UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized Indian Tribe, PLAINTIFF vs. Case No. 94-2259 UNITED STATES OF AMERICA; U.S. DEPARTMENT OF THE INTERIOR; BRUCE BABBITT, in his official capacity as Secretary of the Interior; GEORGE FRAMPTON, in his official capacity as Assistant Secretary of the Interior and Chairperson of the South Florida Ecosystem Restoration Task Force; and RICHARD G. RING, in his official capacity as Superintendent of Everglades National Park and Chairperson of the South Florida Ecosystem Restoration Working Group. DEFENDANTS __________________________________________/ PLATNTIFF'S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiff, Miccosukee Tribe of Indians of Florida ("the Tribe"/'Tribal government"), files this suit against defendants seeking declaratory and injunctive relief and alleges as follows: 2 I. INTRODUCTION 1. By this complaint, the Tribal government seeks to permanently enjoin defendants (i) from future violations of the Federal Advisory Committee Act ("FACA"), 5 U.S.C.App.2 §l et seq. as it applies to the South Florida Ecosystem Restoration Task Force ("Task Force"), South Florida Ecosystem Restoration Working Group ("Working Group"), and the Working Group's Science Sub-Group, Infrastructure Sub-Group and Management Sub-Group ("Sub- Groups"); (ii) from publishing, employing, and relying upon the Ecosystem Restoration Working Group's 1994 Annual Report, which is attached as Exhibit A; and (iii) from employing, and relying upon the Science Sub-Group Ecosystem Restoration Scientific Information Needs, a summary of which is attached as Exhibit B. PLAINTIFF 2. The Tribe is a federally-recognized Indian Tribe, whose members reside and work within the Florida Everglades, whose land interests lie within the Florida Everglades, and whose way of life is dependent upon the natural Everglades. The term "Everglades" as used herein refers to the areas presently identified as the Florida Water Conservation Areas and Everglades National Park (located within the Southern District of Florida), although the Everglades ecosystem historically included a much larger area. 3. The entire way of life of the Tribe and its members, including their cultural, economic, and historical identity, is based upon the Everglades ecosystem and upon the preservation of the Everglades in its natural state. 4. The Tribe and its members rely upon the Everglades in its natural state to support both subsistence and commercial activities. Subsistence activities include gathering of materials, 2 hunting, and fishing within the Everglades. The Tribe's commercial activities include frogging, conducting airboat and other guided tours, and providing recreational and tourism facilities within the Everglades. 5. The Tribe's land interests and its natural resources (including its land, the flora and fauna living thereon, and the water flowing thereupon) lie within the Everglades. These interests include: (i) the Tribe's federal Indian Reservation; (ii) the Tribe's perpetual lease in Water Conservation Area 3-A (guaranteeing access, occupancy, and use in perpetuity under the terms of the Miccosukee Land Claims Settlement); and (iii) the Tribe's permit for use and occupancy of an area alone the northern boundary of Everglades National Park. In their natural states and conditions, these areas sustain a unique balance of flora and fauna, dependent upon the natural flow of unpolluted water, which creates and supports the Miccosukee way of life. 6. The alteration of the natural state of the Everglades and its permanent destruction as a unique natural ecosystem, including imbalances in natural aquatic flora and fauna, seriously threatens the Tribe's entire way of life, its traditional bases of subsistence, its commercial activities, and its natural resources (including its land, the flora and fauna living thereon, and the water flowing thereupon). 7. Any United States policy, agreement, practice, or action (whether explicit or tacit), including any recommendation by any advisory committee, which accepts, permits, overlooks, or encourages in any way, whether directly or indirectly, the discharge of polluted water which creates or threatens to create imbalances of natural flora or fauna or otherwise upset, alter or destroy the natural ecosystem of the Everglades, or which fails to enforce United States laws protecting the Everglades, or which discourages enforcement of Florida state laws protecting the 3 Everglades, directly and substantially injures, harms, and damages each and every Miccosukee interest identified previously herein; to wit, the Tribe's entire way of life (and that of its members), the Tribe's cultural, commercial, and historical identity (and that of its members), the