STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH CUTTER,

)
)
Petitioner,
)
)
and
)
)
AMERICAN CANOE ASSOCIATION, INC.,
)
)
Intervenor,
)
)
vs.
)
)
DEPARTMENT OF ENVIRONMENTAL
)
PROTECTION and BUCKEYE FLORIDA, L.P., )
)
)
Respondents.
)
______________________________________)
JOSEPH REDMOND CUMMINGS; JOY TOWLES
)
CUMMINGS; REBECCA S. EDWARDS; KAY E. )
FRYSINGER; WILLIAM A. GRANTHAM; LEO
)
V. LOVEL; BEN B. LOVEL; DANNY R.
)
METCALF, SR.; BOB NICHOLS; SARAH P.
)
PARIS; DIANA PINNER; SUE SMYRNIOS;
)
and WARRIOR CREEK DEVELOPMENT, INC., )
)
Petitioners,
)
)
and
)
)
AMERICAN CANOE ASSOCIATION, INC.,
)
)
Intervenor,
)
)
vs.
)
)
DEPARTMENT OF ENVIRONMENTAL
)
PROTECTION and BUCKEYE FLORIDA, L.P., )
)
Respondents.
)
______________________________________)

Case No. 97-2902

Case No. 97-4439

ORDER DENYING MOTION FOR SUBSTITUTION
and RELINQUISHING JURISDICTION IN CASE NO. 97-2902
On May 20, 2005, Respondent Buckeye Florida, L.P., filed a
motion to dismiss the petition in Case No. 97-2902 on the ground
that the case is moot because of the death of Petitioner,
Joseph L. Cutter. Attached to the motion is a certified copy of
the Certificate of Death that lists as the date of death,
November 22, 2002.
A response and a motion for substitution were filed on
May 24, 2005 "[o]n behalf of the estate of Joseph L. Cutter,
through his surviving spouse and personal representative
Sharon Cutter in the name of Joseph L. Cutter." There is no
dispute, therefore, that Joseph L. Cutter is deceased. The
response was also filed on behalf of Intervenor American Canoe
Association, Inc. ("American Canoe.")
The motion for substitution seeks to have Mrs. Cutter
substituted as party Petitioner in the name of Mr. Cutter and
that notice and a reasonable amount of time be given under
Florida Rule of Civil Procedure 1.260 to the Board of Trustees of
the Internal Improvement Fund "individually or collectively, to
substitute . . . additional parties." The response and motion
for substitution was followed by a notice of supplemental
authority "[o]n behalf of Sharon Cutter, individually and as
proposed substitute party Petitioner in the name of Joseph L.
Cutter."
On May 31, 2005, Buckeye filed a response in opposition to
Petitioner's motion for substitution.
All filings of the parties have been considered.
DISCUSSION
a.

