Sierra Club, Inc. v. St. Johns River Water Management District et al
Filing
88
ORDER denying 76 Defendant's Dispositive Motion to Dismiss Second Amended Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim Upon Which Relief Can be Granted and Motion to Strike; denying 77 Defendant's Rule 12(b)(1) Motion to Dismiss; denying 78 Intervenor's Motion to Dismiss Plaintiff's Second Amended Complaint, or in the Alternative, Motion for Summary Judgment. Signed by Judge Paul G. Byron on 11/6/2015. (SEN) (SEN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SIERRA CLUB, INC.,
Plaintiff,
v.
Case No: 6:14-cv-1877-Orl-40DAB
ST.
JOHNS
RIVER
WATER
MANAGEMENT
DISTRICT,
GOVERNING BOARD OF THE ST.
JOHNS
RIVER
WATER
MANAGEMENT DISTRICT, JOHN
MIKLOS, MARYAM GHYABI, FRED
ROBERTS, JR., GEORGE ROBBINS,
DOUGLAS BOURNIQUE, CHARLES
DRAKE, LAD DANIELS, DOUGLAS
BURNETT, CARLA YETTER, and
MIAMI CORPORATION,
Defendants.
______________________________________
ORDER
This cause comes before the Court on Defendant St. Johns River Water
Management District’s 1 (the “District”) Dispositive Motion to Dismiss Second Amended
1
Plaintiff Sierra Club also brings suit against “John Miklos, Maryam Ghyabi, Fred
Roberts, Jr., George Robbins, Douglas Bournique, Charles Drake, Lad Daniels,
Douglas Burnett[,] and Carla Yetter, in their official capacities as members of the
[St. Johns River Water Management District] Governing Board . . . .” (Doc. 73 at
1.) However, Lad Daniels’ term as a member of the District’s Governing Board
ended on April 7, 2015, so Ron Howse, his successor on the Governing Board, is
automatically substituted as a party, pursuant to Federal Rule of Civil Procedure
25(d). See Fed. R. Civ. P. 25(d) (“An action does not abate when a public officer
who is a party in an official capacity dies, resigns, or otherwise ceases to hold office
while the action is pending. The officer’s successor is automatically substituted as
a party.”).
Complaint for Lack of Subject-Matter Jurisdiction and Failure to State a Claim Upon
Which Relief Can be Granted and Motion to Strike (Doc. 76), Defendant United States
Army Corps of Engineers’ (the “Corps”) Rule 12(b)(1) Motion to Dismiss (Doc. 77), and
Intervenor Miami Corporation’s Motion to Dismiss Plaintiff’s Second Amended
Complaint, or in the Alternative, Motion for Summary Judgment (Doc. 78).
In
response, Sierra Club filed its Consolidated Response in Opposition to Motions to
Dismiss Second Amended Complaint (Doc. 82). For the reasons that follow, the
Motions will be denied.
I.
BACKGROUND 2
This case challenges several actions undertaken by the District, Miami
Corporation, and the Corps 3 (collectively, “the Defendants”), concerning the Farmton
Mitigation Bank (the “FMB”). (Doc. 73 ¶ 1.) Located in Volusia and Brevard counties,
the FMB is “the largest federal mitigation bank in the United States” and makes up
approximately “24,000 acres lying within the approximately 57,000 acre Farmton tract
owned by Miami Corporation.” (Id.) According to the 2000 FMB Enabling Instrument
(the “Enabling Instrument”), which established the FMB, “[t]he importance of this
2
3
This account of the facts is taken from Sierra Club’s Second Amended Complaint
(Doc. 73), the allegations of which the Court must accept as true to the extent
Defendants’ move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
See Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992); Quality Foods de
Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp. S.A., 711 F.2d 989, 994
(11th Cir. 1983).
Sierra Club also names “Colonel Alan M. Dodd, [] Chief Engineer of the Jacksonville
District of the Army Corps of Engineers [who] has authority for overseeing federal
mitigation banks in the State of Florida, including the FMB” as a defendant. (Doc.
73 ¶ 21.) Per Federal Rule of Civil Procedure 25(d), Colonel Jason A. Kirk is
substituted for Colonel Dodd. Fed. R. Civ. P. 25(d).
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proposed bank is that it will preserve in perpetuity a very large amount of habitant . .
. [and insulate it from] residential, commercial or agricultural development . . . [by
creating] [s]ufficient legal interest and financial responsibility [] to ensure perpetual
protection.” (Id. ¶ 30.) As mitigation credits are sold pursuant to the Clean Water
Act’s (“CWA”) section 404 compensatory mitigation program, Clean Water Act § 404,
33 U.S.C. § 1344(b)(1), conservation easements are recorded on the corresponding
parcels of land in the FMB. (Doc. 73 ¶¶ 30–31.) The District “works in tandem with
the Corps to administer the FMB” by serving on the FMB “inter-agency review team”
(the “IRT”) and serving as “grantee of conservation easements in the FMB.” (Id. ¶ 23.)
Miami Corporation, in furtherance of the environmental conservation goals of the FMB,
“is dedicated to establishing [the FMB] as a mixed-use conservation area by retaining
enough low-impact forestry and hunting to provide management funding for the bank
in perpetuity.” (Id. ¶ 32.)
However, Sierra Club alleges that “while managing the FMB as a mitigation
bank and selling credits, Miami Corporation has simultaneously pursued long term
plans to use and develop the FMB in ways that are not consistent with [its] perpetual
preservation . . . .”
(Id. ¶ 33.)
Specifically, Miami Corporation requested and
received a “comprehensive plan amendment” from the Volusia County Council, which
“authorize[d] 23,100 residential development units and 4.7 million square feet of nonresidential development in the Farmton tract.” (Id. ¶¶ 33–34.) Known as the Farmton
Local Plan, this amendment allows residential and commercial development, with
attendant infrastructure, “to be constructed directly inside the original boundaries of the
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FMB . . . .” (Id. ¶¶ 34–35.) Separately, the Brevard County Commission adopted the
Farmton Local Plan and approved residential and commercial development within the
Brevard County portion of the FMB. (Id. ¶ 36.)
