Petition for Writ of Certiorari — Western Palm Beach County Farm Bureau, Inc. v. United States

In The

Supreme Court of the United States

October Term, 1991

o

WESTERN PALM BEACH COUNTY FARM BUREAU,

INC., ROTH FARMS, INC. and K.W.B. FARMS,

Petitioners,

UNITED STATES OF AMERICA,

FLORIDA KEYS CITIZEN COALITION, FLORIDA

WILDLIFE FEDERATION, ENVIRONMENTAL DEFENSE

FUND, SIERRA CLUB, NATIONAL WILDLIFE

FEDERATION, WILDERNESS SOCIETY, NATIONAL PARKS

& CONSERVATION ASSOCIATION, DEFENDERS OF

WILDLIFE, FLORIDA AUDUBON SOCIETY and TREASURE

COAST ENVIRONMENTAL COALITION,

SOUTH FLORIDA WATER MANAGEMENT DISTRICT and

TIMER E. POWERS, its Interim Executive Director,

FLORIDA DEPARTMENT OF ENVIRONMENTAL

REGULATION and CAROL M. BROWNER, its Secretary,

FLORIDA SUGAR CANE LEAGUE, INC.,

FLORIDA FRUIT and VEGETABLE ASSOCIATION,

BEARDSLEY FARMS, INC., CITY OF BELLE GLADE,

and CITY OF CLEWISTON,

Respondents.

.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

+

PETITION FOR WRIT OF CERTIORARI

«

Rosert P. SmitrH

123 South Calhoun Street (32301)

Post Office Box 6526

Tallahassee, Florida 32314

(904) 222-7500

Counsel of Record

for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Or ( /

M41

QUESTIONS PRESENTED

1. Whether the Case-or-Controversy limitation on

the Article III judicial Power requires that a Court of

Appeals take up and decide its jurisdiction and the dis-

trict court’s when, before its decision on an underlying

appeal is final, the justiciability of the cause is questioned

for lack of consent by the State to a federal court suit

demanding a particular exercise of the State’s sovereign

codemaking function.

2. Whether the Case-or-Controversy limitation

which in the interests of federalism bars a federal court

action by a citizen against an unconsenting State, to com-

pel its particular exercise of sovereign codemaking func-

tions, pertains as well to actions by the United States

having no superior right under the Constitution or any

Act of Congress. -

3. Whether the “clear statement” standard of judi-

cial scrutiny, required of federal courts in other contexts

to prevent unwarranted intrusion on sovereign State

functions, also constrains federal court interpretation of a

State statute that is depended on for consent to a federal

court suit seeking, under no claim of right in the Consti-

tution or Act of Congress, a judicial performance of the

State’s regulatory codemaking.

4. Whether the “clear statement” standard likewise

and for the same reasons governs a federal court’s inter-

pretation of a contract to ascertain claimed promises by the

State, to the United States, to promulgate and enforce a State

regulatory code having a strategy and stringency as neces-

sary to protect United States proprietary interests.

ad

ii

STATEMENT CONCERNING THE PARTIES

All parties to the proceedings before the Court of

Appeals are named in the caption.

Petitioners here were intervenor-appellants in the

Court of Appeals, as were the parties last named in the

caption as respondents. The United States of America was

an appellee in the Court of Appeals, as were the Florida

agencies named here as respondents. The environmental

organizations named here as respondents were inter-

venor-appellees in the Court of Appeals, supporting the

position of the United States. Rule 14(b).

The complete style of the case showing the alignment

of the parties in the Court of Appeals is set out in the

Appendix at A21 and A22.

No corporate parent companies or subsidiaries are to

be listed by the corporate petitioners pursuant to Rules

14.1(b) and 29.1.

ili

TABLE OF CONTENTS

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Reasons for Granting the Writ

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TABLE OF AUTHORITIES

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Cases

Atascadero State Hospital v. Scanlon,

iis se daei cy scene eevascceces 14

Bender v. Williamsport Area School Dist.,

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Diamond v. Charles,

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Dugan v. Rank,

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Falls Riverway Realty, Inc. v. City of Niagara Falls,

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Gregory v. Ashcroft,

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Juidice v. Vail,

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Lewis v. Continental Bank Corp,.,

SE eer ee eerrerer rere 13

McCulloch v. Maryland,

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Pennhurst State School & Hosp. v. Halderman,

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Sugarman v. Dougall,

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United States Parole Comm'n v. Geraghty,

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United States v. South Florida Water Management Dist.,

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TABLE OF AUTHORITIES - Continued

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Vernon v. Resolution Trust Corp.,

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Will v. Michigan Dept. of State Police,

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FEDERAL REGULATIONS

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OPINIONS BELOW

The opinion of the Court of Appeals in the underly-

ing cause is reported at 922 F.2d 704 (11th Cir. 1991) and

is set out in the Appendix to this petition at Al et seq.

The Order of the Court of Appeals that “We decline

to consider” petitioners’ Suggestion and Motion as to

Lack of Jurisdiction is set out in the Appendix at A24. The

Court’s Order denying the motion of Sugar Cane

Growers Cooperative of Florida “for leave to appear as

amicus curiae to suggest lack of jurisdiction in this and

the district court for want of a justiciable case or contro-

versy” appears in the Appendix at A23.

*

JURISDICTION

The opinion of the Court of Appeals (Al) was

entered on January 28, 1991. Its Orders declining to take

up and consider the questions of its and the district

court’s jurisdiction were entered on March 6 and 22, 1991

(A23, 24). Timely motions for rehearing of the underlying

decision were then pending. The Court’s Order denying

those motions for rehearing was entered on May 7, 1991

(A29). This petition therefore is timely. Rule 13.

Jurisdiction to review the judgment in question is

conferred on this Court by 28 USC § 1254(1).

¢

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

Article III, Section 2, Constitution of the United States:

The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution

for] the Laws of the United States... - to

Controversies to which the United States shall

be a Party; .

Section 403.412, Florida Statutes (1989):

(2)(a) The Department of Legal Affairs,

any political subdivision or municipality of the

state, or a citizen of the state may maintain an

action for injunctive relief against:

1. Any governmental agency or authority

charged by law with the duty of enforcing laws,

rules, and regulations for the protection of the

air, water, and other natural resources of the

state to compel such governmental authority to

enforce such laws, rules, and regulations;

(excerpt only; complete text in Appendix

A31-33)

STATEMENT OF THE CASE

The asserted basis for jurisdiction (A34) in the Article

III court of first instance, the District Court for the South-

ern District of Florida, was that this is a “Controvers[y] to

which the United States shall be a Party,” or is a “Case

. arising under this Constitution [or] the Laws of the

United States,” Art. III, Sec. 2, U.S. Const., and as such is

assigned by 28 USC § 1331 and 28 USC § 1345 to the

district court. Rule 14.1(i). =

This Petition concerns that jurisdictional assertion

and the associated standards for ascertaining a Case or

Controversy in such a federal suit against a State as

sovereign, to compel a particular performance by the

State of its sovereign codemaking functrons.

To arrest the degradation of “the surface waters of

the state” and improve their “ecological, aesthetic, recre-

ational, and economic value,” the Florida legislature by

its Surface Water Management and Improvement Act of

1987 (the “SWIM Act”), Fla. Stat. § 373.451 et seq. (1990),

created regional water management districts and

required them to generate, promulgate and enforce

regionally, under statewide supervision by respondent

Department of Environmental Regulation (“DER”), a

complex regulatory code called a SWIM Plan.

Respondent South Florida Water Management Dis-

trict (“the Water District”) is that regional codemaking

authority in south Florida. Opinion below, A7-10, passim.

To guide this codemaking, Florida’s legislature

enacted as law certain “unspecific” “Narrative State Law

Standards” and DER by rules promulgated others — “nar-

rative” and “unspecific” being terms of the Court of

Appeals. A7-10. Those standards the Court described! as

prohibiting, for example, any permit process that would

allow degradation of certain designated “Outstanding

' The Court of Appeals summary of narrative standards

itself reflects choices of interpretation and policy that were the

agencies’ to make in authentic Florida administrative proceed-

ings, but the summary serves well enough for present pur-

poses.

Florida Waters” below the quality they had in 1979; for-

bidding regulated acts that would create “an imbalance in

natural populations of aquatic flora or fauna”; and direc-

ting the Water District itself not to divert nutrient-

ladened waters previously discharged in Lake

Okeechobee to destinations including Everglades

National Park “in such a way that the state water quality

standards are violated [or] that the nutrients in such

diverted waters adversely affect indigenous vegetation

communities or wildlife.” Opinion, A7-8, fn. 5.

The Court of Appeals described the Water District as

well advanced in its codemaking, 922 F.2d at 707-08, A9:

The Water District has issued a draft “Surface

Water Improvement and Management Plan for

the Everglades” . . . which proposes numeric

standards for implementing the SWIM Act’s

requirements, and the Water District is currently

working on a final version.

These “waters of the state” in south Florida have for

years served various and sometimes inconsistent needs

including those of a coastal population dependent on

them for drinking and hydrolic pressure against salt

water intrusion; a Lake Okeechobee population whose

ravaging by 1947 storms and floods moved Congress and

Florida jointly to complete over time the Central and

Southern Florida Project which manages these waters

through a massive system of canals, storage areas, gates,

pumps and other structures generally depicted at A53; a

farming industry in the ancient floodplain south and east

of Lake Okeechobee, where the eons left thick deposits of

black muck; and remnants of the vast primeval

Everglades wetlands including State “water conservation

areas” south of the privately-owned “Everglades agri-

cultural area” and, still further south, the Everglades

National Park. See generally, Map A53.

Fed by rivers and lakes to the north and by rainfall

locally and up gradient, these “waters of the state” flow

south and southeast by the natural contour and by gov-

ernmental (State and Corps of Engineers) operation of the

canals, structures and conservation areas to collect, store,

release and divert water as needed for various purposes.

Thus was the historic cycle of flood and drought, which

suppressed human life and property while promoting the

unique animal and floral wildlife that characterized the

ancient Everglades, subdued to human control and pur-

pose.

