complaint in

circuit court for declaratory and injunctive relief. DER

answered and filed a counterclaim against appellees Sunshine

and Elba in the nature of a civil action for the entry and

enforcement of a permanent injunction and fine pursuant to

Sections 403.131(1) and 403.141(1), Florida Statutes, for viola-

tions of Chapter 403, Florida Statutes, and Chapter 17-4, Florida

Administrative Code.

The circuit court granted Falls Chase's motion for judgment

on the pleadings, holding that DER had exceeded its statutory

grant of authority and was without jurisdiction to regulate

appellees' dredge and fill activities. The court enjoined DER

from attempting to extend its jurisdiction beyond the vegetative

index required by statute and promulgated in Florida Administra-

tive Code Rule 17-4.

On appeal to this court, DER contends that the circuit court

is without jurisdiction because appellees failed to exhaust

administrative remedies, and that it has dredge and fill juris-

diction as claimed over appellees' property. We will consider

the last contention first.

The grant of authority to DER to regulate dredge and fill

activities is Section 403.817, Florida Statutes, adopted effec-

tive June 9, 1977, providing:

(1) It is recognized that the levels of
the waters of the state naturally rise and
fall, depending upon tides and other hydro-
logical, meteorological, and geological circum-
stances and features. The natural rise and fall
of the waters is essential to good water
quality, but often makes it difficult to deter-
mine the natural landward extent of the waters.
Therefore, it is the intent of the Legislature
that the Department of Environmental Regulation
establish a method of making such determination,
based upon ecological factors which'represent
these fluctuations in water levels.

(2) In order to accomplish the legislative
intent expressed in subsection (1), the depart-
ment is authorized to establish by rule, pursuant
to chapter 120, the method for determining the
landward extent of the waters of the state for
regulatory purposes. Such extent shall be
defined by species of plants or soils which
are characteristic of those areas subject to
regular and periodic inundation by the waters


-5-


* ^ '










of the state. The application of plant indica-
tors to any areas shall be by dominant species.

(3) Amendments adopted after April 5, 1977,
to the rules of the department adopted before
April 5, 1977, relating to dredging and filling
and which involve additions or deletions of the
vegetation or soil indices or the addition or
deletion of exemptions shall be submitted in bill
form to the Speaker of the House of Representa-
tives and to the President of the Senate for
their consideration and referral to the appro-
priate committees. Such rule amendments shall
become effective only upon approval by act of
the Legislature.



(5) The landward extent of waters as determined
by the rules authorized by this section shall be
for regulatory purposes only and shall have no
significance with respect to sovereign ownership.
(emphasis supplied)

The Legislature, in the above statute, requires the Department

to establish a method of determining the natural landward extent

of waters of the state by identification of vegetation or soils,

a method which takes into account natural fluctuations in water

levels. The Legislature also carefully circumscribed the manner

in which DER is to exercise the power granted and specified:

(1) The natural landward extent of waters is to be identified

by ecological factors, specifically plant or soil characteristics

of areas subject to regular and periodic inundation. (2) The

method for determining the landward extent of the waters of the

state for regulatory purposes is to be established by rule. (3)

Any amendments to dredge and fill rules relating to plant or

soil indices or exemptions must be submitted in "bill form" to

both houses of the Legislature for consideration and referral

to appropriate committees, and become effective only upon approval
9
by act of the Legislature.







9. This unique statutory provision suggests a legislative
intention not to permit capricious modifications by the agency
affecting its dredge and fill regulatory power.


-.6 -











DER amended Florida Administrative Code Rule 17-14.02 in

.1975 to set forth definitions and a vegetation index comprised

of many different species of plant life. At the time of this

litigation, no soil index, as permitted by Section 403.817,

had been adopted by DER. Rule 17-14.02 defines "submerged

lands" [17-4.02(17)] and "transitional zone[s] of submerged

landss" [17-4.02(19)], both of which are subject to dredge

and fill regulation. The rule also defines "uplands"

[17-4.02(18)], which are not subject to dredge and fill
10
regulation.

DER concedes the land in question does not have plant life

indicative of areas subject to regular periodic flooding under

the index required by statute and promulgated by DER rule.

DER, nonetheless, and in the face of all of the above,

asserts that it has jurisdiction to regulate activities on this







10. Fla.Admin.Code Rule'17-4.02, as it existed at the time
pertinent to this litigation, in pertinent part:

Submerged lands: "Those lands covered by the cate-
gories of water listed in Sec.17-4.28(2), F.A.C., including
those lands contiguous to said waters where any of the following
vegetational species, or any combination of such species, consti-
tute the dominant plant community." [Thereafter followed a
listing of the 50 different species of aquatic life referred to
above.]

Uplands: "Lands landward of submerged lands upon which
the dominant plant community is composed of any vegetational
species, or combination of species, other than those listed under
the definition of 'submerged lands' and 'transitional zone of a
submerged land,' herein."

Transitional zones of submerged lands: "[Areas of.
land] between a submerged land, as defined in Subsection (17)
above and an upland as defined in Subsection (18) above. It
shall consist of the waterward first fifty (50) feet landward
of a line defined by the landward limit of a submerged land, or
the waterward quarter (1/4) of the area between a submerged
land and an upland, whichever is greater, and upon which any
of the following vegetational species, or combination of such
species, constitute the dominant plant community." [Thereafter
followed a listing of some 22 species of plant life.]


- 7 -


*











land under the general provisions of Section 403.031(3),

Florida Statutes, which refers to "waters of the state." We

find this claim of jurisdiction totally unsupported by statute
11
or rule and without credible basis, as-did the trial court.

The claim of jurisdiction by DER is devoid of merit for

a number of reasons, including, but by no means limited to:

(1) Section 403,817, Florida Statutes, specifies the method by

which dredge and fill regulatory jurisdiction is to be deter-

mined. The ordinary high water mark is not one of the methods

prescribed. (2) At common law, the ordinary high water mark

was used to establish the line of ownership between publicly








11. The trial court's order, in pertinent part, is as
follows:

It should be noted that the Department does
not contend that the District is engaged in any
development operation violative of Section
403.817, F.S., or Rule 17-4.02. This case is
rendered unique, says the Department, by the
fact that Upper Lake Lafayette was drained when
a geological fault or sink hole developed. Such
fact justifies, it argues, asserting the more
landward ordinary high-water mark as its regu-
latory boundary. When questioned from whence
it derived the authority to determine the land-
ward extent of Upper Lake Lafayette for regulatory
purposes by reference to an historical line used
only up to now to delineate public from private
ownership or to determine ownership disputes,
counsel claimed for the Department some inherent
power or incipient rule-making authority to be
exercised in the public interest.



In mandating a method for determining regulatory
jurisdiction "based upon ecological factors,"
the Legislature expressly recognized that
fluctuations in water levels are attributable
on occasion to geological features. Thus, if
as the Department contends, this is a case of
first impression, it is so only because this
is the first time the Department has endeavored
to assert regulatory jurisdiction landward to
the ordinary high-water mark.


- 8 -








12
owned bodies of water and privately owned land and would

have no application here, since ownership is not at issue in

this case. (3) It is not permissible under the terms of

Section 403.817 for DER to modify its jurisdiction by substi-

tuting ordinary high water mark for the methods specified by

statute, but, even if permissible, such a change would require

adoption of a rule subject to legislative approval. Section

403.817, Florida Statutes.

As shown above, the statute mandates the specific methods

to be used in determining DER regulatory jurisdiction over the

landward extent of water bodies in the state. So determined

was the Legislature that only aquatic plant or soil indices

be used to define the limits of DER jurisdiction and that these

indices, once established, remain constant, that Section

403.817(3) further provides DER may neither add nor delete a

single plant or soil without specific prior legislative approval.

An agency has only such power as expressly or by necessary
13
implication is granted by legislative enactment. An agency





12. Maloney, "The Ordinary High Water Mark: Attempts at
Settling an Unsettled Boundary Line," 12 U.Wyoming L.Rev. 1, 1-2
(1978):

In most states and in the federal system the
ordinary high water line (OHWL) is the
boundary between privately-owned riparian
uplands and publicly-owned sovereignty lands
beneath non-tidal navigable waters.

Id. at p,2 note 2:

It is important to understand at the outset
the scope of applicability of the OHWL
definition. It applies to non-tidal, navigable
water bodies, generally inland from the coast.
It does not apply to inland non-navigable, and
therefore privately-owned water bodies,
although it may have some relevance in that
context where the extent of surface usage of
riparian owners must be defined [citations
omitted].

13. State ex rel. Greenberg v. Florida State Board of
Dentistry, 297 So.2d 628, 635-36 (Fla. 1st DCA 1974), cert.
dismissed, 300 So.2d 900 (Fla. 1974).


- 9 -








may not increase its own jurisdiction and, as a creature of
14
statute, has no common law jurisdiction or inherent power

such as might reside in, for example, a court of general

jurisdiction.. When acting outside the scope of its delegated

authority, an agency acts illegally and is subject to the

jurisdiction of the courts when necessary to prevent encroach-

ment on the rights of individuals.

We hold, therefore, DER was without jurisdiction to

regulate dredge and fill activities on the land in question.

The remaining question is the right of appellees to seek

judicial determination of the jurisdictional issue without

exhaustion of administrative remedies. In this regard, DER

contends Falls Chase should have first applied to DER for

dredge and fill permits raising the jurisdictional issue in

that proceeding followed, if necessary, by administrative appeal

and appeal to this court under Section 120.68. It is also

suggested that the declaratory statement procedure under Section
15
120.565 was an available remedy.


14. Gardinier, Inc. v. Florida Department of Pollution
Control, 300 So.2d 75, 76 (Fla. 1st DCA 1974); Department of
Health and Rehabilitative Services v. Florida Psychiatric
Society, Inc., 382 So.2d 1280 (Fla. 1st DCA 1980); Context
Development Co. v. Dade County, 374 So.2d 1143, 1149-50 (Fla.
3d DCA 1979):

However laudable or commendable the actions
of the appellees, ... "[i]t is well settled that
a statutory agency ... does not possess any
inherent powers; such agency is limited to the
powers granted, either expressly or by necessary
implication, by the statutes ... creating them."

15. The availability of this remedy is doubtful because of
the underscored language in Fla.Admin.Code Rule 17-1.1-19:

A declaratory statement is a means for deter-
mining the rights of substantially affected
persons when a controversy, or when doubt
concerning the applicability of any statutory
provision, rule or order, has arisen before
any wrong has actually been committed. (emphasis
supplied)

Of course, lack of an available, adequate remedy is, in itself,
a recognized exception to the exhaustion requirement: Ortega v.
Owens-Corning Fiberglas Corp., 409 So.2d 530 (Fla. 1st DCA 1982);
Northeast Airlines, Inc. v. Weiss, 113 So,2d 884 (Fla. 3d DCA
1959), cert. denied, 116 So.2d 772 (Fla. 1959); Deseret Ranches
of Florida, Inc. v. State, Department of Agriculture and Consumer
Services, 392 So.2d 1016 (Fla. Ist DCA 1981); Department of
Transportation v. Morehouse, 350 So.2d 529 (Fla. 3d DCA 1977);
cert. denied, 358 So.2d 129 (Fla. 1978); General Care Corp. v.
Forehand, 329 So.2d 49 (Fla. 1st DCA 1976).


- 10 -









The enactment of Florida Statutes, Chapter 120, effective

January 1, 1975, afforded new administrative remedies and

severely curtailed the need for extraordinary judicial relief.

Only in exceptional cases may the courts assume jurisdiction

to render declaratory and/or injunctive relief without requiring

exhaustion of administrative remedies.

A challenge to agency jurisdiction on persuasive grounds
16
is a widely recognized exception to the exhaustion doctrine.

A leading decision of the United States Supreme Court,
17
Leedom v. Kyne, 358 U.S. 184, 188-89 (1958), holds:



16. 2 Cooper, State Administrative Law 577 (1965):

Where judicial attack upon an agency order
is predicated on the theory that the agency
has no jurisdiction to act in the premises,
and the court finds that the objection is
well taken, failure to exhaust administrative
remedies is commonly excused.

Skinner & Eddy Corp. v. United States, 249 U.S. 557, 562-63 (1919):

The contention is that the commission [Inter-
state Commerce Commission] has exceeded its
statutory powers; and that, hence the order is
void. In such a case the courts have jurisdic-
tion of suits to enjoin the enforcement- of an
order, even if the plaintiff has not attempted
t9 secure redress in a proceeding before the
commission. [citations omitted] The District
Court properly assumed jurisdiction of this
suit. (emphasis supplied)
Coca-Cola Co. v. Federal Trade Commission, 475 F.2d 299, 303
(C.A. 5th 1973), cert. denied, 414 U.S. 877 (1973):

The most widely recognized exception to the
general rule against judicial consideration
of interlocutory agency rulings is the class
of cases where an agency has exercised
authority in excess of its jurisdiction
or otherwise acted in a manner that is
clearly at odds with the specific language
of a statute.

Mobil Oil Corporation v. Department of Energy, 469 F.Supp. 1119,
1123-24 (D.C. N.Y. 1979).

