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Public Trust Environmental Legal Institute of Florida, Inc
2029 North Third Street
Jacksonville Beach
Florida 32250
(904) 247-1972 x418

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Public Trust's Brief Submitted to the Florida Supreme Court
Opposing Georgia Pacific's Pipeline

NOTE: Brief is not in the same format as submitted to the Florida Supreme Court.


KAREN AHLERS, a citizen and taxpayer
of Florida residing in Putnam County,
NEIL ARMINGEON, a citizen and taxpayer
of Florida residing in Duval County,
ST. AUGUSTINE, an unincorporated
Florida association, and
NETWORK, INC., a non-profit Florida



Case No. SC12-1325

RICK SCOTT, Governor,
PAM BONDI, Attorney General,
JEFF ATWATER, Chief Financial Officer,
Commissioner of Agriculture, as Trustees
of the Internal Improvement Trust Fund,



The Public Trust Environmental

Legal Institute of Florida, Inc.

2029 N. 3rd Street

Jacksonville Beach, Florida 32250

Phone: 904.247.1972

Attorney Warren K. Anderson, Jr., Esq.

Florida Bar No. 233250


Table of Authorities…………………………………………………………….....iii

Identity and Interest of the Amicus Curiae…………………………………………1

Summary of the Argument…………………………………………………………1







Certificate of Service ………………………………………………………..……21

Certificate of Compliance ……………………………………………………..….22



This brief is filed in support of the Petitioners on behalf of The Public Trust Environmental Legal Institute of Florida, Inc. (“PTELI”). PTELI is a non-profit environmental organization dedicated to upholding the Public Trust Doctrine in Florida through the zealous protection of lands and waters belonging to the public.

Even beyond PTELI’s general interest in the Public Trust Doctrine, PTELI has a direct, long-standing, and well-established connection with the St. Johns River, publishing a series of kayak guides, taking members and public officials out on the river, and producing two films about a village that depends on the St. Johns.



The Public Trust Environmental Legal Institute supports the position of the Petitioners that, despite its mandatory, fiduciary duty, the Board of Trustees is refusing to perform that duty to safeguard the waters of the St. Johns River, a resource clearly within the scope of even a narrowly interpreted Public Trust Doctrine.  Amidst almost unprecedented public outcry in opposition, Georgia-Pacific is constructing a pipeline from its Palatka plant out into the middle of the waters of the St. Johns to release its polluted discharge into “mixing zones” within the River’s slow-moving waters.  The Trustees are in charge of the “control, supervision, conservation, [and] protection” of this trust resource. §253.03(1), Fla. Stat. (2010).  Yet the Board completely ignored its mandatory responsibility to review evidence and make specific determinations as to whether these private “mixing zones” are contrary to the public interest, its duty to afford the public the opportunity to take administrative proceedings regarding this private use, its duty—if the “mixing zones” are found not to be contrary to the public interest—to require “equitable compensation” from Georgia-Pacific for this “private degradation,” and its duty to establish “periodic reassessment” monitoring of this “private degradation” of the trust resource.

In addition, The Public Trust Environmental Legal Institute urges this Court to join other State Supreme Courts and give a clear pronouncement of the Public Trust Doctrine as it has evolved and expanded over the years in the common law to accommodate the changing needs of the public. This Court could take the opportunity of this case to announce that one of the public uses and interests to be protected by the Board of Trustees must be the public’s interest in the environmental protection of lands and waters held in the public trust.

A writ of mandamus should be issued directing the Trustees not to allow this pipeline to discharge “mixing zones” into the waters of the St. Johns until the Trustees fully comply with their mandatory fiduciary responsibilities on behalf of the trust’s beneficiaries.




