Modern, Inc. v. Florida, Department of Transportation (381 F. Supp. 2d 1331, 2004)

ORDER

PRESNELL, District Judge.

This cause comes before the Court for consideration on the following:

1) the United States Fish and Wildlife Service’s (“USFWS”) Motion to Dismiss (Doc. 46), and Plaintiffs’ Response in Opposition thereto (Doc. 56);

2) St. Johns River Water Management District’s (“St-Johns”) Motion to Dismiss (Doc. 47) and Memorandum of Law in Support thereof (Doc. 50);

3) State of Florida, Department of Transportation’s (“FDOT”) Motion to Dismiss (Doc. 51) and Memorandum of Law in Support thereof (Doc. 52);

4) Plaintiffs’ Response in Opposition to St. Johns’ and FDOT’s Motions to Dismiss (Doc. 57);

5) Attachments filed jointly (Doc. 61); and

6) Plaintiffs’ Statement of Scope of Issues Relating to the Hacienda Road Mitigation Project (Doc. 64).

The Court heard oral argument on December 19, 2003 (Doc. 65), following which St. Johns filed a Reply Memorandum (Doc. 67), and Plaintiffs filed a Surreply (Doc. 69).

1. Background

The following facts are gleaned from the Plaintiffs’ Third Amended Complaint as well as the administrative and state proceedings’ records.

Plaintiffs Modern and Omni own tracts of land (“the Properties”) in North Brevard County near the intersection of 1-95 and State Road 50. (See Doc. 45, Exs. AE). The Properties originally were part of an area of land platted in 1911 called the Titusville Fruit and Farm Lands Company Subdivision. (See Doc. 45, Ex. F). The land — including Plaintiffs’ Properties — was traditionally dry and thus suitable for commercial use and development. Plaintiffs allegedly enjoy express and common law easement rights in certain drainage canals and ditches adjacent to their Properties. Allegedly, these drainage easements are necessary to drain the Properties for continued use as drylands.

In the 1970s, in an effort to protect the now-extinct dusky seaside sparrow, USFWS took title to the St. Johns National Wildlife Refuge (“the Refuge”). Plaintiffs, allege, however, that USFWS took title to the Refuge subject to existing rights of way and the drainage easements.

In the late 1980s, St. Johns permitted FDOT to fill several miles of drainage canals located in and adjacent to the Refuge’s rights of way. FDOT filled these drainage canals to create wetlands in mitigation of the effects of the widening of State Road 50. Plaintiffs allege that neither FDOT nor St. Johns gave them notice prior to filling the drainage canals and that St. Johns failed to consider adequately the offsite effects of this mitigation project, known as the Hacienda Road Project.

Over the years, the capacity of the land to hold water decreased. In the mid-1990s, the Properties allegedly began to suffer from flooding due to increased water levels, rendering certain portions of the Properties unusable and/or diminished in use and value. Thinking that the Hacienda Road Project caused the flooding, Plaintiffs notified St. Johns and FDOT of its intent to file suit for restoration of its drainage easements. An agreement allegedly was reached between private property owners (including Plaintiffs), Brevard County, USFWS, St. Johns, and FDOT, under which inter alia Brevard County would clean out a portion of the drainage canal system. In addition, in January 1997, claiming to do “maintenance” work, Modern excavated two ditches on wetlands that allegedly had, in the past, drained the Properties. Modern did not have a permit for this work. Part of the excavation site was on Refuge land and included portions of the Hacienda Road Project. The site is entirely within St. Johns’ jurisdiction.

In March 1997, USFWS complained to St. Johns that Modern’s excavation was adversely impacting the Refuge’s fish and wildlife by draining wetlands. St. Johns investigated the matter, and on May 14, 1997, held a meeting at which it agreed to issue an Emergency Order directing all drainage canal work to cease and ordering blockage of the system to recreate the wetlands. Plaintiffs allege that this meeting was held without notice to them or any other adjacent property owner. St. Johns issued an Emergency Order authorizing installation by USFWS of two earthen weirs within the Refuge’s drainage canal system to return the water elevations to their pre-excavation levels and thus prevent further drainage. (See Doc. 50, Attach. B).