17. See also Adams Packing Association, Inc. v. Florida
Department of Citrus, 352 So.2d 569, 570-71 (Fla. 2d DCA 1977);
School Board of Leon County v. Mitchell, 346 So.2d 562, 568
(Fla. 1st DCA 1977); State, Department of Health and Rehabilita-
tive Services v. Lewis, 367 So.2d 1042, 1045 (Fla. 4th DCA 1979):

A distinction between a proceeding essentially
seeking a review of agency action, and one
essentially seeking a determination of rights
has also been used as a litmus in determining
jurisdiction. In the former case, the Adminis-
trative Procedure Act controls, whereas in the
latter, jurisdiction lies in the circuit court.


- 11 -








This suit is not one to "review," in the sense
that that term is used in the [Wagner] Act, a
decision of the Board made with in its juris-
diction. Rather it is one to strike down
an order of the Board made in excess of its
delegated powers and contrary to a specific
prohibition in the Act. ... Plainly, this
was an attempted exercise of power that had
been specifically withheld.

State courts which have considered the matter recognize the
18
exception; and as stated by Professor Schwartz, allegations

of lack of jurisdiction are properly dealt with on the
19
pleadings except in rare cases.

In Odham v. Foremost Dairies, Inc., 128 So.2d 586, 592-93

(Fla. 1961), the Florida Supreme Court held:

In those instances where there have been
gross or flagrant abuses of power, or
where such agencies have attempted to
act beyond the powers delegated to them,
the courts have unhesitatingly intervened.
... An examination of the many authorities
of text on this question reveals a consis-
tent attitude of the courts that judicial
intervention with administrative action
is justified only in those instances
where the invalidity of the administrative
act is not subject to reasonable differences
of opinion. (emphasis supplied)

In Gulf Pines Memorial Park v. Oaklawn Memorial Park, Inc., 361

So.2d 695, 699 (Fla. 1978), the Florida Supreme Court held:

[T]he question of "need" for a cemetery
would never be reached, if, as Oaklawn
claims, Chapter 76-251 is either unconsti-
tutional or inapplicable. ... ([It is



18. Schwartz, Administrative Law 510, 511 (1976).

19. Id. at 508:

Since a jurisdictional claim can be raised
in most cases, irresponsible allegations
of lack of jurisdiction might be widely
used to delay effective administration.
In the vast majority of cases, however,
the claim of lack of jurisdiction can be
dealt with summarily on the pleadings
without the need for any trial in the
court. In the rare case, on the other
hand, where the individual does make out
a prima facie case of lack of agency
jurisdiction over him, why should he have
to resort to the expensive and time
consuming administrative procedures which
may convert the exhaustion of remedies
into the exhaustion of litigants?


- 12 -




I --- ----


pointless to require applicants to endure
the time and expense of full administra-
tive proceedings to demonstrate "need"
before obtaining a judicial determination
as to the validity of the statutory
prerequisite. (emphasis supplied)

The fundamental jurisdiction of courts in the administra-

tive arena was recognized in Willis v. Department of General

Services, 344 So.2d 580, 590 (Fla. 1st DCA 1977), wherein this

court held:

We have acknowledged that the Administrative
Procedure Act does not and cannot displace
circuit court jurisdiction to enjoin enforce-
ment of facially unconstitutional agency rules.
[citations omitted] That jurisdiction remains
unimpaired, a necessary concomitant of the
judicial power vested in the circuit courts
by Article V, Sections 1 and 5 of the
Constitution. (emphasis supplied).

In Willis, this court referred specifically to circuit

court jurisdiction to enjoin enforcement of facially unconstitu-

tional rules. More egregious is the situation represented by

the instant case Where the agency has undertaken to act without

a rule and in a manner clearly contrary to its statutory

authorization. Had agency action in the instant case been

dignified by the adoption of a rule purporting to authorize

its claim of jurisdiction, the rule itself would be invalid

unless submitted to both houses of the Legislature for prior

approval under Section 403.817. Thus, acting without benefit

of statute or rule and contrary to its enabling legislation,

the agency's action is patently invalid and the basis for

court intervention clear.
20
The Willis case, though not involving agency jurisdiction,

states the "key factors" to determine when a court should under-

take to decide a question of agency jurisdiction prior to



20. In State ex rel. Department of General Services v.
Willis, 344 So.2d 580 (Fla. 1st DCA 1977), general contractors
brought suit for injunction in the circuit court to restrain DGS
from completing bidding and contracting procedures. The basis
for the suit was that the procedures violated usual and accepted
standards for award of contracts for public works. Petition for
writ of prohibition filed by DGS in this court was granted on the
basis that the contractors had an adequate remedy available under
Chapter 120.


- 13 -










exhaustion of administrative remedies. Willis quotes with
21
approval from Professor Davis' treatise as follows:

Professor Davis [3 K.Davis, Administrative
Law Treatise 69 (1958)] there cites three
"key factors" which should influence the
judicial decision whether to intervene by
extraordinary writ or defer to the adminis-
trative remedy:

Extent of injury from pursuit of
administrative remedy, degree of
apparent clarity or doubt about
administrative jurisdiction, and
involvement of specialized admin-
istrative understanding in the
question ... (emphasis supplied)

This quotation is part of Professor Davis' discussion of lack

of agency jurisdiction as an exception to the doctrine of

exhaustion of administrative remedies. Davis continues:

Unfortunately, each of these three key factors
is a variable, and each often calls for a
considerable amount of judgment for it's proper
appraisal.

A workable standard probably should not go
beyond a statement that each of these three
factors should be weighed in determining
whether or not a court should decide an issue
of administrative jurisdiction without requir-
ing exhaustion of administrative remedies.
(emphasis supplied)

In weighing'the various factors, Professor Davis concludes that,

where lack of administrative jurisdiction "clearly appears on

the surface," exhaustion should probably not be required-even

though the injury from the administrative proceeding would be
22
slight.

Analyzing Davis' three factors in light of the instant case,

the record reveals that injury from the pursuit of administrative

remedy in the instant case includes time and expense, and, in

addition, the inability of appellees to make use of their







21. State ex rel. Department of General Services v. Willis,
344 So.2d 580, 590 note 10 (Fla. 1st DCA 1977).


22. 3 K. Davis, Administrative Law Treatise 69 (1958).


- 14 -










property due to the agency's assertion of regulatory jurisdic-

tion with resulting financial loss to the property owner. The

second factor approved by Professor Davis, "degree of apparent

clarity or doubt about administrative.jurisdiction," is resolved

strongly in favor of appellees in that, as previously pointed

out, the agency's claim of jurisdiction is clearly without

merit. The third Davis factor is likewise determined in favor

of appellees, since the question presented is one of law and

involves no specialized administrative understanding, nor indeed

any factual issues. Weighing these. three factors then, we find

the balance requires resolution of the jurisdictional issue

without exhaustion of administrative.remedies.
23
When an agency acts without colorable statutory authority

that is clearly in excess of its delegated powers, a party is

not required to exhaust administrative remedies before seeking

judicial relief. A finding of lack of colorable statutory

authority provides the necessary limitation on this exception








23. "Colorable Seemingly valid and genuine, having an
appearance of truth, right or justice." Webster's Third Inter-
national Dictionary (unabridged). The term is used in the
law to designate that which is apparent or prima facie, Wheeler
v. Nickels, 126 P.2d 32, 35-36 (Or. 1942); "not the thing
itself, but only an appearance thereof," Broughton v. Haywood,
61 N.C. 380, 383 CN.C. 1867); colorable cause or colorable claim
for the purpose of invoking or conferring jurisdiction is one
which, on.preliminary inquiry, shows that it is not "so unsubstan-
tial and obviously insufficient either in fact or law, as to be
plainly without color or merit and a mere pretense." In Re
Cadillac Brewing Company, 102 F.2d 369, 370 (6th Cir. 1939); a
matter is not "colorably" under jurisdiction whenhn no facts
are present or only such facts as have neither legal value nor
color of legal value in the affair," Broom v. Douglass, 57 So.
860, 864 (Ala. 1912).


- 15 -








24
to the requirement of exhaustion of administrative remedies.



24. Odham v. Foremost Dairies, Inc., 128 So.2d 586, 593
(Fla. 1961), judicial intervention justified only where "[t]he
invalidity of the administrative act is not subject to reason-
able differences of opinion; American General Insurance
Company v. Federal Trade Commission, 496 F.2d 197, 200
(CA 5th 1974), court declined to determine jurisdictional issue
described as "close;" McKart v. United States, 395.U.S. 185, 193
(1969), "[t]he courts ordinarily should not interfere with an
agency until it has completed its action or else has.clearly
exceeded its jurisdiction" (emphasis supplied); Lone Star Cement
Corporation v. Federal Trade Commission, 339 F.2d 505, 511 (CA
9th 1964), exhaustion required where jurisdictional issue "not
free from doubt;" Schwartz, Administrative Law 511 (1976),
exhaustion excused where "[o]n the pleadings it is clear that
the agency lacks jurisdiction or that it is at least not clear
that it possesses jurisdiction,"

3 K. Davis, Administrative Law Treatise 69 (1958),
factor to consider in excusing exhaustion: "degree of apparent
clarity or doubt about administrative jurisdiction."

Jaffe, "The Exhaustion of Administrative Remedies,"
12 Buffalo L.Rev. 327, 336 (1963):

I would agree with Judge Vanderbilt
[writing for the court in Ward v.
Keenan, 70 A.2d 77 (N.J. 1948)] that
if the court can determine that there
is little to be.gained from an adminis-
trative hearing, or no jurisdiction
whatever to hold it, there is no
compelling, surely no invariable reason
for forcing the parties through the
expense, delay and exasperation of an
administrative hearing. ... To be sure,
if there is a doubt, the doubt should
be resolved in favor of the agency.
It should appear with clarity that
there is no scope for the exercise of
administrative fact-finding or discretion.
(emphasis supplied)

See also Swann, "Administrative Adjudication of
Constitutional Questions," 33 U.Miami L.Rev. 527, 536, who
proposes, as to constitutional questions, validity of statute and
"other recognized exceptions to the exhaustion doctrine," this
rule:

Where summary judgment is appropriate,
submission to the agency may be dispensed
with, but there should be no barrier
whatsoever to a submission at the option
of the party offering the challenge.
(emphasis supplied).

Swann also states the following test for an "egregious error"
under the Willis decision at 593:

An egregious error is one where the
difficulty of the question is so slight
that an agency error becomes evidence
of incompetence or a willful disregard
of duty. As such, the error is also
evidence that resort to the agency's
own corrective process is likely to
prove futile. It is an error which
renders the court so skeptical of the
agency's purposes or capabilities that
judicial intervention becomes necessary
in order to secure the basic rights of
the effected parties.


I I





A $


A jurisdictional challenge which has apparent merit, or one

which depends upon factual determination in most instances

requires exhaustion of administrative remedies before resort
25
to judicial forum. In Odham v. Foremost Dairies, Inc., 128

So.2d 586, 593 (Fla. 1961), the Florida Supreme Court held:

An examination of the many authorities of
texts on this question reveals a consistent
attitude of the courts that judicial inter-
vention with administrative action is justified
only in those instances where the invalidity
of the administrative act is not subject to
reasonable differences of opinion.

DER's jurisdictional claim is clear and has been

articulated by its top-ranking official. Whether DER's action
26
could be labeled "free form," is without consequence to
27
determination of the jurisdictional issue presented.



25. See, e.g., Communities Financial Corp. v. Department
of Environmental Regulation, So.2d (Fla. 1st DCA, Case
No. AE-52, opinion filed April I, 1982), wherein DER's asser-
tion of jurisdiction, although ultimately rejected by agency
order which was adopted in the circuit court, raised a justic-
iable issue. This court held exhaustion of administrative
remedies should have been required and, on that basis, set aside
the circuit court's award of costs against DER. DER's claim of
jurisdiction in that case required factual determinations and
presentation of testimony.

26. Capeletti Brothers; Inc. v. Department of Transporta-
tion, 362 So.2d 346, 348 (Fla. 1st DCA 1978), cert. denied, 368
So.2d 390 (Fla. 1979), defines "free form" as:

[T]he necessary or convenient procedures,
unknown to the APA, by which an agency
transacts its day-to-day business. See
H. Levinson, "Elements of the Adminis-
trative Process," 26 American Law Review
872, 880, 926 et seq. (1977).

27. The originator of the term "free form," Professor
Levinson, states (26 Amer.U.L.Rev. 872, 931):

Even if an agency is permitted to reach
a decision on a free-form basis, the end
result reflected in that decision is
subject'to jurisdictional and substantive
standards. In brief, an agency may act
only in situations within the jurisdiction
conferred by law and may reach only
those results that come within the
substantive standards provided by law.
(emphasis supplied)

In Department of Professional Regulation v. Hall, 398 So.2d 978
(Fla. 1st DCA 1981), this court approved the circuit court's
refusal to dismiss a jurisdictional challenge to DPR in a dispute
involving agency action referred to by this court as "free form."


