Plaintiff’s Position
The claim presented in this analysis is that Miami-Dade County’s Division of Environmental Resources Management (DERM) deliberately disregards scientifically valid third-party environmental studies—such as wetland delineation reports or hydrological assessments prepared by certified professionals—as a tactic to monopolize regulatory authority, suppress contradictory evidence, and evade legal liability.
The report argues that this pattern of conduct constitutes a systematic denial of due process and fair administrative review under both state and federal law.
Monopolization of Jurisdictional Authority
According to the report, DERM frequently rejects environmental assessments not conducted by its own personnel or contracted affiliates, asserting exclusive jurisdiction over wetland delineations even though Florida law does not grant counties sole interpretive authority over wetland science.
- Rule 62-340, Florida Administrative Code: delineation of wetlands must follow objective, science-based indicators such as hydrology, vegetation, and soils.
- Methodological neutrality: the analysis argues the rule does not require delineations to be performed solely by a county agency and instead supports best available science by qualified professionals.
- Section 373.421(1), Florida Statutes: wetland determinations must follow state-adopted methodologies rather than local reinterpretations.
DERM’s rejection of compliant studies is framed here as a de facto monopoly on environmental classification rather than a lawful exercise of exclusive delegated authority.
Suppression of Legally Significant Evidence
The report states that qualified professionals—including soil scientists, biologists, and environmental engineers—routinely submit peer-reviewed, GPS-referenced, and statutorily compliant reports under 40 C.F.R. §312, §373.421(1), Florida Statutes, and Rule 62-340, Florida Administrative Code.
It argues that by failing to acknowledge these documents, DERM violates procedural due process under Article I, Section 9 of the Florida Constitution and engages in arbitrary or capricious agency action under Chapter 120, particularly §120.68(7)(e), Florida Statutes.
Avoidance of Liability Under the Bert J. Harris Act
The analysis argues that DERM has a structural incentive to ignore contrary scientific evidence because acknowledging a flawed wetland classification could force one of three outcomes:
- withdraw the enforcement action,
- justify continued regulation under strict scientific standards, or
- face possible liability for damages under §70.001, Florida Statutes.
This is presented as a perverse incentive: by ignoring outside evidence, the agency may avoid triggering compensation exposure under the Bert J. Harris, Jr. Private Property Rights Protection Act.
Defendant’s Position (DERM’s Likely Defense)
The report outlines several defenses DERM might raise, while arguing each is weak in statutory grounding.
Lack of Delegation = Discretion
DERM may argue that because it is not a delegated ERP authority under §373.441, Florida Statutes, and Rule 62-344, Florida Administrative Code, it cannot legally accept third-party delineations in lieu of its own internal assessments.
Agency Expertise and Interpretive Deference
The report contends that automatic judicial deference is weaker now than before, and argues courts must independently assess whether agency decisions comply with statutory mandates and legal standards.
Procedural Invalidity of Submission
DERM may also claim that third-party studies were not submitted through formal permitting or appeal channels and therefore do not trigger administrative obligations or response deadlines.
Rebuttal: Why the Plaintiff’s Position Prevails
The report responds that state-level scientific standards control, that local departments cannot narrow those standards by refusal, and that ignoring qualified contrary reports can itself support a finding of arbitrary and capricious action.
- State law controls: Rule 62-340 and §373.421(1) are presented as controlling authorities over local evidentiary narrowing.
- No shield for unauthorized action: the analysis argues deference does not save ultra vires conduct.
- Ignoring evidence matters: refusal to review compliant contrary reports is characterized as a denial of due process and a lack of competent substantial evidence.
- Liability risk increases: willful avoidance of review is framed as strengthening an inordinate burden claim under §70.001.
Strategic Takeaway for Landowners
The report recommends that landowners and their counsel preserve all third-party reports in writing, maintain proof of delivery, cite Rule 62-340, §373.421(1), and §120.68 in correspondence, and document every refusal as potential evidence of Bert Harris Act liability.
- Submit all third-party reports in writing, with proof of delivery.
- Cite Rule 62-340, §373.421(1), and §120.68 in correspondence.
- Document all refusals as potential evidence of Bert Harris Act liability.
- Request public records under Chapter 119 to reveal internal justification or lack thereof.
- Consider a pre-suit notice of claim under §70.001 referencing failure to act on competent evidence.
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