On May 29, 1997, Plaintiffs filed petitions for review of the Emergency Order pursuant to Florida Administrative Procedure Act Chapter 120. (Doc. 50, Attach.C). Plaintiffs sought rescission of the Emergency Order, corrective action, and allowance for continued “maintenance” work.

Thereafter, on August 20, 1997, St. Johns filed an administrative complaint and proposed order against Plaintiffs which, if granted, would have required Modern to undo all work on the system and to maintain permanent water levels exceeding a certain elevation. (Doe. 50, Attach.D). A few weeks later, on September 3, 1997, Plaintiffs filed a petition for a formal administrative hearing. (Doc. 50, Attach.E). All of these matters were consolidated into one administrative proceeding in October 1997.

Meanwhile, in May 1997, Plaintiffs filed suit in the Eighteenth Judicial Circuit Court for Brevard County, seeking both an injunction to reopen the drainage ditches and compensation for interference with their drainage easement rights. On January 9, 1998, however, the Circuit Court dismissed Plaintiffs’ complaint for failure to exhaust administrative remedies and for failure to join USFWS as an indispensable party. (Doc. 50, Attach.F). The Circuit Court also ordered that the suit be held in abeyance pending the administrative outcome. (Doc. 69, Ex. A).

The administrative proceedings thus went forward. The Administrative Law Judge (“ALJ”) heard the consolidated cases in June 1998, and on June 15, 1999, issued a thorough and extensive Recommended Order (Doc. 50, Attach.I) essentially ruling on three main issues: 1) whether the issuance and underpinnings of the Emergency Order were valid; 2) whether Plaintiffs fell within one of three “maintenance” exemptions to the rule requiring a permit for the excavation; and 3) whether St. Johns’ use of an agency statement to interpret the term “maintenance” constituted an invalid unadopted rule. Only the first two issues are relevant herein.

In his Recommended Order, the ALJ found that the Titusville Subdivision Plat established a drainage system of intersecting canals. (Id. at ¶ 17). The ALJ also found that Modern’s excavation caused an emergency (id. at ¶ 105) and that there was evidence to support issuance of the Emergency Order as well as its legal and factual underpinnings. (Id. at ¶¶ 374-377). Further, the ALJ found that a permit was required for the excavation and that Plaintiffs had failed to obtain this permit. (Id. at ¶ 94). Plaintiffs argued that St. Johns was estopped from enforcing permit requirements against them, but the ALJ found that St. Johns did not make any misrepresentations of material fact on which Plaintiffs could have relied to then-detriment. (Id. at ¶¶ 204-212, 399-402). The ALJ also found as a matter of fact that Plaintiffs were not treated disparately from others with regard to the permit rule. (Id. at ¶¶ 213-237).

During the proceedings, St. Johns and FDOT filed a Motion for Protective Order and Motion in Limine seeking to preclude Plaintiffs from discovering and introducing evidence of the Hacienda Road Project and its impact on the contested area. Defendants argued that the administrative body could not determine the nature or extent of easement rights or any other real property issue. Plaintiffs counterargued that such evidence was essential to their ability to exhaust their administrative remedies. The ALJ ultimately denied the Motion in Limine and allowed Plaintiffs to discover and introduce evidence regarding the Hacienda Road Project and its role in alleged flooding problems on their Properties. Ultimately, the ALJ found that the Hacienda Road Project did not decrease floodplain storage capacity and did not cause water to flood Plaintiffs’ Properties. (Id. at ¶¶ 76, 77, 86).

To determine whether Plaintiffs’ activities fell within the exemptions to the permit rule, Plaintiffs presented the evidence regarding their alleged easements within the drainage system. The ALJ again found that, even assuming arguendo that Plaintiffs had drainage easements, they still were not exempt from statutory permit requirements (id. at ¶263) and they had not met the requirements for the exemptions. (Id. at ¶¶ 419-420). Moreover, the ALJ held that St. Johns’ and FDOT’s regulations did not impair their use of and rights in those easements. (Id. at ¶¶ 404, 407). In making this decision, the ALJ expressly said he lacked jurisdiction to decide the “existence, nature, and extent of the property rights .... Jurisdiction over such matters lies in the circuit court.” (Id. at ¶ 403 (citations omitted); accord id. at ¶ 423).