Tribe's subsistence and commercial activities (and those of its members), and the Tribe's land and natural resource interests. DEFENDANTS 8. The United States of America ("the federal Government") is the government of the United States, which may be named as a defendant and against which equitable relief may be entered under 5 U.S.C.App.2 §l et seq. The United States is subject to and governed by the Federal Advisory Committee Act ("FACA"), 5 U.S.C.App.2 §l et seq. 9. The United States Department of the Interior ("Department") is an agency of the federal government, subject to and governed by the Federal Advisory Committee Act ("FACA"), 5 U. S. C. App. 2 § I et seq. 10. Bruce Babbitt is the Secretary of the Interior, United States Department of the Interior ("Secretary"). In this capacity, defendant Babbitt is subject to and governed by the Federal Advisory Committee Act("FACA'),5 U.S.C. App.2 § 1 et seq. On behalf of the federal government and the Department, defendant Babbitt has been involved in the creation and coordination of meetings of the South Florida Ecosystem Restoration Task Force ("Task Force") and South Florida Ecosystem Restoration Working Group ('Working Group") and in carrying out their activities. 11. George Frampton is the Assistant Secretary of the Interior for Fish, Wildlife, and Parks, United States Department of the Interior ("Assistant Secretary-FWP"). In this capacity, 4 defendant Frampton is subject to and governed by the Federal Advisory Committee Act ("FACA"), 5 U.S.C.App.2 § 1 et seq. On behalf of the federal government and the Department, defendant Frampton has been involved in the creation and coordination of meetings of the Task Force, which lie chairs, as well as the Working Group and is integrally involved in carrying out their activities. 12. Richard G. Ring is the Superintendent of Everglades National Park and is the Chairperson of the South Florida Ecosystem Restoration Working Group ("Superintendent/Chairperson"). In this capacity, defendant Ring is subject to and governed by the Federal Advisory Committee Act ("FACA"), 5 U.S.C.App.2 §l et seq. On behalf of the federal government and the Department, defendant Rin- has been involved in the creation and coordination of meetings of the Task Force and Working Group and in carrying out their activities. JURISDICTION AND VENUE 13. This Court has jurisdiction pursuant to 28 U.S.C. §§1331, 1361, and 1362 and 5 U.S.C.App.2 §l et seq. The Court may issue declaratory judgments, mandamus, and injunctive relief pursuant to these jurisdictional statutes and 28 U.S.C. §§2201 and 2202 and 5 U.S.C.App.2 §l et seq as well as Fed.R.Civ.P. 65(a). 14. Venue in this district is proper under 28 U.S.C. §1391(b) as this claim arose in the Southern District of Florida. II. STATEMENT OF FACTS REQUIREMENTS OF THE FEDERAL ADVISORY COMMITTEE ACT 15. This case arises out of the activities of the above-noted Task Force and Working 5 Group, including, the Working Group's Science Sub-Group, Infrastructure Sub-Group and Management Sub-Group ("Sub-Groups"), all of which exist and operate in violation of the Federal Advisory Committee Act ('FACA"), 5 U.S.C.App.2 §l et seq. 16. The Federal Advisory Committee Act ("FACA"), 5 U.S.C.App.2 §l et seq., requires, among other things, that advisory committees (i) be fairly balanced in terms of the points of views represented; (ii) file a detailed charter; (iii) give advance notice of any meetings in the Federal Register; (iv) keep detailed minutes of any meetings and make records available to the public; (v) hold meetings in public; and (vi) allow interested persons to attend, appear before, or file statements with them. 5 U.S.C.App.2 §§5(b)(2) and 10. 17. FACA defines an "advisory committee' very broadly and encompasses "any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof ... which is ... established or utilized by the President ... in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government. 5 U.S.C.App.2 §3(2). However, FACA's definition of "advisory committee" excludes "any committee which is composed wholly of full-time officers or employees of the Federal Government." 5 U.S.C.App-2 §3(2)(C)(iii). DEFENDANTS' TASK FORCE, WORKING GROUP AND SUBGROUPS ARE ADVISORY COMMITTEES AND MUST COMPLY WITH FACA REQUTREMENTS 17. The Task Force, Working Group, and Sub-Groups are de-facto advisory committees governed by FACA's statutory requirements. 