- 17











The trial court correctly denied DER's motion to dismiss

and entered judgment on the pleadings for appellees.

AFFIRMED.




SHAW, J., CONCURS; ROBERT P. SMITH, JR., CHIEF JUDGE, DISSENTS
WITH WRITTEN OPINION.


- 18 -












ROBERT SMITH, Chief Judge, dissenting.

The majority overthrows a vast body of Florida APA

precedent restricting circuit court litigation and requiring

exhaustion of adequate chapter 120 remedies for the resolution

of disputes generated in free-form dealings between agencies

and affected persons. Whether chapter 403 permits Falls

Chase to dredge and fill without restriction in the historic

basin of Upper Lake Lafayette is a question the Department

of Environmental Regulation is entirely competent to decide,

given its obvious regulatory.jurisdiction over the pollution

of lakes. Sections 403.061, .031(2), (3), Florida Statutes

(1981). Like all other.. agencies of the executive branch in

their respective fields, the Department was required to

decide the applicability of chapter 403 to Upper Lake Lafayette

under disciplines imposed by the APA; it specifically was

required, if asked, to declare and demonstrate, through an

order reviewable by this Court if necessary, any applicability

that chapter 403 may have in the particular circumstances

prevailing at Upper Lake Lafayette. Sections 120.565, .68.

Falls Chase studiously avoided this available and

wholly adequate administrative remedy. Instead, Falls Chase

temporized until its advancing construction created a condition

of urgency, then launched this collateral circuit court
(1)
attack on the Department's position taken in free-form proceedings

not subject to APA disciplines. The allegation on which

Falls Chase invoked the circuit court's jurisdiction, that

Falls Chase was repeatedly refused APA remedies, was so

transparently without merit that it does not bear judicial

mentioning, and it was not mentioned either in the circuit

court "judgment on the pleadings" or in the majority's

decision. That frivolous allegation, it appears, served

only to open the circuit court doors and to defeat the


I .











Department's motion to dismiss the complaint for failure

to exhaust administrative remedies. After serving those

purposes the allegation played no further part in the circuit

court's decision "on the pleadings," though the allegation

Swas denied by the Department's answer and the record convincingly

refutes it. The circuit court thus decided the merits of

the dispute and the majority has done the same, cloaking the

decision in a labored analysis to the effect that the agency

lacked jurisdiction because its position taken in free-form

proceedings was not "colorably" correct.

The well-considered and reliable Florida rule that APA

remedies must be exhausted, if they are adequate, is thus

cast aside without any effort to demonstrate its sudden want

of merit, and without any showing that adherence to it would

have done even the slightest momentary injury to Falls

Chase. Indeed, as will be shown, adherence to that principle

by Falls Chase voluntarily, or by the circuit court, would

have routinely ended this dredge-and-fill controversy in

1979. Instead, expediency prevailed and it still prevails.

The majority, apparently attracted to the notion that the

circuit court, after all, got to the right result on the

merits, overthrows the Florida exhaustion requirement in

favor of an amalgam of selected federal casellaw .on:exhaustion

which Professor Davis rightly calls "unprincipled," that

case law having become since 1975 "even more disorderly than
(2)
it previously was." The majority does not improve the

federal brew by adding to it Professor Davis' own variation

on the federal theme, a "weighing" of factors including the

"degree of apparent clarity or doubt" concerning the extent

of the agency's power. As the professor himself says, his
(3)
proposal "has been a failure," not only for the reason


I











he assigns, that just one federal court of appeals has used

it by name, but also because the professor has merely rearranged

and renamed the same "unprincipled" and "disorderly" subjective

factors he wishes to banish from federal case law. Because

Davis' restatement of federal law is equally susceptible to

manipulation by result-oriented users, it is equally unpredictable

in application, therefore equally productive of disruptive

and unnecessary litigation such as this. Just recently this

Court rejected a proposal to substitute for Florida's brightline

rule one of the endlessly variable versions of federal

case law that -- can anyone be surprised? -- requires judicial

abstention where the Florida rule now permits discreet

circuit court intervention to decide a threshold question of

statutory constitutional validity. See Smith v. Willis,

So.2d (Fla. 1st DCA 1982)[1982 FLW 13321, where the

Court .saw "no reason to venture such a fundamental reordering

of mature Florida exhaustion law least of all on the

basis of imported federal precedent which is anything

but coherent and predictable in application .

So.2d at [1982 FLW at 1334].

The Court in Smith v. Willis saw no reason to displace

Florida's exhaustion rule in favor of one branch of federal

case law that counsels more judicial abstention; and there

is no reason here to displace Florida's rule in favor of

other federal case law that counsels less. The vice of all

the wonderfully varied federal doctrine is its subjectivity

and unpredictability; and while such flawed doctrine may

have to suffice for the federal judicial system, for reasons

I shall mention in part V, and for national scholars whose

work understandably feeds almost exclusively upon federal

APA law, Florida's chapter 120 has "varied and abundant

remedies for administrative error" that are markedly more




t '





effective than those of the federal Act, and more accessible.

See State ex rel.'Department of General Services v. Willis,

344 So.2d 580, 590 (Fla. 1st DCA 1977). Correspondingly

there is neither need nor justification for supplanting

Florida's firm exhaustion principle with the federal import.

Seeking to find in the Willis decision some basis for

bypassing adequate APA remedies in favor of collateral court

litigation over the extent of the agency's regulatory power,

the majority seems to suggest, ante, So.2d at [p. 14],

that Willis swallowed Davis' restatement of federal law

whole by quoting it in footnote 10, 344 So.2d at 590. That

simply is not the case. The same footnote goes on to report

that the Davis treatise recommends elsewhere that Congress

"[g]et rid of extraordinary remedies as a means of review"

and establishih a single, simple form of proceeding for all

review of administrative action;" such as the direct appeal

provided by section 120.68 of the Florida APA. But of

course Willis did not relegate to a footnote the whole point

of its lengthy and concentrated discussion. The summary

paragraph in the text of Willis, to which all the preceding

discussion pointed, stated in terms that cannot be overlooked

that circuit court intervention in agency disputes is justified

only when APA remedies are unavailable or inadequate:

Does the complaint of the respondent contractors
demonstrate some compelling reason why the Administra-
tive Procedure Act does not avail them in their grievance
against the Department, and why the circuit court must
therefore intervene? We think it does not. No.lack of
general authority in the Department is suggested; nor
is it shown, if that is the case, that the Act has no
remedy for it. No illegal conduct by the Department is
shown; nor, if that is the case, that the Act cannot
remedy the illegality. No departmental ignorance of
the law, the facts or the public good is shown; nor,
if any of that is the case, that the Act provides no
remedy for it. No claim is made the Department ignores
or refuses to recognize relators' substantial interests,
or refuses to afford a hearing, or otherwise refuses to
recognize that relators' grievance is cognizable admini-
stratively. The respondent contractors have made no
showing that remedies available under the Act are i-n-
adequate. (344 So.2d at 591, emphasis added.)


22











Willis thus does not lend support for the majority's

view that a circuit judge should enjoin free-form agency

action that the judge thinks is beyond the agency's power or

is "without colorable statutory authority." Ante, So.2d

at [p. 15]. The holding of Willis was exactly the

opposite: that whatever .the complaint about agency action,

be it "lack of general authority" or "illegal conduct" or

"ignorance of the law, the facts or the public good," a

circuit court must not intervene and preempt APA processes

unless it is shown that remedies available under the Act

cannot adequately deal with the complaint.


I.

Reviewing the decisions, 1977-1982, turning
'on the adequacy of chapter 120 remedies.

Willis proposed, in 1977, a "judicial freshening of the

doctrines of primary jurisdiction and exhaustion of remedies,"

by means of requiring exhaustion of adequate administrative

remedies. Since then an unbroken line of decisions by

Florida appellate courts, including those of the Florida

Supreme Court, have addressed exhaustion questions in terms

of the availability and adequacy of administrative remedies.

Those decisions, arranged chronologically from 1977 to June

1982, include (emphasis added):

School Board of Leon County v. Mitchell, 346 So.2d 562,
569 -(Fla. 1st DCA 1977), cert. den., 358 So.2d 132 (Fla.
1978) ("Appellee, as a party whose interests were 'substantially
affected,' could have had that issue decided by hearing
held pursuant to Section 120.57(1), Florida Statutes (1975).
Under such circumstances a declaratory judgment action will
not lie.")

Jefferson National Bank of Miami Beach v. Lewis, 348
So. 2d 348 (Fla. 1st DCA 1977) ("[The appealed order of the
Leon County Circuit Court granting Jefferson declaratory and
injunctive relief, although in substance entirely correct,
is.REVERSED and the cause REMANDED for dismissal because
adequate remedies were and are available under Chapter 120
)(









United Faculty of Florida FEA/United v. Public Employees
Relations Commission, 350 So.2d 489, 493 (Fla. 1st DCA 1977)
("Adequate remedies for administrative determination of that
question, and for judicial review, existed under Chapter 120,
and no emergent or other unusual circumstances were sufficiently
shown to bypass the administrative remedy. "W]ere we
to approve an expansion of the circuit court's jurisdiction
[to enforce the Public Records Act, ch. 119] to decide
pendant questions determinable under available and adequate
administrative remedies, we would quickly dissipate the
benefits of a uniform Administrative Procedure Act.")

.Adams Packing Association, Inc. v. Florida Department of
Citrus, 352 So.2d 569, 571 (Fla. 2d DCA 1977)("The Adminis-
trative Procedure Act does not then provide an adequate admini-
strative remedy, and the procedure for review of agency
action established by the Act is not applicable to this
dispute.")

Gulf Pines Memorial Park, Inc. V. Oaklawn Memorial Park,
Inc., 361 So.2d 695, 699 (Fla. 1978)(" Oaklawn did not
attempt to avoid administrative remedies, but merely sought
to have them delayed in a reasonable effort to seek a judicial
declaration of rights that could not be obtained administratively.")

Carrollwood State Bank v. Lewis, 362 So.2d 110, 116
(Fla. 1st DCA 1978), cert. den., 372 So.2d 467 (Fla. 1979)("No
statute, rule nor regulation, nor the application thereof is
challenged; nor is there any allegation nor demonstration of
inadequacy of administrative remedies under chapter 120.")

'State ex rel. Florida State Board of Nursing v. Santora,
362 So.2d 116, 117 (Fla. 1st DCA 1978)("Suffice to say, here
as-in- Willis, there has been no showing that the remedies
available under the Administrative Procedure Act are inadequate


Metropolitan Dade-County v. Department of Commerce, 365
So.2d 432, 433 (Fla. 3d DCA 19.78)("We hold that the declaratory
judgment and.injunctive remedy resorted to herein is applicable
only in those extraordinary cases where a party has no other
adequate administrative remedy to cure egregious agency errors
or where a party's constitutional rights are endangered."

Department of Health and Rehabilitative Services v. Lewis,
367 So.2d 1042, 1045 (Fla. 4th DCA 1979)("In sum, the fact
that Mrs. Lewis claimed even the right to compel HRS
to comply with its own rules and regulations in handling
such problems, is not a sufficient basis to invoke circuit
court jurisdiction. No claim is made that HRS itself cannot
remedy any illegality in its procedures or correct any error
in the manner in which they are carried out.")

'Coulter v. Davin, 373 So.2d 423, 427-28 (Fla. 2d DCA
1979) ("On the other hand, the constitutional validity of
the law pursuant to which the administrative agency takes
action, or the constitutional validity of some act of the
agency taken in previous proceedings, in the form of a rule
or regulation or some other form, are matters which the
administrative agency may not determine.")

Junco- v. State Board of Accountancy, 390 So.2d 329, 331
(Fla. 1980)("The principle underlying the exhaustion.requirement
is inapplicable where adequate remedies do not abide within the
administrative sphere.")


24








Department of Professional RegulaEion v. Hall, 398
So.2d 978, 979 (Fla. 1st DCA 1981) ("As a result of this
peculiar statutory arrangement, by which the legislature has
granted the Department only the appearance of authority over
its subsidiary boards, but little direct power in fact, the
legislature has deprived the executive branch of clear effective
authority to-take action resolving the dispute by means of the
Administrative Procedure Act.")

Department of Business Regulation v. N. K., Inc., 399
So. 2d 416 (Fla. 3d DCA 1981)("The licensee [who won a
*circuit court- injunction] clearly had another remedy.
Section 120.68 provides for immediate review in the
appropriate District-Court of Appeal ..")

Key Haven Associated Enterprises, Inc. v. Board of Trustees
of the Internal Improvement Trust Fund, 400 So.2d 66, 74
(Fla. 1st DCA 1981)("The Chapter 120 remedies plainly were
adequate, and the circuit court correctly declined 'to
employ an extraordinary remedy to assist a litigant who has
foregone an ordinary one which would have served adequately."')

Ortega v. Owens-Corning Fiberglas Corp., 409 So.2d 530,
532 (Fla. 1st DCA 1982)("In no sense, therefore, is Ortega's
claimed remedy [declaration of the unconstitutionality of
chapter 4401 available in chapter 440 proceedings before a
deputy; in no sense are the proceedings authorized by chapter
440 adequate to resolve Ortega's claim for common law money
damages.") [Emphasis by the court.]

