U.S. v. Southern Florida Water Management Dist., Nos. 92-4314

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore BLACK, Circuit Judge, DYER; DYER
Citation28 F.3d 1563
Parties, 24 Envtl. L. Rep. 21,397 UNITED STATES of America, Plaintiff-Counterclaim Defendant-Appellee-Cross-Appellant, Florida Keys Citizen Coalition, Florida Audubon Society, Florida Wildlife Federation, Environmental Defense Fund, Sierra Club, National Wildlife Federation, Wilderness Society, National Parks & Conservation Association, Defenders of Wildlife and Treasure Coast Environmental Coalition, Miccosukee Tribe of Indians of Florida, Intervenor Plaintiffs-Appellees, v. SOUTHERN FLORIDA WATER MANAGEMENT DISTRICT and Florida Department of Environmental Regulation, Tilford Creel, Defendants-Counterclaim Plaintiffs-Appellees, Carol Browner, Defendant-Appellee, City of Belle Glade, City of Clewiston, Intervenor-Defendants-Appellants-Cross-Appellees, Western Palm Beach County Farm Bureau, Inc., Florida Sugar Cane League, Inc., Roth Farms, Inc. and K.W.B. Farms, Intervenor-Defendants- Counterclaim, Plaintiffs- Appellants- Cross-Appellees, Florida Fruit & Vegetable Association, Intervenor-Defendant, South Bay Growers, Inc., Movant, Colonel Bruce A. Malson, et al., Counterclaim Defendants. UNITED STATES of America, Plaintiff-Counterclaim Defendant-Appellant, Florida Keys Citizen Coalition, Intervenor-Plaintiff-Appellee, Florida Audubon Society, et al., Intervenor-Plaintiffs, v. SOUTH FLORIDA WATER MANAGEMENT DIVISION, Florida Department of Environmental Regulation, Defendants-Counterclaim Plaintiffs-Appellees, Tilford Creel, et al., Defendants, City of Belle Glade, City of Clewiston, Intervenor-Defendants-Appellants, West Palm Beach County Farm, Florida Sugar Cane League, Inc., Roth Farms, Inc. and K.W.B. Farms, Intervenor-Defendants-Counterclaim, Plaintiffs-Appellants, Florida Fruit & Vegetable Association, Intervenor-Defendant, South Bay Growers, Inc., Movant, Colonel Bruce A. Malson, et al., Counterclaim Defendants.
Decision Date23 August 1994
Docket NumberNos. 92-4314,92-4831

Page 1563

28 F.3d 1563
39 ERC 1437, 24 Envtl. L. Rep. 21,397
UNITED STATES of America, Plaintiff-Counterclaim
Defendant-Appellee-Cross-Appellant,
Florida Keys Citizen Coalition, Florida Audubon Society,
Florida Wildlife Federation, Environmental Defense Fund,
Sierra Club, National Wildlife Federation, Wilderness
Society, National Parks & Conservation Association,
Defenders of Wildlife and Treasure Coast Environmental
Coalition, Miccosukee Tribe of Indians of Florida,
Intervenor Plaintiffs-Appellees,
v.
SOUTHERN FLORIDA WATER MANAGEMENT DISTRICT and Florida
Department of Environmental Regulation, Tilford
Creel, Defendants-Counterclaim
Plaintiffs-Appellees,
Carol Browner, Defendant-Appellee,
City of Belle Glade, City of Clewiston,
Intervenor-Defendants-Appellants-Cross-Appellees,
Western Palm Beach County Farm Bureau, Inc., Florida Sugar
Cane League, Inc., Roth Farms, Inc. and K.W.B.
Farms,
Intervenor-Defendants-
Counterclaim,
Plaintiffs-
Appellants-
Cross-Appellees,
Florida Fruit & Vegetable Association, Intervenor-Defendant,
South Bay Growers, Inc., Movant,
Colonel Bruce A. Malson, et al., Counterclaim Defendants.
UNITED STATES of America, Plaintiff-Counterclaim Defendant-Appellant,
Florida Keys Citizen Coalition, Intervenor-Plaintiff-Appellee,
Florida Audubon Society, et al., Intervenor-Plaintiffs,
v.
SOUTH FLORIDA WATER MANAGEMENT DIVISION, Florida Department
of Environmental Regulation,
Defendants-Counterclaim Plaintiffs-Appellees,
Tilford Creel, et al., Defendants,
City of Belle Glade, City of Clewiston,
Intervenor-Defendants-Appellants,
West Palm Beach County Farm, Florida Sugar Cane League,
Inc., Roth Farms, Inc. and K.W.B. Farms,
Intervenor-Defendants-Counterclaim,
Plaintiffs-Appellants,
Florida Fruit & Vegetable Association, Intervenor-Defendant,
South Bay Growers, Inc., Movant,
Colonel Bruce A. Malson, et al., Counterclaim Defendants.
Nos. 92-4314, 92-4831.
United States Court of Appeals,
Eleventh Circuit.
Aug. 23, 1994.

