DATE: October 27, 1988
RE: Chronology of Attorney General's Knowledge of
Board of Professional Land Surveyor's OHWM Rulemaking
Attorney General Butterworth's and DNR's involvement in the Board
of Professional Land Surveyors' OHWL rulemaking process.
The Attorney General has knoweof the Board of Professional Land
Surveyors' involvement in OHWL rulemaking since the April 6, 1988.
meeting. The Attorney General has had someone from his office or
from DNR in attendance at each of the public workshops and the
public hearing on the Board's proposed rules. The Attorney
General's office has been receiving memoranda and information
from the Board since early on in the rulemaking proceedings.
On or about April 6, 1988, a meeting was held with Attorney
General Butterworth, Senator Ben Hill Griffin, Jr., Joe Marlin
Hilliard, Joseph Duda, and Charles P. Lykes, Jr., and L. M. Buddy
Blain. At this meeting, Mr. Blain presented his opinion that the
Board of Professional Land Surveyors was the only state agency to
have authority to write OHWM survey rules. Pursuant to the
Attorney General's request, Mr. Blain forwarded a copy of a
memorandum supporting this conclusion to the Attorney General on
April 8, 1988. The Attorney General's office has not responded
to this memorandum.
On May 11, 1988, the Board of Professional Land Surveyors held
their first public workshop on the OHWL survey rule. Terry
Wilkinson of DNR's Bureau of Survey and Mapping attended the
meeting. In addition, David Gibson and Richard Hamann, who have
been contracted to draft a DNR OHWL surveying manual, also
attended the meeting.
At the workshop, Susan Proctor, Assistant Attorney General who is
counsel for the Board of Professional Land Surveyors, advised
that the DNR requested an Attorney General's opinion on which
state agency had the authority to write OHWL rules. She
recommended deferring the Board's rulemaking on OHWL until the
opinion was issued.
Blain & Cone, P.A. I27 1
On June 1, 1988, the Attorney General issued an opinion that
concluded that the Board of Trustees of the Internal Improvement
Trust Fund has sufficient authority to promulgate OHWL rules.
Prior to the next public workshop on June 8, 1988, Anita Bronson,
secretary for the Board, sent a memo to all Board members, with
extra copies to Diana Dartland, Deputy Director of DNR, Bob
Travison of the Attorney General's office, and Susan Proctor,
Assistant Attorney General. This memo includes a memorandum by
Bob Feagin, dated June 3, 1988, and a letter by Dan Gentry
enclosing his draft of the OHWL rule.
On June 20, 1988, the Board held an OHWL rule committee meeting
attended by Ronald Stowers, Assistant Attorney General, Terry
Wilkinson of DNR's Bureau of Survey and Mapping, and Bob Travison
of the Attorney General's office.
The next public workshop on the OHWL rule was held by the Board
on July 13, 1988. This meeting was attended by Doug Thompson of
DNR; however, he did not place his name on the sign-up sheet at
At the July 13, 1988,workshop, Assistant Attorney General Susan
Proctor stated that the Board has authority to develop an OHWL
rule, unaffected by any rulemaking authodty of the Trustees.
On July 27, 1988, the Northwest Florida Water Management
District's Lands Committee held an OHWL workshop. Both Tetrry
Wilkinson of DNR and L.M. Buddy Blain made presentations on the
OHWL rulemaking effort by DNR and the Board.
On August 1, 1988, the Attorney General's office took an active
role in the Board's OHWL rulemaking procedure by removing
Assistant Attorney General Susan Proctor from representing the
Board on this matter. In a letter dated September 2, 1988,
confirming a telephone conversation between Bruce Lamb, acting
General Counsel for the Department of Professional Regulation,
and Mitchell Franks, General Legal Service Director of the
Attorney General's office, Mr. Franks stated that DNR was working
on its own OHWL rule. Accordingly, because of the role played by
the Attorney General's office in the Peace River litigation and
the extensive work DNR has done on this issue, the Attorney
General felt it was a conflict for them to provide legal services
to the Board on the OHWL rule.
At the August 4, 1988,public workshop, Assistant Attorney General
Susan Proctor stopped representing the Board on the OHWL rule
issues. At this meeting, Charles Tunnicliff, General Counsel for
the Department of Professional Regulations, addressed the Board,
instructing them to hire a private attorney to represent them on
OHWL issues. The Attorney General waited until August 2, 1988,to
contact the Department of Professional Regulation of a possible
conflict, leaving the Board with only two days prior to its
August 4, 1988,meeting to determine who would represent them.
Blain & Cone, P.A.
On September 2, 1988, the Board published notice of adoption of
its minimum technical standards, including the OHWM rules, in
Florida Administrative Weekly. Following the notice, on
September 19, 1988, a memorandum from Kenneth Plante, acting
General Counsel of DNR, to all Cabinet Aides stated that DNR,
acting upon consultation with the Attorney General's office, had
decided to file a Petition to oppose the Board's OHWM rules.
On September 23, 1988, the Attorney General's office and DNR on
behalf of the Trustees filed its Petition to challenge the
Board's proposed OHWL rules.
At the public hearing held on September 30, 1988, adopting the
minimum technical standards, Jonathan Glogau, Assistant Attorney
General, made a presentation opposing the Board's adoption of the
rule. Also in attendance from the Attorney General's office at
the meeting were Diana Swaya-Crane and Ronald Stowers. Ross
Burnamen, an attorney from DNR, was also at the meeting.
Therefore, the Attorney General's office has had knowledge of and
has been involved in the Board of Professional Land Surveyors'
OHWM rulemaking process since its beginning.
Blain & Cone, P.A. 3