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UNITED STATES DISTRICT COURT
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| UNITED STATES OF AMERICA,
vs. SOUTH FLORIDA WATER MANAGEMENT
and WESTERN PALM BEACH COUNTY
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| MIAMI, FLORIDA December 11, 1989 |
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| TRANSCRIPT OF HEARING PROCEEDINGS
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APPEARANCES:
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afternoon. We are here on United States versus South Florida Water Management District and others, and we are here on motions.
think it was at the last hearing or, rather, stated what the case was about .
law, are we violating state law, and simplified it. I want to try to answer that question and I am going to take a two minute detour to get there.
because I think it is important to talk about the process we are in. These charts here will be used to demonstrate the point.
case is and I will tell you as an environmental lawyer who alleges some expertise this has set my head spinning. I’ve never seen anything like it.
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of hearings with the District and all their interest groups talking about hydro periods which are how long the water is on the land and how along it’s not; worrying about birds who need to have snails at a certain height during part of the year so they can eat; at the same time we need water in certain cities and there is a delicate balance between serving both goals. It is like one big tube of toothpaste.
there is something that comes out the other end.
extremely sensitive environmental system and it is being addressed by some very sophisticated scientists in the District and people on the outside who are helping the District.
enrichment is safe, if any. What amount of phosphorous, to some extent nitrogen, is getting into these water conservation areas which the old Everglades primitive environmental system – they are on that chart over there and I will point to them in a minute – we are not talking just about Everglades Park.
talking about all the remaining primitive environmental systems, the natural systems. How much phosphorous can
6 these systems take? That is probably the issue, the foremost issue which the District is examining, nutrient enrichment. Is there a no-action level? Can we measure it in terms of daily maxima coming out of these outfalls and these structures or should we be looking at an ambient level or both?
complexity here just in terms of how you communicate in his area, much less setting the final standard.
proposed options. We are talking about pumping systems here where you cannot just slap on a carbon filtration system like you can on a lot of industries and say that you are treating the water.
structures so we have to deal with other really, fairly unusual options for handling the problem.
this map. This is one of the proposals for handling the problem.
here are what is called the Everglades agricultural area and these areas that are set off in the checkmarks and dash lines and colors are various acreages privately owned and to some extent more often publicly owned which are proposed
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to be set aside as settling basins since phosphorous will actually settle out sometimes with the assistance of vegetation specifically planned for that purpose, so that when the water gets to the major structures here, which are into these environmental sensitive areas they will be clean, 40 thousand acres, an unprecedented public project, very, very controversial.
upset . They say that you are taking valuable land out of production; you are setting a very bad precedent. They’ve mounted a full-scale campaign against this idea.
quite apart from this lawsuit. Mr. Earl and his firm, under the state laws, have come in and they are looking at all the documents we have.
them. On the other side I think it is fair to say that there is criticism of this proposal by environmental groups and some people in state government to the effect that why are we using state-owned lands to solve a private pollution problem.
am not sure you can see, but the basic purpose is to show that there are numerous meetings being held throughout the year.
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there are governor, board meetings. There are two different advisory committees that are helping with this and who will debate on how to save the Everglades system.
represented on the Advisory Committee, the Corps of Engineers, Fish and Wildlife Service. The point is that there is a very substantial effort.
subject of the suit, is consuming the District and the Board and their time.
outside experts traveling around this area to listen to the farmers, listening to environmental groups is not just number one on the their agenda.
taking an enormous amount of their own personal time to try to resolve this problem. This is the "SWIM" process; you have heard of this mentioned and I think Your Honor said "Well, that’s a state process. Why am I concerned with that?"
back and it answers your question of –isn’t this case about violating state law? Isn’t that really what the issue is about? I think it is and I will try to show how this all
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ties together.
that tells the South Florida Water Management District to take on this tough issue, not only the Everglades but Lake Okeechobee and other natural systems in their jurisdiction.
address the many people who are using the water to look at water quality, water quantity, and all the various factors that certainly will be before Your Honor if we try this case, the equitable factors.
talking hypothetical programs. We are not talking about what the State may do, the District may do. We have an ongoing very major regulatory program. It will lead to stringent controls.
pollution that is entering in these sensitive systems. This is not some speculative argument I am making. We can refer you to volume after volume of material and, indeed, the agricultural people, if you recall, Your Honor, I think it was in the last argument inserted in the record, as if you didn’t need more documents in this case, inserted in the record volumes of the August ’89 which is the second to last version of this SWIM proposal which goes into all the glorious detail about all the problems we’ve been dealing
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with.
think the last dates we are looking at for final type action is the middle of next year, early next year, there will be a very forthright, tangible proposal to address the very contamination that the Government is worried about in this case; and it will be voted on up or down.
Indeed, when I give legal advice to my client it’s in the public, which is somewhat unusual.
that includes the Federal Government. We are certain to get appeals from a variety of sources. This won’t be over when the Board acts, but the Government can complain about the result in this case, and as far as we read the law, they can come right back before Your Honor and say, "This doesn’t do it. This isn’t good enough."
agency action; they can use state law, state administrative procedures, the substantive body of law.
right back in Federal Court and be presented with this and you will have a record. You will have testimony. You will have a complete background on which to rule if, indeed, it is necessary to rule at that time.
