On July 26, 1991, the United States, the DER and the
District executed a Settlement Agreement resolving all of their
respective claims in this case and, more significantly,
establishing a framework for long-term protection of the
Everglades. The Settlement Agreement, consistent with Florida's
statutory and regulatory framework for addressing nutrient
pollution of the Everglades, provides for a sound,
scientifically-based process to ensure that the fragile
ecosystems of Everglades National Park, the Loxahatchee National
Wildlife and other remnants of the Everglades receive the
safeguards they so desperately need. The United States, with the
support of the District and DER, seeks the Court's expeditious
approval of the Settlement Agreement.
2
I. Nature of the Settlement Agreement
The Settlement Agreement has undergone extensive review
and has received widespread support within the federal and state
governments and the District. On July 11, 1991, Attorney General
Thornburgh and Governor Lawton Chiles held a joint press
conference to announce the proposed settlement, and the
Settlement Agreement was released for review by the District's
Governing Board. The Governing Board approved the Settlement
Agreement by a 6-1 vote on July 26, 1991. All parties to the
Settlement Agreement have signed it and are now presenting it to
the Court for review and approval.
The Settlement Agreement is structured as follows: FN 1
1. Form of Agreement. The settlement would be
implemented by a Settlement Agreement and Order. The Agreement
includes a main body as well as detailed technical appendices
that are briefly summarized in the body. For purposes of
interpreting the specifics of the Agreement, the Appendices
prevail over the main body. The Order, lodged for the Court's
consideration, would approve and incorporate the Agreement and
require compliance with its terms. In an effort to avoid
adversarial proceedings, the Agreement requires mediation prior
to seeking judicial relief. The Court would retain jurisdiction
over the litigation for the purpose of allowing the signatory
parties to seek judicial modification and enforcement of the
3
Agreement in the event mediation fails.
2. Acknowledgement of the nutrient problem. The
Agreement stipulates to the unique ecological significance of the
Park and Refuge and the serious threat that nutrient pollution
poses to them. The parties stipulate that water entering the
Refuge contains levels of nutrients that violate state water
quality standards and that nutrient-polluted water entering the
Park is, or is reasonably expected to be, a source of pollution
in the Park. Thus, Settlement Agreement recognizes that the
actions prescribed under the Agreement are necessary to halt or
prevent further violations of the existing state water quality
standards that have applied to the Park and Refuge for well over
a decade.
3. Commitment on water quality and water quantity.
The Agreement contains a fundamental commitment by the signatory
parties to achieve the water quality and water quantity needed to
preserve and restore the unique flora and fauna of the Park and
Refuge. Thus, the Agreement broadly requires the District and
DER to take such action as is necessary to achieve state water
quality standards in the Park and Refuge by July 1, 2002. The
Agreement further requires the District and DER to mitigate
reductions in the quantity of water entering the Park and Refuge
due to efforts to improve water quality.
4. Interim and log-term total phosphorus limits. The
Agreement establishes provisional interim and long-term total
phosphorus concentration limits for Everglades National Park and
4
Loxahatchee National Wildlife Refuge. The interim limits, to be
achieved by July 1, 1997, are established to ensure progress
toward meeting the long-term limits in the year 2002. The long-
term limits are intended to ensure the restoration and
maintenance of the native flora and fauna in the Park and Refuge.
The Agreement also calls ultimately for numerical interpretation
of State Class III Water Quality criteria applicable to the Park
and Refuge, and implementation of the numerical interpretations
if they are more stringent than the long-term limits set forth in
the Agreement. At present, however, the Agreement does not
specifically translate narrative state water quality standards
into numerical form.
5. Remedial programs. The Agreement, consistent with
existing state law, provides for two remedial programs:
"stormwater treatment areas" ("STAs") and a regulatory program.
The District and DER will implement these programs pursuant to
their existing authority under Florida law and in accordance with
statutory schedules and procedures, particularly those set forth
in the Marjory Stoneman Douglas Everglades Protection Act of
1991, Fla. Stat. Sec. 373.4592. The STAs are large, flow-through
water treatment marshes designed to treat all agricultural
drainage flowing into the Everglades. The Agreement requires the
District to design and construct approximately 35,000 acres of
STAs in the Everglades Agricultural Area ("EAA"), with provision
for additional acreage if needed to meet the long-term total
phosphorus limits. The regulatory program will require permits
5
for all discharges of water from the EAA, located north of the
Park and Refuge. It will also establish specific long-term
phosphorus load allocations for permit applicants. A key
component of the regulatory program will be the implementation of
a Best Management Practices ("BMP") program designed to achieve
an interim phosphorus reduction of 10% and a long-term reduction
of 25% on farms in the EAA.