19. Although membership on the Task Force, Working Group and Sub-Groups is nominally limited to federal employees, these groups regularly meet with non-federal participants and consultants, thereby effectively rendering the non-federal personnel de-facto members of 6 those committees and causing the Task Force, Working Group, and Sub-Groups to come within the purview of FACA. 20. Several members of the Task Force, Working Group and Sub-Groups regularly consult with and receive advice from non-federal employees and committees and rely upon information received from the non-federal employees and committees to render opinions and advice in their capacity as members of the Task Force, Working Group and Sub-Groups. 21. Five members of the Task Force, Working Group and Sub-Groups are also members of the Governor's Commission for a Sustainable South Florida ("Governor's Commission"), an organization which was created for, among other purposes, "coordinating information on the status of the numerous efforts underway to study, restore, manage, protect and preserve the Everglades Ecosystem." 22. Defendants' Science Sub-Group regularly meets with and solicits advice from non- federal participants but fails to abide by FACA requirements. DEFENDANTS HAVE REPEATEDLY VIOLATED THE LETTER AND SPIRIT OF THE FEDERAL ADVISORY COMMITTEE ACT 23. In order to obtain information and advice from non-federal personnel, defendants have scheduled meetings of the Task Force, Working Group and Sub-Groups to coincide with dates and locations of meetings of the Governor's Commission. Defendants scheduled the next such meetings of the Task Force, Working Group, and Sub-Groups to coincide with the November 30 and December 1 meetings of the Governor's Commission at the Bonaventure Resort and Spa in Fort Lauderdale, Florida. 24. Defendants have advised non-federal personnel and groups that FACA forbids them from having, non-federal members on tile Task Force, Working Group or Sub-Groups. 7 25. Defendants have suggested to non-federal personnel and groups that they could create committees and/or working groups and could invite federal employees to join and participate on those committees, thereby allowing defendants to receive advice from non-federal employees while avoiding FACA requirements. 26. Defendant Assistant Secretary-FWP Frampton has used the Governor's Commission Governmental Science Research Priority Committee as an example of a group which promotes a partnership between federal and non-federal employees while avoiding FACA requirements. 27. Defendants utilize their participation in meetings with non-federal groups to circumvent the requirements of the Federal Advisory Committee Act. 28. From September 23, 1993 to the present, the United States of America, the U.S. Department of the Interior, Secretary Bruce Babbitt, Assistant Secretary George Frampton, Superintendent/Chairperson Richard G. Ring, and others unknown to the Plaintiff, have violated FACA insofar as the Task Force, Working Group, and the Sub-Groups have failed to and continue to fail to (i) be fairly balanced in terms of the points of views represented; (ii) file a detailed charter; (iii) give advance notice of any meetings in the Federal Register; (iv) keep detailed minutes of any meetings and make records available to the public; (v) hold meetings in public; and (vi) allow interested persons to attend, appear before, or file statements with them. 5 U.S.C.App.2 §§5(b)(2) and 10. 29. On or about August 19, 1994, defendants published a draft 1994 annual report on South Florida ecosystem restoration, which is attached as Exhibit A. Through the publication and dissemination of said report, defendants have sought and continue to seek advice from non- federal employees in anticipation of a finalized report to the Task Force. The involvement of 8 federal participants in the work of the Workgroup Group and Task Force effectively renders those groups de-facto advisory committees governed by FACA requirements. 30. On September 20, 1994, the defendants' Science Sub-Group met privately with representatives from tile South Florida Water Management District ("District"), Florida Department of Environmental Protection ("DEP") as well as the Seminole and Miccosukee Tribes to discuss the Task Force's and Working Group's research priorities for South Florida ecosystem restoration. On several occasions, the federal and state participants stated that the purpose of the meeting was to advise defendant Assistant Secretary-FWP Frampton on Everglades' research priorities. During the meeting, the federal and state parties discussed the amount of federal funding available in fiscal years 1995-97 for Everglades' research and their recommended research priorities. This meeting was conducted in West Palm Beach at the South Florida Water Management District and was not publicly noticed. 