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interested parties before the Management District.
saying, "Well, we want to participate in the lawsuit but we do not want to bind our members." That doesn’t work with us. They are in essence involuntary class defendants in this case.
proper notice and Mr. Earl and his firm are participating in every conceivable way in this. They have a court reporter, for example, at every one of our sessions to take down word for word what is said.
had proper notice and, indeed, we have – everyone who has to be bound for meaningful result is in the SWIM process.
question. The state statute under which this legislation really --- the center piece of the state statute on which this legislation is based says to the District in no uncertain terms, "You shall guarantee, when you are done with this process, that there will be no violation of state water quality standards; that there will be no interference with indigenous vegetation, aquatic organisms," the very thing which the Government in their papers is talking about.
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and that is the standard against which we are going to be judged.
result, we hope, well, certainly by next year at this time, but we hope even sooner than that.
to sound facetious. This process will go on, Your Honor, no matter what happens in this court because they are mandated to do it, you know, unless Your Honor somehow issues an injunction.
will have a result. Our frustration is the documents and all the discovery fights we are having and the prospect of having a trial in this court on these very same issues, complete duplicitous legal proceedings. That’s our frustration, what we see ahead of us.
that the doctrines of abstention, primary jurisdiction, exhaustion of sate remedies, all come into play in this case.
for purposes of the argument let’s call them a state agency, charged specifically by the legislature to carry out this mandate with factors they have to consider which are, indeed, the factors which are set forth in the
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plaintiff’s papers, with all the parties that are necessary before that body, proceeding with all deliberate speed and in good faith, and I will add there is no allegation in any of the papers that there is anything illusory about the way the District is proceeding – we say that the Federal Court should stay its hand and let this process go forward.
of Florida chose to resolve this very complex, very difficult social issue, to let the professionals who are paid for this day in, day out tackle this problem in the first instance.
I said, the U.S. Government can proceed again in this court.
recent days pleasantly surprised – we hope that the Federal Government and all its agencies will participate, the Fish & Wildlife Service, the Corps of Engineers, and the Park Service; and we have placed representatives of those people on our Advisory Commission so the can have a direct role in this.
in response to one of our arguments in this case, where, if you recall early on, we said, "Why isn’t the Federal Government using any federal cause of action? Why is there no Federal statute alleged anywhere n this complaint? Why
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aren’t they using the Clean water Act?" That’s this 100 page document that the U.S. Attorney usually relies on.
specific decision to defer this type of pollution to the states," and we agree with that.
logical conclusion. This is how the State of Florida is dealing with this problem and I think we ought to let them try to work it out according to that set plan.
certain of the specific points if that’s all right with Your Honor.
Jerry Jackson. I also represent the South Florida Water Management District as well as its Executive Director, Mr. Wodraska.
no federal statutory claims in this case. Counts one and two are both based solely on state environmental laws and allegations that we violated those laws.
has also provided one key to the courthouse for people who wish to enforce its state environmental laws, aside from the
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State Attorney General who, of course, can enforce them but who is not a party here and the key is the Florida Environmental Protection Act which is at Section 403.412 of the Florida Statutes.
legislation and provided that key to people other than the State Attorney General to enforce these statutes, they put two conditions on being able to use that mechanism to get into court.
and the other is that the plaintiff must provide 30 days advance notice to the agency that should be enforcing this statute before they can come into court.
the State of Florida, has never argued that it is and could not in any conceivable way be considered to be a citizen of an inferior sovereign of the state and the United States has never filed this 30 day notice and has never argued that they have filed such a notice
to dismiss have been that the plain meaning of the statute that I just cited, the Environmental Protection Act, should be disregarded; and the suit is over 30 days old anyway so what difference does it make whether we provided 30 days notice before we sued?
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Supreme court issued a ruling construing a similar type of notice requirement for suits by citizens of the United States to enforce Federal environmental statutes and that was the case called Hallstrom versus Tillamook County, and we have provided the court with a copy of the slip opinion in that case on November 16th. We filed that as a notice of recent authority.
Environmental Protection Act because in many federal environmental laws there is something called the citizens suit provision that works in a similar fashion that says that someone besides the United Sates Attorney or the Attorney General of the United States can bring and action to enforce a federal environmental statute but only if they meet certain conditions precedent, one of which is to file notice 60 days in advance of the lawsuit with the State Environmental Enforcement Agency.
They did file a notice with the violator but they neglected to file a notice with the State Enforcement Agency.
midway in the litigation – they then filed the notice, tried to cure it by filing it during the lawsuit.
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favor of the plaintiffs. However, when it was appealed to the Supreme Court, the Supreme Court reversed the judgment, ordered the case dismissed because the plaintiffs did not file the 60 day notice.
applicable here as well because we are dealing with the same kind of statute – "When the legislature creates a cause of action expanding the class of people that can enforce laws say beyond the U.S. Attorney and the Attorney General and when they put explicit conditions precedence into that notice, into that provision allowing such suits, those conditions precedent must he met to the letter. Otherwise there is no jurisdiction, there is no case."
argument was that, well, this trial is being wasted, we should preserve the result of years of litigation – even though the plaintiffs attempted to cure during the litigation as soon as the problem was raised, the defect was raised to their notice, they tried to cure it by sending the notice in, and the Supreme Court said, "It doesn’t matter. You have got to follow this language."
language in the Statute,. It doesn’t matter; you cannot argue that the complaint served as that notice when you first filed the suit.