With regard to the weirs, the ALJ determined that they were reasonably necessary to protect Refuge life and uses (id. at ¶ 135) and that “Neither of the weirs caused flooding or other adverse impacts on nearby property.” (Id. at ¶ 138). Rather, the ALJ found that the weirs had the same effect on water levels as the high elevation areas had on the Properties pre-excavation. (Id.).

Following issuance of the Recommended Order, St. Johns’ Governing Board issued its Final Order (Doc. 50, Attach. K), adopting the majority of the ALJ’s Recommended Order and concluding in relevant part that the Emergency Order was properly issued and the proposed agency action should be upheld.

Plaintiffs appealed the Final Order to the First District Court of Appeal for the State of Florida. (Doc. 50, Attach.L). In relevant part, Plaintiffs argued that portions of the Recommended Order adopted by the Final Order improperly adjudicated property rights that should have been determined by a circuit court. (Id. at 33-37). They further argued that they were entitled to a declaratory judgment from a court of competent jurisdiction as to the extent of them easements and attendant entitlements. (Id. at 39-40).

In response, St. Johns and FDOT argued that the District Court of Appeal should not determine whether Plaintiffs have easement rights. (Doe. 57, Ex. D at 6-7, 33-36). The First District Court of Appeal affirmed the Final Order but without addressing the real property issues. See St. Johns River Water Mgmt. Dist. v. Modern, Inc., 784 So.2d 464 (Fla. 1st DCA 2001).

Following the administrative proceedings, Plaintiffs filed an amended complaint in Circuit Court, which the Circuit Court dismissed because USFWS was an indispensable party. (Doc. 50, Attach.N). Plaintiffs thus served USFWS, and USFWS then removed the case to this Court.

Plaintiffs thereafter filed in this Court a Second Amended Complaint and a Third Amended Complaint. (Doc. 45). The Third Amended Complaint alleges 12 Counts as follows: (I) Inverse Condemnation of Express Easements against St. Johns; (II) Inverse Condemnation of Express Easements against FDOT; (III) Inverse Condemnation of Real Property against St. Johns; (IV) Inverse Condemnation of Real Property against FDOT; (V) Denial of Equal Protection under the U.S. and Florida Constitutions against St. Johns; (VI) Denial of Substantive Due Process Under the U.S. and Florida Constitutions; (VII) Denial of Procedural Due Process under the U.S. and Florida Constitutions; (VIII) Declaratory Relief; (IX) Trespass; (X) Nuisance; (XI) Permanent Injunctive Relief; and (XII) Estoppel.

Defendants now separately move to dismiss Plaintiffs’ Third Amended Complaint on various grounds addressed below. St. Johns and FDOT also move for summary judgment on Count VIII.

II. Standards of Review

A. Motion to Dismiss

In ruling on a motion to dismiss, a trial court must view the complaint in the light most favorable to the plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), and must limit its consideration to the pleadings and any exhibits attached thereto. Fed.R.Civ.P. 10(c). GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir.1993). The Court will take the Complaint’s allegations as admitted by Defendant and liberally will con-strae them in Plaintiffs favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). The Court will not dismiss the Complaint for failure to state a claim unless it appears beyond a doubt that the Plaintiff cannot prove any set of facts that support a claim for relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

B. Summary Judgment

A party is entitled to judgment as a matter of law when the party can show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). The substantive law applicable to the case determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of proving that no genuine issue of material fact exists. Id. at 323, 106 S.Ct. 2548. In determining whether the moving party has satisfied its burden, the court considers all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion, and resolves all reasonable doubts against the moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. If the record presents factual issues, the court must not decide them, but rather, must deny the motion and proceed to trial. Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981).

