Miccosukee Tribe of Indians v. South Florida Water

• Decision Date: 24 February 2009
• Docket Number: No. 07-12012.,07-12012.
• Parties: MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Friends of the Everglades, Plaintiffs-Appellants, United States Army Corps of Engineers, et al., Intervenor-Plaintiffs, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

559 F.3d 1191

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Friends of the Everglades, Plaintiffs-Appellants, United States Army Corps of Engineers, et al., Intervenor-Plaintiffs, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Defendant-Appellee.

No. 07-12012.

United States Court of Appeals, Eleventh Circuit.

February 24, 2009.

Dexter W. Lehtinen, Claudio Riedi, Lehtinen, Riedi, Brooks, Moncarz, P.A., Sonia Escobio O'Donnell, Jorden Burt, LLP, David P. Reiner, Reiner & Reiner, P.A, Miami, FL, John E. Childe, Palmyra, PA, for Plaintiffs-Appellants.

James Edward Nutt, South Florida Water Mgmt. Dist., West Palm Beach, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA and CARNES, Circuit Judges, and GOLDBERG,^* Judge.

CARNES, Circuit Judge:

This is a tale of two cases, one of which is before us in this appeal. The cases are six and eleven years old and together have generated more than twelve hundred docket entries in the district court. One case has been to the Supreme Court, where it was remanded back to us, and then we sent it along to the district court in 2004; the other one went to trial for two months in 2006. The two cases have a lot in common.

They share the same plaintiffs (the Miccosukee Tribe and the Friends of the Everglades) and the same defendant (the South Florida Water Management District), and they both present the issue of whether the Clean Water Act requires the Water District to obtain National Pollution Discharge Elimination System (NPDES) permits for its pump stations. One lawsuit, the "S-2 case," claims that permits are required for pump stations S-2, S-3, and S-4, which move polluted water from the Everglades Agricultural Area canals into Lake Okeechobee. The present lawsuit, the "S-9 case," claims that a permit is required for pump station S-9, which moves polluted water from the C-11 canals into Water Conservation Area 3A (WCA-3A).

After the S-2 case was tried to final judgment in 2006, the district court stayed its proceedings in the S-9 case pending appeal of the S-2 judgment. The appeal of the S-2 judgment is still pending in this Court. See Friends of the Everglades, Inc. v. S. Fla. Water Mgmt. Dist., 2006 WL 3635465 (S.D.Fla. Dec. 11, 2006), No. 07-13829 (appeal docketed Aug. 13, 2007).

This appeal challenges the stay order that the district court on its own motion entered in the S-9 case pending the outcome of the appeal in the other case. The first, and as it turns out, the last issue we need to address is whether we have jurisdiction to review the stay order under 28 U.S.C. § 1291. The jurisdiction question requires us to decide whether the stay order in this case put the plaintiffs "effectively out of court" and whether the collateral order doctrine applies here.

I.

A.

This case was filed in the district court in January 1998. The Friends of the Everglades and the Miccosukee Tribe sued the Water District,¹ contending that its S-9 pump station required an NPDES permit. In 1999 the district court granted summary judgment to the plaintiffs because the court found that the S-9 pump qualified as a point source and moved polluted water from one distinct water body into another. Miccosukee Tribe of Indians v. S. Fla. Water Mgmt. Dist., 1999 WL 33494862, at *7 (S.D.Fla. Sept. 30, 1999). We affirmed the district court's ruling on the Clean Water Act issue. Miccosukee Tribe of Indians v. S. Fla. Water Mgmt. Dist., 280 F.3d 1364, 1371 (11th Cir.2002).

The Supreme Court granted review and decided that the S-9 pump was a point source under the Clean Water Act. The Court, however, did not decide whether the C-11 canals and WCA-3A were "meaningfully distinct" water bodies. See S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 112, 124 S.Ct. 1537, 1547, 158 L.Ed.2d 264 (2004). Instead, the Court remanded the case for further factfinding on that point and for consideration of the Water District's "unitary waters" argument. Id. Under the unitary waters theory all navigable waters are considered to be one body of water, so that moving a pollutant from one navigable water to another would not amount to the "addition of a pollutant to the navigable waters" under the Clean Water Act. Id. at 107-09, 124 S.Ct. at 1543-45. If that theory holds water, the Water District would not need an NPDES permit even if the water conservation area and the canals were meaningfully distinct water bodies. Id. We remanded the case to the district court for further proceedings in November 2004. It has been pending there ever since.

B.

