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.

 

REPLY MEMORANDUM OF DEFENDANTS-INTERVENORS, WESTERN PALM BEACH COUNTY FARM BUREAU, INC., ROTH FARMS, INC. AND K.W.B. FARMS, TO MICCOSUKEE TRIBE'S RESPONSE TO MOTION TO STRIKE

            Defendants-Intervenors, Western Palm Beach County Farm Bureau, Inc., Roth Farms,. Inc. and K.W.B. Farms (collectively "Farm Bureau"), by and through undersign--d counsel, hereby reply to the Response of the Miccosuckee Tribe of Indians of Florida ("Tribe Response") to Farm Bureau's Motion to Strike the Tribe's Supplemental Emergency Motion to Enforce ("Supplemental Motion").

Background

            1. The fundamental issue before the Court is the effect that Florida's Everglades Forever Act (EFA), Section 373.4592, Fla. Stat. (1995), has on its Memorandum Opinion and Order Entering Settlement Agreement as Consent Decree ("Consent Decree") that was on appeal when the EFA was enacted. That issue is raised directly by the remand of the Consent Decree from the appellate court and by the four pending motions of the parties heard by the Court at length in late 1995.1

               2. The Tribe errs when it states that Farm Bureau "does not dispute that the Tribe is entitled to enforce the commitments made by the District and the DEP in the Settlement Agreement." Tribe Response at 3. If the Court finds that passage of the EFA is dispositive of the claims of the United States in this case justifying dismissal as Farm Bureau contends, the Tribe has no such right. That issue is discussed in: Motion by Certain Intervenor Farmers to Vacate Consent Decree and Settlement Agreement as Superseded and Dismiss the Action as Moot or for Want of a Controversy in which United States has Standing, filed on July 11, 1995; Memorandum of Law of Intervenors Farm Bureau and Others Opposing Tribe's Motion to

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                1 The four motions are (a) Farm Interests Motion to Vacate Consent Decree and Settlement Agreement and Dismiss the Action, (b) the Tribe's Motion to Enforce the Settlement Agreement, (c) The Tribe's Motion to Invalidate the Everglades Forever Act, and (d) the motion of the settling parties to modify the Settlement Agreement. These motions are unavoidably interdependent. Grant of Farm Interests' Motion to Vacate the Settlement Agreement would moot the Tribe's Motion to Enforce and the settling parties' Motion to Modify. Grant of the Tribe's Motion to Invalidate the Everglades Forever Act would moot Farm Interests Motion to Vacate, but not the Tribe's Motion to Enforce or the settling parties' Motion to Modify. Thus, Farm Interests' Motion to Vacate and the Tribe's Motion to Invalidate the EFA are threshold motions.

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Invalidate Everglades Forever Act as an Unconstitutional Impairment of Contract, filed on September 1, 1995; and Farm Bureau's Post-Hearing Memorandum of Law with Proposed Findings of Fact, filed on January 30, 1996. Nothing in Farm Bureau's Motion to Strike is intended to alter or recede from Farm Bureau's position in those filings.

            3. The Tribe's "original" Motion to Enforce that its Supplemental Motion supplements is entitled "Miccosukee Tribe's Motion to Enforce Settlement Agreement and Consent Decree and for the Appointment of a Special Master to Oversee their Implementation or, in the Alternative, to Allow Tribe to Proceed with Federal Everglades Lawsuit Against State Defendants and the Federal Government" (Motion to Enforce). The body of that earlier motion stated: "in light of the numerous substantive modifications to the Settlement Agreement, . . . the Tribe moves this Court to . . ., in the alternative, allow the Tribe to proceed in this action against the state party defendants......... Motion to Enforce at 10. Farm Bureau's Motion to Strike the Tribe's Supplemental Motion shows that, in addition to reasons previously argued to support dismissal of this case, the Eleventh Amendment of the U.S. Constitution bars the Tribe from proceeding independently against the state's South Florida Water Management District ("District") and Department of Environmental Protection ("DEP"). The Tribe, apparently now receding from what it previously requested of this Court, states that "no justiciable issue in this case is addressed by their [Farm Bureau's Motion to Strike] arguments," and that Farm Interests "do not address how the Tribe's supplemental motion to enforce . . . is somehow deemed a pleading which raises a claim against the state allegedly subject to a sovereign immunity defense." Tribe Response at 7. However, the Tribe has not

