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____________________________
COMPLAINT
COMES NOW the Plaintiff, by and through undersigned
counsel, and for his
causes of action against the Defendants, alleges as
follows:
INTRODUCTION
- The Plaintiff Jesse Hardy ("Mr.
Hardy") owns and lives on 160 acres of land
in the Florida Everglades. His land is situated
within the northern part of a 55,247 acre
subdivision property was and continues to be
"homestead" property, known as the
Southern Golden Gate Estates ("SGGE").
Mr. Hardy's property was and continues to be
"homestead" property.
- The Florida Department of Environmental
Protection ("DEP"), South Florida Water
Management District ("SFWMD"), U.S. Army
Corps of Engineers ("COE") and U.S. Fish
and Wildlife Service ("FWS") have been
collaborating to complete a project to purchase or
condemn all land within the SGGE, and to restore
this land to "sheet flows" ("SGGE
Project"). The SGGE Project is one of many
projects which fall under the Comprehensive
Everglades Restoration Plan ("CERP").
There are many federal and state statutory and
regulatory requirements which must be met before
any CERP project, including the SGGE Project, can
be implemented. The Defendants have not yet
complied with these state and federal laws with
respect to the SGGE Project. The Defendants have
nevertheless decided to proceed with
implementation of the SGGE Project, including
condemnation of Mr. Hardy's land.
- Had the Defendants complied with all applicable
law prior to implementing the SGGE Project, the
Defendants would have discovered that condemnation
of Mr. Hardy's property is not necessary to
complete the SGGE Project. Mr. Hardy now seeks to
enjoin the Defendants reckless disregard of the
law, and in the process save the home he loves.
PARTIES
- Mr. Hardy is a resident of the State of Florida.
Mr. Hardy is fee owner of 160 acres of land in
fee, described as the Northwest One-Quarter of
Section 16, Township 50 South, Range 28 East,
Collier County, Florida. Mr. Hardy has homestead
rights on his land, where he has lived for 30
years.
- Defendant Donald Rumsfeld is the Secretary of
the United States Department of Defense. As
Secretary, Mr. Rumsfeld is responsible for the
direction and supervision of all operations and
activities of the Department, including those of
the COE.
- Defendant Les Brownlee is the Acting Secretary
of the United States Army. As Acting Secretary,
Mr. Brownlee is responsible for the direction and
supervision of all operations and activities of
the Army, including those of the COE.
- Defendant John Paul Woodley, Jr. is the
Assistant Secretary of Civil Works, United States
Army. As Assistant Secretary, Mr. Woodley is
responsible for the direction and supervision of
all operations and activities in the Army's civil
works program, including programs for conservation
and development of the nation's water and wetland
resources, flood control, navigation, and shore
protection implemented by the COE.
- Defendant Carl Strock is the Commanding General
for the COE. As Commanding General, Mr. Strock is
responsible for the direction and supervision of
all operations and activities of the COE.
- Defendant Michael Walsh is the Division
Commander for the South Atlantic division of the
COE. As Division Commander, Mr. Walsh is
responsible for the direction and supervision of
all engineering, construction, real estate and
water resource development activities of the COE
in the Southeast United States.
- Defendant Robert Carpenter is the District
Commander of the COE, Jacksonville, Florida
district. As District Commander, Mr. Carpenter is
responsible for the direction and supervision of
all engineering, construction, real estate, and
water resources development activities of the COE
in Florida.
- Defendant Gale Norton is Secretary of the United
States Department of the Interior. As Secretary,
Ms. Norton is responsible for the direction and
supervision of all operations and activities of
the Department, including those of the FWS.
- Defendant Steven Williams is the Director of the
FWS, a federal agency under the direction and
supervision of the United States Department of the
Interior. As Director, Mr. Williams is responsible
for the direction and supervision of all
operations of the Service, including the
distribution of federal funds to the DEP for the
acquisition of certain lands within the State of
Florida.
- Defendant Colleen Castille is the Secretary of
the DEP in the state of Florida. As Secretary, Ms.
Castille is responsible for the direction and
supervision of the DEP, including oversight of
Florida state environmental regulation, the
acquisition and management of Florida state lands
for conservation purposes, the development and
regulation of Florida state water resources, and
the receipt and use of federal funds from the FWS
for the acquisition of certain lands within the
State of Florida. As Secretary, Ms. Castille is
also responsible for the direction and supervision
of the SFWMD.
- Defendant Henry Dean is Executive Director of
the SFWMD. As Executive Director, Mr. Dean is
responsible for the direction and supervision of
the SFWMD.
- Defendant Carol Wehle is the Assistant Executive
Director of the SFWMD. As Assistant Executive
Director, Ms. Wehle is responsible for the
direction and supervision of the SFWMD.
- Defendant Chip Merriam is the Deputy Executive
Director, water resources, of the SFWMD. As Deputy
Executive Director, Mr. Merriam is responsible for
overseeing environmental restoration and watershed
management projects for the SFWMD.
- Defendant Pamela MacKie is the Deputy Executive
Director, land and west coast resources, of the
SFWMD. As Deputy Executive Director, Ms. MacKie is
responsible for overseeing land acquisition and
management programs for the SFWMD.
- Defendant Clarence Tears is the Basin Director
for the Big Cypress Basin, SFWMD. As Basin
Director, Mr. Tears is responsible for
administration of SFWMD operations in the Big
Cypress Basin, including those lands surrounding
the land on which Mr. Hardy resides.
JURISDICTION AND VENUE
- Jurisdiction in this Court is based upon 28
U.S.C. � 1331, 2201, 2202; 5 U.S.C. �� 701 et
seq.; and 16 U.S.C. � 1540, in that this
action is civil in nature, alleges ongoing
violations of federal law and the United States
Constitution, and requests relief in the forms of
declaratory judgment and injunctive relief.
- Mr. Hardy alleges that Defendants Norton and
Williams, acting in their official capacities, and
the employees, officers and agents of the United
States Department of the Interior and the FWS,
violated Section 7 of the Endangered Species Act
("ESA"), 16 U.S.C. � 1536, the
Administrative Procedure Act ("APA"), 5
U.S.C. �� 551 et seq., the National
Environmental Policy Act ("NEPA"), 32
U.S.C. �� 4331 et seq., the Water
Resources Development Act of 1996 ("WRDA of
1996"), Pub. L. No. 104-303, 110 Stat. 3658
at � 528, and the Water Resources Development Act
of 2000 ("WRDA of 2000"), Pub. L. No.
106-541, 114 Stat. 2572 at � 601, in the course
of performing their duties under these laws.
- Mr. Hardy alleges that Defendants Rumsfeld,
Brownlee, Woodley, Strock, Walsh and Carpenter,
acting in their official capacities, and the
employees, officers and agents of the United
States Department of Defense and the COE, violated
the APA, the NEPA, the WRDA of 1996, and the WRDA
of 2000, in the course of performing their duties
under these laws.
