716 F.3d 535 (11th Cir. 2013), 10-14271, Miccosukee Tribe of Indians of Florida v. United States

Docket Nº:10-14271.
Citation:716 F.3d 535
Opinion Judge:TJOFLAT, Circuit Judge:
Party Name:MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized Indian Tribe, Plaintiff-Appellant, v. UNITED STATES of America, U.S. Army Corps of Engineers, Secretary of the Army, in his official capacity, Lt. General Robert Van Antwerp, Chief of Engineers, U.S. Army Corps of Engineers, in his official capacity, Bg. General Joseph Schroedel, Divisi
Attorney:Bernardo Roman, III, Tribal Atty. for the Miccosukee Tribe, Janice Burton Sharpstein, Jorden Burt, LLP, Miami, FL, for Plaintiff-Appellant. Mark R. Haag, Emily S. Bair, Mark A. Brown, John Brett Grosko, Anna K. Stimmel, U.S. Dept. of Justice, App. Section, Environment and Natural Resources Div., ...
Judge Panel:Before TJOFLAT and MARTIN, Circuit Judges, and DAWSON,[*] District Judge.
Case Date:May 15, 2013
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
FREE EXCERPT

Page 535

716 F.3d 535 (11th Cir. 2013)

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized Indian Tribe, Plaintiff-Appellant,

v.

UNITED STATES of America, U.S. Army Corps of Engineers, Secretary of the Army, in his official capacity, Lt. General Robert Van Antwerp, Chief of Engineers, U.S. Army Corps of Engineers, in his official capacity, Bg. General Joseph Schroedel, Division Engineers, in his official capacity, et al., Defendants-Appellees.

No. 10-14271.

United States Court of Appeals, Eleventh Circuit.

May 15, 2013

Page 536

Bernardo Roman, III, Tribal Atty. for the Miccosukee Tribe, Janice Burton Sharpstein, Jorden Burt, LLP, Miami, FL, for Plaintiff-Appellant.

Mark R. Haag, Emily S. Bair, Mark A. Brown, John Brett Grosko, Anna K. Stimmel, U.S. Dept. of Justice, App. Section, Environment and Natural Resources Div., Washington, DC, Terry M. Petrie, USDOJ— Environmental & Natural Resources Div., Denver, CO, for Defendants-Appellees.

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

Before TJOFLAT and MARTIN, Circuit Judges, and DAWSON,[*] District Judge.

TJOFLAT, Circuit Judge:

Since 1995, the Miccosukee Tribe of Indians of Florida (" Tribe" or " Miccosukee tribe" ) has had a running battle with the federal government over the government's management of the Central and Southern Florida Project for Flood Control (" C& SF Project" ) in the Everglades. This case is the most recent chapter.1 The gist of the

Page 537

four-count complaint the Tribe filed in this case is that the project diverts excessive flood waters over tribal lands— in part to protect other land owners whose properties are located within the project. The District Court dismissed three of the complaint's counts for failure to state a claim for relief and the fourth on summary judgment. The Tribe appeals these decisions. We affirm.

To place the Tribe's claims in full context, we describe the genesis of the C& SF Project, the nature of the Tribe's rights of occupancy in the Everglades, and the manner in which the government's management of the project affects the Tribe's rights.

I.

The unique ecology of the Everglades is at the heart of the events surrounding this case. Beginning at Lake Okeechobee and running to the southern tip of Florida at Florida Bay, the Everglades is " not quite land and not quite water, but a soggy confusion of the two." Michael Grunwald, The Swamp: The Everglades, Florida, and the Politics of Paradise 9 (2006). The natural terrain of the Everglades slopes southward in a " vast sheet of shallow water spread across a seemingly infinite prairie of serrated sawgrass." Id. Aside from an occasional island of trees, it consists entirely of water, grass, wildflowers, and lily pads. Much of the water in the Everglades derives from Lake Okeechobee. The lake does not have a traditional outlet, such as a river, and overflows frequently from summer storms. As a result, the waters flood across Florida's southern terrain in an expansive sheet to form the Everglades.

Through the mid-nineteenth century, the Everglades was virtually uninhabited and unused because of its surplus water and sodden topography. In 1848, Congress proposed to drain the overflowed lands in southern Florida to promote agricultural interests in the state. Id. at 64-67. It eventually passed the Swamp and Overflowed Lands Act of 1850, which conveyed the Everglades and surrounding overflowed areas to the State of Florida for development. 9 Stat. 519, 520 (1850). It took until the early 1900s for development in the Everglades to finally take shape. By 1926, six canals had been constructed from Lake Okeechobee, as well as a dike that ran along the southern end of the lake. Grunwald, supra, at 106. Spurred by the promise of a controlled Everglades, people began to move to South Florida coastal communities, including Miami, in large numbers. Id. at 172.