III. Analysis

A. Counts I — IV: Inverse Condemnation

1. Res Judicata

Defendants St. Johns and FDOT assert that Plaintiffs elected to pursue their inverse condemnation (or state takings) claims in the administrative proceedings below and therefore are subject to res judicata. Specifically, Defendants assert that Plaintiffs lost on the facts with regard to whether the Hacienda Road Project and weir construction caused flooding in the contested area and that, if Plaintiffs wanted to appeal these findings and seek a determination of whether a taking had occurred, they should have done so in the District Court of Appeal. Plaintiffs counter that, as a matter of law, they could not bring their inverse condemnation claims before the District Court of Appeal.

Neither party is entirely correct. The state of the law with respect to inverse condemnation claims and adjudication of the propriety of agency actions stems from Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 427 So.2d 153 (Fla.1982), and its progeny. It is most easily summarized as follows:

1) If a property owner concedes the propriety of an agency action, the owner may proceed directly to circuit court to pursue an inverse condemnation claim. Id. at 156.

2) If a property owner contests the propriety of an agency action but has made an adequate record on the takings issue before the ALJ, the party may appeal the propriety of the agency action and seek adjudication of its takings claim before the district court of appeal. See Lee County v. New Testament Baptist Church of Fort Myers, Fla., 507 So.2d 626, 627-28 (Fla. 2d DCA 1987); see also Key Haven, 427 So.2d at 159 (“The claim of the taking of property can be raised in this direct review proceeding,' and, if an adequate record is available, the district court could require the state to institute condemnation proceedings.”) (emphasis added) (citations omitted). In this scenario, the ALJ would find the facts, and if raised on appeal, the district court would decide whether a taking had occurred based on the existing record after determining whether the agency action was proper. Key Ha ven, 427 So.2d at 159.

3) If a property owner contests the propriety of an agency action, the owner may seek review of the agency action in the district court of appeal and then file an inverse condemnation claim in the circuit court. Albrecht, 444 So.2d at 12-13. The property owner may not, however, simultaneously pursue an appeal of the agency action before the district court and a takings action in the circuit court. Janson v. City of St. Augustine, 468 So.2d 329, 330 (Fla. 5th DCA 1985). See also Bowen v. Florida Dep’t of Envtl. Reg., 448 So.2d 566, 570 (Fla. 2d DCA 1984) (expressing in dicta that if an administrative appeal has been instituted, a circuit court could not hear the takings issue until the administrative proceedings were complete).

In the instant case, Plaintiffs did not accept the agency action as proper but instead elected to seek review of the propriety of the agency action in the District Court of Appeal. Plaintiffs also had on file a separate lawsuit in Circuit Court, alleging inverse condemnation. Because the Circuit Court had held the takings suit in abeyance pending the administrative outcome, Plaintiffs were forbidden from simultaneously pursuing their takings claim in the district court of appeal. Janson, 468 So.2d at 330.

Defendants insist, however, that despite the abeyance, Plaintiffs raised the takings issue in the administrative proceeding and made an adequate record such that Plaintiffs are precluded from raising the issue before this Court. There is no dispute that Plaintiffs alleged in their administrative pleadings that Defendants’ conduct effected a taking. There also is no dispute that the ALJ found that neither the Hacienda Road Project nor the weir construction caused flooding in the contested area. Nonetheless, just because something was plead and limited fact findings made at the administrative level does not necessarily mean an issue was litigated for purposes of res judicata. The Court finds that the administrative proceedings below did not fully and fairly explore the inverse condemnation claim and all its attendant issues and hence the record was not adequate with regard to whether a taking occurred. Findings regarding the Hacienda Road Project, weir construction, and flooding related thereto were not made in the context of inverse condemnation but rather only to set the stage for the ALJ’s determination regarding the propriety of the Emergency Order and any potential exemptions to the permit rule.

Moreover, as noted in Atlantic International Investment Corporation v. State, 478 So.2d 805 (Fla.1985) (per curiam) — a case almost on all fours with the instant matter — the property owner was not barred “from bringing a taking claim in circuit court when that taking issue has not been addressed or resolved in the district court.” Id. at 808 (emphasis added). In the instant case, as Defendants recognize, Plaintiffs did not pursue the takings claim before the district court on appeal. Hence, the inverse condemnation claim is not barred by res judicata.