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is too important to worry about these technicalities because Congress consciously put these conditions precedent in that provision."
of time because this litigation will go down the drain if it is dismissed because of this lack of notice."
a lawsuit does not cure the defect. These are all the same arguments that have been made against us, against our motion to dismiss by the United States and by the environmental intervenors. In response to the dissimilar arguments the Supreme court said, "The only cure is dismissal."
directly addressed this issue, although Florida courts have said in the past that the conditions precedent of 403.412 are mandatory as far as filing suit to enforce the environmental laws.
but in this case the highest appellate court is the Supreme Court, not the Florida Supreme Court because the United States chose to use the state law and chose to come into Federal Court.
just come in and say, "We want you to enforce the parts of
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the state law we like and ignore the conditions precedent set out by the legislature."
dealing with a similar question under the same jurisdictional provision that the United States came into this court on. When the United Sates comes into court and wants to use state law, they have to live with the bitter and the sweet. They to meet all the requirements of the stature, not just the ones they want.
involves a memorandum agreement with the Everglades National Park and the Corps and the District; all three parties signed that agreement.
contract that has been breached and that they have the right to seek a remedy in this court. We have pointed out that there is no consideration for this agreement running to us. Therefore, it is not a contract enforceable in law.
horn-book case law, horn-book law for contracts, but it is a very simple element of the contract that they have an enforceable document in court, there must be consideration running in both directions.
Service has not undertaken any obligation in this MOA. Only
the District has and only the Corps has. The Corps. has never indicated to us that they have any problem with our compliance with that MOA.
these memoranda agreements that are in existence. Many of them are signed by federal agencies. Many of them may be between federal agencies and sate agencies.
that such an MOA, as they are commonly called, would be enforceable against it. There are declarations of policy. Administrative matters are taken care of, housekeeping, division of jurisdiction, but they’re basically agreements between the Governments on how they are going to deal with Governmental issues.
used against parties signed to the agreements by other parties.
issue. These are the two counts that don’t involve the statutory issues, Counts 3 and 4.
signed by the District in 1951 with the United States Department of the Interior.
manage Water Conservation Area One. That’s the sort of
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oblong area at the top of that map on the right side.
when the project was – Central and Southern Florida Flood Control Project was built back or was first conceived back in the mid 40’s.
basically lease that land to the Fish and Wildlife Service to manage as a wildlife refuge. It’s a lease for which there is no money. It’s basically free rent for 50 years.
conceived by Congress and they authorized the money to build it that they recognized that one of the incidental benefits of the project would be that these water conservation areas would serve as wildlife habitat and that they could be preserved for that purpose and that they would have that benefit. That was one of the reasons the project was built.
reflect that Congressional decision and it is also very clear from the lease provision itself that the protection of wildlife habitat was an incidental side benefit of the project, that the primary purpose of the project was and always has been flood control and water conservation – to the extent that wildlife preservation was to basically exist at the same time consistent with those project purposes then it could.
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congressional documents and the lease itself, the language that we’ve cited in our briefs makes it clear that the primary purpose, the overriding purpose is flood control and water conservation. The only reason that any water enters Loxahatchee National Wildlife Refuge that contains nutrients is to serve either of those two project purposes.
matter of law, the United States has to argue that in effect the two purposes are reversed and that actually the primary purposes of the project as far as the refuge is concerned is to preserve wildlife habitat and that project, other project purposes such as flood control and water conservation must yield when wildlife habitat is threatened.
interpretations that we ask the court to adopt of both the contract for the lease and also the memorandum agreement with regard to whether it has consideration, both of those issues can be resolved by examining the two documents at issue.
within the four corners of the documents. It is a matter of law to interpret this contract. It is not ambiguous and there is no need to go to trial or have fact issues as to what the parties meant when they signed these contracts.
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the contracts to the contrary then, of course, we can have fact issues over whether or not they have been breached, at least at this point as to whether or not the MOA is a contract and whether or not the lease provision requires that the preeminent purpose of the project is to protect wildlife habitat.
resolve on a motion to dismiss. Thank you.
Florida Department of Environmental Regulation.
dismiss also and submitted a memorandum of law to the court.
addressed in the memorandum of law but we incorporate them by reference.
time is just to concentrate on what I see as the foremost important issues.
condition precedent to a citizen suit under Section 403.412 of the Florida Statutes.
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lack of standing of the United States to bring a citizens’ suit under 403.412. Then I would like to discuss the abstention issue and the discretionary enforcement issue.
only counts that are directed towards the Department of Environmental Regulation. They are in essence counts or claims under Section 403. 412 alleging that the Department of Environmental Regulation has not enforced the environmental laws of the state.
Section 403. 412 has a condition precedent that the complainant notify by means of a verified complaint the agencies that it alleges are failing to enforce the particular environmental law.
and after that if the agencies don’t respond, then the citizen may proceed and bring an action in court.
issue of this condition precedent, and in the case of Florida Wildlife Federation versus DER and concluded that that condition precedent was mandatory.
said, "While providing that state citizens may institute suit to compel governmental agencies to perform their duties
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and to enjoin violation of laws, Section 403.412 sets out numerous conditions precedent to bringing such actions.
with the appropriate agency and only after meeting these requirements may a 403.412 complaint be filed."
condition precedent as a mandatory condition precedent. This is of particular significance in view of the case of Hallstrom versus Tillamook County which was just discussed and very recently handed down by the united States Supreme Court.
briefed to you just now, but you have—the United States Supreme Court said that when you have a mandatory condition precedent to bringing this type of citizen’s suit, it must be complied with, and that this is one of the few areas in which a federal trial court doesn’t have discretion –the United Sates Supreme Court says, "Failure to satisfy that mandatory condition precedent must result in a dismissal."
interpreting this condition precedent as a mandatory. There is no satisfaction of the condition precedent and the result is that under the rule of Hallstrom handed down by the United States Supreme Court this case must be dismissed. Counts one and two of this case must be dismissed.