Sierra Club takes issue with several distinct actions taken by the Defendants,
each allegedly in furtherance of a plan to develop FMB land. On September 29, 2011,
the District issued Permit No. 4-127-76185-4 (the “Permit”) to Miami Corporation,
enabling it to “remove 1,165.35 acres from the North Bank site of the FMB.” (Id. ¶ 46.)
On May 1, 2012, the District issued a “Partial Release of Conservation Easement” to
Miami Corporation, which released “land encumbered with a conservation easement
that is located within the FMB.” (Id. ¶ 47.)
The following year, on October 1, 2013, the Corps published a Memorandum of
Record empowering Miami Corporation “to remove 374.77 acres of wetlands and 110
acres of uplands in the North Bank Site,” but also removing a corresponding 38.97
mitigation credits from the FMB.
(Id. ¶ 43.)
Additionally, the Corps issued an
“Updated Mitigation Banking Instrument” (the “Updated Enabling Instrument”), which
reflected the “buffer credit reduction” the Corps imposed on Miami Corporation as a
result of the requested land removal from the North Bank Site. (Id. ¶ 44.) Two
companies owned and operated by Miami Corporation—Farmton Water Resources
LLC and Farmton Services LLC—applied for and received permits from the District and
the Florida Public Service Commission (the “PSC”) to operate a wastewater utility on
the Farmton tract. (Id. ¶¶ 39–40, 48.) Among those permits is a CUP authorizing
Farmton Services LLC to pump 7,290,000 gallons per day of water from the Farmton
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tract. (Id. ¶ 48.) In sum, Sierra Club challenges “[both] removals of land from the
FMB; the authorization of residential and commercial development, as well as
infrastructure inside the FMB; the removal of at least one conservation easement from
land within the FMB; the use of the FMB as a project area for a water supply project;
and the placement of a water and wastewater utility upon the bank” in addition to the
Corps’ promulgation of the Updated Enabling Instrument and “the various development
activities that proceed from it.” (Id. ¶ 2.)
Sierra Club alleges that “[t]he massive residential and commercial development
Miami Corporation has planned in and around the FMB . . . will have myriad negative
impacts on the ecological carrying capacity of [the] entire region [and] will lead to
habitat fragmentation, degradation, and diminishment, which will directly reduce the
region’s recreational and aesthetic value for Sierrans.” (Id. ¶ 11.) As a result of the
averred development in and around the FMB, the “at least eight Sierra Club members”
who live “in close proximity to the FMB" and recreate in public conservation land
abutting the FMB contend that “[t]hey will be injured by the construction of the Farmton
Local Plan” due to the “intense residential and commercial development within the
bank, together with the expansion of existing roads and the construction of entirely new
roads leading in, out and through Farmton, thereby destroying the rural quality [of the
land].”
(Id. ¶ 8.)
Specifically, Sierra Club members aver that they engage in
“nature/bird/wildlife observation, hiking[,] camping, canoeing, fishing, swimming,
photography, biking[,] and general recreation” in lands abutting the FMB. (Id.) Sierra
Club contends that the Defendants’ actions violate the CWA, the National
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Environmental Policy Act (“NEPA”), and the Administrative Procedure Act (“APA”).
(Id. ¶¶ 2–3.)
On November 18, 2014, Sierra Club filed a complaint against the District but did
not name the Corps as a defendant. (See Doc. 1.) On January 14, 2015, the Court
granted Miami Corporation’s motion to intervene as a defendant. (See Doc. 17.) In
lieu of responding to the then-pending motions to dismiss filed by the District and Miami
Corporation, Sierra Club requested leave to file an amended complaint (the “Amended
Complaint”) (Doc. 28), which the Court granted. (Doc. 31.) Thereafter, Sierra Club
filed a five-count Amended Complaint naming the Corps and the District as codefendants and Miami Corporation as an intervenor. (Doc. 36.) On July 27, 2015,
the Court entered an order (Doc. 70) dismissing the Amended Complaint for failure to
state a claim upon which relief could be granted. (Doc. 70 at 1.)
Sierra Club proceeded to file a six-count second amended complaint (the
“Second Amended Complaint”) (Doc. 73) on August 28, 2015. (Doc. 73 at 1.) Count
I alleges “violations of the CWA, CWA regulations and APA by the Corps”; Count II
avers “violations of the CWA and CWA regulations and APA by the Corps relating to
by actions [sic] by non-federal actors in the FMB”; Count III asserts “the failure of the
District and Miami Corporation to comply with the CWA and CWA regulations”; Count
IV contends that “the Corps violated the APA and NEPA by failing to take a ‘hard look’
at actions in the FMB or prepare [sic] an environmental assessment or an
environmental impact statement; Count V 4 alleges that “the District violated NEPA”;
4
In the Second Amended Complaint, Sierra Club labeled two distinct counts both as
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and Count VI alleges that “the Corps fail[ed] to respond to any comments and concerns
as required by NEPA.” (Id. ¶¶ 59–94.) The District (Doc. 76), the Corps (Doc. 77),
and Miami Corporation (Doc. 78) now ask the Court to dismiss the Second Amended
Complaint. (See Docs. 76, 77, 78.) Sierra Club filed a consolidated response in
opposition the Defendants’ motions (Doc. 82), and the Court granted the Defendants
leave to file a reply (Doc. 85).
II.
A.
STANDARDS OF REVIEW
Challenges to Subject Matter Jurisdiction
Motions made pursuant to Rule 12(b)(1) attack a district court’s subject matter
jurisdiction to consider the case at bar. Motions to dismiss under rule 12(b)(1) come
in two forms: “facial attacks” and “factual attacks.” Lawrence v. Dunbar, 919 F.2d 1525,
1528–29 (11th Cir. 1990). Facial attacks only require the court to determine if the
plaintiff has alleged a sufficient basis for subject matter jurisdiction. Id. at 1529. As
such, the allegations within the complaint are assumed true for the purpose of the
motion. Id. On the other hand, factual attacks challenge the existence of subject
matter jurisdiction irrespective of what the complaint alleges. Garcia v. Copenhaver,
Bell & Assocs., M.D.’s, P.A., 104 F.3d 1256, 1260–61 (11th Cir. 1997). Accordingly,
in a factual attack, courts may consider information outside of the pleadings—including
testimony, affidavits, and other evidence—and “may make factual findings necessary
to resolve the motion.” Hawthorne v. Baptist Hosp., Inc., No. 3:08cv154/MCR/MD,
“Count IV.” (See Doc. 73 at 44, 46.) So to avoid confusion, the Court will refer to
the fourth count as “Count IV,” the fifth count as “Count V,” and the sixth count as
“Count VI.”
