Standing to appeal an administrative order: cautions from Martin County Conservation Alliance v. Martin County.

• Author: Hunter, Gary K., Jr.
• Position: Environmental and Land Use Law

Administrative and civil litigators appreciate the paramount need to create an evidentiary record to present the best case possible, both in the first instance, and to properly preserve issues for appeal. In recent years, the importance of that record for purposes of establishing appellate standing has been the focus of two district court of appeal cases. The decisions highlight the important distinctions between initial standing to challenge an agency administrative decision, permit, or order, and standing to appeal an adverse decision thereafter.

As discussed in this article, many of Florida's environmental statutes give parties liberal standing to contest development and environmental permits and land use approvals. The liberal standing requirement does not extend to appeals, however, leaving litigants at risk of failing to make the required record in the lower tribunal. For example, in Martin County Conservation Alliance v. Martin County, 73 So. 3d 856 (Fla. 1st DCA 2011), (1) the First District Court of Appeal held that a party challenging an issued development order must make a prima facie showing of standing to appeal in the lower tribunal if it wants to preserve its right to appeal an adverse decision. Martin County also ups the ante for appellants by subjecting them to potential sanctions if they appeal when they failed to make an adequate record for appellate standing in the lower tribunal. But the Second District Court of Appeal reached a different result in Peace River/Manasota Regional Water Supply Authority v. IMC Phosphates Co., 18 So. 3d 1079 (Fla. 2d DCA 2009). The dichotomy between Martin County and Peace River, and in particular, the risk of sanctions being imposed by an appellate court, require the practitioner to thoughtfully approach the development of evidence at trial. These legal considerations, as discussed below, present unique challenges for environmental protection groups seeking to challenge environmental or development approvals on behalf of their members.

Appellate Administrative Standing: Higher Thresholds and Cautious Recommendations

F.S. [section]120.68(1) provides that a "party who is adversely affected by final agency action is entitled to judicial review." In Legal Envtl. Assistance Foundation, Inc. v. Clark, 668 So. 2d 982, 986 (Fla. 1996), the Florida Supreme Court established a four-part test to determine an administrative appellant's standing: 1) the agency action is final; 2) the Administrative Procedures Act (APA), F.S. Ch. 120, applies; 3) the appellant was a party to the administrative hearing; and 4) the appellant was adversely affected by the agency's final action. Only the fourth element-adversely affected --is relevant to the present article.

The legislature created a single, narrow definition of appellate administrative standing in F.S. [section]120.68. Standing under [section]120.68 is narrower than standing to participate in the initial administrative hearing, and the APA's definition of a "party" allows for a much broader zone of party representation at the administrative level than at the appellate level. (2) Moreover, compared with appellate standing, there are numerous statutory and regulatory provisions that broadly confer a participant's initial standing for purposes of the administrative hearing. These provisions can be separated into two general categories.

First, under the APA, any person "substantially affected" by agency action may participate in an administrative challenge to that action (APA standing). (3) Second, various statutes and rules codify the criteria a party must satisfy to have standing for participation, and the criteria often include residency or property ownership (codified standing). (4) If a party can establish both APA and codified standing, the party can rely upon either or both for purposes of participating in the initial administrative hearing. Importantly, however, a party need not establish "adverse effects" in order to have their day before the administrative tribunal.

Martin County reminds administrative practitioners to have the forethought to prove up appellate standing, and not just administrative standing, during the Ch. 120 administrative hearing process. When a party rests upon codified standing, it may not be necessary to show "harm" from the agency action because all that is required is to demonstrate that the standing allegations and evidence satisfy the statutory or regulatory criteria. (5) The failure to submit additional evidence of harm may, however, inadvertently preclude a later appeal due to the absence of record evidence as to how the final agency decision "adversely affects" the party. (6) Accordingly, cautious practitioners of administrative law should consider proving up APA standing in every proceeding, which can begin to develop the record necessary to satisfy the higher standing threshold required by [section]120.68. A party asserting APA standing submits evidence of how the agency action affected its substantial interests, and that "substantial interest" evidence will likely be sufficient to demonstrate appellate standing. (7)

For illustration, envision a Florida nonprofit organization challenging the issuance of an environmental permit, using the codified standing provision in F.S. [section]403.412(6). As required by the statute, the nonprofit proves it has 25 members residing within the relevant county and that it was formed one year prior to submittal of the permit application. It then submits evidence of the proposed permit's noncompliance with relevant statutes. The administrative order acknowledges the nonprofit has codified standing, but rejects the merits of the nonprofit's challenge, concluding the permit is in compliance. Such a scenario is a clear pitfall for the nonprofit wishing to pursue an appeal. The lack of affirmative record evidence regarding injury or harm to the nonprofit limits its ability to show how it is "adversely affected" by the final agency action. (8) As a consequence, relying entirely on codified standing risks the court's dismissal of an appeal for lack of standing and-as occurred in Martin County-the imposition of sanctions.

Sanctions: When, Why, and How?

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