Introduction

1. 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

2. 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

3. Parties Plaintiff Defendant Pleadings, documents Complaint Answer Deposition Orders Decision Civil vs. Criminal Statutes Caselaw Jurisdiction Federal State Administrative Legal overview

4. Legal overview Trial Levels (ascending) • Trial level court • Intermediate appellate level • Higher appellate level • Highest appellate level

5. Legal overview Anatomy of Pleadings • Jurisdiction • Case Number • Style • Plaintiff • Defendant • Type • Complaint • Answer • Motion Summary Judgment • Appeal • Order

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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.”

13. 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).

14. 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)).

15. 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.

16. More info • Emailamontero@law.miami.edu • IN 375 everglades litigation class urlhttp://exchange.law.miami.edu/everglades/education/um/in375/umin375.html