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2008 WL 5076991, at *2 (N.D. Fla. Nov. 24, 2008).
Standing to bring and maintain a lawsuit is fundamental to invoking a federal
court’s subject matter jurisdiction. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340–
42 (2006). Challenges to a party’s standing is a factual attack on the district court’s
subject matter jurisdiction that requires the court to look beyond the four corners of the
complaint. See Garcia, 104 F.3d at 1260–61.
B.
Failure to State a Claim
Motions made pursuant to rule 12(b)(6) challenge whether the plaintiff has made
sufficient factual allegations to state a claim upon which relief can be granted. In order
to survive a rule 12(b)(6) motion to dismiss, the complaint must “state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).
District courts must accept all well-pleaded allegations within the complaint as true.
Id. at 555. An allegation is well-pleaded when the plaintiff alleges sufficient factual
allegations to “allow[] the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Mere
legal conclusions or recitation of the elements of a claim are not enough. Twombly,
550 U.S. at 555. Courts must view the complaint in the light most favorable to the
plaintiff and must resolve any doubts as to the sufficiency of the complaint in the
plaintiff’s favor. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994).
In a similar vein, a complaint also fails to state a claim upon which relief can be
granted where the complaint fails to conform to Federal Rules of Civil Procedure 8 and
10.
Specifically, Rule 8 requires every complaint to contain a short and plain
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statement of the grounds for the court’s jurisdiction, a short and plain statement of the
claims showing that the plaintiff is entitled to relief, and a demand for the relief sought.
Fed. R. Civ. P. 8(a). Rule 10 further requires all plaintiffs to state their claims “in
numbered paragraphs, each limited as far as practicable to a single set of
circumstances.” Fed. R. Civ. P. 10(b); see also M.D. Fla. R. 1.05, 1.06 (providing
specific local standards for pleading). Failure to adhere to these pleading standards
renders a complaint incapable of response and requires its dismissal or a more definite
statement by the plaintiff. See Anderson v. Dist. Bd. of Trustees of Cent. Fla. Cmty.
Coll., 77 F.3d 364, 366 (11th Cir. 1996).
III.
ANALYSIS
District courts must address jurisdictional objections before analyzing the
sufficiency of a complaint. See Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236,
1242 (11th Cir. 1998). Accordingly, the Court will evaluate the Defendants’ respective
12(b)(1) challenges before considering the Defendants’ 12(b)(6) arguments.
A.
Subject Matter Jurisdiction
Collectively, the Defendants advance two subject matter jurisdiction arguments:
Sierra Club’s lack of standing and invocation of federal question jurisdiction. The
Court will consider each jurisdictional dispute in turn.
1.
Standing
Standing to bring and maintain a lawsuit is fundamental to a federal court’s
subject matter jurisdiction. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340–42
(2006). “The party invoking federal jurisdiction bears the burden of proving standing.”
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Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In order to prove standing,
Sierra Club must satisfy Article III’s constitutional standing requirements and NEPA’s
statutory standing requirements.
See Lexmark Int’l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377, 1386, 1388–91 (2014). Here, the Defendants
argue that Sierra Club falls short of both Article III and statutory standing prerequisites.
i.
Constitutional Standing
Since Article III standing is a “bedrock requirement” of federal judicial
jurisdiction, its basic guidelines are familiar. Valley Forge Christian Coll. v. Ams.
United for Separation of Church & State, 454 U.S. 464, 471 (1982). “The irreducible
constitutional minimum of standing contains three elements.” Lujan, 504 U.S. at 560.
First, a plaintiff must demonstrate an “injury-in-fact” which is “(a) concrete and
particularized” . . . and (b) ‘actual or imminent, not conjectural or hypothetical.’” Id.
(quotations omitted).
In cases where an environmental injury is alleged, an
acceptable injury-in-fact can consist of “a plaintiff claiming injury from environmental
damage [in] the area affected by the challenged activity . . . .” Id. at 565. When a
plaintiff invokes a procedural injury, 5 the imminence standard is loosened. See id. at
572 n.7 (“Thus, under our case law, one living adjacent to the site for proposed
construction of a federally licensed dam has standing to challenge the licensing
5
In the Second Amended Complaint, Sierra Club asserts several quintessential
procedural injuries; namely, the failure of the Defendants to procedurally comply
with the CWA and NEPA. (See Doc. 73 ¶¶ 38–94); see also Ouachita Watch
League v. Jacobs, 463 F.3d 1163, 1171 (11th Cir. 2006) (“It is well-settled that, in
a NEPA suit, ‘a cognizable procedural injury exists when a plaintiff alleges that a
proper EIS has not been prepared . . . .”) (quotation omitted).
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agency’s failure to prepare an environmental impact statement, even though . . . the
dam will not be completed for many years.”). However, the presence of an alleged
procedural injury does not eliminate the injury-in-fact requirement, as “deprivation of a
procedural right without some concrete interest that is affected by the deprivation—a
procedural right in vacuo—is insufficient to create Article III standing.” Summers v.
Earth Island Inst., 555 U.S. 488, 496 (2009). To be actionable, an injury-in-fact in a
procedural injury case must be “reasonably probable.” Ouachita Watch League v.
Jacobs, 463 F.3d 1163, 1170 (11th Cir. 2006) (“To show a cognizable injury in fact in
a procedural injury case . . . [it must only be] reasonably probable that the challenged
action will threaten these concrete interests.”) (citing Citizens for Better Forestry v. U.S.
Dep’t of Agric., 341 F.3d 961, 972 (9th Cir. 2006)).
Beyond injury-in-fact,
constitutional standing also demands “a causal connection between the injury and the
conduct complained of . . . [that must be] fairly traceable to the challenged action of
the defendant . . . .” Lujan, 504 U.S. at 560. Finally, it must be “likely,’ as opposed
to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.” Id.
As with injury-in-fact, the Article III redressability element is relaxed in cases where a
plaintiff claims a procedural right. Id. at 572 n. 7.
