Miccosukee Tribe of Indians of Fla v. U.S.

• Decision Date: 02 September 2008
• Docket Number: No. 08-21703-CIV.,08-21703-CIV.
• Citation: 574 F.Supp.2d 1360
• Parties: MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Plaintiff, v. UNITED STATES of America et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

574 F.Supp.2d 1360

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Plaintiff, v. UNITED STATES of America et al., Defendants.

No. 08-21703-CIV.

United States District Court, S.D. Florida.

September 2, 2008.

Claudio Riedi, Dexter Wayne Lehtinen, Kelly Brooks Smith, Lehtinen Riedi Brooks Moncarz, P.A., Miami, FL, for Plaintiff.

Edward S. Geldermann, United States Attorney's Office, Miami, FL, Mark A Brown, United States Department of Justice, Washington, DC, for Defendants.

ORDER ON MOTION TO DISMISS

URSULA UNGARO, District Judge.

THIS CAUSE came before the Court upon Defendants' Motion to Dismiss, filed on July 25, 2008 (D.E.15). Plaintiff filed its Response in Opposition on August 11, 2008 (D.E.18). Defendants filed their Reply in further support of their Motion on August 19, 2008 (D.E.22). As such, the Motion is now ripe for adjudication.

THE COURT has considered the Motion and the pertinent portions of the record and is otherwise fully advised in the premises. By way of background, this case arises out of the Tamiami Trail Modification Project (the "TTMP"), which provides for the relocation of a one mile portion of the Tamiami Trail, also known as U.S. Highway 41, from its current location outside Everglades National Park (the "Park") into the Park. (D.E. 3 at 4; D.E. 14 at 3.) Everglades National Park, which incorporates a portion of the complex and fragile ecosystem known as the Everglades, has been Plaintiffs home for generations. (D.E. 3 at 6.) Plaintiffs tribal members have customary use and occupancy rights in certain areas of the Park, including an area that would be directly affected by the TTMP. (D.E. 3 at 6.)

In light of the negative effects that the Tamiami Trail and other man-made projects have had on the natural water flows in the Everglades, in 1989 Congress enacted the Everglades National Park Protection and Expansion Act (the "ENPPE Act"), Pub.L. No. 101-229, 103 Stat. 1946, 16 U.S.C. § 410r-8. (D.E. 14 at 3.) The ENPPE Act authorized the U.S. Department of the Interior ("USDOI") to acquire additional lands for an expansion of the Park, including the portion of the Park at issue in this action. (D.E. 14 at 3.) The ENPPE Act also directed the Secretaries of the Army and the Interior to take steps to improve water deliveries into the Park and to restore the natural hydrological conditions within the Park. 16 U.S.C. § 410r-8(a)(1). Congress further directed that such modifications be consistent with the General Design Memorandum (the "GDM") to be prepared by the Jacksonville District entitled "Modified Water Deliveries to Everglades National Park." Id. at § 410r-8(a)(2). The GDM, which was released in 1992, proposed increasing water flow into the L-29 Canal, not realizing that the existing culverts under the Tamiami Trail roadway would be inadequate to deliver the increased volume. (See LRREA at 1-7, 1-8.) Once the culvert-related problem was discovered in the late 1990s, the U.S. Army Corps of Engineers (the "Corps") had to come up with an alternative method for increasing water flow.

After much investigation, analysis, and Congressional input regarding proposed methods for modifying water deliveries to the Park (see D.E. 14 at 4-6), in June 2008, the Corps issued its Modified Water Deliveries to Everglades National Park Tamiami Trail Modifications Final Limited Reevaluation Report and Environmental Assessment (the "LRREA"). (See D.E. 3, Ex. A.) The LRREA, which includes a Finding of No Significant Impact, proposes to relocate a one mile portion of the Tamiami Trial, currently running outside the Park, and replace it with a newly constructed bridge on federally-owned land that is part of the Park. (D.E. 3 at 4.) The narrow strip of land needed for the bridge runs parallel to the existing Tamiami Trail road system, a mere 40 feet to the south. (D.E. 14 at 7.)