Georgia-Pacific (“GP”) and its private owners, who have been perceived by the public as a repeat offender in environmental transgressions,[1] is building a 4,240 foot pipeline from its Palatka plant out into the middle of the waters of the St. Johns.  Having already brought environmental destruction to Rice Creek, the creek which runs alongside the GP plant, GP now plans to foul the public trust waters of what the Florida Supreme Court has called “one of the world’s most beautiful rivers.” State v. Putnam County Dev. Auth., 249 So. 2d 6, 8 (Fla. 1971). Not surprisingly, the public outcry against this brazen maneuver by GP has been thunderous—Governor Scott has received approximately 4000 petition signatures from citizens protesting GP’s plans.[2] St. Johns Riverkeeper, Say NO to the Pipeline, http://www.stjohnsriverkeeper.org/blog/say-no-to-the-pipeline/ (last visited June 29, 2012).  The public is wary of the policy of “dilution is the solution to pollution,” which exactly describes the act of allowing GP’s pipeline to pump “mixing zones” full of pollution into the River.  Allowing GP this “private use” without requiring GP to pay “equitable compensation” for degrading this trust resource is an affront to free market capitalism; such a policy allows GP to “externalize its costs while completely internalizing its profits.”  None of the “chronic toxicity discharges,” dioxin discharges and salt cake discharges which GP will “mix” into the waters will be removed by GP—whatever long term costs of the resulting environmental impact will have to be borne by the public. It is safe to say a great majority of the public wonder: How could this scheme not be “contrary to the public interest?”  At least the Board of Trustees should be forced to do its mandatory, fiduciary duty to determine whether this private use of the waters is contrary to the public interest.[3]

Despite having a “scrupulous,” mandatory, fiduciary duty—specifically required by the Florida Constitution, Florida Statutes, and the common law—the Board of Trustees is refusing to follow its mandatory rules set out to protect the public trust by:

1)      refusing to require an easement or consent application by Georgia-Pacific to privately use millions of gallons of the waters of the St. Johns as “mixing zones” in which Georgia-Pacific would dump its discharge pollution into the waters of the St. Johns. Fla. Admin. Code R. 18 21.005(1)(e)(7);

2)      refusing to require and review evidence of the effects of Georgia-Pacific’s “private use” of dumping its discharge pollution into the waters of the St. Johns in order to assess whether this private use is “contrary to the public interest” pursuant to Article X, Section 11 of the Florida Constitution.

3)      refusing to provide a “point of entry” to the public allowing the public an opportunity for administrative proceedings pursuant to Chapter 120 of the Florida Statutes to contest this private degradation. Capeletti Bros. v. State, 362 So. 2d 346, 348 (Fla. 1978).  The public must be provided a clear entry point to request an administrative hearing pursuant to Chapter 120 and to assist their trustees in formulating final agency action. Id. The Trustees have no option of ignoring comments or objections raised by the public in response to this public notice—the Trustees “shall consider” such objections in their evaluation. § 253.115(2), Fla. Stat. (2001).  If there are any “substantive objections” to the application, the Trustees may also hold a public hearing in the county where the proposed activity lies. Id.

4)      refusing to require Georgia-Pacific to pay “equitable compensation” to the sovereign for its private degradation of these sovereign waters. Fla. Admin. Code R. 18-21.004(1)(e); Conceptual State Lands Management Plan p. 29-30 (last revised 3/15/1983).  This allows Georgia-Pacific to externalize its costs (dumping its pollution into the public waters never to collect it again or to be responsible for the degradation of the public waters) while internalizing all its profits (not having to pay “equitable compensation” to the public);

5)      and refusing to establish a monitoring system to establish “periodic assessment” of the degradation being done to the waters of the St. Johns.  The Trustees have a right of “reverter” if the private use turns out not to be “as proposed.” Fla. Admin. Code R. 18-21.010(4)(c).  The Trustees “shall require the periodic reassessment…to insure a continued equitable rate of compensation.” Conceptual State Lands Management Plan p. 29-30 (last revised 3/15/1983).  The Trustees, if they eventually approve GP’s  private “mixing zone” use,  should be ordered to establish a monitoring system to periodically reassess whether that use—tons of concentrated contaminated solids fouling the waters of the public trust—continues to be “as proposed.” Fla. Admin. Code R. 18-21.010(4)(c).