6. Research and monitoring. The Agreement establishes
a research and monitoring program, to be initiated by DER and the
District. DER and the District will be primarily responsible for
the research and monitoring program, with support from the United
States. The research program is intended to interpret
numerically the narrative state water quality standard for
nutrients, and to assess responses of the Park and Refuge
ecosystems to the nutrient levels achieved under the Agreement.
Research will also be conducted on the performance of the STAs
and the BMP program. The monitoring program is intended to track
compliance with interm and long-term phosphorus limits, to
monitor the response of the ecosystem to the phosphorus levels
actually achieved, and to provide data for research initiatives.
7. Enforcement contingencies. The Agreement,
consistent with existing state law, establishes a schedule for
the District and DER to complete administrative actions
consistent with the terms of the Agreement, including
promulgation of a Surface Water Improvement and Management
("SWIM") Plan for the Everglades and issuance of permits for
6
District pump stations discharging to the Everglades. The
District and DER acknowledge their existing authority under state
law to take additional action against third parties responsible
for nutrient pollution of the Everglades if the schedule is not
met.
8. Corps permits. In settlement of the State Parties'
counterclaims against the Corps of Engineers, the Agreement
requires the Corps to apply to DER for stormwater management
permits for several of its water delivery structures in the
Everglades. The Corps agrees to comply with reasonable permit
conditions relating to abatement of nutrient pollution in the
Everglades. In addition, the Corps will design and construct any
new structures in a manner consistent with the Agreement, and
future projects designed by the United States which affect the
Park or Refuge will consider the environmental and water quality
commitments set forth in the Agreement.
9. Mutual cooperation. The Agreement adopts a
commitment to federal-state cooperation, with primary
responsibility for taking action under the Agreement resting with
the State. The Agreement establishes a joint Technical Oversight
Committee ("TOC") with representation of State and Federal
agencies, requires mutual technical support, and mandates
mediation prior to initiation of judicial proceedings to settle
disputes. The TOC will plan, review and recommend all research,
monitoring and compliance conducted pursuant to the Agreement.
In reviewing compliance with phosphorus limits and levels
7
establish under the Agreement, TOC members will review water
quality data and make recommendations to their respective
agencies for appropriate action.
10. Force majeure. The Agreement contains a force
majeure clause that explicitly recognizes natural disasters and
unavoidable legal barriers or restraints as uncontrollable events
that may prevent or delay commitments under the Agreement.
II. The Court Should Approve the Settlement Agreement
This lawsuit, initiated nearly three years ago, has
consumed enormous amounts of time and resources. Discovery has
included exchange of hundreds of thousands of pages of documents
and over sixty depositions. The parties' filings in connection
with United States' motion for partial summary judgment, which is
fully briefed, reveal the great extent to which the parties have
developed the factual and legal issues in this case in light of
the massive discovery to date. Negotiations, undertaken in light
of this voluminous amount of information and the highly
adversarial proceedings that dominated the first two years of
this litigation, have now resolved the contentious disputes among
the United States, the District and DER in favor of a common goal
to restore expeditiously the Everglades. Settlement of this case
on the terms outlined above will shortcut this protracted
litigation, avoid a lengthy trial, and promote this worthwhile
goal. Accordingly, the Court should approve the Settlement
Agreement.
8
A. Introduction
The Settlement Agreement is presently before the Court
for a determination of whether it is fair, reasonable and
adequate. In re Smith, 926 F.2d 1027, 1029 (11th Cir. 1991);
United States v. City of Miami, 664 F.2d 435, 441 (5th Cir
1981); E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889
(7th Cir. 1985), cert. denied, 478 U.S. 1004 (1986); The Court
must
examine [the Settlement Agreement] carefully
to ascertain not only that it is a fair
settlement but also that it does not put the
court's sanction on and power behind a decree
that violates Constitution, statute, or
jurisprudence. This requires a determination
that the proposal represents a reasonable
factual and legal determination based on the
facts of record, whether established by
evidence, affidavit, or stipulation. If the
decree also affects third parties, the court
must be satisfied the effect on them is
neither unreasonable nor proscribed.