The Park was founded in 1934 by an Act of Congress

authorizing its acquisition. As amended, 16 USC § 410 et

seq. With added lands the Park now contains some 1.4

million acres of the southernmost Florida mainland

(A42). The Park’s purpose as expressed in 1934 was to be

“permanently reserved as a wilderness,” “preserv[ing]

intact . . . the unique flora and fauna and the essential

primitive natural conditions now prevailing.” § 410c. In

the years since, Congress found in 1989, the Park “has

been adversely affected and continues to be adversely

affected by external factors which have altered the eco-

system including the natural hydrologic conditions

within the park,” § 410r-5(a)(1), (4) (extending the bound-

aries, with State cooperation, to “limit further losses”).

The other federal property involved is the “Lox-

ahatchee Wildlife Refuge,” a name given federally to

State-owned lands designated Water Conservation Area

No. 1, which in 1951 the Water District’s predecessor

agency (A63) licensed to additional use by the U.S. Fish

and Wildlife Service for “conservation of wildlife, fish,

and game, and for other purposes embodying the princi-

ples and objectives of planned multiple land use” (A64).

The “Cooperative and License Agreement” authorizes

“maintenance and development of wildlife environments

and habitat where such use is not inconsistent with the

use of land for flood control and water retention pur-

poses.” J 2(a)(2), A65. The Area adjoins the Everglades

agricultural area on the southeast, and their common

boundary is a canal in which water flows from the agri-

cultural area. See map, A53.

In 1984, to protect “the quality of water entering

Everglades National Park,” the United States and the

Water District made a “Memorandum of Agreement”

(A54) providing among other things that Total Phos-

phorus shall not exceed .24 mg. per liter, or parts per

million, in surface waters delivered to the Park (A54, 58),

and further: “Federal, State, and local water quality crite-

ria which are more stringent that those appended criteria

shall continue to apply.” No more stringent water quality

criteria have been promulgated. This action by the United

States is to compel their State promulgation with a regu-

latory strategy and stringency that is satisfactory to the

United States; or, as the Court of Appeals described it

“from a different angle,” 922 F.2d at 709 fn. 7, A 11 fn. 7,

“to move a state administrative task . . . to federal court.”

No Act of Congress creates any public or private

right nor any duty by the State as regards these waters, or

their use by Florida agriculture, or their nutrient content

in any of the Water Conservation Areas (including Lox-

ahatchee) or indeed in the Park. Federal EPA regulations

under the Clean Water Act, 33 USC § 1251 et seq., specifi-

cally exempt from point source and non-point source

regulation “return flows from irrigated agriculture or

agricultural storm water runoff.” 20 CFR §§ 122.2, 122.3.

The regulation of these waters is a matter of State law

exclusively. The Complaint below by the United States

alleges, presumably in service of its jurisdictional invoca-

tion of 28 USC § 1331 in addition to § 1345, that in

founding Everglades National Park Congress expressed a

preemptive regulatory purpose that now is codified as 16

USC § 410c. Purporting thus to quote that Act of Con-

gress in J 28(b) of the Amended Complaint, A42, the

United States alleges that Congress mandates (emph.

added):

[the Park area] “shall ‘be permanently reserved

as a wilderness and no development of the project

or plan ... shall be undertaken which will interfere

with preservation intact of the unique flora and

fauna and the essential primitive natural condi-

tions now prevailing in this area.’ ”

The Act of Congress itself, with the omitted words

restored, says something quite different: “[N]o develop-

ment of the project or plan for the entertainment of visitors

shall be undertaken... .” 16 USC § 410c (emph. added).

In the name of the United States, the U. S. Attorney

filed this action in the District Court for the Southern

District of Fiorida seeking a judgment against the State of

Florida as sovereign, i.e., a judgment that “would... in-

terfere with the public administration” and whose effect

would be “to restrain the government from acting, or to

compel it to act.” Dugan v. Rank, 372 US 609, 620 (1963),

quoted in Pennhurst State School & Hosp. v. Halderman, 465

US 89, 191 fn. 11 (1984).

Counts I and II (A42, A45) allege “DER AND

SFWMD [the Water District) HAVE VIOLATED STATE

LAW” by failing as yet to promulgate and enforce a

regulatory code effectuating the “narrative” standards of

Florida law with such stringency against the Farm Inter-

ests — such as petitioners - as will adequately protect

United States proprietary interests in the Park and Water

Conservation Area No. 1, the Loxahatchee Refuge. The

redress sought (A50), as described by the Court of

Appeals reversing, on that account, the district court’s

denial of intervenor status to the Farm Interests, is the

federal judicial performance of the State’s own self-pre-

scribed codemaking function. United States v. South Flor-

ida Water Management Dist., 922 F.2d 704, 708, 709 n.7

(11th Cir. 1991), A8, All fn. 7:

If it finds for the United States on Count | and

grants the relief requested, the District Court

will in effect translate the narrative water qual-

ity standards in the SWIM Act into numeric

limits.

Viewed from a different angle, Count I of the

Complaint seeks to move a state administrative

task - development of standards for implement-

ing the broad commands of the SWIM Act - to

federal court.

“The problem” with this “move . . . to federal court,”

the Court of Appeals acknowledged, is of course that

Florida law commits its codemaking to its own autho-

rized agencies acting according to State administrative

law. 922 F.2d at 708, A9:

The problem is that the SWIM Act directs the

Water District to conduct administrative pro-

ceedings toward this same end - translating the

Act’s narrative standards into specific numeric

limits.

Concerning this “move . . . to federal court,” there-

fore, the Court of Appeals stated: “If the state is not

doing its job and statutory authority supports federal pro-

ceedings, this move is legally proper.” 922 F.2d at 709 fn. 7, A

11 fn. 7 (emph. added).

The only Florida statute that bears on this question,

§ 403.412, Fla. Stat. (1989), appears in its entirety at A30 et

seq. Its essential terms are:

(2)(a) The Department of Legal Affairs,

any political subdivision or municipality of the

State, or a citizen of the state may maintain an

action for injunctive relief against:

1. Any governmental agency or authority

charged by law with the duty of enforcing laws,

rules, and regulations for the protection of the

air, water, and other natural resources of the

state to compel such governmental authority to

enforce such laws, rules, and regulations; . . .

The statute speaks of Florida court processes and

remedies in some detail of implementation (A32, A33),

but contains no reference, either clear or not clear, to suits

against its agencies by anyone, let alone by the United

States, in federal court.

Counts III and IV of the United States complaint

(A47, A49) allege a breach by the State of Florida of

“EXPRESS CONTRACT” promises to the United States,

both in the 1984 Everglades National Park contract (A54)

10

and in the 1951 Cooperative and License Agreement con-

cerning Conservation Area Number One (A63).

Count III based on the Everglades Park contract does

not allege a violation of the .24 mg./Itr. or ppm limit on

Total Phosphorus in waters supplied to the Park (A54,

A58), as specified in the contract. The Court of Appeals

noted that the United States is dissatisfied even with the

Draft SWIM Plan’s limit of .03 ppm on Total Phosphorus

at the release point far north of the Park - a limit one-

eighth of the .24 ppm limit specified in the 1984 Park

Agreement in waters as delivered to the Park. 922 F.2d at

710, A13.

The principal breach alleged ] 53 A48 is of the State’s

alleged promise to “ensure that surface waters delivered

to the Park are of sufficient purity to prevent ecological

damage or deterioration of the Park’s environment.” That

is not quoted from any promise in fact in the Contract,

but rather is fabricated from this preliminary recital in

the Contract (A54, emph. added):

Since the Congress, in connection with the

Everglades National Park, has directed the

Corps and the National Park Service “to reach

an early agreement on measures to assure that

the water delivered to the park is of sufficient purity

to prevent ecological damage or deterioration of the

park’s environment,” (River Basin Monetary

Authorizations and Miscellaneous Civil Works

Amendments, Senate Report No. 91-895, p. 24);

and. .. . [two other recital paragraphs]

THEREFORE, the Corps, NPS, and WMD

(parties) mutually agree to the following:. . . .

Count IV of the Complaint (A49) alleging the State’s

breach of its “EXPRESS CONTRACT” with the United

1]

States in the 1951 agreement licensing use of Water Con-

servation Area Number One, or Loxahatchee, did not

purport to identify any promise by the State in that

contract concerning water flowing into the Area. The

contract in fact contains no such promise (A63 et seq.).

When the Court of Appeals filed its opinion which

for the first time recorded details of the United States

claim, as stated in oral argument, A8 fn. 6, the intrusive

effect of this action upon sovereign functions of the State

became more clearly evidenced than before. Petitioners

therefore, and a nonparty Farm organization as a pro-

spective amicus, filed a “Suggestion and Motion as to

Lack of Jurisdiction” (A24) and a “motion for leave to

appear as amicus curiae to suggest lack of jurisdiction in

this and the district court for want of a justiciable case or

controversy.”

The Court simply “DENIED” the proposed amicus

raising of the Case-or-Controversy issue (A23), and

declined to consider petitioners’ “Suggestion and Motion

as to Lack of Jurisdiction,” saying the federal judicial

Power’s want of Article III jurisdiction cannot be raised

on such an appeal, by such parties (A24):

As we held in our opinion in the underlying

appeal, the Farm Interests may intervene in this

case to protect their right to participate in the

development of numeric limits implementing

the state’s narrative water quality standards.

The jurisdiction issues that the Farm Interests

raise in their motion are only indirectly related

to the protection of this right. Further, the Farm

Interests are adequately represented on the

jurisdictional issues by the defendants South

Florida Water District and Florida Department

of Environmental Regulation, which have

12

already raised many of these issues with the

District Court. Finally, even if the Farm Interests

were proper parties to raise the jurisdictional

issues in their motion, it would be procedurally

inappropriate for us to extend our limited

appellate review under the anomolous rule to

decide issues not raised in the parties’ briefs or

in this Court’s published opinion.

