UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDACase No: 95-0533-DAVIS
MICCOSUKEE TRIBE OF INDIANS
OF FLORIDA, a federally-recognized
Indian Tribe,
Plaintiff,
V.
UNITED STATES OF AMERICA, THE
ENVIRONMENTAL PROTECTION
AGENCY, CAROL BROWNER,
Administrator of the
Environmental Protection
Agency and JOHN HANKINSON JR.,
EPA Regional Administrator for
Region IV,
Defendants.
_______________________________________
PLAINTIFF'S RESPONSE IN
OPPOSITION TO DEFENDANTS'
MOTION TO DISMISS
Plaintiff, the Miccosukee Tribe of Indians of Florida, respectfully requests that this Court deny defendants' Motion to Dismiss. Plaintiff's complaint fully sets forth a claim, under the Clean Water Act (CWA), that the Environmental Protection Agency (EPA) violated the requirements of the CWA by not directing the State of Florida to file the appropriate authorization requests under the Act. The Plaintiff's Complaint alleges that the enactment of the Everglades Forever Act (EFA) effectively changed water quality standards in the State of Florida and that EPA failed to comply with the CWA by (1) failing to require the State to submit the revised standards for review and (2) failing to provide the required notice and hearing for such a change in water quality standards. Plaintiff's Complaint has fully set forth legitimate claims, and the Defendants' Motion to Dismiss must be denied.
MEMORANDUM OF LAW
On a motion to dismiss, facts stated in plaintiff's complaint, and all reasonable inferences therefrom, must be taken as true. In order to grant Defendants' Motion to Dismiss in this case, this Court must determine beyond doubt, that the Plaintiff can prove no set of facts in support of its claim which would entitle it to relief. Conley v. Gibson, 355 U.S. 41 (1957). Motions to Dismiss are viewed with disfavor and rarely granted. Trustees of Hotel Industry Pension Fund v. Carol Management Corp, 880 F.Supp 1548, 1551 (So.D. Fla. 1995). Defendants' Motion must be denied because Plaintiff's Complaint on its face alleges a claim upon which relief can be granted and properly alleges subject matter jurisdiction under the Clean Water Act. 1
_________________________
'Defendants argue generally, that the only basis for jurisdiction in this case is the Clean Water Act. It is sufficient that 33 U.S.C. §1365(a) is alleged and provides subject matter jurisdiction of this Complaint. Defendants allege that none of the other alleged jurisdictional bases provide the required waiver for sovereign immunity. The doctrine of sovereign immunity does not bar suits for actions in the nature of a mandamus or for declaratory relief. Rockbridge v. Lincoln, 449 F.2d 567, 572-73 (9th Cir. 19-71).- The relief sought by Plaintiff here does not affect the sovereign power of the United States but merely seeks that the Court direct government officials to per-form acts which they have a non-discretionary duty to perform. Cf. Hess v. Port Authority Trans-Hudson, corp., - U. S. , 1 15 S. ct. 394 (1994) (broad notions of sovereign immunity not a concern where monetary relief not sought). Moreover, mandamus has been properly alleged as a basis for relief because the Complaint alleges a dereliction in discharging a mandatory duty and thus both mandamus and injunctive relief are available. Carpet, Linoleum and Resilient Tile Lavers v. Brown, 656 F.2d 564 (10th Cir. 1981). In resolving whether Section 1361 (mandamus) jurisdiction is present, allegations of the Complaint, unless patently frivolous, are taken as true "to avoid tackling the merits under the ruse of assessing jurisdiction." Brown, supra, 656 F.2d at 567. Declaratory judgment provides an additional remedy where the Court has jurisdiction under another statute. in this case, the Court clearly has jurisdiction under the Clean Water Act and declaratory judgment, relief in the nature of a mandamus, and injunctive relief are proper.
