AGENDA

      BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND

      FEBRUARY 11, 2003

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Item 1      Minutes

Submittal of the Minutes from the October 8, 2002 and November 13, 2002 Cabinet Meetings.

(See Attachment 1, Pages 1-25)

RECOMMEND   APPROVAL

************************************************* Item 2      SJRWMD Acquisition Agreement/Acquire 75 Percent Interest from Rayonier Timberlands Operating Company, Limited Partnership/Managing Agencies Designation/Northeast Florida Blueway Florida Forever Project

REQUEST:  Consideration of (1) authorization to enter into an acquisition agreement with the St. Johns River Water Management District to acquire a parcel within the Northeast Florida Blueway Florida Forever project; (2) pursuant to the acquisition agreement, authorization to acquire a 75 percent undivided interest in 8,465 acres within the Northeast Florida Blueway project from Rayonier Timberlands Operating Company, Limited Partnership (Rayonier); and (3) designation of the Department of Environmental Protection, Division of Recreation and Parks and the Department of Agriculture and Consumer Services, Division of Forestry as managing agencies.

COUNTY:  St. Johns

LOCATION:  Sections 03 through 05, 08 through 10, 15 through 17, 20 through 22, 27 through 29, 33, 37 through 42, 44, 45 and 47, Township 09 South, Range 30 East

CONSIDERATION:  $29,934,356 (Board of Trustees' 75 percent share of the total purchase price of $39,912,475)

            APPRAISED BY            SELLER'S      TRUSTEES'

               Ryan     Candler      APPROVED      PURCHASE      PURCHASE      OPTION

PARCEL      ACRES      (07/31/02)      (07/31/02)    VALUE          PRICE            PRICE            DATE 

Rayonier      8,465      $46,450,000      $49,097,000      $49,097,000        *      $29,934,356**      03/21/03

                                           (61%)

*   Rayonier acquired the property from multiple owners over a period of many years.

** The total purchase price is $39,912,475 for 8,465 acres, or $4,715 per acre.

STAFF REMARKS:  The Northeast Florida Blueway project is an "A" group project on the Florida Forever Full Fee Project List approved by the Board of Trustees on August 27, 2002.  The project contains 34,929 acres, of which these would be the first to be acquired.  After the Board of Trustees approves this agreement, 26,464 acres, or 76 percent of the project, will remain to be acquired.

The St. Johns River Water Management District (District) has taken the lead in order to facilitate the acquisition of this joint acquisition.  Department of Environmental Protection (DEP) staff has prepared an acquisition agreement that will allow the District to acquire the Rayonier property in accordance with section 259.041(16), F.S., utilizing the procedures set out in section 373.139, F.S.  On September 13, 1994, the Board of Trustees approved the use of the District's procedures to allow the District to acquire lands to be held jointly by the Board of Trustees and the District.  Incorporated into the acquisition agreement are a number of assurances that the District is giving the Board of Trustees in return for its consideration of this agreement.  The District agreed to: (a) comply with the procedures set out in section 373.130, F.S.; (2) defend the Board of Trustees against all title and survey disputes or defects and environmental contamination associated with each acquisition negotiated by the District

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Item 2, cont.

that were either known or should have been known by the District at the time the District acquired the parcel; and (3) be responsible for responding to any audit, legal or other investigation pertaining to the acquisition.

The District obtained appraisals, negotiated, and entered into an option agreement to acquire this 8,465-acre parcel from Rayonier.  The option agreement provides for an initial closing to take place on or before April 15, 2003, at which time 90 percent of the proceeds of the sale will be disbursed to Rayonier.  A final disbursement will take place on or before July 31, 2003, when the final approved survey and the final appraised value are certified.  The total purchase price for the parcel is $39,912,475.  The Board of Trustees will obtain an undivided 75 percent interest in the parcel for a purchase price of approximately $29,934,356, with the District obtaining the remaining 25 percent undivided interest in the parcel for a purchase price of approximately $9,978,119.  The actual amount of each party's contribution may change after a final determination of acreage is made.