The Trustee’s mandatory fiduciary duty to safeguard public trust assets is separate, independent, distinct and of a different nature than the responsibilities of the Florida Department of Environmental Protection (“DEP”).  As just two examples, the Trustees “shall” consider objections by the public, while DEP assessments “may” be considered. § 253.115(2), Fla. Stat. (2001); Fla. Admin Code R. 18-21.004(2)(c).  Also, the Trustees, not the DEP, are charged with determining “equitable compensation” for the private use of a public trust resource. Fla. Admin. Code R. 18-21.004(1)(e).

The Trustees’ abdication of its role to protect public trust assets, in the face of its clear, mandatory duties, must be addressed by this Court in order ensure protection of the paramount constitutional, statutory, and common law rights and interests of the beneficiaries of the public trust.  It is clear that the Trustees have abdicated their mandatory fiduciary duties even under a narrow interpretation of the Public Trust doctrine.  Yet this case is an appropriate opportunity for the Court to join other State Supreme Courts around the country to set forth an updated declaration of the Public Trust Doctrine.  Duties of the trustees of the resources require those trustees to preserve the environmental value of the public’s trust resources so that these lands and waters will be available for future generations.


A fair statement of the current, evolved Public Trust Doctrine is that it is an ancient legal stewardship doctrine protecting the public's  interest in public lands and waters. It has evolved and expanded over 1,500 years and has been continually recognized and enforced by Florida courts. The Doctrine holds that there are certain lands and waters which are sovereign—which belong not to any King,  Governor, legislature, corporation, or favored individual citizen—but rather these lands and waters are held in trust for the equal benefit of all the people. The trustees have a fiduciary duty to protect and preserve the trust's resources for the public's uses of navigation, commerce, fishing, and recreational use as well as a fiduciary duty to preserve the resources' environmental value so that these lands and waters will be available for future generations.   Some private use of the trust assets may be allowed by the Trustees acting in their fiduciary capacity but only if the Trustees specifically determine that the proposed private use is not contrary to the public’s interest and does not interfere with the public's continuing use of the trust resources.

Brief—Yet Thorough—History of the Doctrine

Scholars have read virtually every case citing the Public Trust Doctrine and written about its evolution.  The seminal article was published over 40 years ago.  Joseph Sax, The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970) (cited in virtually every article about the doctrine).  More recently David Slade,[4] who successfully argued this doctrine in a landmark decision by the U.S. Supreme Court, traced the doctrine's development in The Public Trust Doctrine In Motion, 1997-2008 (PTDIM 2008).

The Public Trust Doctrine extends back to Ancient Roman civil law that was incorporated into the Justinian Code around 530 A.D. which provided that the public had an inherit right to use the waters of their empire and the shores surrounding them: “By the law of nature these things are common to all mankind—the air, running water, the sea, and consequently the shores of the sea.” (Institutes of Justinian 2.1.1.).  Unlike private property, the idea of a commons meant all people had a right to use and enjoy  these particular resources equally.  Every member of the public had the freedom to visit these trust assets, use them for travel, swim in the waters, and catch fish from them. David C. Slade et al., Putting the Public Trust Doctrine to Work, Second Edition 4 (Coastal States Organization 1997).  This was considered right because the “shores are not understood to be property of any man, but are compared to the sea itself, and to the sand or ground which is under the sea.” Id.

After the fall of the Roman Empire, these public trust rights were carried into the English legal tradition.  When King John attempted to privatize the commons by selling off fisheries and deer reserves in England, the people rose up at the Battle of Runnymede and forced him to sign the Magna Carta in 1215.  Robert F. Kennedy, Jr., Crimes Against Nature 20-21 (Harper Collins 2004).  The Magna Carta includes a provision guaranteeing free access to fish in the rivers. The Magna Carta of Edward I (1297), 25 Edw. 1, § 23.  The English Crown subsequently held title to a commons consisting of navigable waters and their shorelines “in trust for the people of the realm who had rights of navigation, commerce, fishing, bathing, and other easements allowed by law in the waters.” Brickell v. Trammell, 82 So. 221, 226 (Fla. 1919).  Later, the Court explained, the English colonized this continent and “this rule of the common law was applicable in the English colonies of America.” Id.