All three Defendants dispute Sierra Club’s constitutional standing. 6
The
Defendants contest each element of constitutional standing, although the bulk of their
6
As part of its response to the Defendants’ standing and ripeness arguments, Sierra
Club attached two affidavits to its response brief. (See Doc 82-1; Doc. 82-7.) The
Defendants ask the Court to disregard these affidavits. (Doc. 85 at 1–3.)
Because the Defendants were denied an opportunity to depose the affiants and
since the affidavits are not dispositive to the resolution of this Order, the Court
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argument centers on a perceived lack of imminence. Specifically, the Defendants
argue that “[a]ny such development [of former FMB land] is purely speculative . . . and
that any such development would require further regulatory action by state and federal
agencies.” (Doc. 77 at 4; see also Doc. 76 at 9–12; Doc. 78 at 11–13.) In addition,
the Corps asserts that Sierra Club fails to allege “its members utilize properties for
which there are development plans and has not identified any specific mechanism by
which a particular development will affect property its members use.” (Doc. 77 at 6–
7.) The District further contends that Sierra Club’s “alleged injury from potential, future
construction of the Farmton Local Plan is not fairly traceable to the District’s actions,
which do not authorize construction.” (Doc. 76 at 12.) Lastly, the District claims that
the purported lack of causation destroys any redressability. (Id.)
Sierra Club responds that the Defendants “are incorrect to assert that [Sierra
Club] must ‘use the specific property that has been removed from the bank’” to pass
Article III muster. (Doc. 82 at 11.) Further, Sierra Club argues that its injuries are
imminent because “development of [the area] is and will continue to be an ongoing
development process,” which also casually ties the complained of injuries to the actions
of the Defendants and ensures redressability. (Id. at 12–17.) Sierra Club posits that
its concrete injury is the “myriad negative impacts on the ecological carrying capacity
of
this
entire
region
[including]
habitat
fragmentation,
degradation
and
diminishment . . . [and] hydrological impairment of surrounding watersheds through
disruption of hydrological connectivity, surface water flows[,] and watershed integrity.”
declines to consider these affidavits.
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(Doc. 73 ¶ 11.) Additionally, Sierra Club avers that its members “engage in various
forms of aesthetic and recreational activities in the region surrounding the FMB,” such
as hiking, camping, and fishing.
(Id. ¶ 13.)
According to Sierra Club, “[i]t is
undisputed that under the terms of the Farmton Local Plan, construction in [the land
removed from the FMB] may commence in 2017” and Miami Corporation is already
contemplating and pursuing development of the former FMB land. (Doc. 82 at 23–
25.)
As support therefore, Sierra Club points to several land use changes,
development plans, and negotiations between Miami Corporation and regional
governmental authorities. (Id. at 14–16.)
Sierra Club’s factual allegations satisfy the Court’s constitutional standing
inquiry. As an initial matter, Sierra Club’s averments of habitat degradation in areas
where its members regularly recreate are prototypical environmental injuries, and are
thus acceptable for the purposes of Article III. See id. at 565. However, Sierra Club
asserts both a procedural injury (the failure of the Defendants to comply with CWA
regulations and conduct a NEPA environmental analysis) and a concrete injury
(ecological damage to the area Sierrans regularly recreate in). (Doc. 73 ¶¶ 2–12.)
As a result, Sierra Club need not “meet[] all the normal standards of redressability and
immediacy.” Lujan, 504 U.S. at 572 n.7. Indeed, the facts of this case are quite
similar to Justice Scalia’s hypothetical in Lujan, in which an individual living adjacent
to the site for a proposed federally licensed dam would have standing to challenge the
licensing agency’s failure to prepare an environmental impact statement, even though
the proposed dam would not be completed for “many years.” Id. Given Sierra Club’s
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contentions of extensive development actions—including impending construction,
issuance of a groundwater pumping permit in the subject area, and multiple land use
changes—coupled with the relaxed imminence standard applied to procedural injuries,
Sierra Club adequately avers a reasonably probable, concrete, and imminent injury-infact. 7 See Ouachita Watch League, 463 F.3d at 1170.
Nor is it of any moment that Sierra Club members do not recreate on FMB land
or the land removed from the FMB. It is enough to aver that the land Sierrans use is
connected and adjacent to the land subject to development, since Sierra Club’s alleged
harms stem from the ecological decline of the region as a whole, including degradation
of land Sierrans do recreate on. See Lujan, 504 U.S. at 572 n.7 (standing for a
hypothetical plaintiff living adjacent to a proposed dam); Black Warrior Riverkeeper,
Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1280 (11th Cir. 2015) (standing for
organization’s members who recreated in the “waters downstream” from a mining site);
Sierra Club v. Johnson, 436 F.3d 1269, 1275–76 (11th Cir. 2006) (standing for an
7
The Defendants make much of the fact that “additional regulatory approvals must
be obtained before [any] such construction can occur.” (Doc. 76 at 11.) Though
this assertion may be true, it nonetheless fails to defeat Sierra Club’s constitutional
standing or render its claims unripe because Sierra Club’s complained of injury—
failure to comply with NEPA and the CWA—arises from the final agency actions
identified in the Second Amended Complaint, not from some future, unidentified
agency actions. See Citizens for Better Forestry, 341 F.3d at 975 (“The relevant
inquiry for the immediacy requirement in the procedural context is whether there is
a ‘reasonable probability’ that the challenged procedural violation will harm the
plaintiffs’ concrete interests, not how many steps must occur before such harm
occurs.”). In their reply, the Defendants’ reassert this position, but in the language
of ripeness doctrine. (Doc. 85 at 3–6.) That, of course, does not change the fact
that Sierra Club’s claims derive from the Defendants’ alleged past and current
violations of NEPA and the CWA mitigation banking regulations, not from some
future, other violation of those laws.
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individual who “fishes near” a power plant and recreates in “the surrounding area”).
Finally, despite the District’s protests, Sierra Club’s injuries can be fairly traced to the
District and can be appropriately redressed by an order of the Court, should Sierra
Club prevail. Sierra Club identifies the District’s release of an FMB conservation
easement, issuance of a CUP to withdraw groundwater from the Farmton tract, and
issuance of a permit to remove land from the FMB, as actions that will ultimately open
the door to development in and around the FMB. (Doc. 73 ¶ 23.) In the event the
Court determines that the Defendants failed to comply with NEPA or the CWA, it “has
the power to order the [Defendants] to comply,” rendering the averred injury
redressable. Ouachita Watch League, 463 F.3d at 1172–73. In sum, Sierra Club’s
claimed injury meets each of Article III’s constitutional standing requirements.
ii.