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United States’ standing to bring a citizen’s suit under Section 403.412. That Section starts out saying that identifying the parties –
the case and gave the government 31 days within which to refile, amend. Would that solve your problem?
precedent to the statute.
the Hallstrom case; exactly the same arguments were presented there and the United States Supreme Court said, "You have no discretion. It must be dismissed."
you for the moment, but what I am suggesting is do you want to press the point, nonetheless, even though it is easily solvable?
governing law and we are bound by it.
can waive?
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it.
bring suit. It says, "The Department of Legal Affairs, any political subdivision or municipality of the state or citizen of the state, " and as was pointed out to you, the United States Government is not a citizen of the state, and it’s not a municipality or political subdivision of the State of Florida.
Chapter 373.019 which by contrast defines persons within the meaning of that chapter of the Florida Statutes; and when you read that you can see that the Florida Legislature when it defines person within, for the purposes of Chapter 373, expressly included the United States Government.
United States Government if it wanted to give them standing to bring 403.412 actions. It chose language that very clearly eliminated them.
definition of Chapter 373, which identifies the United States Government as a person for other purposes in the Chapter 373, I think it becomes clear that under Florida law the United States has no standing to bring a citizen’s suit
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under Section 403.412; and, therefore, this court lacks jurisdiction to consider Counts One and Two.
in 1943 a branch of the Abstention Doctrine was developed which I think has particular application to this case.
that had its origin or its namesake in the case of Burford versus Sun Oil Company.
Doctrine were set forth in more detail in a number of cases - let’s see, the United States Supreme Court case in 1975, Colorado Water Conservation District versus the United States.
appropriate where there are difficult questions of state law and relating to important policy conditions and where the exercise of jurisdiction by the Federal Court would interfere or impede in the development and the implementation of those state policies."
States versus Ohio, looked at the Burford Abstention Doctrine, and there it summarized them in the following manner:
there are no unsettled question of state law which affect
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federal claims and that present state proceedings will not be interrupted and that the most important questions presented are federal questions of law, not state questions.
versus Gallagher recently in this last year, in the last few months addressed the Burford Abstention Doctrine.
regulation of professional conduct of dentists and the court said that or the court abstained on the grounds that Florida has significant interests in the area and that Florida had established an extensive regulatory scheme and that the Federal Court’s interpretation of Florida law might disrupt other areas of regulation.
federal property, did they?
property.
constitutional questions which either had been decided by the state court – well, if they had been, of course, the federal court would not have had to abstain, but had not been decided by the state court and were in the process of being decided. That’s a state problem.
federal property that the Government is claiming is being
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impacted by this conduct or lack of conduct.
law; entirely out of state law.
suggesting to me is that they really have no recourse. They are not a citizen so they can’t –
have a recourse. They have a recourse in this very extensive procedure that was set forth in some detail before you.
They can take an appeal from the result once a final SWIM plan is adopted by the Water Management District.
an appeal to the Governor cabinet of Florida sitting as a Land and Water Adjudicatory Commission.
appropriate Florida court of appeal, and they can also take a course of review by asking for an administrative hearing under chapter 120.56. So they can participate. They are not excluded.
you – you have a complex, a very highly complex area involving questions of science, technology and public
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policy, and this is a type of situation that is particularly within the expertise of the state agencies; and in the SWIM process all the experts, all the outside experts can come in and contribute and they have.
Doctrine parameters to this case, you see that it becomes a very appropriate case for the court to abstain.
developed. The Florida Legislature in the preamble to the SWiM Act codified certain findings of facts, and one of those findings of facts as set forth in Section 373.451 (5), the Florida Legislature states, and I quote:
can be corrected and prevented through plans and programs for surface water improvement and management," and then went forth to set forth the legislative scheme for developing SWIM plans to protect water bodies in Florida.
Florida Legislature that the SWIM process is the best way of addressing this problem.
the problem and the State of Florida through its agencies are developing theirs, and the basis of United States’ complaint is that the State is not accepting their solution but proceeding to develop their own as charged by the
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Florida Legislature.
this is an appropriate case for abstention; that if the Florida Legislature’s directions and the SWIM plan are developed pursuant to it, it should be given a chance to work.
always come back as was indicated to this court and seek remedy or it can take any –
they have no rights under the statute because they are not a citizen?
procedures that they have as participant in the SWIM process, they can take an administrative appeal under Chapter –
addressing your comment which said that they can come back here.
The Florida statutes provide them a remedy under 120.56 to appeal the final SWIM plan.
statute that gives the United States Attorney the power to bring its claims into Federal Court, that instead of having
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a State hearing officer conduct that proceeding, that it would come before this court where the Federal Judge would sit and conduct the proceedings in the same fashion that another litigant would have if he pursued his 120.56 remedies before division of or a hearing officer in the state division of administrative hearing, so they are not cut out.
state forums, the Land and Water Adjudicatory Commission, the Florida Court of Appeals or the Florida Administrative Hearing Officer; and they are not cut out from coming back here if they insist on being in federal court.
and give the SWIM plan a chance to prove that it is going to work instead of just allowing the United States to complain basically that they have their plan and tat it should be selected for some reason over ours.
discretionary enforcement, the Doctrine of Discretionary Enforcement is well established in both common law and in decisions of the federal courts and the state courts.