After the American revolution, “the people of each state became themselves sovereign, and in that character held the absolute right to all their navigable waters and the soils under them for their own common use.” State v. Black River Phosphate Co., 13 So. 640,644  (Fla. 1893).  Upon its admission to the Union, in 1845 (long before the Florida Constitutional amendment of 1968) Florida adopted the common law principle of a Public Trust Doctrine wherein the state holds title to the commons in trust for the people. Brickell, 82 So. at 226.  As originally stated by this Court, the state holds trust assets  for the “use and enjoyment” of the entire public, and the state must apply “due regard for the preservation of such lands and waters to the uses for which they were held.” Black River Phosphate, 13 So. at 648 (emphasis supplied).  These public trust assets are tightly protected against private encroachments. Id. In the instances where government does find it permissible to grant trust assets to private individuals, “it will not be presumed that anything was intended to pass that is not denoted by clear and special words.” Id. Government grants must be “strictly construed, or be taken most beneficially in favor of the state or public.” Id.

The Public Trust Doctrine is a dynamic legal principle that has expanded in two ways since the nineteenth century.  First, the scope of what lands and waters are protected.  Secondly, those public uses and rights which are to be safeguarded.

Expanded Scope of the Doctrine's Application

Since the days of Justinian around 530 AD it was recognized that navigable waters and the lands beneath them (submerged lands) belonged to the sovereign and must be protected for the people's benefit.   English common law focused on navigable waters that were tidal—ebbed and flowed with the changing tides—since in Britain navigable waters were tidal.  When the colonists brought the common law to America the courts recognized that the tidal limitation was too restrictive—America had great navigable lakes and rivers which were not tidal but deserved to be called part of the public trust—so the American courts dropped the necessity that the waters be tidal for the doctrine to apply. Slade, Putting the Doctrine to Work, 23.  Later courts noted the need for protection of even non-navigable waters, such as tributaries flowing into navigable waters.  Id. at 31.

The doctrine was further expanded  to protect non-navigable waters which were capable of recreational use.  Most recently, some courts have expanded the doctrine to protect groundwater and aquifers, pointing out that surface waters are often depleted by ground water diversions, that underground aquifers are recharged by rain and surface water, and that, scientifically speaking, the water cycle is truly one single integrated source of water deserving to be within the scope of the public trust. See, e.g. In the Matter of Water Use Permit Applications, 9 P. 3d 409 (Haw. 2000); New Mexico v. General Electric,467 F. 3d 1223 (10th Cir. 2006).

Florida courts have shown a willingness to expand the scope of the Public Trust Doctrine.  Early on, the state of Florida adopted a traditional Public Trust Doctrine similar in scope to that of the English common law. Black River Phosphate, 13 So. at 643.  Under this doctrine, “the navigable waters of the state and the soil beneath them, including the shore or space between high and low water marks” were held in trust for the people of the state. Id. at 648.  The state later recognized that because “fishing” was a protected use under the Public Trust Doctrine, the fish themselves were trust assets. State ex rel. Gray v. Stoutamire, 179 So. 730, 732  (1938).  The ownership of fish “is in the state, not as a proprietor, but in its sovereign capacity as the representative and for the benefit of all its people in common.” Id. Although the wet-sand portion of the beach was included  in the original doctrine, this Court ruled the public’s right to use the dry-sand portions of a beach (above the high-water mark) should be protected as well. City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73, 77 (Fla. 1974).  The public had a right to cross this dry sand to access the ocean, but also to use it as “a recreational adjunct of the wet sand or foreshore area.” Id. at 78.  Thus, this land acquired a quasi-protected status under the doctrine. Id. Florida courts clearly expanded the scope of the Public Trust Doctrine, but have always included “navigable waters” like the waters of the St. Johns.

