FLORIDA WILDLIFE FEDERATION INC et al v. UNITED STATES ARMY CORPS OF ENGINEERS et al
Filing
61
ORDER INDICATING AN INTENT TO DISMISS THE CASE UPON RESOLUTION OF, OR UPON REMAND FROM, THE PENDING APPEAL. Signed by JUDGE ROBERT L HINKLE on 9/27/13. (sms)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
FLORIDA WILDLIFE FEDERATION, INC.
et al.,
Plaintiffs,
v.
CASE NO. 4:12cv355-RH/CAS
UNITED STATES ARMY CORPS OF
ENGINEERS et al.,
Defendants.
_________________________________________/
ORDER INDICATING AN INTENT TO DISMISS
THE CASE UPON RESOLUTION OF, OR UPON
REMAND FROM, THE PENDING APPEAL
In this case the plaintiff environmental organizations seek declaratory and
injunctive relief against the United States Army Corps of Engineers. The plaintiffs
claim that the Army Corps is violating water-quality standards adopted by the State
of Florida. The Army Corps has moved to dismiss based on sovereign immunity.
And the nonparty state agency charged with enforcing the water-quality standards
in relevant respects—the South Florida Water Management District (“the
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District”)—asserts that the case should be dismissed because the District has not
been, and cannot be, joined as a party.
This order concludes that the case should be dismissed. But an order of
dismissal cannot be entered at this time because, while the District’s position was
under advisement, the District appealed an earlier order allowing it to fully assert
its position but not under the procedure the District asserted was appropriate. This
order sets out an indicative ruling. See Fed. R. Civ. P. 62.1; see also Fed. R. App.
P. 12.1.
I
The Corps operates the three water-control structures at issue on the
Caloosahatchee River. Each consists of a spillway and navigation lock. The river
is part of the Okeechobee Waterway, a 154-mile channel that allows navigation
across the Florida peninsula between the Atlantic Ocean and the Gulf of Mexico.
The channel runs through Lake Okeechobee, the second largest freshwater lake in
the continental United States.
The plaintiffs are environmental organizations who have standing to pursue
the claim that the Corps is operating the water-control structures in a manner that
violates water-quality standards adopted by the State of Florida.
In their complaint, the plaintiffs asserted a claim under Florida Statutes
§ 373.433, which allows a private citizen to sue the operator of a stormwater
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management system (or appurtenant work) for violating water-quality standards.
The plaintiffs asserted, and still assert, no claim other than the one arising under
§ 373.433.
The plaintiffs originally named as defendants not only the Army Corps but
also two state agencies: the District and the Florida Department of Environmental
Protection. The plaintiffs sought no relief against the state agencies.
The Army Corps moved to dismiss based on sovereign immunity. The state
agencies moved to dismiss based on Eleventh Amendment immunity. Perhaps
recognizing that the Eleventh Amendment defense was well founded, see, e.g.,
Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), the plaintiffs voluntarily
dismissed any claim against the state agencies, leaving the Army Corps as the sole
defendant.
The District moved to intervene, asserting that even though it had insisted
that it could not be joined, it now wished to be joined, though only for two
purposes. First, the District sought to present legal arguments—the arguments that
the case could not go forward without the District as a party and that the court was
obligated to consider that issue first (even before subject-matter jurisdiction).
Second, the District indicated it would appeal any order refusing to address the
issues in the sequence the District demanded. An order was entered denying
intervention on these terms. But the order allowed the District to participate as
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amicus, that is, to make the legal arguments the District wished to make. The
order specifically preserved and did not rule on the issue of whether the case could
go forward without the District as a party.
The District moved to reconsider the denial of intervention. Argument on
the motion to reconsider was consolidated with argument on the Army Corps
motion to dismiss. The issues were thoroughly addressed at an extended oral
argument that ran nearly an hour and a half. The District was fully and fairly
heard, including on the issue whether it was an indispensable party. No ruling was
announced or intimated. The only thing that was clear from the argument was that
the issues would be considered with great care.
Without awaiting a ruling, the District filed a notice of appeal from the
earlier order that denied intervention but explicitly allowed the District to
participate as amicus. If that was an appealable order, it should not be, as this
order now demonstrates. But the appeal has not been dismissed; it remains
pending.