However, in order to complete the TTMP, the portions of the Park involved would need to be conveyed via Highway Easement Deed ("HED") from the USDOI to the Florida Department of Transportation ("FDOT") so that the Corps can construct and operate the bridge. (D.E. 3 at 2.) Because USDOI currently does not have direct statutory authority to convey the necessary strip of land at the northern edge of the Park, the USDOI's National Park Service ("NPS") in 2006 requested assistance from the Department of Transportation (the "DOT")'s Federal Highway Administration (the "FHWA"), which has authority to act as a land transfer agent, to convey highway easements to FDOT. (D.E. 14 at 7.) NPS made such HED request pursuant to 23 U.S.C. § 317, explaining that the transfer would help "to implement the beneficial aspects of relocation and modification of the road in order to promote the increased flow of water into the [Park]." (See D.E. 14-6 at 1-2.) In the same letter, NPS also raised the issue of the applicability of Section 4(f)¹ of the DOT Act to the TTMP, asking for the FHWA's opinion on NPS's preliminary determination that Section 4(f) did not apply to the TTMP because the TTMP is not a transportation project. (See D.E. 14-6 at 2.) By letter dated October 20, 2006, FHWA's Florida Division concluded that "[t]he proposed project is an environmental restoration project and the [FHWA's] involvement in the transfer of property between another Federal Agency and [FDOT] would not trigger the applicability of Section 4(f)." (D.E.14-7.) The Corps's land transfer application, submitted on behalf of FDOT, remains pending before NPS as of July 21, 2008. (D.E. 14 at 8.)

Section 4(f) provides, in pertinent part, that the Secretary of the DOT "may approve a transportation program or project ... requiring the use of publicly owned land of a public park, recreation area, or wildlife or waterfowl refuge of national, State, or local significance ... only if (1) there is no prudent or feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site from the use." 49 U.S.C. 303(c). Plaintiff contends that because the TTMP is a transportation project, Section 4(f) applies, requiring the Secretary of the DOT to comply with Section 4(f) and undertake the necessary evaluation. (Compl.¶¶ 18-19.) It is undisputed that no Section 4(f) review has been completed in regards to the TTMP. (D.E. 3 at 10; see generally D.E. 14.) As a result, Plaintiff argues, Defendant Mary Peters, as Secretary of the DOT, has violated Section 4(f). Plaintiff's Complaint contains two claims: a request for a Writ of Mandamus and a request for declaratory and injunctive relief. (See Compl. ¶¶ 26-42.)

In their Motion, Defendants argue that Plaintiff's claims should be dismissed (1) for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) and/or (2) for failure to state a claim upon which relief may be granted under Fed.R.Civ.P. 12(b)(6). As for the former argument, the Court first notes that the plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Court also notes that Defendants are making a facial attack on the Complaint, contending that taking the allegations as true, this Court lacks subject matter jurisdiction over the dispute as framed by the pleadings. A Rule 12(b)(1) motion may be in the form of a "facial attack" on the complaint, which "requires the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990) (citations omitted).²

Defendants argue that the Court lacks subject matter jurisdiction because the Complaint fails to allege facts which, taken as true, demonstrate the Plaintiff tribe's standing to maintain the action. Article III of the United States Constitution limits the jurisdiction of the federal courts to actual "cases" and "controversies." Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). A party has standing within the meaning of Article III when it establishes three elements: (1) injury, (2) causation, and (3) redressability. Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130. The injury must be an injury in fact, i.e., the invasion of a legally protected interest which is concrete and particularized, not conjectural or hypothetical. Id. at 560, 112 S.Ct. 2130. "Moreover, there must be some causal connection between the asserted injury and the challenged action, and the injury must be of the type likely to be redressed by a favorable decision." Gutherman v. 7-Eleven, Inc., 278 F.Supp.2d 1374, 1378 (S.D.Fla.2003) (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985)). In the context of cases alleging environmental violations, plaintiffs "adequately allege injury in fact when they aver they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity." Sierra Club v. Johnson, 436 F.3d 1269, 1279 (11th Cir.2006) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc., 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). Unless a party can meet these standing requirements, a federal court has no jurisdiction to hear the case. Additionally, the Supreme Court has held that "[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we `presum[e] that the general allegations embrace those specific facts that are necessary to support the claim.'" Bennett v. Spear, 520 U.S. 154, 167-68, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130).

Defendants contend that the Complaint fails to meet the first...