Fla. Wildlife Fed'n Inc. v. U.S. Army Corps of Eng'rs

• Decision Date: 19 June 2017
• Docket Number: No. 14-13392,14-13392
• Citation: 859 F.3d 1306
• Parties: FLORIDA WILDLIFE FEDERATION INC., Environmental Confederation of Southwest Florida Inc., Conservancy of Southwest Florida Inc., Plaintiffs-Appellants Cross Appellees, v. UNITED STATES ARMY CORPS OF ENGINEERS, South Florida Water Management District, Florida Department of Environmental Protection, Defendants-Appellees Cross Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

859 F.3d 1306

FLORIDA WILDLIFE FEDERATION INC., Environmental Confederation of Southwest Florida Inc., Conservancy of Southwest Florida Inc., Plaintiffs-Appellants Cross Appellees,

v.UNITED STATES ARMY CORPS OF ENGINEERS, South Florida Water Management District, Florida Department of Environmental Protection, Defendants-Appellees Cross Appellants.

No. 14-13392

United States Court of Appeals, Eleventh Circuit.

June 19, 2017

Alisa A. Coe, David G. Guest, Bradley Ian Brustman Marshall, Earthjustice, Tallahassee, FL, for Florida Wildlife Federation Inc.

Alisa A. Coe, Bradley Ian Brustman Marshall, Earthjustice, Tallahassee, FL, for Environmental Confederation of Southwest Florida Inc. and Conservancy of Southwest Florida Inc.

Michael Thomas Gray, U.S. Department of Justice c/o US Army Corps of Engineers, Office of Counsel, Jacksonville, FL, James Edward Nutt, Kirk Lee Burns, South Florida Water Management District, West Palm Beach, FL, Andrew J. Doyle, U.S. Department of Justice, Environment & Natural Res. Div., Washington, DC, for United States Army Corps of Engineers.

James Edward Nutt, Kirk Lee Burns, South Florida Water Management District, West Palm Beach, FL, Andrew J. Doyle, U.S. Department of Justice, Environment & Natural Res. Div., Washington, DC, for South Florida Water Management District and Florida Department of Environmental Protection.

Before TJOFLAT and ROSENBAUM, Circuit Judges, and RESTANI,^* Judge.

ROSENBAUM, Circuit Judge:

With the 1937 opening of Florida's only cross-state water channel, the Okeechobee Waterway (the "Waterway"), boats could reach the Gulf of Mexico from the Atlantic Ocean without going around the southern tip of Florida. Besides saving distance and time, the channel allowed smaller vessels to avoid uncertain sea conditions offshore.

Plaintiff-Appellants Florida Wildlife Federation, Inc., Environmental Confederation of Southwest Florida, Inc., and Conservancy of Southwest Florida, Inc., (collectively, "Conservationists"), complained about serious environmental problems in this channel and the surrounding areas where Lake Okeechobee's waters flow. They asserted that decisions by Defendant-Appellee U.S. Army Corps of Engineers (the "Corps") about when and how to release water from certain locks along the Waterway violate the Clean Water Act and Florida law because they negatively affect the quality of the waters the Corps regulates.

In response, the Corps invoked sovereign immunity, and the district court dismissed the Conservationists' complaint on that basis. The Conservationists now appeal.

But they aren't the only ones. The South Florida Water Management District (the "Water District"), an agency of the State of Florida, also appeals the judgment. It does so, though, on the basis that the district court first should have decided whether the Conservationists failed to join the Water District as an indispensable party under Federal Rule of Civil Procedure 19(b).

Like a boat navigating the most direct path from the Atlantic to the Gulf of Mexico, we decide this appeal in the most straightforward way available: Rule 19(b). In doing so, we decline any invitation by the parties to take a longer, unnecessary route to our decision. Because Rule 19(b) requires the dismissal of this case regardless of whether we agree with the Water District's sequencing argument on cross-appeal or the Corps's sovereign-immunity argument, we need not reach those matters. So just as a boat captain in the Waterway has little reason to prepare for rough waters at sea, we put these issues aside and affirm the district court's judgment on the grounds that the Water District was an indispensable party under Rule 19(b).¹

I. Background

To the Conservationists, this case is about the quality of water and the ecological conditions along the Waterway. To the Corps, it is about federal regulation of navigation through the Waterway. And to the Florida Department of Environmental Protection ("DEP") and the Water District, the case is about protecting any authority the state might have over the waters at the center of this controversy. So resolving this case requires us to consider complex and overlapping interests. Because understanding these interests is critical to finding the right answer here, we review relevant background information below about Florida's water geography, Florida's water-ecology issues, the roles that the federal and state entities play in regulating the waters at issue in this case, and federal and state law concerning water quality.

