Miccosukee Tribe v. United States – Page 2

Here are two recent orders in Miccosukee Tribe v. United States (S.D. Fla.), the upshot being that an equal protection claim against the federal government has survived a motion to dismiss:

Miccosukee v US DCT Order on Motion to Dismiss

Miccosukee v US DCT Order on Reconsideration

Miccosukee Tribe (Mostly) Drops ESA Suit in the Eleventh Circuit

May 7, 2009May 7, 2009Matthew L.M. Fletcher

Here is the opinion in this installment of Miccosukee Tribe v. United States.

An excerpt:

For centuries, a broad, shallow sheet of fresh water that covered most of South Florida flowed south from Lake Okeechobee to the Florida Bay. This phenomenon was the “river of grass” or Everglades, which supported unique and fragile flora and fauna. As so often happens with natural treasures, people sought to control and manipulate the Everglades for their own ends. After the State of Florida’s efforts to tame the Everglades failed, in 1948 the Army Corps of Engineers got involved.

The Corps undertook the Central & Southern Florida Flood Project, which it hoped would control flooding, divert water away from developing areas, provide a source for irrigating crops, facilitate recreation, and “enhance” wildlife. See Miccosukee Tribe of Indians v. United States, 980 F.Supp. 448, 454 (S.D.Fla.1997). In order to bend the water to its will, the Corps created thousands of miles of canals and levees supported by scores of pumps, gates, and dams. This massive plumbing project drained the northern portion of the original Everglades for agricultural use and diverted water into distinct, deeper Water Conservation Areas for controlled release into the southern part of the original area, which became Everglades National Park. There followed what the government artfully calls “unplanned environmental consequences.” This case involves one of those consequences, which pits a sparrow against a hawk.

Miccosukee Everglades Challenged Dismissed on Standing Grounds

September 8, 2008Matthew L.M. Fletcher

Here is the opinion, and a link to our previous post with some background information on the case.

Miccosukee Everglades Challenge to EPA and Florida

August 7, 2008Matthew L.M. Fletcher1 Comment

This case, a continuation of the challenge first brought in 1988, and which once reached the Supreme Court, involves the Miccosukee Tribe’s attempts to protect the Everglades. This case involves an attempt by the State of Florida to alter the state’s water quality standards and avoid federal review, and EPA compliance with that alteration. Here is the opinion: miccosukee-v-us-dct-opinion

An excerpt:

Notwithstanding its complexity, the matters at issue may be reduced to two essential questions. The first question is whether the Environmental Protection Agency acted arbitrarily and capriciously under the Federal Clean Water Act, 33 U.S.C. § 1251 et. seq. (“CWA”), and the Federal Administrative Procedures Act, 5 U.S.C. § 701, et. seq. (“APA”), by concluding that the 2003 amendments to the Florida’s Everglades Forever Act did not change water quality standards. The second question is whether the Environmental Protection Agency further erred in its subsequent review of the State of Florida’s Phosphorus Rule by finding compliance with the Federal Clean Water Act.

I conclude against the Environmental Protection Agency on both questions (with some limited exceptions pertinent to the Phosphorus Rule). Contrary to the Environmental Protection Agency’s written Determinations, it is my view that the Florida Legislature, in 2003, by adopting the State’s draft Long-Term Plan, as proposed by the South Florida Water Management District’s Governing Board, changed water quality standards under the Federal Clean Water Act, and violated its fundamental commitment and promise to protect the Everglades, by extending the December 31, 2006 compliance deadline for meeting the phosphorus criterion for at least ten more years. Turning a “blind eye,” the United States Environmental Protection Agency (“EPA”) concluded that there was no change in water quality standards. The EPA is patently wrong and acted arbitrarily and capriciously in reaching its conclusion. It did so by simply reading the words of specific sections of the Amended Everglades Forever Act (“Amended EFA”), rather than by connecting the dots to analyze its true effect. Its review is nothing more than a repeated imprimatur, i.e., acceptance without independent analysis, based on the State of Florida’s representation that the EFA Amendments did not change water quality standards.