Sierra Club v. Strock, No. 03 23427 CV.

CourtU.S. District Court — Southern District of Florida
Writing for the CourtHoeveler
Citation495 F.Supp.2d 1188
PartiesSIERRA CLUB, Natural Resources Defense Council and National Parks Conservation Association, Plaintiffs, v. Lt. Gen. Carl A. STROCK, Chief of Engineers, United States Army Corps of Engineers, and H. Dale Hall, Director, United States Fish and Wildlife Service Defendants, and Miami-Dade Limestone Products Association, Inc., Vecellio & Grogan, Inc., Tarmac America LLC, Florida Rock Industries, Inc., Sawgrass Rock Quarry, Inc., Apac-Florida, Inc., Rinker Materials of Florida, Inc., Kendall Properties and Investments, Defendant-Intervenors.
Decision Date13 July 2007
Docket NumberNo. 03 23427 CV.

Page 1188

495 F.Supp.2d 1188
SIERRA CLUB, Natural Resources Defense Council and National Parks Conservation Association, Plaintiffs,
v.
Lt. Gen. Carl A. STROCK, Chief of Engineers, United States Army Corps of Engineers, and H. Dale Hall, Director, United States Fish and Wildlife Service Defendants,
and Miami-Dade Limestone Products Association, Inc., Vecellio & Grogan, Inc., Tarmac America LLC, Florida Rock Industries, Inc., Sawgrass Rock Quarry, Inc., Apac-Florida, Inc., Rinker Materials of Florida, Inc., Kendall Properties and Investments, Defendant-Intervenors.
No. 03 23427 CV.
United States District Court, S.D. Florida.
July 13, 2007.

Bradford H. Sewell, Lawrence M. Levine, S. Ansley Samson, Natural Resources Defense Council Inc., Stanley N. Alpert, Alpert Firm, New York, NY, Eric R. Glitzenstein, Meyer & Glitzenstein, Washington, DC, Paul Joseph Schwiep, Coffey Burlington, Miami, FL, for Plaintiffs.

Mark A. Brown, Michael Semler, United States Department of Justice, Wildlife & Marine Resources Section, Norman L. Rave, Jr., Barry Alan Weiner, United States Department of Justice, Environment & Natural Resources, Washington, DC, for Defendants.

Douglas Martin Halsey, Thomas Neal McAliley, White & Case, Elizabeth Brooks Honkonen, Michael Nachwalter, Kenny Nachwalter Seymour Arnold Critchlow & Spector, Edward George Guedes, Elliot H. Scherker, Greenberg Traurig, Franklin G. Burt, Richard J. Ovelmen, Jorden Burt LLP, Miami, FL, Lawrence R. Liebesman, Rafe Petersen, Holland & Knight, Washington, DC, Martin John Alexander, Holland & Knight, West Palm Beach, FL, John A. Devault, III, Bedell Dittmar Devault Pillans & Coxe, Jacksonville, FL, Kenneth B. Hayman, Department of Environmental

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Protection, Tallahassee, FL, for Defendant-Intervenors.

Charles H. Baumberger, Rossman Baumberger Reboso & Spier, Miami, FL.

ORDER SUPPLEMENTING COURT'S ORDER OF MARCH 22, 2006

HOEVELER, Senior District Judge.


THE COURT has before it the question of what further relief, if any, should be granted to Plaintiffs in light of the Court's conclusions that the Defendants had committed multiple 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.1 These violations occurred in relation to the issuance of CWA § 404(b) permits in April 2002 to nine private corporations2 for the destruction of approximately 5,400 acres of wetlands in order to remove the underlying limestone for processing into cement, concrete blocks, and other products. The Court's Order granting summary judgment for Plaintiffs found that Defendants, the United States Army Corps of Engineers ("Corps") and United States Fish and Wildlife Service ("FWS"), had made numerous decisions lacking a rational basis and had failed to consider all relevant factors in their permitting decision; further, the Court found that the record in this case prior to issuance of the permits compelled the conclusion "that the permits should not have been issued." Sierra Club v. Flowers, 423 F.Supp.2d 1273, 1379 (S.D.Fla.2006). The Defendants were directed to prepare a legally sufficient Environmental Impact Statement ("EIS"), i.e., a supplemental EIS ("SEIS"), and to engage in formal consultation regarding the impact on protected species, at a minimum. As will be further detailed below, the Court now has concluded — based upon the additional information presented by the parties — that not only should the permits not have been issued in April 2002, but also that these permits must be set aside today. The following findings therefore supplement and affirm those in the Court's Order entered March 22, 2006, reported at Sierra Club v. Flowers, 423 F.Supp.2d 1273 (S.D.Fla.2006).

