Florida/Georgia Personal Injury & Workers Compensation

in favor of issuance under section 377.241, Florida Statutes. Section 377.241 sets forth the following

...The appellant contends that the order must be reversed because DEP’s interpretation of the applicable statute will result in an unconstitutional taking of its property. We affirm the order. The decision in this case turns on the interpretation of section 377.241, Florida Statutes (1997): Criteria for issuance of permits....

...(3) The proven or indicated likelihood of the presence of oil, gas or related minerals in such quantities as to warrant the exploration and extraction of such products on a commercially profitable basis. The appellant asserts that in the past, DEP has issued permits when each criterion of section 377.241 “has been met,” but that when DEP announced its intention to issue a drilling permit in this case, a group of environmental organizations challenged the decision, arguing that DEP was wrongly interpreting the statute, which requires the agency to “weigh” the criteria of section 377.241, balancing environmental interests against the right to explore for oil....

...The appellant contends that DEP cannot “change its mind” about how to interpret the law without notice and rule-making procedures, especially when the result is an unconstitutional taking of its property. We find that the appellant had adequate opportunity to be heard on the issue of the proper interpretation of section 377.241....

...After responding, Appellant demanded that the Department process the oil and gas permit application. The Department issued a Notice of Denial, stating that Appellant failed to provide information showing a balance of considerations in favor of issuance under section 377.241, Florida Statutes. Section 377.241 sets forth the following relevant criteria for the Department to consider when deciding whether to issue an oil and gas permit: (1) The nature, character and location of the lands involved; whether rural, such as farms, grove...

...granted or authorized. (3) The proven or indicated likelihood of the presence of oil, gas or related minerals in such quantities as to warrant the exploration and extraction of such products on a commercially profitable basis. § 377.241, Fla....

...The parties stipulated that Appellant’s application met the minimum design standards for a permit and did not violate statutory setback requirements. Thus, the only issue for the Administrative Law Judge (ALJ) to determine was whether the statutory criteria of section 377.241 weighed in favor of or against issuance of an oil and gas permit. Appellant presented evidence that the project site lies in an area called “the pocket,” notable for its degraded natural habitat and lessened environmental values....

...able, and that Appellant’s delay in applying for a permit should have been considered. ∗ The Secretary entered a Final Order denying Appellant’s request for an oil and gas permit. As to the nature of the land, the Final Order states that section 377.241, Florida Statutes, requires an evaluation of the ∗ Broward County also filed exceptions to the Recommended Order, but the county’s exceptions were untimely filed and the merits of the exceptions were not considered by...

...As to the third statutory factor, the Secretary accepted the ALJ’s determination that there was a reasonable likelihood of discovering oil in commercially profitable quantities. The Secretary then concluded that, “using the same criteria in Section 377.241, Florida Statutes, the balance tips against issuance of an oil and gas permit to drill an exploratory well in the environmentally sensitive Everglades.” The Secretary compared the facts to a case in which the statutory balancing tes...

...In addition, an agency “may not base agency action that determines the substantial interests of a party on an unadopted rule . . . .” § 120.57(1)(e)1., Fla. Stat. (2018). This “does not preclude application of valid adopted rules and applicable provisions of law to the facts.” Id. Section 377.241, Florida Statutes, governs the Department’s decisions on oil and gas permits. In Coastal Petroleum, this Court held that the Department “correctly determined” that section 377.241 stated a multi-factor balancing test that “requires the agency to ‘weigh’ the criteria of section 377.241, balancing environmental interests against the right to explore for oil.” 766 So....

...Coastal Petroleum was decided, whereas we now apply a de novo review, we nonetheless hold that the Department and this Court were correct that the statute states a list of factors to be weighed, as opposed to a checklist of minimum requirements. See § 377.241, Fla....

...Appellees insist that the Secretary’s “longstanding policy” comment was merely meant to illustrate how rarely permits are issued in these circumstances, and that the Secretary’s decision was made simply by reweighing the balancing test of section 377.241 to conclude that the sensitive nature of the land and Appellant’s delay in seeking a permit outweighed the prospects of finding oil on a profitable basis....

...– The Nature of Ownership, Including Delay in Exercising Rights As to the second statutory factor, the Secretary did not disagree with any of the ALJ’s factual findings. Instead, the Secretary disagreed with the ALJ’s interpretation of section 377.241(2), Florida Statutes, and with the ALJ’s legal conclusion that the second factor had little to no weight in the balancing test, because Appellant owned both the surface and mineral rights to the land....

...s mineral rights, even when there is no divided ownership – was more reasonable than the ALJ’s interpretation. Applying, as we must, a de novo review to the Secretary’s statutory interpretation, we hold that the ALJ’s interpretation of section 377.241(2) was correct and that the Department’s legal conclusion was incorrect....

...3d 57, 64 (July 3d DCA 2015) (rejecting an agency’s interpretation of a statute in part because “[T]he whereas clauses in the 1980 enactment evince a legislative intent to allow a struggling entity to remain in business during the summer, thereby increasing tax revenues and tourism.”). The very purpose of section 377.241, Florida Statutes, “was to institute a permit process in order to protect landowners from 11 undue burdens from mineral leases.” Thomas G. Mosher & Matthew Schwartz v. Dan A. Hughes Co. & Dep’t of Envtl. Prot., Case Nos. 13-4254, 13-4920 (DOAH June 3, 2014) (application withdrawn by stipulation July 17, 2014) (internal citation omitted). Thus, although section 377.241(2) does not explicitly mention divided ownership interests, the statute must be “construed in light of the evil to be remedied and the remedy conceived by the Legislature to cure that evil.” Orlando Sports Stadium, Inc....

...there is no competing surface interest. As the delay in exercising drilling rights served as the sole basis for the Secretary’s conclusion that the second factor weighed against issuance, and as this conclusion was based on a misinterpretation of section 377.241(2), Florida Statutes, we reverse the Secretary’s conclusion as to the second statutory factor. The Third Statutory Factor – The Likelihood of Discovering Oil in Profitable Quantities The third statutory factor requires the Department to assess the “indicated likelihood of the presence of oil . . . in such quantities as to warrant the exploration and extraction . . . on a commercially profitable basis.” § 377.241(3), Fla....

...to approve the hearing officer’s recommendations.’” Resnick v. Flagler Cty. Sch. Bd., 46 So. 3d 1110, 1113 (Fla. 5th DCA 2010) (quoting Dep’t of Prof’l Regulation v. Bernal, 531 So. 2d 967 (Fla. 1988)). Moreover, we hold that the Secretary misinterpreted section 377.241(2), Florida Statutes, which the ALJ correctly 12 determined is inapplicable when there is no divided ownership interest....