NI

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

MICCOSUKEE TRIBE OF INDIANS
Of, FLORIDA, a federally-recognized
Indian Tribe,

Plaintiff,

UNITED STATES OF AMERICA, THE
ENVIRONMENTAL PROTECTION
AGENCY, CAROL BROWNER,
Administrator of the
Environmental Protection
Agency and JOHN HANKINSON, JR.,
EPA Regional Administrator for
Re-ion IV,

Defendants.
_____________________________

COMPLAINT FOR RELIEF IN THE NATURE OF MANDAMUS AND FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

The Plaintiff, the Miccosukee Tribe of Indians of Florida- files this complaint seeking relief in the nature of a mandamus and for declaratory judgment and injunctive relief and alleges as follows:

FEDERAL ENVIRONMENTAL CLAIMS

1. This 'is a civil action under the Federal Water Pollution Control Act ("FWPCA") ("Clean Water Act") 33 U.S.C. §1251 et seq.

2. Plaintiff brings this action pursuant to the provisions of Section 505(a) of the

Federal Water Pollution Control Act, 33 U.S.C. §1365(a), which provides for citizen suits.

3. Plaintiff seeks to compel defendants to comply with the standards and procedures prescribed in 33 U.S.C. §1313(c)(2)(A)ans with the procedures for review and revision of water quality standards prescribed in the code of federal regulation. 40 C.F.R §131.20 et.seq.

4. Plaintiff needs a judicial determination with respect to its legal rights under the Clean Water Act. Plaintiff contends that tile State of Florida's enacted "Everglades Forever Act" (EFA), §373.4592, Florida Statutes, (Supp. 1994), directly and expressly changed Florida's water quality standards for the Everglades and violates the anti-degradation mandate of the Clean Water Act, 33 U.S. C. § 1313(d)(4)(B). Plaintiff further contends that defendants did not comply with the notice and hearing provision for review and revision of water quality standards. Defendants contend that the EFA does not change water quality standards in the State of Florida, does not violate the existing narrative standards and therefore does not violate the antidegradation mandate of the Clean Water Act nor the requirement for notice and public hearing when State standards are changed.

PLAINTIFF

5. This complaint is filed by the Miccosukee Tribe of Indians ('Tribe'), a federally recognized Indian Tribe whose members reside within the Florida Everglades and are directly and adversely affected by the EFA, its implementation by the State of Florida, and by the failure of defendants to enforce the provision of tile Clean Water Act.

6. Tile Tribe and its members reside in the Florida Everglades and have a substantial interest in this litigation.

7. The Tribe's landed interests in the Everglades include a federal Indian

Reservation, a perpetual lease for use and access to substantial portions of the Water Conservation Area 3-A, and aboriginal and statutory right to reside in Everglades National Park. The Tribe and its members hive a fundamental, substantial interest in preserving these areas as viable ecological systems, and the economic future of the tribe and its members as well as their livelihood, depend upon the environmental preservation of these regions.

8. The alteration of tile natural state of the Everglades and its permanent destruction as a unique natural ecosystem, including imbalances in natural flora and fauna, seriously threaten tile entire way of life of tile Tribe and its members, their traditional bases of subsistence, their commercial activities, their religious practices, and their natural resources (including their lands, the flora and fauna living on their lands, and the ground and surface waters flowing through and across their lands).

9. Among the subsistence and recreational activities of the Tribe and its members are hunting, fishing frogging, commercial air-boating, subsistence agriculture, as well as gathering of native plant material In the Everglades.

10. The members of the Miccosukee Tribe are the only residents of the Everglades. Tile Miccosukee tribal members live upstream of the Everglades National Park and downstream of the adjacent Everglades Agricultural Area (EAA) which is the source of harmful nutrients which flow into the Everglades. As a result, the nutrients which cause degradation of water quality are being received and absorbed first by the lands and waters of plaintiff, which act as a biological filter for these nutrients, before they reach the National Park areas located further downstream.

11. The absorption of the nutrients in plaintiff's tribal lands and waters, which is causing the degradation in water quality, is occurring not only in plant materials but also in the soils, causing permanent and irremedial damage to tribal lands.

12. Degradation of Everglades water quality directly threatens the very existence of the Tribe and its members, their economy, their religion, and their way of life.

DEFENDANTS

13. Tile United States of America ("United States") is the government of the United States, which may be named as a defendant and against which equitable relief may be entered under 33 U.S.C. §1365(a)(1).

14. The Environmental Protection Agency ('EPA") is an agency of the United States which may be named as a defendant and against whom equitable relief may be entered under 33 U.S.C. §1365(a)(1).

