IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
UNITED STATES OF AMERICA, No. 88-1886-CIV-Hoeveler
Plaintiff, and
FLORIDA KEYS CITIZEN COALITION
and others,
Plaintiffs-Intervenors,
v.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
and others,
Defendants, and
THE CITY OF BELLE GLADE and THE CITY OF
CLEWISTON, Florida municipal corporations,
UNITED STATES SUGAR CORPORATION, WESTERN
PALM BEACH COUNTY FARM BUREAU, INC.,
ROTH FARMS, INC., and K.W.B. FARMS,
Defendants-Intervenors.
_________________________________________________/
FARM BUREAU'S MOTION TO STRIKE AND MEMORANDUM IN OPPOSITION TO CONSERVATION INTERVENORS': (A) NOTICE OF FILING OF FEBRUARY 15,1996, LETTER FROM U.S. ARMY CORPS OF ENGINEERS TO SOUTH FLORIDA WATER MANAGEMENT DISTRICT,. AND (B) NOTICE OF FILING OF NEW FEDERAL LAW
The Defendants-Intervenors, WESTERN PALM BEACH COUNTY FARM BUREAU, INC., ROTH FARMS, INC., and K.W.B. FARMS (Farm Bureau), by and through their undersigned counsel, pursuant to Rule 7. l.A of the Local Rules for the Southern District of Florida, file this Motion to Strike and Memorandum in Opposition to the above-referenced
pleadings (Notices of Filing) filed by Conservation Intervenors on or about April 9, 1996, and as grounds therefor state as follows:
The Notices of Filing without good cause bring before the Court untimely evidence which is hearsay or irrelevant to the propositions asserted. The record of the hearing closed in December, 1995. Should the Court receive this evidence, Farm Bureau asserts that: (a) the February 15, 1996 interagency letter from the U.S. Army District Engineer, Colonel Terry L. Rice, constitutes an admission by the United States against its interests in this proceeding, wherein the United States seeks approval of Stormwater Treatment Areas (STAS) in the Proposed Modified Settlement Agreement, and (b) the new federal law, by not preempting or purporting to influence implementation of the Everglades Forever Act (EFA), must be read as reflecting implicit Congressional approval of the EFA and its deadlines.
The central issue on remand is the effect that the 1994 Everglades Forever Act had on the 1992 Consent Decree Approving Settlement Agreement. Related issues include whether the 1991 Settlement Agreement is moot or enforceable, whether the proposed Modified Settlement Agreement is fair, reasonable and in the public interest, and whether an Article III controversy exists. The evident purpose of the Notices of Filing is to bolster the contention pursued at hearing by Conservation Intervenors and the Miccosukee Tribe of Indians of Florida (Tribe) that the Court should impose Everglades Agricultural Area (EAA) phosphorus reductions greater and sooner than required by the EFA or sought by the Settling Parties.
The letter from the Corps provides no technical or legal justification for the proposed judicial imposition of phosphorus reductions that exceed the requirements of state law. Rather, the letter from Colonel Rice--an agent of the United States--admits that the multi-hundred million
2
dollar STAS, required to be constructed on EAA farmlands by the 1991 Settlement Agreement and as embellished by the Everglades Forever Act and Proposed Modified Settlement Agreement, may be ill-conceived, wasteful and not in the public interest:
"[M]ost significant ... is the 'Public interest review'... required to apply to all 'dredge and fill' permit applications. In this I must answer the following question in the affirmative to issue the permit: Are the proposed STA's the best interim step to accomplish the water quality goals required by the Everglades Forever Act?"
"[T]he State -is proposing a $200 million construction project (over $500 million if land purchases are included) that may be the wrong approach to meeting our final goal.'
Implementing STA construction "as an interim solution could result in a significant waste of public revenue."
· "[U]nfortunately, . . . since STAs were chosen as an interim solution. . . . progress in developing a final technology has not been sufficient enough yet to support a positive determination in . 'public interest review."'
Letter from Rice to Poole of 2/14/96, at 2.
As more fully articulated in Farm Bureau's Post-Hearing Memorandum of Law with Proposed Findings of Fact, " [t]he settling parties are settling judicial imprimatur on a document that could not . . . withstand challenge under either state or federal law processes by which water quality standards are normally established and applied." Memorandum of Law at 51. (Emphasis added.) Now, in addition to the reasons previously given by Farm Bureau for rejection of the Proposed Modified Settlement Agreement as unfair, unreasonable and contmq to the public interest, the U.S. Army Corps of Engineers has doubts, for reasons of its own, about the appropriateness of the document's fundamental phosphorus reduction strategy under the Corps' Clean Water Act permitting "public interest review."
3
________________________________________________________________________________
Though some might argue that judicial approval of the Proposed Modified Settlement Agreement would not obligate the Corps to approve STAS, the Court held otherwise when approving the earlier settlement commitments now under review on remand:
The Farm Interests cite other terms of the Agreement which purportedly restrict federal agency discretion, e.g., . . . the conversion of farmland to STAS. . . . With respect to . . . the construction of STAs on farmland, no federal agency discretion is implicated because these measures are to be accomplished by the state agencies under their own regulatory authority and responsibilities. (citation omitted).... If the Farm Interests mean to suggest that the United States cannot allow itself to be bound by the terms of the Agreement, this argument fails of its own effect, which would be to invalidate every decree and agreement, including criminal plea bargains, entered into by the United States.