Page 1566

Robert P. Smith, Tallahassee, FL, for West Palm Beach, County Farm Bureau, Roth Farms, K.W.B. Farms.

Robert H. Blank, Karl E. Hall, Jr., Miami, FL, for City of Clewiston, City of Belle Glade.

William L. Earl, Osmer D. Batcheller, Judith S. Kavanugh, Miami, FL, for Florida Sugar Cane League.

David C. Shilton, Ellen J. Durkee, Appellate Section, Environment Div., Dept. of Justice, Washington, DC, Susan Hill Ponzoli, Miami, FL, for the U.S.

Robert G. Dreher, Sierra Club Legal Defense Fund, Washington, DC, David Guest, Sierra Club Legal Defense, Tallahassee, for FL, FAS, SC, NWF, FWF, DOW, ASOTE, WS, NPACA, TCEC, FKCC, EDF.

David A. Crowley, Robert G. Gough, Dept. of Env., Tallahassee, FL, for Florida Dept. of Environmental Regulation.

Paul L. Nettleton, R. Benjamine Reid, Miami, FL, Abner T. Cooper, West Palm Beach, FL, for South Florida Water Management.

Eric C. Christu, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., West Palm Beach, FL, Jerry C. Straus, Hobbs, Straus, Dean & Wilder, Washington, DC, for Miccosuskee Tribe.

Thomas W. Reese, St. Petersburg, FL, for Florida Keys Citizens Coalition, Inc.

Robert P. Smith, Tallahassee, FL, for WPB County Farm Bureau, Roth Farms and K.W.B. Farms.

Appeals from the United States District Court for the Southern District of Florida.

Before BLACK, Circuit Judge, DYER, Senior Circuit Judge, and ALAIMO *, Senior District Judge.

DYER, Senior Circuit Judge:

The Intervenor defendants appeal an interlocutory order granting an injunction entered by the district court in its Order Entering Settlement Agreement as Consent Decree. They assert lack of jurisdiction and a host of other issues that exceed the scope of their limited right to intervene granted by the prior panel in this case. On the cross-appeal of the United States, the government appeals the judgment of the district court that an impact statement pursuant to the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. Sec. 4321 et seq. (1970), is required. We affirm in part, reverse in part, and remand for further proceedings.

I. JURISDICTION

Standard of Review

The question of jurisdiction requires this court to satisfy itself not only of its own jurisdiction but also of the jurisdiction of the district court. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541-42, 106 S.Ct. 1326, 1331-32, 89 L.Ed.2d 501 (1986).

Basis of Appellate Jurisdiction

This court has jurisdiction over this appeal pursuant to 28 U.S.C.A. Sec. 1292(a)(1) (West Supp.1992), which grants circuit courts jurisdiction

Page 1567

over interlocutory orders of district courts in granting, continuing, modifying, refusing or dissolving injunctions. Although interlocutory in nature, the Consent Decree is effectively dispositive of all claims below.

Order on Appeal

The Consent Decree approves a Settlement Agreement executed by two State agencies, the South Florida Water Management District ("SFWMD"), the Florida Department of Environmental Regulation ("DER"), and the United States. The Intervenor defendants, City of Belle Glade, City of Clewiston, Western Palm Beach County Farm Bureau, Inc., Florida Sugar Cane League, Inc., Roth Farms, Inc., KWB Farms and the Florida Fruit & Vegetable Association (hereinafter collectively referred to as the "Intervenors") are not parties to the Settlement Agreement.