City of Miami, 664 F.2d at 441; see also Howard v. McLucas, 871
F.2d 1000, 1005 (11th Cir. 1989).
The Court's discretion in determining whether to
approve or reject the Settlement Agreement is broad. EEOC v.
Hiram Walker, 768 F.2d at 889; S.E.C. v. Randolph, 736 F.2d 525,
529 (9th Cir. 1984); City of Miami, 664 F.2d at 442. The factors
relevant to approval of this type of settlement agreement include
a comparison of the strengths of plaintiffs'
case versus the ... settlement offer; the
likely complexity, length, and expense of
litigation; the amount of opposition to the
settlement among affected parties; the
opinion of competent counsel; and, the stage
9
of the proceedings and the amount of
discovery already undertaken at the time of
settlement.
EEOC v. Hiram Walker, 768 F.2d at 889; see also Cotton v. Hinton,
559 F.2d 1326, 1330 (5th Cir. 1977) (court should compare
settlement terms with likely results of a successful trial, rely
on the judgment of experienced counsel, and take into account
practical considerations regarding the complexity of the
litigation and the time and expense involved). The Court must
also consider the nature of the litigation, the consistency of
the settlement with the objectives of the statutes sought to be
enforced in the litigation, and its impacts on nonsignatory
parties. City of Miami, 664 F.2d at 441. These factors must be
weighed in light of the general policy in law favoring
settlements, Cotton v. Hinton, 559 F.2d at 1331, which is
particularly forceful in this case because "government actor[s]
committed to the protection of the public interest [have] pulled
the laboring oar in constructing the proposed settlement."
United States v. Cannons Engineering Corp., 899 F.2d 79, 84 (1st
Cir. 1990); see also S.E.C. v. Randolph, 736 F. 2d at 529;
Williams v. City of New Orleans, 729 F.2d 1554, 1560 (5th Cir.
1984; In re Acushnet River & New Bedford Harbor, 712 F. Supp.
1019, 1028 (D. Mass 1989).
B. The Settlement Agreement Is Consistent With the
Reasonable Likely benefits of a
Successful Trial
In examining the United States' chances absent
settlement, for present purposes "it is enough to consider only
what was reasonably to be expected to happen had no agreement
10
been made." Young v. Katz, 447 F.2d 431, 435 (5th Cir. 1971)
(quoting In re Riggi Bros. Co., 42 F.2d 174, 176 (2d Cir. 1930)).
The fairness, adequacy and reasonableness of the Agreement must
be assessed in view of "the likely benefits of a successful
trial." Cotton v. Hines, 559 F.2d at 1330.
It is not necessary in order to determine
whether an agreement of settlement and
compromise shall be approved that the court
try the case which is before it for
settlement . . . Such procedure would
emasculate the very purpose for which
settlements are made. The court is only
called upon to consider and weigh the nature
of the claim, the possible defenses, the
situation of the parties, and exercise
business judgment in determining whether the
proposed settlement is reasonable.
Young v. Katz, 447 F.2d at 435; see also Citizens for a Better
Enironment v. Gorsuch, 718 F.2d 1117, 1125-26 (D.C. Cir. 1983),
cert. denied, 467 U.S. 1219 (1984).
The most obvious factual basis for assessing the
reasonableness of the settlement is the section in the Agreement
itself describing the background to the nutrient problem in the
Everglades. Settlement Agreement at 6-8. The United States has
long contended that the defendants' own technical documents from
the last two decades, in particular the draft SWIM Plans,
establish the factual basis supporting relief under the Second
Amended Complaint. See generally Memorandum in Support of the
United States' Motion for Partial Summary Judgment. Governor
Chiles' statements in open court at the May 20, 1991, hearing,
along with the District's and DER's supplemental summary judgment
pleadings which clarified the governor's statements, also
11
acknowledge the extent of the nutrient problem in the Everglades.
See DER's Supplement to Its Consolidated Opposition; District's
Amended Response to the United States' Statement of Undisputed
Facts; United States' Consolidated Supplemental Reply, at 2-6.