Factual Background

The initial petition in this case, filed at DOAH on June 20,
1997, bears a stamp that shows a filing with the Department on
June 9, 1997. It was signed, pro se, by the late Joseph Cutter.
It was also signed by Sharon Cutter, Mr. Cutter's spouse.
In the initial petition, Mr. and Mrs. Cutter identified
themselves as "residents of Taylor County, whose substantial
interests are affected by the Department's proposed
recommendation to the Board of Trustees of the Internal
Improvement Trust Fund that they grant a sovereignty submerged
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lands authorization easement to Buckeye . . . for two subaqueous
pipeline river crossings and an outfall/diffuser structure."
The initial petition referred to the notice received by
petitioners as follows: "Petitioner Sharon Cutter received
notice of the agency action on May 15, 1997 and May 31, 1997,
from the Department of Environmental Protection by Certified
Mail. Petitioner Joseph Cutter received notice of the agency
action through his wife Sharon Cutter on May 31, 1997."
Specific mention of interests in the proposed agency action
of any family members other than Joseph and Sharon Cutter was not
made in the initial petition.
On May 21, 1997, a notice entitled "State of Florida[,]
Department of Environmental Protection[,] Notice of
Recommendation to Grant Easement" was published in The Taco
Times, a newspaper of general circulation in the affected area,
otherwise described as a local newspaper published weekly in the
City of Perry, Taylor County, Florida (see Exhibit "A" to
Buckeye's Response to Cross-Motion for "Substitution.") The
notice was of the Department's "intent to recommend to the Board
of Trustees of the Internal Improvement Trust Fund that they
grant [the easement] to Buckeye . . .". (Exhibit "A" to
Buckeye's Response to Cross-Motion for "Substitution.")
On September 15, 1997, counsel for Petitioners filed
"Petitioner Sharon F. Cutter's Notice of Withdrawal,"
representing that Sharon Cutter was giving notice of withdrawal
under Florida Administrative Code Rule 60Q-2.036. The notice of
withdrawal was filed four days after the issuance of the
Recommended Order in DOAH Case No. 97-0692 in which the
Administrative Law Judge had found that Mrs. Cutter lacked
standing to challenge an environmental resource permit for the
same construction project at issue in this case.
The withdrawal of Sharon Cutter left Joseph Cutter as the
case's only petitioner. On September 22, 1997, counsel for
Petitioner filed a motion to amend the petition. The motion
stated the proposed amended petition was "to reflect the current
petitioner, to place the petition in standard petition form, and
to reflect the Petitioner's statement of his case to be advocated
at final hearing." (e.s.)
No attempt was made to add additional parties as petitioners
in the wake of Sharon Cutter's withdrawal.

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a.

Motion for Substitution

Neither the Administrative Procedure Act nor the Uniform
Rules in Florida Administrative Code Chapter 28-106 address
substitution of a party.
Rule 1.260, Florida Rules of Civil Procedure, provides a
procedure for the substitution of a party "[i]f a party dies and
the claim is not thereby extinguished," but the Rule does not
apply to this administrative proceeding.
Chapter 120, Florida Statutes, makes reference to the Rules
of Civil Procedure in Section 120.569(2)(f), "[t]he presiding
officer has the power to . . . effect discovery on the written