I. INTRODUCTION

The Court's Order granting summary judgment for Plaintiffs requested briefing from the parties to assist the Court in determining an appropriate remedy in light of current developments in the case.3

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Because the Intervenors (members of the limestone mining industry) alleged that they faced a significant disruption in their mining businesses if the Court were to determine that a prohibition against further mining was appropriate, the Court granted their request for an evidentiary hearing. The Court also participated in a view of the area by helicopter, and visited representative sites on the ground to more thoroughly evaluate the scope and context of the mining activities and their impacts.4 The Court witnessed mining activities proceeding at that time (and already had learned that the Corps had taken no action to limit any of the mining activities during the period of supplemental environmental analysis ordered by this Court).5

During a six-month period spanning from mid-June through December 2006,6 the Court heard extensive argument from the parties and received a total of 32 days of testimony7 and approximately 440 exhibits. During the hearing, the Court frequently announced its intention to learn as much as possible about the facts of this case and to hear all of the evidence.8 In addition, the Court permitted the parties

Page 1191

to file post-hearing briefs, which total nearly 300 pages. The Court has carefully studied all of these materials. While the Defendants and Intervenors have urged this Court to accept that the Defendants' ongoing supplemental environmental review is proceeding properly, the Court has significant doubts in light of the evidence regarding continuing violations of governing regulations.

Shockingly, the Court learned for the first time during the evidentiary hearing, in June 2006, that benzene, a carcinogen,9 had been detected as early as January 2005 in the water being pumped from the Biscayne Aquifer ("Aquifer"), "the primary source of drinking water for the Miami — Dade County area." AR1028,10 p. 4. The contamination was found in the area where limestone mining, which uses explosives11 to remove the limestone from the Aquifer, is proceeding pursuant to the challenged permits. The contamination was so significant12 that Miami — Dade County's Water and Sewer Department ("WASD") (the agency responsible for the delivery of drinking water for the County) shut down seven of the fifteen production wells which draw water from the Aquifer in that area, known as the Northwest Wellfield ("Wellfield"), and pump it to water treatment plants several miles away.13 More than two years after the initial contamination incident,14 Miami-Dade County's Department of Environmental Resources Management ("DERM"), the agency responsible for protecting the Wellfield, announced that it could not eliminate the mining-related blasting as a source of the benzene.15 DERM's report concluded that the

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two reported contamination periods (January 2005 to February 2006, and a second episode beginning in August 2006) were not caused by several other potential sources.16

Despite protestations to the contrary, it appears likely that the Corps-permitted mining activities, specifically the blasting used to dislodge the limestone17 from the Aquifer, are a source of the benzene. A significant portion of the mining occurs in this same Wellfield where the contamination was discovered — some of the active mining operations are less than 3000 feet from the production wells. The Court need not determine conclusively18 whether

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the benzene originated from mining-related blasting as the contamination itself (and the Corps' failure to treat it as significant) is sufficient to expose the Corps' ongoing violations and dereliction of their duties under the CWA, NEPA, and APA.19 When the Court questioned the Defendants' primary witness as to why the benzene contamination had not been included in the report of the Corps'"Three Year" review required by the permits,20 his response was: "[W]e don't have any clear indication from the County that it's a problem." Tr. 2776 (John F. Studt).21

The Corps' shifting of responsibility to the County,22 combined with a complete failure to advise not just this Court (during the pendency of these proceedings) but

Page 1194

also the public as to the contamination of the Wellfield by benzene and the potential connection to the mining activities,23 eliminated the possibility of meaningful public participation required by NEPA and the CWA.24 In summary, the Corps' lack of concern about the benzene contamination represents a failure to fulfill its legal obligations to conduct the agency's permitting activities with transparency.25 This is just one example of the many errors made by the Corps in failing to provide accurate information for public assessment and review throughout the permitting process.26

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Defendants' lack of transparency and clarity in the permitting process also have made the "public interest" issues27 difficult to grasp in this case. It is impossible to discern precisely what is at issue under these permits with respect to the number of acres to be mined, the precise locations and types of mining impacts at any given point in time, and the total length of time during which the mining activities may proceed.28 Defendants rely on the permittees to report the number of acres mined and wetlands impacted, but the permittees use different descriptive terms than those used by the Defendants — raising a question as to whether there is or could be any meaningful monitoring to ensure the accuracy of the reporting of impacts.29 The Defendants offered very little30 to support their untenable position that the alleged benefits to the economy outweigh risks of environmental harm from the continued mining.31 Nor is it an easy task to test the Intervenors' arguments that there are insufficient

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alternative sources of limestone to replace the rock being harvested under these permits, and that any reduction in mining...