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expressly withdrawn its pending request for permission to "proceed in this action against the state party defendants" that its present motion supplements.2

Fartn Bureau has StandinE! to Address the Tribe's Claimed Ri2ht to Unilaterally Seek  
 Federal Enforcement Against the State Agencies

                4. The Tribe claims: (a) that Farm Bureau has no standing to respond to the issues raised in the Tribe's supplemental motion to dismiss because the Tribe's additional evidence addresses the District's and/or DEP's acfion or inactions. Tribe Response at 1-2; (b) that Farm Interests' earlier filed Motion to Vacate Consent Decree has been rejected by the Court. Id. at 2; and (c) that Farm Interests have no standing to respond to the Tribe's motion under U.S. v.South Florida Water Management District, 922 F.2d 704 (llth Cir. 1991), cert. denied, 502 U.S. 953, 112 S.Ct. 407, 116 L.Ed.2d 356 (1091) and U.S. v. Southern rsicl Florida Water Management District, 28 F. 3d 1563 (1 I th Cir. 1994), cert. denied, _ U. S. _, 115 S. Ct. 1956, 131 L.Ed.2d 848 (1995). Id. All three claims are without merit.

                 5. As to the first point, it cannot seriously be disputed that the scope of Farm Bureau's intervention must include the right to participate in determinations regarding the enforceability against these state agencies of the Settlement Agreement now on remand via an appeal to which Farm Bureau was a party. The question of whether the Settlement Agreement should be enforced is inextricably intertwined with the fundamental issue on remand, which includes whether the Consent Decree and Settlement Agreement should be vacated. The Tribe's

_____________________
                2 If the Tribe's Supplemental Motion in reality is a new, independent motion, it does not merit the Court's attention prior to its decision on the pending threshold motions whi6h could make it moot if the case is dismissed as Farm Bureau urges is appropriate.

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second point is factually and legally incorrect, and contrary to the renewed request for such relief contained in Farm Bureau's Motion to Strike. Motion to Strike at 9.

                6. The Tribe's final point also misses the mark entirely.3 In its remand opinion the Eleventh Circuit explicitly acknowledged Farm Interests' right to litigate issues related to Count 1 of the original federal action, including those related to jurisdiction:

The Intervenors' sole right is to raise jurisdiction as an issue with respect to Count 1 . . . This Court previously held that the Intervenors had the fight to intervene 'solely by reason of issues raised in Count l' . . . 

Southern [sic] Florida Water Management District, 28 F.3d at 1567. As that court observed:

Id. at 1568 (emphasis added). That court found that the settling parties had resolved all of their respective claims (including Count 1) against each other by entering into a Settlement Agreement which this Court entered as a Consent Decree. Id. at 1568. Thus, Farm Interests have the right

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                3 The Tribe inexplicably and inaccurately attempts to paint Farm Bureau with the brush of inappropriately seeking to proliferate issues on appeal, citing language from the appeals court. Response at 2-3. The Tribe should well know that the sole issue raised in that appeal by Western Palm Beach County Farm Bureau, Roth Farms, and K.W.B. Farms (Farm Bureau movants here) dealt with whether Article III jurisdiction existed in this case, an issue that the appellate court expressly recognized was properly before it. See Southern [sic] Florida Water Management District, 28 F.3d at 1567. The only other matter even briefed by Farm Bureau was its opposition to the cross-appeal of the United States' wherein the latter challenged this Court's ruling that review of the Settlement Agreement was required under the National Environmental Policy Act of 1969 ("NEPA").