15. Carol Browner is the Administrator of the Environmental Protection Agency and may be named as a defendant under 33 U.S. C. § 1365(a)(1) and (2).

16. John Hankison, Jr., is the EPA Regional Administrator for Region IV and may be named as a defendant under 33 U.S.C. §1365(a)(1) and (2).

JURISDICTION AND VENUE

17. This Court has Jurisdiction of this civil action under 28 U.S.C. §1331 (federal question); 33 U.S.C. §1365(a) (citizen suits for violations of the Clean Water Act); 28 U.S.C.§t361 (action in tile nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the Plaintiff); 28 U.S.C. §1362 (civil actions brought by federally recognized Indian Tribes wherein matter in controversy arises under

the Constitution, laws, or treaties of tile United States); and 28 U.S.C. §2201 (Declaratory Relief)

18. Venue is proper in this district under 28tJ.S.C. §1391(b) because this claim arose in the Southern District of Florida; and under 28 U.S.C. §1391(c) because it is a civil action against the United States, its agencies and/or officers or employees of those agencies acting in their official capacities.

GENERAL ALLEGATIONS

19. The Federal Water Pollution Control Act, commonly known as the Clean Water Act, 86 Stat. 816, as amended, 33 U.SC. §1251 et seq., is a comprehensive water quality statute enacted by Congress to restore and maintain the chemical, physical, and biological integrity of the nation's waters. The Clean Water Act seeks to attain water quality which -des for the protection and propagation of fish, shellfish and wildlife.

20. The Clean Water Act allows revisions of water quality standards only if such revision is subject to, and consistent with, the anti-degradation policy of the Act.

21. The Clean Water Act requires that when a State revises or adopts a new standard, such revised or new standard shall be submitted to the Administrator of EPA for review and for approval.

22. The Clean Water Act requires the standards to be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of the Act.

23. The, Clean Water Act requires the State to notice and hold public hearings for the purpose of reviewing applicable water standards and, as appropriate, modifying and adopting standards.

24. The State of Florida, and its agency, the Department of Environmental Protection ("DEP"), and DEP's statutory component, the Environmental Regulation Commission ("ERC") have set narrative nutrient water quality standards for all classes of' waters in Florida providing that man-induced nutrient enrichment is considered degradation and prohibiting nutrient-induced imbalances of natural flora and fauna.

25. Among the State of Florida's existing narrative quality standards are: a) nutrient concentrations of a body of water shall not be altered so as to cause an Unbalance in tile natural populations of flora or fauna; b) substances in concentrations which result in the dominance of nuisance species shall not be allowed; c) biological integrity -- the Shannon Weaver diversity index of benthic macroinvertebrates shall not be reduced to less than 75 % of established background levels.

26. The Everglades Forever Act was signed into law by Governor Lawton Chiles on May 3, 1994, and was filed in the Office of the Secretary of State on that date.

27. In enacting the EFA, the State of Florida changed the narrative standards described above, by agreeing under certain conditions not to enforce, until the year 2006, the existing narrative standards applicable to permittees within the EAA and the C-139 Basin.

28. As a result of this change in water quality standards, excessive nutrients are continually being discharged into the waters of the Everglades and these excessive nutrients violate the existing narrative nutrient water quality standard.

29. By enacting the EFA, the State and its agencies have intentionally authorized degradation of water quality and have violated the Clean Water Act which mandates an antidegradation standard requiring that State standards be sufficient to maintain existing beneficial

uses of navigable waters, preventing further degradation.

30. The Everglades Forever Act has established a de-facto moratorium establishing numeric water quality standards for phosphorus in the Everglades and on enforcing the present narrative standard. This allows pollution of the Everglades and adjacent waters until the specified time-periods in the EFA and thereby violates the anti-degradation requirements of the Clean Water Act.

31. Under 40 C.F.R. §131.20(c), the State of Florida vas required to notify tile United States Environmental Protection Agency of any revision to water quality standards within -,t) days of the final state action to adopt and certify the revised standard.

32. The State failed to notify the Administrator of the United States Environmental Protection Agency, as required by 33 U.S.C. §1313(c)(2), that by enacting the EFA, with its extended moratorium on the establishment and enforcement of water quality standards, they have in effect changed water quality standards in the State.

33. The defendants are required to review these chances in water quality and can only allow the revision if it is consistent with the anti-degradation policy established under the Clean Act.

34. The defendants have failed to require the State of Florida to comply with the requirements of the Clean Water Act and the federal regulations.