Statutory Standing
In addition to constitutional standing, Sierra Club must also satisfy the twopronged statutory standing inquiry. First, Sierra Club must fall within the “zone of
interests” of NEPA and the CWA. Lexmark, 134 S. Ct. at 1388. Under this prong,
the determination of whether Sierra Club falls within the zone of interests is generally
“a straightforward question of statutory interpretation,” requiring the Court to look to the
statute’s purpose where that purpose is unambiguous.
Id.
Overall, the zone of
interests test “is not especially demanding” and Sierra Club will fall within either
statute’s zone of interests as long as its interests are not “so marginally related to or
inconsistent with the purposes implicit in the statute.” Id. at 1389 (internal quotation
marks omitted).
Second, Sierra Club must demonstrate that its injuries were
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proximately caused by the Defendants’ wrongful conduct. Id. at 1390. Injuries that
are “too remote” from the Defendants’ conduct will not suffice. Id. (internal quotation
marks omitted).
Since Sierra Club alleges that the Defendants breached both NEPA and the
CWA, the Court must consider the zone of interests of both statutes. (Doc. 73 ¶¶ 2–
3.) As this Court has held previously, “a plaintiff must demonstrate three elements to
fall within NEPA’s zone of interests: (1) the defendant’s failure to comply with NEPA
‘adversely affected the environment,’ (2) the defendant’s failure to comply with NEPA
caused plaintiff’s injury, and (3) ‘the alleged injury is environmental.’” RB Jai Alai, LLC
v. Sec’y of the Fla. Dep’t of Transp., 47 F. Supp. 3d 1353, 1363 (M.D. Fla. 2014).
Similarly, Eleventh Circuit precedent holds that environmental injuries—specifically
those concerning the waters of the United States—are within the ambit of the CWA’s
zone of interests. See Black Warrior Riverkeeper, 781 F.3d at 1280 (“All of these
injuries fall within the zone of interests contemplated by the CWA and NEPA, since
they allegedly stem from environmental harm.”); Fla. Pub. Interest Grp. Citizen Lobby,
Inc. v. EPA, 386 F.3d 1070, 1085 (11th Cir. 2004) (“The harm that these individuals
claim to have suffered—the pollution of waterbodies that they use and whose integrity
the [CWA] is intended to protect—is the type the courts have recognized as an ‘injury
in fact.’”).
Miami Corporation contends that Sierra Club “cannot allege and has not alleged
any of the three elements necessary to establish [zone of interests] standing” because
“no member of Sierra Club has suffered any damage or injury as a result of the actions
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of the Corps.” (Doc. 78 at 10.) For its part, the Corps argues that “[b]ecause Sierra
Club’s allegations do not state that the organization or its members are aggrieved
within the meaning of NEPA or the [CWA], Sierra Club has not shown that it falls within
the zone of interests for those statutes.” (Doc. 77 at 7 n.4.) In response, Sierra Club
states that it “alleges myriad environmental injuries which will flow from the Defendants’
actions, including: fragmentation of habitat, loss of wildlife, degradation of regional
watersheds, and wetlands loss” and that those injuries fall within the zone of interests
of both statutes. (Doc. 82 at 18–19.)
First, the Court notes that Sierra Club may properly avail itself of associational
standing, averting any third-party standing issues, given that Sierra Club’s members
would have standing to sue in their own right, the environmental injury asserted is
pertinent to Sierra Club’s interests, and the claims asserted do not require the personal
involvement of Sierra Club’s members. See Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., Inc., 528 U.S. 167, 181 (2000) (holding that an organization may raise legal
rights on another’s behalf “when its members would otherwise have standing to sue in
their own right, the interests at stake are germane to the organization’s purpose, and
neither the claim asserted not the relief requested requires the participation of
individual members in the lawsuit.”). Sierra Club’s alleged injuries also fall within the
zone of interests of both the CWA and NEPA. As the Court previously observed,
Sierra Club’s injuries constitute “prototypical environmental injuries”: claims of
environmental harm impacting natural areas where Sierra Club members often
recreate. The indisputably environmental character of Sierra Club’s avowed injuries
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brings the allegations of the Second Amended Complaint squarely within the zone of
interests contemplated by both NEPA and the CWA. See Black Warrior Riverkeeper,
781 F.3d at 1280 (holding that the zone of interests of both CWA and NEPA concern
“environmental harm”). In particular, Sierra Club fulfills the tripartite NEPA zone of
interests test, as Sierra Club claims that the Defendants’ alleged failure to comply with
NEPA will harm the environment, the injuries stem from a failure to comply with NEPA,
and the injuries are environmental in nature. See RB Jai Alai, 47 F. Supp. 3d at 1363.
And Sierra Club’s contentions also make explicit reference to the denigration of
regional watersheds, thus bringing the Second Amended Complaint within the CWA’s
zone of interests as well. See Fla. Pub. Interest Grp. Citizen Lobby, 386 F.3d at 1085
(holding that “pollution of waterbodies” falls within the sphere of the CWA’s zone of
interests).
None of the Defendants challenge that Sierra Club’s injuries were proximately
caused by the misconduct alleged. See Lexmark, 134 S. Ct. at 1390. The Court
therefore finds that Sierra Club has satisfied the CWA’s and NEPA’s statutory standing
requirements sufficient to proceed past the pleading stage.
2.
Federal Question Jurisdiction
Sierra Club’s final jurisdictional hurdle is the District’s federal question
jurisdiction objection. In particular, the District posits that “the APA . . . does not
provide a cause of action against an agency of the state, like the District.” (Doc. 76 at
13.) Additionally, the District asserts that it “has found no precedent for using the APA
as a jurisdictional basis for alleging that an agency of [a] state has violated the [CWA]
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federal mitigation bank regulations” and further insists that its actions are not subject
to NEPA. (Id. at 12–15.) Sierra Club counters that the Court may properly assume
jurisdiction despite the APA’s general bar against suing state agencies. (Doc. 82 at
26–30.)
