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

• Decision Date: 14 March 2006
• Docket Number: No. 02-22778-CIV-MOORE.,02-22778-CIV-MOORE.
• Citation: 420 F.Supp.2d 1324
• Parties: MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized Indian tribe, Plaintiff, v. UNITED STATES of America, U.S. Army Corps of Engineers, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

420 F.Supp.2d 1324

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally-recognized Indian tribe, Plaintiff, v. UNITED STATES of America, U.S. Army Corps of Engineers, et al., Defendants.

No. 02-22778-CIV-MOORE.

United States District Court, S.D. Florida.

March 14, 2006.

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Kelly Sue Brooks, Lehtinen Vargas Reiner & Riedi, Miami, FL, for Plaintiff.

Marcia Berman, United States Department of Justice, Civil Division Ben Franklin Station, Jeremiah Goulka, Joanna B. Goger, United States Department of Justice, Environment and Natural Resources, Mark A. Brown, United States Department of Justice, Wildlife & Marine Resources Section, Washington, DC, Richard Joseph Grosso, Fort Lauderdale, FL, Bradford H. Sewell, Natural Resources Defense Council Inc., Robert A. Bourque, Simpson Thacher & Bartlett LLP, New York, NY, for Defendants.

ORDER

K. MICHAEL MOORE, District Judge.

THIS CAUSE came before the Court upon Plaintiff Miccosukee Tribe's Motion for Summary Judgment on Counts I, II, III, IV, VIII and IX of Plaintiff's Complaint and Incorporated Memorandum of Law (DE # 163), Federal Defendants' Combined Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Cross-Motion for Summary Judgment (DE # 167), NRDC Intervenors' Opposition to Miccosukee Tribe of Indians' Motion for Summary Judgment and Intervenors' Cross-Motion for Summary Judgment Against Federal Defendants and Incorporated Memorandum of Law (DE # 172), Federal Defendants' Combined Memorandum in Opposition to NRDC Intervenors' Motion for Summary Judgment and in Support of Cross-Motion for Summary Judgment on Intervenors' Cross-Claims (DE # 188), and all Responses, Replies and Oppositions thereto, as well as Plaintiff Miccosukee Tribe's Motion to Strike Defendants' Exhibit 6 and Arguments Based on it and Incorporated Memorandum of Law (DE # 227).

UPON CONSIDERATION of these Motions, and being otherwise fully advised in the premises, the Court enters the following Order.

I. Facts

Plaintiff Miccosukee Tribe ("Plaintiff" or the "Tribe") and the Natural Resources Defense Council, Florida Wildlife Federation,¹ Izaak Walton League of America, National Parks Conservation Association, National Wildlife Federation, Sierra Club and the Cape Sable seaside sparrow,² Ammodramus Maritima Mirabilis³ (collectively, "Intervenors") challenge a series of water management decisions by the U.S. Army Corps of Engineers (the "Corps") designed to avoid jeopardy to the endangered Cape Sable seaside sparrow (the "Sparrow") in the Everglades National Park (the "Everglades") while administering a number of Congressionally authorized programs aimed at balancing the water-related needs of South Florida.

In 1948, Congress authorized the Central and Southern Florida Project for Flood Control and Other Purposes ("C & SF Project"). The purpose of the C & SF Project was to control water flows and levels in South Florida and the Everglades. The C & SF Project provides both flood protection and water supply for the developed areas of South Florida through the use of, among other things, the South Dade Conveyance System ("SDCS")—a series of canals, levees and water control structures. Water Conservation Area 3-A ("WCA-3A") is an Everglades marsh comprising in excess of 100,000 acres in Miami-Dade and Broward counties that is part of the C & SF Project area. The C & SF Project also affects an area in Miami-Dade County known as the 8.5 Square Mile Area, the Miccosukee Reserved Area, and the Tribe's reservations located along Tamiami Trail and Krome Avenue. In order to maintain "acceptable" water levels in WCA-3A, the Water Control Plan and Regulation Schedule guides water managers charged with regulating inflow and outflow of water through the various water control structures within WCA-3A. The Corps and its local sponsor, the South Florida Water Management District ("SFWMD") operate the C & SF Project pursuant to the water regulation schedules.

Following unanticipated environmental consequences, particularly higher water levels in the western part of the Everglades and the drainage of marsh in the eastern half of the Everglades, Congress authorized the Corps and the SFWMD in 1984 to experiment with different methods of delivering water to the Everglades that resulted in better distribution of the water between different areas of the Everglades. Pub.L. No. 101-229, 103 Stat.1946 (Dec. 13, 1989) (codified at 16 U.S.C. § 410r-5 tp 410r-8). This experimentation appeared to have two consequences: First, it led to Congressional authorization of the Modified Water Deliveries Project (the "MWD") which calls for the construction of new water control structures in the northern part of the Everglades; and second, it allowed the Corps to operate different water delivery methods and study their impacts on the Everglades's ecology. Among the water delivery methods employed was "Test 7," which governed water delivery methods in the Everglades from 1995-1999.