35. Plaintiff notified EPA by letter dated July 21, 1994, of the revision in water quality standards caused by the enactment of the EFA and of the State of Florida's failure to Comply with the procedures for review and revision of water quality standards. By copy of this letter, Plaintiff also notified the State of Florida and its officials. The letter notified the

administrator of EPA that enactment of the Everglades Forever Act effectively changed Florida's water quality standards and that these changes violated the Anti-degradation requirements of 33 U.S.C. § 1313(d)(4)(13) of the Clean Water Act. The letter was notice to the defendants that they had 60 days to compel the State of Florida to comply with the procedures for revision and review of water quality standards prescribed in 40 C.F.R. § 13 1.20 et. seq. and with the anti-degradation requirements of- tile Clean Water Act. In the alternative, the notice was intended to allow the State of Florida to cure its violation within 60 days as required by 33 U.S.C. §1365(b). (Exhibit 1, letter to EPA Administrator Carol Browner).

36. On September 15, 1994, the United States Environmental Protection Agency wrote a letter to the Assistant Secretary of the Department of Environmental Protection which stated that Environmental Protection Agency understood that the EFA had been enacted into law and that it had been "alleged' that Florida had not submitted tile revision to water quality standards for approval by Environmental Protection Agency as required by 40 C. F. R. § 131.20(c) and the Clean Water Act. (Exhibit 2, letter to DEP Assistant Secretary Daniel Thompson).

37. The EPA letter of September 15, 1994, stated that it "appears that the narrative criterion for phosphorus remains full applicable until such time as the State adopts a numeric criterion for phosphorus (not later than 2003)".

38. The EPA letter of September 15, 1994, asked the State of Florida, through the Florida Department of Environmental Protection, to identify a) what parts of the enacted statute constituted revisions to water quality standards; b) tile existing provisions of standards that were replaced or modified by these parts of the statute and c) when those revisions would take effect.

39. On October 31, 1994, the DEP responded to EPA's letter and stated that it

considered the EFA to be consistent with existing statutory and rule authority and did not consider the EFA to constitute a revision to State water quality standards but rather, it consider the EFA to provide a legislatively mandated compliance schedule for bringing existing sources of pollution into compliance with State water quality standards. (Exhibit 3, letter to Robert F.. McGhee, Acting Director Water Management Division, EPA Region IV). Tile State did not directly respond to the questions posed by tile EPA's letter.

40. The state has not filed tile required notice of change of water quality standards, has riot held public hearings and defendants have done nothing, other than refer to possible "discussions" and meetings in the "near future," to compel the State of Florida to comply with requirements of the Clean Water Act for changing water quality standards. (Exhibit 4, letter of October 31, 1994 to Angel Cortinas).

41. The federal government assisted the State in drafting the EFA and lobbied for its passage in the Florida legislature.

42. Plaintiff has a special interest, as contemplated by 33 U.S.C. §1365(g), in the protection of the Everglades and in containing the levels of pollutants permitted by the Everglades Forever Act because all the discharges flow into the land where members of the Miccosukee Tribe of Indians reside, and work, and recreate.

43. The change in water quality results in Injury to the Tribe which for economic, aesthectic, conservation, religious, and recreational reasons has an Interest in the Everglades, as the only residents of the Everglades.

COUNT 1

(RELIEF IN THE NATURE OF MANDAMUS )

44. Plaintiff realleges and incorporates by reference paragraphs 1-43 above.

45. Plaintiff has a clever right to relief- because the requirements of' tile Clean Water Act oil reporting new and/or revised standards are non-discretionary.

46. The Clean Water Act states that a water quality standard may be revised only if such revision is subject to, and consistent with, tile anti-degradation policy established by the Act.

47. The Clean Water Act requires that whenever a State revises or adopts new standards oil water quality, such revised or new standards shall be submitted to the Administrator of the EPA.

48. The passage of the Everglades Forever Act changed water quality standards in the State of Florida and the State was required under 33 U.S.C. § 1313(c)(2)(a) to submit the revised and/or new water quality standards to the EPA for approval and to follow the procedures set forth in 40 C. F. R. § 13 1.20 et seq.

49. The State failed to notify the EPA of changes in water quality standards for the Everglades and the EPA failed, after proper notice by Plaintiff, to require the State to comply with the requirements and procedures of the Code of Federal Regulations and the Clean Water Act.

50. The defendants have not commenced and are not diligently prosecuting civil or criminal actions in federal or state court to require compliance with the narrative water quality standards which existed for tile Everglades prior to tile enactment of the EFA. Plaintiff has

exhausted all other avenues of relief. Plaintiff sent a sixty-day notice letter to the environmental protection agency notifying the EPA of the State's violation of tile anti-degradation requirements of the Clean Water Act, requesting the EPA to enforce the provisions of the Water Act. Plaintiff notified the State of its failures to comply with the requirements of the Clean Water Act and of its failure to provide proper notice under 40 C.F.R. § 13 1.20 et 5N.