But the Everglades was not yet tamed. Extreme drought, followed by devastating floods in 1926, 1928, and 1947, revealed that the challenges of water management in the Everglades were too complex for state and local agencies to address alone. Record, no. 128-5, at 14. The system of canals, levees, locks, and dams created by the State of Florida were simply not up to the task of adequately protecting against future disaster.

The federal government intervened.2 Through the Flood Control Act of

Page 538

1948, Congress enlisted the United States Army Corps of Engineers (" Corps" ) to partner with state and local agencies in Florida to implement the C& SF Project.3 The project is an elaborate network of water control structures spanning thousands of miles, including canals, levees, pumping stations, gates, and dams. At its inception, the C& SF Project serviced two constituencies: the agricultural areas immediately south of Lake Okeechobee and the residential and privately-owned areas east of the Everglades. Later, Congress dedicated the C& SF Project to a third constituency, Everglades National Park, to preserve the Park's ecosystem and protect its endangered species. Currently, the C& SF Project encompasses two primary objectives: preserving the Everglades and providing water supply and flood protection to South Florida. Miccosukee Tribe of Indians of Fla. v. United States, 980 F.Supp. 448, 454 (S.D.Fla.1997).

The operational area of the C& SF Project is massive, comprising 16,000 square miles. The project stretches from the Kissimmee River Basin, just south of Orlando, to the southern tip of Florida, at Everglades National Park. To aid in administering this vast system, the Corps has divided the Everglades into three areas: the Everglades Agricultural Area, the Water Conservation Area, and the Everglades National Park. These areas are contiguous and follow one after another, beginning at Lake Okeechobee and proceeding southward.

The northernmost area is called the Everglades Agricultural Area. As the name suggests, it is used for farming and other agricultural purposes. With the Okeechobee Lake immediately to its north, the Everglades Agricultural Area begins along the south and southwest borders of the lake. The area is about the size of Rhode Island and is surrounded on each of its sides by a canal. It also has four canals running south and southwest through its center. Prior to the C& SF Project, the land was commercially useless. With the help of the project's canals, water gates, and pump systems, the land is kept drained and cultivable.

The second area is called the Water Conservation Area (" WCA" ), a grassy expanse to the south and east of the Everglades Agricultural Area consisting mostly of marshland. The WCA is composed of three reservoirs: WCA 1, WCA 2, and WCA 3. These reservoirs are interconnected by gate structures and channels that link to the water control systems in the Everglades Agricultural Area, such that water flows from the Everglades Agricultural Area into WCA 1, from WCA 1 into WCA 2, and from WCA 2 into WCA 3. The depth of the WCA marshland fluctuates based on whether the Corps is storing water in the WCA reservoirs or allowing water to flow south into Everglades National Park. Altogether the WCAs cover 1,350 square miles across Dade, Broward, and Palm Beach counties.

Immediately to the south of the WCA lies the third area of the C& SF Project,

Page 539

Everglades National Park. The park is home to twenty-three endangered or threatened species. According to the Everglades National Park Act of 1934, the park must be " permanently reserved as a wilderness, and no development of the project or plan for the entertainment of visitors shall be undertaken which will interfere with the preservation of the unique flora and fauna and the essential primitive natural conditions now prevailing in this area." Pub.L. No. 73-267, § 4, 48 Stat. 816, 817. Using the gates and pumps in the canals to the north, the Corps is able to maintain and regulate the ecosystem within the park by controlling how much water enters it and from what locations.

The WCA reservoirs are the lynchpin of the Corps's water management system. They function as the water depository for the entire C& SF Project. By manipulating the water levels in the reservoirs, the Corps can regulate the hydrologic conditions in all three sections of the Everglades. Operations in the WCA, therefore, are critical to providing water to Everglades National Park, irrigating agricultural areas during times of drought, absorbing water from farms and cities during storms, and recharging South Florida's aquifers. Grunwald, supra, at 222-23.

This appeal concerns the canal gates at the south end of WCA 3 and the environmental factors that have influenced their operation. WCA 3 is split into two subsections, WCA 3A and WCA 3B. They are separated by a pair of canals, L-67A and L-67C, that run south from WCA 3 into Everglades National Park. WCA 3A comprises nearly all of WCA 3, while WCA 3B consists of only a small part of the southeast corner of the reservoir. Inside the canal that forms the southern border of WCA 3A is a series of gates. From west to east, they are: S-12A, S-12B, S-12C, and S-12D (collectively, the " S-12 gates" ). The S-12 gates control the water flow from WCA 3A into the western portion of Everglades National Park. Record, no. 128-5, at 16. The Corps takes into account a variety of considerations when determining how best to manage water flow throughout the Everglades. These considerations influence decisions about the water levels in the WCA reservoirs and when the S-12 gates should be opened and closed. This suit raises questions about the propriety of the Corps's water management decisions regarding the operation of the S-12 gates and the nature and source of that authority.

...

To continue reading

FREE SIGN UP