United States v. South Florida Water Management District,, 847 F. Supp. 1567, 1576 n.6. The Court found it significant that the restrictions on federal agency discretion arising in this case were "in furtherance of . . . independently-sought objectives' of the plaintiff United States, in contrast to the facts in Citizens for a Better Environment v. Gorsuch, 718 F. 2d I 1 17 (D. C. Cir. 1983), cert, denied, 467 U.S. 1219 (1984):
In this case, the Agreement before the Court, to be entered as a consent decree, is arguably less intrusive of federal agency discretion than the decree in Gorsuch. Whereas the federal agency in Gorsuch was in a defensive position, the United States initiated and aggressively pursued this action; any commitments it has made are in furtherance of its own independently-sought objectives. To hold that the various federal agencies which have participated in this suit cannot commit themselves to undertake action in support of an outcome which they affirmatively seek . . . is itself an infringement of their discretion . . . . "
847 F. Supp. at 1577.
Should the Court now sanction binding federal agency commitments to undertake action in support of STA construction, such as issuance of a Clean Water Act permit, even when one
4
of the agencies tacitly concedes that such action, if taken in the normal course, could be an abuse of discretion? Have the Settling Parties presented an adequate factual and legal basis for the use of such extraordinary means to protect the proprietary interests of the United States, important though they most certainly are? The record already disproves the moving phosphor-us front theory as well as any perceived need to rush forward with the construction of STAs to meet the Settlement Agreement's interim and long term phosphorus limits and levels for the Loxahatchee National Wildlife Refuge and Everglades National Park. What circumstances could justify the proposed judicial imprimatur on an agreement that would commit or authorize federal and state agencies to pursue such actions that may conflict with their statutory mandates and be contrary to the public interest? Farm Bureau does not believe this Court ever intended that the authority of the Settling Parties to settle should extend so far, and now relies on the Court's own careful scrutiny to preclude such a result.
Conservation Intervenors also contend that the Everglades ecosystem appropriation made in the Federal Agriculture Improvement and Reform Act of 1996 (1996 Farm Act), section 390, Pub. L. No. 104-127 (March 25, 1996), supports their opposition to dates for "complying with final water quality standards beyond 2003," as provided in the EFA. Notice of Filing New Federal Law, at 2. In so arguing they prove the opposite. That appropriation was not necessarily directed to an EAA-related "water quality improvement" project as implied by Conservation Intervenors. The new -law broadly appropriates federal funds to-
(A) conduct restoration activities in the Everglades ecosystem in South Florida, which shall include the acquisition of real property located within the Everglades ecosystem; and
(B) fund resource protection and resource maintenance activities in the Everglades ecosystem.
5
Respectfully submitted,
123 S. Calhoun Street (32301)HOPPING GREEN SAMS & SMITH, P.A.
Dated: April 19, 1996
8
Certificate of Service
I DO CERTIFY that a copy hereof was furnished by U.S. Mail, postage prepaid, to each of the following, this 19th day of April, 1996:
Michael W. Reed
Keith E. Saxe
Gen. Litigation Sec.
Environ. and Natural Resources Div.
U.S. Dept of Justice
P.O. Box 663
Washington, D.C. 20044-0663
Lisa B. Hogan Assistant
Assistant US Attorney
U.S. Attorneys Office
99 N.E. 4th Street, 3rd Floor
Miami, FL 33132-2111
Barbara Markham
Joan Lawrence
Ruth Clements
South Florida Water Mgmt Dist.
P.O. Box 24680
3301 Gun Club Road
West Palm Beach, FL 33416
R. Benjamin Reid
Paul L. Neffieton
Popham Haik Schnobrich & Kaufman
4000 International Place
100 Southeast Second Street
Miami, FL 33131
Kenneth J. Plante
Timothy Smith
David A. Crowley
Florida Dept. of Environ. Protection
2600 Blair Stone Road
Twin Towers Building
Tallahassee, FL 32399-2600
9
Timothy D. Seachinger
Environmental Defense Fund
1875 Connecticut Avenue
Washington, D.C. 20009
David G. Guest
Sierra Club Legal Defense Fund
P. 0. Box 1329
Tallahassee, FL 32302-1329
Richard J. Burgess
Gunster, Yoakley & Valdes-Fauli &
Stewart, P.A.
P.O. Box 14636
Broward Financial Centre,
Suite 1600 500 East Broward Blvd.
Ft Lauderdale, FL 33302
Willliam L. Earl
Robert Blank
Earl, Blank, Kavanaugh & Stotts P.A.
One Biscayne Tower, Ste. 3636
Two South Biscayne Boulevard
Miami, FL 33131
Dexter Lehtinen
Maria Santovenia
7700 N. Kendall Drive, Suite 303
Miami, FL 33156