In February 2015, Florida Attorney Steve Medina asked me to help him break an exclusive story on Daily Kos,
about a scandal involving Charles Koch
, David Koch
, Florida Governor Rick Scott
, and presidential candidate, Jeb Bush
. They are part of a deal made that allows the Koch Industries'
highly profitable paper and pulp company, Georgia Pacific
, to dump millions of gallons of toxic waste per day
, into St. John's River in Florida. The original story (well worth the long read) has been picked up by multiple news groups, and also shared, posted, tweeted and emailed with a social media reach estimated to be in the millions. The online petition
is gaining momentum. In the past few days it picked up over 3k signatures. Americans are not only aware of the massive Koch corruption, they are stepping up and taking action to stop it.
This week, additional legal motions were filed on behalf of the people, by Steve Medina. I asked Mr. Medina if he would send a description of these new legal actions in layperson's terms, and he was kind enough to do so. With his permission, I am posting his synopsis first, followed by his letter in hopes more folks will better understand the legal process involved.
Here is a short summary, by Steve Medina, about this week's legal actions:
The local citizens and environmental groups appealed the summary judgment of the Leon County Chief Judge (a Jeb Bush appointee) to the First District Court of Appeal, also in Tallahassee. On May 27, 2015, the First District Court of Appeal issued a 'PCA.' This stands for 'PER CURIAM. AFFIRMED.' Floridians lose out. That in turn means that there is no further appeal within the Florida judicial branch.
For those who'd like to read a more detailed explanation and update, here is Steve Medina's letter (I highlighted some sentences for emphasis):
Yesterday, on behalf of the local citizens and environmental groups, I filed a motion to have the First District Court of Appeal issue a written opinion, so that they would then have a basis for appealing to the Florida Supreme Court, where this case started three years ago this month. I also filed a motion asking for the First District Court of Appeal to rehear the case 'en banc' because of its exceptional importance, which means all of the active judges would vote on the case. If we succeed in getting a written opinion, we will appeal to the Florida Supreme Court, unless the First District Court of Appeal on rehearing rules for us. If no written opinion is issued, we will petition to the United States Supreme Court for review.
Steve Medina continues his letter letting us know the powers that be are now trying to squelch this citizens protest:
Thank you very much for your in-depth coverage of the Georgia-Pacific pipeline/St. Johns River public trust litigation and the related issue of the influence that big polluters hold in our political system. Your articles have been a great encouragement to us as we fight a sometimes lonely battle down in Florida.
The corporate media simply will not cover these issues to any significant degree. I think this is partly because the subject matter can be wonky, and Americans are presumed to be stupid. But mostly I think it is because critiquing public officials as potentially 'mercenaries' when they are supposed to be 'fiduciaries' strikes a little too close to home for news outlets primarily funded by advertising revenue.
Because I believe that this particular public trust case is so important and potentially precedent-setting, when I took my current job as an assistant public defender in the Florida Panhandle a couple of years ago, I got special permission to take off vacation time and continue to work on the case as long as it did not interfere with my regular job. A lot of late nights, early mornings, and weekends later, we are still alive, barely, and sure as hell kicking. My work on the case is now and always has been for free and in no way financially beneficial to me. It does not, for instance, allow me to deduct the value of my time from my taxes, as one commenter once suggested I simply must be doing. No, I, like my clients on the case and I think most people, love our world enough to do what I can to help out and am not generally motivated by profit and a quest to die with the most things. What my volunteer work on this case does is allow me to raise holy legal hell and work with fantastic, brave local citizens and environmental groups trying desperately to protect public property they love.
You asked me for a lay description of the latest legal developments. To do that I first want to describe the big picture. I am not a graphic artist or a political scientist, but here to me literally is the big picture:
Not all oligarghs make a lot of their money dumping on the commons but some do, with the Koch brothers, who effectively own Georgia-Pacific, being a prime example. They in turn use the costs savings and the profits to perpetuate the cycle of monetary back scratching in the form of campaign donations and various other ways of putting money into the service of the mercenaries, who remain content and happy to do their bidding.
Three-and-a-half years ago, when Floridians contacted me concerned about the fact that Georgia-Pacific was about to start dumping through a pipeline into the heart of the St. Johns River, I immediately thought of the public trust doctrine as being key to the potential protection of the river. Almost two decades ago, I filed a public trust administrative challenge to another paper mill pipeline (soon to be brought on-line by Buckeye, which is also now effectively owned by the Koch brothers). It might very well have succeeded. Sadly, dear old Joe Cutter, the petitioner who was my client, died, leaving a great case but no petitioner. That case was dismissed upon motion of the same lawyers for Buckeye who were working for Georgia-Pacific, around the same time a mysterious newspaper notice was issued on the Georgia-Pacific pipeline easement, which Georgia-Pacific claims cuts off the right of Floridians to administratively challenge the easement.