The Farm Interests may still seek to present

their jurisdictional motion to the District Court.

if they choose this step, they will be well

advised to ask the District Court’s permission

first. As we have stated, the District Court may

condition the Farm Interests’ intervention in this

case on such terms as will be consistent with the

fair, prompt conduct of this litigation. This

authority allows the District Court to dispose in

summary fashion (as we have done here) of any

motions that the Farm Interests may file beyond

the scope of their right to participate in these

proceedings.

The Court then remanded the three-year old litiga-

tion for further proceedings in the district court. Peti-

tioners then timely filed this petition for writ of

certiorari.

S

REASONS FOR GRANTING THE WRIT

1. Question 1 above stated: whether the Court of

Appeals was obliged to take up and consider the

question of its jurisdiction.

This Court until now has held inferior federal courts

to the invariable duty of noticing, sua sponte if necessary,

any question of the want of jurisdiction. No agreement or

concession of jurisdiction by the parties is of any effect.

seiemnaieal

13

E.g., Lewis v. Continental Bank Corp, 494 U.S. 472 (1990);

Bender v. Williamsport Area School Dist., 475 U.S. 534, 541

(1986); and Juidice v. Vail, 430 U.S. 327, 331 (1977). The

Court of Appeals indeed asserted its “Jurisdiction” in a

lesser and derivative sense, under the Circuit’s so-called

anomalous rule authorizing appeals from district court

orders denying intervention (A4). The reasons given by

the Court for refusing to determine its jurisdiction (A24)

serve only to shield the Court’s want of jurisdiction and

to impose the federal judicial Power upon State-regulated

citizens whose economic livelihood is at stake, the Court

recognizes (A15), but who are said to have no interest at

federal common law requiring that their objection be heard

(A16).

The State agencies who should have joined the juris-

dictional objection in the Court of Appeals instead stood

by acquiescing. Never in this lawsuit, the full record will

disclose, have the State agencies described the federal

judiciary’s want of Case-or-Controversy jurisdiction as

would “self-interested parties vigorously advocating

opposing positions.” United States Parole Comm'n v. Ger-

aghty, 445 U.S. 388, 403 (1980), describing the essentials of

justiciability. Never have they attempted to invoke the

“clear statement” discipline upon federal courts ascer-

taining, in the relevant texts, a mandate to intervene in

State sovereign functions.

In refusing to take up and decide its jurisdiction, the

Court of Appeals has so far departed from the accepted

and usual course of judicial proceedings as to call for

exercise of this Court’s power of supervision.

14

2. Question 2 above stated: whether in suits impli-

cating sovereign State functions the United States

occupies a favored status whereby its claim against

a State, not arising under the Constitution or any

Act of Congress, is unaffected by Case-or-Contro-

versy limitations.

A citizen’s suit in federal court against State impli-

cating sovereign State functions, and not arising from the

Constitution or any Act of Congress, is subject to rigorous

Case-or-Controversy scrutiny by standards, among

others, stated in Questions 3 and 4. Eugene Diamond’s

appeal to this Court was the same as the present case in

purpose and impact, differing only in party status: his

was “an attempt by a private individual to compel a State

to create and retain the legal framework within which

individual enforcement decisions are made,” that is, “an

effort to compel the State to enact a code in accord with

Diamond's interests.” This the Court said “is one of the

quintessential functions of a State.” Diamond's case was

dismissed as not satisfying Article III's Case-or-Contro-

versy requirement. Diamond v. Charles, 476 U.S. 54, 66, 65

(1986).

Pennhurst State School & Hosp. v. Halderman, 465 U.S.

89, 99, 106 (1984) considered it “difficult to think of a

greater intrusion on state sovereignty than when a federal

court instructs state officials on how to conform their

conduct to state law.” Atascadero State Hospital v. Scanlon,

473 U.S. 234, 242 (1984) accordingly gave more rigorous

scrutiny to an Act of Congress whose claimed effect

would alter the “usual constitutional balance between the

States and the Federal Government.”

—————— te

oer ree cieneenee amined

15

“Atascadero was an Eleventh Amendment case, but a

similar approach is applied in other contexts.” Will v.

Michigan Dept. of State Police, 491 U.S. 58, 65 (1989), citing

other contexts. Again as recently as June, in Gregory v.

Ashcroft, _. U.S. __, 59 LW 4714 (Jun. 20, 1991), the

Court in yet another context prescribed judicial self-disci-

pline against intruding, itself, upon sovereign State func-

tions. “[WJe must be absolutely certain that Congress

intended such an exercise,” said Justice O’Connor writing

Gregory (e.a.), because as held in Sugarman v. Dougall, 413

U.S. 634, 647 (1973), the State has “constitutional respon-

sibility for the establishment and operation of its own

government.” Gregory quoting Sugarman, 59 L.W. 4717

We have shown above, p. 7, that the Complaint’s

invocation of § 1331 for jurisdiction, 4 1, A34, is appar-

ently based upon a false rendition of the Act of Congress

that founded Everglades National Park. 16 USC § 410c,

misquoted in the Amended Complaint 4 28(b), A42

If federal question § 1331 jurisdiction is invoked

instead because the federal common law is thought to

govern the Count III and IV contracts with the United

States, Court of Appeals opinion A 16, see also Falls River-

way Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 55 fn. 2

(2d Cir. 1985), that would be a subsidiary question well

worth this Court’s decision. Shall federal judge-made

law, responsive to some perceived general necessity, cre-

ate State obligations to the United States to promulgate

and enforce satisfactory State regulatory codemaking?

There appears to be no federal common law governing

the construction of contracts. Vernon v. Resolution Trust

Corp., 907 F.2d 1101, 1109 (11th Cir. 1990). Such law-

16

applicable would not in any event obviate need for a

justiciable Case-or-Controversy.

There is no real claim of right, then, under any law

but Florida’s, and all four claims implicate and call upon

a federal court to perform a sovereign function of the

State. The importance of Question # 2 may therefore

expressed in terms of the constitutional plan described by

the Court in McCulloch v. Maryland, 17 U.S. (4 Wheat.)

316, 410 (1819), which spoke of state and federal govern-

ments “each sovereign, with respect to the objects com-

mitted to it, and neither sovereign with respect to the

objects committed to the other.”

Do the proprietary interests of the United States

make the federal judicial Power “sovereign with respect

to the objects committed to the other” sovereign, such

that the federal court, without the State’s consent to

federal court suit, shall perform the State’s sovereign

codemaking function as claimed redress to the United

States?

The Court of Appeals so holding — by its unexamined

assertion of jurisdiction — is in conflict with basic consti-

tutional principles established by this Court’s decisions.

3. Question 3 above stated: whether the “clear state-

ment” rule most recently pronounced by Gregory,

and as previously addressed by Pennhurst to State

expressions of consent to be sued in federal court,

can be met by a State statute that is entirely silent.

Pennhurst, whose principle was applied in non-Elev-

enth Amendment contexts by Will and Gregory, held that

any requisite “State’s consent be unequivocally

17

””

expressed” in a case where consent to federal court suit

was required.

The Florida statute is of course entirely silent as to

suit against the State in federal court, by the United

States or any other litigant.

The Court of Appeals went so far as to acknowledge

that the “move” to federal court was proper only if “stat-

utory authority supports federal proceedings,” 922 F.2d

at 709 fn. 7, A 11 fn. 7, then purposefully refused to

examine the statute as required to make that jurisdic-

tional determination.

The Court of Appeals by its purposefully unex-

amined assertion of jurisdiction rendered a decision so

far departing from the usual course of federal judicial

proceedings, that this Court’s supervisory jurisdiction

must be exercised.

4. Question 4 above stated: whether the “clear state-

ment” rule applies also to contracts wherein the

State is alleged to have promised a particular exer-

cise of its sovereign codemaking functions.

The “clear statement” rule applies to purported

expressions of State consent to suit, to Acts of Congress

implicating sovereign State functions, and in a variety of

other contexts. They are rehearsed in Will and Gregory.

Given the implication of sovereign State codemaking

functions by the contractual promises alleged by the

United States in pleading Counts III and IV, such prom-

ises as those, relied upon by the United States as creating

18

a federal cause of action regardless of the State’s with-

holding of consent to suit, should likewise be subjected to

the “clear statement” regimen, in service of the federal-

ism principle as embodieu in Article III.

The Court of Appeals by declining to examine its

jurisdiction allows these claims to go forward without

any such promises having been made by the State. The

decision to do so conflicts with settled principles and

requires supervisory review by this Court.

¢

CONCLUSION

The Court should issue the Writ for review of all four

questions.

Rosert P. SmitH

123 South Calhoun Street (32201)

Post Office Box 6526

Tallahassee, Florida 32314

(904) 222-7500

Counsel of record

for petitioners.

INDEX TO APPENDIX

Decision by the Court of Appeals in the underly-

PPT TET EP eer CLT eTT TEST TTC Cor T Tere Al

oe rrr errr rr rrr rrr re Al

cg ee re ree Al19

Order Denying Sugar Cane Growers Cooperative

of Florida’s Motion for Leave to Appear as

Amicus Curiae to Suggest Lack of Jurisdiction ...A21

Order Declining to Consider Farm Interests’ Sug-

gestion and Motion as to Lack of Jurisdiction....A24

Order Denying Farm Interests’ Motion to Certify

Pending, Important Question of Florida Law to

the Supreme Court of Florida.................... A26

Order Denying Petitions for Rehearing............. A28

a ree Per rT errr ere e re ee A31

I 5.0 55 peed osc deereneteerse A34

Al

UNITED STATES of America,

Plaintiff-Appellee,

Florida Keys Citizen Coalition, Florida Wildlife Federa-

tion, Environmental Defense Fund, Sierra Club,

National Wildlife Federation, Wilderness Society,

National Parks & Conservation Association and

Defenders of Wildlife, Plaintiffs-Intervenors-Appellees,

Florida Audubon Society, et al.,

Plaintiffs-Intervenors,

V.