Expanded Public Uses and Interests Safeguarded by the Doctrine

While the scope of the doctrine's application was evolving, so have been the protected interests and uses of trust lands and waters.  The traditional trilogy of uses cited in the older cases—commerce, navigation and fishing—have been expanded. It is now universally recognized that recreational uses are protected uses—cases have included fishing, swimming, surfing, strolling the shores, and sunbathing. See, e.g. White v. Hughes,190 So. 446 (1939).  The public’s right to environmental protection of these precious trust assets has repeatedly been held by the courts to be deserving of protection by the trustees of our public lands and waters. (See pages 18-19 of this brief).  After an exhaustive account of American public trust case law, Attorney David Slade (see footnote 4) concludes:

Over the last decades [American appellate cases] clearly demonstrate that the Public Trust Doctrine continues to evolve. It is a doctrine in motion, as it has been since Justinian's day.  Courts may, and should, strictly scrutinize every lawyer's argument to expand the scope of the Public Trust Doctrine.  But, without recognizing the Doctrine's inherent flexibility to evolve as the mores and needs of society evolve, as our scientific understanding advances, and as our natural resources suffer the weight of modern society, courts would be forcing modern society ‘to wear still the coat which fitted him when a boy’ and force ‘civilized society to remain ever under the regimen of their barbarous ancestors.’ (quoting Letter from Thomas Jefferson to Samuel Kercheval (June 12, 1816)). Slade, Doctrine in Motion, p. 40.

Over time, Florida Courts have increased the list of public uses of trust assets that are protected within the doctrine.  As originally stated by the Court in 1893, the state of Florida holds its trust assets for the “use and enjoyment” of the entire public. Black River Phosphate, 13 So. at 643.  While early on this Court  focused on the traditional trio of protected uses under the English common law—navigation, commerce, and fishing—the Court noted this list was not all-encompassing, and “other implied purposes” stemming from the public’s use and enjoyment of the trust assets would be protected as well. Id. at 648.  Importantly, this Court noted, in explaining the trust concept, that the state must have “due regard for the preservation of such lands and waters to the uses for which they were held.” Id. (emphasis supplied).

As the beaches of Florida became popular crowded attractions, the right to use and enjoy the beach for bathing and general “recreational” purposes became a major part of the Florida Public Trust Doctrine. White,190 So. at 449; see also Adams v. Elliott, 174 So. 731, 734 (Fla. 1937).  In Adams, the Court justified a right to use the beach as a public automobile highway under the Public Trust Doctrine so long as it did not infringe the other “paramount right” to use the beach for bathing. Adams,174 So. at 734.  Finally, this Court found that a trust asset cannot be used as a site for reclamation if it will diminish property owners’ right to an unobstructed view of a bay (the trust asset).  Hayes v. Bowman, 91 So. 2d 795 (Fla. 1957).  These examples demonstrate the expansion of public uses and interests which the Court has deemed are protected by the Doctrine.

The St. Johns River Is A Priceless Public Trust Resource

Of The Florida Environment

The St. Johns River, the longest river in Florida, is one of the true crown jewels of the state's natural environment. It is home to hundreds of species of birds, mammals, reptiles, amphibians, fish, and shellfish. Beginning with its headwaters in the marshes of Indian River County, it slowly winds northward 310 miles dropping only about an inch per mile, making it one of the “laziest” rivers in the world. Because the River flows so slowly pollutants accumulate.  The St. Johns is fed by freshwater springs, marshes and other rivers and becomes estuarine and tidal as it approaches its mouth at the Atlantic Ocean in Jacksonville. Thus, its waters are navigable, parts of it are tidal, it is used for commerce and recreation—clearly the waters of the St. Johns are within even a narrow definition of the Public Trust Doctrine’s scope.

The St. Johns has been recognized as a national as well as a state treasure. In 1998 it was designated an American Heritage River—one of only fourteen—by an Executive Order of the President.  In 2012 it was designated a “Great Water” of America, by the prestigious Great Waters Coalition.  The Native American Timucua “Indians” lived on its shores for thousands of years before Europeans arrived in the sixteenth century. Jerald Milanich, The Timucua (Blackwell Publishing 1999).  The French settled at Ft. Caroline on the River in 1564—decades before the English landed in Jamestown. Charles Bennett, Settlement of Florida (Univ. Fla. Press 1968).  Some Natives referred to the River as “Welaka” meaning “River of Lakes” since it connects so many water bodies as it winds through the central part of the state flowing north, Bill Bellville, River of Lakes: A Journey On Florida’s St. John’s River (Univ. Ga. Press 2000).