- Mr. Hardy alleges that Defendants Castille,
Dean, Wehle, Merriam, MacKie and Tears, acting in
their official capacities, and the employees,
officers and agents of the DEP and the SFWMD,
violated the APA, the NEPA, the WRDA of 1996, the
WRDA of 2000, the Fifth Amendment of the United
States Constitution, and various applicable
Florida State laws, in the course of performing
their duties under these laws, and that these
violations are prospective and ongoing.
- Jurisdiction over Defendants Castille, Dean,
Wehle, Merriam, MacKie and Tears is proper to
enjoin prospective and ongoing violations of
federal statutory and constitutional law.
- Jurisdiction over Defendants Castille, Dean,
Wehle, Merriam, MacKie and Tears is also proper to
enjoin prospective and ongoing violations of
Florida state statutory and constitutional law, in
that the State of Florida has waived its sovereign
immunity under the Eleventh Amendment of the
United States Constitution when it agreed to
participate and has participated in certain
federally funded everglades restoration programs
under the WRDA of 1996, the WRDA of 2000 and the
Federal Agriculture Improvement and Reform Act of
1996, Pub. L. No 104-127, � 390, 110 Stat. 888
(1996).
- Venue is proper in the United States District
Court for the District of Florida, based upon 28
U.S.C. � 1391(e), in that the property which is
the subject of this complaint is within the Middle
District of the State of Florida.
APPLICABLE LAW
- AUTHORITY TO IMPLEMENT CERP PROJECTS
- Federal Law
- The WRDA of 1996 authorized the COE, in
cooperation with the SWFMD, to develop the
CERP. Water Resources Development Act of 1996,
Pub. L. No. 104-303, 110 Stat. 3658 at � 528. The
CERP is supposed to be "a proposed
comprehensive plan for the purpose of restoring,
preserving, and protecting the South Florida
ecosystem." Id. at � 528(b)(1)(A)(I).
Importantly, the Act did not authorize implementation
the CERP, but instead required that the CERP be
developed as a "proposed" plan, which
must be submitted to Congress for approval prior
to implementation. Id. at � 528(b)(1)(B)(ii).
- Four years later, with passage of the Water
Resources Development Act of 2000, Congress
approved the then complete CERP, instructing the
COE to "carry out the projects included in
the Plan . . . ." Water Resources Development
Act of 2000, Pub. L. No. 106-541, 114 Stat. 2572
at � 601(b)(2)(A)(I).
- However, the WRDA of 2000 also placed a number
of restrictions and conditions on the COE and the
State of Florida which must be met prior to actual
implementation of any individual project included
within the CERP.
- For example by law, all CERP projects must be
implemented in partnership and coordination with
the State of Florida. Id. at �� 601(e),
601(h). Specifically, the State is responsible for
50% of the cost of each CERP project, and is
responsible "for all land, easements,
rights-of-way, and relocations necessary" to
implement each CERP project. Id. at ��
601(e)(1), 601(e)(2)(A). Before a project can be
implemented, the COE must enter into a binding
"project cooperation agreement"
regarding implementation of the project with the
State of Florida, and the President of the United
States must enter into a binding agreement with
the Florida State Governor, agreeing that the
State will ensure that all water made available by
a particular CERP project will be dedicated to
"restoration of the natural system." Id.
at �� 601(h)(4)(B)(I), 601(h)(2)(A).
- However, before these things can occur, the COE,
in partnership and cooperation with the State,
must complete a Project Implementation Report
("PIR"). Id. at �� 601(f)(1),
601(h)(4)(A); 601(b)(2)(A)(ii). The PIR must
explain how the proposed CERP project is
consistent with the CERP, applicable law and
regulation, describe the quantity, timing and
distribution of water made available by the
proposed project, explain how the proposed project
would comply with applicable water quality
standards, explain how the proposed project is
based on the best available science, and include
an analysis concerning the cost effectiveness and
engineering feasibility of the proposed project. Id.
The PIR must also fully comply with the NEPA. Id.
- Substantively, each CERP project "must be
justified by the environmental benefits" and
must to be deemed "cost effective." Id.
at � 601(f)(2)(A). To "ensure against cost
overruns," the maximum cost of each CERP
project cannot exceed that set forth within the
PIR. Id. at � 601(b)(2)(E); 33 U.S.C. �
2280. In addition, the project must protect
existing water quality standards, cannot eliminate
or transfer existing legal sources of water, and
cannot reduce existing flood control protections. Id.
at �� 601(b)(2)(A)(ii), 601(h)(5).
- Once the PIR is completed for a proposed CERP
project and approved by the COE, it must be
submitted to Congress for approval. Id. at
�� 601(b)(2)(D). No appropriation can be made by
Congress to construct any CERP project unless and
until Congress approves the PIR. Id.
- State Law
- "The [Florida State] Legislature intends to
establish a full and equal partnership between the
state and federal governments for the
implementation of the comprehensive plan [CERP]."
FLA. STAT. ANN. � 373.470(3)(a). "The
comprehensive plan [CERP] shall be used as a guide
and framework for a continuing planning process to
. . . [e]nsure that [CERP] project components will
be implemented . . . ." Id. at �
373.470(3)(b.2).
- The State designated the SFWMD as the State
sponsor and partner with the COE in implementation
of CERP projects. Id. at � 373.470(2)(c).
"Prior to executing a project cooperation
agreement with the Corps [COE] for the
construction of a project component, the district
[SFWMD], in cooperation with the Corps [COE],
shall complete a project implementation report [PIR]
to address the project component's economic and
environmental benefits, engineering feasibility,
and other factors provided in s. 373.1501
sufficient to allow the district to obtain
approval under s. 373.026." Id. at �
373.470(3)(c).
- The "other factors" noted by �
373.470(3)(c) and found in � 373.1501, which the
SFWMD must include in the PIR, include the impact
of the proposed CERP project on water supply,
water quality, flood control, threatened and
endangered species, and other environmental
impacts. Id. at � 373.1501(5)(a). In
addition, the SFWMD must ensure that the proposed
project is practically feasible, cost effective,
ensures existing water rights and flood control,
and is consistent with all applicable law and
regulation, including all federal law and
regulation. Id. at � 373.1501(5)(b-d). To
ensure compliance with all applicable federal law,
the SFWMD must request that all federal agencies
with relevant jurisdiction provide the SFWMD with
the information necessary to ensure that the CERP
project component is in compliance with all
applicable federal law. Id.
- The "approval" noted by �
373.470(3)(c) and found in � 373.026 is that of
the DEP. Specifically, the DEP, based on the
proposed CERP project PIR, must either approve or
disapprove of the proposed project. FLA. STAT.
ANN. at � 373.026(8). Any such approval or
disapproval is "subject to confirmation by
the [Florida State] Legislature," and may be
limited as "otherwise provided by state or
federal law . . . ." Id. "Before
any [CERP] project component is submitted to
Congress for authorization or receives an
appropriation of state funds, the department [DEP]
must approve, or approve with amendments, each
project component within 60 days following formal
submittal of the project component to the
department. Department approval shall be based
upon a determination of the South Florida Water
Management District's compliance with s.
