DEVIL'S GARDEN INVESTMENT, LLC/DEVIL'S GARDEN AQUACULTURE
v.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
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The appellate court affirmed the administrative law judge's decision that a statement made by the South Florida Water Management District was not an unadopted rule. The court found the statement was made during settlement negotiations and did not have the force of law, nor was it used as a basis for agency action.
The court held that the statement was not an unadopted rule because it was made during settlement negotiations and did not have the force of law. Furthermore, the court held that a statement not used as a basis for agency action cannot be challenged as an unadopted rule.
[1] A statement made by an agency during settlement negotiations that is not communicated to the general public and lacks force of law does not constitute a rule under Florid…
[2] An unadopted rule cannot be challenged if it has not formed the basis for any agency action affecting a party's substantial interests.
Previewing 2 of 2 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The statement was made during these negotiations and was not a rule because it did not carry the force of law.”
Establishes the first reason for finding the statement was not an unadopted rule.
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Join FLexlaw to unlock all legal intelligenceDevil's Garden Investment, LLC (Appellant) challenged a statement made by the South Florida Water Management District (Appellee) as an unadopted rule.…
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LONG, J.
Appellant challenged a statement made by Appellee, the South Florida Water Management District, as an unadopted rule. The learned Administrative Law Judge determined the statement was not an unadopted rule.
We affirm. If an agency statement meets the statutory definition of a rule but the agency has not gone through the rulemaking process in its adoption, the rule is invalid. §§ 120.52(8)(a), (20), .54(1)(a), .56(4), Fla. Stat.; Coventry First, LLC v. State, Off. of Ins. Regul., 38 So. 3d 200, 203 (Fla. 1st DCA 2010). Appellant’s challenge fails for two independently sufficient reasons.
First, the statement was made during settlement negotiations between Appellant and the District. The District denied Appellant’s permitting waiver request. It then negotiated with Appellant regarding ways Appellant could satisfy the District’s concerns and ultimately obtain the waiver. The statement was made during these negotiations and was not a rule because it did not carry the force of law. It was also not communicated to anyone but Appellant. See § 120.52(16), Fla. Stat. (defining a rule as an “agency statement of general applicability” with force of law “which imposes any requirement or solicits any information not specifically required by statute or by an existing rule”).
Second, the District took no enforcement action based on the statement. Appellant’s waiver was denied for a different reason, and the challenged statement was communicated much later. The legislature has provided “[a]n agency or an administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule or a rule that is an invalid exercise of delegated legislative authority.” § 120.57(1)(e)1., Fla. Stat. A statement that has not formed the basis for any agency action cannot be challenged as an unadopted rule. This also fits into our traditional standing requirements; if a law does not affect a party, the party cannot challenge it. We therefore approve the order on appeal.* AFFIRMED. ROWE, C.J., and LEWIS, J., concur. _____________________________