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

• Decision Date: 11 March 1998
• Docket Number: No. 94-0662-CIV.,94-0662-CIV.
• Citation: 6 F.Supp.2d 1346
• Parties: MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized Indian Tribe, Plaintiff, v. UNITED STATES of America; U.S. Department of the Interior; Bruce Babbitt, in his official capacity as Secretary of the Interior; George Frampton, in his official capacity as Assistant Secretary of the Interior; and Bonnie Cohen, in her official capacity as Assistant Secretary of the Interior, Defendants.
• Court: U.S. District Court — Southern District of Florida

6 F.Supp.2d 1346

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized Indian Tribe, Plaintiff, v. UNITED STATES of America; U.S. Department of the Interior; Bruce Babbitt, in his official capacity as Secretary of the Interior; George Frampton, in his official capacity as Assistant Secretary of the Interior; and Bonnie Cohen, in her official capacity as Assistant Secretary of the Interior, Defendants.

No. 94-0662-CIV.

United States District Court, S.D. Florida.

March 11, 1998.

Dexter Lehtinen, Lehtinen, Cortinas, Vargas & Reiner, Miami, FL, for Plaintiff.

Stephen G. Bartell, U.S. Dept. of Justice, Environmental & Natural Resources Division, Washington, DC, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

HOEVELER, Senior District Judge.

THIS CAUSE is before the Court on Defendants' Motion to Dismiss, filed November 1, 1994. Plaintiff filed a response on December 9, 1994. This Court heard argument on January 20, 1995.

BACKGROUND

On January 13, 1994, the United States and Flo-Sun Land Corporation ("Flo-Sun") entered into an agreement (hereinafter "Agreement"). As a result of the Agreement, Flo-Sun agreed to withdraw from all pending litigation concerning Everglades restoration. The corporation obtained assurances that, if it complied with the commitments detailed in the Statement of Principles entitled "Reduced Phosphorus Outputs Achieved Through Performance-Based Best Management Practices", i.e., if it complied with the phosphorus removal program, and paid its negotiated share of the clean up costs, it would not be sued by the United States or agencies thereof through June 30, 2003, as to these matters. Nothing in the Agreement precludes the United States from asserting liability for reduction of phosphorus beginning July 1, 2003. (See Agreement, ¶ 4).

On April 7, 1994, the Miccosukee Tribe of Indians of Florida ("Tribe") sued the United States, the Department of the Interior and certain of the Department's officials requesting that the Flo-Sun Agreement be nullified and that an injunction be entered against enforcement of the Agreement. The Complaint alleges that Defendants failed to prepare an Environmental Impact Statement ("EIS") in accordance with the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et. seq. (Count I); that Defendants failed to comply with the notice and comment requirements of the Administrative Procedures Act ("APA"), 5 U.S.C. § 501 et. seq. (Count II); and that the Department of the Interior exceeded its statutory authority when it entered into the Flo-Sun Agreement (Count III). Defendants seek dismissal for lack of jurisdiction pursuant to Rule 12(b)(1), Fed.R.Civ.P. and for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), Fed.R.Civ.P.

ANALYSIS

I. Standing

As a threshold issue, Defendants assert that Plaintiff has failed to demonstrate that it has standing to bring this lawsuit. The Supreme Court has held that to have standing, a party must suffer an "actual or imminent, not conjectural or hypothetical injury." Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing also requires a causal connection between the injury and the conduct complained of and it must be likely that the injury will be redressed by a favorable decision. Id. The assertion of procedural rights can also confer standing.

In the Complaint, the Tribe asserts that it has suffered an actual injury because the Flo-Sun Agreement results in the discharge of polluted water, harming the water quality of the Everglades and endangering the Tribe's existence, Complaint, ¶ 6. The Tribe acknowledges that the Agreement improves the existing state of discharge, but argues that the Agreement fails to improve the water quality to the level that the Tribe wants — thus, the "injury" to the Tribe is not clear. Therefore, the causal connection between the Tribe's injury and the United States' entry into the Agreement seems tenuous, at best.

The Tribe also alleges violation of procedural rights — specifically, Defendants' failure to prepare an EIS and failure to comply with procedural requirements of the APA, Complaint, ¶ 18, 19. The Supreme Court has stated that a person who seeks to assert procedural rights must demonstrate only that they have concrete interests affected.