Communities Financial Corp. v. Florida Department of
Environmental Regulation, So.2d (Fla. 1st DCA
1982)[1982 FLW 866, 867 ("In Willis, Ethis Court set forth
certain criteria which, if met, would invoke the jurisdiction
of the circuit court in such cases: (1) the complaint must
demonstrate some compelling reason why the APA does not
avail, the complainants in their grievance against the agency;
or (2) the complaint must allege a lack of general authority
in the agency and, if it is shown, that the APA has no remedy
for it; or (3) illegal conduct'by the agency must be shown
and-, if that is the case, that the APA cannot remedy that
illegality; or (4) agency ignorance of the law, the facts,
or public good must be shown and, if any of that is the
case, that the Act provides no remedy; or (5) a claim must
be made that the agency ignores or refuses to recognize
related or substantial interests and refuses to afford a
hearing or otherwise refuses to recognize that the complainants'
grievance is cognizable administratively. Since such
avenues of relief were not pursued, we cannot conclude that
the remedies of the administrative process were inadequate.")

'State of Florida, Department of General Services v. Biltmore
Construction Co., So.2d (Fla. 1st DCA 1982) [1982
FLW 891 ("As a matter of policy, a court should not exercise
its jurisdiction if an adequate administrative remedy is available
until that remedy has been exhausted. If [the Department]
claims damages in excess of [the amount of retainage it
holds], its only remedy is in court because the only adjudication that
can be made in the administrative proceeding is whether or not
Biltmore is entitled to be paid all of the retainage, part of -it
or none of it."]

The uniform message of these decisions, including those

authorizing court intervention if the threshold question is

one of facial validity of a statute under the Constitution, is









that administrative remedies must be resorted to or not

'depending on whether the available remedies are adequate.

Given agency authority to decide.the issue in question, the

decisive question is whether the litigant seeking circuit

court intervention has shown convincingly that chapter 120

remedies cannot in good order and in a reasonable time

resolve the issue. In this line of decisions there is no

warrant for a circuit court overriding adequate chapter 120

remedies on the ground that the judge thinks the agency's

free-form position is demonstrably wrong. On the contrary,

the decisions teach that adequate APA remedies must be

resorted to even for cure of "egregious" agency errors,

Metropolitan Dade County, supra, 365 So.2d at 433, even for

correction of "untenable" agency positions, Carrollwood,

supra, 362 So.2d at 113, even if the circuit court's contrary

view of statutory requirements is "in substance entirely

correct," Jefferson, supra, 348 So.2d at 348.

Nor does the Supreme Court's 20-year-old decision in

Odham v. Foremost Dairies, Tnc., 128 So.2d 586, 592-93 (Fla.

1961) authorize judicial preemption of processes enacted by

the 1974 Legislature to discipline agency decision-making.

In Odham, which itself reversed an intervening circuit

court, the Supreme Court delivered a general historical

survey of the exhaustion principle, and in dicta not controlling

Odham or any decision cited by Odham, drew from textbooks

the phrases now seized upon by the majority, that "courts

have unhesitatingly intervened" when "agencies have attempted

to act beyond the powers delegated to them" or when "the

invalidity of the administrative act is not subject to

reasonable differences of opinion." What was remarkable

about Odham was not this inoperative dicta but the result

itself, a reversal of circuit court intervention executing

the Court's forceful warning against."promiscuous intervention"




26








by courts "except for most urgent reasons," 128 So.2d at

593:

We must assume that these agencies will follow
the mandates of the Constitution and laws in
the discharge of their duties. If they fail
to do so, those aggrieved may resort to the
courts for a review of such actions.

When Odham was decided, our present chapter 120 was yet 13

years in the future; even the aboriginal Administrative

Procedure Act of 1961 had not yet been enacted, chapter 61-

280, Laws of Florida, chapter 120, Florida Statutes (1961)(became

law June 22, 1961, effective July 1); and judicial review of

agency action was not by appeal as of right to a district

court of appeal, as now provided by section 120.68, but was

by petition for certiorari.;.to a district court of appeal or,

significantly, to a circuit court -- before whom it might

plausibly have been argued then, but now no longer, that its

early intervention to decide certain questions would simply

accelerate the same court's inevitable decision. Odham, 128

So.2d at 593, n. 14. Thus, 16 years later, Willis read that

and other worthy but dated decisions in their proper historical

context:

Forceful as those authorities are [requiring
exhaustion of adequate administrative remedies],
they weighed administrative processes and remedies
which were primitive in comparison to those avail-
able under the Administrative Procedure Act of 1974.
Those decisions could not have calculated the
adequacy, as we must, of an administrative process
which subjects every agency action to immediate
or potential scrutiny; which assures notice and
opportunity to be heard on virtually every important
question before an agency; which provides independent
hearing officers as fact finders in the formulation
of particularly sensitive administrative decisions;
which requires written findings and conclusions on
impact issues; whicbhssures prompt administrative
action; and which provides judicial review of final,
even of interlocutoryv orders affecting a party's
interests. 344 So.2'7at 590.

The "judicial freshening of the doctrines of primary

jurisdiction and exhaustion of remedies, and greater judicial

deference to the legislative scheme," proposed by Willis,
344 So.2d at 590, came to pass in the decisions catalogued

above, and for sound reasons set out in part V of this









opinion those recent decisions should be adhered to. But

for now the point to be made is that the 1961 Odham dicta

relied upon by the majority opinion has never since, not

once, been relied on by a Florida appellate court to justify

circuit court intervention on nonconstitutional issues --

not before the 1974 APA was enacted, and certainly not

since. Rather, when Odham's historical discourse on the

exhaustion requirement has been.cited or quoted in noncon-

stitutional decisions since, that language was employed to

require exhaustion, not to excuse it. Florida State Board

of Medical Examiners v. James, 158 So.2d 574 (Fla. 3d DCA

1963); Board of Public Instruction of Taylor County v. State

ex rel. Reaves, 171 So.2d 209 (Fla. 1st DCA 1964); Marx v.

Welch, 178 So.2d 737 (Fla. 3d DCA 1965), cert. den., 188

So.2d 313 .(Fla. 1966); Tampa Port Authority v. Deen, 179

So.2d 416 (Fla. 2d DCA 1965); Pest Control Commission of

Florida V. Ace Pest Control, Inc., 214 So.2d 892 (Fla. 1st

DCA 1968); Cole v. Southern Bell Telephone and Telegraph Co.,

221 So.2d 200 (Fla. 3d DCA 1969); Pushkin v. Lombard, 279

So.2d 79 (Fla. 3d DCA 1973),. ert. den., 284 So.2d 396 (Fla.

1913); Duval County School Board v. Armstrong, 336 So.2d 1219

(Fla. 1st DCA 1976), cert. den., 345 So.2d 420 (Fla. 1977);

School Board of Leon County v. Mitchell, 346 So.2d 526 (Fla. 1st

DCA 1977), cert. den., 358 So.2d 132 (Fla. 1978); General Electric

Credit Corp. of Georgia v. Metropolitan Dade County, 346 So.2d

1049 (Fla. 3d DCA 1977); Planning and Zoning Board of the Town

of Orange Park v. Kager, 351 So.2d 402 (Fla. 1st DCA 1977);

Kaufman v. Machiedo, 357 So.2d 739 (Fla. 3d DCA 1978), cert.

''den., 364 So.2d 888 (Fla. 1978); and Florida Power Corp.

V. Advance Mobille Homes, Inc., 386 So.2d 897 (Fla. 5th DCA

1980), pet. rev. den., 394 So.2d 1151 (Fla. 1981).









In keeping with the abundant precedent requiring judicial

abstention if an adequate chapter 120 remedy is available,

it is appropriate now to identify that remedy.

II.

Identifying the adequate APA remedy:
a petition for declaratory statement.

This dispute arises.from a proposal by Falls Chase, a

special taxing district by virtue of a 1975 Leon County

ordinance, and by Sunshine and Elba, owners of most of the

district's land, to build water distribution and sewer

systems on Sunshine's and Elba's land, through publicly

financed bonds, in or adjoining Upper Lake Lafayette in Leon

County. There is no doubt that Department permits were

required for both the water and sewer systems, separate and

apart from permits to dredge and fill in the lake basin.

Sections 403.086, .087, .861(9), Fla. Stat. (1979). In fact

Falls Chase applied for and the Department issued or was

prepared to issue those permits, reserving only the question

of dredge-and-fill permits for pipelines below the high

water line in Upper Lake Lafayette.

On December 21, 1978, at the request of Falls Chase,

its representatives met with the Department's at Lake Lafayette

to discuss Falls Chase's proposed construction and the

extent of the Department's regulatory jurisdiction under

chapter 17-4, Florida 'Administrative Code, implementing

chapter 403, Florida Statutes (1979). They met again on

February 15, 1979, so that (Falls Chase's attorney wrote)

"the Department may attempt to physically identify any

portions of the proposed project which might be subject to

state regulation pursuant to chapter 17-4, Florida Administrative

Code." After that meeting Falls Chase's attorney had the

impression that the Department's representatives agreed'

"that construction of the four upland ponds, installation of

roadways and placement of compacted fill, as contemplated in

the development plan, were all located on upland sites that

were not within the jurisdiction of DER's dredge and fill









permitting regulations." But at a March 12 meeting (Falls

Chase's attorney wrote on March 21) "it became apparent

that the DER regulatory jurisdictional questions were

in fact unresolved in the minds of certain DER representatives."

The emerging position of the Department's staff was

that. despite section 403.817 and the Department's rule

establishing a vegetation index, Upper Lake Lafayette

nevertheless remained a "lake" subject to state control

under chapter 403 to the historic ordinary high water mark,

albeit that mark was landward of the present vegetation

line. Section 403.031(3), Fla. Stat. (1979).

Falls Chase disputed that interpretation of chapter 403

exactly as the circuit court and now the majority here have

disputed it. So, going to the heart of the matter, Falls

Chase's counsel challenged Secretary Varn, head of the

Department, by letter of March 21, 1979:

1) [I]s it your opinion that the [vegetation]
species indicators specified in Rule 17-4.02(17)
and (19), are not intended to define the landward
extent of waters of the state for dredge and fill
regulatory purposes under Chapter 403, Florida
Statutes?

2) in the event the landward extent of the Depart-
ment's regulatory jurisdiction over dredge and fill
projects is not limited by the species indicators
in Rule 17-4, what is the Department's definition
of mean high water line as the Department inter-
prets that term under Chapter 403?

31 what is the specific legal authority for using
a mean high'water line criteria to determine the
landward extent of the Department's dredge and
fill regulatory jurisdiction pursuant to Chapter
403?

and 4) where in the rules and regulations promulgated
under Chapter 403 has the mean high water line test
been adopted by the Environmental Regulation Commission
as a standard or criteria of the Department for
determining the landward extent for dredge and fill
jurisdiction?

A deputy general counsel answered for the Department by

letter dated April 5, 1979, setting out at some length the

bases for the Department's regulatory claim to the high
(4)
water line in Upper Lake Lafayette. 'While the response

was thorough and informative, it was no more than free-form










action, supra fn. 1, not authentic "agency action" either

.determining Falls Chase's substantial interests or providing

the predicate .for an APA appeal.

The questions posed by Falls Chase's counsel show his

grasp of the matter and his purpose to isolate the agency's

legal position, to require its exposition, to expose its

errors and excesses. That is to say, Falls Chase knew all

it needed to.know, on March 21, 1979, in order to write an

effective petition for a declaratory statement, subjecting

the Department's statutory claims to chapter 120 disciplines

and eventually to direct linear review by this Court.

Sections 120.565, .68, Fla. Stat. (1979).

Section 120.565 speaks in these terms of declaratory

statements:

Declaratory statement by agencies. Each agency
Shall provide by rule the procedure for the filing
and prompt disposition of petitions for declaratory
statements. A declaratory statement shall set out
'the agency's opinion as to the applicability of a
specified statutory provision or of any rule or
order of the agency as it applies to the petitioner
in his particular set of circumstances only. The
agency shall give notice of each petition and its
disposition in the Florida Administrative Weekly
..and transmit copies of each petition and its
disposition to the committee. Agency disposition
of petitions shall be final agency action.
(Emphasis added.)

That the legislature invests declaratory statements

with a -particular role in the Florida APA scheme, and with

particular significance, is evidenced by its use of the

imperative "shall" four times in section 120.565: the

agencies shall provide by rule for declaratory statements;

those declarations shall4-state the agency's opinion of how a

specified statute applies to a particular individual in his

particular circumstances; notice of the agency's declaration

shall be given the public through publication and to the

legislature through the joint Administrative Procedures
(5)
Committee; and a declaratory statement shall be regarded

as final agency action for purposes of a regular section

120.68 appeal to a district court of appeal.


