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Introduction

Everglades Litigation Collection

1994 - Donated by USAO to University of Miami School of Law

Location - Law Library Special Collections and Archives

Internet url - www.law.miami.edu/everglades

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Contents

1 million pages of litigation and scientific documents

50 cases from federal and state fora

1 million frames of microfilm

250 mb bibliographic database

Hundreds of deposition and hearing transcripts

Voluminous productions of scientific data and reports

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Legal overview

Parties Plaintiff Defendant

Pleadings, documents Complaint Answer Deposition Orders Decision

Civil vs. Criminal

Statutes

Caselaw

Jurisdiction Federal State Administrative

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Legal overview

Trial Levels (ascending)

Trial level court

Intermediate appellate level

Higher appellate level

Highest appellate level

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Legal overview

Anatomy of Pleadings

Jurisdiction Case Number Style

Plaintiff Defendant

Type Complaint Answer Motion Summary

Judgment Appeal Order

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Background

1821 - U.S. buys Florida from Spain 1845 - Florida becomes a state 1850 - Congress passes Swamp Lands

Act. Gives ownership of overflowed lands in the Everglades to Florida on the condition that lands might be drained and settled, or used for agriculture. State sells vast tracts of land at low cost to railroads. During Civil War railroads went bankrupt.

1905 - Napoleon Bonaparte Broward elected governor

Drain the Everglades!

1906 - 1929 - Everglades Drainage District.

Went bankrupt

1941 - Publication of The Everglades: River of Grass

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Background

1947 - Everglades National Park created by Congress 1947 - 2 hurricanes hit south Florida, flooding 1948 - C&S Florida Project for Flood Control and Other Purposes CSFP - Prime Purpose - Flood Control

USAO built 1,400 miles of levees and canals so that flood waters pass around farms and cities, carried swiftly into the Everglades or the sea

Kissimmee River Channel Lake Okeechobee dike expansion Eastern perimeter leve State lands made into conservation areas

CSFP - EAA 700,000 acres drained, leeved. Irrigation pumps

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Background

CSFP - Loxahatchee N.W.R. To make up for harm project would do to

wildlife habitat, northernmost WCA leased to Department of Interior

CSFP - completed on 1962 Put an end to river of grass cut off the flow of water from the north water allowed to flow through canals and

structures only USACOE regulations determined timing

and quantity of water flow natural hydroperiod replaced by ACOE

regime

CSFP - Local sponsor - CSFFCD Florida passed legislation creating Central

and Southern Florida Flood Control District

CSFFCD - Assembled land, operated pumps and canals

under ACOE guidelines Board of directors appointed by govenor Authority to levy small tax over many

counties in south Florida

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Background

Emergence of the Florida sugar industry

1959 - Revolution in Cuba. U.S. embargo on Cuban sugar exports U.S. quotas on sugar imports from other countries Rapid expansion of farming in the EAA 1960 - 1975 - Sugar acreage increased sixfold 421,000 acres planted, sugar now primary crop in EAA

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Background

The Intensification of Environmentalism in Florida

Roots in creation of ENP Some environmental values in CSFP Fight against jetport 1960’S - changes to CSFP in response to concern about environment 1967 - ACOE and CSFFCD built new canal to bring water arround levee on

north boundary and into center of park 1972 - congress passed legislation guaranteeing min flows of water from

project’s canals and structures into ENP 1978 - Florida proposed that Kissimmee River ditch filled, and old riverbed

restored 1972 - Flood Control District was given the responsibility for regulating

water quality and administering new state laws re wetland drainage 1976 - Flood Control district rebaptized as SFWMD

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Background

Phosphorus problem

Water quality became an issue in the 1970’s. focused on Lake Okeechobee algal blooms

SFWMD scientists believed the largest cause was nutrients from dairy farms along Kissimmee

Water entering the lake from EAA contributed 14% phosphorus 30% of water pumped from EAA went into lake, the rest pumped south 1979 - district, state, ACOE stop pumping into lake, but increased pumping

south into WCAs 1974 - district scientists first warned about cattail infestation in WCAs as

result of phosphorus loading would eventually reach the park and alter natural

Nothing was done due to powerful influence of sugar industry

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Background

SWIM Act

1987 - state legislature passes SWIM Act, requires water management districts to prepare plans to avoid and reverse degradation of state’s waters.

