A Fed.ly-recognized Indian Tribe v. United States Army Corp.s Of Eng'rs

• Decision Date: 15 September 2010
• Docket Number: Nos. 09-14194, 09-14539.,s. 09-14194, 09-14539.
• Citation: 619 F.3d 1289
• Parties: MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized Indian Tribe, Plaintiff-Appellant, v. UNITED STATES ARMY CORPS OF ENGINEERS, Secretary of the Army, John M. McHugh, in his official capacity, Lt. Gen. Robert L. Van Antwerp, Chief of Engineers, U.S. Army Corps of Engineers, in his official capacity, Bg. General Joseph Schroedel, Division Engineer, South Atlantic Division Corps of Engineers, in his official capacity, Paul L. Grosskruger, District Engineer, Jacksonville District, Corps of Engineers, in his official capacity, United States of America, Defendants-Appellees, South Florida Water Management District, Intervenor-Appellee. 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, John M. McHugh, in his official capacity, Chief of Engineers, U.S. Army Corps of Engineers, Lt. General Robert Van Antwerp in his official capacity, Division Engineer, South Atlantic Division Corps of Engineers, Bg. General Joseph Schroedel, in his official capacity, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

619 F.3d 1289

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

v.UNITED STATES ARMY CORPS OF ENGINEERS, Secretary of the Army, John M. McHugh, in his official capacity, Lt. Gen. Robert L. Van Antwerp, Chief of Engineers, U.S. Army Corps of Engineers, in his official capacity, Bg. General Joseph Schroedel, Division Engineer, South Atlantic Division Corps of Engineers, in his official capacity, Paul L. Grosskruger, District Engineer, Jacksonville District, Corps of Engineers, in his official capacity, United States of America, Defendants-Appellees,South Florida Water Management District, Intervenor-Appellee.

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, John M. McHugh, in his official capacity, Chief of Engineers, U.S. Army Corps of Engineers, Lt. General Robert Van Antwerp in his official capacity, Division Engineer, South Atlantic Division Corps of Engineers, Bg. General Joseph Schroedel, in his official capacity, et al., Defendants-Appellees.

Nos. 09-14194, 09-14539.

United States Court of Appeals,Eleventh Circuit.

Sept. 15, 2010.

COPYRIGHT MATERIAL OMITTED.

Kelly Brooks Smith, Dexter W. Lehtinen, Felippe Moncarz, Lehtinen, Riedi, Brooks, Moncarz, P.A.,Miami, FL, Sonia Escobio O'Donnell, Jorden Burt, LLP, Miami, FL, for Plaintiff-Appellant.

Mark R. Haag, U.S. Dept. of Justice, ENRD, Washington, DC, for Defendants-Appellees.

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

Before BLACK, WILSON and MARTIN, Circuit Judges.

WILSON, Circuit Judge:

The Miccosukee Tribe of Indians of Florida (the Tribe) filed two lawsuits challenging the federal government's plans to replace a mile of the ground-level Tamiami Trail (U.S. Highway 41) with a bridge, to increase the flow of water into Everglades National Park. The district courts dismissed the Tribe's claims for lack of subject matter jurisdiction, and we have consolidated the Tribe's appeals of those decisions. The district courts concluded that language Congress inserted in a spending bill partially repealed the environmental laws that the Tribe was invoking. The Tribe challenges that interpretation, and asserts the rulings violate the Constitution on several counts. For the following reasons, we conclude that the act of Congress deprived the federal courts of subject matter jurisdiction over the Tribe's claims. Therefore, we affirm the judgments of the district courts.

I. Background

a. Historical Backdrop of the Litigation

¹

The Miccosukee Indians have long resided in the Everglades. ² The Miccosukees' historical association with their neighbors the Seminole Indians was tempered by the fact that the Miccosukees spoke their own language, Mikasuki. The federal government formally recognized the Miccosukee Tribe of Indians of Florida in 1962. Tribe members live and work on several reservations within the Everglades.

Geologists estimate that the Everglades formed about 5,000 years ago. ³ The Indians called the place Pa-hay-okee, meaning “Grassy Water.” A British cartographer labeled it the River Glades, and author Marjory Stoneman Douglas suggested that later mapmakers substituted the word “Ever” for River. ⁴ The name Everglades appeared on American military maps during the Seminole Wars.

The Everglades covers much of the half of Florida south of Orlando. Historically, water moved southward from the Kissimmee River to Lake Okeechobee, then south and southwest into Florida Bay. ⁵ From Lake Okeechobee to the Gulf of Mexico, the land declines almost imperceptibly-on average only three inches per mile-so that the water forms a shallow, thirty-mile wide river, moving slowly southward. ⁶

In bad weather the water did not always move so gently. A hurricane in September 1928 caused a breach of the Okeechobee levee, drowning upwards of 2,000 farm workers. ⁷ The tragedy increased public awareness of the dangers of uncontrolled Everglades waters. At the same time, the population of Florida was continuing to grow, and with it the demand for land, food, and water. In 1948, Congress passed the Flood Control Act, Pub.L. No. 80-858, 62 Stat. 1171, 1176, authorizing the Central and Southern Florida plan to control flooding in the Everglades, and promote agriculture and water supply. The effect of the series of levees and canals that followed was to shunt more water out through the east and west coasts of Florida, and drastically reduce the southward flow through the Everglades.

