UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MICCOSUKEE TRIBE OF INDIANS
OF FLORIDA, a federally-recognized
Indian Tribe,
PLAINTIFF
vs. Case No.94-0662
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
BONNIE COHEN, in her official
capacity as Assistant Secretary
of the Interior,
DEFENDANTS
_______________________________________/
CIVIL COMPLAINT
Exhibit 1 - United States and Agricultural Parties Agreement
1/13/94
Plaintiff Miccosukee Tribe of Indians of Florida files herein
its Complaint for declaratory and injunctive relief against the
United States, the U.S. Department of the Interior, and certain of
its officials in connection with their: (i) failure to follow
provisions of the National Environmental Policy Act and the
Administrative Procedure Act regarding the preparation of an
Environmental Impact Statement in connection with major federal
action significantly affecting the quality of the human
environment; (ii) failure to follow procedures of the
Administrative Procedure Act in connection with the formulation and
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execution of agency policy and agency action; and (iii) exceeding
all statutory jurisdiction, authority, and right in connection with
agency policy formulation and agency action. The major federal
action, agency policy, and agency action is specifically the
unlawful development and execution of the agreement between Flo-Sun
Land Corporation and the U.S. Department of the Interior in January
1994. Plaintiff Miccosukee Tribe alleges as follows:
PLAINTIFF
1. The Miccosukee Tribe of Indians of Florida ("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.
2. The entire way of life of the Tribe and its members,
including their cultural, economic, and historical identity, is
based upon the Everglades and upon the preservation of the
Everglades in its natural state.
3. 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,
hunting, and fishing within the Everglades. Commercial activities
include frogging, airboat and other guided tours, and recreational
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and tourism facilities within the Everglades.
4. 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 along 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.
5. 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).
6. Any United States agency policy, agreement, practice, or
action (whether explicit or tacit) 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
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Everglades, or which fails to enforce United States laws protecting
the Everglades, or which discourages enforcement of Florida state
laws protecting the 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.
7. The United States is the government of the United States,
which may be named as a defendant and against which equitable
relief may be entered pursuant to 5 USC 702. The United States is
subject to and governed by the National Environmental Policy Act
(42 USC 4331 et. seq. the Administrative Procedure Act (5 USC 551
et. seq.) and other federal laws limiting its authority. The
United States developed and executed an agreement between Flo-Sun,
Flo-Sun Land Corp. ("Flo-Sun") (a sugar growing and processing
company) and the United States (see exhibit 1, the "agreement") and
is presently acting-in accordance with and is carrying out the
8. The United States Department of the Interior
("Department") is an agency of the United States Government,
subject to and governed by the National Environmental Policy Act
(42 USC 4331 et. seq. ) , the Administrative Procedure Act (5 USC 551
et. seq. ), and federal laws creating and controlling the Department
of the Interior. On behalf of the United States, the Department
developed and executed the agreement between Flo-Sun and the United
States (see exhibit 1, the "agreement") and is presently acting in
accordance with and is carrying out the terms of the agreement.
9. Mr. Bruce Babbitt is the Secretary of the Interior, United
States Department of the Interior ("Secretary"). In this capacity,
Mr. Babbitt is subject to and governed by the National
Environmental Policy Act (42 USC 4331 et. seq. ), the Administrative
Procedure Act (5 USC 551 et. seq.), and federal laws creating and
controlling the Department of the Interior. On behalf of the
United States, Mr. Babbitt developed and executed the agreement
between Flo-Sun and the United States and is presently acting in
accordance with and is carrying out the terms of the agreement.
10. Mr. 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, Mr.
Frampton is subject to and governed by the National Environmental
Policy Act (42 USC 4331 et. seq. ), the Administrative Procedure Act
(5 USC 551 et. seq.), and federal laws creating and controlling the
Department of the Interior. Mr. Frampton assisted Mr. Babbitt
develop and execute the agreement between Flo-Sun and the United
States and is presently acting in accordance with and is carrying
out the terms of the agreement.