Test 7, however, had consistent negative effects on the Sparrow population of the Everglades, leading to the U.S. Fish and Wildlife Service ("FWS") to ask the Corps to reduce water levels in the Sparrow's western nesting habitat in order to increase the probability of successful breeding for that year. The Corps requested and received approval from the Council on Environmental Quality ("CEQ") for emergency alternative arrangements pursuant to the National Environmental Policy Act ("NEPA") and deviated from its Test 7 operations. In February 1999, the FWS issued a final Biological Opinion ("BO") on the effects of Test 7 and other programs on several species, including the Snail Kite. The BO concluded, among other things, that the continued operation of Test 7 would lead to the extinction of the Sparrow. In keeping with that conclusion, the FWS provided a "Reasonable and Prudent Alternative" ("RPA") identifying actions that the FWS believed would protect the Sparrow from further danger until the MWD was completed. In December 1999, in response to the BO, the Corps issued the Interim Structural Operating Plan ("ISOP"). Although the ISOP did not include many of the RPA's water management components, the Corps asserted that the ISOP would produce hydrologic conditions equivalent to the RPA. The ISOP directed the closure of certain structures that had the effect of increased water levels in the WCA-3A. The Corps sought and received emergency authorization from CEQ to prepare an Environmental Assessment ("EA") pursuant to NEPA after the initial implementation of ISOP. The consequence of increased water levels was predicted in a draft EA issued in January 2000, followed by a final EA issued in March 2000. CEQ also directed the Corps to prepare a full Environmental Impact Statement ("EIS") for a new, longer term plan, the Interim Operating Plan ("IOP"), that would replace the ISOP and remain in place until completion of the MWD Project. In December 2000, after consultation with CEQ, the Corps issued a revised and updated ISOP ("ISOP 2001").

After a notice and comment period, the Corps issued a Draft Environmental Impact Statement ("DEIS") on the IOP in February 2001. The DEIS assessed six alternatives, including the ISOP 2001, with Alternative 5 as the preferred choice. Public reception led to another round of mediation through the Institute for Environmental Conflict Resolution ("IECR") in order to select a plan for the IOP. After the public comment period on the DEIS ended, the Corps began a series of meetings with various federal and non-federal groups (including the FWS, the Corps, Everglades National Park, and the South Florida Water Management District ("SFWMD")) for the purpose of selecting and recommending a plan for the IOP. To that end, this advisory body selected Alternative 7 as the preferred plan and issued a Supplemental Draft Environmental Impact Statement ("SEIS"). The Corps again took public comments on the SEIS. In December 2001, SFWMD withdrew from the agreement on Alternative 7. In response to this withdrawal, the Corps resumed mediation and developed "Alternative 7R." Alternative 7R contained new operational structures and features that were not included in the SE IS, such as the addition of two large pumps; removal of the southernmost four miles of the L-67 extension levee; and the construction of various seepage reservoirs. In April, 2002, FWS issued an amended Biological Opinion on Alternative 7R that predicted that IOP 7R would degrade 88,300 acres of snail kite critical habitat in WCA-3A. In May 2002, the Corps issued a Final Environmental Impact Statement ("FEIS") recommending Alternative 7R as the Final Recommended Plan. On July 3, 2002, the Corps issued a Record of Decision adopting the Final Recommended Plan.

On September 20, 2002, Plaintiff filed a Complaint alleging violations of the National Environmental Policy Act ("NEPA") and the Endangered Species Act ("ESA"), improper agency action under the Administrative Procedure Act ("APA"), violations of the rulemaking provisions of the APA, violations of the Fifth Amendment guarantee of due process, nuisance under federal common law, violation of the Indian Trust doctrine, as reflected in the Florida Indian Land Claims Settlement Act of 1982, violations of the Federal Advisory Committee Act, and improper delegation of agency authority, all stemming from allegedly improper action by the Corps in adopting and implementing the IOP. This Court previously dismissed three of Plaintiffs Counts, leaving six counts remaining. See DE # 142. In May 2003, the NRDC Intervenors filed an Answer and Cross-Claim for Declaratory Judgment ("Cross-Claim").

II. Standard of Review

The Plaintiff and Intervenors face an uphill battle. Under the APA, courts must set aside agency decisions found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the...