SOUTH FLORIDA WATER MANAGEMENT DIS-

TRICT, John R. Woodraska and Florida Department of

Environmental Regulation, Defendants-Appellees,

Dale Twachtman, Defendants,

City of Belle Glade,

Defendant-Intervenor,

Western Palm Beach County Farm Bureau, Inc., Florida

Fruit and Vegetable Association, Florida Sugar Cane

League, Inc., Roth Farms, Inc., K.W.B. Farms and

Beardsley Farms, Inc., Movants-Appellants.

UNITED STATES of America,

Plaintiff-Appellee,

V.

SOUTH FLORIDA WATER MANAGEMENT DIS-

TRICT, et al., Defendants,

Western Palm Beach County Farm

Bureau, Inc., et al., Appellants.

Nos. 89-6029, 89-6269.

United States Court of Appeals,

Eleventh Circuit.

Jan. 28, 1991.

A2

William L. Earl, Peeples, Earl & Blank, P.A., Timothy

H. Crutchfield, Peeples, Earl & Blank, P.A., Miami, Fla.,

for movants-appellants.

David J. White, Nat. Wildlife Federation, Atlanta,

Ga., for Nat. Wildlife Federation.

Jerry Jackson, Skadden, Arps, Slate, Meagher & Flom,

James A. Rogers, James R. Wrathall, Washington, D.C.,

for South Florida Water Management.

Robert G. Gough, State of Fla., Dept. of Environmen-

tal Regulation, Tallahassee, Fla., for State of Fla.

David J. White, Proenza, White, Huck & Roberts,

Miami, Fla., David A. Crowley, State of Fla., Dept. of

Environmental Regulation, Tallahassee, Fla., for Environ-

mental Defense Fund, et al.

Dexter W. Lehtinen, Susan Hill Ponzoli, Asst. U.S.

Atty., Miami, Fla., Ellen J. Durkee, Appellate Section,

Dept. of Justice, David C. Shilton, Washington, D.C., for

plaintiff-appellee.

Thomas W. Reese, St. Petersburg, Fla., for plaintiffs-

intervenors.

Stanley James Brainerd, Florida Chamber of Com-

merce, Tallahassee, Fla., for amicus curiae, Florida Cham-

ber of Commerce.

Robert B. Baker, Jr., Southeastern Legal Foundation,

Inc., Atlanta, Ga., for amicus curiae, Southeastern Legal

Foundation, Inc.

James T.B. Tripp, Environmental Defense Fund, New

York City, for Environmental Defense Fund.

A3

David Crowley, Robert G. Gough, Tallahassee, Fla.,

for Florida Dept. of Environmental Regulation.

Appeals from the United States District Court for the

Southern District of Florida.

Before HATCHETT and ANDERSON, Circuit Judges,

and ESCHBACH", Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge:

This is an appeal by three farm corporations and

three agricultural organizations (together, the “Farm

Interesis”) of the District Court’s order denying them

intervention under Fed.R.Civ.P. 24(a) and (b). The Farm

Interests, or their members, rely on the defendant South

Florida Water Management District (the “Water District”)

to provide irrigation and flood control services for their

crops. The Farm Interests claim to be proper parties to

this suit because the plaintiff United States seeks to

restrict the Water District’s operations. The United States

claims that the Water District releases water polluted

with farm runoff and that this pollution is strangling the

mosaic of plants and animals that comprise the Loxa-

hatchee National Wildlife Refuge and Everglades

National Park. We hold that the Farin Interests have the

right to intervene in this case. The right results solely by

reason of the issues raised in Count I of the United States’

* Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for

the Seventh Circuit, sitting by designation.

A4

Amended Complaint,' which asks the District Court to

translate the state’s narrative water quality standards into

numeric criteria. The Farm Interests derive no right to

intervene, however, by reason of the issues raised in

Counts II, III, and IV, which assert that the Water District

is violating state permitting requirements and has

breached two contracts with the United States. On

remand, the District Court may, if it finds appropriate,

restrict the Farm Interests’ participation in this case to the

issues relating to Count I, or may bifurcate the proceed-

ings between Count I and the other counts to promote

judicial efficiency.

Jurisdiction

This Court has provisional jurisdiction under the

“anomalous rule [that] has evolved in the federal appel-

late courts concerning the appealability . . . of an order

denying intervention.” Weiser v. White, 505 F.2d 912, 916

(Sth Cir. 1975).2 Under this rule, “[i]f the district court

' The docket sheet for this case indicates that the United

States filed a Second Amended Complaint on February 8, 1990,

which apparently differs from the Amended Complaint only in

stating that the United States has complied with certain notice

requirements that apply to Counts | and II. Because the Second

Amended Complaint was not included in the record on appeal,

we address the Amended Complaint, as the parties did in their

briefs. .

2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc), this Court adopted as precedent decisions of

the former Fifth Circuit rendered prior to October 1, 1981.

A5

was correct in denying the motion to intervene, this

court’s jurisdiction evaporates and we must dismiss the

appeal for want of jurisdiction If the district court erred,

we retain jurisdiction and must reverse.” Federal Trade

Comm’‘n v. American Legal Distributors, 890 F.2d 363, 364

(11th Cir. 1989). The rule is “anomalous” because of the

“seemingly inconsistent approach of reaching the merits

to determine jurisdiction.” Weiser, 505 F.2d at 917. Not

surprisingly, this Court has noted “criticism of this rule,

advocating a simple review of the denial of intervention

as a final order.” United States v. Jefferson County, 720 F.2d

1511, 1515 n. 12 (11th Cir. 1983). Under either approach,

we proceed to the merits.

Intervention by Right

Under Fed.R.Civ.P. 24(a), a nonparty may intervene

by right if:

the applicant claims an interest in the property

or transaction which is the subject of the action

and the applicant is so situated that the disposi-

tion of the action may as a practical matter

impair or impede the applicant's ability to pro-

tect that interest, unless the applicant’s interest

is adequately represented by existing parties.

To support intervention, a nonparty’s interests must be

“direct, substantial, [andj legally protectable.” Chiles v.

Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989), quoting

Athens Lumber Co. v. Federal Election Comm'n, 690 F.2d

1364, 1366 (11th Cir. 1982), quoting Howse v. S/V “Canada

A6é

Goose 1”, 641 F.2d 317, 320-21 (5th Cir. 1981).3 A nonparty

may have a sufficient interest for some issues in a case

but not others, and the court may limit intervention

accordingly. See Howard v. McLucas, 782 F.2d 956, 960-61

(11th Cir. 1986) (restricting intervenors to participation in

the single, remedial issue for which they had “stand-

ing”).* Also, the court may order a separate trial of claims

or issues subject to intervention when “conducive to

expedition and economy.” See Fed.R.Civ.P. 42(b). In the

present case, the main issue is whether and to what

extent the Farm Interests have a legally protectable inter-

est at stake. This, in turn, depends on the specific claims

that the United States makes in its Amended Complaint.

3 The requirement of a direct, substantial, legally protect-

able interest makes practical sense and reinforces the other

criteria under Rule 24(a). A nonparty with an indirect or insub-

stantial interest by definition has little at stake in the proceed-

ings and so cannot suffer significant harm from the outcome.

Further, a nonparty with a tenuous interest in the proceedings

will have little incentive to litigate fully, a point that reinforces

the Rule’s criterion of adequate representation. Similarly, the

requirement that the nonparty assert an interest that is legally

protectable reinforces the Rule’s criterion of impairment of

interest. Denial of intervention cannot impair a nonparty’s

ability to protect its interests if that nonparty would have no

legal protection for those interests in any event.

* See also Harris v. Pernsley, 820 F.2d 592, 599 (3rd Cir.)

(stating that an applicant for intervention “may have a suffi-

cient interest to intervene as to certain issues in an action

without having an interest in the litigation as a whole”), cert.

den. 484 U.S. 947, 108 S.Ct. 336, 98 L.Ed.2d 363 (1987); United

States v. American Telephone & Telegraph Co., 642 F.2d 1285, 1291

(Continued on following page)

A7

Count I: Violation of Narrative State Law Standards

In Count I of its Amended Complaint, the United

States asks the District Court to translate narrative state

water quality standards into numeric limits. Specifically,

the United States alleges that the Water District is violat-

ing the Florida Surface Water Improvement and Manage-

ment Act of 1987 (the “SWIM Act”), which provides that

the Water District’s operations must not “adversely affect

indigenous vegetation communities or wildlife.” Fla.Stat.

§ 373.4595(2)(a)(1); see also Fla.Admin. Code

(Continued from previous page)

(D.C.Cir. 1980) (discussing with approval the rule that “inter-

vention for individual issues . . . [may be] appropriate to

protect particular interests, with the !imited nature of the inter-

venor’s interest determining the scope of the intervention that

should be allowed”); Bradley v. Milliken, 620 F.2d 1141, 1142-3

(6th Cir. 1980) (ordering intervention “for the limited purpose

of presenting evidence” on a single issue, but restricting partic-

ipation on other issues to the extent that the district court

would choose to allow the applicants to serve as amici); cf.

Southern v. Plumb Tools, 696 F.2d 1321, 1321-1323 (11th Cir.

1983) (per curiam) (holding that a district court's failure to

restrict the participation of an intervenor in certain issues at

trial was reversible error due to the state evidentiary rules that

applied). Restricting intervention to the particular issues for

which the proposed intervenor has a sufficient interest accords

with standard party practice. Defendants, after all, are often

named only for particular counts in multi-party litigation, and

their rights to participate in the case extends only to issues

relating to the counts for which they are named parties. Defen-

dant-intervenors like the Farm Interests may similarly have an

interest only in particular counts, and the scope of their partici-

pation in the case should correspond with the scope of that

interest.

A8

§ 17-302.560(19) (barring acts that create “an imbalance in

natural populations of aquatic flora or fauna”).5 This

narrative standard is unspecific about exactly what con-

centrations of nitrogen and phosphorous - the particular

nutrients at issue in this case - are permissible. But as

counsel for the United States stated in oral argument, an

order setting maximum concentrations of nutrients is the

remedy that the United States seeks.® If it finds for the

United States on Count I and grants the relief requested,

the District Court will in effect translate the narrative

water quality standards in the SWIM Act into numeric

limits.

