CORTEZ – The Florida Department of Transportation (FDOT) has dismissed with prejudice a second request for a formal administrative hearing regarding FDOT’s plans to someday replace the Cortez Bridge drawbridge with a 65-foot-high, fixed-span bridge.
FDOT issued its final order on Tuesday, Dec. 10 and sent a copy to Joe McClash as the qualified representative of the petitioners who oppose the fixed span bridge. In addition to McClash, the petitioners include Cortez residents Jane von Hahmann, Joe Kane and Linda Molto and FISH (the Florida Institute for Saltwater Heritage), the Cortez Village Historical Society and ManaSota-88.
These individuals and organizations sought a formal hearing before an administrative law judge associated with the State of Florida Division of Administrative Hearings concerning the legality of the process that led to FDOT’s decision to replace the existing drawbridge with a higher fixed-span bridge.
FDOT’s final order notes the first petition for formal administrative hearing was filed on Oct. 29 and resulted in an order of dismissal without prejudice that stated the Division of Administrative Hearings did not have jurisdiction over the claims made by the petitioners. That order gave the petitioners 10 days to file an amended petition.
The final order issued on Dec. 10 noted the petitioners responded by arguing that their initial petition for a formal administrative hearing was appropriate for review by the Division of Administrative Hearings, but failed to provide adequate allegations for any agency action to be reviewed in accordance with Florida Statutes.
The Dec. 10 order states that in both instances the petitioners alleged FDOT failed to comply with a memorandum of understanding between FDOT, the Federal Highway Administration and the National Environmental Policy Act.
“The department (FDOT) and derivatively the Florida Division of Administrative Hearings lacks jurisdiction over petitioners’ claims. It is thus ordered that the first amended petition for formal administrative hearing is dismissed with prejudice for lack of jurisdiction,” the final order states.
McClash response
On Wednesday, Dec. 18, McClash distributed an email in which he shared his thoughts on FDOT’s decision.
“FDOT issued a final order dismissing our petition stating FDOT and DOAH lack jurisdiction to hear the issues raised. This is a disappointing decision, but not unexpected. FDOT took action under a memorandum of understanding with the Federal Highway Administration. The agreement clearly defines actions the state must comply with for replacing a project like the Cortez Bridge. These actions taken on behalf of the federal government are state actions. However, in its desire to place a roadblock to a review by an administrative law judge, FDOT claims these actions are not state actions,” McClash stated in his email.
This ruling defies logic, and most of all allows a state agency to dictate to our community the type of mega bridge or other road projects without recourse provided by our state’s rules. We will evaluate the decision and make a decision by January 10 to appeal this decision, a decision that FDOT exceeds its authority by not forwarding the petition as required to DOAH,” McClash’s email concluded.