2
Defendants' motion in this case is a facial attack on the jurisdiction of this Court and must be rejected because the Complaint sufficiently alleges such jurisdiction. A facial attack on a court's subject matter jurisdiction requires the court merely to determine if the complaint sufficiently alleges bases of subject matter jurisdiction, with allegations in the complaint taken as true for purposes of the motion to dismiss. Lawrence v. Dunbar, 919 F.2d 1525 (11th Cir. 1990). The Plaintiff is afforded safeguards similar to those provided in opposing a motion under Fed. R. Civ. P. 12(b)(6): the court must consider the allegations of the complaint to be true. Lawrence v. Dunbar, supra, 919 F.2d at 1529. Defendants have not alleged, nor can they, that the Plaintiff has no standing to bring a citizen suit under the Clean Water Act. Rather, Defendants make a weak attempt at requesting dismissal of the Complaint by confusing the subject matter jurisdiction of the court with a challenge for failure to state a claim for which relief can be granted. Any facial attack on subject matter jurisdiction is frivolous because the Complaint on its face has properly pled subject matter jurisdiction asserting violations of the Clean Water Act which, if accepted as true for purposes of this motion, properly allege subject matter jurisdiction.
Even if Defendants' challenge to the Complaint could somehow be viewed as a factual attack on this Court's subject matter jurisdiction, Defendants' motion must nevertheless be rejected because the jurisdictional claims are so inextricably intertwined with the merits of the case that a decision on one would effectively decide the other. in Eaton v. Dorchester Development Inc., 692 F.2d 727 (11th Cir. 1982), the Eleventh Circuit Court of Appeals reversed the district court's dismissal of a complaint based on a Rule 12(b)(1) motion challenging subject matter jurisdiction and determined that jurisdiction was "inextricably intertwined" with
3
the merits of the lawsuit, since a decision on one would effectively decide the other.
Lawrence v. Dunbar, supra, 919 F.2d at 1529, citing Eaton v. Dorchester, 692 F.2d at 734; see also, Chatham Condominium Ass'n v. Century Village Inc., 597 F.2d 1002, 1011 (5th Cir. 1979) (stating that jurisdictional issues could not be decided without a determination of the merits). Defendants' allegation of lack of subject matter jurisdiction is meritless because facially, the Complaint property alleges subject matter jurisdiction and factually, Defendants have not alleged facts which would result in dismissal of the Complaint. For example, Defendants allege that the EFA did not change Florida's water quality standards thereby depriving the EPA and this Court of jurisdiction under the CWA. This allegation, however, is nothing more than a denial of Plaintiff s well-pled allegation that the EFA did, in fact, change water quality standards. The determination of whether or not Florida's water quality standards have been changed requires a detailed, factual analysis of the EFA standard when compared with the standards which existed prior to the EFA. Under Eaton v. Dorchester, Defendants' request to dismiss for lack of subject matter jurisdiction would, at a minimum, require this Court to afford Plaintiff the opportunity for discovery and for a hearing that is appropriate to the nature of the motion to dismiss. Williamson -v. Tucker4 645 F.2d 404 (5th Cir.), cert. denied, 454 U.S. 897 (198 1). Similarly, Defendants' attempt to avoid a decision on the merits by pleading a failure to state a claim upon which relief can be granted must be rejected. The standard by which a motion to dismiss for failure to state a claim is decided is as follows:
A Complaint must not be dismissed unless it is shown that plaintiff can prove no set of facts in support of this claim, which would entitle him to relief.
Jackam v. Hosl2. Corp. of American Mideast, 800 F.2d 1577, 1579 (11th Cir. 1986). (citations
4
omitted). Defendants' allegations that Plaintiff has failed to state a claim for which relief can be granted lack any merit, and Defendants have not sustained the very high burden required to prevail on such a motion. Jackam , supra, 800 F.2d at 1579.