The APA allows for judicial review of final federal agency decisions concerning
the CWA and NEPA. See Sierra Club v. Flowers, 526 F.3d 1353, 1359–60 (11th Cir.
2008).
Because the APA is a federal statute primarily concerned with federal
agencies, “the APA does not apply to state agencies,” except in limited circumstances.
Citizens for Smart Growth v. Sec’y of the Dep’t of Transp., 669 F.3d 1203, 1210 (11th
Cir. 2012).
In Citizens for Smart Growth v. Secretary of the Department of
Transportation, the Eleventh Circuit exerted jurisdiction over a state transportation
agency because its “substantial role [was] well documented in the Administrative
Record,” the state agency was “a party working in tandem with federal agencies,” and
“the plaintiffs only sought injunctive relief” against the state agency. Id. at 1210.
Just as jurisdiction over a state agency was proper in Citizens for Smart Growth,
it is proper here. Despite the District’s protestations that “Sierra Club has not alleged
any type of federal involvement in the challenged District permitting decisions or
release of conservation easement—such funding or control—that would ‘federalize’
these actions,” the principles gleaned from Citizens for Smart Growth counsel in favor
of exerting jurisdiction over the District.
(Doc. 76 at 14.)
First, although the
Administrative Record is not yet before the Court, Sierra Club suggests that it “likely
includes much more information that will illuminate the involvement of the District in
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the FMB.” (Doc. 82 at 28.) Sierra Club paints the District as “a key participant in
administration and management of the FMB” due to its role as a member of the IRT
that advises the Corps on management of the FMB and the fact that the District serves
as “grantee of all conservation easements in the bank.” (Doc. 82 at 27.) These
allegations serve to cast the District as “a party working in tandem with federal
agencies,” especially given the FMB’s status as a joint federal and state mitigation
bank, managed by both state and federal actors, subject to both state and federal law.
Furthermore, Sierra Club only asks the Court to issue injunctive relief, just as the
Citizens for Smart Growth plaintiff. At the motion to dismiss stage, without the benefit
of the Administrative Record, Sierra Club’s averments suffice to convince the Court
that the District should be subject to federal jurisdiction in this case.
The District also states that “Sierra Club provides no support for its bald
assertion that injunctive relief against the District is required to preserve [Sierra Club’s]
federal rights under NEPA” because “the District is not proposing to conduct any onthe-ground activity” and “the non-federal action that is authorized by the Districts
issuance of the [CUP] is not dependent upon prior approval of a federal agency.”
(Doc. 76 at 16–17.) These arguments misstate Sierra Club’s position. In fact, Sierra
Club’s precise argument is that the District’s challenged actions were subject to federal
statutory and regulatory preconditions that were ultimately abdicated by the Corps, the
District, and Miami Corporation. (Doc. 82 at 28–30.) Moreover, the fact that the
District itself has not proposed any development plans is not dispositive. Sierra Club’s
asserted injury derives from private development of the land in question and the impact
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of water withdrawals from the area, both of which are possible only because of the
District’s challenged actions. Accordingly, any prospective injunctive relief enjoining
development or setting aside District permits would necessarily implicate the District.
Such injunctive relief would also be proper under federal law, assuming arguendo, that
Sierra Club is ultimately vindicated.
Separately, the District posits that Sierra Club’s claims are barred by the
Eleventh Amendment. (Doc. 85 at 9–10.) Sierra Club responds that the District is
not immune from suit pursuant to the Ex parte Young doctrine. (Doc. 82 at 28–29.)
As a general principle, “the Eleventh Amendment insulates states from suit in [f]ederal
court [but] does not insulate state officials acting in their official capacities from suit in
federal court, at least to the extent the complainant seeks prospective injunctive relief.”
Welch v. Laney, 57 F.3d 1004, 1009 (11th Cir. 1995). This official capacity exception
to the Eleventh Amendment’s state sovereign immunity shield, derived from Ex parte
Young, 209 U.S. 123 (1908), is grounded in a legal fiction that constructs an imaginary
barrier between the state and its officers, deeming the officers to act without the state’s
authority when they contravene federal law. See Summit Med. Assocs., P.C. v. Pryor,
180 F.3d 1326, 1136–37 (11th Cir. 1999). Courts confronting the Ex parte Young
doctrine “need only conduct a straightforward inquiry into whether the complaint
alleges an ongoing violation of federal law and seeks relief properly characterized as
prospective.” Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1646
(2011).
When the state is the real, substantial party in interest, the Eleventh
Amendment still operates to bar suit. Pennhurst State Sch. & Hosp. v. Halderman,
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465 U.S. 89, 101 (1984). If the action is “in essence one for the recovery of money
from the state,” the state is the real, substantial party interest, and is entitled to
immunity. Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 464 (1945), overruled
on other grounds by Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613
(2002).
Here, Ex parte Young overcomes the District’s sovereign immunity. At the
outset, the Court observes that Sierra Club’s requested relief consists solely of
declaratory and injunctive remedies, consistent with the requirements of Ex parte
Young. And although the District attempts to frame the relief sought as retroactive, in
actuality, Sierra Club seeks to quell ongoing alleged breaches of federal law. While
Sierra Club’s injuries certainly originated with the District’s past actions, the purported
violations of the CWA’s mitigation banking regulations and NEPA’s environmental
assessment requirements are ongoing, as Sierra Club claims that the Defendants
continue to disregard those federal laws. Furthermore, the environmental harm Sierra
Club complains of will result from the reasonably probable, prospective development
of the subject land. See S.C. Wildlife Fed’n v. Limehouse, 549 F.3d 324, 332 (4th Cir.
2008) (“SCWF also seeks to enjoin [construction] prior to full compliance with NEPA .
. . [a] prayer for such injunctive relief is a prospective claim against an action that would
violate federal law.”).
Nor does the District’s conclusory averment that “the relief
sought implicates the interests of [the District], not individual state officials,” foreclose
application of Ex parte Young. (Doc. 85 at 10.) The District never claims that the
instant action is “in essence one for the recovery of money from the state,” and Sierra
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Club’s prayer for relief contains no demand for money damages, beyond attorney’s
fees and costs. Accepting the District’s argument that it is immune from suit simply
because the actions at bar “implement state regulatory programs and affect the
District’s interests in those programs,” would eviscerate Ex parte Young, since nearly
every lawsuit naming a state official in their official capacity implicates a regulatory
program in some way. Thus, the Eleventh Amendment does not stand in the way of
the Second Amended Complaint.