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on remand to participate in all matters pertaining to the determination of how the EFA affects this Court's Consent Decree and the underlying Settlement Agreement, including but not limited to the extent to which the Tribe may seek to have the Court either enforce the Settlement Agreement or separately enforce state water laws. If the Settlement Agreement and Proposed Modified Settlement Agreement are rejected as Farm Bureau continues to urge that they must be, any separate proceeding by the Tribe predicated on federal court enforcement of state water laws is both a matter in which the Eleventh Circuit has found that Farm Bureau has an interest, and a matter which squarely raises the question of whether the Eleventh Amendment bars such an action. See eg, Seminole Tribe of Florida v. Florida, _U. S._, I 1 6 S. Ct. I 1 14, 134 L.Ed.2d 252 (1996) (Eleventh Amendment bars federal suit against state by Indian tribe).

            7. Even if Farm Bureau's interests were deemed to be narrowly and literally limited to the "issue of converting the applicable narrative water quality standards into numeric water quality standards", as asserted by the Tribe, that is precisely the issue ultimately at stake in the Tribe's Supplemental Motion. Indeed, the Tribe has now formally challenged, under the Florida Administrative Procedure Act, Chapter 120, Fla. Stat. (1995), the very DEP Non-ECP Structures Permit of which it complains in Paragraph 2 of its Supplemental Motion. In its "Petition for Formal Administrative Proceeding" (see attached copies of portions of petition excerpted for purposes of brevity), the Tribe asserts, among other things, that:

and

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Petition at pp. 7 and 17. The Tribe's Supplemental Motion is thus revealed as yet another attempt to prematurely force the numerical interpretation of the narrative phosphorous standard for the Everglades to be enforced on District releases, all to the detriment of the Farm Bureau and similarly situated parties including the State itself. As found earlier by the Eleventh Circuit, Farm Interests have a "legally protectable" right under state law to participate in deciding "what numeric standards should apply . . . to . . . District releases, " which should be protected in proceedings in this Court. South Florida Water Management District, 922 F.2d 709 n.7, 710. DEP, the state agency authorized to determine what numeric standards should apply to District releases4 against whom the Tribe would proceed here, has already begun its rule development process to set a numerical standard for the Everglades Protection Area in accordance with the EFA. See Defendant-Intervenors, Western Palm Beach County Farm Bureau, Inc., Roth Farms, Inc. and K.W.B. Farms', Post-Hearing Memorandum of Law with Proposed Findings of Fact at 24-5.5 

The Tribe's Motion Unavoidably-Implicates the Eleventh Amendment

                8. The Tribe would use the underlying federal action before this Court as a vehicle

to separately proceed directly against these State agencies, with or without a Settlement

Agreement. The Tribe does not even argue seriously that DEP, as a state agency, lacks

Eleventh Amendment sovereign immunity. Rather, the Tribe asserts that Eleventh Amendment

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                4 Sections 403.804, .805 Fla. Stat.

                5 Farm Bureau's Roth Farms, Inc. is a party to that rule development process. See Oider Granting Party Status in Farm Bureau's Notice of Supplemental Authority filed on March-26, 1996.

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immunity has been waived by both state agencies. Tribe Response at 5. However, under the Florida Constitution, waiver of Eleventh Amendment immunity can only occur by explicit act of the state legislature. Tuveson v. Florida Governor's Council on Indian Affairs, Inc, 734 F.2d 730 (11th Cir. 1984); see also Williams v. Eaton, 443 F.2d 422 (10th Cir. 1971) (waiver of immunity must be demonstrated by clear intent and must be by express legislative provision). Neither the District nor DEP can waive Eleventh Amendment immunity by proceeding in this action. Moreover, silence on the issue of immunity does not constitute express waiver of immunity. Amisub (ESL). Inc. v. Colorado Del2t. of Social Services, 879 F.2d 789 (10th Cir. 1989), cert, denied 496 U. S. 935, 1 1 0 L. Ed. 2d 660, 1 1 0 S. Ct. 3212 (1990). The waiver must be by the most express statutory language. Allinder v. Ohio, 808 F.2d 1180, 1184 (6th Cir. 1987), app. dismissed 481 U.S. 1065, 95 L.Ed.2d 865, 107 S.Ct. 2455 (1987).