31. On September 21, 1994, the defendants' Science Sub-Group met privately with representatives from the South Florida Water Management District ("District') and Florida Department of Environmental Protection ("DEP") to discuss the Task Force's and Working Group's research priorities for South Florida ecosystem restoration. The purpose of the meeting, was to advise defendant Assistant Secretary-FWP Frampton on Everglades' research priorities. During the meeting, the federal and state parties discussed the amount of federal funding available in fiscal years 1995-97 for Everglades' research and their recommended research priorities. This meeting was conducted in West Palm Beach at the District's Governing Board Chambers and was not publicly noticed. The Tribe learned about this meeting on September 20 at 5:30 p.m. 9 31. On September 27, 1994, a private geospatial/data sharing meeting ("GIS meeting") was held at the District between tile Science Sub-Group and various state and local agencies. This meeting was not publicly noticed and the Tribe did not even know about the meeting until a week after it had taken place. 33. On September 27, 1994, the Science Sub-Group published a report on Ecosystem Restoration Scientific Information Needs, a summary of which is attached as Exhibit B. As noted above, the Science Sub-Group met privately with and solicited advice from non-federal personnel and groups (e.c,. DEP, District, & Governor's scientific committee) in its preparation of this report. 34. On September 27, 1994, the Working Group met privately in a conference room at the Key Largo Sheraton Hotel to discuss the amount and allocation of federal funding for Everglades' research. This meeting was not publicly noticed but was videotaped and audiotaped. A Tribal representative learned about this meeting a few days before and attempted to attend. The Tribal government's representative was asked to leave the meeting by Superintendent/Chairperson Ring. See Affidavit of Truman Eugene Duncan, which is attached as Exhibit C. It is significant to note that the Bureau of Indian Affairs ('BIA") representative on the Working Group, who is supposedly entrusted with representing the Tribe's interests during meetings of Working, Group, was not present during the September 27 meeting. The following day, the Tribal government attempted to obtain a copy of the taped meeting. Although the Tribe's representative confirmed that the meeting had, in fact. been videotaped and audiotaped, he was told by Superintendent/Chairperson Ring that no tapes exist. 10 35. On September 28, 1994, the Working Group held a public meeting at the Key Largo Sheranton Hotel. Tile meeting was attended by all Working Group members except the BIA representative, who was absent. Dunrng the course of the meeting, Superintendent/Chairperson Ring stated that the Working Group will be making funding recommendations for President Clinton's fiscal year 1996 budget as well as research prioritization. Representatives of the District and DEP acknowledged engaging in cooperative efforts with the Sub-Groups, Working Group and Task Force. This public meeting, was videotaped and audiotaped by Everglades National Park personnel, who now refuse to provide the Tribe with a copy of the video and audiotape. 36. On September 28, 1994, the Task Force held a public meeting, at the Key Largo Sheraton Hotel. During the course of the meeting, the Assistant Secretary-FWP stated that, through the work of the Task Force and Working Group, there presently exists a "partnership" with the DEP and the District. The Assistant Secretary-FWP also acknowledged that the federal groups absolutely need the advice and participation of the District and DEP; he termed the events of September 28-30 in Key Largo as 'three simultaneous, overlapping, and joint meetings." The Chairman of the Science Sub-Group reported to the Task- Force that the Sub- Group had been setting research priofities together with the District and DEP. During the meeting, a member of the Task Force stated that there was a "FACA problem" and that the way around FACA requirements was for the District or DEP to set a research meeting and invite federal representatives rather than vice-versa. Counsel for the Tribe addressed the Task Force during the public comment period and informed the Task force members that FACA was not a problem" and did not at all prevent public meetings or non-federal participation on the Task 11 ee or Working Group. The Tribe respectfully cited to relevant portions of FACA and told the Task Force and Working Group that FACA encouraged and required openess. 