Court in the case of Hector v. Chaney talked about it in some detail. In that case the court said that and agency’s decision not to enforce is a decision generally committed to
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the agency’s absolute discretion.
whereas under the Administrative Procedure Act there is a general normal presumption of reviewbility of an agency’s final action.
not to take particular enforcement action and the United States Supreme Court said in that case that there is actually a presumption that the result is not reviewable.
several fold, that the agency has much better perspective of its enforcement priorities and resources, that it is better suited to determine whether a particular enforcement best fits its overall policies, and it is better equipped than the courts to balance the many variables and considerations to proper ordering of its priorities.
basically stating that the language of Section 403.087 that deals with permits has the term "shall" in it, and that they claim that discretion – that there is no discretion in enforcement that we have in "shall," but the position has been rejected by the courts. I point out the Eighth Circuit in 1987 in the case of Dubois versus Thomas soundly rejected that view.
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forgot to mention that the complex – I mentioned that there were complex questions of state law and I was talking about the statutory scheme for creating the SWIM plans for various water bodies in the state; but one of the complex questions of law is that under Section 403.927, Florida Statutes, the Legislature granted an exemption to the permit requirements of 403.087 for agricultural activities, and how this balanced is struck between those two laws is a complex area of state law that is more suitable for resolution in state court and state proceedings.
considerations because of the potential impact on the agricultural interests of the Everglades agricultural area.
Henderson Wetlands Act in 1984, expressly noted the significance of that agricultural area to Florida’s interests and economy.
wel as state law that have to be balanced, and this is a function that’s most suitable for the state to deal with and the best forum for that to happen in is this SWIM planning process as directed by the State Legislature.
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of the City of Belle Glade and Clewiston. We filed a motion supporting the District’s memorandum and we support the District on MDER in all their efforts to have this case dismissed, but most particularly I want to direct your attention to that 1951 contract.
Okeechobee, is a sacred document because what it does is it recognizes the flood protection and water supply privacy, the primary purposes of the Central and Southern Florida Flood Control Project.
court of that expression, the primary purposes, would resolve that aspect of this case.
grounds of exhaustion. Belle Glade and Clewiston are participation in the SWIM proceedings. The United States is participating.
that’s all I have to say on behalf of the municipal intervenors, Your Honor. Thank you.
privilege to defend the united States on this motion to dismiss.
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heavy burden on this motion. They have alleged that we have failed to state a claim upon which relief can be granted .
briefs on the SWIM Act and so I shall rest upon my brief in that regard also and address only the citizen’s provision and the failure to meet the procedural requirement of 403.412.
403 or 373. I would point out to the court that it is well established that the United States may protect its property like any other landowner within a state, that you cannot discriminate against us.
will see who has a right to sue, and if you examine the cases that have interpreted 403.412, it accomplished two things when it was passed.
provided an administrative remedy. It gives you a possibility as a citizen or another entity to go before the governmental agency who should be enforcing the environmental laws, present it with your facts and your complaints, give them 30 days to fix it. If they don’t fix it or take appropriate action, then you may sue them.
Wildlife Federation versus DER, they discussed what the
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statute had provided. It had given citizens the opportunity who did not have special injury. It opened up a whole other area of lawsuits where there was not special injury.
States in this case already has special injury. It already has a right to come in and sue.
case, by the Supreme Court, they examined the legislative history of 403.412.
in was excluding citizens who were foreign citizens outside the state who would try to come in and allege that the environmental laws were not being enforced.
These people could not be given the special new opportunity, only those within the state.
wanted 403.412 and the entire 403 Act to be part of a collective responsibility to enforce the environmental laws and that corporations could be considered citizens, even though they were not covered by the definition within the statute.
purpose of the act is to provide additional and cumulative remedies to prevent, abate and control pollution of the
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waters of the state.
abridge or alter rights of action or remedies in equity under common law or statutory law."
is included as a person under 373.
they found that the whole act was written to protect the environment as a collective responsibility as cited in the Supreme Court case and hat a restrictive meaning to the word "citizen" would not support that. That’s the Orange County case, at 276 Southern Second, 543.
United States has injury, in fact. The purpose of the legislation is to protect the environment and the Legislature did intend that such people could sue.
to exhaust that administrative remedy. Now, I am not talking about their arguments on exhaustion elsewhere. This is really sort of a separate argument, Your Honor.
you it did before. It is a condition precedent to go into state court. Such a condition precedent is not binding upon a federal court.
you and argued at length involved a federal cause of action, a condition precedent to that federal cause of action going into a federal court, but even in that case Judge O’Connor refused to call it jurisdictional.
it "jurisdictional", and she placed great emphasis upon the fact that there was an absolute prohibition against bringing a cause of action if you had not met that condition precedent. There is no prohibition within the Florida Statute.
that there could be are remedy within that period of time, that is, the 60 day notice provision. I don’t think there is anyone in this room who would represent to you for one second that within 30 days there could be are remedy for the water quality violations that are ongoing about which we complain.
process will provide a proposed solution.
element of our right of a cause of action under the state statutes. We are a landowner. We have injury, in fact. These requirements cannot expand or restrict the jurisdiction of this court.
