Judge Gold unleashes both barrels and rips Governor Scott (though he's not alone) for the State's destructiondegradation "restoration" efforts to save the Everglades:
There is no possibility of reversing the damage that has been done to the Everglades, and there is only the chance to preserve what remains in its current state. This is nothing new to the parties. I have set forth the extensive procedural history of this case and litigation over the Everglades, the utmost importance of the Everglades as a national treasure, and the dire need to act immediately in my prior orders. See e.g., [ECF Nos. 323, 404]. I take this opportunity now to once again reiterate and incorporate by reference the significant efforts made in those orders to emphasize just how imperative it is for the parties to focus their efforts on making real and actual steps and act on their promises and representations. In order to effectuate this Court's prior and final orders, and to avoid allowing the parties to frustrate any opportunities to do so, I have determined that a key component of this matter through the means of the permitting procedure, must now be a focus of the EPA. To not find in this manner will simply amount to sanctioning the repeated failures of non-action by the parties.
The question of whether Judge Gold has the power to summon EPA Administrator Lisa Jackson to a Miami courtroom to talk about the lamentable state of Everglades restoration presents an interesting conflict for the folks in Atlanta.
On the one hand, the 11th is typically very deferential towards government power (and the Executive Branch in particular).
On the other hand, the 11th is also very protective of its own power, and by extension that of the district courts they oversee.
The Agency argues that compelling a high executive official to appear in a judicial proceeding encroaches on the separation of powers and, absent exigent circumstances, the judicial branch must respect the discretion of the executive branch to designate which high-ranking official should represent the Agency in a judicial proceeding. The record establishes no special need for compelling the appearance of the Administrator; the Assistant Administrator is an adequate substitute. Because the district court abused its discretion by compelling the appearance of the Administrator, and there is no other adequate remedy available, we GRANT the petition for a writ of mandamus and direct the district court to allow the substitution
I'm having trouble with the first sentence -- "compelling a high executive official to appear in a judicial proceeding encroaches on the separation of powers....."
I think it certainly can encroach on the separation of powers, but does it always do so by definition?
Judge Martin's dissent hits the issue head on, which is that clearly the separation of powers is implicated (not encroached) but the order is appropriate given the history of the EPA's contumacious conduct toward the Court and the public -- which the majority refuses to acknowledge set the backdrop for Judge Gold's command:
[T]he EPA has unequivocally and repeatedly flouted and otherwise refused to comply with the court’s previously entered Summary Judgment order. As the April Order explained, on July 29, 2008, the district court issued a 101-page Order holding the EPA in violation of the Clean Water Act and prescribing directives to remedy those violations. Yet extraordinarily, over one year later the EPA had still not acted, and ultimately did not act until November 4, 2009, after the plaintiffs filed a motion for contempt. Furthermore, as the district court took great pains to explain, the substance of the EPA’s 2009 Determination flatly contravened the 2008 Summary Judgment Order. In the face of this inaction, the court warned that nothing short of the “effective[] repeal of [a] clearly expressed Congressional mandate” was at stake.
I also think it's a bit of cheap shot for the majority to dismiss concerns over the Everglades by noting that the EPA head also has a bunch of other really important stuff on her plate.
Finally, whatever happened to the mandamus standard of review? That seems to have gone totally out the window here.
(I admit, I'm a standard of review junkie.)
As usual the barbed, bearded, cranky wondering Jew minstrel put it best:
"But even the president of the United States sometimes must have to stand naked ..."
In two significant opinions, the 11th Circuit has affirmed Judges Seitz and Ungaro in cases brought by the Miccosukee Indians to stop the construction of a bridge to replace a portion of Tamiami Trail ostensibly to increase water flow to the dying River of Grass.
The primary opinion, by Judge Wilson, provides a comprehensive 12-page history of the Tribe and South Florida's relationship with, and distortion of, the existing glades into what we know it today.
The bottom line of these opinions is that Congress, in a spending act, managed to include language that partially repealed the environmental laws that the Tribe was invoking, thus depriving the district courts of subject matter jurisdiction to hear the Tribe's claims:
The simplest reading of this plain language is that Congress wanted the bridge built now. Congress sought to facilitate this goal by repealing the environmental laws that it had previously passed. Allowing further administrative challenges to the bridge under those environmental laws, more than two decades after Congress passed legislation seeking to improve water flows in the Everglades, would further delay the speedy completion of the bridge and frustrate Congress’s clear intent.
Mike scored a huge victory Wednesday on behalf of the Miccosukee Tribe and pretty much everyone else:
A Miami federal judge has dismissed and closed a case brought by the Miccosukee Tribe against the National Park Service after the government agreed not to rebuild a decaying Everglades road without an extensive environmental review. In an order Wednesday, U.S. District Judge Patricia Seitz granted the government’s motion to close the case, handing a victory to the tribe and Miami attorney Michael Tein. The partner at Lewis Tein sued the government for failing to hold public hearings, notify the tribe or conduct environmental reviews before moving forward with plans to work on the 24-mile Loop Road, which runs through the Everglades and tribal lands off U.S. 41.
Fresh off this win, I have asked Mike to personally oversee the Burmese Python problem, Asian Carp, health care, global warming and doing something about Sarah Palin.
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.
This opinion was a pleasure to read, even though the 11th waded into the always-tricky area of "legislative intent" to buttress its conclusions.