                9. The Tribe has failed to adduce any authority for its proposition that a federal Court is precluded from considering the Eleventh Amendment immunity question unless raised by a state official. Such consideration is appropriate at any stage because Eleventh Amendment immunity is jurisdictional and can be raised for the first time on appeal; moreover, appearance in the case and defense on the merits does not waive Eleventh Amendment immunity. Ford Motor Co. v. Dept, of Treasury, 323 U.S. 459, 89 L.Ed. 389, 65 S.Ct. 347 (1945) (immunity may be raised for first time in United States Supreme Court); Fla. Dot. of State v. Treasury Salvors, Inc., 458 U.S. 670, 639 n.18, 102 S.Ct. 3304, 334 n.18, 73 L.Ed.2d 1057 (1982); Allinder, 808 F.2d 1180, 1184 (state's appearance and offer of defenses on merits is not a bar to immunity); Ritter v, University of Michigan, 851 F.2 846, 852 (6th Cir. 1988).

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WHEREFORE, Western Palm Beach County Farm Bureau, Roth Farms, Inc., and K.W.B. Farms, file this reply to the Tribe's Response to their Motion to Strike and again respectfully urge the Court to deny the Tribe's Supplemental Motion and dismiss this case in its entirety.

Respectfully submitted,

HOPPING GREEN SAMS & SMITH, P.A.
123 S. Calhoun Street (32301)
P.O. Box 6526
Tallahassee, FL 32314
Telephone: 904/222-7500

__________________
WILLIAM H. GREEN
Florida Bar No. 168276
GARY P. SAMS
Florida Bar No. 134594
Attorneys for Western Palm Beach
County Farm Bureau, Inc., Roth Farms,
Inc., and K.W.B. Farms

 

Certificate of Service

            I DO CERTIFY that a copy hereof was furnished by U.S. Mail, postage prepaid, to each of the following, this 18th day of July, 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. Nettleton
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

Dexter Lehtinen
Maria Santovenia
7700 N. Kendall Drive, Suite 303
Miami, FL 33156

Timothy D. Searchinger
Environmental Defense Fund
1875 Connecticut Avenue
Washington, D.C. 20009

David G. Guest
Sierra Club Legal Defense Fund
P.O. 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

William L. Earl
Robert Blank
Earl, Blank, Kavanaugh & Stotts P.A.
One Biscayne Tower, Ste. 3636
Two South Biscayne Boulevard
Miami, FL 33131

 

 

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Attachment

 

 

Pages 1, 2, 7, 17, 20 and 21 of

Tribe's Petition for a Formal Administrative Hearing

filed June 19, 1996

 

 

 

 

 

 

 

1

I

 

 

Pages 1, 2, 7, 17, 20 and 21 of

Tribe's Petition for a Formal Administrative Hearing

filed June 19, 1996

 

 

 

 

 

 

 

1

I

DEPARTNIENT OF ENVIRONM:ENTAL PROTECTION

 

IN RE:

in the Matter of an Application for

the Everglades Non-FCP Project,

FUe Number 06,EO2590709, by:

Soutb 1,1,)rida Water Nlamtgemeiit District

Post Offlce Box 24680

3301 Gun Club Road

West Palm Reach, Florida 33416-4680

 

I!E]=ION FQR A FORMAT@ ADMINTSTRATIU, HEARMU

Petitioners, Mir-cosukee -Tribe of . Indians of Florida and Friends of the Everglades ("Petitioncrs', thc'Tribc" and 'Fricn&"), by and through undersigned cou=l, htreby file their petition for 2 formal administrative hearing to be conducted by the Division of Administrati-,,e Hearings concerning the above-refe=nc-ed matter.

