Miccosukee Tribe of Indians of Fla. v. U.S., CASE NO.: 04-21448-CIV-GOLD

Decision Date26 April 2011
Docket NumberCASE NO.: 04-21448-CIV-GOLD
PartiesMICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized Indian Tribe; and FRIENDS OF THE EVERGLADES, Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants.
CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
OMNIBUS ORDER;
INDICATIVE RULING GRANTING DEFENDANT EPA'S RULE 60(b) MOTION
GRANTING FDEP'S MOTION FOR CLARIFICATION OF COMPLIANCE ORDER

[ECF No. 573]; DENYING FRIENDS' MOTION TO ADD SFWMD AS A PARTY

[ECF No. 477]; DENYING NEW HOPE'S MOTIONS TO STRIKE [ECF Nos. 536, 537]

I. INTRODUCTION1

In recent opinions, the Eleventh Circuit has acknowledged that the Everglades is a natural treasure.2 Among the parties and intervenors in this case, there is general agreement that the Everglades represents a precious resource. However, these words cannot remain merely aspirational. They must be actualized through enforcement.Elsewise, based on undisputed scientific evidence of phosphorus nutrient levels, the Everglades will cease to exist over time.3

The heart of this matter remains in enforcement under the Clean Water Act ("CWA"). This authority to act has been granted by Congress to the Environmental Protection Agency ("EPA") in the first instance. To its credit, the EPA now has come forth-following a lengthy history of inaction-with an Amended Determination that serves to protect the Everglades resource. What also is clear is that the State of Florida and the South Florida Water Management District ("SFWMD"), notwithstanding protests to the contrary, have not been true stewards of protecting the Everglades in recent years. The State's claim that it is being unfairly criticized is belied by, inter alia, the enactment of the Amended Everglades Forever Act ("EFA") to detrimentally change the State's previous water quality standards, the State's adoption of the disingenuous Phosphorus Rule to depart from the strictures of the original EFA, and the failure of the SFWMD to even implement its mandated duties under the EFA. Most recently, the State's resistance to the water quality standards set by the EPA is evidenced by the Governor of Florida's authorization to FDEP to petition the EPA to rescind its January2009 determination that the federally-imposed numeric nutrient criteria are necessary for Florida.4

The primary purpose of this latest Order is to put into the hands of the EPA all the resources necessary to enforce its action plan and to implement its full power under the congressional Clean Water Act. By transferring the permitting authority to the EPA, consistent with the mandates under the Clean Water Act, 5 the objectives set forth in the Amended Determination can be achieved.

It is time now for this next significant step to occur. The EPA has represented that it wants to act. It must be given the opportunity to do so. The EPA may well have to enforce the objectives as set forth in the Amended Determination, as it has recently stated it would, through further administrative and court actions-which are apparentlylikely since the opposing parties and intervenors are even now presently before the Eleventh Circuit seeking yet another set of appeals on various orders in this litigation.

II. MOTIONS ADDRESSED IN THIS ORDER

This cause is before the Court on Defendants United States of America, United States Environmental Protection Agency, the Administrator of the EPA, and the Regional Administrator of the EPA, Region IV's (collectively "EPA") Rule 60(b) Motion for Modification of Injunction ("Rule 60(b) Motion"). [ECF No. 446]. The following filed Responses to EPA's 60 Motion: Intervenor Defendant State of Florida ("State") Department of Environment Protection ("FDEP" or "Department") [ECF No. 466], Plaintiff Miccosukee Tribe of Indians ("the Tribe") [ECF No. 467], Plaintiff Friends of the Everglades ("Friends") [ECF No. 468], and Intervenor Defendants New Hope Sugar Company and Okeelanta Corporation (collectively "New Hope") [ECF No. 469]. The EPA filed four separate Replies to each Response ("Replies") [ECF Nos. 483-486].

Also before the Court are two motions filed by Friends. On September 17, 2010, Friends filed a Motion to Add South Florida Water Management District ("SFWMD" or "the District") as a Party [ECF No. 477], which it served on the non-party District [ECF No. 497]. On October 14, 2010, Friends filed a Notice of Non-Opposition to its Motion to Add SFWMD as a Party. [ECF No. 503].6 On October 27, 2010, the Tribe joined in

Friends' Motion to Add SFWMD as a Party. [ECF No. 507].

On December 10, 2010, Friends filed a Motion for Entry of an Order Declaring the District's NPDES and EFA Permits Null and Void. [ECF No. 533]. The FDEP andEPA each filed a Response to Friends' Motion (collectively "Responses") [ECF Nos. 552, 553], and Friends filed a Reply in Support of its Motion ("Reply") [ECF No. 562].