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you wish, require us to meet them. It will be a futile action if the court so chooses. We will go through that exercise.
enforce their water quality statutes. Any remedy that came up in 30 days is not going to do it.
appealing to these particular state agencies. They have conceded there can be no quick fix. In fact, there have been concessions that there might never be an exact fix to this problem.
the doctrine of exhaustion we should not be forced to comply with it .What to do? We would ask you not to dismiss Counts one and two because we are not required to exhaust this remedy if it would be futile to do so.
you to stay Counts one and two, not the nuisance claim. Nuisance is under Count 2, also. That is not affected and they have not argued that nuisance is affected by the 403.412 because, in fact, Florida law holds very clearly to the contrary that under a nuisance claim you do not have to meet the statutory requirements.
necessary, but if we were to do it, you would stay the
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action. We will send them the letters. What we are seeking here is relief. What they seem to want is that we will jump through certain hoops and loops to get there.
contract claims are not affected by the statutory claims nor is the nuisance claim. If what it takes to save the Everglades are two letters of complaint, then, Your Honor, we will send them and we will challenge the State to fix in 30 days what in 15 years they have failed to fix.
very pretty charts and they are very impressive. We have attached to our opposition to the motion to dismiss plans going back to 1972 that I could quote to you – they concern water quality coming off the agricultural areas, that there needs to be an extensive system to manage this.
somewhat cynical that this process will provide us with relief, you must forgive us.
accompanied by – I suppose that’s a blowup of the chart that was in the copy we received – they proposed increasing the total phosphorous to Everglades National Park by three times the present levels.
faith that the state process is going to meet our needs.
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of administrative remedies largely, and it largely involves the SWIM process, primary jurisdiction and abstention somewhat together because they are all jurisprudentia issues that compel this court to hold its hand and not to exercise the jurisdiction that it legitimately has over these matters.
affect contract claims. They do not affect the nuisance claims.
be aware of that runs throughout all five claims in this case. It is a violation of state water quality standards.
that they haven’t – in fact, the SWIM Act says that you are doing this wrong, go out and do it right.
a court-created doctrine that subjects this court’s determination of whether to exercise jurisdiction whether it would be appropriate or not.
The idea that somewhere down the road that we can appeal this process, while we are incurring irreversible, irreparable harm on a daily basis, is simply not adequate. It comes at a time that too much has already gone. It is
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very late at this particular point.
administrative remedies. SWIM is a planning process. You will find repeatedly throughout their briefs, our briefs, everyone’s briefs that it is a planning process; it is a political process subject to all the infirmities that the political processes in Florida have had throughout time.
increasing degradation. We have had study after study and I will tell you candidly that we would not be in court did we not believe we had to be here.
fun. If we thought SWIM would resolve it, we would go that route.
harm, that this is an extremely unique case in which the Federal Government has an exceptionally strong interest.
agency expertise, they have had over 15 years to resolve it and have not done so. There are standards to be applied. You would not have to write the standards, Your Honor. The facts are very well developed in this particular case. There are no provisions that the administrative procedures are exclusive under Florida law. In fact, 403 actively envisions collective responsibility for
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enforcement.
between a federal court and a state agency. There are multiple reasons for not applying on exhaustion of administrative remedies, the final one being that the state adjudicatory agencies in this case are, in fact, the defendants themselves.
similar rationale. You have a judge-made doctrine which is designed to achieve a proper relationship between the court and the administrative agencies.
pollution, the effects of the pollution, the tools they had available are the potential remedies, they might have a better argument.
the lake and the dairies. They know that the nutrients destroy the indigenous ecosystems. They know the tools they have in the various permits and they know that on-site retention, etc. are sources of remedies they could have been using for a long time.
to them for quite a long time. Further delay will result in further destruction.
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exception to this court’s duty to adjudicate controversies properly before it.
enormous federal interest. Abstention is the exception and not the rule.
abstention is what you should be applying but it is totally fallacious. The SWIM planning process is designed to address water quality violations and is a planning process.
was envisioned in Burford. It is not a separate system where you can go into and litigate in that little administrative process whether something is going on or not
years. We had even deferred within this lawsuit, Your Honor; we granted a stay of discovery.
fact, the Federal Government hasn’t seen documents presented to it for an enormous amount of time because of the discovery problems that we are having.
documents production to which we are referred are not coming from the Federal Government. They are coming from the agricultural interests.
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under the MOA there is no consideration. They focused their whole argument on that – there is no consideration. In that particular agreement you apply hornbook law. You only need a peppercorn’s worth of consideration to have a contract and the court’s are not to inquire into the sufficiency.
The Corps. is obligate to test for water quality, to analyze. They have stations designated. There are 27 parameters that they test for.
to participate in annual meetings and annual reviews. The District, likewise, collects and analyzes data.
federal project, had an obligation to carry out the multi purposes of the whole project.
responsibilities under this particular agreement. They assume obligations under the MOA. They discharge a more generalized obligation in a very specific way. That is not a pre-existing duty.
further inquiry into the intent of the parties is necessary. This would certainly not make it susceptible to dismissal.
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fallacious to say that you cannot maintain both the primary purpose and the secondary purpose simultaneously.
asking them to make a secondary purpose of establishing a refuge for fish and wildlife preservation. The primary purpose – we concede that the primary purpose is flood control and the water supply. That’s the agreement we made and will live by it.
turned into a waste-water treatment plant for agricultural discharge. When this agreement was entered in 1951, pollution was minimal. Since that time there has been an insidious and steady increase.
we allege they should, they could move all the clean water they wanted to through Loxahatchee and there would be no problem. They have breached both of those contracts.
would like to point out the court very briefly that nuisance is an ancient and a powerful tool for pollution and its power in this case is somewhat reflected by the fact that following the filing of this lawsuit certain interests in the Florida Legislature tried to change the entire Florida nuisance law so that our claim would have been wiped out.