II
The Clean Water Act requires federal agencies, including the Army Corps,
to comply with federal, state, and local water-quality standards. And the Act
subjects federal agencies, including the Army Corps, to state procedures for
enforcing the standards. The Act provides:
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Each department, agency, or instrumentality of the executive,
legislative, and judicial branches of the Federal Government (1)
having jurisdiction over any property or facility, or (2) engaged in any
activity resulting, or which may result, in the discharge or runoff of
pollutants, and each officer, agent, or employee thereof in the
performance of his official duties, shall be subject to, and comply
with, all Federal, State, interstate, and local requirements,
administrative authority, and process and sanctions respecting the
control and abatement of water pollution in the same manner, and to
the same extent as any nongovernmental entity including the payment
of reasonable service charges. The preceding sentence shall apply (A)
to any requirement whether substantive or procedural (including any
recordkeeping or reporting requirement, any requirement respecting
permits and any other requirement, whatsoever), (B) to the exercise of
any Federal, State, or local administrative authority, and (C) to any
process and sanction, whether enforced in Federal, State, or local
courts or in any other manner. This subsection shall apply
notwithstanding any immunity of such agencies, officers, agents, or
employees under any law or rule of law.
33 U.S.C. § 1323(a).
The Act thus waives the federal government’s sovereign immunity,
including for the Army Corps. But the waiver is subject to a critical limitation.
The waiver does not apply to acts undertaken by the Army Corps under its
authority “to maintain navigation.” This is so because a different section of the
same chapter provides, “This chapter shall not be construed as . . . affecting or
impairing the authority of the Secretary of the Army . . . to maintain navigation
. . . .” Id. § 1371(a).
As an original matter, § 1371(a) could be construed as a limit on merits
review of Corps actions—that is, as affecting only the merits of, not jurisdiction
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over, an action authorized by § 1323(a). But substantial authority holds that
§ 1371(a) provides an exception to the § 1323(a) waiver of sovereign immunity,
not just a limit on the merits of a claim. See In re Operation of the Mo. River Sys.
Litig., 418 F.3d 915, 917-19 (8th Cir. 2005). The Army Corps characterizes
§ 1371(a) as an exception to sovereign immunity, and the plaintiffs accept the
characterization; the plaintiffs challenge only the scope, not the nature, of the
exception. I accept the parties’ characterization of § 1371(a) as a limit on the
waiver of sovereign immunity.
III
The State of Florida has adopted water-quality standards as required by the
Clean Water Act. A Florida statute creates a private right of action against the
operator of a stormwater management system (or appurtenant work) who violates
the water-quality standards. The Caloosahatchee River water-control structures
now at issue are part of a stormwater management system or appurtenant work
within the meaning of the statute.
The statute provides:
Any stormwater management system, dam, impoundment, reservoir,
appurtenant work, or works which violates the laws of this state or
which violates the standards of the governing board or the department
shall be declared a public nuisance. The operation of such stormwater
management system, dam, impoundment, reservoir, appurtenant work,
or works may be enjoined by suit by the state or any of its agencies or
by a private citizen. The governing board or the department shall be a
necessary party to any such suit.
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Fla. Stat. § 373.433 (2013).
IV
The Army Corps mounts a factual attack on subject-matter jurisdiction, not
simply a facial challenge on the pleadings. Accordingly, the court must
independently weigh the facts based on the record. See Odyssey Marine
Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1169 (11th
Cir. 2011). The burden is on the plaintiffs to demonstrate that the court has
subject-matter jurisdiction. See OSI, Inc. v. United States, 285 F.3d 947, 951 (11th
Cir. 2002) (“In the face of a factual challenge to subject matter jurisdiction, the
burden is on the plaintiff to prove that jurisdiction exists.”); see also Thomson v.
Gaskill, 315 U.S. 442, 446 (1942); Menchaca v. Chrysler Credit Corp., 613 F.2d
507, 511 (5th Cir.1980).
As it turns out, in this case the allocation of the burden would not affect the
outcome.
V
The analysis begins with the plain language of the relevant federal and state
statutes. First, Florida Statutes § 373.433 would allow a lawsuit exactly like this
one against a nongovernmental entity operating water-control structures like those
the Army Corps operates. Under 33 U.S.C. § 1323(a), the Army Corps is subject
to such a lawsuit, to the same extent as a nongovernmental entity. But there is an
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exception. Under 33 U.S.C. § 1371(a), the Army Corps retains its sovereign
immunity from lawsuits challenging acts taken under the authority of the Army
Corps “to maintain navigation.”