Indeed, to establish res judicata, there must be identity of: 1) the thing sued for; 2) the cause of action; 3) the persons or parties to the action; and 4) the quality or capacity of the person for or against whom the claim is made. Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299, 1307-08 (11th Cir.1992). If the second suit is based upon the same parties and the same causes of action, the prior judgment serves as an estoppel to all issues actually litigated and all issues that could have been litigated. Agripost, Inc. v. Miami-Dade County, 195 F.3d 1225, 1232 (11th Cir.1999); Albrecht, 444 So.2d at 12. If the second suit is based upon the same parties but different causes of action, then “the prior judgment will not serve as an estoppel except as to those issues actually litigated and determined in it.” Albrecht, 444 So.2d at 12. To determine whether the cause of action is the same, a court must ask whether “the facts or evidence necessary to maintain the suit are the same in both actions.” Id. (citations omitted).

In the instant case, the facts and evidence necessary to maintain the two suits are not the same. Lake Lucerne Civic Ass’n v. Dolphin Stadium Corp., 878 F.2d 1360, 1371 (11th Cir.1989) (citing with approval Dade County v. Nat’l Bulk Carriers, 450 So.2d 213 (Fla.1984), for its recognition of Albrecht’s holding “that a claim of uncompensated taking constitutes a separate and distinct cause of action from an action challenging the propriety of an agency’s action in denying a permit....”). Atlantic Int’l, 478 So.2d at 807-08 (citing with approval Albrecht). As Albrecht noted, the facts necessary to maintain a takings action differ from the facts needed to determine the propriety of an agency action. 444 So.2d at 12. To prevail on a takings claim, the plaintiff must show diminution of property value and no alternative economically reasonable uses, whereas those showings are irrelevant to determining whether an agency action was proper. Id.; Graham v. Estuary Prop., Inc., 399 So.2d 1374, 1380-81 (Fla.1981) (setting forth factors to consider when determining whether a taking has occurred). Because the causes of action are different, res judi-cata prevents relitigation of only those issues actually litigated. As determined above, inverse condemnation and its attendant issues were not actually litigated and hence res judicata does not bar Plaintiffs’ inverse condemnation claims.

2. Collateral Estoppel

Defendants allege that, even if Plaintiffs’ inverse condemnation claims are not barred by res judicata, Plaintiffs should be collaterally estopped from attacking factual findings related to the Hacienda Road Project and weir construction. Collateral estoppel prevents the same parties from relitigating issues that have previously been litigated and determined. Agripost, 195 F.3d at 1229 n. 7; Carlisle v. Phenix City Bd. of Educ., 849 F.2d 1376, 1379 (11th Cir.1988) (“Collateral estoppel ... depends on whether the ... issue was litigated and decided in the state judicial proceedings.”); Porter v. Saddlebrook Resorts, Inc., 679 So.2d 1212, 1214-15 (Fla. 2d DCA 1996). This doctrine applies only if: 1) the identical issues were presented in the prior proceeding; 2) there was a full and fair opportunity to litigate the issues in the prior proceeding; 3) the issues in the prior litigation were critical and necessary to the prior determination; 4) the parties were identical; and 5) the issues were actually litigated in the prior proceeding. Porter, 679 So.2d at 1214-15. In Porter, the court found that even though the issue was discussed in the final order and certain findings made thereon, the issue was not essential to the agency’s final action and hence the issue was not litigated in the prior proceeding for purposes of collateral estoppel. Id. at 1215 (“the findings on that issue should not be used for purposes of collateral estop-pel.”).

Similarly, in this case, even though the ALJ discussed whether the Hacienda Road Project and weirs caused flooding and made findings thereon, those findings were not necessary and critical to the broader issues of whether the excavation caused an emergency, whether the Emergency Order was valid, and whether Plaintiffs fell within certain rule exemptions.

The Court finds that the Plaintiffs are not collaterally estopped from attacking factual findings related to the Hacienda Road Project and its impact because those findings were not critical and necessary to the disposition of the administrative proceeding. Albrecht, 444 So.2d at 12 (holding that estoppel did not bar the inverse condemnation claim because the facts and issues were not actually litigated in the prior proceedings).