11. Ms. Bonnie Cohen is Assistant Secretary of the Interior
for Policy, Management, and Budget, United States Department of the
Interior ("Special Assistant-PMB") . In this capacity, Ms. Cohen is
subject to and governed by the National Environmental Policy Act
(42 USC 4331 et. seq. ) , the Administrative Procedure Act (5 USC 551
et. seq. ), and federal laws creating and controlling the Department
of the Interior. Ms. Cohen assisted Mr. Babbitt develop and
execute the agreement between Flo-Sun and the United States and is
presently acting in accordance with and is carrying out the terms
12. This action arises under the National Environmental
Policy Act ( "NEPA" 42 USC 4331 et. seq. Council on Environmental
Quality regulations ("CEQ"), 40 CFR 1500 et. seq., the
Administrative Procedure Act (APA) , 5 USC 551 et. seq. , and the
absence of authority in federal laws creating and controlling the
Department of the Interior. The Court has jurisdiction pursuant to
28 USC 1331, 1361, and 1362 and 5 USC 702. The Court may issue
declaratory judgments, mandamus, and injunctive relief pursuant to
these jurisdictional statutes and 28 USC 2201 and 2202 and 5 USC
13. During January 1994 and at other times prior thereto
unknown to the Plaintiff, the United States, the U.S. Department of
the Interior, Secretary Bruce Babbitt, Assistant Secretary George
Frampton, Assistant Secretary Bonnie Cohen, and others unknown to
the Plaintiff, met secretly (without notice to the Miccosukee Tribe
and to the public) with representatives of Flo-Sun Land Corp. (a
sugar grower and processing company). Defendants and Flo-Sun
representatives met for the purpose of developing agency policy,
agency action, and an agency agreement between the United States
and Flo-Sun regarding pollution of the Everglades, including the
non-enforcement of laws which prohibit pollution by Flo-Sun and
others and which otherwise protect the Florida Everglades.
14. Without notice to the Tribe or the public and without an
opportunity to be heard, the United States, the Department, the
Secretary, the Assistant Secretary-FWP, the Special Assistant-PMB,
and others developed and entered into a secret agreement with Flo-
Sun (attached as exhibit 1) ("agreement") on January 13, 1994.
15. The agreement commits and binds the United States to
fail to enforce United States laws protecting the Everglades for
many years, to not seek enforcement of Florida state laws
protecting the Everglades for many years, and to accept, permit,
overlook, and encourage pollution of the Everglades. Furthermore,
the agreement otherwise and in additional ways establishes binding
agency policy regarding the Everglades.
16. The agreement serves special corporate interests to the
exclusion of the public interest. The agreement is little more
than a corporate welfare program, dissipating and wasting the
natural resources of the United States and the Tribe in the
Everglades. The agreement permits, encourages, and monetarily
subsidizes corporate pollution and corporate destruction of the
natural Everglades ecosystem.
COUNT I
ENVIRONMENTAL IMPACT STATEMENT UNDER N.E.P.A.
17. Plaintiff incorporates allegations contained in
paragraphs 1 through 16, inclusive.
18. Defendants did not at any time in connection with the
proposed agency action prepare: (i) a statement of the
environmental impact of the proposed action; (ii) a statement of
the adverse environmental effects which could not be avoided;
(iii) a statement of the alternatives to the proposed action;
(iv) a statement of the relationship of the local short-term uses
of man's environment and the maintenance and enhancement of long-
term productivity; or (v) a statement of any irreversible and
irretrievable commitment of resources involved in the action.
Each of these statements are required by the National Environmental
Policy Act (NEPA), 42 USC 4332(C), and the regulations of the
Council on Environmental Quality (CEQ), 40 CFR 1500 et. seq.,
especially 1502. In short, Defendants failed to prepare any of the
required elements of an Environmental Impact Statement (EIS).
19. The failure of Defendants to prepare the statements as
required by law and their failure to allow the Tribe and public to
review the statements as required by law substantially injures and
harms the Tribe and its members, their way of life, their identity,
their subsistence and commercial activities, and their land and
natural resources. These injuries and harms occur in numerous ways
and for many reasons, including (but not limited to) the following:
(i) the agency policy and agency action has a substantial negative
impact upon the continued viability and natural state of the
Everglades as a unique ecosystem; (ii) many of the adverse
environmental effects could in fact be avoided if the United States
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would not waive enforcement of applicable federal and state laws
and in other ways; (iii) the alternatives to the action were not
adequately considered (including the alternative of enforcing
federal and state laws); (iv) the relationship between short-term
use and long-term productivity was ignored (causing severe long-
term destruction in return for immediate short-term gain for a
narrow special interest group); (v) and federal resources are
irretrievably and irreversibly committed without analysis.