ILLI-U~LII*I"L~~_~ ..-i._..-.LI--.. ^.i.- --~li-..: -^li-iII_ _-illl--ji~l-~ :_ _i--U~*illl:C-l ~----~*_lliL.l iUli--~i~LIIi__C.r. _---











These legislative imperatives lie heavily upon Florida's

executive agencies, in marked contrast, for example, to the

loosely drawn, loosely enforced parallel section of the
(6)
federal APA. Section 120.565 allows no room for delay or

evasion in the agency's response. Both the model rules of
(7)
the Administration Commission and the Department of

Environmental Regulations's own rules, infra, implement this

statute as required.

Even in August 1979, when the Department surveyed the

ordinary high water line of Upper Lake Lafayette at "between

44.8 and 46.6 feet mean sea level" and gave a free-form

directive that Falls Chase ubmit permit applications for

placing compacted fill below" that line, section 120.57

proceedings and a section 120.68 appeal were available to

resolve any question of fact, policy, or law inhering in
(8)
that directive. Seee section 403.121(2), Fla. Stat. (1979).

Questions concerning the Department's lawful powers could

also have been raised in any civil action initiated by the

Department to enforce its application of chapter 403 in Lake
(9)
Lafayette. Section 403.121(1). But by the fall of 1979,

when Falls Chase launched its preemptive litigation, time

was a factor, or at least Falls Chase claimed as much,

because it signed a construction contract on June 29, 1979,

and mortgage interest; legal fees, and other overhead expenses
(10)
were accruing. What Falls Chase really needed was an

earlier remedy, one designed to answer authoritatively the

basic question, Does chapt-r, 403 grant the Department regulatory

jurisdiction above the indexed vegetation line to the ordinary

high water mark?, before any untoward financial loss or

avoidable delay occurred.

Therein lies the special efficacy of a petition for

declaratory statement. During the planning stage of a










project such as this, before one has signed a construction

contract, before schedules.begin to pinch, before interest

payments on borrowed capital become unduly burdensome, it is

possible for someone like Falls Chase to ask an agency like

the Department to declare formally the basis for the Department's

*asserted regulatory powers in the project; the Department

must declare; and in rapid order a district court of appeal

will remedy any excessive assertion of jurisdiction. Section

120.565 thus provides a-broad declaratory remedy, whatever

the agency and whatever the issue of statutory application,

much like the Division of State Planning's "binding letter

of interpretation" which states the application of section

380.06 regional impact stan.dards to proposed developments.

See General Development Corporation v. Division of State

Planning, 353 So.2d 1199 (Fla. 1st DCA 1977).

The Department's own Rule 17-1.119, regularly published

in Florida Administrative Code for a year before spring

1979, fully advertised the prophylactic advantages of the

declaratory statement:.

Purpose and Use of'Declaratory Statement.
A declaratory statement is a means for deter-
mining the rights of substantially affected
persons when a controversy, or when doubt
concerning the appliilcability of any statutory
provision, rule or order, has arisen before
any wrong has actually been committed. The
potential impact upon petitioner's interests
rust be alleged in order for petitioner to
show the existence of a controversy or doubt.
(Emphasis added).

In a footnote containing the majority's lone reference

to the adequacy of chapter 120 remedies and the principle

requiring their exhaustion,/there is an unexplained statement

that "the availability of tfis remedy [the section 120.565

declaratory statement] is doubtful" because of the phrase,

"before any wrong has actually been committed," in the

Department's Rule 17-1.119. Ante, So.2d at [p. 10,

n. 15]. I can only assume the majority means by this that

because Falls Chase is deemed correct in this dispute, not

"wrong," Falls Chase could not have "committed" any "wrong,"










therefore "[t]he availability of this remedy is doubtful

...." This narrowing of the declaratory statement remedy,

preparatory to speculating upon its unavailability, is

wholly unwarranted. The phrase seized-upon by the majority

is but a rendering of common language long used to describe

the purpose of declaratory judgment proceedings in circuit

court. E.g., Sheldon v. Powell, 99 Fla. 782, 794, 128 So.

258, 263 (1930).(statutory provision for declaratory decree

contemplates that the parties "may have a judicial determination

of [their rights] before wrong has been committed or damage

done."); James v. Golson, 92 So.2d 180, 182-83 (Fla. 1957)

(declaratory judgment "may be employed to anticipate irreparable

mischief to one's business .. "); Kingdon v. Walker, 156

So.2d 208, 211 (Fla. 2d DCA 1963), cert. den., 165 So.2d 179

(Fla. 1964) ("Thus many disputes may be settled before any

party is provoked to hostile action in reliance, perhaps

mistakenly, on the validity of his position.") The referenced

language simply means that a declaratory statement was

available and appropriate as soon as the dispute over the

applicability of chapter 403'was recognized, long before any

"wrong" in this was committed either by-Falls Chase, "wrong-

fully" filling without a permit, or by the Department,

delaying construction with "wrongful" demands for permitting.

The declaratory statement remedy, followed by appellate

remedies if necessary, was the ideal course to secure a

prompt and correct answer to the underlying issue.

The Department had no doubt of the availability of this

remedy, nor did Falls Chase. In the Department's motion to

dismiss and memorandum of law submitted to the trial court

on October 2, 1979, the Department stated:

Plaintiffs have the right to request a declaratory
statement from the Department, pursuant to Section
120.565, Florida Statutes. To date, no such
petition or request for declaratory statement by
Plaintiffs has been received by the'Department.



34











The Department's rules prescribed a simple form-of

.petition. They required the Department to file a responsive

order within 60 days, or within 30 days after filing of the

transcript of any hearing held subject to section 120.57.

Fla. Admin. Code R. 17-1.120, .121. In 1979, but now no longer,

Department declaratory statements were subject to review by

the Environmental Regulation Commission, section 403.804(1),

composed of seven citizens appointed by the Governor and

confirmed by the Senate, "representative of, but not limited

to, interested groups including agriculture, real estate,

environmentalists, the construction industry, and lay citizens."

Section 20.261(3), Fla. Stat. (1979). The Commission's

rules.provided short schedules for appeals from the Department's

declaratory statement or other final agency action, and for
(11)
briefing. The Commission's action was subject, in turn,

to section 120.68 appellate review in a district court of

appeal. Peterson v. Department of Environmental Regulation,

350 So.2d 544 (Fla. 1st DCA 1977); Booker Creek Preservation, Inc.

v..Department of Environmental Regulation, 369 So.2d 655

(Fla. 2d DCA 1979).

Had Falls Chase, Sunshine and Elba pursued this remedy

in March 1979, when the dispute arose, this rather clearcut

issue over the extent of the Department's regulatory powers

on the banks of Upper Lake Lafayette would have been determined

administratively or judicially by Labor Day 1979 or, with

any luck and a little diligence, by the Fourth of July.

III.

This Court denied prohibition in this
case in September 1979 and decided that
Falls Chase's administrative remedies
were adequate; that decision has res
judicata effect. .

The majority opinion, while speaking the language of

jurisdiction, really decides the merits, that is to say, the

extent to which chapter 403 restricts dredge-and-fill in an

historic-lake that is subject to periodic flooding and


I I









draining andhas drained in recent decades, inviting growth

below its ordinary high water line of vegetation not tolerant

of water. Given the legislature's comprehensive declaration

against the menace of pollution in Florida's lakes and other

waters, section 403.021, and its equally comprehensive

delegation of responsibility to the Department, section

403.061, the Department certainly has "jurisdiction," in any

ordinary sense of the word, to decide the issue; and chapter

120 dictates how the agency shall decide, subject to judicial

review by appeal. One could correctly say that the Department

of Education or the Department of Highway Safety and Motor

Vehicles had no "jurisdiction," but this Department's juris-

diction in enforcing chapter 403, and in determining its

application in the first instance, is too obvious to be

labored further.

The majority says in effect that the Department has

jurisdiction to apply chapter 403 correctly but is "without

jurisdiction" to apply chapter 403 incorrectly or in a way

that a circuit judge deems not "colorably" correct. But if

this reasoning were thought to justify judicial intervention

notwithstanding adequate chapter 120 remedies to correct any

Department error not "colorably" correct, this Court would

surely have granted the petition of Falls Chase, Sunshine

and Elba for a writ of prohibition, filed August 28, 1979.

But the Court denied the petition, without requiring a

response by the Department, on September 6, 1979. Fallschase

'Special Taxing Dist. v.' Department of Environmental Regulation,

No. PP-106 (Fla. 1st DCA 1979)(Judges McCord, Mills and

Ervin).

Falls Chase's petition for writ of prohibition was
virtually identical to its later circuit court complaint; it

substantially differed only in that the petition for prohibition












did not contain specific allegations, added when the complaint

was filed on September 11, 1979, that administrative remedies

had been refused or were for specific reasons inadequate.

The petition for writ of prohibition was therefore strikingly

like the majority opinion, arguing that the Department was

wrong, egregiously.wrong, in asserting by free-form action

that chapter 403 applied to Upper Lake Lafayette in the

circumstances of this case. Thus the allegations of the

petition for writ of prohibition and those of the complaint

later filed in circuit court may be compared:















































37








Allegations in the developers'
petition for writ of prohibition:


Allegations in the developers'
complaint for declaratory judgment
and injunctive relief:


10. The choice of an historical ordinary high water
line in what is, for all practical purposes, a dry basin,as
the basis of establishing the landward extent of juris-
diction for regulatory purposes is contrary to Florida
Statutes and Department regulations.

16. The Department itself admits that under the
jurisdictional limit placed by the vegetation index rules
none of the work being done by Petitioner District or upon
Petitioner corporations land is within Department juris-
diction.

18. Despite the legislative mandate and the Depart-
ment's own rules the Department has arbitrarily and capri-
ciously attempted to stop all work by the District below a
line far landward of the landward extent of its juris-
diction under Chapter 403, Fla. Stat. and Chapter 17-4,
F.A.C.

21. Thus, under the Department's own defini-
tion it has no jurisdiction over Petitioner's use of its
land.

28. Petitioners contend that the attached exhibits
. clearly indicate that Respondent has acted and
threatens to continue to act without or in excess of
jurisdiction granted to it by either the Florida Con-
stitution or the Florida Statutes, all to the continued
and irreparable damage of Petitioners. Judicial review
is necessary immediately because review of the final
decisions of Respondent would be too late and would not
provide an adequate remedy.

WHEREFORE, Petitioners request this Court to issue
its rule nisi and thereafter to grant the writ and
prohibit Respondent from further purporting to exercise
jurisdiction to control use of Petitioners' property
. contrary to statutory and regulatory mandate .


6 (h). The ordinary high water line which the agency
is selecting as its jurisdictional boundary is not authorized
by statute, is not authorized by regulation, and is in fact,
a historical line without any basis in fact to the actual
water line in the area in which the land is being developed.
The land is now dry, and has been used for years for farming
and cattle grazing.

6 (i). The Department has no legal authority for its
attempted exercise of jurisdiction over the Plaintiffs in
the development of private property.

6 (m). The use of the so-called ordinary high water
line by the Department is an arbitrary and capricious use of
a standard which has not been adopted as a rule and is in
fact contrary to the rules and statutes governing the landward
extent 'of waters for the regulatory purposes of pollution
control .

6 (t). The actions of the Department, being without
statutory authority requires intervention by this
Court.

6 (u). The activities of the Defendant Department
demonstrate a gross and flagrant abuse of power contrary to
the power delegated to it by the legislature.

WHEREFORE, Plaintiffs pray that this Court will enter a
declaratory judgment declaring that the landward extent of
the (Department's] jurisdiction for regulatory purposes
under Chapter 403, Fla. Stat., is limited to the edge of the
wetland vegetation .

It is further requested that the.Court enter a preliminary
injunction and a permanent injunction against the Department
preventing the Department, its agents and employees, from
attempting to regulate the activities of the Plaintiffs upon
land not within the jurisdiction of the Department ..


r








Thus on essentially the same allegations as are contained

in the circuit court complaint -- putting aside the complaint's

added allegations concerning inadequate and unavailable

chapter 120 remedies -- another panel of this Court summarily

denied Falls Chase's petition for writ of prohibition. That

writ is altogether appropriate to prevent an inferior tribunal

from acting in excess of.jiirisdiction "where person seeking

writ has no other appropriate and adequate legal remedy."

English v. McCrary, 348 So.2d 293, 297 (Fla. 1977). That

being so, the Court's denial of the writ establishes either

that the Department was acting within its jurisdiction or

that Falls Chase had adequate remedies for any excessive

regulation under chapter 120. In either case that decision

controls this one, on principles of res judicata.

In support of its position that this Court's denial of

the writ of prohibition was inconsequential: ante, So.2d.

at .[p. 4 n. 8], the majority opinion cites decisions

establishing that this Court's action was very consequential

indeed. State ex rel. Washburn v. Hutchins, 101 Fla. 773,

777, 135 So. 298, 299 (1931), .characterized prohibition as

an extraordinary judicial writ that in proper cases
may be issued to restrain the unlawful exercise of
judicial functions when no other adequate remedy is
afforded by law. (emphasis added.)