> In a footnote to its brief, the United States also alleges a

violation of the state’s antidegradation rule, which prohibits

reduction in the water quality of any “Outstanding Florida

Waters” below the quality that existed in 1979. See

Fla.Admin.Code § 17-3.041(1), (8). This antidegradation rule

provides, however, that it “shall be implemented through the

[state’s] permitting process.” Fla.Admin.Code § 17.3041(7). The

state’s alleged failure to enforce its permitting requirements is

the subject of Count II of the Amended Complaint, and the

antidegradation rule is better seen as an issue relating to that

count than to Count I.

® In oral argument, the United States stated:

The reason that... [the SWIM Act states] a narrative

standard rather than a numerical standard, is

because the impact of nutrients is dependant on the

ecosystem. We are not seeking in this lawsuit one

numerical standard for the State of Florida. The only

thing that we are concerned with in this lawsuit is a

numerical standard for the vegetation in the Park and the

Refuge, and I don’t believe from the evidence we

(Continued on following page)

AY

The problem is that the SWIM Act directs the Water

District to conduct administrative proceedings toward

this same end - translating the Act’s narrative standards

into specific numeric limits. The Water District has issued

a draft “Surface Water Improvement and Management

Plan for the Everglades,” v. 1 and 2 (August 9, 1989) (the

“draft SWIM Plan ) which proposes numeric standards

for implementing the SWIM Act’s requirements, and the

Water District is currently working on a final version. The

Act delegates specific authority to the Water District to

develop the SWIM Plan. See Fla.Stat. § 373.451(5) (stating,

“The Legislature finds that surface water problems can be

corrected .. . through plans and programs .. . that are

planned, designed, and implemented by the water man-

agement districts”). The broad narrative language of the

SWIM Act confirms the grant of administrative discretion

to define what the Act’s standards mean. Cf. Chevron v.

(Continued from previous page)

have right now that we will be seeking the same

numerical standard for the Park and the Refuge.

(emphasis added). In fairness to the District Court, we note

that the United States claimed in that forum that it was not

seeking a numeric standard:

In regard to the draft SWIM Plan, | believe that this

is something in a separate proceeding. . . . The busi-

ness of putting a numerical limit on total phosphorous,

that is within that separate process, putting a practical

standard . .. ona narrative written standard. That is

simply a practical limit. But that is not presently in

this litigation. We are not asking for a number.

Transcript of Hearing held on November 1, 1989, pp. 30-31

(emphasis added).

A10

Natural Resources Defense Council, 467 U.S. 837, 843-44, 104

S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984) (discussing the

implicit grant of administrative discretion in legislative

use of broad statutory language). In short, the United

States in Count I asks the District Court to partially pre-

empt the administrative development of the SWIM Plan

by specifying the numeric standards that apply under the

SWIM Act.

The Farm Interests have a legally protectable right

under the SWIM Act to participate and comment in the

administrative development of the final SWIM Plan, and

to pursue an administrative appeal. See Fla.Admin.Code

§ 17-43.035(2) (requiring public hearing in the prepara-

tion of the SWIM Act); Fla.Stat. § 373.114 (providing a

right to administrative appeal which applies to the final

SWIM Plan). Besides being legally protectable, the Farm

Interests’ right is directly and substantially related to

Count I. The right is direct because it is a right to partici-

pate in the very matter being decided - what numeric

standards should apply under the SWIM Act to the water

that the Water District releases. And the right is substan-

tial because it is the Farm Interests’ only means of

defending their interest in the Water District’s services.

The District Court’s decision in this case may impair

the Farm Interests’ ability to protect their right to partici-

pate in the administrative proceedings. If the District

Court issues an injunction setting numeric water quality

limits, that injunction will of course bind the Water Dis-

trict. The Water District could not deviate from the terms

of the District Court’s order by its own initiative. The

District Court’s decision could thus erase the Farm Inter-

ests’ legally protectable right to participate in the

All

administrative development of the numeric standards

that apply under state law.’

Absent intervention in this case, some avenues of

relief would remain open to the Farm Interests through

subsequent litigation, because they cannot be bound to a

decision to which they are neither party nor privy. See /n

re Birmingham Reverse Discrimination Employment Litiga-

tion, 833 F.2d 1492, 1498 (11th Cir.1987) (holding that one

who is not a privy or party to litigation may not, as a

matter of due process, be bound by the decision), affirmed

sub nom Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104

L.Ed.2d 835 (1989), In this regard, the Farm Interests

? Viewed from a different angle, Count | of the Complaint

seeks to move a state administrative task - development of

standards for implementing the broad commands of the SWIM

Act - to federal court. If the state is not doing its job and

statutory authority supports federal proceedings, this move is

legally proper. The problem is that various groups have the

right to participate in the decision in the administrative forum.

If their rights of participation are not to be lost, the administra-

tive participants must receive a corresponding right to partici-

pate in the judicial proceedings. So too, the federal court needs

to hear what these administrative participants have to say so

that it can make an informed decision.

8 In his dissent to the Eleventh Circuit’s opinion, Judge

Anderson “agree[d] with the .. . court that the[] plaintiffs were

not parties to the prior litigation which resulted in the consent

decree [at issue], and . . . [were] not bound by the consent

decree and should be free on remand to .. . test its validity.”

833 F.2d at 1503. He concluded, however, that certain practical

consequences could still follow from the consent decree -

specifically that a party to the decree could rely on it and use

compliance with its terms as evidence of nondiscriminatory

(Continued on following page)

A12

would remain free to challenge the final SWIM Plan in

state court. See Fla.Stat. § 120.68 (providing for judicial

review of final administrative action in state courts). Even

so, a subsequent court would likely be reluctant, as a

practical matter, to issue a decision that conflicts with the

District Court’s order in the present case. This reluctance

may entail something more than the usual respect for

prior decisions under the doctrine of stare decisis. The

effect of the District Court’s decision on subsequent

courts thus provides a further basis for concluding that

the Farm Interests’ have shown a potential impairment of

their rights sufficient to establish intervention. See Chiles

v. Thornburgh, 865 F.2d 1197, 1214 (11th Cir.1989) (stating

that the petential stare decisis effect of a judgment may, by

itself, support intervention). In short, the Farm Interests

have a direct, substantial, legally protectable interest in

Count I, and this case may impair their ability to defend

that interest. —

(Continued from previous page)

intent in the subsequent suit by the nonparties. /d., at 1502. The

Supreme Court’s affirmance did not take any position on this

issue. See 490 U.S. 761, 109 S.Ct. at 2184 n. 1.

As Judge Anderson suggested in oral argument in the

present case, the Water District can protect itself against the

risk of multiple lawsuits by using Fed.R.Civ.P. 19 and 23 to join

necessary parties or to certify a defendant class for any issues

(in particular, those raised in Count I) where this risk is pre-

sent. “The parties to a lawsuit presumably know better than

anyone else the nature and the scope of the relief sought in the

action. .. . It makes sense therefore to place on them a burden

of bringing in additional parties where such a step is indi-

cated.” Id., 490 U.S. at 765, 109 S.Ct. at 2186.

Al13

The final question is whether the Farm Interests’ are

adequately represented by the Water District. The Farm

Interests’ position is at odds with that of the Water Dis-

trict in key respects. For example, the draft SWIM Plan

that the Water District has issued specifies a phosphorous

concentration of 0.03 ppm for water released to the

Everglades system. See Draft Swim Plan v. II, p. 117. The

Farm Interests do not accept this figure, and point to the

statement by the Water District before the District Court

that even a less restrictive standard of 0.05 ppm of phos-

phorous would entail “draconian consequences” for the

farms using the water. Transcript of Hearing held on

March 7, 1989, p. 11. In these circumstances, the Farm

Interests should not be required to rely on the Water

District to represent them. See Chiles v. Thornburgh, 865

F.2d 1197, 1214 (11th Cir.1989) (holding that the “possi-

bility” that a party would not sufficiently “emphasize”

the position of intervenors meant that adequate represen-

tation was not present).

In sum, the Farm Interests have a direct, substantial,

legally protectable interest in participating in the devel-

opment of numeric water quality standards under state

law. Their ability to protect this interest will be impaired

if the District Court issues an injunction specifying

numeric standards for the Water District because that

injunction will bind the Water District in its administra-

tive proceedings, and will have at least a stare decisis

effect in subsequent litigation. Finally, the Water District

may not adequately represent the Farm Interests because

the two differ on the numeric standard that applies. The

Farm Interests thus meet the criteria for intervention by

right by reason of the issues raised in Count I. On

Al4

remand, the District Court may choose to condition their

intervention in this case on such terms as will be consis-

tent with the fair, prompt conduct of this litigation.’

Counts II, Ill, and IV:

Failure to Obtain State Permits

and Breach of Contract

In Count II of its Amended Complaint, the United

States contends that the Water District has violated Flor-

ida law by operating pumps, water control structures,

and canals without required permits. In Counts III and IV,

the United States contends that the Water District has

breached a February 10, 1984 contract between it and the

Army Corps of Engineers, and a June 8, 1951 contract

between it and the United States. Again, the initial ques-

tion is whether the Farm Interests have a legally protect-

able interest in the United States’ contentions. Because

9 “An intervention of right... may be subject to appropri-

ate conditions or restrictions responsive among other things to

the requirements of efficient conduct of proceedings.” Fed.

R.Civ.P. 24(a) advisory committee’s notes to 1966 amendments.

To mention a few options, the District Court may find it

appropriate to (1) allow the other parties to produce docu-

ments in a single set for the Farm Interests to share and copy

among themselves, (2) require the organizational Farm Inter-

ests to respond to interrogatories regarding each of their mem-

bers who claims an interest in the proceedings, and/or (3) limit

the Farm Interests to a few or a single counsel. On this last

option, see, for example, Sagebrush Rebellion, Inc. v. Watt, 713

F.2d 525, 526 and n.2 (9th Cir.1983) (stating, “Throughout these

proceedings intervenors have . . . spoken with one voice.