20. The agreement is major federal action significantly
affecting the quality of the human environment within the meaning
of the NEPA, 42 USC 433 1 et. seq., especially 4332(C).
21. The failure of the Defendants to prepare an EIS directly
violates the NEPA, 42 USC 4332(C), and CEQ regulations, 40 CFR
1502. Their failure to provide an EIS to the Tribe and the public
is in direct violation of the Administrative Procedure Act, 5 USC
552, as incorporated by NEPA, 42 USC 4332(C)(v).
22. As to Count I, Plaintiff seeks: (i) a declaratory
judgment declaring the failure to prepare an EIS to be in violation
of federal law; and (ii) an injunction against carrying out and
enforcement of the agreement.
COUNT II
PROCEDURAL REQUIREMENTS UNDER A.P.A.
23. Plaintiff incorporates allegations contained in
paragraphs 1 through 16 and 18 through 21, inclusive.
24. The agreement (exhibit 1) is agency policy, agency
action, and agency agreement without observance of procedure
required by law within the meaning of the Administrative Procedure
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Act (APA), 5 USC 551 et. seq., especially 706(D).
25. The failure of Defendants to observe the procedural
requirements of the APA substantially injures and harms the Tribe
and its members, their way of life, their identity, their
subsistence and commercial activities, and their land and natural
resources for all of the reasons previously described herein.
26. The failure of the Defendants to provide notice and an
opportunity for the Tribe and the public to be heard, and to follow
other procedural requirements of the APA, directly violates the
APA, 5 USC 551 et. seq.
27 . As to Count II, Plaintiff seeks: (i) a declaratory
judgment declaring the failure to provide notice and an opportunity
to be heard and to follow other procedural requirements of the APA
to be in violation of federal law; and (ii) an injunction against
carrying out and enforcement of the agreement.
COUNT III
ACTION EXCEEDING STATUTORY AUTHORITY
28. Plaintiff incorporates allegations contained in
paragraphs 1 through 16, 18 through 21, and 24 through 26,
inclusive.
29. The agreement (exhibit 1) is in excess of statutory
jurisdiction, authority, and limitations, and short of statutory
right within the meaning of the Administrative Procedure Act (APA),
5 USC 551 et. seq., especially 706(C).
30. The action of Defendants in exceeding statutory
jurisdiction, authority, and right substantially injures and harms
the Tribe and its members, their way of life, their identity, their
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subsistence and commercial activities, and their land and natural
resources for all of the reasons previously described herein.
31. Defendants lack any and all statutory jurisdiction,
authority, and right to bind the United States to fail to enforce
United States law, including binding the Environmental Protection
Agency, the Corps of Engineers, and other agencies outside of the
Department not to take any enforcement action against Flo-Sun for
violations of environmental laws, as well as binding the Department
of the Interior to non-enforcement policies. The Defendants
likewise lack any and all statutory Jurisdiction, authority and
right to enter into the agreement and bind the United States and
its agencies to the other terms of the agreement.
32. As to Count III, Plaintiff seeks: (i) a declaratory
judgment declaring the agreement to be in excess of statutory
jurisdiction, authority,-and right under federal law; and (ii) an
injunction against carrying out and enforcement of the agreement.
RELIEF REQUESTED AS TO ALL COUNTS
33. Accordingly, Plaintiff Miccosukee Tribe of Indians
requests (in addition to relief requested in paragraphs 22, 27, and
32) that:
(A) The Court declare that the action of the Defendants in
developing- and entering into the agreement described herein was
contrary to federal law, in that the Defendants failed to prepare
an Environmental Impact Statement, failed to follow procedural
requirements of the Administrative Procedure Act, and exceeded
agency jurisdiction, authority and right;
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(B) The Court set aside the action of the Defendants in
entering into the agreement, and declare the agreement null, void,
and unenforceable;
(C) The Court enjoin enforcement and carrying out of the Flo-
Sun-United States agreement;
(D) The Court award Plaintiff attorneys' fees and costs; and
(E) The Court award such other relief as may be appropriate
and just.
April 7, 1994 Respectfully submitted,
______________________
Dexter W. Lehtinen
Counsel for Plaintiff
Miccosukee Tribe of Indians
of Florida
Florida Bar #265551
7700 N. Kendall Drive, Suite 303
Miami, Florida 33156
(305) 279-1166
Fax (305) 279-1365
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