1. The agency involved in this pro=ding is the Florida Department of Envirorunr.ntal Protection ('DEP"), Thi3 mautr concerns DEP's proposed agency action on a Non-Everglades Constmction Project Permit application, DEP Pern-iit Filt-, number 06,02590709, lipermit application") regarding which the DEP has given notice that it intends to issue to the South Florida Watcr Mamgement District ("District") a perrnit/watcr quality certification ("pmposed permit", 'non-ECP pemit") t o operate and maintain structures within the control of the District discharging into, within, or Eom the Everglades I'votection Area which are not included in the Everglades Construction Project ('ECP')-

Tht project sitc is ted within and adjacent to the Evcrf, Irotecti,;n Area, which is defmcd as, Water Co=rvation Areas 1, 2A, 2B, 3A and 3B, the Arthur R- Marshall Loxahatchee National Wildlife Refuge, and the Everglades National Park, and Palui Beach, Broward, Dade, Hendry, Collier, and Monroe Counties. DEP's retire of intent to issue peridt states that surface waters within the EPA arc Class III Waters and that surface waters within the Everglades National Park and Loxabatchcc National Wildlife Refuge = Outsmuding Florida Waters. In support of this Petition, the Tribe and Friends state as follows:

3 The address of the DEP is 3900 Commonwealth BoWevard, Douglas Building, Mail Stitinn 15. Tallabisirc. Florida 32399-30M.

of Florida, are Mile Marker 70, U.S. Highway 41, Miami, FL 33199 and (305) 223-8380. The :iddr@tg 2nd telephone number for PetitioneLr, Friends of the Evergi2dps, 2re 101 Wegtward Driv,6 #2, MiLuiii Spriags, FloridA 33166 and (30S) 888-1230.

6. Petitioners received notice of the proposed agency action published in the June 5, 1DO6 edition of the Miuai l4eL,@d.

precludes or hinders Flo-, ability to administer the NPDES pi under the Clem Water Act, 33 U.S.C. §§1251 e-t seq.

f the DEP's failure to comply with the Clean Water Act requirement to set mimerical permit its in the permit on the constituents for which DEP has narrative and nu=ric-al stand&-ds and to set its own limits on those without state standards.

21. The non-ECP permit application must be denied because state water quality certification requirements arc not incorporated into the pcrnlit conditions.

22. The Tribe and Friends submit that DEP must deny the permit application because of the District's failure in the permit application to provide Cl= Water Act-required information regarding the chemical composition of the water being discharged through the permitted struc=es and tli2 composition of the sedi=nt.

23. The Tribe and Friends submit that the non-ECP permit should be denied in the absenc@c of a full Environmental Impact Statement on what appears to be the Non-Everglades Construction Project general permit program as required under ffic terms and conditions of the National Enviromnental Policy Act of 1969, 42 U.S.C. §§ 4321 et Eq., ("NFPA") and other appropriate regulations. Federal involvement in the Everglades Restoration project, of which this program purports to be part, including the C- 1 1 1 canal proi =t and Tay lor S lough proi CCt, mandate an Enviromnental Impact Suaement and an alternatives analysis under Section 102(E)

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water criteria which ma) iolated.

67. The Tribe and Friends submit that the permit application mii,;t be denied absent EP's sett4 of numerical permit limits for tb,- constituents for which DEP maintains mnd merical limits to protect state narrative water quality criteria, and its own Ibmits on thout state standards.

68. T'ne Tribe and Friends submit that the permit application must be denied because it fails to monitor mercury and set emueut limits for incrcury and other pollutants which are or may be a risk to both wildlife and human health.

absence of additional information on the uses of the waters in the Everglades Protection Area into which the waters will be diwj=ged and an evaluation of bow those uses might be affected by the proposed discharges,

71. DEP must deny ffic permit application because of its flawed sampling procedure, Due to the spatial distribution of chemical constituents in surface waters within the Everglades, sampling results will vary greatly depending on wbere the sample is taken. For example, it is well-established that the surface water phosphorus concentrations of the Water Conservation Areas are nf@arly undetectable in the interiortn:irsh areas, while high phosphonis concentrations exist at or rr-ar inflow points. Proper enforcement of effluent limitations requires that such limitations be placed at the point of discharge.

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Nadonal Environi

-il Polic), Act of 1969, 42 U.S.C. @ct scq.

STATL,@INMNT OF RELIEF SOIJ(Y'HT