And Public Employees Relations Commission v. District School

Board of De Soto County, 374 So.2d 1005 (Fla. 2d DCA 1979),

cert. den., 383 So.2d 1193 (Fla. 1980), interpreting English

v. McCrary, held that the writ is appropriate only "where

the person seeking the writ has no other appropriate and

adequate legal remedy. .. ." For that reason, the court

stated,

denial of a writ of prohibition without opinion is
not res judicata unless the sole possible ground of
the denial was that the court acted on the merits
of the jurisdictional question, or unless it affirm-
atively appears that such denial was intended to be
on the merits.

Thus the Second District held, concerning two prior denials

of prohibition by prior panels of that court, that "those










denials could have rested on reasons other than the merits

of the jurisdictional question posed in those prior proceedings."

374 So.2d at 1010.

Certainly I would not claim that this Court's summary

denial of Falls Chase's petition for writ of prohibition

decided the extent of the Department's regulatory "juris-

diction" in this controversy. On what other ground, then,

could the decision have rested? None other than that Falls

Chase had not shown it lacked adequate chapter 120 remedies

for any jurisdictional." error the Department may have

committed, or threatened to commit, by the free-form action

complained of. If the Court's action is not explained on

that ground, there is no other explanation except judicial

caprice, which I am unwilling to assume.


IV.

Concerning Falls Chase's allegations
in circuit court that APA remedies
had been refused or were for specific
reasons inadequate. '.

Falls Chase and the developers rightly interpreted this

Court's summary denial of prohibition on September 6, 1979,

as requiring them to exhaust administrative remedies or to

show their inadequacy in fact. Thus their injunction complaint

filed September 11 alleged that chapter 120 remedies were

unavailable because the Environmental Regulatory Commission,

overseer of the Department, had on August 23, 1979, "refused

to consider whether the Department had legal jurisdiction

under the above-alleged facts, and its chairman suggested

relief could best be found in the courts"; and that APA

remedies were inadequate because in September 1979 "[d]ue to

the extreme time constraints of the Plaintiff District for

the purposes of construction schedules and payment to contractors

the administrative remedies available under Chapter 120 .

are clearly too little and too late."

Subject to its motion to dismiss for failure to exhaust

APA remedies, the Department filed an answer denying those


J








allegations. Those allegations were never proved and the

record disproves them. These disputed factual issues are

not mentioned in-any order of the circuit court, nor in the
(12)
judgment entered on the pleadings. A judgment on the

pleadings is, of course, inappropriate in a case bearing

unresolved factual issues. E.g., Miller v. Eatmon, 177

So.2d 523 (Fla. 1st DCA 1965).

Concerning the complaint's allegation that by September

1979 "extreme time constraints" under the construction

contract rendered "administrative remedies available under

Chapter 120 clearly too little and too late," there

was no evidentiary hearing in circuit court nor any findings

of record concerning the developers' claim that they would

have been financially devastated should they be required, in
1 (13)
September 1979, to seek administrative remedies. But

vastly more important than that, there was no allegation, no

proof, no finding, nor even any argument of record explaining

and excusing the failure of Falls Chase, Sunshine and Elba

to ask the Department for a decisive (and judicially reviewable)

declaratory statement on the issue six months earlier, in

March 1979; when the issue-arose in free-form proceedings.

That was three months before Falls Chase even signed the

construction contract that created the "extreme time constraints"

in September. Thus, insofar as they were relied on to show

the inadequacy of chapter 120 remedies, any "extreme time

constraints" in September when the complaint was filed, or

in November when the judgment was entered, were without

significance. One cannot by neglect and delay dissipate an

ordinary APA remedy and then complain of its loss as the

basis for claiming an extraordinary judicial one. Willis,

344 So.2d at 592-93; Holman v. Florida Parole and Probation

Commission, 407 So.2d 638 (Fla. 1st DCA 1981). "No rule is

better settled," it is said, "than that equity aids the

vigilant and not the indolent." Lanigan v. Lanigan, 78

So.2d 92, 96 (Fla. 1955).


-- '., : ,. ....... k :' L









Concerning the developers' allegation that no APA

remedy was available because the Environmental Regulatory

Commission "refused" to decide the extent of the Department's

jurisdiction, the proof amounts to this: On May 22, 1979,

Clean Water, Inc., and Terri Saltiel, citizens interested in

preserving Leon County's lakes and other waters, petitioned

the Department for an opportunity to oppose, in a section

120.57 hearing, Falls Chase's dredge-and-fill plans in the

Lake Lafayette basin. The Department denied the petition on

technical grounds and the petitioners appealed to the Environ-

mental Regulation Commission. On August 23, the Commission

granted the motion jointly filed by the Department and Falls Chase
(14)
to dismiss the appeal as untimely. In dismissing the

appeal the Commission said it had no jurisdiction to decide

other questions raised, such as the extent of the Department's

regulatory power in Lake Lafayette:

Since the Appellants have suffered a dismissal
of their appeal on the grounds that the Notice of
Appeal was not timely filed, this Commission is
without further jurisdiction and has no right to
render any judgment either in favor of or against
the Appellants. Lester v. State (1896), 37 Fla.
382, 20 So. 232; Seaboard.A.L.R. Co. v. Ford,
92.So.2d 160 (Fla. 1955); Lichtsee v. First National
Bank, 132 So.2d 776 (Fla. 2d DCA 1961).

Therefore, this Commission shall make no
further inquiry or determination of other questions
or motions presented by the parties to this appeal
or by Sunshine Land Development, Inc. and Elba, Inc.

The Commission was unquestionably correct in refusing to

rule on other questions when dismissing the appeal for lack

of.jurisdiction. The Falls Chase allegation that the Commission

"refused" to supply it an appropriate APA remedy on that

occasion must be regarded as frivolous.

Though no mention was made of it in any pleading, Falls

Chase put another APA order in the circuit court file,

evidently as further proof that it had been "refused" an

appropriate APA remedy. That was the September 24, 1979,

order of hearing officer Tremor of the Division of Administrative

Hearings, granting Falls Chase's motion to dismiss another










APA appeal by Clean Water, Inc..and Saltiel, from the Department's

"proposed order" stating its intention to issue the water

system permit. The hearing officer considered that not a

final order, and not appealable. Granting Falls Chase's

motion to dismiss on that procedural ground, the hearing

officer did not reach other grounds, including a fifth

ground added late in August that "dredge and fill permitting

jurisdiction cannot be determined by an ordinary high water

line test instead of the vegetative indicators/vegetative

index adopted by the Florida Legislator and the Environmental

Regulation Commission."

Thus attempting to demonstrate that it had been "refused"

chapter 120 proceedings to determine the applicability or

inapplicability of chapter 403 to its filling at Upper Lake

Lafayette, Falls Chase placed two administrative orders in

the record of the circuit court proceedings: one was an

order dismissing, on Falls Chase's motion, an untimely

administrative appeal by third parties from a Department

order favorable to Falls-Chase; the other was -an order

.d-ismissing*,'again-on Falls Chase's motion, yet another third

party administrative appeal from a nonappealable "proposed

order" of the Department that was, again, favorable to Falls

Chase. It is ludicrous to characterize this action as

repeatedly refusing Falls Chase appropriate chapter 120

remedies on the substantive issue Falls Chase took to circuit

court.

The utter absence of justification did not deter Falls

Chase, either in the circuit court or here, from bitterly

complaining, in terms selected for incitement value, of a

Departmental strategy to refuse or evade chapter 120 proceedings

for a decisive Department order that would be subject to

immediate review.

In circuit. court the arguments of Falls Chase and the

developers hammered at "the incredible delay the Department










has already inflicted upon.Plaintiffs" (memorandum filed

November 13, 1979, pp.3-4). The point was made unrelentingly:

"In the cases in which the jurisdictional issue has been

raised, DER has been successful in obtaining rulings which

avoid the issue," (Id. at 6)," placing Plaintiffs in an

eight month run-around" (Id. at 6); "Plaintiff, Falls Chase,

has repeatedly attempted to find someone to hear its jurisdictional

question"; "What [the Department] suggests here is that a

legal decision by a court be put off until the total destruction

of the Plaintiffs and Plaintiffs' legal problems thereby

disappear" (Id. at 9); "What DER has attempted to do is

forestall any decision on its unlawful creation of dredge

and fill jurisdictional limits until the Plaintiffs literally

die" (Id. at 10); "the Department's acts in changing its

position as to.what its staff 'thinks' its jurisdiction is,

and indecision, .. has forced Plaintiffs to the brink"

(Id. at 14).

These denunciations continued in appellees' brief filed

in this Court April 5, 1980: "Thus, for four months DER did

not have even a belief of what its regulatory jurisdiction

was, holding all development in question for a third of a

year while it attempted to make up its collective mind" (p.

5); "the DER wanted [Fallschase] to wait several more

months so it could set the so-called jurisdictional line .. ."

(p. 11); "It is further alleged that the Environmental

Regulatory Commission specifically refused to consider

whether the Department had legal jurisdiction in an action

in which that question was one of the issues raised" (p.

13); "What DER has attempted to do is forestall any decision

on its unlawful creation of dredge and fill jurisdictional

limits until the Appellees literally die" (p. 22); "It is

identical to the situation with which Joseph K. was faced in

his search for justice in Kafka's unfinished novel, The Trial"

(p. 22);









All this from litigants to whom section 120.565 and the

Department's rules offered a clearly effective remedy from

March 1979 onward, requiring nothing but a request from

Falls Chase. "To date," the Department's motion to dismiss

rightly told the circuit judge on October 2, 1979, "no such

*petition or request for declaratory statement has been

received ." Obtaining a declaratory statement, like

obtaining other APA remedies, is "simplicity itself." One

"asks the agency for it." Willis, 344 So.2d at 592. Since

Falls Chase and the developers strategically did not "ask,"

they of course did not receive.

V.

Commending the-exhaustion principle,
once again, to the judiciary.

Five years have passed since Willis surveyed the disciplines

imposed by chapter 120 on agency decisionmaking and called

for "judicial freshening of the doctrines of primary jurisdiction

and exhaustion of remedies, and greater judicial deference
(15)
to the legislative scheme." Since Willis this Court and

others, and indeed this Department and other agencies,

have fulfilled the implicit promise of Willis that chapter

120 disciplines would be honored by the agencies or else

enforced by the district courts of appeal on linear appeals

through section 120.68. It was clear enough, in 1977, that

agencies would be held to exacting standards in formulating

their declaratory statements and in other actions determining

the substantial interests of affected persons. McDon'ald v.

Department of Banking and Finance, 346 So.2d 569 (Fla. 1st

DCA 1977). Numerous decisions since then have fulfilled the

promise on which Willis predicated "judicial freshening" of

the exhaustion principle.

That being so, there is no basis in Florida's unique

APA experience for a skeptical assumption that the agency's

free-form arguments show that chapter 120 processes would be "futile,"









nor is there cause for a judicial attitude "so skeptical of

the agency's purposes or capabilities that judicial inter-

vention becomes necessary in order to secure the basic

rights of the affected parties." Ante, at [p. 16, n.

24]. There is no longer room for judicial skepticism that

"[t]he agency will not change its collective 'mind' short of

ruling by this court" or some other. Rice v. Department of

Health and Rehabilitative Services, 386 So.2d 844, 854 (Fla.

1st DCA 1980)(dissenting opinion). That agencies do change

their minds under chapter 120 disciplines is evident. See,

e.g., that salutary event in the Rice matter, Key Haven

Associated Enterprises, Inc., v. Board of. Trustees of the

Internal Improvement Fund, 400 So.2d 66, 73, n. 15 (Fla. 1st

DCA 1981). See also Communities Financial Corp. v. Florida

Department of Environmental Regulation, So.2d at

1982 FLW at 866, where this very Department "changed its

mind" in chapter 120 proceedings and found its own proof

inadequate to show that "the dredging and filling activities

of CFC in constructing the drainage system took place in

waters of the state subject to DER's jurisdiction." The

opportunity to "change the agency's mind" is one of the

highest achievements of chapter 120 disciplines, and the

courts have repeatedly required agencies to afford that

opportunity. We did so most recently in International Medical

'Centers, H.M.O. v. Department of Health and Rehabilitative

*Services, So.2d (Fla. 1st DCA op. filed July 14,

1982) [1.982 FL ].

If judicial skepticism about the efficacy of chapter

120 processes is not at the root of the majority's decision

to jettison the exhaustion requirement, then the only possible

purpose, in practical terms, must be to avoid through judicial

intervention the expenditure of litigants' time and money in

administrative proceedings. Thus the majority cites Falls

Chase's "injury from the pursuit of administrative remedy in


P










the instant case," consisting of "time and expense" and "the

*inability of appellees to make use of their property due to

the agency's assertion of regulatory jurisdiction .

Ante at [pp. 14-15].

The first point to be made in commending the exhaustion

requirement, therefore,.is'that the alternative of circuit

court intervention, followed by an appeal to determine its

propriety by the majority's standards, contradicts the majority's

stated concern for economy and swift judicial decisions.