Intervening Legislative Act

During the pendency of this appeal, the Everglades Forever Act, chapter 94-115, to be codified at section 373.4592, Florida Statutes (Supp.1994), was passed by the Florida legislature on April 15, 1994, and became effective when signed by the Governor on May 3, 1994.

Issues Presented

The issue on the Intervenors' appeal is limited to the question of whether the district court or this court has Article III case or controversy jurisdiction of the United States' claim of rights and remedy pursuant to 28 U.S.C. Secs. 1331 and 1345. The Intervenors have raised issues on this appeal that exceed the scope of their limited right to intervene granted by this Court in United States v. S. Fla. Water Management Dist., 922 F.2d 704, 706 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 407, 116 L.Ed.2d 356 (1991). In both their briefs and at oral argument the Intervenors evidenced no appreciation for the limited extent of their participation in this litigation. The Intervenors' sole right is to raise jurisdiction as an issue with respect to Count 1 of the complaint. 1 This Court previously held that the Intervenors had the right to intervene "solely by reason of the issues raised in Count 1" of the complaint. Id. The grant of intervention was premised on the Court's concern that the United States sought in Count 1 to have the district court translate narrative water quality standards into numeric limits. Id. at ---- - ----, 112 S.Ct. at 708-09. In the initial appeal, it was not even clear that the United States' complaint sought to have the district court set a numeric standard. See id. at ---- n. 6, 112 S.Ct. at 708 n. 6 ("In fairness to the District Court, we note that the United States claimed in that forum that it was not seeking a numeric standard" (emphasis added)). Thus, our prior opinion clearly limits the Intervenors' right to intervene solely to the extent that the district court's resolution of this case might actually set a numeric standard. But the district court did not set such limits in resolving the case. Instead, the United States and the State defendants settled their differences by agreeing to return the setting of numeric limits to the State administrative forum.

By arguing the many issues in which the Intervenors lack standing, they have required this Court to expend much time and effort which was entirely unnecessary.

The Everglades and the Refuge

The Everglades is a limestone depression filled with grass and thick organic deposits from a broad southbound sheet of water. There are some 14 miles of canals and levees, dikes, pumps and water storage areas. This water system artificially transports water throughout the Kissimmee, Okeechobee and Everglades basins. Vast quantities of waters

Page 1568

are delivered to the Loxahatchee National Wildlife Refuge and the Everglades National Park. One of the largest consumers of water south of Lake Okeechobee is the agri-industry located within a 700,000 acre basin called the Everglades Agricultural Area ("EAA"). The EAA lies south of Lake Okeechobee between the lake and the water conservation area. The Park provides sanctuary to rare, threatened and endangered species of wildlife. The Park has diverse and complex ecosystems that require non-polluted, low nutrient waters for their ecological integrity.

The Refuge is a remnant of the original Northern Everglades, and has the same diversity of marsh habitat. It is also a sanctuary to unique wildlife species. Low nutrient waters are also required in the Refuge to preserve its native habitat.

Large quantities of polluted waters have resulted in the destruction of lower forms of aquatic life essential to the preservation of the sensitive ecosystems in the Park and Refuge.

Procedural History

Count 1 of the government's complaint alleges that both DER and SFWMD have failed to exercise their power and responsibilities and failed to enforce State water laws in (a) regulating polluted water from the EAA that contain harmful nutrients, (b) failing to prevent violations of State water quality standards for water entering the Park and Refuge, and (c) having deliberately and consistently diverted polluted waters into the Refuge.

Count 2 alleges that SFWMD has violated State statutory and common law by operating unpermitted structures.

Count 3 alleges that SFWMD breached a contract with the United States Corps of Engineers which sets forth water quality standards for deliveries to the Park to insure that surface waters are of sufficient purity to prevent ecological damage to the Park.

Count 4 alleges that SFWMD breached a 50-year contract with the United...