Set targets for how much phosphorus might enter Lake Okeechobee Required district to prepare a plan for the lake Set up technical advisory council to study effects of phosphorus in WCAs,

and other areas south of the lake Included a provision which addressed issue of phosphorus in the park “water management districts shall not divert waters to the park in such a

way that state water quality standards are violated or that the nutrient in such waters adversely affect indigenous vegetative communities or wildlife.”

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Federal water quality case

United States v. South Florida Water Management District, 88-1886-CIV-Hoeveler

In its 1988 complaint the federal government sought enforcement of state water quality laws protecting Everglades National Park, "the largest and most important subtropical wilderness" in the United States, and the Arthur R. Marshall Loxahatchee National Wildlife Refuge

The United States alleged that ENP and LNWR were losing native plant and animal habitat communities due to increased nutrient loading from agricultural runoff.

Settlement Agreement

In 1991, the United States and the State of Florida reached a settlement agreement that recognized the severe harm the ENP and LNWR had suffered and would continue to suffer if remedial steps were not taken.

The 1991 Settlement Agreement, entered as Consent Decree by Judge Hoeveler in 1992, 847 F. Supp 1567 (S.D. Fla 1992) sets out in detail the steps the State of Florida would take over the next ten years to restore and preserve water quality in the Everglades.

In order to secure federal court approval, the Settlement Agreement preserved the rights under state law of the agricultural interests to participate in and challenge the final development and implementation of the settlement's remedial program through the state administrative process.  See also, Florida Sugar Cane League v. Department of Environmental Regulation, 617 So.2d 1065 (Fla. 4th DCA 1993).

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SWIM Challenges

Cooperative v. SFWMD, DOAH 92-3038-40 Nonsignatories to the federal case settlement agreement had

the opportunity to pursue state administrative remedies under Fla. Stat. Ch. 120 if their substantial interests were affected by implementation of the Settlement Agreement's remedial program, i.e., the final SWIM (-Surface Water Improvement Management) Plan by the SFWMD and DEP.  Several agricultural interests filed challenges to the final SWIM Plan in 1992 in addition to filing several in state and federal fora.

The federal case settlement agreement was founded on the recently passed Marjory Stoneman Douglas Everglades Protection Act (Douglas Act), Ch. 91-80, Laws of Florida, developed with the involvement and consent of sugar interests

1993 – Statement of Principles Result of settlement negotiations.

1994 – Everglades Forever Act The passage of the Everglades Forever Act in 1994 Fla. Stat.

ch. 373.4592, removed the underlying cause of action of the administrative challenges and all related lawsuits were closed by August of 1994 with the exception of the original lawsuit (United States v. South Florida Water Management District).

Reconciliation In August 1994, the United States Court of Appeals for the

Eleventh Circuit affirmed the 1992 Consent Decree and remanded the case to district court for further consideration in light of the Everglades Forever Act (28 F.3d 1563 (11th Cir. 1994), cert denied 115 S.C. 1956)).

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Restoration forever?

Current developments

SFWMD March 2003 – The district is working to achieve the long-term water quality

and water quantity goals for the Everglades through its Final Conceptual Plan for Achieving Long-term Water Quality Goals . The long-term goal of the Everglades Program restoration effort is to combine point source, basin-level and regional solutions in a system-wide approach to ensure that all waters discharged into the Everglades Protection Area are in compliance with all state water quality standards by December 31, 2006.

Florida May 2003 – Florida amends the 1994 Everglades Forever Act. SB626

essentially pushes water quality goals back by as much as 10 years (from 2006 to 2016).

Federal water quality case June 2003 - U.S. district court holds hearings regarding effect of new state

law on federal settlement agreement. Florida's two biggest sugar companies challenged Hoeveler's role after he put the Legislature and Gov. Jeb Bush on notice that their amendments to the 1994 Everglades Forever Act would violate his court-approved settlement.

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More info

Email amontero@law.miami.edu

IN 375 everglades litigation class url http://exchange.law.miami.edu/everglades/education/um/in

375/umin375.html