Sierra Club v. Flowers, 0323427CIV.

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
• Citation: 423 F.Supp.2d 1273
• Docket Number: No. 0323427CIV.,0323427CIV.
• Parties: SIERRA CLUB, Natural Resources Defense Council, and National Parks Conservation Association, Plaintiffs, v. Robert B. FLOWERS, Chief of Engineers, United States Army Corps of Engineers, and Steve Williams, Director, United States Fish and Wildlife Service; and Miami-Dade Limestone Products Association, Inc, Vecellio & Grogan, Inc., Tarmac America LLC, Florida Rock Industries, Inc., Sawgrass Rock Quarry, Inc., APAC-Florida, Inc., and Rinker Materials of Florida, Inc., Defendants/Defendant-Intervenors,
• Decision Date: 22 March 2006

423 F.Supp.2d 1273 SIERRA CLUB, Natural Resources Defense Council, and National Parks Conservation Association, Plaintiffs,
v.
Robert B. FLOWERS, Chief of Engineers, United States Army Corps of Engineers, and Steve Williams, Director, United States Fish and Wildlife Service; and Miami-Dade Limestone Products Association, Inc, Vecellio & Grogan, Inc., Tarmac America LLC, Florida Rock Industries, Inc., Sawgrass Rock Quarry, Inc., APAC-Florida, Inc., and Rinker Materials of Florida, Inc., Defendants/Defendant-Intervenors, No. 0323427CIV. United States District Court, S.D. Florida. March 22, 2006.

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Jonathan R. Lovvorn, Eric R. Glitzenstein, Meyer & Glitzenstein, Washington, DC, Paul J. Schwiep, Burlington, Weil, Schwiep, Kaplan & Blonsky, P.A., Miami, FL, Bradford H. Sewell, Natural Resources Defense Counsel, New York, NY, of Counsel, for Plaintiffs.

Mark A. Brown, Norman Rave, and Adam Siegel, Washington, DC, for Defendants.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

HOEVELER, Senior District Judge.

THIS CAUSE comes before the Court on the parties' various motions for summary

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judgment.¹ This Court heard argument on October 22, 2004, and additional argument was heard on September 30, 2005. The following briefly summarizes the most salient facts of this case, all of which will be addressed in greater detail below.

In 1991 the limestone mining industry approached federal, state, and local government regulators with a sixty-year plan for mining in wetlands in southeastern Florida, in an area described by the industry as the " "Lake Belt," near Everglades National Park ("ENP") and related water conservation areas in western Miami-Dade County. The mining plan included significant new areas of mining as well as continued mining in areas previously permitted, and "required the destruction of tens of thousands of acres of wetlands located above the Biscayne Aquifer (the County's sole source of drinking water) in order to reach the limestone rock below. The following year, the Florida Legislature established a Lake Belt committee to develop a plan that would "enhance the water supply for Dade County and the Everglades" as well as "maximize efficient recovery of limestone while promoting the social and economic welfare of the community and protecting the environment." Fla. Stat. § 373.4149. Later that same year, in anticipation of new permit applications and requests to extend previously issued permits, the United States Army Corps of Engineers ("Corps") announced its intention to prepare an Environmental Impact Statement ("EIS") for limestone mining which could impact approximately 54,000 acres of wetlands by the year 2050 in northwest Dade County." AR65.²

Over the next several years a number of issues were raised for discussion and analysis by interagency groups and other committees, e.g., risks to protected species, extent of need for locally-produced limestone products, potential contamination of the Aquifer, and threats of additional inverse condemnation lawsuits (one of the mining companies, Florida Rock, had successfully sued the United States in the mid-1980s on a claim that the denial of permits for mining in this area was an unconstitutional taking of property, recovering $21 million for 1,560 acres³). Analysis of these issues revealed that while the Lake Belt area contains large quantities of limestone, the mining would directly destroy wetlands, potentially contaminating millions of gallons of drinking water drawn daily from the Aquifer, and that the large

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deep pits which remain after mining would negatively affect groundwater seepage rates in and out of surrounding water areas, e.g., ENP; also, the remnant mining pits might compromise the larger program of Everglades restoration.