373.1501(5)." Id.
- In addition to all of these requirements, prior
to implementing a proposed CERP project, the SFWMD
must obtain from the DEP, or the DEP must obtain
from the SFWMD, a project implementation permit. Id.
at � 373.1502(3)(b). These permits must take into
account "all other statutory
responsibilities" for implementation of a
proposed CERP project. Id. at �
373.1502(1)(b). The permit application "must
provide reasonable assurances" that the
proposed CERP project will comply with the PIR,
that state water quality standards are met, and
that all impacts to wetlands and threatened or
endangered species will be avoided, minimized or
mitigated. Id. "Under no circumstances
shall the project component cause or contribute to
violation of state water quality standards." Id.
- State and Federal Funding of
Everglades Restoration
- Section 390 of the 1996 Farm Bill allows the FWS
to distribute money for "restoration
activities in the Everglades ecosystem in South
Florida, which shall include the acquisition of
real property and interests in real property
located within the Everglades ecosystem . . .
." Federal Agriculture Improvement and Reform
Act of 1996, Pub. L. No 104-127, � 390, 110 Stat.
888 (1996). Section 390 does not abrogate or
override any other federal law applicable to the
distribution of federal funding which may impact
the environment. Id.
- Regarding funding of proposed CERP projects,
Congress has unambiguously stated "FUNDING
CONTINGENT ON APPROVAL.-- No appropriation shall
be made to construct any project under this
paragraph if the project implementation report for
the project has not been approved by resolutions
adopted by the Committee on Transportation and
Infrastructure of the House of Representatives and
the Committee on Environment and Public Works of
the Senate." Water Resources Development Act
of 2000, Pub. L. No. 106-541, 114 Stat. 2572 at �
601(b)(2)(D)(iii).
- Likewise, regarding funding of proposed CERP
projects, Florida law prohibits either State
appropriation of funds or the submission of a
proposed project to Congress for federal approval
and appropriation prior to the DEP and the Florida
Legislature's approval of the project, based upon
the completed PIR. FLA. STAT. ANN. at �
373.026(8).
- The Florida Legislature created the "Save
Our Everglades" trust fund to implement the
CERP. Id. at � 373.472(1) "The trust
fund shall be expended to implement the
comprehensive plan [CERP] . . . ." Id.
- All federal, state and local funds received by
the state to implement the CERP must be deposited
into the trust fund. Id.
- National Environmental Policy Act
- The NEPA requires that for every major federal
action that significantly affects the quality of
human environment, the federal government shall
prepare an environmental impact statement ("EIS").
42 U.S.C. �4332(c)(I)-(v); 40 C.F.R. �1508.11.
- The purpose of an EIS is to provide a "full
and fair discussion" of significant potential
environmental impacts of the proposed action, in
order to facilitate informed decision making. See
Catron County Board of Commissioners, New
Mexico v. United States Fish and Wildlife Service,
75 F.3d 1429, 1434 (10th Cir.1996); Vermont
Yankee Nuclear Power Corp. v. N.R.D.C. Inc.,
435 U.S. 519, 558 (1978) 40 C.F.R. �1502.1.
- Although the requirements of NEPA are procedural
in nature, agencies are required to fully and
strictly comply with them and a violation of the
requirements can constitute a tangible
injury-in-fact. Id. A NEPA analysis must
include all information which is relevant and
essential to a reasoned choice among alternatives,
including the "no action" alternative. Robertson
v. Methow Valley Citizens, 490 U.S. 332
(1989); 40 C.F.R. �1502.14.
- An EIS must include (a) the environmental impact
of the proposed action; (b) any adverse
environmental effects which cannot be avoided if
the proposed action is implemented; (c)
alternatives to the proposed action; (d) the
relationship between local short term uses and the
maintenance of long term productivity; and (e) any
irreversible and irretrievable commitment of
resources should the proposed action be
implemented. 42 U.S.C. � 4332 (c)(i)-(v).
- The regulations implementing NEPA mandate that
federal agencies cooperate with state and local
agencies, and must discuss any inconsistency of a
proposed action with any approved State or local
plan and laws. 40 C.F.R. � 1506.2.
- For an agency to justify its failure to prepare
an EIS, it must prepare an environmental
assessment ("EA") and issue a finding of
no significant impact which explain why the
proposed action is not a major federal action
which will significantly affect the environment.
40 C.F.R. �� 1501.4, 1508.9, 1508.13.
- Endangered Species Act
- Section 7 of the ESA provides that each federal
agency, including the FWS and COE, must "in
consultation with the assistance of the Secretary
[of the Interior], insure that any action
authorized, funded, or carried out by such agency
. . . is not likely to jeopardize the continued
existence of any endangered species or threatened
species or result in the destruction or adverse
modification of habitat of such species which is
determined by the secretary . . . to be critical .
. . ." 16 U.S.C. � 1536(a)(2). "In
fulfilling the requirements of this paragraph,
each agency shall use the best scientific and
commercial data available." Id.
- If an agency determines that a proposed action
may adversely affect a listed species or critical
habitat, it must initiate a consultation process
with the FWS. 50 C.F.R. � 402.12. The first step
in this process is to establish a list of
threatened or endangered species and identify
critical habitat which may be found in the area
affected by the proposed action. Id. at �
402.12(c-d). If the FWS determines that no such
species or habitat exists, then the consultation
is complete. Otherwise, the FWS must approve the
list. Once the list is approved, the acting agency
must prepare a "Biological Assessment"
("BA"). Id. The contents of the
BA are at the discretion of the agency, but must
evaluate the potential effects of the action on
the listed species and habitat and determine
whether any such species or habitat are likely to
be adversely affected by the proposed action. Id.
at � 402.12(a, f). In doing so, the agency must
use the best available scientific evidence. Id.
at � 402.14(d); 16 U.S.C. �1536(a)(2). The
agency must then submit the BA to the FWS. The FWS
will then use the BA to determine whether
"formal" consultation is necessary. The
acting agency may also request formal consultation
at the same time it submits the BA. 50 C.F.R. �
402.12(j-k).
- "Formal" consultation with the FWS is
initiated by written request from the acting
agency. Id. at � 402.14. During formal
consultation, the FWS will use information
provided by the agency, including the BA, to
formally review and evaluate the potential affects
of the proposed action on the listed species or
critical habitat, and to report these findings in
a "Biological Opinion" ("BO").
Unless extended, the FWS must conclude the formal
consultation process within 90 days, and must
issue the BO within 45 days after that. Id.
at � 402.14(e); 16 U.S.C. � 1536(b)(1)(A).
- If the BO concludes that the proposed agency
action will jeopardize the continued existence of
any listed species or destroy or adversely modify
critical habitat ("Jeopardy Opinion"),
it must so state and provide any reasonable and
prudent alternatives which would avoid this
consequence. 16 U.S.C. � 1536(b)(3)(A); 50 C.F.R.