The essence of Plaintiff's claim in its Complaint is the failure by the defendants to enforce the requirements of the CWA. EPA has a non-discretionary duty under the CWA to enforce the requirements of the CWA and the Complaint more than adequately meets the liberal pleading requirements of Fed. R. Civ. P. 8(a)(2). The Complaint states that Defendants failed to require the State to comply with the Clean Water Act. The Complaint need only provide notice of Plaintiff's claim and the basis for such a claim, and it cannot be dismissed under a Rule 12(b)(6) motion unless the Complaint shows that Plaintiff is not entitled to any relief which the court can grant. Leatherman v. Tarrant County Narcotic Intelligence and Coordination Unit,
U. S. 113 S. Ct. 1160 (1993); Caster v. Hennessey, 781 F.2d 1569, 1570 (11th Cir. 1986).Defendants' arguments that EPA's duties under the CWA are discretionary is directly contradicted by the express provisions of the Act which impose non-discretionary duties on the EPA and by the well-pled allegations in Plaintiffs Complaint. Defendants' assertion that the EPA's duties are only triggered by a submission from the State of a change in water quality standards violates the language and intent of the Clean Water Act. Defendants' interpretation would allow the states to control when a citizen's suit can be brought and would allow states to violate the CWA with impunity, as Florida has done here. Moreover, even if it were not clear from the face of the CWA that EPA's duties are not discretionary, that issue, as well as whether
5
that discretion was abused, would be questions of fact which cannot be resolved on a motion to dismiss.2
Defendants cite to paragraphs 32 and 48 of Plaintiff's Complaint for the proposition that the only statutory basis alleged in Plaintiff s Complaint involves the State's duties to report. However, Defendants' allegations do not correctly represent the contents of Plaintiff's Complaint. Indeed, paragraphs 38 and 42 are only two paragraphs in a lengthy and detailed Complaint setting forth EPA's duties, including the requirements of 33 U.S.C. §1251 et M which requires the Administrator of the EPA to administer the CWA. Additionally, the Complaint relies on 40 C.F.R. §131.20 et seq which requires review and approval of water quality standards by the EPA. The EPA cannot evade these clear statutory mandates by allowing the State of Florida's violations of its duties under the CWA to deprive the EPA of its jurisdiction and obligation to administer and enforce the CWA.
Despite the detailed claims in Plaintiff s Complaint, defendants boldly assert that Plaintiff s Complaint omits "the statutory basis for the alleged EPA duties it seeks to compel. See Defendants' Motion to Dismiss at p. 13. (emphasis on original). Plaintiff realleged and incorporated by reference the general allegations-and the statutory bases of EPA's duties in each count of the Complaint. Plaintiff has more than adequately complied with Fed. R. Civ. P. 8(a)(2). Among the general allegations, the Complaint states that the enactment of the EFA
________________________________
2 If Defendants' motion were to be treated as a Motion for Summary Judgment it should also be rejected because, at a minimum, there are disputed issues of fact. Moreover, if Defendants' motion is treated as one for summary judgment, Plaintiff requests that a default judgment be entered against Defendants because they have failed to answer timely and the Motion for Summary Judgment is not one of the enumerated motions under Fed. R.. Civ. P. 12 which would postpone the time in which Defendants must answer.
6
changed water quality standards in the State. The Complaint states that, by enacting the EFA, the State and its agencies intentionally authorized degradation of water quality and violated the Clean Water Act. In paragraph 35 of Plaintiff's Complaint it is alleged that Plaintiff notified the EPA by letter dated July 21, 1994 of the revision of 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. The Complaint also alleges that the enactment of the EFA violated the anti-degradation requirements of the CWA. The Complaint alleges that 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. §131.20 et seq and with the anti-degradation requirements of the Clean Water Act." Complaint (P) 35. The Complaint further alleges that no public hearings were held, as required under the CWA when the standard is changed, and that the EPA did not compel the State of Florida to comply with the CWA. Complaint (p) 40.
The Complaint cites 40 C. F. R. §131.20 et seq in numerous paragraphs. Complaint 3, 35, 48, 50. This section of the Code of Federal Regulation makes it the clear duty of the EPA to review and approve water quality standards. Indeed, 40 C.F.R. §131.22 requires the EPA to promulgate a standard if the State does not adopt the changes specified by the EFA. It would be sufficient for purposes of a Motion to Dismiss that Plaintiff merely alleged that defendants had a duty which they failed to perform and that Plaintiff requested appropriate relief. In this case, the EPA has completely failed in its duties to enforce its mandatory regulations governing provisions regarding water quality standards. Plaintiff's Complaint more than
7
sufficiently states a cause of action and additionally provides an ample basis from which relief can be granted.