request of any party by any means available to the courts and in
the manner provided in the Florida Rules of Civil Procedure,
including the imposition of sanctions, except contempt" and in
Section 120.569(2)(k)2., with regard to circuit court actions for
enforcement of a subpoena or an administrative order related to
discovery or administrative sanctions.
Chapter 120, Florida Statutes, has not made Rule 1.260,
Florida Rules of Civil Procedure, applicable to administrative
proceedings under Chapter 120. Hence, it has no applicability to
this proceeding. See, e.g., Systems Management Associates, Inc.
v. State, Department of Health and Rehabilitative Services, 391
So. 2d 688 (Fla. 1st DCA 1981).
Mrs. Cutter and Intervenor, through counsel for Petitioner,
argue that disallowance of Mrs. Cutter as a substitute petitioner
in this case is a denial of due process. No property right has
been identified by Mrs. Cutter and Intervenor in support of the
argument.
In response, moreover, Buckeye cites to Peoples Bank of
Indian River County v. Department of Banking and Finance, 395 So.
2d 521 (Fla. 1981) for the proposition that the legislature may
determine by what process and procedure legal rights may be
asserted and determined, provided that the procedure adopted
affords reasonable notice and a fair opportunity to be heard. In
furtherance of this argument, Buckeye also cites to Section
403.815, Florida Statutes. It concerns notice by publication in
a newspaper of general circulation of proposed agency action on
permit applications, as was done in this case, and states, "The
failure to request a hearing within 14 days after publication of
notice of proposed agency action constitutes a waiver of any
right to a hearing on the application under ss. 120.569 and
120.57."
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Petitioner and Intervenor also seek support for substitution
in Section 46.021, Florida Statutes. It provides "No cause of
action dies with the person. All causes of action survive and
may be commenced, prosecuted, and defended in the name of the
person prescribed by law." While the term "cause of action" is
associated with certain judicial proceedings, see Shearn v.
Orlando Funeral Home, 88 So. 2d 591, 593 (Fla. 1956); Windsor v.
Migliaccio, 399 So. 2d 65,66 (Fla. 5th DCA 1981); and, D.M. v.
J.D.M., 814 So. 2d 1112, 1115 (Fla. 4th DCA 2002), no authority
is cited by movant for the proposition that an administrative
proceeding is a "cause of action".
Mrs. Cutter and Intervenor invoke Florida Administrative
Code Rule 28-106.211: "The presiding officer before whom a case
is pending may issue any orders necessary to . . . promote the
just . . . determination of all aspects of the case, including
bifurcating the proceeding." Substitution of a party is not the
type of order contemplated by this rule.
In short, there is no authority in statute or rule to allow
for substitution of Joseph Cutter by Sharon Cutter in this
proceeding. Unless created by the Constitution, an
administrative agency has no common law powers, and has only such
powers as the legislature chooses to confer upon it by statute.
S.T. v. School Board of Seminole County, 783 So. 2d 1231 (Fla.
5th DCA 1231. See also Mathis v. Florida Department of
Corrections, 726 So. 2d 389, 391 (Fla. 1st DCA 1999); State ex
rel. Greenberg v. Florida State Board of Dentistry, 297 So. 2d
628, 636 (Fla. 1st DCA 1974).
There being no statutory authority to substitute Mrs. Cutter
or anyone else as a party for petitioner, the motion for
substitution is denied.
b.

