Miccosukee Tribe of Indians v. Southern Everglades, 01-16226.

Citation304 F.3d 1076
Decision Date04 September 2002
Docket NumberNo. 01-16226.,01-16226.
PartiesMICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized Indian tribe, Plaintiff-Appellant, v. SOUTHERN EVERGLADES RESTORATION ALLIANCE, Lewis Hornung, in his official capacity as executive director of the Southern Everglades Restoration Alliance, United States of America, U.S. Department of the Interior, National Park Service, Everglades National Park, Richard G. Ring, in his official capacity as Superintendent of Everglades National Park, United States Fish & Wildlife Service, Steven Forsythe, in his official capacity as State Supervisor of Department of the Interior Fish and Wildlife Service, The United States Army Corps of Engineers, James G. May, Colonel, in his official capacity as District Engineer for the U.S. Army Corps of Engineers, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Dexter W. Lehtinen, Kelly S. Brooks, Lehtinen, Vargas & Reiner, Miami, FL, for Plaintiff-Appellant.

James Edward Nutt, South Florida Water Management Dist., West Palm Beach, FL, Ara B. Gershengorn, Mark B. Stern, Dept. of Justice, Appellate Staff, Civ. Div., Washington, DC, Anne R. Schultz, Miami, FL, for Defendants-Appellees.

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

Before CARNES and HILL, Circuit Judges, and DUPLANTIER*, District Judge.

CARNES, Circuit Judge:

The Miccosukee Tribe is a federally recognized Indian Tribe whose members reside and work within the Florida Everglades. The Southern Everglades Restoration Alliance (SERA) is a group organized and funded at least in part by certain federal agencies to assist themselves and other agencies in developing strategies for implementing restoration projects in the Everglades. The Tribe believes that the advice SERA has provided to federal agencies has caused continuing damage to tribal lands in the Everglades. As a result, the Tribe brought a lawsuit under the Federal Advisory Committee Act (FACA), 5 U.S.C.App. 2 §§ 1 et. seq., seeking a declaratory judgment that SERA was an advisory committee within the meaning and coverage of the Act, that it was therefore subject to the requirements of the Act, and that SERA and its member agencies had failed to comply with those requirements, resulting in SERA's actions being void. SERA is now defunct, but the Tribe also sought an injunction against the use of any of its advice and recommendations — what the Tribe calls SERA's "work product" — by any of the agencies named as defendants. The named defendants, in addition to SERA itself and its former executive director, Lewis Hornung, included a number of federal agencies and officials who allegedly had participated in SERA or had relied on advice given by SERA in implementing restoration projects in the Everglades.1

The district court, after finding that the Tribe had standing to bring the lawsuit, determined that although SERA did fall within the plain meaning of the statutory term "advisory committee," it was not within the intended scope of FACA. That determination led to the district court's conclusion that the Tribe had failed to state a claim upon which relief could be granted. We disagree with the district court's decision and reverse the judgment of dismissal as to virtually all of the defendants, affirming it only as to SERA itself and Hornung.


SERA ceased to exist sometime in 1999, but according to the complaint, in the 1990s SERA had been organized and funded by federal agencies to assist its members, both federal and state agencies,2 in developing strategies for implementing restoration projects in the Florida Everglades. The SERA members collaborated to provide advice and recommendations for use in implementing various federal policies and programs dealing with the Everglades, including, for example, the Modified Water Deliveries Project, which was designed to restore more natural hydropatterns in water conservation areas of the Everglades.

SERA failed to comply with some of the requirements of FACA, which governs the procedures certain committees established by the Executive branch must follow. For example, FACA requires notice of meetings of the committees or agencies it covers to be published in the Federal Register, see 5 U.S.C.App. 2 § 10(a)(2), and none of SERA's meetings were.