The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards of redressability and immediacy. Thus, under our case law, one living adjacent to a site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an Environmental Impact Statement, even though he cannot establish with any certainty that the Statement will cause the license to be withheld or even though the dam will not be completed for many years. Lujan, 504 U.S. 555, 572 at n. 16b, 112 S.Ct. 2130, 119 L.Ed.2d 351.

Members of the Tribe reside in the Everglades and depend upon its eco-system for their well-being. It may be that the Tribe can demonstrate that it has a sufficient interest in the preservation of the Everglades to assert procedural rights and a harm related thereto. Based upon the facts as presently alleged in Plaintiff's Complaint, the Tribe could have standing to sue as to protection of its procedural rights, which would permit this case to proceed. Thus, Defendants' Motion to Dismiss under Rule 12(b)(1) is DENIED. The conclusion reached below as to the dismissal of this matter, however, renders academic the determination of standing.¹

II. Motion to Dismiss Under Rule 12(b)(6)

A defendant's motion to dismiss for failure to state a claim should be granted only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). All that the Federal Rules of Civil Procedure require is a short and plain statement of the claim that gives the defendant fair notice of the claim and the grounds upon which it rests. Id. In evaluating the sufficiency of the claim, all facts stated in the complaint are accepted as true, Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984), factual issues are to be resolved in favor of the plaintiff, Quinones v. Durkis, 638 F.Supp. 856, 858 (S.D.Fla.1986), and the prospect of recovery is irrelevant, In Re Asbestos Litigation, 679 F.Supp. 1096, 1098 (S.D.Fla.1987). Defendants' Rule 12(b)(6) arguments for dismissal will be addressed as to each count individually.

Count I — Violation of National Environmental Protection Act

Plaintiff alleges that Defendants failed to abide by NEPA procedures because they failed to prepare an EIS. Under NEPA, a federal agency is required to prepare an EIS whenever it undertakes "major federal action." 42 U.S.C. § 4332. Major federal action includes "actions with effects that may be major and which are potentially subject to Federal control and responsibility." 40 C.F.R. § 1508.18. The regulation specifically excludes from the definition of "major federal action" the bringing of "judicial or administrative civil or criminal enforcement actions." Id.

The Tribe asserts that the Agreement constitutes "major federal action" and maintains that the Agreement itself does not stem from an enforcement action against Flo-Sun and therefore does not fall under that exception to 40 C.F.R. § 1508.18. Consequently, Plaintiff maintains, Defendants must prepare an EIS as required by NEPA. In response, Defendants assert that the Agreement does not constitute a "major federal action" and, thus, NEPA obligations do not arise as a result of the Flo-Sun Agreement. In the alternative, Defendants argue that the Agreement falls within the exception enumerated in 40 C.F.R. § 1508.18, as the Agreement was and is related to an enforcement action.²

In U.S. v. Southern Florida Water Management Dist., 28 F.3d 1563 (11th Cir.1994), the Court of Appeals considered whether the Settlement Agreement entered into in Case No. 88-1886-CIV-HOEVELER, 847 F.Supp. 1567 constituted a major federal action from which NEPA obligations arise. The Settlement Agreement settled all claims between the principal parties involved in an action brought by the United States against the South Florida Water Management District and the Florida Department of Environmental Regulation. Pursuant to the Settlement Agreement, a Consent Decree was entered by this Court to compel Everglades restoration. The Eleventh Circuit determined that "it would be premature and serve no useful purpose" to require the preparation of an EIS when no specific federal action was proposed. Id. at 1573. The Court of Appeals further explained that the proper time for conducting NEPA review is if and when federal activities are actually proposed. Id. Thus, the entry into an agreement in and of itself, was insufficient to trigger the EIS requirement.

Unlike the Settlement Agreement reviewed in 28 F.3d 1563, which included a detailed technical plan and various phosphorus criteria methodology, the instant Agreement is rather vague. No specific "major federal action" has been proposed in the Flo-Sun Agreement. Indeed, the United States has pledged a degree of inaction dependent upon compliance by Flo-Sun. If and when specific federal action is proposed, the responsible agency will have to comply with NEPA requirements. However, at the pertinent time, no federal action had yet been performed which constituted "major federal action" and, thus, the preparation of an EIS was not required. This Court finds that NEPA obligations do not arise as a result of the Flo-Sun Agreement. As additional support, the Court observes that entry into this Agreement may also fall within the statutory exception for activities related to enforcement actions.

Defendants' Motion to Dismiss Count I is hereby...