The Okeechobee Waterway serves multiple purposes. High on the list are
flood control and navigation. The Army Corps, acting in concert with the District,
regulates the flow of water from Lake Okeechobee and through the water-control
structures. Decisions are made based on protocols adopted in 2008 known as the
“Lake Okeechobee Regulation Schedule” or “LORS.” On matters not affecting
navigation, the Army Corps defers in substantial respects to the District, whose
responsibilities include allocating South Florida waters among various users.
The record establishes beyond dispute that protecting navigation was a
factor in the adoption of LORS. The plaintiffs say, though, that other factors
predominated, and that many individual decisions on the release of water through
the structures have nothing to do with navigation. It is undeniable that other
factors, not just navigation, played a substantial role in the development of LORS
and in its implementation. Many individual decisions taken under LORS do not
affect navigation.
The critical issue, then, is the level of generality at which the determination
is made whether a lawsuit challenges action taken by the Corps under its authority
“to maintain navigation.” I conclude that the proper level of generality coincides
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with the governing protocol—LORS—because the Army Corps reasonably chose
to manage the structures from that level. It thus is sufficient to establish sovereign
immunity that navigation was a factor in the adoption of LORS and that LORS is
the starting point for each individual decision now challenged by the plaintiffs.
The structures serve a navigational purpose, LORS has a navigational component,
and in making decisions under LORS, the Army Corps is exercising its authority to
maintain navigation.
This conclusion is wholly consistent with Central Green Co. v. United
States, 531 U.S. 425 (2001). In that case, a canal that was part of a massive
government project with multiple purposes, including flood control, ran through
the plaintiff’s pistachio orchard. The plaintiff sued the government under the
Federal Tort Claims Act, asserting that the canal’s negligent design, construction,
and maintenance caused subsurface flooding that damaged the plaintiff’s property.
A statute gave the government immunity from claims for “damage from or by
floods or floodwaters at any place.” 33 U.S.C. § 702c. The district court granted
judgment on the pleadings for the government, and the Ninth Circuit affirmed, on
the ground that the canal was part of the massive project, that a purpose of the
massive project was flood control, and that nothing more was required for
immunity.
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The Supreme Court reversed, holding that it was error to grant judgment on
the pleadings. The Court remanded for further proceedings, saying that in
determining immunity, “courts should consider the character of the waters that
cause the relevant damage rather than the relation between that damage and a flood
control project.” Central Green, 531 U.S. at 437.
Central Green involved a different statute, but its approach is instructive. It
is not enough here, just as it was not enough in Central Green, that the entire
Okeechobee Waterway project serves a navigational purpose. Instead, here, as
there, the facts must be considered at a lower level of generality.
Beyond that, the difference in statutes limits the usefulness of Central
Green. The immunity statute there addressed flood waters; the Court said it was
critical whether the damage came from flood waters. The waters in Central Green
could be divided into those that were and those that were not flood waters. But the
waters at issue here cannot be divided into those that are and those that are not
navigable; the waters are all navigable.
Moreover, changing the water level in one part of the project changes the
level in others. And an effect on navigation is never far removed. High water in
the lake puts pressure on structures whose integrity is important to maintaining
navigation. Low water in the lake or other parts of the system can cause vessels to
run aground; the record confirms that when water has been low, groundings have
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increased. The assertion of the Army Corps that navigation was a factor in
establishing LORS seems obvious and, in any event, is established by the only
evidence on this issue in this record.
In sum, the Army Corps reasonably chose to begin the decision-making
process for the actions now at issue through LORS. A factor in adopting LORS
was the need to maintain navigation. The waiver of sovereign immunity set out in
33 U.S.C. § 1323(a) does not allow the plaintiffs’ state-law claim to go forward,
because 33 U.S.C. § 3371(a) excepts from the waiver any claim challenging acts
taken by the Army Corps under its authority to maintain navigation. The plaintiffs
assert such a claim.