This Court has previously extolled the virtues of the St. Johns River as a justification for its decisions. Putnam County, 249 So. 2d at 8. In Putnam, the Development Authority provided financing for a water treatment facility to a local paper mill so it could meet water quality standards. Id. The Court ruled this was a justifiable use of funds because “it is hard to imagine a more propitious project” to benefit the public than a pollution control facility. Id. at 10.  The Court wrote this facility would help preserve a “lovely area of Florida on one of the world's most beautiful rivers, the St. Johns.” Id. In another case, this Court considered the potentially disastrous effects of pollution in the St. Johns River caused by a wood pulp mill. Nat'l Container Corp. v. State ex rel. Stockton, 189 So. 4 (1939).  The Court reasoned that if the mill would

discharge enormous quantities of waste and refuse matter into the [St. Johns] River which will be highly toxic to fish and other forms of marine and aquatic life—it requires no citation of authority to support the assertion that the State may enjoin the consummation of the damage which is threatened

Id. at 13.  These cases demonstrate the Court’s recognition of the special character of the St. Johns River and the Court’s concern for the “environmental protection” of the St. Johns River on behalf of the citizens who use and enjoy its resources.

Other Supreme Courts

Supreme Courts around the country have proclaimed that the Public Trust Doctrine has evolved and expanded, and that the doctrine now includes the public's interest in the environmental protection of those  trust resources:


The public trust, by its very nature, does not remain fixed for all time, but must conform to changing needs and circumstances,....the public trust is an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.  In the Matter of Water Use Permit Applications, 9 P.3d 409, 447 (Haw. 2000) (often referred to as the Waiahole I case).


There has developed a strong, though belated interest in conserving natural resources and in protecting and improving our physical environment. Scott v. Chicago Park District, 360 NE 2d 773, 780 (Ill. 1997) (voiding a state senate bill under the public trust doctrine).

New York:

The Court looked back to the public trust doctrine in Roman Law to conclude “conservation of resources is intrinsically good and necessary for the continuation of society” so that the government must meet its obligation to preserve resources for future generations. W.J.F. Realty Corp. v. State, 672 N.Y.S. 2d 1007, 1012 (N.Y. App. Div. 1998).


The Court dealt with the protection of oyster beds which “fits precisely within the public trust doctrine” because the public resource at issue “is our very coastline, the loss of which is occurring at an alarming rate.” Avenal v. State, 886 So. 2d 1085, 1101-1102, 1109-1110 (La. 2004).

New Jersey:

Archaic judicial responses are not an answer to a modern social problem.  Rather, we perceive the public trust doctrine not to be 'fixed or static,' but one to 'be molded and extended to meet changing conditions and needs of the public it was created to benefit. Matthews v. Bay Head Improvement Association, 95 N.J. 306, 326 (N.J. 1984).


The public trust doctrine has been expanded to include uses other than navigation...when a state holds a resource which is available for free use of the general public, a court will look with considerable skepticism upon any governmental conduct which is calculated either to relocate that resource to more restricted uses or to subject public uses to the self-interest of private parties.  City of Coeur D’alene v. Mackin,147 P. 3d 75, 86 (Idaho 2006) (regarding a public right to walk the beach).


Although the original objectives of the public trust were to protect the public's rights in navigation, commerce, and fishing, the trust has evolved to encompass additional public values—including recreational and ecological uses.  Mineral County and the Walker Lake Working Group v. State of Nevada, 20 P. 3d 800, 807 (Nev. 2001).

The United States Supreme Court early on invoked the Public Trust Doctrine to prevent a state from placing public trust lands into private hands for short-term economic gain and to the detriment of long-term preservation of the public’s resource. Illinois Central R.R. v. Illinois, 146 U.S. 387 (1892).  Yet the Court has held that determining the scope of the doctrine is a function of state law. Phillips Petroleum Co. Mississippi,484 U.S. 469, 475 (1988).