Nothing in this opinion should be interpreted as approving

participation by the intervenors on any other basis”).

Al15

their interests are not legally protectable, the Farm Inter-

ests derive no right to intervene by reason of the issues

raised in these counts.

The Farm Interests have asserted no property or other

legal right in the Water District’s services directly. Instead

the Farm Interests say that their economic interests

depend on those services. This is not enough.

“By requiring that the applicant’s interest

be... ‘legally protectable,’ it is plain that some-

thing more than an economic interest is neces-

sary. What is required is that the interest be one

which the substantive law recognizes as belong-

ing to or being owned by the applicant.”

New Orleans Public Service, inc. v. United Gas Pipe Line Co.,

732 F.2d 452, 464 (5th Cir.) (en banc) (emphasis original),

cert. denied, 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 360

(1984); see Getty Oil Co. v. Department of Energy, 865 F.2d

270, 276 (Temp.Em.Ct.App.1988) (stating, “An economic

interest .. . alone is insufficient to warrant intervention”)

(citation omitted). This does not mean that the Farm

Interests’ economic livelihood in unimportant. It only

means that the Farm Interests must show that the present

proceedings threaten some substantive legal protection

for their livelihood to support intervention by right.

A comparison may help make this point clear. The

Farm Interests have referred the Court to the Eighth

Circuit’s decision in Ford Motor Co. v. Bisanz Bros., Inc.,

249 F.2d 22 (8th Cir.1957). In Ford, the court of appeals

held that-Ford Motor Company could intervene by right

in a nuisance action by a neighboring landowner against

the railroad that served the Ford factor. We believe that

Ford was rightly decided because, although Ford did not

Al6

own the railroad, the railroad apparently could not have

suspended service to Ford without an order from the

Interstate Commerce Commission, after notice to Ford

and a hearing in which Ford would have had the right to

participate. Id., at 23, 24. Thus, Ford claimed a “right to

have the railroad furnish service” and the railroad had

“the obligation” to provide those services. Id., at 28

(emphasis added). If, on the other hand, the railroad had

been free to suspend its service, Ford would have had no

legally protectable interest at stake, no matter how much

Ford’s economic interests may have depended on that

service. The holding in Ford thus supports the rule that a

legal interest in the proceedings is necessary to support

intervention.

Again, the Farm Interests have not asserted any legal

right in the Water District’s services - however much

their economic interests may depend on those services.

Nor have the Farm interests claimed any right to partici-

pate in the state’s decision on the permit requirements

that apply to the Water District, which is the subject of

Count II, or any right as a third-party beneficiary under

the 1984 contract, which is the subject of Count III. The

Farm Interests do make a passing claim to being third-

party beneficiaries under the 1951 contract in Count IV,

but this is baseless. The 1951 contract is governed by

federal law, which allows identifiable third parties to

assert direct obligations to them under a contract. See,

e.g., Berberich v. United States, 5 Cl.Ct. 652, 655-56 (1984),

aff'd without opinion, 770 F.2d 179 (Fed.Cir.1985). The Farm

Interests fail to point to any specific language in the 1951

contract that confers rights on them. Instead they simply

rely on the contract’s broad purposes of flood control and

Al7

environmental protection to support their claim. These

purposes extend to the Farm Interests, but they also

extend to nearly everyone else in central and southern

Florida. The Farm Interests are not third-party benefici-

aries of the 1951 contract.

In short, the Farm Interests have no legally protect-

able interest at stake in the issues raised in Counts II, III,

or IV of the Amended Complaint. With no legally protect-

able interest, the Farm Interests derive no right to inter-

vene from the issues raised in these counts.'° As

discussed above, the District Court may prevent delay in

the resolution of these counts by placing appropriate

conditions on the Farm Interests’ interverition in this

case, or by ordering separate trial and discovery of one or

more of these counts.!!

10 There is some dispute as to whether the United States

has a fifth count for common law nuisance lurking in its

Amended Complaint. The United States contends that the

“delivery of nutrient-loaded waters [by the Water District]

constitutes a nuisance under Florida law” and asks for an

injunction to “abate the nuisance.” Amended Complaint, 1448,

68. The United States clarified in oral argument, however, that

it is referring to Fla.Stat. § 373.433, which declares acts in

violation of the state’s permit and water quality requirements

to be a statutory nuisance. The nuisance claim, then, does not

add a substantive count to the United States’ other claims

arising under state law.

11 We note that the 1984 contract that is the subject of

Count II] may be particularly appropriate for separate trial and

discovery because it already lists numeric water quality stan-

dards for phosphorous, nitrogen, and other constituents. For

this reason, the determination of whether the Water District

has breached this contract may be straightforward. A separate

(Continued on following page)

Al1&

Permissive Intervention

The Farm Interests also ask this Court to review the

District Court’s denial of permissive intervention under

Fed.R. Civ.P. 24(b). We review for abuse of discretion. See

Chiles v. Thornburgh, 865 F.2d 1197, 1215 (11th Cir.1989).

The District Court concluded that permissive interven-

tion would “delay and prejudice the rights of the original

parties” and “make this case even more unmanageable

than it already appears to be” by adding witnesses and

collateral issues. District Court’s Order on Motions to

Intervene and Rule 19 Joinder, p. 9. We find no abuse of

discretion in this decision. In a similar context, Judge

Tuttle recently wrote for this Court:

intervention [in this case] . . . would severely

protract the litigation. Although we express no

opinion as to the merits of plaintiff's claims, an

action which seeks to preserve the environment from

further deterioration deserves refuge from... undue

delay.

Manasota-88, Inc. v. Tidwell, 896 F.2d 1318, 1323 (11th

Cir.1990) (emphasis added). In the present case, the Dis-

trict Court is correct to use its full discretionary powers -

including its discretion to deny permissive intervention -

to prevent delay that may lead to further deterioration of

the Everglades.

(Continued from previous page)

trial and discovery on this count may thus allow the District

Court to provide prompt, initial relief, if it turns out that the

United States can prove its allegations.

ist

Alg9 —=

Conclusion

The Farm Interests meet the criteria for intervention

by right by reason of the issues raised in Count | of the

Amended Complaint. The order denying intervention is

reversed and the case is remanded to the District Court to

allow intervention subject to such conditions as the Dis-

trict Court finds appropriate consistent with this opinion

Reversed and Remanded.

HATCHETT, Circuit Judge, dissenting in part:

I dissent from that portion of the majority opinion

which allows the Farm Interests to intervene as a matter

of right. The majority’s reversal of the district court on

Count I is for two reasons: (1) “the district court’s deci

sion in this case may impair the Farm Interest ability to

protect their right to participate in the administrative

proceedings. If the district court issues an injunction set

ting numeric water quality limits, that injunction will of

course bind the water district”; the (2) “viewed from a

different angle, Count | of the complaint seeks to move a

state administrative task — development of standards for

implementing broad commands of the SWIM Act - to

federal court.”

The majority’s reliance on these two reasons indi-

cates that intervention of right is being provided to the

Farm Interest because the majority has imagined “hor-

ribles.” The majority recognizes that Count | of the com-

plaint seeks to move a state administrative task to federal

court, but concludes that an experienced district court

judge does not or will not recognize the shift from Florida

administrative proceedings to federal court litigation. At

A20

this early stage of the proceedings, | would affirm the

district court and allow it to continue sharpening the

issues mindful of the affect a numeric level determination

would have on the Farm Interests’ administrative

remedies. Surely, if the time arises where the Farm Inter-

ests’ remedies will be affected, the district court will take

steps to protect those interests.

Of course, we must not forget that the courts of

Florida, the courts of the United States, and Florida’s

administrative agencies, are open and capable of address-

ing issues framed by the Farm Interests.

MES eat eee tent re tthe RM «till NA,

A21

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 89-6029

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

FLORIDA KEYS CITIZEN COALITION,

FLORIDA WILDLIFE FEDERATION,

ENVIRONMENTAL DEFENSE FUND,

SIERRA CLUB, NATIONAL WILDLIFE

FEDERATION. WILDERNESS SOCIETY,

NATIONAL PARKS & CONSERVATION

ASSOCIATION and DEFENDERS OF WILDLIFE,

Plaintiffs-Intervenors-Appellees,

FLORIDA AUDUBON SOCIETY, ET AL,

Plaintiffs-Intervenors,

versus

SOUTH FLORIDA WATER MANAGEMENT

DISTRICT, JOHN R. WOODRASKA and

FLORIDA DEPARTMENT OF

ENVIRONMENTAL REGULATION,

Defendants-Appellees,

DALE TWACHTMAN,

Defendant,

CITY OF BELLE GLADE,

Defendant-Intervenor,

WESTERN PALM BEACH COUNTY

FARM BUREAU, INC., FLORIDA FRUIT

AND VEGETABLE ASSOCIATION,

FLORIDA SUGAR CANE LEAGUE, INC.,

ROTH FARMS, INC., K.W.B. FARMS and

BEARDSLEY FARMS, INC.,

Movants-Appeilants.

A22

No. 89-6269

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

FLORIDA KEYS CITIZEN COALITION,

ET AL,

Plaintiffs-Intervenors,

NATIONAL WILDLIFE FEDERATION,

Plaintiff-Intervenor-Appellee,

versus

SOUTH FLORIDA WATER

MANAGEMENT DISTRICT, JOHN R.

WOODRASKA and FLORIDA

DEPARTMENT OF ENVIRONMENTAL

REGULATION,

Defendants-Appellees,

DALE TWACHTMAN,

Defendant,

CITY OF BELLE GLADE,

Defendant-Intervenor,

WESTERN PALM BEACH COUNTY

FARM BUREAU, INC., FLORIDA

FRUIT AND VEGETABLE

ASSOCIATION, FLORIDA SUGAR

CANE LEAGUE, INC., ROTH FARMS,

INC., K.W.B. FARMS and BEARDSLEY

FARMS, INC.,

Movants-Appellants.

