No. 91-212

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In The

Supreme Court of the United States

October Term, 1991

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WESTERN PALM BEACH COUNTY FARM BUREAU, INC.,

ROTH FARMS, INC. and K.W.B. FARMS,

Petitioners,

V.

UNITED STATES OF AMERICA,

FLORIDA KEYS CITIZEN COALITION, FLORIDA WILDLIFE FEDERATION,

ENVIRONMENTAL DEFENSE FUND, SIERRA CLUB, NATIONAL WILDLIFE FEDERATION, WILDERNESS SOCIETY, NATIONAL PARKS & CONSERVATION ASSOCIATION, and DEFENDERS OF WILDLIFE, FLORIDA AUDUBON SOCIETY,

SOUTH FLORIDA WATER 14ANAGEMENT DISTRICT and

TIMER E. POWERS, its Interim Executive Director,

FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

and CAROL M. BROWNER, its Secretary,

              FLORIDA SUGAR CANE LEAGUE, INC., FLORIDA FRUIT and

                                   VEGETABLE ASSOCIATION, and BEARDSLEY FARMS, INC.

Respondents.

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On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

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PETITIONERS' MOTION FOR STAY

Including Additional Record on Motion for Stay

For Submission to Circuit Justice Anthony M. Kennedy

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ROBERT P. SMITH

123 South Calhoun Street (32301)

Post Office Box 6526

Tallahassee, Florida 32314

(904) 222-7500

Counsel of Record

for Petitioners

TO THE HONORABLE ANTHONY M. KENNEDY, CIRCUIT JUSTICE FOR THE ELEVENTH CIRCUIT:

          2. The United States excluded the Farmers from their initial filing and the district court refused them party status by intervention. The court of appeals, holding that the Farmers ought to have been granted intervention, explained as follows, United States v. South Florida Water Management Dist., 922 F.2d 704, 708-709 ( llth Cir. 1991), Pet A 10-11:

If the District Court issues an injunction setting numeric water quality limits, that injunction will of course bind the Water District. The Water District could not deviate from the terms of the District Court's order by its own initiative. The District Court's decision could thus erase the Farm Interests' legally protectable right to participate in the administrative development of the numeric standards that apply under state law (7).

 

7     Viewed from a different angle, Count I of the Complaint seeks to move a state administrative task development of standards for implementing the broad commands of the SWIM Act - to federal court. If the state is not doing its job and - statutory authority supports federal proceedings, this move is legally proper. The problem is that various groups have the right to participate in the decision in the administrative forum. If their rights of participation are not to be lost, the administrative participants must receive a corresponding right to participate in the judicial proceedings . . . . (Emph. added)

3. On rehearing in the court of appeals, the Farmers by suggestions and motion urged that the court's Opinion had clearly enough raised, but left unanswered, the critical question of jurisdictional legitimacy: whether any text of

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Constitution or statute state or federal, or indeed of any pleaded contract, in fact "supports federal proceedings" and makes "legally proper" "this move" of Florida's governmental process to federal court; and whether absent such authority this can be a justiciable Controversy within the judicial Power.

[As to any candidate text, Questions 2, 3 and 4 of the Petition ask whether it is not so that the Court's "clear statement" standard, in other contexts preventing judicial arrogation of other sovereign powers through the overreaching of authorizing texts, protects the federalist principle here as well, where the United States (its Attorney not its Constitution or Congress) asks a federal judge to capture a state regulatory process, make the state regulators litigate how stringent their rules should be and against whom, then adjudge what regulations are required and enjoin the state to adopt them.]

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district court ordered stricken petitioners' suggestion of lack of jurisdiction, and did not read their timely memorandum opposing the United States motion to strike. Pet Suppl Brief, Sup A2-3; Sta R101.

[Question 1 of the Petition asks whether the court of appeals is not indeed bound to decide a jurisdictional question that its Opinion acknowledges and a party then formally raises; or is bound at least not to counsel the district court to evade a question of Article III jurisdiction.]

5. A stay by this Court is now made necessary by imminent proceedings in the district court on a recent United States motion (Sta R72) for an Order (Sta R33) approving and adopting as the court's Order a tendered negotiated Settlement Agreement between the United States and the agency defendants, wherein they "acknowledge that the Court has jurisdiction over this action" and agree (Sta R30) that the court should Order, "The Court has jurisdiction over this action." Sta R33.

6. The proposed Order would require the agencies to adopt a vast regulatory system which the United States says is substantially all the relief it wanted. Sta R84. The Agreement is a 67-page composition (Sta R4-71) of findings of fact, interpretations of Florida statutes and rules, derivations of goals and policies, strategic formulas and processes, monitoring devices, permitting and licensing schemes, quotas for the taking of private lands, and so on. Power to require new regulatory initiatives is reserved to an ad hoc committee of four federal and three state officers who shall answer to the district court.