� 402.14(h). If the BO contains a Jeopardy
Opinion with no reasonable and prudent
alternatives, the acting agency cannot lawfully
proceed with the proposed action. 16 U.S.C. �
1536(a)(2). If the BO does not include a Jeopardy
Opinion, or if such can be avoided by reasonable
and prudent measures, then the BO must also
include an "Incidental Take Statement"
("ITS") 16 U.S.C. � 1536(b)(4); 50
C.F.R. � 402.14(I). The ITS describes the amount
or extent of potential "take" of listed
species which will occur from the proposed action,
the reasonable and prudent measures which will
help avoid this result, and the terms and
conditions which the agency must follow to be in
compliance with the ESA. Id.
- Administrative Procedure Act
- The APA guides judicial review of agency
actions. Upon reviewing an agency action, a court
must "hold unlawful and set aside agency
action, findings, and conclusions found to be . .
. arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with the law . . .
." 5 U.S.C. � 706(2)(A). "In making the
foregoing determinations, the court shall review
the whole record or those parts of it cited by a
party . . . ." 5 U.S.C. � 706(2).
- "The duty of a court reviewing agency
action under the "arbitrary and
capricious" standard is to ascertain whether
the agency examined the relevant data and
articulated a rational connection between the
facts found and the decision made." Olenhouse
v. Commodity Credit Corporation, 42 F.3d 1560,
1574 (10th Cir. 1994). In reviewing the agency's
explanation, the reviewing court must determine
whether the agency considered all relevant factors
and whether there has been a clear error of
judgment. Id.
- Agency actions will be set aside if the agency
"entirely failed to consider an important
aspect of the problem" or if the decision
"runs counter to the evidence before the
agency." Id., quoting Motor Vehicle
Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463
U.S. 29, 43 (1983). Furthermore, agency action
must be supported by "substantial
evidence." Olenhouse at 1575; 5 U.S.C.
� 706(2)(E).
- Thus, an agency must have taken a "hard
look" at the issues, articulated and
considered all relevant data, and engaged in
genuine, "reasoned decision-making." Greater
Boston Television Corp., et al. v. Federal
Communications Commission, 444 F.2d 841, 851
(D.C. Cir. 1970).
- Fifth Amendment of the United States
Constitution
- The Constitution prohibits state and federal
government from taking private property, unless it
is reasonably necessary for a public purpose. U.S.
CONST. amend. V, XIV; Kohl v. U.S. 91 U.S.
367, 373-374 (1875); Tennessee Valley Auth. v.
Welch, 327 U.S. 546, 551 (1946); Penn Cent.
Transp. Co. v. City of New York, 438 U.S. 104, 126
(1978).
- The Florida State Constitution also prohibits
the State of Florida from taking private property,
unless it is reasonably necessary for a public
purpose. FL Const. art. X, � 6; Canal
Authority v. Miller, 243 So.2d 131, 134 (Fla.
1970); Katz v. Dade County, 367 So.2d 277,
279 (Fla. App. 1979); Knappen v. Division of
Admin., State Dept. of Transp., 352 So.2d 885,
886 (Fla. 2d DCA 1977).
- Eleventh Amendment of the United
States Constitution
- As a general rule, a citizen may not sue a state
in federal court. U.S. CONST. amend. XI.
- However, state officials may be sued in federal
court to enjoin ongoing and future violations of
federal statutory and constitutional law. Ex
Parte Young, 209 U.S. 123, 159-160 (1908); Loggerhead
Turtle v. County Council of Volusia County,
Florida, 92 F.Supp.2d 1296, 1303 (n. 5)(M.D.
FL 2000); Michigan Bell Telephone Co. v. Climax
Telephone Co., 202 F.3d 862, 867-868 (6th Cir.
2000).
- A state may also waive its sovereign immunity by
consenting to be sued in federal court. College
Sav. Band v. Florida Prepaid Postsecondary Educ.
Expense Bd., 522 U.S. 666 (1999); Petty v.
Tennessee-Missouri Bridge Commission, 359 U.S.
275 (1959). A state's waiver of immunity may be
inferred by the state's conduct. Garrity v.
Sununu, 752 F.2d 727, 738 (1st Cir. 1984).
- A state may consent to suit in federal court by
virtue of the state's participation in federal
programs, or receipt of federal funding. Verizon
Maryland Inc. v. Public Service Commission of
Maryland, 535 U.S. 635 (2002); MCI
Telecommunications Corp. v. Public Service Comm.
of Utah, 216 F.3d 929 (10th Cir. 2000).
FACTS COMMON TO ALL CLAIMS
FOR RELIEF
- MR. HARDY AND HIS HOMESTEAD
- Mr. Hardy is a honorably discharged disabled
United States veteran. After being discharged, Mr.
Hardy purchased 160 acres of homesteaded land,
described as the Northwest One-Quarter of Section
16, Township 50 South, Range 28 East, Collier
County, Florida. Mr. Hardy has lived on his
homestead for over 30 years.
- Mr. Hardy's land lies in the north-central
portion of the SGGE. The SGGE is a 55,247 acre
platted subdivision. The SGGE was never developed,
and is currently heavily vegetated and wild.
- Mr. Hardy loves the rural and wild nature of his
land, and cares about protecting the fish and
wildlife habitat on his land, for his continued
use and enjoyment and for the use and enjoyment of
his heirs.
- Mr. Hardy's dream, which he is currently
implementing, is to own and operate a number of
fish ponds on his land which people may pay to
catch fish from, and from which Mr. Hardy can
derive a living. Mr. Hardy is currently deriving
income from his property by selling the limestone
gravel which is removed from his land in the
course of building his fish ponds. Mr. Hardy
currently has one fish pond stocked with fish. Mr.
Hardy cares about protecting the quality of the
groundwater on his land, both for his domestic use
and for use in his fish ponds.
- Mr. Hardy wishes to live on his property for the
rest of his life, and to pass his property on to
his heirs for their use and enjoyment.
- THE SOUTHERN GOLDEN GATE ESTATES PROJECT
- When the SGGE was created, with Florida State
and county approval, several canals were dug to
help drain the land, and roads were built
throughout the SGGE. Some scientists believe that
these canals and roads have changed the original
character of the land from being uniformly wetted
with "sheet flows" for much of the year,
to being mostly dry, and that this change in
hydrology has changed the character of the plant
and animal communities found within the SGGE.
- For at least eight years now, the State of
Florida, the FWS and the COE have been
conceptually interested in "restoring"
the SGGE to wetland conditions believed by some
scientists to be found prior to the settlement of
Florida. Specifically, the Defendants have been
and continue to be interested in purchasing the
land within the SGGE, tearing out the roads,
plugging the canals, and distributing water
flowing in the canals from the north into spreader
canals which spread out and distribute the water
south (SGGE Project). With these actions, the
Defendants hope to restore "sheet flows"
to much of the SGGE, and thereby hope to restore
the original plant and animal communities believed
by some scientists to be found therein.
- IMPLEMENTATION OF THE SGGE PROJECT
- The WRDA of 1996 authorized the COE to develop
CERP. Since then, the COE, in partnership with the
FWS, SFWMD, and DEP, have included the SGGE
Project within the CERP.