Stripped of its rhetoric, EPA's argument is a very clear statement of executive hubris -the EPA need not follow its regulations and cannot be compelled to do anything under the Clean Water Act. Even a cursory review of the CWA shows that EPA is wrong in its argument that the statutorily mandated requirements in the CWA are discretionary. This interpretation would render the CWA completely useless as an enforcement tool.
The EPA does not have discretion to decline to review revisions to state
water quality standards. The EPA may have discretion once it reviews the
standards to determine compliance with the CWA's anti-degradation requirements;
but the EPA does not have discretion to do away with the review, notice and
public hearing requirements of the CWA.3 The cases cited by Defendants, such as Scott
v. City of Hammond, 741 F.2d 992 (7th Cir. 1986), cert. denied, 469
U.S. 1196 (1985), do not compel a different result than requested in Plaintiff s
Complaint. Plaintiff is asking EPA to enforce the Clean Water Act, as it is
required to do by the CWA. The remedy requested here is similar to the remedy
given by the district court, and affirmed on appeal, in Alaska Center For The
Environment v. Browner, 20 F.3d 981 (9th Cir. 1994). In Alaska
Center, the district court found that Congress' repeated use of the term
"shall' in Section
_____________________________
3Defendants' "statutory background" asserting generally that Congress intended that states should "take the lead" in the development of water quality standards does nothing to support Defendants' arguments in their Motion to Dismiss. Plaintiff's Complaint alleges that the State of Florida did indeed "take the lead, " to violate the Clean Water Act and to change water quality standards and that the EPA was required by law to compel the State to report that change and submit it to EPA for agency review to ensure that it does not violate the Clean Water Act. The Plaintiff filed a citizen's suit under 33 U.S.C. §1365 to compel the EPA to perform a nondiscretionary duty and it has properly pled a basis for that lawsuit in its Complaint.
8
303(d) of the CWA clearly placed a mandatory duty upon EPA to take affirmative action after disapproving a State's unacceptable submission. 20 F.3d at 983, citing 762 F. Supp at 1427 (district court opinion in same case). In this case, as in Alaska Center, the Plaintiff is requesting that EPA perform clear mandatory duties under the CWA. Plaintiff has alleged that the EFA changed water quality standards in the State of Florida. This change automatically triggered procedures in the Clean Water Act which EPA was obligated to follow and enforce, but which EPA completely failed to perform. Plaintiff has alleged ample grounds under the CWA for a citizen's suit. Certainly, a motion to dismiss is not the proper vehicle to challenge whether the decisions required of EPA are discretionary or non-discretionary. The Complaint alleges a duty by EPA, it alleges overwhelming allegations for the support of that claim, and for purposes of a motion to dismiss those allegations must be accepted as true. Lawrence v. Dunbar, supra, 919 F.2d at 1529.
Finally, whatever meaning EPA's belated April 12th letter (attached to their Motion to Dismiss) may have to the resolution of this case, it is at best another factual issue to be resolved at a fact-finding hearing. Indeed, Defendants felt compelled to issue the letter well after this Complaint was filed and many, many -months-after Plaintiff had requested EPA's position on whether the Everglades Forever Act changed water quality standards in the State of Florida. The fact that EPA finally made a determination, subsequent to Plaintiff s lawsuit, does not change the allegations in this lawsuit. All that the attached April 12th letter shows is the indifference and unwillingness of this federal agency to perform its duties in a timely fashion, and specifically its inability to protect the environment and its reluctance to enforce water quality standards in the State of Florida.
9
It should be noted that in the original Everglades lawsuit before the Honorable William M. Hoeveler, the federal parties have taken a completely different position than the one taken here by the EPA. In that lawsuit, the federal defendants have alleged that the state law has been changed:
The Tribe ignores the fact that the agreement and Decree were founded on State law which has been changed and that the Eleventh Circuit acknowledges that the change may affect these proceedings.