Motion to Dismiss

Parties are defined in Chapter 120, Florida Statutes, inter
alia, as persons "whose substantial interests are being
determined in the proceeding" and as "[a]ny other person ...
whose substantial interests will be affected by proposed agency
action, and who makes an appearance as a party." Section
120.569, Florida Statutes, applies "in all proceedings in which
the substantial interests of a party are determined by an
agency."
To have standing to bring a proceeding under Section
120.569, Florida Statutes, a party must show that the party's
substantial interests will be affected. To do so, the party must
demonstrate that: a. the party will suffer an injury in fact of
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sufficient immediacy and, b. the party's substantial injury is of
the type or nature which the proceeding is designed to protect.
Agrico Chemical Co. v. Department of Environmental Regulation,
406 So. 2d 478, 482 (Fla. 2d DCA 1981), rev. den., 415 So. 2d
1359 (Fla. 1982).
The allegations in the amended petition filed September 22,
1997, (that substantially reiterate the allegations in the
original petition) with regard to Joseph Cutter's substantial
interests are as follows:
Petitioner's substantial interests are
affected by DEP's action as follows:
Petitioner and his family reside near the
Fenholloway Estuary and adjacent coastal
waters of the Gulf of Mexico. The proposed
private easement for Buckeye will make
possible a pipeline that will do lasting
damage to Petitioner and his family.
Petitioner and his family use the Fenholloway
Estuary and adjacent coastal waters for
recreational purposes, and the adjacent
coastal waters for fishing purposes.
Petitioner and his family would also use the
Fenholloway Estuary for fishing, if Buckeye's
pollution did not render this futile and/or
dangerous. Petitioner and his family have
been curtailed in their use of public
resources by the pollution from the Buckeye
facility. Petitioner is concerned that the
proposed pipeline made possible by the
easement will further render the habitat in
the Fenholloway Estuary unproductive as a
food source, spawning area, and nursery for
fish species, and thereby have a detrimental
affect on fishing. Petitioner is also
concerned that other recreational uses, such
as swimming, will be adversely impacted due
to Buckeye's polluting conditions made
possible by the pipeline, which could result
in fish kills and other harmful and noxious
conditions affecting the natural resources
and scenic beauty. Petitioner is concerned
the pollution from the Buckeye facility will
result in damage to the overall ecological
health and productivity of the Fenholloway
Estuary and adjacent coast waters.
Petitioner is concerned that because of the
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pipeline to the Fenholloway Estuary, little
or no water will be left in substantial
stretches of the Fenholloway River during
substantial periods of the year, inhibiting
Petitioner and his family from navigation,
recreation, and fishing of the Fenholloway
River and the groundwater aquifer from
recharging. Petitioner is concerned that the
construction of the pipeline will deprive him
and his family of access to and from
Peterson's Landing and further deprive him
and his family of public access the Gulf of
Mexico. Petitioner is concerned about the
impact of construction and operation of the
pipeline on wildlife, including the Florida
manatee, and osprey that nest in the area of
Peterson's Landing.
All of these allegations relate to the use of public resources in
the area near the mouth of the Fenholloway River and its estuary
by Mr. Cutter and his family for recreation, fishing, enjoyment
of wildlife.
Buckeye asserts in its motion that the Petitioner's request
for administrative hearing is moot as a result of the death of
Petitioner. The definition of "mootness" is discussed in
Montgomery v. Department of Health and Human Services, 468 So. 2d
1014 (Fla. 1st DCA 1985):
Mootness has been defined as "the doctrine of
standing set in a time frame: The requisite
personal interest that must exist at the
commencement of the litigation (standing)
must continue throughout its existence
(mootness)." Monaghan, Constitutional
Adjudication: The Who and When, 82 Yale L.J.
1363, 1384 (1973), quoted with approval in
United States Parole Commission v. Geraghty,
445 U.S. 388, 397, 100 S.Ct. 1202, 1209, 63
L.Ed.2d 479, 491 (1980). Mootness occurs in
two basic situations: "[W]hen the issues
presented are no long 'live' or [when] the
parties lack a legally cognizable interest in
the outcome." Powell v. McCormack, 395 U.S.
486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d
491, 502 (1969).
Id. at 1016.
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While Mr. Cutter may have had standing to commence this
administrative proceeding, his requisite personal interest in the
outcome no longer continues. The issues may continue to exist
but his death leaves the case without a petitioner with a legally
cognizable interest in the outcome.
As discussed, above, the argument is made that the reference
to Mr. Cutter's family in the allegations of the petition should
allow family members to be substituted as a party for the
decedent. Originally, Mrs. Cutter was a petitioner in this
proceeding but she withdrew her petition. No other family
members joined in Mr. Cutter's petition.
In Montgomery, above, at 1017, the court ruled that, unless
the case is a class action, even had the parties for whom the
case had become moot attempted to assert the interests of others,
the fact that the issues raised are moot as to the initiator of
the proceeding requires dismissal.
The intervention of American Canoe does not assist
opposition to the motion to dismiss. The rights of American
Canoe as an intervenor are subordinate to the rights of the
parties; with no remaining petitioner, the claims asserted by
American Canoe are foreclosed. Environmental Confederation of
Southwest Florida, Inc. v. IMC Phosphates, Inc., 857 So. 2d 207,
211 (Fla. 1st DCA 2003); Humana of Florida, Inc. v. Department of
Health and Human Services, Inc., 500 So. 2d 186 (Fla. 1st DCA
1986).
The case is moot and accordingly, should be dismissed. See
also Holcroft v. Agency for Health Care Administration, DOAH Case
No. 94-5767RP, (Final Order issued December 15, 1994).
Jurisdiction is relinquished to the Department of
Environmental Protection for entry of a final order consistent
with this order.

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DONE AND ORDERED this 7th day of June, 2005, in Tallahassee,
Leon County, Florida.

S
DAVID M. MALONEY
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
SUNCOM 278-9675
Fax Filing (850) 921-6847
www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this 7th day of June, 2005.

COPIES FURNISHED:
Terry Cole, Esquire
Oertel, Fernandez, Cole & Bryant, P.A.
301 South Bronough Street, Fifth Floor
Post Office Box 1110
Tallahassee, Florida 32302-1110
Steven A. Medina, Esquire
Levin, Papantonio, Thomas, Mitchell,
Echsner & Proctor, P.A.
316 South Baylen Street
Post Office Box 12308
Pensacola, Florida 32581
W. Douglas Beason, Esquire
Department of Environmental Protection
The Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000

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