- Despite the clear Congressional mandates of the
WRDA of 1996 not to implement CERP projects prior
to Congressional approval, the Defendants began to
immediately implement the SGGE Project.
- Specifically, the DEP and SFWMD began acquiring
lands, through so-called "voluntary"
purchases and condemnation, for the purpose of
implementing the SGGE Project. By 1997, the DEP
had acquired approximately 31% of the SGGE.
- The COE and FWS began assisting in the land
acquisition process. By 1999, the DEP had received
grants totaling at least $38,000,000 from the FWS,
approved by the COE, which the DEP in turn was to
use to acquire property for the SGGE Project. The
money was earmarked for the everglades restoration
process by Congress via the Federal Agriculture
Improvement and Reform Act of 1996 ("1996
Farm Bill").
- As stated, the 1996 Farm Bill allowed the FWS to
distribute money for everglades restoration,
including property acquisition. However, the 1996
Farm Bill did not abrogate the FWS's
responsibility to comply with all applicable
federal law in the course of distributing any such
money, including the ESA and the NEPA, nor did it
abrogate the Congressional mandates found within
the WRDA of 1996.
- Despite applicable law requiring such, the FWS
did not then, nor has it ever, examined the
impacts to the natural and human environment or
threatened or endangered species when it granted
to the DEP money for the acquisition of land for
the SGGE Project, nor did the FWS submit the SGGE
Project to Congress for approval prior to funding
the SGGE Project.
- The SGGE Project will have many impacts to the
natural and human environment and to threatened or
endangered species. For example, restoring sheet
flows to the SGGE may increase water pollution by
flushing harmful or deadly agricultural chemicals
from fields which were previously farmed.
- Some of these adverse impacts may be realized by
merely acquiring land for the SGGE Project, prior
to actually restoring sheet flows to the land. For
instance, the acquisition of tens of thousands of
acres of land, without an accompanying change in
hydrology and without active management, could
increase the proliferation of exotic and noxious
species of plants which already are harmful to
native Florida ecosystems.
- Despite the many potential impacts associated
with implementing the SGGE Project, the FWS and
COE failed to prepare an environmental impact
statement, consult regarding the potential for
impacts to threatened or endangered species, or
submit the SGGE Project to Congress for approval
prior to funding implementation of the SGGE
Project. The FWS and COE did not comply with the
ESA, NEPA, or the WRDA of 1996 prior to funding
implementation of the SGGE Project.
- From 1999 to the present, the DEP has been using
the money provided by the FWS to acquire SGGE
Project lands. To date, the DEP has acquired
nearly 98% of all lands within the SGGE. Without
the federal money, the DEP would have been unable
to acquire the SGGE Project lands. As stated by
the COE:
Without . . . receipt by FDEP of Federal Farm
Bill funds, land acquisition by FDEP from the
end of 1997 through 2060 would have continued
only from willing sellers and at a pace so that
by 2060 only an estimated 60% of the area would
have been in public ownership. Without federal
participation it is questionable whether the
state would have been able to acquire land at
anywhere near the current existing rate.
See Draft Integrated Project
Implementation Report and Environmental Impact
Statement, Southern Golden Gate Estates Ecosystem
Restoration, April 2004 ("PIR") at 4-5.
The COE has approved of these ongoing state and
federal actions.
- With passage of the WRDA of 2000, Congress
approved the then complete CERP, and authorized
the COE to begin planning implementation of
projects included in the CERP. The CERP included a
short reference to the SGGE Project:
9.1.9.1 Southern Golden Gate Estates
Restoration (OEP)
This feature includes a combination of
spreader channels, canal plugs, road removal and
pump stations in the Western Basin of the Big
Cypress, Collier County, south of I-75 and north
of U.S. 41 between the Belle Meade Area and the
Fakahatchee Strand State Preserve.
The purpose of this feature is to restore and
enhance the wetlands in Golden Gate Estates and
in the adjacent public lands by reducing
over-drainage. Implementation of the restoration
plan would also improve the water quality of
coastal estuaries by moderating the large
salinity fluctuations caused by freshwater point
discharge in the Fahka Union Canal. The Plan
would also aid in protecting the City of Naples
eastern Golden Gate wellfield by improving
groundwater recharge.
CERP Final Feasibility Report and PEIS at
9-26.
- While the CERP did mention the SGGE Project in
the above noted programmatic manner, it did not
give any specific analysis regarding the
environmental impacts of the SGGE Project, nor did
it comply with the NEPA. As admitted by the COE:
The SGGE project was first proposed in the
CERP Comprehensive Review Study Integrated
Feasibility report and Programmatic
Environmental Impact Statement. Due to the
conceptual nature of the CERP report and its
associated uncertainties, site-specific
documents such as this PIR/EIS are needed to
address problems and solutions at a level of
sufficient detail for the final decision making
and for full compliance with NEPA requirements.
PIR at 1-25.
- While the WRDA of 2000 authorized the COE to
begin planning implementation of CERP projects,
including the SGGE Project, the WRDA of 2000
specifically prohibited the COE, in partnership
with the SFWMD and DEP, from beginning actual
on-the-ground implementation of the Project unless
and until the COE first complies with the NEPA,
prepares a PIR, submits these documents to
Congress for approval, and actually receives
Congressional approval and funding for the
project.
- Florida State law also requires the SFWMD and
DEP to comply with these laws, and requires a
number of similar or identical requirements to be
met, prior to implementation of the SGGE Project.
- The COE, FWS, SFWMD and DEP have not yet
completed a PIR or NEPA document, have not
formally approved the SGGE Project, have not
consulted with the FWS regarding potential impacts
to threatened or endangered species, have not
complied with Florida law, and have not submitted
the SGGE project to Congress or the Florida
Legislature for approval. Therefore, the SGGE
Project is not a legally approved and authorized
project which may be implemented by the FWS, COE,
SFWMD and DEP.
- Despite these Congressional limitations and
Florida State law, the Defendants continue to
aggressively implement the SGGE Project prior to
complying with the required environmental laws. In
addition to the DEP's ongoing land acquisition
program, funded by the FWS and approved by the
COE, the SFWMD has already begun on-the-ground
construction activities, plugging one of the four
canals scheduled to be plugged by the SGGE
Project. The COE and DEP have approved the SFWMD's
construction activities implementing the SGGE
Project. The Defendant's ongoing implementation of
the SGGE Project is a direct violation of state
and federal law.
- CONDEMNATION OF MR. HARDY'S LAND
- As part of its ongoing SGGE Project land
acquisition program, the DEP has now filed a
petition to condemn Mr. Hardy's land for the SGGE
Project. At the time this federal case was filed,
the DEP's petition had not been served on Mr.
Hardy.
- Mr. Hardy is not conceptually opposed to the
SGGE Project. However, Mr. Hardy is opposed to the
COE, FWS, SFWMD, and DEP implementing the SGGE
Project prior to compliance with all applicable
state and federal law, and submission to Congress
for approval and funding. The SGGE Project, which
has never and may never be approved by
Congress, and which may have significant
environmental impacts or impacts to threatened or
endangered species which have never been
assessed, is already over one-half complete.