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28 practice notes
  • Florida Wildlife v. U.S. Army Corps of Engineers, No. 05-80339-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • September 30, 2005
    ...involvement in the project is sufficient to constitute a "major federal action." U.S. v. Southern Florida Water Management Dist. 28 F.3d 1563, 1572 (11th Cir.1994). In that case, however, the issue before the court was whether the state's restoration program was "federalized" under a settle......
  • Lakes Region Legal Defense Fund, Inc. v. Slater, No. C 97-4077-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • November 24, 1997
    ...that federal funds would be applied for, NEPA was not triggered). See also United States v. Southern Florida Water Mgmt. Dist., 28 F.3d 1563, 1573 (11th Cir.1994), cert. denied, 514 U.S. 1107, 115 S.Ct. 1956, 131 L.Ed.2d 848 (1995) (federal advice and technical consultation could not requir......
  • City of Crossgate v. U.S. Dep't of Veterans Affairs, Civil Action No. 3:18-cv-167-CHB
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • March 18, 2021
    ...the environment." United States v. S. Fla. Water Mgmt. Dist. , 847 F. Supp. 1567, 1580 (S.D. Fla. 1992) aff'd in part, rev'd in part , 28 F.3d 1563 (11th Cir. 1994) ; City of Oak Creek v. Milwaukee Metro. Sewerage Dist. , 576 F. Supp. 482, 490 (E.D. Wis. 1983) (explaining "[i]t is the [cons......
  • Peters v. Amoco Oil Co., No. Civ.A. 96-D-940-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • June 21, 1999
    ...sustaining, some direct injury' as a result of the challenged official conduct." United States v. Southern Fla. Water Management District, 28 F.3d 1563, 1571 (11th Cir.1994) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). It is well-settled that t......
  • Request a trial to view additional results
27 cases
  • Florida Wildlife v. U.S. Army Corps of Engineers, No. 05-80339-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • September 30, 2005
    ...involvement in the project is sufficient to constitute a "major federal action." U.S. v. Southern Florida Water Management Dist. 28 F.3d 1563, 1572 (11th Cir.1994). In that case, however, the issue before the court was whether the state's restoration program was "federalized" under a settle......
  • Lakes Region Legal Defense Fund, Inc. v. Slater, No. C 97-4077-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • November 24, 1997
    ...that federal funds would be applied for, NEPA was not triggered). See also United States v. Southern Florida Water Mgmt. Dist., 28 F.3d 1563, 1573 (11th Cir.1994), cert. denied, 514 U.S. 1107, 115 S.Ct. 1956, 131 L.Ed.2d 848 (1995) (federal advice and technical consultation could not requir......
  • City of Crossgate v. U.S. Dep't of Veterans Affairs, Civil Action No. 3:18-cv-167-CHB
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • March 18, 2021
    ...the environment." United States v. S. Fla. Water Mgmt. Dist. , 847 F. Supp. 1567, 1580 (S.D. Fla. 1992) aff'd in part, rev'd in part , 28 F.3d 1563 (11th Cir. 1994) ; City of Oak Creek v. Milwaukee Metro. Sewerage Dist. , 576 F. Supp. 482, 490 (E.D. Wis. 1983) (explaining "[i]t is the [cons......
  • Peters v. Amoco Oil Co., No. Civ.A. 96-D-940-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • June 21, 1999
    ...sustaining, some direct injury' as a result of the challenged official conduct." United States v. Southern Fla. Water Management District, 28 F.3d 1563, 1571 (11th Cir.1994) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). It is well-settled that t......
  • Request a trial to view additional results
1 books & journal articles
  • Interstate Water Pollution, Federal Common Law, and the Clean Water Act
    • United States
    • The Clean Water Act and the Constitution. Legal Structure and the Public's Right to a Clean and Healthy Environment Part I
    • April 20, 2009
    ...the Politics of Paradise 196-99 (2006). 102. Id . at 280-303. 103. See generally United States v. South Florida Water Management Dist., 28 F.3d 1563 (11th Cir. 1994) (deciding whether a federal case or controversy existed); United States v. South Florida Water Management Dist., 922 F.2d 704......

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