B.
Ripeness
Apart from their standing and jurisdiction arguments, the Defendants each
argue that the Second Amended Complaint must be dismissed because the averred
injuries are not yet ripe. (Doc. 76 at 12; Doc. 77 at 8–9; Doc. 78 at 13–15.) Sierra
Club’s rejoinder is that its claims “are presently ripe for review” because its claims
ripened at the moment the Defendants failed to comply with NEPA and the CWA.
(Doc. 82 at 20.)
“[R]ipeness . . . is designed ‘to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract disagreements over
administrative policies, and also to protect the agencies from judicial interference until
an administrative decision has been formalized and its effects felt in a concrete way by
the challenging parties.” Ouachita Watch League, 463 F.3d at 1174 (quoting Abbott
Labs. v. Gardner, 387 U.S. 136, 148–49 (1967)).
While standing doctrine asks
whether the parties to a lawsuit are proper, ripeness doctrine asks whether the timing
of a lawsuit is appropriate. See Wilderness Soc’y v. Alcock, 83 F.3d 386, 389–90
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(11th Cir. 1996). Generally, a court’s ripeness query is guided by two principles: the
fitness of the issues for judicial decision and the hardship to the parties of withholding
court consideration. See id. at 390 (citing Abbott Labs., 387 U.S. at 149)). However,
procedural injury cases “add[] an important twist.” Ouachita Watch League, 463 F.3d
at 1174. That is, “the issue is ripe at the time the agency fails to comply.” Id. “[A]
person with standing who is injured by a failure to comply with the NEPA procedure
may complain of that failure at the time the failure takes place, for the claim can never
get riper.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 737 (1998); see also
Anacostia Watershed Soc’y v. Babbitt, 871 F. Supp. 475, 480 (D.D.C. 1994) (“Gone is
the Park Service’s authority to limit the leasing of National Park lands, to protect the
value and integrity of the lands and to preclude or regulate development.”).
Against this jurisprudential backdrop, the Court’s ripeness analysis becomes
relatively straightforward. 8
As the Court has already observed, Sierra Club’s
professed injuries satisfy the relevant Article III imminence standards. Accordingly,
the only outstanding question, for the purposes of the Court’s ripeness analysis, is
whether the Defendants have already allegedly failed to comply with NEPA and the
CWA. See Ouachita Watch League, 463 F.3d at 1174 (“The issue is ripe at the time
the agency fails to comply.”). It is clear from the Second Amended Complaint that the
8
All of the Defendants’ ripeness arguments proceed under the traditional two-prong
ripeness test. (See Doc. 76 at 12; Doc. 77 at 8–9; Doc. 78 at 13–15.) While this
is usually the ripeness analysis the Court must apply, Eleventh Circuit precedent
unambiguously directs the Court to apply the special procedural injury ripeness test
to the case at bar. See Ouachita Watch League, 463 F.3d at 1174.
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Defendants’ asserted noncompliance occurred at the moment the challenged actions
occurred, meaning that each of Sierra Club’s claims are currently ripe for adjudication.
C.
Preclusion
The District also argues that “Sierra Club had an available and adequate remedy
under the Florida Administrative Procedures Act, Chapter 120, Florida Statutes, to
challenge issuance of the state permit modification and issuance of the state [CUP].”
(Doc. 76 at 20.) According to the District, because “[t]he state courts of Florida give
preclusive effect to unappealed final agency decisions . . . [a]ny objection to issuance
of the permits that could have been raised in an administrative proceeding has been
waived.” (Doc. 76 at 22.) Sierra Club did not respond to the District’s argument.
“Under the Full Faith and Credit Act, 28 U.S.C. § 1738, a federal court must give
preclusive effect to a state court judgment to the same extent as would courts of the
state in which the judgment was entered.” Brown v. R.J. Reynolds Tobacco Co., 611
F.3d 1324, (11th Cir. 2010) (internal quotation marks omitted). But while the Full Faith
and Credit Act imbues state judicial decisions with preclusive effect in federal courts, it
“is not applicable to the unreviewed state administrative fact-finding . . . .” Univ. of
Tenn. v. Elliott, 478 U.S. 788, 794 (1986). Instead, federal common-law rules of
preclusion require federal courts to give a state agency’s fact-finding the same
preclusive effect to which it would be entitled in that state’s courts when “a state agency
act[s] in a judicial capacity [and] resolves disputed issues of fact properly before it in
which the parties have had an adequate opportunity to litigate . . . .” Id. at 799. There
are two caveats to this general rule.
First, if Congress manifests clear intent to
-25-
abrogate the common law rule of preclusion, a court must conform to such
congressional intent. See id. at 797 (“Nothing in the language of § 1793 remotely
expresses any congressional intent to contravene the common-law rules of preclusion
. . . .”). Second, when facing vindication of certain federal rights, the Eleventh Circuit
will foreclose application of claim preclusion to unreviewed state agency rulings. See
Gjellum v. Birmingham, 829 F.2d 1056, 1064–65 (11th Cir. 1987) (“With respect to the
claim preclusive effect of unreviewed state agency rulings, we conclude that the
importance of the federal rights at issue, the desirability of avoiding the forcing of
litigants to file suit initially in federal court rather than seek relief in an unreviewed
administrative proceeding, and the limitations of state agencies as adjudicators of
federal rights override the lessened federalism concerns implicated outside the
contours of the full faith and credit statute . . . therefore [] at least in the context
of section 1983 suits, the federal common law of preclusion does not require
application of state claim preclusion rules to unreviewed state administrative
decisions.”).
Florida courts hold that orders of state agencies acting in a “quasi[-]judicial”
capacity are “governed by the same rules regarding res judicata or estoppel as are
applicable to the judgments or decrees of courts.” Wurwarg v. Lighthouse Rest.,
131 So. 2d 469, 471 (Fla. 1961). Res judicata, also known as claim preclusion, bars
relitigation of “the same cause of action” where “[a] judgment on the merits rendered
in a former suit between the same parties or their privies” has been issued. Fla. Dep’t
of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001) (alteration omitted).