- a

A23

On Appeal from the United States District Court for the

Southern District of Florida

FILED MAR - 6 1991

ORDER:

The Sugar Cane Growers Cooperative of Florida’s

motion for leave to appear as amicus curiae to suggest

lack of jurisdiction in this and the district court for want

of a justiciable case or controversy is DENIED.

Appellant’s Western Palm Beach County Farm

Bureau, Inc motion to strike appellee United States’ peti-

tion for rehearing is DENIED.

Appellants’ Western Palm Beach County Farm

Bureau, Inc. alternative suggestion that an answer to the

United States’ petition for rehearing be allowed is

GRANTED. Appellants may file a reply to the United

States’ petition for rehearing within 7 days from the date

of this order.

/s/ JOSEPH W. HATCHETT

UNITED STATES CIRCUIT

JUDGE

A24

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Nos. 89-6029 and 89-6269

UNITED STATES of America, et al,

Plaintiffs-Appellees

versus

SOUTH FLORIDA WATER MANAGEMENT DIS-

TRICT., et al

Defendants-Appellees

WESTERN PALM BEACH COUNTY FARM BUREAU,

Inc., et al

Movants-Appellants

Appeal from the United States District Court

for the Southern District of Florida

FILED MAR 22 1991

BEFORE: HATCHETT and ANDERSON, Circuit Judges,

and ESCHBACH’, Senior Circuit Judge.

ORDER:

The three farm corporations and three agricultural

organizations that have intervened in this case (together,

the “Farm Interests”) have filed a “Suggestion and

Motion as to Lack of Jurisdiction.” We decline to consider

this motion. As we held in our opinion in the underlying

appeal, the Farm Interests may intervene in this case to

* Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge

for the Seventh Circuit, sitting by designation.

A25

protect their right to participate in the development of

numeric limits implementing the state’s narrative water

quality standards. The jurisdictional issues that the Farm

Interests raise in their motion are only indirectly related

to the protection of this right. Further, the Farm Interests

are adequately represented on the jurisdictional issues by

the defendants South Florida Water District and Florida

Department of Environmental Regulation, which have

already raised many of these issues with the District

Court. Finally, even if the Farm Interests were proper

parties to raise the jurisdictional issues in their motion, it

would be procedurally inappropriate for us to extend our

limited appellate review under the anomolous rule to

decide issues not raised in the parties’ briefs or in this

Court’s published opinion.

The Farm Interests may still seek to present their

jurisdictional motion to the District Court. If they choose

this step, they will be well advised to ask the District

Court’s permission first. As we have stated, the District

Court may condition the Farm Interests’ intervention in

this case on such terms as will be consistent with the fair,

prompt conduct of this litigation. This authority allows

the District Court to dispose in summary fashion (as we

have done here) of any motions that the Farm Interests

may file beyond the scope of their right to participate in

these proceedings.

A26

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Nos. 89-6029 and 89-6269

UNITED STATES of America, et al,

Plaintiffs-Appellees

versus

SOUTH FLORIDA WATER MANAGEMENT DISTRICT.,

et al

Defendants-Appellees

WESTERN PALM BEACH COUNTY FARM BUREAU,

Inc., et al

Movants-Appellants

Appeal from the United States District Court

for the Southern District of Florida

FILED APR - 5 1991

Before HATCHETT and ANDERSON, Circuit Judges,

and ESCHBACH”, Senior Circuit Judge.

ORDER:

The three farm corporations and three agricultural

organizations that have intervened in this case (together,

the “Farm Interests”) have filed a “Motion to Certify

Pending, Important Question of Florida Law to the

Supreme Court of Florida” (the “Certification Motion”).

In the Certification Motion, the Farm Interests state that

* Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge

for the Seventh Circuit, sitting by designation.

A27

their purpose is to aid the Court in its resolution of the

“Suggestion and Motion as to Lack of Jurisdiction” that

the Farm Interests previously filed. In light of our Order

of March 22, 1991 declining to consider the “Suggestion

and Motion as to Lack of Jurisdiction,” we deny the

Certification Motion as moot.

A28

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 89-6029

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

FLORIDA KEYS CITIZEN COALITION,

FLORIDA WILDLIFE FEDERATION,

ENVIRONMENTAL DEFENSE FUND,

SIERRA CLUB, NATIONAL WILDLIFE

FEDERATION, WILDERNESS SOCIETY,

NATIONAL PARKS & CONSERVATION

ASSOCIATION and DEFENDERS OF WILDLIFE,

Plaintiffs-Intervenors-Appellees,

FLORIDA AUDUBON SOCIETY, ET AL.,

Plaintiffs-Intervenors,

versus

SOUTH FLORIDA WATER MANAGEMENT

DISTRICT, JOHN R. WOODRASKA and

FLORIDA DEPARTMENT OF

ENVIRONMENTAL REGULATION,

Defendants-Appellees,

DALE TWACHTMAN,

Defendant,

CITY OF BELLE GLADE,

Defendant-Intervenor,

WESTERN PALM BEACH COUNTY

FARM BUREAU, INC., FLORIDA FRUIT

AND VEGETABLE ASSOCIATION,

FLORIDA SUGAR CANE LEAGUE, INC.,

ROTH FARMS, INC., K.W.B. FARMS and

BEARDSLEY FARMS, INC.,

Defendants-Appellants.

A29

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 89-6269

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

FLORIDA KEYS CITIZEN COALITION, ET AL.,

Plaintiffs-Intervenors,

ENVIRONMENTAL DEFENSE FUND,

NATIONAL WILDLIFE FEDERAL,

Plaintiffs-Intervenors-Appellees,

versus

SOUTH FLORIDA WATER

MANAGEMENT DISTRICT, JOHN R.

WOODRASKA and FLORIDA

DEPARTMENT OF ENVIRONMENTAL

REGULATION,

Defendants-Appellees,

DALE TWACHTMAN,

Defendant,

CITY OF BELLE GLADE,

Defendant-Intervenor,

WESTERN PALM BEACH COUNTY

FARM BUREAU, INC., FLORIDA FRUIT

AND VEGETABLE ASSOCIATION,

FLORIDA SUGAR CANE LEAGUE, INC.,

ROTH FARMS, INC., K.W.B. FARMS and

BEARDSLEY FARMS, INC.,

Movants-Appellants.

A30

Appeal from the United States District Court.

for the Southern District of Florida

FILED MAY - 7 1991

ON PETITION(S) FOR REHEARING

BEFORE: HATCHETT and ANDERSON, Circuit Judges,

and ESCHBACH”, Senior Circuit Judge.

PER CURIAM:

The petitions for rehearing filed by the United States

of America and appellants Farm Interests are denied.

ENTERED FOR THE COURT:

/s/ Joseph W. Hatchett

United States Circuit Judge

* Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge

for the Seventh Circuit, sitting by designation.

A31

FLORIDA STATUTES 1989

403.412 Environmental Protection Act.-

(1) This section shall be known and may be cited as

the “Environmental Protection Act of 1971.”

(2)(a) The Department of Legal Affairs, any political

subdivision or municipality of the state, or a citizen of the

state may maintain an action for injunctive relief against:

1. Any governmental agency or authority charged

by law with the duty of enforcing laws, rules, and regula-

tions for the protection of the air, water, and other natural

resources Of the state to compel such governmental

authority to enforce such laws, rules, and regulations;

2. Any person, natural or corporate, or govern-

mental agency or authority to enjoin such persons, agen-

cies, or authorities from violating any laws, rules, or

regulations for the protection of the air, water, and other

natural resources of the state.

(b) In any suit under paragraph (a), the Department

of Legal Affairs may intervene to represent the interests

of the state.

(c) Asa condition precedent to the institution of an

action pursuant to paragraph (a), the complaining party

shall first file with the governmental agencies or authori-

ties charged by law with the duty of regulating or prohib-

iting the act or conduct complained of a verified

complaint setting forth the facts upon which the com-

plaint is based and the manner in which the complaining

party is affected. Upon receipt of a complaint, the govern-

mental agency or authority shall forthwith transmit, by

registered or certified mail, a copy of such complaint to

A32

those parties charged with violating the laws, rules, and

regulations for the protection of the air, water, and other

natural resources of the state. The agency receiving such

complaint shall have 30 days after the receipt thereof

within which to take appropriate action. If such action is

not taken within the time prescribed, the complaining

party may institute the judicial proceedings authorized in

paragraph (a). However, failure to comply with this sub-

section shall not bar an action for a temporary restraining

order to prevent immediate and irreparable harm from

the conduct or activity complained of.

(d) In any action instituted pursuant to paragraph

(a), the court, in the interest of justice, may add as party

defendant any governmental agency or authority charged

with the duty of enforcing the applicable laws, rules, and

regulations for the protection of the air, water, and other

natural resources of the state.

(e) No action pursuant to this section may be main-

tained if the person (natural or corporate) or govern-

mental agency or authority charged with pollution,

impairment, or destruction of the air, water, or other

natural resources of the state is acting or conducting

operations pursuant to currently valid permit or certifi-

cate covering such operations, issued by the appropriate

governmental authorities or agencies, and is complying

with the requirements of said permits or certificates.

(f) In any action instituted pursuant to this section,

other than an action involving a state NPDES permit

authorized under s. 403.0885, the prevailing party or

parties shall be entitled to costs and attorney's fees. Any

award of attorney’s fees in an action involving such a

A33

state NPDES permit shall be discretionary with the court.

If the court has reasonable ground to doubt the solvency

of the plaintiff or the plaintiff's ability to pay any cost or

judgment which might be rendered against him in an

action brought under this section, the court may order the

plaintiff to post a good and sufficient surety bond or cash.

(3) The court may grant injunctive relief and impose

conditions on the defendant which are consistent with and in

accordance with law and any rules or regulations adopted by

any state or local governmental agency which is charged to

protect the air, water, and other natural resources of the state

from pollution, impairment, or destruction.