Finally, New Hope filed a Corrected Motion to Strike the EPA's Response to the September 14, 2010 Sua Sponte Order and Friends' Expert Reports [ECF No. 537] and a Motion for Clarification of the Compliance Order [ECF No. 573].

I have jurisdiction pursuant to the Clean Water Act, 33 U.S.C. § 1251, et seq., and the federal Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq. A hearing was held on December 17, 2010, wherein the parties addressed, inter alia, the EPA's Rule 60(b) Motion. Having considered the Motion, Responses, Replies, relevant submissions, record, and applicable law, I DENY Friends' Motions, DENY New Hope's Motions to Strike, GRANT New Hope's Motion for Clarification, and enter an indicative order GRANTING the EPA's Rule 60(b) Motion for the reasons set forth below.

III. SUMMARY OF ACTIONS TAKEN BY THIS ORDER

I "deem" the permits filed by FDEP as "submitted" to the EPA for purposes of review under the Memorandum of Understanding between the EPA and FDEP. I do so under my equitable and inherent powers, and as further sanctions for non-compliance. This action in turn triggers number of legal consequences. As such, the proposed Indicative Order ("Appendix B") grants the EPA's Rule 60(b) relief, which I would enter following remand, as requested in the EPA's Submission in Response to the December 17, 2010 Order. See [ECF No. 565, pp. 11-14]. To be clear, I enter a ruling granting the relief requested in the later-filed pleading as it amends the relief sought in the EPA's original Rule 60(b) Motion.

Since I deem the permits submitted for purposes of review, I deny Friends' motion seeking declaratory relief as to the permits being null and void. I also deny Friends' motion to add the District as a party because, inter alia, the EPA may take further action as necessary against the District. I also require the parties to file a Joint Notice of Compliance following this Order for the purposes of informing the Court on their efforts to comply with this Order and the purposes set forth in the Amended Determination. I grant FDEP's Motion for Clarification of Compliance Order so there is no ambiguity in my determination that Administrative Orders should not be used to prolong compliance with the CWA. Finally, I deny New Hope's Motions to Strike the EPA's response to my first sua sponte order and the expert reports filed by Friends.

Due to the complexity of this case and the various motions addressed herein, I provide the following roadmap outlining the sequence of my analysis in this Order. As an initial matter, though the parties are acquainted with this case, I find it necessary to set forth key factual and procedural background underlying this case, as well as Case No. 88-1886. This is essential to recapitulate what has occurred since my April 14, 2010 Order, examine how the current situation has arisen, and explain the reasons for the actions taken in this Order. Discussing this case's background is also imperative to put into context how significant delay and stonewalling have precluded improvements to water quality standards, keeping the Everglades at risk for decades.

Next, an overview of the permitting process is necessary in order to understand both how and why the EPA must act under its permitting authority to enforce the mandates under the Clean Water Act. With this background in mind, this Order thenaddresses the Rule 60(b) Motion as it seeks to modify certain portions of the April 14, 2010 Order. I then address Friends' two motions to add SFWMD as a party and to deem the permits null and void. Finally, I address New Hope's motions seeking clarification and striking of expert reports submitted by Friends.

IV. FACTUAL BACKGROUND

My analysis of the pending motions takes into consideration the broad factual and procedural history of this case, in addition to litigation over the Everglades in general. Accordingly, it is necessary to briefly highlight key points in the timeline of litigation over the Everglades to provide the overarching framework within which I analyze the pending motions.

The Everglades consists of millions of acres comprising an extensive and unique wetlands system, providing a home for threatened and endangered wildlife species. See Miccosukee Tribe of Indians v. United States, 1998 U.S. Dist. LEXIS 15838 at *6 (S.D. Fla. Sept. 11, 1998). As defined in the 1994 EFA, the Everglades Protection Area covers approximately 3,500 square miles consisting of Everglades National Park, the Loxahatchee National Wildlife Refuge, and several Water Conservation Areas.

A. Parties

The Tribe is a federally recognized Indian Tribe whose members live and work within the Everglades. [ECF No. 147, p. 2]. Friends is an organization founded for the protection and preservation of the Everglades ecosystem, and over 4,400 members of Friends use the Everglades on a continuing basis for recreational and aesthetic purposes. [ECF No. 150, pp. 2-3]. The EPA is the federal agency charged withenforcing the Federal Clean...

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