-26-
“Importantly, the doctrine of res judicata not only bars issues that were raised, but it
also precludes consideration of issues that could have been raised but were not raised
in the first case.” Id. Four conditions must be present for res judicata to apply:
“(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the
persons and parties to the action; and (4) identity of the quality in persons for or against
whom claim is made.” Fla. Bar v. St. Louis, 967 So. 2d 108, 119 (Fla. 2007) (per
curiam). On the other hand, collateral estoppel, or issue preclusion, “serves as a bar
to relitigation of an issue which has already been determined by a valid judgment.”
Stogniew v. McQueen, 656 So. 2d 917, 919 (Fla. 1995). In Florida, collateral estoppel
requires “[1] the parties and issues be identical, [2] the particular matter be fully litigated
and determined, [3] in a contest which results in a final decision, [4] in a court of
competent jurisdiction.” Dep’t of Health & Rehab. Servs. v. B.J.M, 656 So. 2d 906,
910 (Fla. 1995).
Based on the District’s showing in its motion to dismiss, the Court cannot
conclude that the claims and issues in the Second Amended Complaint are precluded.
Though the District baldly asserts that Sierra Club is barred from bringing the claims in
the Second Amended Complaint, the District provides scant evidence for that
proposition. Put simply, the District leaves the Court with far too many unanswered
questions concerning the hypothetical state agency action Sierra Club apparently
waived. For example, the District declines to inform the Court as to whether the state
agency would be acting “in a judicial capacity” or whether the parties would have an
“adequate opportunity to litigate” their federal causes of action, within the meaning of
-27-
the federal common law of state agency preclusion. See Elliott, 478 U.S. at 799. Nor
does the District supply argument concerning whether such a hearing would be “quasijudicial” pursuant to Florida law of preclusion. See Wurwarg, 131 So. 2d at 471. And
most tellingly, the District’s brief never argues with any specificity that either claim
preclusion or issue preclusion has attached to Sierra Club’s claims, let alone mentions
the four-factor analysis attendant to each doctrine. Given the dearth of argument and
factual development on the question of preclusion, the Court is unwilling to deny Sierra
Club the opportunity to bring their federal claims in federal court. 9
D.
Failure to State a Claim
Finally, 10 the District contends that that the Second Amended Complaint should
be dismissed “because [] Sierra Club failed to state a claim against the District.”
9
10
In any event, even if the District more fully developed its preclusion argument, the
Court would still be reluctant to impose preclusion, given the federal nature of Sierra
Club’s claims. See Gjellum, 829 F.2d at 1065 (holding that since § 1983 was
“intended to provide a federal forum for the vindication of federal rights . . . [a]llowing
a state to dictate that an unreviewed decision of a state agency will foreclose
litigation of a section 1983 claim even if the issues comprising the claim were not
presented or decided by the agency would therefore by directly contrary to
Congress’ intent . . . .”). Put another way, it strikes the Court as unlikely that a
state administrative hearing would provide a “genuine [non-futile] opportunity” to air
federal statutory and regulatory grievances. See Porter v. Schweiker, 692 F.2d
740, 743 (11th Cir. 1982) (observing that exhaustion is not required if a remedy
does not “provide a genuine opportunity for adequate relief” or if “the established
administrative procedures would prove unavailing or futile”). However, the Court
does not rest its holding on this footnote, given the District’s inadequate preclusion
argumentation.
The Court notes that the District also asks the Court to “strike the relief requested
against [it]” while Miami Corporation separately argues that summary judgment
should be entered in its favor. (Doc. 76 at 23; Doc. 78 at 15–17.) At this point, it
is enough to observe that the Court will not strike the relief requested against the
District, given the Court’s prior analysis. And, at this preliminary stage of the
proceedings, summary judgment is inappropriate.
-28-
(Doc. 76 at 17.) Specifically, the District argues that the Second Amended Complaint
“suffers the same flaw as the prior complaint” and that the cited CWA regulations “do
not govern decisions by the District, which is an agency of the state of Florida.” (Id.
at 18.)
The Second Amended Complaint states a claim upon which relief can be
granted. Though the District protests to the contrary, Sierra Club adequately explains
how it believes the District is subject to, and ultimately violated, the cited CWA
regulations. That is, Sierra Club avers that the District’s “significant role in the FMB,
working in tandem with the Corps to administer and manage the FMB . . .” subjects the
District to those federal laws governing the administration of federal mitigation banks.
(Doc. 73 at ¶¶ 72–75.) Sierra Club further isolates the “ecological sustainability, site
protection, perpetual preservation, [and] monitoring and performance” requirements
embedded in 33 C.F.R.§ 332 as the regulatory obligations that the District purportedly
breached when it granted the Permit, released a conservation easement, and issued
the CUP. (Id. ¶¶ 70–72.) At the motion to dismiss stage, Sierra Club’s allegations
suffice to state a claim against each of the Defendants.
IV.
CONCLUSION
Upon due consideration, the Court concludes that Sierra Club has standing to
bring the instant lawsuit. Sierra Club also provides an adequate basis for the Court’s
exercise of federal question jurisdiction. Additionally, Sierra Club’s claims are ripe for
adjudication and are not barred by the doctrines of preclusion or exhaustion. Finally,
Sierra Club cured the deficiencies in the Amended Complaint, so the Second Amended
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Complaint properly states a claim upon which relief may be granted.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
Defendant St. Johns River Water Management District’s Dispositive
Motion to Dismiss Second Amended Complaint for Lack of SubjectMatter Jurisdiction and Failure to State a Claim Upon Which Relief Can
be Granted and Motion to Strike (Doc. 76) is DENIED.
2.
Defendant United States Army Corps of Engineers’ Rule 12(b)(1) Motion
to Dismiss (Doc. 77) is DENIED.
3.
Intervenor Miami Corporation’s Motion to Dismiss Plaintiff’s Second
Amended Complaint, or in the Alternative, Motion for Summary
Judgment (Doc. 78) is DENIED.
4.
Any Defendant who has not yet done so shall answer the Second
Amended Complaint within fourteen (14) days of this Order.
5.
Within ten (10) days following the date of this Order, the parties are
DIRECTED to file the Administrative Record with the Court, pursuant to
the Court’s Scheduling Order (Doc. 65).
DONE AND ORDERED in Orlando, Florida on this 6th day of November, 2015.
Copies furnished to:
Counsel of Record
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