The defendants filed a motion to dismiss the complaint for failure to state a claim, or in the alternative, for summary judgment, contending, among other things, that the Tribe lacked standing to bring the lawsuit; that SERA was not governed by FACA because it did not meet that Act's definition of "advisory committee" and did not fall within the Act's purposes; and that even if SERA would otherwise have been within the scope of FACA, it was taken out by virtue of the Unfunded Mandates Reform Act, 2 U.S.C. §§ 1501 et. seq. After staying discovery, the district court granted the motion to dismiss the complaint, concluding that SERA was not a committee governed by FACA because, although it did meet the "plain language" of FACA's statutory requirements as set forth in the definition of "advisory committee," it did not fall within the spirit of the statute as revealed by its legislative history. The Tribe appealed.


A threshold issue in this case is whether the Tribe has standing to seek the relief it is seeking under FACA. The district court believed that the Tribe had alleged a sufficiently concrete and redressable injury to establish standing. Reviewing the issue de novo, Florida Ass'n of Med. Equip. Dealers v. Apfel, 194 F.3d 1227, 1229 (11th Cir.1999), we agree.

In order to establish standing, a plaintiff must allege (and eventually prove): (1) an injury in fact, which means harm to the plaintiff that is concrete and actual or imminent; (2) causation; and (3) redressability, which means a likelihood that the requested relief will redress the injury. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 103, 118 S.Ct. 1003, 1016-17, 140 L.Ed.2d 210 (1998). The required showing, of course, depends to some extent on the stage of the litigation at which the standing issue is being decided, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992), and here we are at the pleading stage. "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim." Id. at 561, 112 S.Ct. at 2137 (internal quotations omitted).

The complaint alleges that SERA's involvement in developing a plan for Everglades restoration, which included recommending an alternative plan to the Modified Water Deliveries Project (a water management plan authorized by Congress to protect tribal lands), had delayed the implementation of that congressional plan for restoration of the Everglades and had thereby damaged tribal lands. The complaint also alleges that continued reliance on SERA's advice will result in decisions further delaying the implementation of the congressional project, which will in turn continue to damage the land that the Tribe relies on for its subsistence. See id.

The defendants contend that the Tribe has failed to show it has standing because (1) the alleged injury is too general; (2) the Tribe has not adequately alleged the failure of SERA to follow the FACA procedures caused the damage to tribal lands which the Tribe asserts as its injury; and (3) a use injunction would not redress the claimed injury, because the complaint does not allege how SERA's advice might be relied on in the future to cause harm, especially since SERA no longer exists. According to the defendants, in order to establish standing, the Tribe was required to plead specific facts describing the advice SERA had given that delayed implementation of the congressional plan, how that advice had influenced the final policy decision of the federal agency or agencies, and how the final decision had resulted in damage to tribal lands and would continue to damage them in the future.

If this case were at the summary judgment stage, and discovery had been conducted instead of stayed, we might agree with the defendants' arguments. See Lujan, 504 U.S. at 560, 112 S.Ct. at 2137 ("In response to a summary judgment motion ... the plaintiff can no longer rest on ... `mere allegations,' [acceptable at the pleading stage] but must `set forth' by affidavit or other evidence `specific facts'...."). But that is not where this case is. It is only at the motion to dismiss stage, and at this stage the Tribe is only required to generally allege a redressable injury caused by the actions of SERA about which it complains. See Lujan, 504 U.S. at 561, 112 S.Ct. at 2137. It has done that. Without discovery, the Tribe is not expected to allege more particular information, such as the specific advice SERA gave which resulted in delaying implementation of the congressional project, especially since SERA allegedly did not make public its advice and recommendations. See Complaint ¶ 52.

Taken as true for purposes of the motion to dismiss, the Tribe's allegations of a past and continuing injury to its tribal lands allegedly caused by federal agencies' actual and continuing reliance on SERA's recommendations that were arrived at in violation of FACA establishes injury in fact and causation for present purposes. See Alabama-Tombigbee Rivers Coalition v. Dep't of the Interior, 26 F.3d 1103, 1107 (11th Cir.1994) (a court may properly enjoin the government's use of a product created by a committee that failed to comply with FACA requirements). And the alleged injury could well be redressed by prohibiting the use of SERA's recommendations by the defendant federal agencies. See generally Byrd v. EPA, 174 F.3d 239, 244 (D.C.Cir.1999) (rejecting argument that pla...

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