A. Preemptive circuit court litigation
will-cost, not save, time and money, and
that expenditure may well be futile.

Part II of this opinion suggested that conventional

chapter 120 remedies, if resorted to by Falls Chase, would

have resolved this controversy fairly and finally by Labor

Day 1979. Because Falls Chase resorted to this injunction

suit instead, and the circuit court entertained it, the question

of Falls Chase's entitlement to dredge and fill below the

ordinary high water mark in Upper Lake Lafayette became

freighted with the exhaustion question to which these opinions,

filed in July 1982, are principally addressed.

Even though the circuit court's judgment rendered November

26, 1979, enjoined the Department from further attempts to

regulate dredge and fill above the indexed vegetation line

at Upper Lake Lafayette, Falls Chase did not assume that it

could then safely proceed with the intended construction. The

Department's appeal on November 28 effected an automatic stay

of the injunction pursuant to Fla. R. App. P. Rule 9.310, so

Falls Chase applied to the circuit court to vacate the stay,-

and the court did so. Even then Falls Chase's doubts were not

assuaged. As late as May 17, 1982, counsel for Falls Chase and

the other appellees wrote to the Court, with copies to opposing

counsel, calling attention to the "acute financial distress"

his clients were suffering because of the time required for


47











this Court's decision and "the continuing cloud over the use

of their property .

The cause of added expense, delay, and uncertainty in

this case has been the length of time this Court has required

to formulate and debate, through these opinions, this radical

departure from Florida precedent and practice under the APA.

In future cases the cause of added expense, delay, and un-

certainty will be the majority's test for autbhrizing, or not,

preemptive circuit court litigation. Because the majority places

a premium on "the degree of apparent clarity or doubt about

administrative jurisdiction" and on whether the agency's free-form

claims are colorablee" or not, ante at ____ 15], every

appeal from a circuit court preemptive injunction will require

a district court's subjective assessment of a circuit judge's

subjective assessment of "the degree of apparent clarity or

doubt" involved in the substantive question. Mile the parties

wait, the appellate court will debate, not whether the agency

was right or wrong, but whether the agency's free-form position

was colorablee."

Presumably the appellate court will structure its decision

as the majority has structured its: first decide the substantive

question in the conventional way; then, if that decision is

contrary to the agency's free-form position (w aich may or may

not be identical to arguments advanced for the agency in the

litigation), proceed to determine whether the agency's position

was nevertheless colorablee;" if so, reverse t3e injunction and

remit the parties to chapter 120 remedies now rendered moot by the

court's declaration of the law independently of colorablee"

considerations; if not, affirm the injunction. And if the court's

conventional analysis of the. substantive question upholds the

agency's free-form position (.or its appellate arguments), leave

off considering "the degree of apparent clarity or doubt" in

that correct position, reverse the injunction judgment, and

require exhaustion of chapter 120 remedies. Or shall those

remedies then be held, for obvious reasons, unnecessary? In


1 4









that event APA processes are subverted as surely as when the

agency's free-form position is found not colorablee."

These unruly and subjective judgments on "the degree of

apparent clarity or doubt," with all their bizarre results,

will range as widely as the personalities of Florida's ranks

of circuit and appellate judges. How this uncertain process

can be preferred over.straight-forward and expeditious

chapter 120 remedies, in the name of saving time and money,

is beyond my comprehension.

But of course the district courts of appeal have it in

their power to fulfill the majority's expectations of saving

litigants time and money, and freeing up their interests, by

preemptive circuit court litigation; the district courts

need only abdicate entirely their role as agency overseers

under section 120.68, and uncritically affirm, as summarily

as possible, every circuit court injunction.

B. The majority's exhaustion test,
modeled after inappropriate federal
law, preempts the district courts
of--appeal and nullifies section
-120.68 appellate remedies.

The majority's exhausting test contains undeniable and

perhaps irresistible pressures upon the district courts of

appeal, whose stewardship of section 120.68 remedies has

created healthy initiatives in the executive branch, to

abdicate their statutory role. If the controlling issue on

these appeals is now to be whether a circuit judge rightly

deemed the agency's free-form position to be not "colorably"

correct under the law, the drift toward discretionary circuit

court preemption is well established. The district courts

will not long act in the charade of finding circuit courts

right in statutory interpretation but wrong on what is

colorablee," and so wrong in preempting APA processes that

as a result of litigation have become both stale and moot.

Sensing this, parties who strategically prefer circuit

court litigation to chapter 120 processes will have no




49


}









difficulty in framing their attacks on agency free-form

action, addressed to the merits of questions properly before

the agency, in "jurisdictional" terms.

For example, the cases in the following list were

either decided by a district court of appeal on section

120.68 appeal, after agency action, or were required by the

district court to be submitted to chapter 120 agency action

instead of litigated in circuit court. Consider how readily

the issues could have been pleaded in circuit court in a

manner exploiting the majority's license for circuit court

preemption:

ABC Liquors, Inc. v. Department of Business Regulation,
Division of Alcoholic Beverages and Tobacco, 397 So.
2d 696 (Fla. 1st DCA 1981). Hypothetical circuit
court allegation: Because section 565.02 authorizes
an additional tax only if the licensee has "more than
three permanent separate locations serving alcoholic
beverages for consumption on the licensed premises,"
the Department threatens to act in a way not colorably
within its jurisdiction by assessing the tax on four
locations in the same room.

Anheuser-Busch, Tnc. v. Department of Business Regulation,
Division of Alcoholic Beverages and Tobacco, 393 So.2d
1177 (Fla. 1st DCA 1981). Hypothetical circuit court
allegation: Because section 561.42(1) prohibits only
"the giving of a.gift, loan of money or property or the
giving of a rebate," the Department threatens to act
in a way not colorably'within its jurisdiction by
charging that the brewer illegally bought beer for bar
customers.

School Board of Leon County v. Mitchell, 346 So.2d 562
(Fla. 1st DCA 1977). Hypothetical circuit court
allegation: Because a statute granted her tenure,
the Board threatened to act in a way not colorably
within its jurisdiction by abolishing Mitchell's
position.

Harris Corp. v. Department of Revenue, 409 So.2d 91
(Fla. 1st DCA 1982). Hypothetical circuit court
allegation: Despite the clear statutory limitations
period on sales tax assessments, the Department
threatens to act in a way not colorably within its
jurisdiction by assessing taxes barred by the statute.

State of Florida, Department of Citrus, v. Office of
the Comptroller and Department of Banking and Finance,
So.2d [1982 FLW 1061] (Fla. 2d DCA 1982) Hypo-
thetical circuit court allegation: Despite a clear
statutory exemption,- the Department of Banking and
Finance threatens to act in a way not colorably within
its jurisdiction by withdrawing two percent of the
Department of Citrus' interest income for use as
general revenue.

School Board of Nassau County v. Arline, 408 So.2d
706 (Fla. 1st DCA 1982). Hypothetical circuit court
allegation: Despite a clear contractual provision










excusing a teacher's failure to perform her contract
"by reason of personal illness," the Board threatens
to act in a way not colorably within its jurisdiction
by threatening to dismiss her because she has
tuberculosis.

Allis-Chalmers Credit Corp. v. State Department of
Revenue, 408 So.2d 703 (Fla. 1st DCA 1982). Hypo-
thetical circuit court allegation: Despite the clear
statutory application to "Florida sales," the Depart-
ment threatens to act-in a way not colorably within
its jurisdiction by'assessing an income tax on trans-
actions that took place in Atlanta.

General Development Corp. v. Division of State Plann-
ing, Department of Administration, 353 So.2d 1199 (Fla.
1st DCA 1977). Hypothetical circuit court allegation:
Despite a clear exemption under the statute, recognized
previously by the Division, the Division threatens to
act in a way not colorably within its jurisdiction by
threatening regulation of plaintiff's exempt land as
a development of regional impact.

Metropolitan Dade County v. Department of Commerce,
365 So.2d 432,(Fla. 3d DCA 1978). Hypothetical
circuit court allegation: Despite clear statutory
exclusions, the Department threatens to act in a way
not colorably within its jurisdiction by assessing
the County for unemployment compensation contributions
not required by the statute.

The model complaint seeking circuit court intervention

will of course allege, further, that "the facts," meaning the

facts complainant considers the operative facts, "are essentially

undisputed." Majority opinion* ante at [p. 1], text at n.

25. Thus, if this case is any example, .the circuit court is

to be drawn into the merits of the dispute -- impelled, perhaps,

by such groundless and now inoperative allegations as Falls

Chase made concerning the Department's refusal of administrative

remedies -- despite a motion to dismiss for complainant's failure

to exhaust available administrative remedies, and despite any

doubts the judge may initially express concerning intervention

(a Falls Chase memorandum of record lamented that Judge Miner

"seemed persuaded that a complicated question existed")..

It is'unclear when the circuit court in this case announced

denial of the Department's motion to dismiss filed October 2,

1979, since the only written order on that subject is the final

judgment itself, filed November 26, 1979, reciting that the

motion "was previously denied in open court." In the intervening









period numerous presentations were received by the court on

the merits: the Department's answer was filed October 5,

1979, accompanied by a letter from Mr. Cole, the Department's

deputy counsel, saying the answer was filed "even though it

is not required at this time since a Motion to Dismiss is

presently pending," because of and "[i]n order to comply

with Judge Miner's request to expedite the.case"; on October

11, Falls Chase moved to amend its complaint to incorporate

additional factual material, and the court granted that

amendment on November 13, 1979, "10/30/79 nunc pro tunc";

the court received several other memoranda arguments; the

court conducted a hearing on Falls Chase's application for

preliminary injunction; and the court conducted a final

hearing producing the final judgment which recited that

"counsel for the parties to this dispute agree that what the

Court believes to be the threshold issue framed in the

pleadings is now ripe for determination."

In other words, first before and then after orally

denying the Department's motion to dismiss at some unidentified

time, the circuit court explored the merits of the dispute

repeatedly and in depth, gathering additional facts in the

process, pressing the Department's counsel to expedite the

case by pleading to the complaint while the motion to dismiss

was yet pending, and finally announcing that counsel agreed

that "the threshold'issue is now ripe for determination."

At the time the "judgment on the pleadings" was entered,

these loose ends still appeared in the pleadings:

The complaint as amended alleged in paragraph 3 that

appellees Sunshine and Elba own a majority of the land in'

the District. The Department answered that it was without

knowledge of that, so. effectively denied that allegation.

Fla. R. Civ. P. l.110(c). The "judgment on the pleadings"

found as a fact, as has this Court, that Sunshine and Elba

own a majority of the land in the District.

The complaint alleged in paragraph 6(a) that Upper Lake

Lafayette is and has been for 20 years separated from Lake









Lafayette by dams. The Department's answer denied this

allegation insofar as it implied that "Upper Lake Lafayette

"is not a lake and is not a part of Lake Lafayette." Since

the complaint contained no allegation that Upper Lake Lafayette

is not navigable, let alone that Lake Lafayette is not

navigable, the latent issue of sovereignty lands was never explored

in the circuit court's two-month process of warming to the

merits of the case. The November 26 final judgment recites:

Neither party has asserted that the lake is
navigable and subject to regulation under Chapter
253, Florida Statutes, and the state's sovereignty
powers as Trustees .for submerged lands of navigable
water bodies.

This finding becomes, in the majority opinion, ante at

[p. 2],

It is stipulated by the parties that there
are no sovereignty lands involved in this dispute.

Paragraph 6(c) of the complaint alleged "All of the work

being done by Plaintiff District upon private property, including

Plaintiff corporations' land, is on 'uplands' according to

rules of the Defendant Department." This allegation the Department

denied. Yet the circuit court's "judgment on the pleadings"

accepted the, allegation as trde, as does this Court. [Notice

how agencies are moved to adversariness when they are required

to state their positions through lawyers in circuit court.rather

than by declaratory statements or orders, signed by agency heads,

in chapter 120 proceedings. The Department had freely conceded

in free-form proceedings with Falls Chase, during the previous

winter, that there was no indexed vegetation where Falls Chase

sought to fill Upper Lake Lafayette. In circuit court, of

course, the Department was entitled to put Falls Chase to proof.]

Thus it is seen how the agency, asserting all the while

that no basis for preempting the administrative process has

been shown, may incrementally be required to state in circuit

court the factual basis for its free-form position or else

be held bound in a paper trial by unpleaded or unproved factual

assertions of a party seeking circuit court preemption of

chapter 120 processes.


|
J


C-









This kind of thing is inevitable, I submit, when the

.exhaustion question is no longer whether adequate chapter

120 remedies are available, and when the circuit courts are

asked instead to form a subjective impression of "the degree

of apparent clarity or doubt" about the extent of the agency's

regulatory power. And after such a serial trial as this,

ostensibly conducted "on the pleadings" over a two-month

period, it cannot be supposed that the district courts of

appeal will seriously regard the futile role the majority

opinion reserves for them, to reverse circuit court injunctions

where the agency's free-form position is thought to be

colorablee," and to require exhaustion of chapter 120 remedies,

even if the circuit court's judgment is deemed substantially

correct as a matter of statutory construction. Thus, circuit

court discretion in assessing "the degree of apparent clarity

or doubt" inevitably reigns supreme, and Professor Davis'

grim assessment of federal law applies as well to Florida's

heretofore honored and still unimpeached exhaustion principle.