A few months and a lot of research later, on behalf of some wonderful local citizens and environmental groups who have been working to protect the St. Johns River for a long time, I filed suit directly in the Florida Supreme Court, which sits in Tallahassee. In Florida, the 'public trust' doctrine as it relates to public surface waters has constitutional status. We believe it can and should be used to protect the river commons with the same vigilance that the Koch brothers would protect their own land. This would in turn not only protect precious surface waters to a much greater degree than typically occurs under the so-called Clean Water Act but also potentially help to break the positive feedback loop of money gained by exploiting the commons. At the very least, we argue, just compensation should be obtained for the encroachment, taking into account the tremendous cost-savings and profits obtained by Georgia-Pacific. And who knows, maybe there will be a positive chain reaction in other places or on other issues such as carbon dumped into the air or fracking waste dumped into the groundwater.
Moreover, our case should be especially compelling because there was a highly misleading 'public' newspaper notice given by Georgia-Pacific. The notice had been approved by the Florida Department of Environmental Protection (FDEP), which is the so-called 'agent' for the Florida Governor and Cabinet officials, who serve as the Trustees of the Internal Improvement Trust Fund, which includes public surface waters like the beautiful St. Johns River.
Unfortunately, our Governor and Cabinet officials are, dare we say it (hell yes, we dare), mercenaries when they are supposed to be fiduciaries. In fact, Tallahassee has quite a few mercenaries, like Washington, D.C. does I hear. They have fought our case at every turn through their agent, FDEP, which prepares their court filings in a way that has nothing to do with keeping the public trust and everything to do with covering up their own curious conduct. So, in essence, the key players of the Florida executive branch, which is supposed to be keeping fiduciary duties to all Floridians, are instead acting as mercenaries for the Koch brothers. So, for now, we have to rely upon the Florida judicial branch.
When the Florida Supreme Court sent the case down to the Leon County Circuit Court in Tallahassee, a Jeb Bush appointee, who serves as the Chief Judge, decided to keep the case himself. He eventually entered proposed order language that FDEP and Georgia-Pacific drafted verbatim. I am arguably not allowed to call him a mercenary because I took an oath thirty plus years ago when I became a member of the Florida Bar to “maintain the respect due to courts of justice and judicial officers.” His opinion was a travesty of evasion and injustice. I don’t believe it is due any respect in the way I use the term 'respect,' when I say respect the earth, respect your mother. We appealed to the First District Court of Appeal, also in Tallahassee.
On May 27, 2015, the First District Court of Appeal issued a 'PCA,' as we feared it would. This stands for 'PER CURIAM. AFFIRMED.' That means, you lose Floridians - and we don’t have to tell you why. That in turn means that there is no further appeal within the Florida judicial branch. I don’t respect that decision either. It is a rubber stamp of a rubber stamp in my view.
That leaves us two judicial branch options. The first we are pursuing at this time. Yesterday, I filed a strongly worded motion to have the First District Court of Appeal issue a written opinion, so that we would then have a basis for appealing to the Florida Supreme Court, where this case started three years ago this month. I also filed a strongly worded motion asking to have the First District Court of Appeal rehear the case 'en banc,' which means the entire set of active judges would sit for the case. If we succeed in getting a written opinion, we will appeal to the Florida Supreme Court, unless of course the First District Court of Appeal en banc decides to rule for us. You can find both of the strongly worded motions at the online account I previously set up by opening this link: https://es.scribd.com/....
If we do not get a written opinion from the First District Court of Appeal, we intend to file with the United States Supreme Court, which, unlike the Florida Supreme Court, has jurisdiction to look at the entire record and grant review of PCA decisions. Long odds, for sure, but from time to time Tallahassee judicial decisions issued without written opinion have wound up in the United States Supreme Court, Gideon v. Wainwright, which established the right to counsel for indigent criminal defendants being one example (and a favorite one to me since I am by day an assistant public defender).
Against all odds, we intend to win this and hopefully give others ideas and incentives on how they might also fight massive corruption. Anyone should feel free to go to the above on-line account and borrow any of the materials I have written, without credit.
Our hope is that the online petition we have started will grow and lead to federal criminal investigations and indictments.
Thank you again for your help.
If you'd like to support this protest: Sign the online petition
and continue to share this story on Facebook, Twitter, Email, Tumblr, Reddit… It starts with exposure, then awareness, then protest, and ultimately ends with change. Thank you, Steve Medina for generously donating his time and energy on this case, the very dedicated Linda Young, Executive Director of Florida Clean Water Network, and all the individuals/organizations working so hard to protect our environment, while challenging those who seek to destroy it for profit.
"Fighting corruption is not just good governance. It's self-defense. It's patriotism." ~Joe Biden