Federal Opposition to Miccosukee Tribe's Motion to Enforce Settlement Agreement, Case No. 88-1886-CIV- Hoeveler, filed March 30, 1995 (attached as Exhibit). Obviously, the federal government is willing to take inconsistent and irreconcilable positions before two district court judges in two separate actions. At least their goal is both cases is consistent: refusal to enforce water quality standards and allowing the continued pollution of the Everglades regardless of its illegal and environmentally destructive consequences.
Plaintiff has clearly set forth ample grounds for relief. Federal defendants themselves have taken the position that the law has been changed. The fact that federal defendants are willing to take contrary positions in two different courts makes it an even more compelling argument for rejecting Defendants' Motion to Dismiss and for issuing declaratory and injunctive relief declaring the effect of the Everglades Forever Act on water quality standards and compelling the federal defendants to enforce the CWA. Defendants' motion to dismiss should be rejected because Plaintiff has alleged more than sufficient grounds for relief.
10
For the reasons set forth in Plaintiff s memorandum, Plaintiff requests this Court to deny defendants' Motion to Dismiss.
Respectfully submitted,
|LEHTINEN, O'DONNELL, CORTNAS,
VARGAS & REINER
Attorneys for Plaintiff
By:_______________________
Sonia Escobio O'Donnell
Florida Bar No. 250643
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing was mailed June 6th, 1995 to: Lisa Hogan, Assistant U.S. Attorney, U.S. Attorney's Office, 99 N.E. 4th Street, Miami, Florida 33132-2111; Jon M. Lipshultz, Environmental Defense Section, Environmental and Natural Resources Division, U.S. Department of Justice, P.O. Box 23986, Washington, D.C. 20026-3986; Craig Higgason, Office of Regional Counsel, U.S. EPA, Region IV, 345 Courtland Street, N.E. Atlanta, GA 30365 and Cathy Winer, Office of General Counsel, U.S. Environmental Protection Agency, 401 M. Street, S.W., Washington, D.C. 20460.
By:____________________
Sonia Escobio O'Donnell
Flrida Bar No.250643
* A motion for admission Pro Hac Vice is in file with the Court.
11
APPENDIX
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA, et al.,
Plaintiffs,
V.
CASE No.
99-1-1886-CIV-HOEVELER
SOUTH FLORIDA WATER MANAGEMENT
DISTRICT, et al.
Defendants.
___________________________________
FEDERAL OPPOSITION TO MICCOSUKEE
TRIBE'S MOTION TO ENFORCE SETTLEMENT
AGREEMENT AND CONSENT DECREE AND CROSS-
MOTION TO SET A STATUS CONFERENCE
AND INCORPORATED MEMORANDUM OF LAW
The United States requests, pursuant to Local Rule 7.1.C., that this court schedule a status conference to establish procedures for the resolution of issues which remain before it, and that the Miccosukee Tribe's Motion to enforce the 1992 Consent Decree be denied or stayed.'
1.History.
This action was initiated in 1988 in an effort to compel the cleanup of
waters entering the Loxahatchee National Wildlife Refuge and Everglades National
Park. The federal complaint was grounded predominately on Florida State law. In
1991 the parties concluded a settlement agreement which provided for the
reduction of nutrients in everglades-bound agricultural
________________________
1The United States also joins in the response of the South Florida Water
Management District to the Tribe's Motion.
- 1 -
_________________________________________________________________________________________________________________________
runoff through changed farming methods and filtration by man-made marshes known as Storm Water Treatment Areas (STA's). That agreement was implemented through a Consent Decree which was adopted by this Court in 1992. The decree, properly we think, provided an opportunity for other interests to challenge its anticipated solution through a state administrative process.
That opportunity was accepted by the affected agricultural interests-and the parties began preparations for a prolonged trial. There followed a period of intense mediation, in which the original parties, the Miccosukee and Seminole Indians, agricultural interests and environmental groups participated. In that process, the parties discussed not only the Consent Decree's proposal but means of cleaning up even more water, how the whole project would be paid for and the resolution of water quantity as well as quality issues at the same time. A consensus emerged on a bigger and better solution for the everglades - the mediated technical plan than that which had focused solely on protection for the federal Wildlife Refuge and Park. Although the mediation did not conclude with a comprehensive settlement of the state administrative challenge, it did provide the basis for State legislation.