Indeed, the factual underpinnings of the United States' case,
which are now agreed to by stipulation in the Agreement, provide
a sound basis for the actions required under the Settlement
Agreement.
The docket in this case also provides ample indication
that the Settlement Agreement provides a reasonable and
appropriate remedy. In particular, the voluminous filings in
connection with the United State's Motion for Partial Summary
Judgment present a clear picture of the straightforward factual
and legal grounds for finding that the Settlement Agreement is
consistent with the reasonably likely results of continued
litigation. Although resolution of that motion is obviated by
the Settlement Agreement, it is fully briefed and provides a
sound support for finding the Settlement Agreement reasonable.
The Court's denial of the motions to dismiss this action is an
additional significant indication that the Settlement Agreement
comports with a reasonable anticipated outcome of further
litigation.
Issues of remedy have not been briefed as thoroughly as
liability issues. However, a comparison of the District's SWIM
Plan drafts and the United States' comments on them provides a
gauge of the parties' respective positions on remedy at earlier
12
junctures in the litigation. See Memorandum in Support of United
States' Motion for Partial Summary Judgment, Exhibits 4-13, 80.
The terms of the Settlement Agreement are largely consistent with
the relief that the United States sought in its comments on the
SWIM Plan. Indeed, the parties to the Settlement Agreement
stipulate to the fundamental facts underlying the nutrient
problem in the Everglades, and accordingly agree that "the
actions set forth in this Agreement are necessary to halt or
prevent imbalances in natural populations of aquatic flora and
fauna and other water quality violations in the Park and Refuge."
Settlement Agreement at 8.
In addition, "[t]he relief sought in the complaint may
be helpful to establish a benchmark by which to compare the
settlement terms." Cotton v. Hinton, 559 F.2d at 1330. The
United Sates' prayer for relief in this case was for the
District and DER to be mandated to enforce all applicable water
quality standards in waters delivered to the Park and Refuge;
enjoined from delivering the Park and Refuge polluted and
contaminated water; enjoined from operating pump stations that
pollute the Park and Refuge; mandated to meet the terms of the
License Agreement and the MOA; and mandated to abate the nuisance
resulting from the discharge of nutrient-polluted water to the
Park and Refuge. The Settlement Agreement is entirely consistent
with the prayer for relief under the Second Amended Complaint.
As described above, the Settlement Agreement establishes
phosphorus limits and levels for Park and Refuge inflows,
13
requires programs designed to limit the introduction of nutrient-
loaded agricultural drainage into the Park and Refuge, requires
the construction of STAs to filter agricultural drainage before
it enters the Park and Refuge, and establishes a research and
monitoring program for assessing the success of remedial efforts
and continued study of water quality impacts on the Park and
Refuge.
Finally, the relief set forth in the Settlement
Agreement substantially advances the objectives of the statutes
and regulations the United States seeks in this litigation to
enforce. See City of Miami, 664 F.2d at 435 ("If the suit seeks
to enforce a statute, the decree must be consistent with the
public objectives sought to be attained ..."); Citizens for a
Better Environment v. Gorsuch, 718 F.2d at 1125. The Florida
State Water Policy provides that "[w]ater quality standards shall
be enforced pursuant to chapter 403 ... to protect waters of
the State from point and non-point sources of pollution." F.A.C.
Sec. 17-40.060(1) (1990). In addition, the policy underlying
Fla. Stat. Ch. 373 is, inter alia, "[t]o prevent damage from ...
soil erosion and excessive drainage; [t]o preserve natural
resources, fish, and wildlife; [t]o promote the public policy set
forth in [the Florida Air and Water Pollution Control Act,
Chapter 403]; [and] [t]o ...protect public lands." Fla. Stat.
Ann. Sec. 373.016(2) (1988). The Agreement promotes DER's policy
"to limit the introduction of man-induced nutrients into the
waters of the State" and the directive to give "particular
14
consideration ... to the protection from nutrient enrichment of
those waters presently containing very low nutrient
concentrations: less than 0.3 milligrams per liter total nitrogen
or less than 0.04 milligrams per liter total phosphorus." F.A.C.
§17-302.300(3) (1990). Finally, the Agreement promotes the SWIM
Act's proviso that "[t]he [SFWMD] shall not divert waters to ...
the Everglades National Park [] in such a way that the state
water quality standards are violated [or] that the nutrients in
such diverted waters adversely affect indigenous vegetation
communities or wildlife ..." Fla. Stat. Ann. §373.4595(2)(a)(1)
(1988).