The Corps issued a final EIS in June 2000, AR614, which addressed the issuance of mining permits of fifty years each, for a total of 14,300 acres to be mined in the Lake Belt, including new and existing areas. The permit period later was reduced by the Corps to ten years, as an apparent compromise between the mining industry's urgent demands that new permits (approx. 8,400 acres) be issued concurrently with extensions of soon-to-expire existing permits (approx. 5,900 acres), and the objections to the mining plan that were being raised by federal and state agencies, local government, private organizations, and individuals.⁴ The Corps issued a Record of Decision ("ROD") in April 2002, AR1028, collectively approving the new limestone mining permit applications and extending the term of the previously-issued permits, for a total of approximately 5,400 acres of mining to take place in ten years.⁵ The new permits had an initial three year review period, after which the permits could be modified, if necessary.⁶

Plaintiffs allege that the Corps erred in issuing the ROD and awarding the permits⁷ to members of the limestone mining industry to conduct mining activities for ten years on 5,400 acres without, inter alia, updating the EIS that had been issued two years earlier. Further, they allege that the United States Fish and Wildlife Service ("FWS") failed in its duty to protect the wood stork, and other species whose habitats may be affected by the mining, by determining that the Corps' actions were "not likely to adversely affect"

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those species—without FWS conducting its own full assessment of the situation. Plaintiffs have alleged violations of the Administrative Procedures Act ("APA"), 5 U.S.C. § 706; the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq.; the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq.; and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.

The Corps and FWS ("Federal Defendants") argue that the permitting process was handled correctly, over a multiple year period, with the involvement and subsequent concurrence of all major federal, state, and local agencies, and that deference ultimately must be shown to the federal agencies. They offer as evidence of their deliberative process that they ultimately reduced the originally requested permit period from fifty years to ten years, required that the permitted activities be evaluated after the first three years, and also imposed additional conditions in response to concerns raised by objectors. The members of the limestone mining industry ("Industry Defendants"), who were permitted to intervene in this action because of their economic interests in the subject of this litigation, argue that the permits were issued legally, with sufficient analysis of environmental impacts, and that a failure to permit this mining would result in an improper restriction on private property interests.

PROCEDURAL BACKGROUND

Plaintiffs initially filed their Complaint on August 20, 2002, in the United States District Court for the District of Columbia. The Federal Defendants filed an Answer and moved to transfer the action to this district, and members of the limestone mining industry filed a request to intervene as defendants.⁸ On August 4, 2003, the Federal Defendants' motion to transfer was granted, and on December 30, 2003, this case was assigned to this Court. The Court granted the pending motion to intervene, and also granted Plaintiffs' request to amend their complaint to include claims based upon new information submitted to the Corps after the permits had issued (in light of all defendants' representations that they had no objection to such amendment).⁹

The Amended Complaint, filed April 6, 2004, seeks declaratory and injunctive relief

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and specifically alleges the following violations by the Corps: 1) insufficient analysis in the EIS (Count V, NEPA and APA); 2) failure to prepare a supplemental EIS prior to issuance of the ROD (Count V, NEPA and APA); 3) issuance of the permits without sufficient analysis or opportunity for public participation (Count I, CWA and APA), and without completing the formal consultation process required by the ESA or otherwise protecting listed species (Count III, ESA); and 4) deficiencies in the agency's response to Plaintiffs' complaints after issuance of the permits— Plaintiffs had urged the agency to prepare a SEIS at that time (Count VI, NEPA and APA), and to stop the permitted activity pending a reevaluation of the agency's decision (Count II, CWA and APA). Plaintiffs also claim that FWS' concurrence in the Corps' decision that no formal consultation was required and FWS' failure to re-initiate consultation violated the ESA and APA (Count IV).

Summary judgment motions were briefed by all parties, and a full day hearing was held on October 22, 2004. The Federal Defendants subsequently notified the Court, on May 2, 2005, that the anticipated completion of the initial review process, specified in the permits to be conducted three years after the permits were issued, would be delayed. An additional hearing was held on September 30, 2005, at which time the Court posed several questions to counsel regarding the status of the pending initial review and issues related to the announced delay. Shortly after that hearing, Plaintiffs filed a request to dismiss, without prejudice, Counts II and VI of their Amended Complaint.¹⁰ As there have been no objections filed as to the question of dismissing¹¹ these Counts, the Court will grant that request, noting that the claims may be renewed at an appropriate time.

THE STANDARD OF REVIEW

Clarifying the Claims and Record to Be Reviewed

The Federal Defendants argue that there is no cognizable claim under the ESA against FWS for failing to engage in formal consultation (Count IV)—but rather that such claims are to be reviewed under the APA—a point which Plaintiffs concede. The Federal Defendants also argue that this Court lacks subject matter jurisdiction due to an alleged procedural defect regarding Plaintiffs'...