On May 3, 1994, the state of Florida enacted the Everglades Forever Act. Fla. Stat. S 373.4592 (Supp. 1994). In sum, that Act codified the mediated technical plan for everglades cleanup--providing not only a bigger and better solution and financing, but cutting off further delays caused by
- 2 -
__________________________________________________________________________________________________________
administrative challenges. That Act is now the law of Florida on the issue.
In the meantime, appeals from this Court's decision were being considered by the Eleventh Circuit. On August 23, 1994 it ruled on those appeals. U.S. v. Southern [sic]
Florida Water Management Dist., 28 F.3d 1563 (11th Cir. 1994) pet. for cert. pending. In so doing it specifically acknowledged the potential relevancy of the new state statute saying:In view of the enactment of the Everglades Forever Act by the Florida legislature during the pendency of this appeal, we REMAND this cause to the district court for further consideration in the light of this legislation.
The District, DEP and the United States have been looking at means by which the Consent Decree might be adjusted to conform to the new legislation. In February 1995 the Interior Department had an idea of what position it might want to take on a number of issues and, pursuant to its Memorandum of Agreement, forwarded possible changes to the Miccosukee Tribe for comment. No response has been received.2
At the same time, and at the request of the Miccosukee Tribe, the United States initiated dispute resolution discussions
_______________________
2
The Tribe acknowledges having received the federal suggestions, Miccosukee Tribe's Motion To Enforce at page 8, note S. There the Tribe suggests that the interior Department violated the Memorandum of Agreement by forwarding its suggestions to the State defendants also. The Department reads its obligation to require that it consult with the Tribe before fully formulating its position on amendments. The MOA does not preclude consultation with other parties and, in fact, the Consent Decree expressly requires such consultations. § e.g.,, Consent Decree, 119. It was made clear to the Tribe and District that no final position had been reached.3
_________________________________________________________________________________________________________________________
with the District and DEP concerning the Tribe's allegations of breaches and anticipatory breaches of the 1992 Consent Decree. Although the Tribe has not asked the Secretary to conclude those discussions, it has stated to the Court that mediation "was tried, and exhausted". Miccosukee Tribe's Motion at 8, note 7. In fact, the signatory parties continue to use that forum to discuss matters of mutual concern, including possible adjustments to the Consent Decree.
II. The Status of Remaining Issues.
The Eleventh Circuit remanded this action "for further
consideration in light of this (Everglades Forever Act) legislation." The District, DEP and United States believe that remand envisions modifications of the Consent Decree to reflect the change in circumstances caused by passage of time and enactment of the EFA. They hope to agree on the necessary changes and make a joint proposal to the Court. Counsel for the parties have discussed a number of modifications. However, at least one issue remains unresolved. Discussions continue on that question. When an agreed approach is reached the government parties anticipate approaching the Court with a proposal.No federal position has been finalized. The Miccosukee and Seminole Tribes are encouraged to make recommendations.
III. The Miccosukee Motion Is Premature.
The Miccosukee Tribe is upfront in admitting that its motion is prompted by "contemplated" modifications to the Consent Decree which it expects to oppose. on that basis it seeks to
4
_________________________________________________________________________________________________________________________
enforce the 1991 settlement agreement and 1992 Consent Decree and asks the appointment of a Special Master or independent litigation authority to that end. The Tribe ignores the fact that the agreement and Decree were founded on state law which has been changed and that the Eleventh Circuit acknowledges that that change may affect these proceedings. The government parties believe that if there is controversy about the relationship between the EFA and the Consent Decree that controversy should be resolved before going forward with efforts to enforce the Decree. We believe that a more orderly process is for all concerned to consider jointly proposed amendments to the Consent Decree and determine then whether their interests dictate opposition.
The Tribe focuses on time delays under the EPA scheme. For their part, the government parties are of the opinion that the Everglades Forever Act will provide so many additional benefits for the everglades that the delays are well worthwhile. (And this assume& that original time deadlines in the Consent Decree could have been met despite the extensive State administrative process that was being faced, or that those deadlines could still be met today-)3
IV- Request For Stay And Status Conference.