The Governing Board of the District adopted Resolution No. 2003-04 on December 10, 2002, which approved the acquisition agreement between the District and the Board of Trustees, the purchase price, and the option agreement between the District and Rayonier.  The St. Johns County Board of County Commissioners adopted Resolution 2003-06 on January 7, 2003, which declared its support for the acquisition.  After the Board of Trustees approves this acquisition, the District will exercise the option and purchase the property from Rayonier.  The District will close the transaction on behalf of the Board of Trustees.

There is merchantable planted pine timber on the property that was considered in the appraisal.  The seller is reserving the right to harvest the pine timber on approximately 639 designated acres for three years from the date of closing.  There is currently a hunting lease and a honeybee lease on the property, both of which will be terminated prior to closing.

All mortgages and liens will be satisfied at the time of closing.  Approximately 1,087 acres of the property are encumbered by outstanding oil, gas and mineral reservations, which are held by multiple owners.  The large majority of the ownerships only include royalty rights. Rayonier is currently acquiring as many of the reserved rights as possible.  There are approximately 16 separate easements on the property in favor of Florida Power & Light, SprintCom, Inc., Florida Inland Navigation District, State Wide Paving, Inc. and the State of Florida.  When determining market value for the property, the appraisers considered the oil, gas and mineral reservations, and the easements. It was concluded that neither affected value.

On June 22, 1999, the Board of Trustees approved a staff recommendation to delegate to the Department of Environmental Protection (DEP) the authority to review and evaluate marketability issues as they arise on all chapter 259, F.S., acquisitions and to resolve them appropriately.  Because these issues were discovered during preliminary due diligence, further research may change the facts and scope of each issue and, therefore, DEP staff will review, evaluate and implement an appropriate resolution for these and any other title issues that arise prior to closing.

A title insurance policy and Phase I environmental site assessment will be provided by the District prior to closing.  If it is determined that a Phase II environmental site assessment is needed, the seller will be responsible for all expenses relating to the assessment and any remediation deemed necessary by the Phase II environmental site assessment or the District.

The Northeast Florida Blueway is a chain of marshes and tidal lands extending from Mayport south through much of St. Johns County. Estuarine Tidal Marsh covers much of the project.  These marshes and open water areas of the Blueway provide important nurseries for many species of game fish and shrimp, and ultimately support a recreational and commercial fishery.  Acquisition of this proposal would protect fragile marshes, tidal creeks, and the associated

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Item 2, cont.

uplands that buffer these fragile resources.  The intention of the project is to connect existing natural areas and greenspace to form a conservation lands corridor along the north-south waterway.

Acquisition of this parcel will provide protection to the last remaining large and relatively undisturbed marsh front area within the Guana-Tolomato-Matanzas National Estuarine Research Reserve.  The acquisition will also protect five miles of shoreline west of the Matanzas River from State Road 206 to Pellicer Creek, as well as creating approximately 16,000 acres of contiguous conservation land including Faver-Dykes State Park, Pellicer Creek Conservation Area, the Florida State Agricultural Museum and Princess Place.  Florida Natural Areas Inventory (FNAI) Potential Natural Areas analysis revealed that the property contains 17 types of natural communities and 70 or more FNAI listed species.  Located on the property are two eagle nest sites and a regionally significant wood stork rookery.  The Department of Agriculture and Consumer Services, Division of Forestry (DOF) is dedicated to the perpetual protection and preservation of that colony.  This is also the site of significant archeological and historical resources.

Pursuant to section 259.032(9)(e), F.S., staff recommends that the Board of Trustees designate DEP's Division of Recreation and Parks (DRP) as the managing agency for the property north of Faver-Dykes State Park and south of the haul road between US Highway 1 and a spoil site on the Matanzas River, and DOF as the managing agency for the remainder of the parcel.  DRP will manage its parcel as an addition to Faver-Dykes State Park, and DOF will manage its parcel under a multiple-use management regime consistent with the State Forest system.

This acquisition is consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan.