- Mr. Hardy is also opposed to the condemnation of
land for a public project which has never and
may never be approved.
- Moreover, even if the SGGE Project were
approved, it is not necessary to acquire Mr.
Hardy's land for the SGGE Project as it is
currently being implemented. As proposed, the SGGE
Project restores sheet flows south of Mr.
Hardy's property. Any compromise in the flood
protection of Mr. Hardy's land which may be caused
by the SGGE Project can easily be mitigated at a
cost far less than actually condemning the land.
Thus, the DEP's condemnation action against Mr.
Hardy is not necessary to implement the project.
The DEP's condemnation of Mr. Hardy's land in
these circumstances violates federal and state
statutory and constitutional law.
CLAIMS FOR RELIEF
- CLAIMS AGAINST THE CORPS OF ENGINEERS
- Plaintiff reasserts and realleges the preceding
paragraphs as fully stated herein.
A. Facts
- The SGGE Project is a CERP project.
- The COE approved the 1998 and 1999 grants to the
DEP for implementation of the SGGE Project.
- The COE has completed a draft PIR for the SGGE
Project. In the draft PIR, the COE approves of the
DEP and SFWMD's past and present implementation of
the SGGE Project.
- The COE's "baseline" or
"no-action" alternative, included in the
COE's draft PIR (for the purpose of NEPA and WRDA
of 2000 analysis), does not include the DEP and
SFWMD's purchase and condemnation of SGGE Project
lands. Rather, the COE's no-action alternative
falsely assumes that the DEP and SFWMD never
received federal funding to implement the SGGE
Project, assuming a full 40% residential
development of the SGGE by the year 2060. For the
purpose of environmental analysis, the COE assumed
that a full 40% development of the SGGE would
result in a near 100% destruction of the
everglades and associated wetlands in the area,
resulting in significant environmental impacts.
- In contrast, the COE's "preferred"
alternative to implement the SGGE Project,
includes the DEP and SFWMD's purchase and
condemnation of SGGE Project lands, and considers
these acquisitions to be part of the
implementation of the SGGE Project. The COE's
preferred alternative also assumes that the
federal funds received by the DEP and SFWMD were
vital to implementation of the project, and
without these funds the DEP and SFWMD would be
unable to provide the lands necessary to implement
the SGGE Project. The COE states:
Without . . . receipt by FDEP of Federal Farm
Bill funds, land acquisition by FDEP from the
end of 1997 through 2060 would have continued
only from willing sellers and at a pace so that
by 2060 only an estimated 60% of the area would
have been in public ownership. Without federal
participation it is questionable whether the
state would have been able to acquire land at
anywhere near the current existing rate.
PIR at 4-5.
- Thus, the COE not only approved the use of
federal funds from 1998 to the present to
implement the SGGE Project, the COE considers this
use to be an essential part of implementation of
the SGGE Project.
- Likewise, the COE has also approved of the
SFWMD's current on-the-ground construction
activities implementing the SGGE Project.
- Based on these actions, the COE, in partnership
with the FWS, SFWMD and DEP, has implemented and
is currently implementing and approving
implementation of the SGGE Project.
- The COE has not completed a PIR for the SGGE
Project, has not submitted a PIR to Congress for
approval, has not completed an EIS for the SGGE
Project, and has not completed consultation with
the FWS regarding the potential impact of the SGGE
Project on threatened and endangered species.
- The COE has not entered into a binding
"project cooperation agreement" with the
State of Florida regarding implementation of the
SGGE Project.
B. Violations of Law
- Violation of the WRDA of 1996.
- The WRDA of 1996 did not authorize the COE to implement
either the SGGE Project specifically, or any CERP
project generally. Water Resources Development Act
of 1996, Pub. L. No. 104-303, 110 Stat. 3658 at �
528.
- The COE's approval of federal funding and
implementation of the SGGE Project from 1998 to
the present violates the WRDA of 1996, the APA,
and is arbitrary, capricious, an abuse of
discretion and is not in accord with applicable
law.
- Violations of the WRDA of 2000
- The WRDA of 2000 prohibited unilateral federal
implementation of the SGGE Project; the SGGE
Project must be implemented in partnership and
coordination with the State of Florida. Water
Resources Development Act of 2000, Pub. L. No.
106-541, 114 Stat. 2572 at � 601(e)(h). Before
implementation of a CERP project, the COE must
enter into a binding "project cooperation
agreement" with the State of Florida. Id.
- The WRDA of 2000 prohibits implementation of the
SGGE Project prior to completion of a PIR for the
project. Id. at �� 601(f), 601(h)(4)(A),
601(h)(2)(A)(ii).
- The WRDA of 2000 prohibits implementation of the
SGGE Project prior to full compliance with the
NEPA, including preparation of an EIS. Id.
- The WRDA of 2000 prohibits implementation of the
SGGE Project prior to the COE demonstrating that
the Project is "justified by the
environmental benefits" and is "cost
effective." Id. at � 601(f)(2)(A).
- The WRDA of 2000 prohibits implementation of the
SGGE Project prior to establishing the maximum
cost of the project in the PIR, which the COE
cannot exceed. Id. at � 601(b)(2)(E).
- The WRDA of 2000 prohibits implementation of the
SGGE Project prior to submission to, approval by,
and receipt of funds from Congress. Id. at
� 601(b)(2)(D).
- The COE has not fulfilled these legal
obligations.
- The COE's implementation and approval of
implementation of the SGGE Project prior to
fulfilling these legal obligations violates the
WRDA of 2000 and the APA, and is arbitrary,
capricious, an abuse of discretion, and not in
accord with applicable law.
- Violations of the NEPA
- The NEPA requires preparation of an EIS prior to
implementation of any major federal action
significantly affecting the environment. 42 U.S.C.
� 4332.
- Implementation of the SGGE Project is a major
federal action significantly affecting the
environment.
- Approval of $38,000,000 in federal funding to
purchase or condemn over 52,000 acres of private
property is a major federal action significantly
affecting the environment. Approval of
on-the-ground construction and implementation of
the SGGE Project is a major federal action
significantly affecting the environment.
- The COE's failure to prepare an EIS prior to
implementation and approval of implementation of
the SGGE Project violates the NEPA and the APA,
and is arbitrary, capricious, an abuse of
discretion, and not in accord with applicable law.
- CLAIMS AGAINST THE FISH AND WILDLIFE SERVICE
- Plaintiff reasserts and realleges the preceding
paragraphs as if fully stated herein.
A. Facts
- The FWS is responsible for distribution of money
appropriated by the 1996 Farm Bill to state and
federal agencies for everglades restoration and
land acquisition.
- As a federal agency, the FWS is responsible for
complying with all applicable federal law in the
distribution of federal funding which may impact
the environment, including the NEPA, ESA, and WRDA
of 1996.
- In 1998 and 1999, the FWS distributed at least
$38,000,000 to the DEP and SFWMD for acquisition
of land for the SGGE Project.
