November 8, 2001

Miccosukee sues to limit flooding on tribal lands

By Neil Santaniello
Staff Writer

MIAMI -- The Miccosukee Tribe is again asking a federal judge to order the Army Corps of Engineers to ease flooding on tribal lands by opening water-control gates that have been shut to help an endangered sparrow.

The closing of those gates along the Tamiami Trail on Nov. 1 made tribal lands in the central Everglades too waterlogged, the tribe argues in a motion filed Wednesday in federal court.

In taking such "emergency" action, the Corps deviated from lawful water-management rules and violated the National Environmental Policy Act, the tribe argues.

The tribe first brought the issue to U.S. District Judge K. Michael Moore in an emergency hearing Saturday, when Hurricane Michelle and heavy rains appeared to be bearing down on South Florida.

Tribal representatives said the storm threatened to further inundate Water Conservation Area 3A, just north of Tamiami Trail, where water levels are already higher than the norm for water management. In shutting the gates, the Corps said it was following protocol established to protect the Cape Sable seaside sparrow, which dwells inside Everglades National Park, just south of Tamiami Trail.

The tiny bird nests near the ground and cannot reproduce when its breeding terrain is too sodden.

Under its current rules, the Corps does not intend to release water until it rises high enough to spill over the gates.

Ruling on Sunday, Moore said the tribe failed to prove the storm would cause immediate and irreparable harm to Everglades tree islands and wetland vegetation on tribal lands.

The tribe responded by filing a second motion for a preliminary injunction and another complaint in federal court, this time without the hurricane as the impetus.

The new complaint says existing high water will damage tree islands and wetland vegetation in the tribe's swath of Everglades, which also is critical habitat for another endangered bird, the snail kite.

The Natural Resources Defense Council, which is fighting for the sparrow's survival, supports keeping the gates closed. When they are opened, "water drops right down on the most imperiled subpopulation of sparrows" in the western Shark River Slough, said council senior attorney Bradford Sewell.