In Re: Usa
| Citation | 624 F.3d 1368 |
| Decision Date | 28 October 2010 |
| Docket Number | No. 10-14535,10-14535 |
| Parties | In re: USA, U.S. Environmental Protection Agency, Regional Administrator, EPA, Region IV, Administrator, EPA, Petitioners. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
OPINION TEXT STARTS HERE
Katherine W. Hazard, U.S. Dept. of Justice, Environment & Natural Resources Div., Katherine J. Barton, U.S. Dept. of Justice, Washington, DC, for USA.
Katherine W. Hazard, U.S. Dept. of Justice, Environment & Natural Resources Div., Norman L. Rave, Jr., U.S. Dept. of Justice, Washington, DC, Philip Mancusi-Ungaro, Atlanta, GA, for U.S. Environmental Protection Agency, Regional Administrator, EPA, Administrator, EPA.
Sonia Escobio O'Donnell, Kimberly Jordan Freedman, Richard A. Sharpstein, Jorden Burt, LLP, Miami, FL, for Miccosukee Tribe of Indians of Fla.
Paul J. Schwiep, Coffey Burlington, LLP, Miami, FL, John E. Childe, Tavernier, FL, Sonia Escobio O'Donnell, Kimberly Jordan Freedman, Richard A. Sharpstein, Jorden Burt, LLP, David P. Reiner, Reiner & Reiner, P.A., Miami, FL, for Friends of Everglades, Administrator of Nat. Banks, EPA.
Juan Carlos Antorcha, Rasco Klock Reininger Perez Esquenazi Vigil & Nieto, Coral Gables, FL, Paul J. Schwiep, Coffey Burlington, LLP, Miami, FL, John E. Childe, Tavernier, FL, Sonia Escobio O'Donnell, Kimberly Jordan Freedman, Richard A. Sharpstein, Jorden Burt, LLP, David P. Reiner, Reiner & Reiner, P.A., Joseph P. Klock, Jr., Epstein, Becker, Green, P.C., Miami, FL, Gabriel E. Nieto, Rasco Klock, Coral Gables, FL, for New Hope Sugar Co., Okeelanta Corp.
Juan Carlos Antorcha, Rasco Klock Reininger Perez Esquenazi Vigil & Nieto, Coral Gables, FL, Paul J. Schwiep, Coffey Burlington, LLP, Miami, FL, John E. Childe, Tavernier, FL, Sonia Escobio O'Donnell, Kimberly Jordan Freedman, Richard A. Sharpstein, Jorden Burt, LLP, David P. Reiner, Reiner & Reiner, P.A., Joseph P. Klock, Jr., Epstein, Becker, Green, P.C., Miami, FL, Gabriel E. Nieto, Rasco Klock, Coral Gables, FL, David Alexander Crowley, Kenneth Hayman, Fla. Dept. of Environmental protection, Tallahassee, Fl, Charles De Monaco, Fox Rothschild, Pittsburgh, PA, Carol A. Licko, Parker D. Thompson, Hogan Lovells, LLP, Miami, FL, Gregory M. Munson, WRS Infrastructure & Environment, Tallahassee, FL, for State of Fla, Dept. of Environmental Protection.
On Petition for Writ of Mandamus to the United States District Court for the Southern District of Florida.
Before CARNES, PRYOR and MARTIN, Circuit Judges.
The Environmental Protection Agency petitions this Court for a writ of mandamus to substitute the appearance of the Assistant Administrator for Water of the Agency, Peter Silva, for the appearance of the Administrator of the Agency, Lisa Jackson, at a hearing about compliance by the Agency with orders entered by the district court that concern pollution of the Everglades. The district court denied the motion for substitution and ordered the appearance of the Administrator who is a high-ranking official of the executive branch. See 5 U.S.C. § 5313. The Agency argues that compelling a high executive official to appear in a judicial proceeding encroaches on the separation of powers and, absent exigent circumstances, the judicial branch must respect the discretion of the executive branch to designate which high-ranking official should represent the Agency in a judicial proceeding. The record establishes no special need for compelling the appearance of the Administrator; the Assistant Administrator is an adequate substitute. Because the district court abused its discretion by compelling the appearance of the Administrator, and there is no other adequate remedy available, we GRANT the petition for a writ of mandamus and direct the district court to allow the substitution.
The Everglades is the largest subtropical wetlands in the United States. Its characteristic shallow and slow-moving waters once covered almost 11,000 square miles of southern Florida. This delicately balanced ecosystem, which developed over thousands of years, has been disturbed in recent decades by economic development, and litigation about the pollution caused by that development is now common. See, e.g., Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257 (11th Cir.2009).