(See Attachment 2, Pages 1-73)

RECOMMEND APPROVAL

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Item 3      Waiver of Eminent Domain Policy/Eminent Domain Authorization/DOA/ Save Our Everglades Florida Forever Project (Phases VI & XII)

DEFERRED FROM THE JANUARY 28, 2003 AGENDA

REQUEST:  Consideration of a request to (1) obtain a waiver of the Board of Trustees' eminent domain policy that eminent domain will not be exercised to acquire a homestead without the written approval of the owner; (2) direct the Department of Environmental Protection to acquire by the exercise of the power of eminent domain pursuant to the provisions of chapters 259, 73 and 74, F.S., fee simple title to all remaining land within the portion of the Save Our Everglades Florida Forever project (Phases VI and XII) lying south of I-75 on which two bona fide offers have been made; and including any parcel that has not been settled or sent to eminent domain, even if there is an executed contract that is unable to close; (3) obtain authority to exercise the power of eminent domain concerning claimed prescriptive rights, if any, to all roadways, rights-of-way or primitive roads/dirt farm trails within the project area to include, but not limited to, that certain Miller Boulevard Extension running a mile plus or minus to the north of U.S. 41, along and into the Golden Gate Estates South project area; and (4) delegate authority to the Secretary of the Department of Environmental Protection, or his designee, to accomplish the acquisitions as described herein through negotiation or condemnation, including authority to prepare and execute all necessary parcel-specific condemnation resolutions.

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Item 3, cont.

COUNTY:  Collier

STAFF REMARKS:  The Save Our Everglades project is an "A" group project on the Florida Forever Small Parcel Project List approved by the Board of Trustees on August 27, 2002.  That portion of the project lying south of I-75, commonly referred to as Golden Gate Estates South, contains 55,247.17 acres, of which 51,265.07 acres have been acquired or are under agreement to be acquired, leaving 3,981.98 acres, or 7 percent, remaining to be acquired.  The Golden Gate Estates South portion of this project includes the Southern Golden Gate Estates (SGGE) subdivision and surrounding acreage tracts bordered by I-75 to the north, US-41 to the south and the Fakahatchee Strand and Belle Meade Florida Forever projects to the east and west, respectively.

History to Date:

On January 23, 2001, the Board of Trustees recognized that (1) property within the Save Our Everglades Florida Forever project lying south of I-75 is of special importance to the state; (2) the acquisition of the land is necessary to protect hydrological connections among Big Cypress National Preserve, Fakahatchee Strand State Preserve, and Everglades National Park, and to protect and restore the Everglades, which is an endangered natural resource of unique value to the state; and (3) the failure to acquire this property will result in irreparable loss to the state and seriously impair the state's ability to manage or protect other state-owned lands.  The Department of Environmental Protection (DEP) has since been directed by the Board of Trustees to proceed with acquisition of the parcels in Phases VI and XII.

As part of the Everglades Restoration Project, DEP has committed itself to the acquisition of the Golden Gate Estates South properties by the end of June 2003 to make the land available to the South Florida Water Management District (SFWMD).  SFWMD's construction project will restore the land to its natural state in order to restore the hydrologic conditions in the western Everglades.  The roads and canals will be removed and water flow will be restored across this area in order to recreate wetlands to benefit the Everglades and restore fresh water flow to protect coastal estuaries.

All property must be titled in the State of Florida before construction within the Golden Gate Estates South area can begin.  It is anticipated that Congress will be asked in either the spring or fall of 2003 to approve the construction funding, with construction to begin in early 2004.  We have used federal funds in a joint participation agreement to acquire the land.  This Federal Grant expires on December 31, 2003.  All acquisition needs to be completed by December 31, 2003 in order to assure maximum federal participation in the acquisition process.

Time Challenges in Acquiring Remaining Parcels:

To assure all land is titled in the State of Florida by the end of 2003, all lawsuits for eminent domain must be filed by June 15, 2003.  This will provide sufficient time to identify ownership in order to be assured the proper party is named in the lawsuit or all remaining properties within the project boundaries are identified.  It must be remembered that roads will need to be abandoned by the county once the state has acquired all abutting property in order to obtain free and clear use of the land for the construction project.  This will take some time after title is perfected in order to provide public notices and hearings on the abandonment.  Simply obtaining title does not complete the litigation.  There is still the trial or mediation process to resolve the compensation issue.  If these issues need to be closed out by the end of 2003 in order to obtain maximum federal funding, then the earlier the parcels are put into litigation, the better chance of timely completion.

The approval by the Board of Trustees is just the first step in the eminent domain process.

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*************************************************   Item 3, cont.