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they are completed. It is a very powerful weapon in pollution. Why did they fear it so much? They fear it because it does not have all the exceptions; it does not have the exemptions. There are no jurisprudentia doctrines to keep courts from deciding whether there has been in it; there are no hoops and there are no loops.
leave it there, even if it is not your own garbage, it’s somebody else garbage, you may have created a nuisance and the court may be able to give relief for that.
that we would want the nuisance claim to remain there. They have tried to argue that our nuisance claim is preempted by federal law. That is simply inaccurate.
saves all rights for the United States as a person to seek enforcement against even state agencies, Section 505 (e) of the Clean Water Act.
that state common law nuisance claims exist in addition to remedies under the Clean Water Act.
Milwaukee v. Illinois. It is well established that the Government may protect its land just as any land owner and
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may sue in federal court under any valid cause of action, state or federal.
have raised against us – DER argues that the executive branch of the states government – that they have discretion to implement the water quality regulations. It is a policy decision. We have argued that their statutes are not discretionary in nature.
of Florida to pass laws in order to abate pollution.
responsibility. The environmental agencies are not carrying out theirs. They are not enforcing. Under 403.021 it is the state policy that no waste will be discharged into waters of the state until they have had the treatment necessary to protect the beneficial uses of those waters.
control and prohibit pollution, waste that cannot be discharged or substance that may pollute; pollution or substances which are or may be harmful or injurious to plant or animal life, and all of this comes before the consideration of what is exempted under stationary installations. They cannot explain away or exempt how you can discharge waste into the waters of the United States.
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discharged, and it goes on to state other particular environmental goals. 373, the SWIM provisions, tell the District that you are not to divert water to Everglades National Park. It violates state water quality standards, or that the nutrients in such diverted waters adversely affect indigenous vegetative communities or wildlife.
complaint that they have diverted waters to Everglades National Park that violate state water quality standards, that there is a nutrient front where the indigenous vegetative communities have been affected, that that nutrient front is moving toward the park and that there are already signs of change within the park.
justiciable case. It is capable of this federal court determining that there has been a systemic failure to enforce water quality requirements.
in the Everglades all last Sunday and saw no wildlife for an entire day. That’s not proof and it is not pleading but it is very sad.
It is a federal responsibility to assure that something of them remains. We ask the court to deny the motions to dismiss. Thank you.
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am counsel for Florida Audubon, et al, the group of conservation intervenors that have intervened as plaintiff intervenors.
them only because they strike me at this point as at least worthy of comment on some of the issues that have been raised.
of the United States. Our complaints of intervention, after all, are also at issue here, although quite plainly we are the "tail on the dog" on this and we are content to be in that position.
think the court could bear hearing. One is that on the issue of abstention, one key factor that I would ask the court to consider is that the defendants are asking this court to tell the Federal Government that it cannot have its choice of forum; and no other court has ever done that under the Burford abstention.
that Section 1345 doesn’t bar and abstention, all have to do with Pullman abstention which, of course, is designed to permit the federal courts to avoid addressing a
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constitutional issue that could be avoided if a sate law issue were clarified.
jurisdiction in terms of their jurisprudence. The Burford abstention, however – the irony of it is, the whole point of it is to try to avoid an unnecessary conflict between the federal and state systems.
to bring a claim into federal court, where it would interfere with state regulation under a reg program, the theory is that the state – federal court is going to say, "Why should the federal court, the federal system interfere with the state system?"
States in court in front of you. There is already a conflict between the United States and the State. That’s not going to go away no matter what court it is heard in.
abstention and no court, as I say, has ever done what they are asking you to do here, which is to stay you hand when the Federal Government has come to you as the court of its choice and the court that it’s constitutionally entitled to.
is true that we have characterized the position of the defendants as being sort of academic and hornbook, but it is
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also true that consideration is a pretty disfavored doctrine these days in the actual courts, the way the courts view it, and it doesn’t take very much to find consideration.
talking about, the contract, I think there is consideration on its very face. The first thing that it requires the Park Service to do, and I am focusing only on the Park Service, is to meet at the request of the District.
think we’d all be familiar, family law context, for example, where an obligation to meet with someone at their request would very plainly be a substantial burden.
but I think it is certainly a peppercorn. It also requires the Corps, the Park Service and the Water Management District to take such appropriate and unspecified actions as may be necessary to address problems with the water quality criteria.
Management District is getting something from this contract. It is getting the commitment of the Park Service to use such authority as it has to try to cure any problems with water quality that may take place.
document to find consideration all over it. The same thing
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I think goes with the issue of or the lease issue that Ms. Ponzoli has just addressed.
as an explicit provision of the lease for the Loxahatchee that it is to be managed as much as possible for the wildlife purpose, in using those lands for flood control purposes, it is to be managed as much as possible to foster the purposes of wildlife benefits to the extent consistent with flood control.
being managed in that fashion? That’s an issue plainly, I would think, of fact.
get you to dismiss that claim on the face of the complaint is that there is absolutely nothing that they could do differently than what they are doing and still maintain flood control.
certainly you don’t have to take their word on it.
do which will, in fact, manage those lands more better for the wildlife purposes and still maintain the primary purpose?
and should be nothing in the record on a motion to dismiss
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that would permit to hear any dispute about that.
could show that it were, in fact , impossible, which they certainly haven’t done.