C. The Settlement Agreement Does Not Abridge Third Party
Rights
A party in a lawsuit cannot by withholding its consent
preclude other parties from withdrawing from the suit by entering
into a court-approved settlement agreement. Local Number 93, 478
U.S. at 528-29. Correlatively,
parties who choose to resolve litigation
through settlement may not dispose of the
claims of a third party, and a fortiori may
not impose duties or obligations on a third
party, without that party's agreement.
Id.; see also City of Miami, 664 F.2d at 441-42. Nor can the
Settlement Agreement bind nonconsenting parties to the
litigation. Martin v. Wilks, 490 U.S. 755, 768 (1989); United
States v. South Florida Water Management District, 922 F.2d 704,
709 (11th Cir. 1991). The Settlement Agreement in this case
neither binds nor otherwise infringes on the legally protectable
rights of third parties --most significantly, the Agricultural
15
Intervenors -- such that the Court should withhold its approval.
Not just any effect on a third party will warrant
disaproval of a settlement agreement. Rather, the Agreement
must be rejected only if it burdens a legally protectable
interest of a third party.
A consent decree may conceivably burden the
rights of third parties in various ways. A
decree could, for example, expressly require
the party to perform, or refrain from
performing certain acts. Alternatively, the
decree could impose no specific duties on the
third party, but rather require the third
party to comply generally with the decree's
terms or be subject to its enforcement
provisions. A consent decree would also
burden third parties if it effectively
altered specific contract rights they
possessed at the time the settlement was
given effect.
Wilder v. Bernstein, 645 F. Supp. 1292, 1318 (S.D.N.Y. 1986),
aff'd., 848 F.2d 1328 (2d Cir. 1988). See also Kirkland v. New
York State Department of Correctional Services, 711 F.2d 1117,
1127 (2d Cir. 1983), cert. denied, 465 U.S. 1005 (1984); City of
Miami, 664 F.2d at 447. The Settlement Agreement in this case
imposes no such burden on third parties.FN
2
16
The Agreement clearly does not expressly require the
Agricultural Intervenors, or any other entity other than the
District and DER, to comply either specifically or generally with
any term of the Agreement. Although the Settlement Agreement
undoubtedly holds the District and DER to certain requirements,
such as on-schedule attainment of phosphorus limits and levels for
the Park and Refuge and construction of minimum acres of
STAs, it does not require the State Parties to achieve those ends
by any particular means not otherwise provided for under state law.
Specifically, the Agreement does not mandate action that
will necessarily affect specific third parties, or that will
transgress existing provisions of Florida law. See Settlement
Agreement at 19-22 (describing DER and District implementation of
the Agreement through their existing statutory mandates). Thus,
although pursuant to the Agreement the District and DER may
impose requirements or burdens on third parties, the District and
DER can take such action only in accordance with their existing
authority under Florida law.
Neither does the Agreement infringe on specific
contractual or other legally-protectable rights of the
Agricultural Intervenor or other third parties. Because "the
sum of rights possessed by an intervernor, even if granted
unconditional intervention ... depends on the nature of the
17
intervenor's interest," Kirkland, 711 F.2d at 1126, the
appropriate right on which to focus in this regard is the
interest that the Eleventh Circuit deemed sufficient to warrant
the Agricultural Intervenors' limited intervention in this case.
The Eleventh Circuit summarized:
[T]he Farm Interests have a direct,
substantial, legally protectable interest in
participating in the development of numeric
water quality standards under state law.
Their ability to protect this interest will
be impaired if the District Court issues an
injunction specifying numeric standards for
the Water District because that injunction
will bind the Water District in
administrative proceedings, and will have at
least a stare decisis effect in subsequent
litigation.
922 F.2d at 710.
Although the Agricultural Intervenors' legally
protectable interests might have been significantly impaired as
the Court of Appeals imagined under various other outcomes to
this litigation, the Settlement Agreement does not sidestep state
procedures in establishing a process for numerically interpreting
existing enforceable narrative nutrient standards.FN 3 The
Settlement Agreement by necessity takes into account that state
administrative and judicial proceedings related to the District's
18
and DER's implementation of the Agreement, in which the
Agricultural Intervenors are free to participate to the extent
Florida law provides, must run their normal course. Settlement
Agreement at 19-22, 28. In sum, the Settlement Agreement's
effect on third parties "is neither unreasonable nor proscribed."