Once the approval for the use of eminent domain is obtained, the files are forwarded to the Office of the Attorney General.  The Attorney General's Office will conduct title searches. Pleadings must be prepared and hearing times obtained from the court before the lawsuit can be served on the appropriate parties.  Since many of the owners are out of state or difficult to locate, notice of the action must also be published in a local newspaper once a week for two consecutive weeks.  Copies of the petition are then mailed to the out-of-state defendants.  It takes approximately 90 days to assure that proper service and timely notice of the hearing to acquire title is provided.  An action that is filed in May will most likely not be heard by the court for three months at the earliest.  There are often continuances granted for these hearings, so there is no assurance that all hearings would be held within the 90 days.  Title does not pass to the state until a deposit is made into the court registry, which occurs within 20 days after the court enters its order of taking.

There is also the issue of clearing the property after the state obtains title.  Often the court will allow the occupants of the property to stay on after title passes to the state.  This issue is especially important in the case of homestead or occupied property in order to allow sufficient time to locate replacement housing.

As long as there are parcels to be acquired, the state does not have full control of the project area in order to protect the land from garbage disposal or environmental degradation.  The majority of the property has been acquired, but any tracts in private ownership reduce the ability of the managing agency, the Department of Agriculture and Consumer Services, Division of Forestry (DOF), to control access and use of the area. The longer the process takes, the more likelihood that additional people could move into the project area and attempt to qualify for relocation benefits paid by the state.  This relocation process also takes time.

It is in the best interest of the State of Florida to move as quickly as possible to obtain title to all parcels within the Golden Gate Estates South project area for these reasons:

* to allow appropriate time to obtain Orders of Taking and conduct other eminent domain proceedings required to obtain 100 percent ownership of the project area;

* to allow appropriate time to hold trials to determine the value of the six parcels owned by five landowners requesting compensation well in excess of the federal guidelines for compensation benefits;

* to allow time to negotiate a settlement with the Miccosukee Indian Tribe and other remaining landowners in the eminent domain process within the time constraints given by the federal grant;

* to allow appropriate time to relocate qualified persons;

* to allow appropriate time to abandon public roads, rights-of-way or primitive roads and dirt farm trails within the project area;

* to obtain full management control of the entire project area;

* to prevent continued garbage dumping and other environmental degradation of the area that is actively occurring in the area;

* to prevent private citizens from moving onto abandoned state-owned parcels with abandoned mobile homes on the state-owned parcels and living on these parcels in an attempt to qualify and collect federal relocation benefits at a continuing financial cost to the acquisition program;

* to prevent continued vandalism and destruction of mobile homes and other structures now owned by the state, but not yet cleared from the properties, and allow DOF opportunity to implement its management plans to protect the state's interest in the lands acquired until restoration begins;

* to prevent the possibility of the five homestead landowners remaining to further construct, renovate or build additional un-permitted structures at an additional land acquisition cost.  Or in the alternative, by the construction of said structures without

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*************************************************   Item 3, cont.

permits issued from the Building and Code Enforcement office for Collier County, the possibility of additional fines, penalties and other judgments being placed on the remaining properties, at an additional cost and payment by the state as part of the land acquisition program for this project; 

* to prevent injury or loss of life to managing agency personnel by the careless acts of others (i.e. private citizens  growing marijuana on public land as verified in a recent news report) while managing that portion of the Golden Gate Estates South project area in state ownership, pending acquisition of the remaining acreage;

* to protect the state's vested interest in the acquisition of the lands to date (i.e. as of November 30, 2002, over $89 million state and federal acquisition dollars have been expended); and

* to comply with the terms and provisions of the federal grant and complete the land acquisition process by December 31, 2003.

Any delay in providing eminent domain approval also encourages the remaining potential relocatees to procrastinate in finding replacement housing and discourages the owner from completing the necessary negotiations to resolve the issue of relocation benefits.

Remaining parcels to be acquired (Phase VI and Phase XII):

Phase VI:

Phase VI in its entirety is owned by the Miccosukee Indian Tribe and consists of three parcels totaling 800 acres, more or less, of land within the Golden Gate Estates South project area known as South of the Border. The staff of the Office of Attorney General has determined these parcels qualify under the eminent domain provisions set forth in chapters 259, 73 and 74, F.S.