37. Between public meeting of the Task Force and Working Group on September 28, 1994, the Task Force and Working Group held a closed-session meeting at the Key Largo Sheraton Hotel which was not publicly noticed. The Tribe did not know about this meeting until after it had taken place. Prior to the closed-session meeting, counsel for the Tribe had informed Working Group representatives as well as the Assistant United States Attorney representative to the Working Group, Peter Outerbfidge, that FACA did not allow the Working, Group to operate at times and at its own choosing as an advisory committee Governed by FACA while operating at other times as a wholly-federal group exempted under FACA. The Tribe stated that the government's light switch approach, whereby FACA's statutory requirements could be turned on and off at the government's whim, was impermissible. 38. On September 29, 1994 at the Key Largo Sheraton Hotel, the Task Force and Working Group held a joint publicly-noticed meeting with the Governor's Commission and with the District's Governing Board. The following members of the Task Force and/or Working Group attended this meeting as members of the Governor's Commission: (1) defendant Assistant Secretary-FWP Frampton, (2) defendant Superintendent Chairperson Ring, (3) U.S. Army Corps of Engineers District Engineer, Colonel Terry L. Rice, (4) EPA Regional Administrator John Hankinson, Jr., (5) Florida Keys National Marine Sanctuary Superintendent Billy Causey, and (6) Task Force Executive Director, Terrence Salt. Also present and sitting at the Commission tables were Deputy Assistant Attorney General Peter Coppelman and Science Sub-Group Chairperson Jim Weaver. The Tribe and its interests were not represented at this meeting since 12 was no Tribal representation on any of the federal, state or local groups nor was there a A representative on any of the committees. 39. On or about October 2, 1994, based on their assessment of scientific informational needs for Everglades restoration, defendants sought and obtained significant federal monies for the restoration of their federal Park and Refuge as well as Florida Bay, while disregarding the necessary restoration of tribal lands in the Everglades. As announced by defendant Babbitt, the 1994 and 1995 federal Everglades funding package was as follows: Federal Agency 1994 1995 National Park Service $20,754,000 $32,784,000 Fish and Wildlife Service $ 5,112,000 $ 6,646,000 National Biological Survey $ 600,000 $ 1,100,000 U.S. Geological Survey $ 2,000,000 $ 5,800,000 Bureau of Indian Affairs $ 0 $ 400,000 Of the $75 million funded in fiscal years 1994 and 1995, the Bureau of Indian Affairs, which typically divides funding equally among the two Indian tribes in Florida (Miccosukees and Seminoles), will receive less than one (1) percent of the funds for Everglades research and restoration. 40. On October 11, 1994, the defendants' Science Sub-Group met privately with representatives from the South Florida Water Management District ("District"), Florida Department of Environmental Protection ("DEP") as well as the Seminole and Miccosukee Tribes to discuss the Task Force's and Working Group's research priorities for South Florida ecosystem restoration. This meeting was conducted in Jacksonville, Florida at the offices of the Army Corps of Engineers and was not publicly noticed. 13 41. Defendants' actions, as alleged above, violate the Federal Advisory Committee Act ("FACA"), 5 U.S.C.App.2 §l et seq. 42. Unless the declaratory and injunctive relief requested herein is granted, the Tribal government will suffer irreparable injury in that its rights to know about, attend and participate in federal advisory committees dealing with the restoration of plaintiff's homelands in the Everglades will be abridged and denied. Plaintiff has no adequate remedy at law. RELIEF REQUESTED WHEREFORE, the Tribal Government prays that this Court: A. Issue a declaratory judament, adjudg'nc, and declafinc, defendants actions with respect to the Task Force, Working Group and Sub-Group to be in violation of the Federal Advisory Committee Act and void for failure to comply with the Act's requirements; B. Issue a temporary and permanent injunction enjoining and restraining defendants and their agents from publishing, employing, and relying upon the Ecosystem Restoration Working Group's 1994 Annual Report; and C. Issue a temporary and permanent injunction enjoining and restraining defendants and their agents from employing, and relying upon the Science Sub-Group's report on Ecosystem Restoration Scientific Information Needs; and 14 Grant plaintiff its attorneys' fees and costs; andsuch other relief as may be appropriate and just. November 2, 1994 Respectfully submitted, LEHTINEN, O'DONNELL, CORTIRAS, VARGAS & REINER, P.A. 7700 N. Kendall Drive, Suite 303 Miami, Florida 33156 Phone: (305) 279-1166 Fax: (305) 279-1365 By: DEXTER LETHINEN, ESQ. Florida Bar #265551 By: ANGEL A. CORTINAS, ESQ. Florida Bar #797529 Attorneys for Plaintiff Miccosukee Tribe of Indians of Florida 15