Reese. I am representing the Florida Keys Citizens Coalition and I will be very brief.
SWIM process is a planning process. It is not a permitting process. The United States’ complaint deals with the permitting requirements of Chapter 403 and the Chapter 373.
they feel that they have discretion not to require permits.
very clearly non discretionary. There is case law, the Mass Eighty-eight versus Gardinier case which very clearly states that there are non discretionary duties to require permits.
we will never have compliance with water quality standards. That's precisely why we are here.
which has no enforcement mechanism for the permit requirements of the Florida statutes.
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touched on the issue, but we are dealing with an international biosphere and I think its very major federal interest to protect that biosphere is very different from any of the cases they cited on abstention.
courts that we are dealing with, so you will not have to give initial interpretations to these statutes. They have been interpreted by Florida courts.
with regards to the permit issues there are no administrative remedies to exhaust.
administrative procedures. The Mass Eighty-eight case very clearly states that – no permit decision is also not reviewable. You can’t ask for an administrative decision, for and agency decision not to require a permit because under Florida law that is not agency action.
period where you can file a petition and ask for an administrative hearing officer.
require permits for these discharges -- as a rule they can’t file a rule challenge. So while there are many remedies under the Administrative Procedures Act for various types of
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activities, none of them apply in this situation.
to pursue. It would be futile to try to file anything in that regard.
was adopted by the legislature for the purpose of creating a new and additional cause of action not the exclusive remedy to enforce Chapter 403.
judgments a act, in Chapter 86 of the Florida statutes and inherent equity of Circuit Court in Florida which would be the basis for your equity jurisdiction, also.
action for people who did not have standing. The United States doesn’t need to pursue that remedy under 403.412 because they have injury in fact.
cause of action to people who couldn’t prove injury in fact. So in our view that statute is completely inapplicable to the situation.
Rogers.
comments on the last point, on the SWIM plan. It has been
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refered to rpeatedly as a planning process.
that it is really very soft, it doesn’t have teeth in it, and it isn’t going to really enforce environmental laws – that just isn’t so.
developed as a result of this will have enforceable teeth. It will involve penalties and permits and everything else that is normal to an environmental program.
opinion, and certainly among some of the professional is that because it will be implemented by state officers themselves, the enforcement will be more reliable, the consistency will be more reliable.
land set aside, is to assure that there is a consistent high quality of water; but the point is that we are not going to have some plan that’s put on the shelf and won’t have any real difference for the water quality of South Florida.
Honor, having to do with ownership of federal property. Your question went to: Doesn’t the sovereign have a right to protect his property?
this property is owned by the District, not the Federal
Government. The park is owned by the Federal Government.
to do anything the Government wants us to do to protect the park over and above what we are doing now. It doesn’t take a lawsuit.
I have said this repeatedly and I really mean it --- I don’t mean it as rhetorical flourish – the Corps of Engineers is our boss. We have contracts with them.
the deputy Director, is in the audience. The Corps of Engineers can call him up, issue a telex, whatever, "Do something different. Stop discharging water through this structure. Discharge it through another."
it doesn’t take a lawsuit to protect this governmental property. It is easy. It is far easier than the government will admit.
is a continuing bone of contention. I know we have argued our Rule 19, am I am not going to do it over again.
been trying to talk to him and he’s like reaching the Dhali Lama. He’s always indisposed. We still have a motion out.
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year we might be able to talk to him, but we ar obviously going to have to go to motion practice and argue with them over deposing Colonel Herndon.
us to do? You have contracts with us. You have all these rights. Why haven’t you exercised them? Why haven’t you told us what to do?"
Ms. Ponzoli says, we are truly concerned over the long term threat to not only the park but all these areas, and that’s why a number of very fine people are dedicating themselves to coming up with the SWIM program that will address that.
because they have been said on the record. Ms. Ponzoli referred to irreparable harm.
months before the Federal Government. We are the ones who say that we don’t need interrogatories. Let’s get on with it. Let’s get on with deposing the experts. If we are going to try the case, let’s do it. Let’s not drag our feet.
dime for any of the documents that we have turned over to to the Federal Government. Despite repeated requests, they
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haven’t paid for a single document yet.
whom, it is a two-way street.
to comment briefly?
that they don’t have any administrative remedy in a adjudicatory fact-finding type form. That I submit is incorrect.
review of final orders and rules of a water management district. That governs this particular issue.
that an affected person can bring a rule challenge under chapter 120.56 of the Florida Statutes.
are very much like a trial in your court. The parties can bring on witnesses under oath. The testimony is taken. Exhibits are entered. Cross examination can be had.
is a state hearing officer or administrative law judge, if you would, sitting there controlling the proceedings.
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fact-finding adjudicatory forum available to the United States Attorney.
nuisance claim? Does the Government need to go to an administrative body to have their nuisance claim decided?
Honor.
nuisance claim as far as the Government is concerned?
our grounds for believing that they cannot state a nuisance claim against a department environmental regulation.
legal standard?
because that nuisance will not lie for the department’s discdretionary election not to take a particular enforcement action.
but I would refer you to the memoranda of law that have been submitted on that issue in some depth.
suggestion that the political process was somehow the wrong
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forum, if you will, to formulate important state public policy.
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