One of the parcels owned by the Miccosukee Indian Tribe is located along Miller Boulevard Extension, a primitive road/dirt farm trail located in the southwestern most boundary of the project.  At this time, negotiations for a settlement agreement between the Collier County Commissioners and the owners along the extension, to include the Board of Trustees, have essentially stopped.  Thus any claimed prescriptive easement rights by Collier County are scheduled to be determined in the local court system.  All parcels along the Miller Boulevard Extension have been purchased at an Order of Taking hearing, or have been purchased by the Board of Trustees, excluding the parcel owned by the Miccosukee Indian Tribe. 

Phase XII:

In order to restore the land, SFWMD will have to remove the roads, canals and other improvements.  This will include all of the residences, recreational facilities and other structures within this 55,247.17-acre project area, excepting those structures to be used for management purposes.  In order to meet the project timetable and avoid costly delays, it is requested that the Board of Trustees authorize DEP to proceed with filing eminent domain actions to acquire the homestead properties within the project area, even without the homeowner's consent to the action.  DEP has been unable to obtain the written permission from the two remaining homeowners to file the necessary eminent domain actions.  The owner of each homestead displaced will receive relocation and replacement housing benefits under the Federal Uniform Relocation Assistance and Real Property Policies Act of 1970.  This will include comparable replacement housing that is decent, safe, and sanitary, functionally equivalent to the displacement dwelling, and adequate in size to accommodate the occupants.  The filing of these eminent domain actions will require a waiver of the Board of Trustee's policy that eminent domain will not be exercised to acquire a homestead without the written approval of the owner.

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These two owners who also have been identified as qualifying for homestead status and would fall under the Board of Trustees' homestead eminent domain policy.  These parcels are either the owner's primary residence or the owner would qualify under the Federal Relocation Program as a displaced homeowner.  Any Federal Relocation Housing Payment (RHP) or relocation payment for displaced homeowner would be in addition to the payment for the property through the land acquisition effort of DEP's Division of State Lands (DSL) staff.  Negotiations are at an impasse with these remaining homestead landowners.  It is the opinion of the staff from the office of Attorney General handling the eminent domain caseload that the value of these two homestead parcels should best be determined through the eminent domain process.  To allow enough time for potential jury trials, the authority to acquire these parcels by the exercise of the power of eminent domain pursuant to the provisions of chapters 259, 73 and 74, F.S. must be granted DSL staff.

Additionally, there are eight parcels in private ownership that have been served with the required second bona fide offer and these parcels are part of the Phase XII.  These parcels, located in different areas of the project, were inadvertently left off of previous requests for eminent domain. 

Rights-of-Way:

Staff is requesting authority to exercise the power of eminent domain concerning claimed prescriptive rights, if any, to all roadways, rights-of-way or primitive roads/dirt farm trails within the project area.  This request is made in order to clear and provide fee simple title to all the land contained within the project boundary.

The authority requested for eminent domain covers all parcels contained herein.

Public acquisition is essential to continue the conservation, preservation and restoration of this endangered portion of the western Everglades ecosystem that is a vital component of the Comprehensive Everglades Restoration Plan (CERP).  Conserving this land is critical to the ecosystem in the western Everglades, its wildlife and the water quality throughout the area.

In 1996, the hydrological restoration plan was identified as a "Critical Project" under the Federal Water Resources Development Act making it eligible for federal funds.  The project was subsequently added to CERP. 

The acquisition will allow the restoration of significant wetlands crucial to the reestablishment of the historic water flow pattern in the western Everglades.  Nearly half of this region's water flows into Everglades National Park.

Purchasing this portion of the Save Our Everglades Florida Forever project will also help preserve and restore the fresh water flow necessary for maintaining the rich productivity of Gulf Coast estuaries, such as Rookery Bay and the Ten Thousand Islands.  Moreover, the timely implementation of the hydrological restoration plan will restore important habitat for numerous endangered and threatened species, including the Florida panther, one of the world's most endangered mammals.

Public acquisition of this portion of the Save Our Everglades Florida Forever project will preserve a large piece of South Florida's unique ecosystem.  Ultimately, this will contribute to the formation of a continuous public conservation corridor extending across South Florida from the Gulf Coast to approximately ten miles from the Atlantic Ocean.  It will help protect the western Everglades ecosystem from encroachment of residential, commercial and industrial development.