- Land acquisition for and implementation of the
SGGE Project has had and will continue to have
significant impacts on the natural and human
environment, and may adversely affect threatened
and endangered species.
- The FWS did not complete an EIS evaluating the
environmental impacts of land acquisition for and
implementation of the SGGE Project.
- The FWS did not consult with itself as required
by the ESA regarding the potential impacts of land
acquisition for and implementation of the SGGE
Project on threatened and endangered species.
B. Violations of Law
- Violation of the WRDA of 1996.
- The WRDA of 1996 did not authorize the FWS to
implement either the SGGE Project specifically, or
any CERP project generally. Water Resources
Development Act of 1996, Pub. L. No. 104-303, 110
Stat. 3658 at � 528.
- The FWS's approval of federal funding and
implementation of the SGGE Project from 1998 to
the present violates the WRDA of 1996, violates
the APA, and is arbitrary, capricious, an abuse of
discretion, and not in accord with applicable law.
- Violation of the NEPA
- The NEPA requires preparation of an EIS prior to
implementation of any major federal action
significantly affecting the environment. 42 U.S.C.
� 4332.
- Land acquisition for and implementation of the
SGGE Project is a major federal action
significantly affecting the environment.
- Approval of $38,000,000 in federal funding to
purchase or condemn over 52,000 acres of private
property to implement the SGGE Project is a major
federal action significantly affecting the
environment.
- The FWS's failure to prepare an EIS prior to
funding implementation of the SGGE Project
violates the NEPA and the APA, and is arbitrary,
capricious, an abuse of discretion, and not in
accord with applicable law.
- Violation of the ESA
- The FWS is required to consult with itself prior
to taking action which may adversely affect
threatened or endangered species. 16 U.S.C. �
1536.
- Approval of $38,000,000 in federal funding to
purchase or condemn over 52,000 acres of private
property to implement the SGGE Project may
adversely affect threatened or endangered species.
- The FWS's failure to consult with itself prior
to funding implementation of the SGGE Project
violates the ESA and the APA, and is arbitrary,
capricious, an abuse of discretion, and not in
accord with applicable law.
- CLAIMS AGAINST THE AGENTS AND EMPLOYEES OF
THE FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
AND THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT
- Plaintiff reasserts and realleges the preceding
paragraphs as if fully stated herein.
A. Facts
- Implementation of the SGGE Project, as well as
all CERP projects, was intended by both Congress
and the Florida State Legislature to be
inextricably intertwined.
- Congress clearly indicated that the COE cannot
implement a CERP project without equivalent
participation by the State of Florida. Water
Resources Development Act of 2000, Pub. L. No.
106-541, 114 Stat. 2572 at �� 601(e)(f)(h). For
example, the State of Florida must be responsible
for acquisition of all of the land and 50% of the
total cost of a CERP Project. Id. The COE
must also consult and coordinate with the State,
must complete the PIR in partnership with the
State, must comply with state water law and water
quality standards, and must enter into an
implementation agreement with the State. Id.
- Likewise, "The [Florida State] Legislature
intends to establish a full and equal partnership
between the state and federal governments for the
implementation of the comprehensive plan [CERP]."
FLA. STAT. ANN. � 373.470(3)(a). "The
comprehensive plan [CERP] shall be used as a guide
and framework for a continuing planning process to
. . . [e]nsure that [CERP] project components will
be implemented . . . ." Id. at �
373.470(3)(b.2).
- Consistent with the Florida Legislature's intent
to create a "full and equal partnership"
with the COE in implementing CERP projects, the
Legislature passed a number of laws which
substantively mirror those of the WRDA of 2000.
The SFWMD cannot implement a CERP project without
first completing, in cooperation with the COE, a
PIR. Id. at � 373.470(3)(c). The PIR must
then be approved by both the DEP and the Florida
Legislature prior to implementation and funding by
either the Florida Legislature or Congress. Id.
at �� 373.026(8), 373.1501(5). The SFWMD cannot
implement a CERP project without first evaluating
all environmental impacts, complying with state
water law and water quality standards, minimizing
harm to threatened and endangered species, and
ensuring that the project is practically feasible
and cost effective. Id.
- The Legislature also created a trust fund
expressly to implement CERP projects and to
receive federal funds for such implementation. Id.
at � 373.472(1).
- Perhaps the most important indication that the
Florida Legislature intended to intertwine state
and federal participation with respect to CERP
project implementation is the requirement that
implementation of all CERP projects must be in
compliance with all applicable federal law. Id.
at � 373.1501(5).
- Florida law clearly indicates that the Florida
Legislature wished to inextricably intertwine
Florida participation in CERP projects with
applicable federal law. Just as the COE cannot
implement a CERP project without the State,
neither can the State implement a CERP project
without the COE.
- In so doing, the State of Florida waived its
right to be immune from suit in federal court for
violations of state and federal law pertaining to
implementation of a CERP project.
- Since at least 1998, the DEP and SFWMD have been
implementing the SGGE Project. The DEP and SFWMD
accepted federal money and used state money to
purchase and condemn land specifically for the
SGGE Project.
- The DEP and SWFMD have claimed that the
necessary public purpose for such acquisitions was
the SGGE Project.
- The DEP and SFWMD have claimed that acquisitions
of land for the SGGE Project may be claimed
against the State of Florida's obligations to
provide all of the land and 50% of the total cost
of the SGGE Project, as required by the WRDA of
2000.
- The SFWMD is currently, with approval by the DEP,
engaged in on-the-ground construction activities
implementing the SGGE Project.
- The DEP has filed although not served, a
petition for condemnation of Mr. Hardy's land. The
DEP claims that condemnation of Mr. Hardy's land
is necessary to implement the SGGE Project.
- The SFWMD has not completed a PIR for
implementation of the SGGE Project.
- The SFWMD has not obtained a project
implementation permit from the DEP to implement
the SGGE Project, nor has the DEP obtained a
project implementation permit form the SFWMD to
implement the SGGE Project.
- The DEP has not formally approved of
implementation of the SGGE Project, based upon a
completed PIR for the SGGE Project.
- The Florida Legislature has not approved of
implementation of the SGGE Project, nor has it
appropriated funding for the SGGE Project.
- The SFWMD and DEP have not complied with
applicable federal law prior to implementing the
SGGE Project. The SFWMD and DEP have not completed
an EIS regarding the environmental impacts of the
project, and have not ensured that the impact to
threatened and endangered species will be
minimized by consulting with the FWS. The SFWMD
and DEP have not obtained formal approval or
documentation from the COE and FWS that its
actions in implementing the SGGE Project are in
compliance with applicable federal law.
B. Violations of Federal Statutory Law
- Violations of the WRDA of 1996
- The WRDA of 1996 did not authorize the State of
Florida to implement either the SGGE Project
specifically, or any CERP project generally. Water
Resources Development Act of 1996, Pub. L. No.
104-303, 110 Stat. 3658 at � 528.