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7. The proposed Order has as its principal objective the offering at Park entrances, from regulated sources far to the north, the Farmers' farms, requisite quantities of flowing water which has been purified to contain no more than 14 parts per billion of total phosphorus. Map, Pet A53, Sta R12, R36. Fourteen parts per billion is not quite one-seventeenth the phosphorus standard - .24 mg. per liter or 240 parts per billion - that the United States and Florida contracted for as suitable for the Park just four years before this suit was filed. Pet A54, A58. The 1984 Contract is the pleaded source of the United States claim of right in Count III (Pet A47), but the asserted breach is not that the state regulated Farmers less stringently than the 240 ppb contracted for, but less stringently than an unspecified standard the state ought to have promulgated 3/ presumably the selfsame 14 ppb. The court of appeals took note that the agencies recently considered limits of 30 or 50 parts per billion (.03 or .05 ppm), saying they predicted "draconian consequences" to the Farmers. 922 F.2d 704, 709, Pet A13.

8. Petitioners' unsuccessful motion for stay in the district court, Sta R99, submitted an affidavit of Professor L. Harold Levinson of Vanderbilt Law School, a scholar of national

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repute and one of the prime drafters of Florida's Administrative Procedure Act of 1974, Ch. 120, Fla. Stat. Sta R107. The affidavit illustrates, using the Settlement Agreement, how the objective of this litigation vitiates authentic governmental processes. Procedurally, such a decision "clearly falls outside the [Florida) APA's framework of decision -making . . . . impairs the ability of DER and the District to perform their proper functions under the APA, and . . . deprives affected persons of the opportunity to participate meaningfully in the decision-making processes of DER and the District" (Sta R113); it interprets Florida law in a forum that "prevents DER and the District from performing their functions, and prevents affected persons from participating meaningfully in the processes of those agencies" (Sta R114); it finds facts that Florida agencies are bound to find instead by authentic APA processes, and "deprives affected persons of their right to participate in the factfinding" (Sta R114); in policymaking the Agreement "encroaches on the exercise of discretion or the formulation of policy" that Florida law commits to its agencies acting in their own forums and according to prescribed disciplines (Sta R115).

9. According to Professor Levinson, Florida's APA is "distinctive" in that "to a greater extent than administrative procedure statutes of most other jurisdictions," including the federal, Florida's law gives affected persons structured opportunities "to change the agency's mind" by evidence, argument, and adverse commentary by independent hearing officers. Sta R110. That discipline extends to an agency's

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12. Gone now from the United State's presentation to the courts below is any pretense of claiming under contract or federal statute. The United States Motion for Approval, etc., recites at Sta R84-85 all the "statutes and regulations the United States seeks in this litigation to enforce." All are Florida law texts, none federal, none contractural. Cf. supra fn. 3. Concerning the effect given those texts by the proposed Order, the United States affects belief that binding the agencies who have final authority in Florida law, as now this coercive litigation has done, "neither binds nor otherwise infringes on the legally protectable rights of third parties -most significantly, the Agricultural Intervenors - such that the Court should withhold its approval." Sta R 85-86. The United States does not explain how one undertakes to change the mind of a decision maker who is bound by a federal judge. Another opaque passage in the Motion exemplifies the triviality of any Chapter 120 process as will remain, ceremoniously, after all of significance has been federally adjudicated. United States Motion for Approval, etc., Sta R88-89 (emph. added):

Although the Agricultural Intervenors' legally protectable interests might have been significantly impaired as the Court of Appeals imagined under various other outcomes to this litigation, the Settlement Agreement does not sidestep state procedures in establishing a process for numerically interpreting existing enforceable narrative nutrient standards. The Settlement Agreement by necessity takes into account that state administrative and judicial proceedings related to the District's and DER's implementation of the Agreement, in which than Agricultural Intervenors are free to participate to the extent Florida law provides, must run their normal course. Settlement Agreement at 19-22, 28 [Sta R22-25, 311. In sum, the Settlement Agreement's effect on third parties "is neither unreasonable nor proscribed." [United States v.] City of Miami, 664 F.2d [4351 at 441 [(5th Cir. 1981)].

 

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13. "[I]t is inherent in the constitutional plan," this Court held in Monaco v. Mississippi, 292 U.S. 313, 329 (1934), that Article III grants federal courts power to entertain an action by the United States against one of the states. But this Court in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) described that constitutional plan as two governments "each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other." The matter of this sovereign state regulation, absent any text of law that conceivably grants the United States the right and remedy for which it demands federal adjudication, is among "the objects committed to the other" sovereign, the State of Florida, and is not a Controversy such as can be the subject of a United States suit having the purpose and effect of dictating another sovereign's lawmaking.

We respectfully ask that proceedings below be stayed so that the Court may maturely consider the Petition for Certiorari without endangering further the sovereign interest of Florida in its own government, and petitioners' interest in its access to the lawful processes of that government.

Respectfully submitted,

 

ROBERT P. SMITH
123 South Calhoun Street
Post Office Box 6526
Tallahassee, FL 32314

          Counsel of record for Petitioners.

October 11, 1991.

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Honorable Kenneth W. Starr
Solicitor General
Department of Justice
Tenth and Constitution Avenue, N.W.
Room 5143
Washington, D.C. 20530

Deborah H. Wagner
David Maloney
Assistant General Counsel
Executive Office of the Governor
The Capitol
Tallahassee, FL 32399

                                                                     __________________

 ROBERT P. SMITH

123 South Calhoun Street
Post Office Box 6526
Tallahassee, Florida 32314
(904) 222-7500
Counsel of Record
for Petitioners