City of Miami, 664 F.2d at 441.
D. The United States Possesses Ample Information to
Conclude Intelligently that the Benefits
of Settlement
Outweigh any Prospective Benefits of
Lengthy, Complex,
and Expensive Litigation
In determining whether to approve a proposed settlement
agreement, the court may inquire whether the plaintiff possesses
sufficient information make an intelligent decision to agree to
the compromise. Cotton v. Hinton, 559 F.2d 1326, 1332 (5th Cir.
1977). Relevant in this regard will be the amount of discovery
conducted by the plaintiff. See id. However, even and outright
lack of formal discovery does not itself "compel the conclusion
that insufficient discovery was conducted." Id. Instead,
"[t]he scope of the discovery to be conducted in each case rests
with the sound discretion of the trial judge." Id. At 1333.
It is beyond peradventure that the United States in
this case possesses sufficient information to decide
intelligently that the benefits of settling on the terms of the
Settlement Agreement, and avoiding the costs of continued
litigation, outweigh any benefits of continued litigation. The
United States has been litigating this case intensely for nearly
three years. To say that the issues in this case have been
vigorously contested would be and understatement--the docket in
19
this case contains nearly one thousand entries reflecting
vigorous contest over pleading challenges, discovery disputes,
and summary adjudication.
Further, before agreeing to the proposed settlement,
the United States conducted extensive discovery in this case.
The United States propounded interrogatories, requests for
admission and expensive requests for production of documents and
conducted over 60 depositions. In short, the United States has
made great efforts to develop its information for this case,
through formal discovery, its numerous experts and otherwise, and
to evaluate the issues in this litigation. Government litigation
counsel certainly possess sufficient information to have
intelligently concluded that the Settlement Agreement is in the
best interests of the United States.
The reasonableness of the United States' decision to
settle is even clearer given the likelihood that continued
litigation would be complex, lengthy, and expensive. Under such
circumstances, settlement is all the more favorable. See In re
Acushnet River & New Bedford Harbor, 712 F. Supp. at 1030.
Moreover, it is entirely appropriate to consider these practical
considerations in deciding whether to approve the Settlement
Agreement. Cotton v. Hines, 559 F.2d at 1330.
20
E. The Settlement Agreement Deserves Substantial Deference
Several policies run in favor of according substantial
deference to the comprehensive solution that three governmental
entities have forged in the Settlement Agreement. The first is
the fundamental policy supporting resolution of complex
litigation by settlement. United States v. Cannons Engineering,
899 F.2d at 84.
Another policy, according strong deference to agency
decisionmaking, is especially strong here in that all the parties
to the Settlement Agreement are governmental agencies. Id.; SEC
v. Randolph, 736 F.2d at 529. The District and DER are
thoroughly familiar with the statutory schemes at issues in this
case, which should give the Court considerable confidence that
the substantive and procedural elements of the Agreement stand on
solid ground. Cf. Wilder v. Bernstein, 645 F. Supp. at 1339
(deference due to consent to agreement of state agencies "who
presumably are the parties most familiar with the intricacies" of
statutory scheme at issue). In addition, the federal agencies
represented in the Agreement -- in particular the National Park
Service, the Fish and Wildlife Service and the Corps of Engineers
-- collectively cover a broad range of interests. Less judicial
scrutiny of a settlement agreement is required when, as here,
governmental agencies representing a wide range of interests have
crafted it or deemed it acceptable. Williams, 729 F.2d at 1560.
Finally, the Court "is entitled to rely upon the
judgment of experienced counsel for the parties. Indeed, the
21
trial judge, absent fraud, collusion, or the like, should be
hesitant to substitute its own judgment for that of counsel."
Cotton v. Hines, 559 F.2d at 1330. Here, counsel for the United
States, the District and DER have spent nearly three years
familiarizing themselves with the extensive factual issues
involved in the case. In addition, the negotiators for the
District and DER were their respective chief agency counsels,
both having a wide range of experience dealing with the complex
water management issues in South Florida. Thus, deference to the
judgment of counsel is particularly appropriate in this case.
