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Administrative Law Judge rules that Petitioner cannot challenge rule for what is not in the rule

Published: January 12th, 2018

John L. Wharton

In the case of Pelican Bay Foundation v. Florida Fish and Wildlife Conservation Commission, Pelican Bay argued that the Commission’s proposed rule should be invalidated based on the fact that a particular waterbody, the Clam Bay system in Collier County, was not included within the rule’s proposed slow speed zones.

Prior to hearing, the City of Naples, an Intervenor in the case represented by Dean Mead & Dunbar, moved to dismiss the petition on the basis that Pelican Bay’s challenge (which did not challenge what the proposed rule included but rather what it did not include) was not contemplated by the Florida Administrative Procedure Act (APA). The City’s interest was to protect the slow speed zones for manatees which were proposed to be included in the challenged rule. The Motion to Dismiss was denied and the matter proceeded to hearing. After hearing, the parties presented their Proposed Final Orders to the Administrative Law Judge (ALJ). In its Proposed Final Order, the City renewed its argument that the unique basis of Pelican Bay’s rule challenge sought a remedy which the ALJ could not grant under the APA.

On January 10, 2018 the ALJ entered a Final Order of Dismissal, holding that “after further consideration, it is concluded that Intervenor’s motion to dismiss was meritorious.” Finding that “(i)t is not a proper remedy, and the Administrative Law Judge lacks legal authority, to undo the protection for manatees that the Commission established for several waterbodies in Collier County, when no objection has been raised regarding these waterbodies…,” the ALJ ordered the rule challenge petition dismissed. The ALJ recognized the uniqueness of the case noting that “(n)o reported decisional law was found involving a similar scenario.”

The ALJ’s order can be found at :

https://www.doah.state.fl.us/ROs/2017/17002570.pdf

About the Author:
John L. Wharton is a member of Dean Mead’s Administrative Law and Business Litigation departments and the Governmental Relations and Lobbying Industry Team. He represents both public and private clients in cases from application creation to administrative litigation before state and federal agencies. He also practices general litigation in state and federal courts. Mr. Wharton has over 30 years of experience in Tallahassee practicing before and often litigating against numerous state agencies in the areas of water resource planning; permitting and regulation; mitigation banking; utility law and utility regulation; professional regulation and environmental law. He may be reached at jwharton@deanmead.com.