The waters of the Everglades naturally contain low levels of phosphorus and other nutrients, but water runoff from adjacent farms contains high levels of phosphorus. Over time, this runoff has altered drastically the chemical composition of the surface waters of the Everglades. The presence of phosphorus in these waters has caused the growth of non-native plant species, such as cattails, and the diminishment of native species, such as saw grass.
As part of the effort to preserve the natural qualities of water in the Everglades, the Florida Legislature enacted the Everglades Forever Act in 1994, Fla. Stat. § 373.4592. The Florida Legislature amended the Act in 2003, 2003 Fla. Laws chs. 12, 394, and the Florida Department of Environmental Protection adopted a phosphorus rule in 2005, Fla. Admin. Code Ann. rr. 62-302.530, 62-302.540 (2005). Both the amendment and the rule changed the standards for acceptable levels of phosphorus in the surface waters of the Everglades.
After the amendment of the Act and the adoption of the phosphorus rule, the Miccosukee Tribe of Indians of Florida and Friends of the Everglades filed complaints against the United States, the United States Environmental Protection Agency, the Administrator of the Agency, and the Regional Administrator of the Agency. The complaints alleged violations of the Clean Water Act, the purpose of which is to “restore and maintain the chemical, physical and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). The Act requires each state to adopt water quality standards that must be submitted to the Agency for review. Id. § 1313(c). The Tribe and Friends of the Everglades challenged the determination of the Agency that the 2003 amendments to the Florida Act were not new or revised water quality standards subject to Agency review. They also challenged the approval of the phosphorus rule by the Agency.
The district court consolidated the cases in 2005. The Florida Department of Environmental Protection intervened as a party defendant because it is responsible for enforcement of the Florida Act. New Hope Sugar Company and Okeelanta Corporation, owners and farmers of about 190,000 acres of land in the Everglades, also intervened. Fed.R.Civ.P. 24(b).
In 2008, the district court granted summary judgment in favor of the Tribe and Friends of the Everglades. The district court ruled that the 2003 amendments to the Florida Act changed water quality standards and the Agency had a duty either to approve or disapprove those changes. The district court also ruled that some of the provisions of the phosphorus rule were invalid. The district court concluded that the Agency had acted arbitrarily and capriciously by “allow[ing] ‘Florida to radically modify its water quality standards, simply disavow that a change had taken place’ and then ‘rely on Florida's disavowal to avoid its mandatory review of the modified standards.’ ” As a result, the district court “exercise[d] its equitable powers to avoid environmental injury to the Everglades” and “enjoin[ed] the [Florida Department of Environmental Protection] from issuing permits [under] those sections of the phosphorus rule that [were] set aside.”
On November 4, 2009, the Tribe and Friends of the Everglades moved to have the Agency held in civil contempt for failing to issue a new determination about whether the 2003 amendments or phosphorus rule complied with the Clean Water Act. On December 3, 2009, the Agency issued a new determination that disapproved several provisions of the 2003 amendments and the phosphorus rule, and the Agency responded that the new determination rendered moot the motion of the Tribe and Friends of the Everglades. The Tribe and Friends of the Everglades replied that the new determination failed to comply with the order of the district court and the Agency should be held in contempt.
On April 14, 2010, the district court ordered the Agency to issue an “Amended Determination” that “direct[ed] the State of Florida to correct the deficiencies in the Amended [Florida Act] and the Phosphorus Rule,” and the district court sua sponte ordered the Administrator, the Regional Administrator for Region IV, and the executive director of the Florida Department of Environmental Protection to appear at a hearing on October 7, 2010, about compliance with the order. The district court also reserved the right “to fully exercise its contempt power in the event full compliance is not met.”
On July 29, 2010, the Agency moved to modify the injunction on the ground that the district court had ordered the Agency to act beyond its statutory authority, Fed.R.Civ.P. 60(b). All the defendants and all intervenors filed an appeal of the order of April 14. This Court stayed that appeal pending resolution of the motion to modify the injunction.
On September 3, 2010, the Agency filed its Amended Determination, and on September 8, 2010, the Agency moved for leave to substitute the appearance of the Assistant Administrator for Water for the appearance of the Administrator. The Administrator is a high-ranking official. She was appointed by the President and confirmed by the Senate, and she reports directly to the President. The Assistant Administrator for Water is the senior Agency official responsible for fulfilling the responsibilities of the Agency under the Clean Water Act. He was responsible for preparing the Amended Determination and the response of the Agency to the order of April 14. Like the Administrator, he was also appointed by the President and confirmed by the Senate.
The district court orally denied the motion to substitute at the end of a telephone conference. During that conference the...
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