VI
There is another ground for dismissal as well. Even if the exception to the
waiver of sovereign immunity did not apply, the federal statute that would allow
this case to go forward, 33 U.S.C. § 1323(a), makes applicable not only the
substantive components of state law, but also the procedural components. Thus the
statute makes a federal agency, here the Army Corps, “subject to . . . State
. . . requirements . . . and process.” The statute says this means “any requirement
whether substantive or procedural.” And the statute subjects the federal agency to
a lawsuit only “to the same extent as any nongovernmental entity.”
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The plaintiffs say, correctly, that § 1323(a) makes the Army Corps amenable
to an action under Florida Statutes § 373.433, at least in the absence of sovereign
immunity. The plaintiffs assert in this lawsuit only a single claim—a claim arising
under § 373.433. But § 373.433 includes a procedural requirement that, under 33
U.S.C. § 1323(a), is just as applicable as the substantive components of § 373.433.
The procedural requirement is this: the state agency with authority to enforce the
standards at issue—in this case the District or the Florida Department of
Environmental Protection—“shall be a necessary party to any such suit.” That is
why the plaintiffs initially named as defendants in this action both the District and
the Department of Environmental Protection, even though the plaintiffs asked for
no relief against them.
Ordinarily, whether a party is one without whom a federal lawsuit cannot go
forward is a question of federal law. See Fed. R. Civ. P. 19; see also Hanna v.
Plumer, 380 U.S. 460 (1965). Here, though, a federal statute adopts state
procedural requirements in relevant respects. The Florida legislature created the
cause of action at issue but explicitly provided that such an action can go forward
only with the affected regulator as a party. And Congress subjected the Army
Corps to such an action only to the same extent as a nongovernmental entity. A
nongovernmental entity cannot be sued under § 373.433 unless the appropriate
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regulator—in this case the District or Department of Environmental Protection—is
a party.
This does not mean that an action in federal court asserting a claim under
§ 373.433 is governed by the Florida Rules of Civil Procedure or other state
procedural requirements rather than the Federal Rules of Civil Procedure and other
federal procedural law. A federal lawsuit is a federal lawsuit, governed by federal
procedures, with limited exceptions. Hanna makes this clear. But requiring the
regulator to be joined in an action under § 373.433 serves an important substantive
purpose; it helps ensure that relief is not granted beyond what state law actually
requires and that any relief does not, without a proper basis, adversely impact other
interests within the regulator’s jurisdiction. Federal Rule of Civil Procedure 19
remains applicable, but § 373.433 adds a specific additional requirement that
applies to a claim against a federal agency, based on the specific reference in
§ 1323(a) to state procedural requirements. Were it otherwise, the federal agency
would be subject to a claim without a safeguard—the regulator’s participation—
uniformly available to a nongovernmental entity.
This makes it unnecessary to decide whether, in the absence of the
incorporation of the state requirement, the District would be a party without whom
the case could not go forward—what Federal Rule of Civil Procedure 19 formerly
called an “indispensable party.” It bears noting, though, that the District consults
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with the Army Corps on most or all of the water-flow decisions at issue and that
the Army Corps often defers to the District. Moreover, any relief in this case
would affect the District’s water-allocation responsibilities. The District argues
with considerable force that it is indeed an indispensible party, even without regard
to the state statute explicitly addressing this issue.
Dismissing this case does not leave the plaintiffs without a remedy if, as
they assert, the Army Corps is acting improperly. As the Army Corps and the
District have explicitly acknowledged, the Army Corps actions at issue, even
though taken under the authority to maintain navigation, are subject to challenge
under the Administrative Procedure Act.
VII
The Army Corps is immune from this lawsuit. And even if that were not so,
the case could not go forward in the absence of the appropriate state agency. Upon
resolution of the pending appeal or remand for entry of an order dismissing the
case, I intend to dismiss this case. But I cannot do that now, because of the
pending appeal. Accordingly,
IT IS ORDERED:
1.
Proceedings on the motion to dismiss for lack of jurisdiction (ECF
No. 18), and the motion for reconsideration (ECF No. 43), together with all other
proceedings, are stayed pending resolution of, or remand from, the pending appeal.
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2.
The Army Corps and the District, as the moving parties, must
promptly notify the circuit clerk of the entry of this order, in accordance with
Federal Rule of Civil Procedure 62.1 and Federal Rule of Appellate Procedure
12.1.
SO ORDERED on September 27, 2013.
s/Robert L. Hinkle
United States District Judge
Case No. 4:12cv355-RH/CAS
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