The parallel S-2 case, which concerns whether the Water District's other pumps (S-2, S-3, and S-4) require an NPDES permit, was filed by the same plaintiffs (and some others) against the same defendant in 2002. The proceedings in the S-2 case were stayed for nineteen months until the Supreme Court's decision in the S-9 case was issued. See Miccosukee, 541 U.S. 95, 124 S.Ct. 1537, 158 L.Ed.2d 264. Then the S-2 case was re-opened.

In January 2006 the S-2 case went to trial, which lasted nearly two months and involved more than a dozen expert witnesses and one hundred and fifty exhibits. The district court issued a 107-page ruling concluding that the Everglades Agricultural Area canals and Lake Okeechobee—the water bodies connected by the S-2, S-3, and S-4 pumps—were meaningfully distinct water bodies, and that the pumps required an NPDES permit because they moved pollutants from the canals into the Lake. Friends of the Everglades v. S. Fla. Water Mgmt. Dist., 2006 WL 3635465, at *51 (S.D.Fla. Dec. 11, 2006). In the course of reaching that conclusion, the court rejected the Water District's unitary waters theory. Id. at *43.

C.

Meanwhile, this case—back from its trip to the Supreme Court—was being handled in the same district by a different judge. In light of the S-2 decision, and without a request from the parties, she issued a stay in this case. The stay order stated that "it is extremely likely that an appeal is forthcoming in [the S-2 case], which is much further along in its proceedings than the instant [S-9] case." The order noted "extensive similarities" between the issues in the cases and found that "the interests of justice and judicial economy, including avoiding inconsistent results, the duplication of efforts, and the waste of judicial resources, will be promoted by granting a stay of this proceeding." Unless extended by written order, the stay was to expire after one year or at the conclusion of the appeals of the S-2 case, whichever came first.² This is the Miccosukee Tribe and the Friends of the Everglades' appeal from the stay order.

II.

The Friends of the Everglades and the Miccosukee Tribe contend that the district court abused its discretion in entering the stay. The Water District contends that we lack jurisdiction to decide that. Jurisdiction is a threshold issue. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist., 551 U.S. 701, 127 S.Ct. 2738, 2750, 168 L.Ed.2d 508 (2007); King v. Cessna Aircraft Co., 505 F.3d 1160, 1165 (11th Cir.2007).

The key provision, 28 U.S.C. § 1291, states: "The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States. ..." Ordinarily a stay order is not a final decision for purposes of § 1291. Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 n. 11, 103 S.Ct. 927, 934 n. 11, 74 L.Ed.2d 765 (1983) ("[T]he usual rule [is] that a stay is not ordinarily a final decision for purposes of § 1291, since most stays do not put the plaintiff `effectively out of court.'"). Using a "practical construction" of finality, however, the Supreme Court has blazed through the jurisdictional thicket several paths by which a stay order may be considered a final decision. See Swint v. Chambers County Comm'n, 514 U.S. 35, 41-42, 115 S.Ct. 1203, 1207-08, 131 L.Ed.2d 60 (1995) (referring to the collateral order doctrine "not as an exception to the `final decision' rule laid down by Congress in § 1291, but as a `practical construction' of it" (citations omitted)). Our plaintiffs, the Friends of the Everglades and the Miccosukee Tribe, contend that two of those practical construction paths can get them to the higher ground of appellate jurisdiction.

A.

The first of those paths, according to the plaintiffs, is the one staked out in Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715 n. 2, 82 S.Ct. 1294, 1296 n. 2, 8 L.Ed.2d 794 (1962), which recognized that a stay leaving a party "effectively out of court" is a final order appealable under § 1291. See also Cessna Aircraft, 505 F.3d at 1165-66.

Ordinarily a party is "effectively out of court" when a federal court stays its hand pending the conclusion of related state court or state administrative proceedings. See Idlewild, 370 U.S. at 715, 82 S.Ct. at 1296 (holding that abstention under the Pullman doctrine to allow a state court to interpret and clarify state law put plaintiff effectively out of court); Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (holding that a remand order under the Burford abstention doctrine to allow a state administrative agency to decide the issue put plaintiff effectively out of court); Moses H. Cone, 460 U.S. at 10-13, 103 S.Ct. at 934-35 (holding that a stay granted under the Colorado River abstention doctrine to allow a state court to address the central issue of the lawsuit put plaintiff effectively out of court).

The Idlewild, Moses H. Cone, and Quackenbush decisions establish the foundation of the "effectively out of court" finality rule. See Cessna Aircraft, 505 F.3d at 1166-68. Concerns about protecting federal court decisional authority underlie all three of those decisions. Moses H. Cone, 460 U.S. at 10 n. 11, 103 S.Ct. at 934 ("Idlewild's reasoning is limited to cases where ... the object of the stay is to require all or an essential part...