COUNT II

(Claim for Declaratory and Injunctive Relief)

51. Plaintiff realleges and incorporates by reference paragraphs 1-43 above.

52. On its face, and as applied, the Everglades Forever Act violates the anti-degradation mandate of the Clean Water Act.

53. The Clean Water Act requires the revised or new water quality standards to be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of the Clean Water Act. By its terms the EFA imposes a de facto moratorium on the establishment of numeric standards until the year 2003 and on enforcement of narrative water quality standards until the year 2006, thereby legislatively authorizing the violation of the State's own narrative nutrient standard for all classes of waters, including Class 111.

54. By setting a new or revised standard the EFA has allowed excessive levels of nutrients into the Everglades and has not taken into consideration the public water supplies,

propagation of fish and wildlife or the damage to the recreational, agricultural and other uses

of the Everglades as required by tile Clean Water Act.

55. Plaintiff, as the sole residents of the Everglades, are directly affected and have sustained, and continue to sustain, damage from the excessive levels of nutrients permitted to

flow into the Everglades by the EFA.

56. Plaintiff claims that is is entitled to a Declaratory Judgment against defendants that the EFA violates the anti-degradation requirements of the Clean Water Act and that the EFA has changed the narrative water quality standards for nutrient contamination in waters of the Everglades where Plaintiff resides, works and recreates. Both the State of Florida and EPA dispute Plaintiff's claim that the EFA authorizes the violation of the existing narrative nutrient water quality standards in the State of Florida.

57. Plaintiff also demands Injunctive relief to compel defendants to comply with the requirements of the Clean Water Act and stop the degradation of water quality effected by the enactment of the EFA.

COUNT III

(Claim for Declaratory and Injunctive Relief)

58. Plaintiff realleges and incorporates by reference paragraphs 1-43 above.

59. On its face, and as applied, the Everglades Forever Act violates the anti- degradation mandate of the Clean Water Act.

60. The Everglades Forever Act effectively changed the State's water quality standards for the Everglades and as such the State was required under the Clean Water Act to hold public hearings for the purpose of reviewing, modifying or adopting these standards.

61. The EPA was required to review these newly enacted standards to determine whether they comply with the purposes of tile Clean Water Act. Plaintiff requests declaratory relief stating that the enactment of the EFA changed water quality standards and thereby violated the mandate of the Clean Water Act which requires the State to notice and hold public hearings

when adopting new standards. The defendants and the State dispute the claim that the EFA legislatively changed the existing narrative water quality standards in the State of Florida and therefore dispute the need for notice and hearings.

62. Plaintiff also demands injunctive relief to require defendants to enforce the Water Act and compel the State to comply with the requirements of tile Clean Water Act to notice and hold public hearings when changing water quality standards.

DEMAND FOR JURY TRIAL

63. Plaintiff demands a jury trial on all counts and issues so triable.

Relief Requested

WHEREFORE, Plaintiff the Miccosukee Tribe of Indians, respectfully requests this Court to:

A. Issue a writ in the nature of a mandamus requiring the defendants to comply with the non-discretionary requirements of the Clean Water Act and with 40 C. F. R. 131.20 et seq., as more specifically set forth in paragraphs 1-50 above (Count I).

B. Grant Declaratory Judgment and Injunctive Relief as specifically set forth in paragraphs 1-43 and 51-57 above (Count 11), declaring that the Everglades Forever Act violates the anti-degradation requirements of the Clean Water Act by, in effect, imposing a moratorium on establishing and enforcing water quality standards in the State of Florida.

C. Grant Declaratory and Injunctive Relief as specifically set forth in paragraphs 1-43 and 58-62 above (Count 111), declaring that the Clean Water Act requires notice and public hearings within a State when the State is reviewing, modifying or adopting new water quality standards.

1 3

D. Award Plaintiff litigation costs as provided under 33 U.S.C. 1365(d), including reasonable attorney and expert witness fees.

E. Order such and further relief as the Court deems just.

Respectfully submitted,

LEHTINEN, O'DONNELL, MALMAN
CORTINAS, VARGAS & REINER, P.A.
Attorneys for Plaintiff
7700 North Kendall Drive,
Suite 303
Miami, Florida 33156
Telephone: (305) 279-1166
Facsimile: (305) 279-1365

B y________________
Dexter Lehtine
Florida Bar No. 265551

Sonia Escoblo O'Donnell
Florida Bar No. 250643