- The DEP and SFWMD's acceptance and use of
federal funding to implement the SGGE Project from
1998 to the present violates the WRDA of 1996 and
the APA, and is arbitrary, capricious, an abuse of
discretion, and not in accord with applicable law.
- Violations of the WRDA of 2000
- The WRDA of 2000 prohibits implementation of the
SGGE Project prior to completion of a PIR for the
project. Water Resources Development Act of 2000,
Pub. L. No. 106-541, 114 Stat. 2572 at ��
601(f), 601(h)(4)(A), 601(h)(2)(A)(ii).
- The WRDA of 2000 prohibits implementation of the
SGGE Project prior to full compliance with the
NEPA, including preparation of an EIS. Id.
- The WRDA of 2000 prohibits implementation of the
SGGE Project prior to the SFWMD entering into a
binding "project cooperation agreement"
with the COE. Id. at � 601(e)(h).
- The WRDA of 2000 prohibits implementation of the
SGGE Project prior to demonstrating that the
Project is "justified by the environmental
benefits" and is "cost effective." Id.
at � 601(f)(2)(A).
- The WRDA of 2000 prohibits implementation of the
SGGE Project prior to establishing the maximum
cost of the project in the PIR that cannot be
exceed. Id. at � 601(b)(2)(E).
- The WRDA of 2000 prohibits implementation of the
SGGE Project prior to submission to, approval by,
and receipt of funds from Congress. Id. at
� 601(b)(2)(D).
- The DEP and SFWMD have not fulfilled or ensured
that these legal obligations were fulfilled by the
COE or FWS prior to implementation of the SGGE
Project.
- The DEP and SFWMD's implementation of the SGGE
Project prior to fulfilling these legal
obligations violates the WRDA of 2000 and the APA,
and is arbitrary, capricious, an abuse of
discretion, and not in accord with applicable law.
- Violation of the NEPA
- The NEPA requires preparation of an EIS prior to
implementation of any major federal action
significantly affecting the environment. 42 U.S.C.
� 4332.
- Implementation of the SGGE Project is a major
federal action significantly affecting the
environment.
- The DEP and SFWMD's acceptance and use of
$38,000,000 in federal funding to purchase or
condemn over 52,000 acres of private property to
implement the SGGE Project is a major federal
action significantly affecting the environment.
The DEP and SFWMD's on-the-ground implementation
of a proposed federal project is a major federal
action significantly affecting the environment.
- The DEP and SFWMD's failure to prepare or ensure
preparation of an EIS prior to implementation of
the SGGE Project violates the NEPA and the APA,
and is arbitrary, capricious, an abuse of
discretion, and not in accord with applicable law.
C. Violations of Constitutional Law
- The United States and Florida Constitutions
prohibit the DEP and SFWMD from taking private
property, unless it is reasonably necessary for a
public purpose. U.S. Const. amend. V, XIV; Kohl
v. U.S. 91 U.S. 367, 373-374 (1875); Tennessee
Valley Auth. v. Welch, 327 U.S. 546, 551
(1946); Penn Cent. Transp. Co. v. City of New
York, 438 U.S. 104, 126 (1978); FL Const. art.
X, � 6; Canal Authority v. Miller, 243
So.2d 131, 134 (Fla. 1970); Katz v. Dade County,
367 So.2d 277, 279 (Fla. App. 1979); Knappen v.
Division of Admin., State Dept. of Transp.,
352 So.2d 885, 886 (Fla. 2d DCA 1977).
- The DEP and SFWMD claim that it is necessary to
take Mr. Hardy's private property for the SGGE
Project.
- The SGGE Project has not and may never be a
legally approved project.
- The DEP and SFWMD cannot take private property
for a public purpose for a project which has not
and may never be legally approved.
- Even if the SGGE Project did legally exist, Mr.
Hardy's land is not necessary for the SGGE
Project. The DEP and SFWMD cannot take private
property unless it is necessary for the public
purpose.
- The DEP and SFWMD's actions are in violation of
the United States Constitution and the Florida
State Constitution.
D. Violations of Florida State Law
- Florida law does not authorize the DEP and SFWMD
to implement a CERP project prior to complying
with all applicable federal law. FLA. STAT. ANN.
� 373.1501(5).
- Florida law does not authorize the DEP and SFWMD
to implement a CERP project in a manner
inconsistent with the CERP itself, which requires
compliance with all applicable federal law. Id.
at � 373.470(3)(b.2)
- Florida law does not authorize the DEP and SFWMD
to implement a CERP project prior to completion of
a PIR. Id. at � 373.470(3)�.
- Florida law does not authorize the DEP and SFWMD
to implement a CERP project prior to executing a
project cooperation agreement with the COE. Id.
- Florida law does not authorize the DEP and SFWMD
to implement a CERP project prior to approval by
the DEP and the Florida State Legislature. Id
at �� 373.470(3)�, 373.026(8).
- Florida law does not authorize the DEP and SFWMD
to implement a CERP project prior to obtaining a
project implementation permit, providing
"reasonable assurances" that all
applicable law has been complied with, that state
water quality standards will be met, and that
impacts to wetlands and threatened and endangered
species will be avoided, minimized or mitigated. Id.
at � 373.1502.
- Florida law does not authorize the DEP and SFWMD
to implement a CERP project prior to ensuring that
the project is practically feasible, cost
effective, ensures existing water rights and flood
control, and is consistent with all applicable
federal and state law and regulation. Id.
at � 373.1501(5).
- The DEP and SFWMD's implementation of the SGGE
Project prior to compliance with all applicable
state and federal law is a violation of these
laws.
- The DEP's petition for condemnation against Mr.
Hardy for the SGGE Project prior to compliance
with all applicable state and federal law is a
violation of these laws.
REQUESTS FOR RELIEF
- Mr. Hardy hereby request the following
declaratory and injunctive relief:
- A declaration that the COE has violated and are
continuing to violate the WRDA of 1996, the WRDA
of 2000, the NEPA, and the APA.
- A declaration that the FWS has violated and are
continuing to violate the WRDA of 1996, the NEPA,
the ESA and the APA.
- A declaration that the agents and employees of
the DEP and SFWMD have violated and are continuing
to violate the WRDA of 1996, the WRDA of 2000, the
NEPA, the APA, the United States and Florida State
Constitutions, and applicable Florida State law.
- A declaration that the COE, FWS, DEP, and SFWMD
cannot implement the SGGE Project prior to fully
complying with all applicable state and federal
law.
- A preliminary and/or permanent injunction
prohibiting the COE, FWS, DEP, and SFWMD from
implementing the SGGE Project prior to fully
complying with all applicable state and federal
law.
- An award of costs and attorneys fees.
- Any other relief this Court deems just and
reasonable.
RESPECTFULLY SUBMITTED, this ___ day of October, 2004.
| ______________________________________ |
| Charles R. Forman, Trial Counsel |
| Florida Bar No. 229253 |
| Forman, Hanratty & Montgomery |
| 1323 SE 3rd Avenue |
| Ft Lauderdale, Florida 33316 |
| (954) 522-9441 - Telephone |
| (954) 522-2076 - Telefax |
|