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Item 3, cont.

Offer Information:

On July 11, 2000, the Board of Trustees authorized DEP's Director of the Division of State Lands (DSL), or her designee, to extend bona fide offers and approve any contract for the sale and purchase of land at $5,000 over or up to 125 percent of the appraised value, whichever is greater, when the purchase price per parcel does not exceed $50,000, and at up to 125 percent of the appraised value when the purchase price per parcel exceeds $50,000.   Offers to purchase the remaining land within the project area have been presented to the landowners in multiple phases.  To date, parcels within Phases I, II, III, IV, V, VII, VII-A, VIII, IX, IX-A, X, XI and XI-A that cannot be acquired voluntarily are being processed through the court system of Collier County.

Negotiations for the acquisition of the remaining 13 parcels within Phase VI and XII have reached an impasse; however, the bona fide offer requirement of section 259.041(14), F.S., has been satisfied.  In the event one or more of the parcels placed under contract cannot close for any reason, the authority requested today covers all 13 parcels.  Parcels under contract will be held by DSL and only parcels that have reached impasse or parcels that cannot be closed by voluntary means will be turned over to the Office of the Attorney General.

Section 259.041(14), F.S., authorizes the Board of Trustees, by majority vote of all of its members, to direct DEP to exercise its power of eminent domain pursuant to the provisions of chapters 73 and 74, F.S.  Eminent domain may be used to acquire any of the property on the Florida Forever "A" group project priority list if (1) the state has made at least two bona fide offers to purchase the land through negotiation and an impasse between the state and the land owner has been reached; and (2) the land is of special importance to the state because (a) it involves an endangered or natural resource and is in imminent danger of being developed; (b) it is of unique value to the state and failure to acquire the property would constitute an irreparable loss to the state; or (c) the failure to acquire the property would seriously impair the state's ability to manage or protect other state-owned lands.

The parcels included in Phase VI and in Phase XII of the Save Our Everglades Florida Forever project, and any parcel that has not been settled or sent to eminent domain, even if there is an executed contract that is unable to close, lying south of I-75 meet these criteria: (1) the state has made at least two bona fide offers and has been unable to acquire these parcels through negotiation; and (2) in section 373.4592(1), F.S., the legislature has recognized that the Everglades ecological system is unique in the world and one of Florida's great treasures.  They also recognize that the CERP is important for restoring the Everglades ecosystem and sustaining the environment, economy, and social well being of South Florida.  The Everglades ecological system is endangered as a result of adverse changes in water quality, and in the quantity, distribution, and timing of flows and, therefore, must be restored and protected.  The hydrological restoration of these lands is an essential component of the CERP.

Pursuant to the Board of Trustees' eminent domain policy, DSL has mailed proper notice to all owners of record in Phase VI and in Phase XII at least 45 days prior to this Board of Trustees' meeting.  In accordance with the eminent domain policy, the notice advised the owners that homesteaded property was exempt from eminent domain without the owner's written permission. 

As of January 14, 2003 at 5:00 p.m., only one response to the written notice had been received.  The respondent did not object to the use of eminent domain.

If the Board of Trustees approves this item, DSL intends to amend its existing contract with the Office of the Attorney General to handle the condemnation of these parcels.  DSL staff has reviewed the current tax rolls for Collier County, Florida, and status of negotiations for remaining parcels and does not expect to tender additional second bona fide offers.  However,

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Item 3, cont.

should additional second bona fide offers be required, staff will return to the Board of Trustees to seek authority to pursue those parcels that have reached impasse or parcels that cannot be closed by voluntary means. 

The property will be managed by DOF as an addition to Picayune State Forest.  DEP's Division of Recreation and Parks will manage the property in the area east of the Faka Union Canal.  SFWMD will coordinate the implementation of the hydrologic restoration project.

These acquisitions are consistent with section 187.201(10), F.S., the Natural Systems and Recreational Lands section of the State Comprehensive Plan.

(See Attachment 14, Pages 1-20 submitted with the January 28, 2003 agenda.)

RECOMMEND APPROVAL