For the foregoing reasons, and for the reasons &et forth in the response
of the South Florida Water Management District to the Tribe's Motion to enforce
the consent decree,
__________________________________________________
3 The Court will recall that the Miccosukee's expert, Kr.
Truman Duncan, agreed to the superiority of the Act's technical plan in testimony on August 11, 1994.- 5 -
_________________________________________________________________________________________________________
incorporated herein by reference, the United States requests that the following approach be adopted. First, we believe that a status conference should be called in the near future to set a briefing schedule on issues arising from the Eleventh Circuits remands, including those raised by the Tribe's Motion and potential changes to the Consent Decree. The United States further requests that the Tribe's Motion be denied as premature or stayed pending that status conference.
Respectfully submitted,
LOIS SCHIFFER
Assistant Attorney General
Environment and Natural Resources
Division
KENDALL COFFEY
United States Attorney
Southern District of FloridaBy:_________________________
MICHAEL W. REED
KEITH E. SAXE
BRET C. BIRDSONG
STEPHEN G. BARTELL
General Litigation Section
Environment and Natural Resources
-Division
U.S. Department of Justice
P.O. Box. 663
Washington, D.C. 20044-0663
Tel: (202) 272-6080
By:_______________________________
LISA B. Hogan
Assistant United States Attorney
Southern District of Florida
(Fla. Bar No. 0834424)
99 N.E. Fourth Street, 3rd Floor
Miami, Florida 33132-2111
Tel: (305) 536-5266- 6 -
___________________________________________________________________________________________________________________________________________
CERTIFICATE OF SERVICE
I hereby certify that on this 30th day of March, 1995, a true and correct copy of the Federal Opposition to Miccosukee Tribe's Motion to Enforce Settlement Agreement and Consent Decree and Cross-Motion to set A Status Conference and Incorporated Memorandum of Law has been furnished by U.S. mail to the following:
Lisa Hogan, Esq.
Assistant U.S. Attorney
99 Northeast 4th Street
3rd Floor
Miami, Florida 33132
Kenneth F. Hoffman, Esq.
Oertel, Hoffman, Fernandez
& Cole
2700 Blair Stone Road
Tallahassee, Florida 32301
Dexter Lehtinen, Esq.
Lehtinen, cortinas, Vargas
and Reiner, P.A.
7700 N. Kendall Drive
Suite 303
Miami, Florida 33156
Paul Nettleton, Esq.
Popham, Haik, Schnobrich
& Kaufman
4000 International Place
100 S.E. 2nd Street
Miami, Florida 33131
Timothy A. Smith, Esq.
Assistant General Counsel
Dept. of Environmental
Regulation
2600 Blair Stone Road
Tallahassee, FL 34399-2400
William Green, Esq.
Hopping, Boyd, Green & Sams
P. 0. Box 6526
Tallahassee, Florida 32314-6526
Robert Blank, Esq.
Earl, Blank, Kavanaugh
& Stotts
One Biscayne Tower
Suite 3636
Two So. Biscayne Blvd.
Miami, FL 33131
Lynn
D.,Solomon,,.Esq.
Simmon & Solomon
Fountain Plaza
10020 So. Federal Hwy.
Port St. Lucie, FL 34952
Timothy D. Searchinger
Environmental Defense Fund
257 Park Avenue South
New York, NY 11010
Barbara Markham, Esq.
South Florida Water
Management District
3301 Gun Club Road
West Palm Beach, FL 33406
__________________________________________________________________________________________________________
- 2 -
Jeffrey J. Ward, Esq.
P. 0. Box 666
Belle Glade, Florida 33430
Richard J. Burgess, Esq.
Gunster, Yoakley, Valdes-Fauli
& Stewart, P.A. .
The Broward Financial Center
Suite 1600
500 East Broward Blvd.
Ft. Lauderdale, Florida 33394
David G. Guest, Esq.
Sierra Club Legal
Defense Fund
P. 0. Box 1329
Tallahassee, FL 32302
By:____________________
GINNY A. PARSONS