III. Request for an Appropriate Hearing
The United States, supported by the District and DER,
seeks the Court's approval of the Settlement Agreement after an
appropriate hearing, as expeditiously as possible, bearing in
mind the Court's need to be satisfied that the settlement is
fair, adequate and reasonable.
When a District Court exercises its authority
in approving a settlement offer, it must give
comprehensive consideration to all relevant
factors and yet the settlement hearing must
not be turned into a trial or rehearsal of
the trial. ... The Court must eschew any
rubber stamp approval in favor of an
independent evaluation, yet, at the same
time, it must stop short of the detailed and
thorough investigation it would undertake if
it were actually trying the case.
City of Detroit v. Grinnell Corp., 495 F2d 448, 462-63 (2d Cir.
1974); see also United States v. Cannons Engineering Corp., 899
F.2d at 84.
Accordingly the United States suggests that while some
22
kind of hearing on approval of the Settlement Agreement is
appropriate, an extended evidentiary hearing is unnecessary
where, as here, discovery has been extensive, the Court has
before it an enormous amount of evidentiary material and the
relevant interests of potential objectors are extremely limited
in scope.FN 4 Rather, it is
sufficient to allow any objectors with
standing to be heard to "air their objections" and present their
factual analyses without an evidentiary hearing or further
discovery. See United States v. Oregon, 913 F.2d at 582.
"[T]he test for granting a hearing 'should be
substantive: given the nature and circumstances of the case, did
the parties have a fair opportunity to present relevant facts and
arguments to the court, and to counter the opponent's
submissions?'" United States v. Cannons Engineering Corp., 899
F.2d at 94. Where "the record is adequate, and evidentiary
hearing is not required unless the objectors raise 'cogent
factual objections to the settlement.'" Malchman v. Davis, 706
F.2d 426, 434 (2d Cir. 1983) (cites omitted). Further, if the
Court has before it sufficient facts intelligently to approve the
settlement offer, "then there is no reason to hold additional
hearing on the settlement or to ... renew discovery." City of
Detroit v. Grinnell Corp., 495 F.2d at 462-63; see also United
States v. Oregon, 913 F.2d at 582 ("Familiarity of the court with
23
the lawsuit can be an important factor.").
A detailed discussion of potential objections to the
settlement obviously would be premature at this time. However,
it bears reiteration that by virtue of the narrow scope of their
intervention, the Agricultural Intervenors have a very limited
role to play in proceedings on approval of the settlement. The
mostly procedural issues relevant to their intervention will
require neither an evidentiary hearing nor, a fortiori, further
discovery. This limitation is especially proper given the large
amount of information relevant to this case that the Agricultural
Intervenors already possess through the counsel they share with
the Intervenor Cities and through public records requests.
Moreover, the Court's considerable familiarity with this case
after three years of litigation favors these limitations. The
incremental value that the Court might gain by holding an
evidentiary hearing or allowing further discovery is far
outweighed by the need to implement the settlement and the
benefits it holds for the Everglades without further delay.
24
IV. Conclusion
For the foregoing reasons, the Court, after an
appropriate hearing, should GRANT the United States' motion for
approval of the Settlement Agreement.
Respectfully submitted,
BARRY M. HARTMAN
Acting Assistant Attorney General
Environment and Natural Resources
Division
DEXTER W. LEHTINEN
United States Attorney
Southern District of Florida
______________________
SUZAN HILL PONZOLI
(Fla. Bar No. 0272450)
RICHARD W. HARRISON
B.J. THRONE
MAUREEN DONLAN
Assistant United States Attorneys
Southern District of Florida
155 South Miami Avenue
Miami, Florida 33130
(305) 536-5477
________________
GEOFFREY GARVER
BEVERLY SHERMAN NASH
GARY GUZY
KEITH E. SAXE
U.S. Department of Justice
Environment and Natural Resources
Division
General Litigation Section
P.O. Box 663
Washington, D.C. 20044-0663
(202) 272-4692
Attorneys for Paintiff
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the
foregoing Motion for Approval of Settlement Agreement and Order
and Request for Hearing was mailed, postage prepaid, this__15th_
day of August, 1991, to the parties on the attached certificate of
service list.
________________
B.J. THRONE
Assistant U.S. Attorney |