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5 practice notes
  • Club v. Lt. Gen. Robert L. Van Antwerp, Case No. 03-23427-CIV-HOEVELER.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • January 30, 2009
    ...from all sides regarding the appropriate remedy, the Court then issued a second order vacating the permits. Sierra Club v. Strock, 495 F.Supp.2d 1188 (S.D.Fla.2007). On appeal by the Intervenors, the Eleventh Circuit vacated, in part, the Court's summary judgment order,1 and vacated the add......
  • Miccosukee Tribe of Indians of Fla. v. U.S., CASE NO.: 04-21448-CIV-GOLD
    • United States
    • U.S. District Court — Southern District of Florida
    • April 26, 2011
    ...an agency has failed to act, the court may declare as such and instruct the agency to take certain action. See Sierra Club v. Strock, 495 F. Supp. 2d 1188, 1208 (S.D. Fla. 2007) ("To be clear, this Court is not dictating what the agency's future decision should be; rather this Court has det......
  • Michigan Dep't of Cmty. Health v. Sec'y of Health & Human Servs., Case No. 11-1905
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 23, 2012
    ...invoke an administrative policy to trump an explicit statutory command turns Chevron deference on its head'); Sierra Club v. Strock, 495 F. Supp. 2d 1188 (S. Dist. of FL, 2007) ('Clearly, deference is not absolute but rather admits of exceptions for those rare occasions when agencies fail a......
  • NEPA's Insatiable Optimism
    • United States
    • Environmental Law Reporter Nbr. 39-7, July 2009
    • July 1, 2009
    ...see William H. Rodgers Jr., The Miccosukee Indians and Environmental Law: A Confederacy of Hope , 31 ELR 10918 (Aug. 2001). 31. 495 F. Supp. 2d 1188, 37 ELR 20188 (S.D. Fla. 2007). 32. 33 U.S.C. §§1251-1387, ELR Stat. FWPCA §§101-607. 33. Id . at 1286. 34. Id . at 1286. mining activities, 3......
  • Request a trial to view additional results
4 cases
  • Club v. Lt. Gen. Robert L. Van Antwerp, Case No. 03-23427-CIV-HOEVELER.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • January 30, 2009
    ...from all sides regarding the appropriate remedy, the Court then issued a second order vacating the permits. Sierra Club v. Strock, 495 F.Supp.2d 1188 (S.D.Fla.2007). On appeal by the Intervenors, the Eleventh Circuit vacated, in part, the Court's summary judgment order,1 and vacated the add......
  • Miccosukee Tribe of Indians of Fla. v. U.S., CASE NO.: 04-21448-CIV-GOLD
    • United States
    • U.S. District Court — Southern District of Florida
    • April 26, 2011
    ...an agency has failed to act, the court may declare as such and instruct the agency to take certain action. See Sierra Club v. Strock, 495 F. Supp. 2d 1188, 1208 (S.D. Fla. 2007) ("To be clear, this Court is not dictating what the agency's future decision should be; rather this Court has det......
  • Michigan Dep't of Cmty. Health v. Sec'y of Health & Human Servs., Case No. 11-1905
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 23, 2012
    ...invoke an administrative policy to trump an explicit statutory command turns Chevron deference on its head'); Sierra Club v. Strock, 495 F. Supp. 2d 1188 (S. Dist. of FL, 2007) ('Clearly, deference is not absolute but rather admits of exceptions for those rare occasions when agencies fail a......
  • Friends of the Mahoning River v. U.S. Army Corps of Eng'rs, 4:19CV2771
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • September 9, 2021
    ...Any asserted “need” by an applicant that a project must be profitable should be afforded “little or no weight.” Sierra Club v. Strock, 495 F.Supp.2d 1188, 1278 (S.D. Fla. 2007).[2] A decision to issue a permit must be “based on an evaluation of the probable impacts, including cumulative imp......
1 books & journal articles
  • NEPA's Insatiable Optimism
    • United States
    • Environmental Law Reporter Nbr. 39-7, July 2009
    • July 1, 2009
    ...see William H. Rodgers Jr., The Miccosukee Indians and Environmental Law: A Confederacy of Hope , 31 ELR 10918 (Aug. 2001). 31. 495 F. Supp. 2d 1188, 37 ELR 20188 (S.D. Fla. 2007). 32. 33 U.S.C. §§1251-1387, ELR Stat. FWPCA §§101-607. 33. Id . at 1286. 34. Id . at 1286. mining activities, 3......

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