3. Separate Counts for Taking of Easements and Taking of Real Property

Defendants assert that Plaintiffs cannot allege a taking of a drainage easement in a separate count from a taking of real property. Defendants are correct, for making out a successful claim of a taking of a drainage easement depends on a finding that Defendants’ conduct rendered Plaintiffs’ land useless and permanently deprived Plaintiffs of all beneficial enjoyment thereof. Leon County v. Smith, 397 So.2d 362, 364 (Fla. 1st DCA 1981) (per curiam) (upholding trial court’s finding that a taking of an easement resulted from flooding “which rendered the land useless and permanently deprived plaintiffs of all beneficial enjoyment thereof.”). Indeed, a person can be deprived of the use of a drainage easement but without damage, the litigant would have no cause of action. The damage resulting from the deprivation of a drainage easement is damage to the real property allegedly drained. For this reason, the causes of action are not separable, and Plaintiff must replead them as one.

4. Ripeness

Defendants move to dismiss Plaintiffs’ takings claims to the extent they relate to a permit denial. Specifically, Defendants contend that, because Plaintiffs never sought a permit for their actions, their claims related thereto are not yet ripe. Plaintiffs are not, however, suing for relief from denial of a regulatory permit but rather for physical invasion of their property interests, regardless of a permit. For this reason, Plaintiffs’ claims are ripe for adjudication.

B. Counts V: Equal Protection

A. Res Judicata

Defendants assert that Plaintiffs’ federal equal protection claims are barred by res judicata. Plaintiffs argue that the ALJ and agency had no power to adjudicate their constitutional claims and that they deserve a trial court’s ruling.

A hearing officer in a Chapter 120 proceeding may not adjudicate certain constitutional issues. Shinholster v. Graham, 527 F.Supp. 1318, 1321-22 (N.D.Fla.1981) (citing Curtis v. Taylor, 648 F.2d 946 (5th Cir.1980); Gulf Pines Mem. Park, Inc. v. Oaklawn Mem. Park, Inc., 361 So.2d 695, 699 (Fla.1978) (“administrative hearing officer lacks jurisdiction to consider constitutional issues”) (citation omitted); Department of Admin., Div. of Pers. v. Dep’t of Admin., Div. of Admin. Hearings, 326 So.2d 187, 189 (Fla. 1st DCA 1976) (neither a hearing officer nor an agency has authority to declare an agency rule unconstitutional on equal protection or due process grounds). However, as noted above, Key Haven ruled that, where a litigant asserts that the agency applied a rule or statute in an unconstitutional manner, the litigant must raise its equal protection claims pertaining to that application of the agency rule in the district court of appeal. 427 So.2d at 156-57. Plaintiffs do not contest the holding of Key Haven, and concede that they had to bring any state equal protection claims on appeal to the district court. Plaintiffs assert, however, that because they made an England-Jennings reservation in their amended Circuit Court complaint, their federal equal protection claims cannot be barred by res judicata.

An Hngland-Jennings reservation allows a litigant to reserve his “constitutional claims for subsequent litigation in federal court by making on the state record a reservation as to the disposition of the entire case by the state courts’ to preserve access to the federal forum.” Saboff v. St. John’s River Water Mgmt. Dist., 200 F.3d 1356, 1359-60 (11th Cir.2000) (citations omitted). In order to make an effective England-Jennings reservation and thereby avoid res judicata, a litigant must clearly set forth its intentions to preserve its federal claims, “on the record, and at the outset of the state court claim[.]” Id. at 1360 (emphasis added); Fields, 953 F.2d at 1309 n. 10 (requiring litigant to make reservation “at the time he files his state law claims in state court.”); accord Koziara v. City of Casselberry, 239 F.Supp.2d 1245, 1258 (M.D.Fla.2002) (“from the outset”).

Plaintiffs here admit that they did not make their England-Jennings reservation until after the district court of appeal issued its decision on the administrative proceeding. (Doc. 65 at 45). Plaintiffs argue that the Court nonetheless should not deem their Englan