K. Davis, Administrative Law Treatise 5 20.11 at 279-80 (1982

Supp.):

Since 1975 the [federal] law of exhaustion has
become even more disorderly than it previously
was. The lack of predictability is strong
enough to raise the question whether the require-
ment is governed by discretion rather than by law.

In this milieu the circuit court:displaces the district

court of appeal in effective control of agency action, and

since the action to be reviewed is free-form only, by a court

having no direct access to chapter 120 remedial processes, there

is no place for the delicate touch to which the district courts

have become accustomed, promoting agency responsibility and

sensitivity through McDonald devices as they have evolved these

past five years -- orders for rulemaking, for expository orders

by agencies, for creating a record foundation. There is, instead,

only the extraordinary and blunt-edged'writ of injunction to

desist.

Now it is clear why, for two distinct reasons, the indigestable




(


federal exhaustion law, whether or not warmed over b1y national

textbook writers who know no other source of law, should not

be swallowed by Florida courts. First, as indicated ante

n. 6, federal law is handicapped by the absence of a reliable

declaratory statement remedy, available as of right in section

120.565 to resolve questions of statutory applicability (or,

as the majority prefers, agency "jurisdiction") long before

anyone is damaged or delayed by free-form action. And second,

federal law disperses judicial responsibility to review

administrative action willy-nilly, on a statute by statute

basis, to various United States district courts and to the

courts of appeal. Thus 5 U.S.C. S 702 ("Right of review")

provides:

A person suffering legal wrong because of
agency action, or adversely affected or aggrieved
by agency action within the meaning of a relevant
statute, is entitled to judicial review thereof. .

And 5 U.S.C. S 703 ("Forum and venue of proceeding") provides:

The form of proceeding for judicial review
is the special statutory review proceeding relevant
to the subject matter in a court specified by statute
or, in the absence or inadequacy thereof, any appli-
cable .form of legal action, including actions for
declaratory judgments or writs of prohibitory or
mandatory injunction or habeas corpus, in a court
of competent jurisdiction.

The federal condition, as regards choice of forum for

judicial review, is therefore much like Florida's condition

before 1974, when the'legislature repealed or replaced "the

baffling array of disparate statutes" providing judicial review

"by various means in various courts," and replaced that

disharmony with uniform and comprehensive review in the

district courts of appeal. Willis, 344 So.2d at 587-88.

Compare Currie and Goodman, "Judicial Review of Federal

Administrative Action: Quest for the Optimum Forum," 75 Colum.

L. Rev. 1, 3 (1975):

The aim of this Article (88 pages] is to
explore the considerations that determine which
federal administrative actions are best reviewed
by the district courts, which by the courts of
appeals, and which by separate courts of admini-
strative review.







-4



Compare also' note, "Jurisdiction to Review Federal Administrative

Action: District Court or Court of Appeals," 88 Harv. L. Rev.

980 (1975):

Sometimes such review can be obtained initially
in a court of appeals and in other cases in a district
court. Uncertainty as to which forum is proper may
cause a litigant to seek review in the 'wrong' court.
This Note explores ..

Small wonder, then, that there are few incentives for

federal courts to discipline themselves through a meaningful

exhaustion requirement: federal litigants do not have

access as of right to declaratory statements and other

"varied and abundant remedies for agency error," Willis, 344

So.2d at 590, contained in chapter 120; and because it makes

little difference in the overall scheme of federal law where

agency action is reviewed, it makes even less difference

when and how it is reviewed. Contrast section 120.68. If

preserving Florida's exhaustion rule were not compelled by

reason, preserving it would be compelled by pride.

C. The majority's decision encouraging
preemptive circuit court litigation also
encourages forum shopping among the circuits.

This reemptive litigation occurred in Leon County because

Upper Lake Lafayette is there and the Department is headquartered

there. But given a plaintiff's choice from among appropriate
(16)
venues and the "sword wielder" doctrine that allows

local circuit litigation by one whose locally based interests

are considered imminently threatened from Tallahassee, the

shopping list of fora for preemptive circuit court litigation

against an agency is lengthened to include any of Florida's

20 circuits. Correspondingly the range of discretion inevitably

invoked by the question, "degree of apparent clarity or

doubt," is as broad as the discretion of any of Florida's

300 circuit judges.

Forum shopping'is not a privilege reserved to those who

like their chances better in one circuit court or another.










Others having party status, which Saltiel and Clean Water,

Inc., sought in this case, may in their own interests prefer

conventional chapter 120 processes. So when parties of

different persuasions are involved, there follows an unseemly

race and wasteful litigation to decide which foothold has

been established first or best. Again the federal system is

a striking and distressing model for the litigation fomented

by the majority. See McGarity, "Multi-party Forum Shopping

for Appellate Review of Administrative Action," 129 U. Pa. L. Rev.,

302, 305 (1980) (describing "wild and often bizarre races to

the courthouse.")


The supreme goal of the Administrative Procedure Act of

1974 is increased initiative and self-discipline within the

executive branch. All its remedies press toward that goal,

as McDonald and its progeny make clear. When as here those

remedies are preempted that goal is the first and most

important casualty. Where chapter 120 promotes agency

responsibility, changing the agency head's mind if that is

indicated, we have seen that collateral litigation values

instead the polarized position, the fixed stance. For litigation

to justify itself on the dour assumption, expressed or

implied, that the agency "will not change its mind" in APA

proceedings, describes the inevitable condition of litigants,

not the experience of agencies under chapter 120. For

collateral litigation to justify itself on the pretense of

saving time and money, when litigation gulps both more time

and more money, to vastly more uncertain ends, is judicial

self-deception.

The case may one day come when the judiciary shall have

cause to doubt the efficacy of chapter 120 remedies and the

exhaustion principle. Florida's firm commitment to the

efficacy of those remedies is, in a sense, a new idea, one









that thus far has yielded a generous harvest. In time it

too may be required, in turn, to give way. As poet and
(17)
critic W. D. Snodgrass wrote,

That is understandable. We have done much
magnificent theorizing about the world; the world
remains a mystery. Man may become extinct, tyranny
may prevail, your business fail, your wife leave
you, tomorrow. There is a strong possibility that
no idea works all the time. All the ideas carry
guarantees, of course; the only trouble is that
nobody knows where you go to get your money, or
your life, back. This terrifying possibility that
no idea always works is suggested every time someone
offers us a new fact or a new idea.

Conceding the uncertainties of the future, I am firmly

of the opinion that this case offers us no new fact or new

idea worthy of supplanting the exhaustion principle. I

would reverse the circuit court, and I therefore respectfully

dissent.











FOOTNOTES:

(1) The Department's various communications to Falls Chase,
including its stop-work directive of August 9, 1979, was
"free-form" action only, those "necessary or convenient
procedures, unknown to the APA, by which an agency transacts
its day-to-day business." Capeletti Bros., Inc. v. Dept. of
Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978),
cert. den., 368 So.2d 1374 (Fla. 1979). Formal enforcement
of chapter 403 required the Department to institute circuit
court proceedings for injunctive relief, fines or damages.
Sections 403.131, .141, .121(1), Fla. Stat. (1979). The
Department also might have instituted administrative proceedings
to establish liability and damages for water pollution,
subject to court enforcement, or to abate the violations.
Section 403.121(2), Fla. Stat. (1979).

(2) K. Davis, Administrative Law Treatise 20.11 at 279,
283 (1982 Supp.).

(3) Id. at 296.

(4) The Department considered Lake Lafayette a "lake," as
the term is used in section 403.031(3), Florida Statutes
(1979), defining "waters" subject to the Department's
regulation. Its counsel pointed out that Rule 17-4.28,
Florida Administrative Code, stated that the Department had
authority over dredge-and-fill activities in "natural lakes,"
with certain inapplicable exceptions. Under Rule 17-4.28(2),
he continued, the Department also had dredge-and-fill jurisdiction
over "submerged lands," including both lake bottoms and the
areas at the edge of lakes. The Department concluded that
the statutory vegetation list was useful only to identify
submerged lands at the edge of lakes, but that lake bottoms
were subject to regulation even in the absence of such
vegetation. In the case of Lake Lafayette, the Department
said the ordinary hich water line, the common law boundary
determining the extent of sovereignty waters, identified the
extent of the lake bottom subject to chapter 403 regulation.

(5) The joint Administrative Procedures Committee reviews
the statutory bases for agency rules and provides general
legislative oversight of administrative action. Section
11.60, Fla. Stat. (1981).

(6) 5 U.S.C. S 554(e) provides:

The agency, with like effect as in the
case of other orders, and in its sound dis-
cretion, may issue a declaratory order to
terminate a controversy or remove uncertainty.
(Emphasis added).

A federal agency is not required to issue a declaratory
order if asked, unless failure to do so is a clear abuse of
discretion. Yale Broadcasting Co. v. Fed. Cornnunications
Comm'n, 478 F.2d 594, 602 (D.C. Cir. 1973), cert. den., 414
U.S. 914, 94 S.Ct. 211, 38 L.Ed.2d 152 (1973[.

(7) Chapter 28-4, Fla. Admin, Code.

(8) Section 403.121(2) (b), Fla. Stat. (1979)

If the department has reason to believe
a violation has occurred, it may institute
an administrative proceeding to order the
prevention, abatement, or control of the
conditions creating the violation or other
appropriate corrective action.






2


1,


(9) To remedy chapter 403 violations section 403.121(1)(a)
provides:

The department may institute a civil action
in a court of competent jurisdiction to establish
liability and to recover damages for any injury
to the air, waters, or property, including animal,
plant, and aquatic life, of the state caused by
such violation.

The Department also may seek injunctive relief in a circuit
court, under section 403.131, Fla. Stat., and fines under
section 403.141, Fla. Stat; After Falls Chase took its case
to circuit court, the Department did file, subject to its
motion to dismiss for failure to exhaust administrative
remedies, a counterclaim for injunctive relief and fines
from the Falls Chase developers for dredge-and-fill activities
they had undertaken without a permit below the ordinary high
water line of the lake.

(10) Falls Chase contracted to build the water and sewer
systems at the end of June, after the Department issued a
permit for the sewer system. But the Department stayed that
permit on July 9, 1979, to allow an appeal by third parties.
Falls Chase then claimed interest on its sewer bonds was
accruing at $450 a day, and that total interest on all its
bond issues for projects dependent on sewer lines was accruing
at $1,450 daily. The Department's Secretary found in its
July 9 order staying the permit that the "largest specific
and direct operational cost" to Falls Chase as a result of
the stay would be attorney's fees.

(11) A party seeking review was required to file a notice
of appeal within 15 days of receiving the document representing
final agency action. Rule 17-1.72(1), Fla.. Admin. Code.
Appellant was required to file an initial brief within 20
days of the filing of notice of appeal. Rule 17-1.74(1).
Appellee's answer brief was due 15 days later, and appellant's
reply brief, if any, was due.l0 days later. Rule 17-1.74(2),
(3), Fla. Admin. Code.

(12) The judgment on the pleadings recites that the motion
to dismiss for failure to exhaust administrative remedies
was "not well-founded" and that the court had "denied it in
open court." The judgment did not discuss the factual
issues on that subject made by the complaint and the answer
filed before the motion to dismiss was denied.

(13) After reciting that the motion to dismiss had been
denied "in open court" the judgment stated, "the parties to
this dispute agree that what the Court believes to be the
threshold issue framed in the pleadings is now ripe for
determination." There is no suggestion here that the
Department abandoned its insistence on exhaustion of admini-
strative remedies; presumably its "agreement" was that if
the court was going to decide the case there was no reason.
for delay.

(14) The commission found that the petition for a section
120.57 hearing substantially re-alleged claims previously
raised and denied by the Department earlier on May 11.
Accordingly the Commission held the appeal untimely because
not filed within 15 days of the May 11 order. Rule 17- ..
1.72(1), Fla. Admin. Code. This Court later reversed the
Commission's order of dismissal, finding that the third
parties had been denied a clear point of entry to challenge




J ;-'- ..--- -. "- -- -_ __. 4







the arrangement between Falls.Chase and the Department, by
stipulation dated May 15, allowing construction to proceed
subject to after-the-fact regulation of dredge-and-fill
below the high water line later identified. Clean Water,
Inc. v. Dept. of Environmental Regulation, 402 So.2d 456
(Fla. 1st DCA 1981).

(15) 344 So.2d at 590.

(16) E.g., Graham v. Vann, 394 So.2d 178 (Fla. 1st DCA
1981) ; Dept. of Revenue v..Arvida Corp., 315 So.2d 235 (Fla.
2d DCA 1975), cert. dism., 336 So.2d 1181 (Fla. 1976);
Swinscoe v. Dept. of Revenue, 320 So.2d 11 (Fla. 4th DCA
1975), cert. dism., 337 So.2d 976 (Fla. 1976).

(17) W. D. Snodgrass, "Tact and the Poet's Force," in In
Radical Pursuit, Critical Essays and Lectures 7 (1977T












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