The Tamiami Trail (the Trail), also known as U.S. Highway 41, was the first highway to cross the Everglades. Its name derives from the cities at its ends, Tampa and Miami. Construction began during the First World War and took more than a decade to complete. When workers were not battling the swamp, they were using dynamite to break through the rock beds on the Naples side. ⁸ While the newer Interstate 75 to the north, called “Alligator Alley,” carries more vehicles across the Everglades every day, the Trail remains a vital road and hurricane evacuation route. Some of the east-west portion of the Trail runs along the northern boundary of Everglades National Park. ⁹

Although the Trail remains an impressive engineering achievement, it poses a substantial environmental challenge. It acts as a dam to restrict water from flowing south into Everglades National Park and greatly reduces the flow into the Shark River Slough, the main water corridor of the Everglades. Moreover, to preserve the roadbed from erosion, engineers found that they had to lower water levels of the surrounding swamp. The restricted water flow was subsequently blamed for vast losses of wading birds, fish, and native plants.

b. Efforts to Restore the Everglades' Historic Flows

On the strength of renewed concerns about the health of the Everglades, in 1989 Congress enacted the Everglades National Park Protection and Expansion Act, Pub.L. No. 101-229, 103 Stat.1946, 16 U.S.C. § 410r-5 et seq. (ENPPEA). The ENPPEA directed federal agencies to research ways to improve water flow in the park, and describe them in a report titled “Modified Water Deliveries to Everglades National Park.” In 2000, the President signed the Water Resources Development Act, Pub.L. No. 106-541, § 601, 114 Stat. 2572, 2680 (WRDA), outlining the thirty-year Comprehensive Everglades Restoration Plan (CERP) that updated the original Central and Southern Florida plan for the Everglades. One element of CERP called for improvement of water flow through the Trail.

In June 2008, the U.S. Army Corps of Engineers (Corps) issued its Final Limited Reevaluation Report and Environmental Assessment (LRR/EA) concerning improvements to the Trail. ¹⁰ It concluded that the most effective and economical option of all the ones studied was “Alternative 3.2.2.a”-construction of a mile-long bridge at the eastern end of the Trail. The bridge would replace the current ground-level roadbed and would greatly increase the amount of water that could flow southward into the Shark River Slough.

On June 18, 2008, the Tribe sued the Corps, claiming that the selection of Alternative 3.2.2.a violated the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (NEPA), the Federal Advisory Committee Act, 5 U.S.C. app. 2 (FACA), and WRDA. For ease, we refer to this case as the NEPA case. ¹¹ The Tribe claimed that the federal government failed to obey federal environmental laws in planning the bridge, in part by failing to prepare adequate statements of environmental impact. Moreover, the lawsuit alleged that higher water levels would flood tribal lands and tree islands. The Tribe asked for judicial review under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and requested an injunction to stop the construction.

c. Congress's First Appropriations Bill

Congress in the meantime continued to legislate on Everglades restoration. On September 30, 2008, Congress passed a continuing appropriations act, Pub.L. No. 110-329, 122 Stat. 3574. Section 153 of the act spoke to the immediate building of the bridge:

SEC. 153. Amounts provided by section 101 for implementation of the Modified Water Deliveries to Everglades National Park shall be made available to the Army Corps of Engineers, which shall immediately carry out Alternative 3.2.2.a to U.S. Highway 41 (the Tamiami Trail) as substantially described in the Limited Reevaluation Report with Integrated Environmental Assessment and addendum, approved August 2008....

122 Stat. at 3581 (emphasis added).

On October 24, 2008, the Tribe filed suit against the Corps and the U.S. Fish and Wildlife Service, alleging violations of the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. (ESA). We refer to this case as the ESA case. The lawsuit alleged that a biological opinion issued by the Fish and Wildlife Service failed to fully address the bridge's threat to the continued survival of two endangered bird species, the snail kite and the wood stork. There are two wood stork colonies close to the planned bridge route. Like the NEPA suit, the ESA suit sought a court order blocking construction of the bridge until the federal government complied with the law.

Meanwhile, the Corps moved to dismiss the NEPA suit, citing § 153 of Congress's continuing appropriations act. On October 31, 2008, the NEPA court denied the Corps's motion to dismiss the Tribe's suit for lack of subject matter jurisdiction, holding that § 153 was not specific enough to exempt the Corps from NEPA. Section 153 neither mentioned NEPA by name, nor included the key phrase “notwithstanding any other provision of law,” which the court described as “the language usually associated with an exemption or limited repeal.” D.E. 59 at 5. Shortly thereafter, on November 13, 2008, the NEPA court granted in part the Tribe's motion for a preliminary injunction to enjoin...