Florida Statutes Requiring Environmental Protection by the Trustees

The Trustees also have a statutory duty of environmental protection regarding the natural lands and waters that are considered trust assets. See Art. II, § 7(a), Fla. Const.  The Trustees actually hold title to a wide variety of state lands—including parks, reservations, swamps—in addition to the traditional “sovereignty” lands. § 253.03(1), Fla. Stat. (2010).  The Trustees are specifically charged with the “conservation” and “preservation” of all of these lands and waters. Id. Specifically, in Section 403.021(2) of the Florida Statutes the Legislature has

declared to be the public policy of this state to conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife and fish and other aquatic life, and for domestic, agricultural, industrial, recreational, and other beneficial uses and to provide that no wastes be discharged into any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of such water.


The Florida Legislature has declared it is the public policy of the state to conserve, protect, maintain and improve the public waters, the Legislature has charged the Trustees with the duty to ensure the “conservation” and “preservation” of the trust resources, and in 1893 the Florida Supreme Court noted that trustees must “have acted with a due regard for the preservation of such lands and waters to the uses for which they were held.”  Black River Phosphate, 13 So. at 648.  Supreme Courts from around the country have repeatedly held that the Public Trust Doctrine should evolve and expand to protect the public’s changing needs including the public’s interest in protecting the environmental value of those special resources.  Therefore, it is certainly not a “leap” for this Court to now recognize and announce that under Florida’s Public Trust Doctrine the Board of Trustees have a mandatory, fiduciary duty to safeguard the public’s interest in the “environmental protection” of it trust resources—a duty which the Trustees have abdicated in this case.

Dated July 11, 2012.

Respectfully submitted,


Warren K. Anderson, Jr., Esq.

Florida Bar No. 233250

together with Andrew D. Miller, Esq.

Florida Bar No. 61491

and Nicholas J. Barshel, Law Student Intern on behalf of:

The Public Trust Environmental

Legal Institute of Florida, Inc.

2029 N. 3rd Street

Jacksonville Beach, Florida 32250

Phone: 904.247.1972




[1] For an example of how the Georgia-Pacific Corporation is publicly perceived, see Koch Owned Georgia Pacific Plant Linked To High Cancer Rates, Film Alleges, THE HUFFINGTON POST, Oct. 13, 2011, http://www.huffingtonpost.com/ 2011/ 10/12/arkansas koch industries plant high rates of cancer_n_1007148.html.

[2] www.cleanergp.com is a website dedicated to stopping the Georgia-Pacific pipeline from going into operation.  Here, 4000 citizens signed an online petition addressed to Florida Governor Rick Scott to protest the pipeline project.

[3] Petitioner=s brief well establishes that the pipeline corridor easement granted by a prior Board of Trustees and the private degradation of the waters by GP=s Amixing-zones@ are two completely different matters. The pipeline corridor is only a small fraction of the area used by the Amixing zones,@ the pollution of the Amixing zones@ was not even raised in the briefing package reviewed by the Board of Trustees. Clearly there is a distinction between the bed of the river and the water columns of the river—Florida authorities have repeatedly pointed out that the Public Trust Doctrine protects both public lands and waters. See, e.g. Broward v Mabry 50 So. 826,829 (Fla. 1909).  The pipeline corridor easement must be “strictly construed” since “it will not be presumed that anything was intended to pass that is not denoted by clear and special words.” State v. Black River Phosphate Co., 13 So. 640,648 (Fla. 1893).  In addition, the fact “that generations of trustees have slept on public rights does not foreclose their successors from awakening.” Arizona Ctr. For Law In Pub. Interest v. Hassell, 837 P.2d 158, 171 (Ariz. App. 1991).

[4] David Slade served as the Project Manager for the National Public Trust Study which resulted in publication of two editions of Putting the Public Trust Doctrine to Work published by the Coastal States Organization (CSO) in 1990 and 1997. He was general counsel to CSO which represents the views of the 35 governors of the Coastal States, Territories and Commonwealths of the United States.  Earlier Slade had served in the General Counsel Office of the U.S. Department of Commerce as Chief Counsel to the National Advisory Committee on Oceans and Atmosphere. His representation of CSO before the Supreme Court, in which he brought together attorney generals from the 13 original states to explain to the Court how these states asserted authority over their navigable waters pursuant to the public trust doctrine, was decisive in the landmark case of Phillips Petroleum v. Mississippi, 484 U.S. 469, 488 (1988).