A. Florida's Water Geography

The Waterway is the only navigable cross-Florida water channel. Heading west from the Atlantic Ocean, the Waterway strings together the St. Lucie Inlet, the Indian River Lagoon, the St. Lucie River, the St. Lucie Canal, Lake Okeechobee, and the Caloosahatchee River to arrive at the Gulf of Mexico.

Okeechobee Waterway

This case primarily concerns the western part of the Waterway along the Caloosahatchee River, from Lake Okeechobee—"considered the heart of the water resources system in south Florida," U.S. Army Corps of Eng'rs, Jacksonville Dist., Final Supplemental Envtl. Impact Statement, Lake Okeechobee Regulation Schedule i (2007) ("2007 LORS")—heading west through the Caloosahatchee to the Gulf of Mexico.²

Besides their navigational function, the waters composing the Waterway also play many other important roles. They serve as the source of water to thousands of Floridians and are critical both to flood control and to the health of major ecosystems in Florida. The waters also host commercial fishing operations and visitors who enjoy using them for boating, canoeing, swimming, fishing, and wildlife observation.

Five navigation locks control the flow of water along the entirety of the Waterway. The Conservationists' complaint relates to the management of three of these locks. First, the Moore Haven Lock and Spillway, known as "S-77," is closest to Lake Okeechobee and controls flows between Lake Okeechobee and the Caloosahatchee River. Second, 15.5 miles to the west of S-77, on the Caloosahatchee River, lies the Ortona Lock and Spillway, known as "S-78." Third, the W.P. Franklin Lock and Dam, known as "S-79," is located 27.9 miles to the west of S-78 and is the westernmost lock on the Caloosahatchee River.³ Opening a lock can allow water flow from one section of the Waterway to another, while maintaining a lock in a closed position can prevent water flow between parts of the Waterway.

B. Florida's Ecological Water Issues

Florida suffers from a Goldilocks problem when it comes to water in the Waterway: too much or too little results in serious consequences. The waters in the Waterway are healthiest and most useful when they fall within a range that is just right. In this lawsuit, the Conservationists complain about only the problems that arise as a result of low water in the Caloosahatchee River, a condition they attribute in part to the Corps's management of S-77, S-78, and S-79 under its 2008 regulation schedule. See generally U.S. Army Corps of Eng'rs, Jacksonville Dist., Cent. & S. Fla. Project : Water Control Plan for Lake Okeechobee & Everglades Agric. Area (2008) ("2008 LORS").

Low water levels can have adverse effects on navigation, water supply, and fish and wildlife in the area. Among other negative effects, low water levels can aggravate ecological conditions in the Caloosahatchee and St. Lucie Estuaries by causing too high a level of salinity and saltwater encroachment into the freshwaters of the Waterway. But the Conservationists draw special attention to another serious problem associated with lower water levels: the emergence of algal blooms. Often characterized by the bright-green appearance of the water in which they are occurring, algal blooms represent a serious environmental problem because they consume an excessive amount of oxygen from the water when the constituent cells die. The remaining levels of oxygen may be too low to sustain aquatic life, which can die off as a result.

Algal blooms also can result in taste and odor problems with drinking water, contribute to the formation of carcinogenic substances in drinking water when it undergoes chlorination, and produce toxins that are not removed by the treatment process. Algal-bloom toxins, in turn, can cause liver and neurological disease

in animals and humans who drink or come into contact with the water. They can induce skin irritations, kill fish and other animals, and seriously impair the recreational value of the body of water. And eating fish taken from waters during algal blooms is dangerous. Algal blooms have happened in the Caloosahatchee River eight of the eleven years between 2001 and 2012. In 2011, eight weeks of algal blooms proliferated.

C. The Federal and State Entities Who Regulate Florida's Water Policy

Management of the Waterway and its constituent waters is essential to protect the health of the waters and to balance the important and sometimes-competing interests in the Waterway. As we have alluded to, both Florida and the Corps take part in that management.

1. The History of Florida's Water Management

The State of Florida and the Corps have sought to manage the waters of Lake Okeechobee since the late 1800s, building a complex system of canals, levees, and storage areas to control the lake's water levels. See Mildenberger v. United States , 643 F.3d 938, 941 (Fed. Cir. 2011) (reviewing the history of the Central & South Florida Project). Following hurricanes in 1926 and 1928 that resulted in flooding, damage, and many deaths, Congress enacted the Rivers and Harbors Act of 1930, authorizing the Chief of Engineers of the United States Army, under the supervision of the Secretary of War (now Secretary of the Army), to provide for flood control and navigation in Florida as well as elsewhere. Rivers and Harbors Act of 1930, Pub. L. No. 71-520, 46 Stat. 918 (1930).

In accordance with this Act, Congress directed the creation of a project for navigation and flood control in...