(4) The doctrines of res judicata and collateral

estoppel shall apply. The court shall make such orders as

necessary to avoid multiplicity of actions.

(5) In any administrative, licensing, or other pro-

ceedings authorized by law for the protection of the air,

water, or other natural resources of the state from pollu-

tion, impairment, or destruction, the Department of Legal|

Affairs, a political subdivision or municipality of the

State, or a citizen of the state shall have standing to

intervene as a party on the filing of a verified pleading

asserting that the activity, conduct, or product to be

licensed or permitted has or will have the effect of

impairing, polluting, or otherwise injuring the air, water,

or other natural resources of the state.

(6) Venue of any causes brought under this law

shall lie in the county or counties wherein the cause of

action is alleged to have occurred.

A34

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

UNITED STATES OF AMERICA, CASE NO.

Plaintiff 88-1886-CIV-

HOEVELER

V.

SOUTH FLORIDA WATER

MANAGEMENT DISTRICT; JOHN

R. WODRASKA, Executive

Director, South Florida Water

Management District; FLORIDA

DEPARTMENT OF

ENVIRONMENTAL REGULATION;

and DALE TWACHTMANN,

Secretary, Florida Department of

Environmental Regulation,

Defendants.

/

AMENDED COMPLAINT

Plaintiff, United States of America, sues Defendants,

South Florida Water Management District, John R.

Wodraska, Executive Director of South Florida Water

Management District, Florida Department of Environ-

mental Regulation, and Dale Twachtmann, Secretary of

' Florida Department of Environmental Regulation, and

says as follows:

JURISDICTION AND VENUE

1. This Court has jurisdiction pursuant to 28 U.S.C.

§§ 1331 and 1345.

2. Venue is proper in the Southern District of Flor-

ida pursuant to 28 U.S.C. § 1391(b) because the property

A35

in question is located within the Southern District of

Florida and the defendants can be found within the Dis-

trict.

PARTIES

3. Plaintiff, United States, owns the following prop-

erty within the State of Florida:

(a). Everglades National Park, located in Dade,

Monroe, and Collier Counties, which con-

sists of approximately 1.4 million acres

held in fee; and

(b). Arthur R. Marshall Loxahatchee National

Wildlife Refuge, located in Palm Beach

County, which consists of approximately

2,500 acres held in fee and 143,000 acres

held under a long term cooperative agree-

ment signed on June 8, 1951, entitled

“Cooperative and License Agreement

between the Central and Southern Florida

Flood Control District and the United

States of America.”

4. Both Everglades National Park (“Everglades” or

“Park”) and Arthur R. Marshall Loxahatchee National

Wildlife Refuge (“Loxahatchee”) constitute natural

resources of the highest order and have been recognized

as such by the United States Congress and the Florida

Legislature.

5. Everglades National Park is made up of wet prai-

ries, aquatic sloughs, sawgrass prairies, hammock

islands, pinelands, and estuarine systems. In addition to

its status as a National Park, it has been designated an

International Biosphere Reserve and World Heritage Site,

Federal Wilderness Area, and Wetland of International

A36

Significance. As such it provides sanctuary to rare, threat-

ened, and endangered species of wildlife including the

Florida Panther, Southern Bald Eagle, Woodstork, Ameri-

can Crocodile, and Cape Sable Sparrow. The Park has

diverse and complex ecosystems that require non-pol-

luted, low nutrient waters for their ecological integrity

because of the native flora and fauna developed under

these circumstances.

6. Arthur R. Marshall Loxahatchee National Wild-

life Refuge is a remnant of the original northern

Everglades and has the same diversity of marsh habitat.

Like the Park, it is a sanctuary to unique wildlife species

and is designated as critical habitat for the endangered

Snail Kite. Low nutrient waters are also required in Lox-

ahatchee to preserve its native habitat.

7. Both Everglades National Park and Loxahatchee

National Wildlife Refuge are designated outstanding

Florida Waters under Florida law and lowering their

ambient water quality is prohibited. Together these two

natural resources contain habitat for 26 threatened or

endangered species.

8. Defendant, Department of Environmental Regu-

lation (“DER”), is the State agency vested with significant

power and responsibility to control the waters of Florida

and prevent pollution. The DER’s powers and duties

under Fla. Stat. 403 include: establishing water quality

standards for the state, administerin~ a permit system

required for any structure that may be a source of water

pollution, and enforcement of the statute by administra-

tive and civil actions to compel compliance with permit

os Oe Ne Oil

A37

conditions. Under Fla. Stat. 373.026, DER is given addi-

tional powers such as supervisory authority over water

management districts.

9. Defendant, Dale Twachtmann, is Secretary of the

Florida Department of Environmental Regulation. All ref-

erences herein to “DER” shall include Defendant, Dale

Twachtmann, as Secretary of DER as well as DER itself as

an agency.

10. Defendant, South Florida Water Management

District (“SFWMD”), is delegated significant power and

responsibility by DER to manage and protect the State’s

water resources within the geographical portion of Flor-

ida relevant to this lawsuit. SFWMD has certain respon-

sibilities in managing and protecting water resources

directly stemming from legislative mandate. In addition,

SFWMD itself owns and operates various stationary

installations.

11. Defendant, John R. Wodraska, is the Executive

Director of the South Florida Water Management District.

All references herein to “SFWMD” shall include Defen-

dant, John W. Wodraska, as Executive Director of the

South Florida Water Management District as well as

SFWMD itself.

STATEMENT OF THE CASE

12. SFWMD manages more than one hundred water

control structures and some 1,400 miles of canals and

levees as part of its water management responsibilities.

These structures and canals must be operated in accor-

dance with the State’s laws and regulations. This water

A38

system artificially transports water throughout the

Kissimmee/Okeechobee/Everglades basin. Vast quan-

tities of water are delivered to Loxahatchee National

Wildlife Refuge and Everglades National Park.

13. One of the largest consumers of water south of

Lake Okeechobee (“Lake”) is the agri-industry located

within a 700,000 acre basin called the Everglades Agri-

cultural Area (“EAA”). The EAA lies south of Lake

Okeechobee between the Lake and the Water Conserva-

tion Areas. See Exhibit A.

14. Within the EAA, SFWMD uses its pumps and

canals to drain the basin during the wet season and

irrigate crops during the dry season. SFWMD sends tons

of pollutants southward to the detriment of downstream

landowners including Everglades and Loxahatchee.

15. The end result of this water management

scheme is that large quantities of polluted water have

resulted in the destruction of lower forms of aquatic life

essential to the preservation of the sensitive ecosystems

in Loxahatchee, including but not limited to:

(a) Loss of natural periphyton mat;

(b) Change from a diverse vegetative commu-

nity to a monoculture of cattails; and

(c) Loss of dissolved oxygen.

16. Nutrient induced destruction of the periphyton

mat directly and adversely impacts all higher forms of

biological life including the fish and aquatic birds which

inhabit the Park and Loxahatchee.

17. Florida law recognizes that excessive nutrients

(total nitrogen and total phosphorus) constitute one of

A39

the most severe water quality problems facing the State.

In addition, the Florida Administrative Code requires

that particular consideration be given to protection from

nutrient pollution in those waters containing very low

nutrient concentrations. Natural waters of Everglades

and Loxahatchee fall within this category.

18. DER and SFWMD have the duty under Florida

law to regulate the quality of these waters in order to

reduce the nutrient and pollution load. They have

breached that duty.

19. Further, SFWMD has entered into a contract

with Everglades National Park which promises the Park

that certain water quality criteria will be met, and that

SFWMD will use appropriate action including legal pro-

cess to assure that water quality criteria will be enforced.

A copy of that contract is attached. See Exhibit B.

SFWMD has breached that contract.

20. SFWMD has also entered a contract with the

United States of America for the use of Conservation

Area | as a wildlife refuge. The contract provides that the

refuge shall be used in a manner consistent with wildlife

management. The nutrient induced destruction of habitat

is inconsistent with this purpose and therefore constitutes

a breach of the contract. See Exhibit C.

21. DER and SFWMD have knowingly failed to

enforce State laws enacted to regulate and protect water

quality while agri-industry acreage and production

within the EAA and elsewhere surrounding Lake

Okeechobee expanded. The result of this regulatory fail-

ure has been a dangerous increase in the amount of

nutrient pollution in the water conveyance system.

ey

A40

22. Until 1979, a large portion of the polluted water

coming off the Everglades Agricultural Area was back-

pumped into Lake Okeechobee by SFWMD. These waters

contained extremely high levels of pollutants such as

phosphorus and nitrogen. Nutrients and other pollutants

have been recognized by DER and SFWMD as causing or

contributing to serious degradation of water quality in

Lake Okeechobee.

23. In 1979, SFWMD and DER began diverting sig-

nificant amounts of these polluted waters, south toward

the Water Conservation Areas and Everglades National

Park. The Water Conservation Areas lie between the EAA

and Everglades National Park.

24. Loxahatchee Wildlife Refuge is almost entirely

contained within Water Conservation Area 1. Water Con-

servation Areas 2A and 2B lie to the southwest of number

1. Water Conservation Areas 3A and 3B lie immediately

north of and adjacent to Everglades National Park. The

Conservation Areas are made up of historic Everglades

marsh which depend on pristine, almost nutrient-free

water. As a result of the management strategy adopted in

1979, increased amounts of polluted waters flow south-

ward through the Water Conservation Areas into

Everglades National Park.

25. The diversion of polluted water has caused or

contributed to violations of state water quality standards

in Loxahatchee. In Loxahatchee and the other Water Con-

servation Areas this pollution has already caused tens of

thousands of acres of irreversible vegetative changes to

the delicate and diverse marsh habitats. Cattails have

invaded and taken over sawgrass stands, wet prairies,

A4l1

and slough communities. A monoculture of cattails

depletes dissolved oxygen so that native fish and wildlife

habitats are lost.

26. These polluted waters are creating an expanding

nutrient front that has invaded Loxahatchee and the other

Water Conservation Areas. Further, increased nutrient

levels have been documented in the waters and soils of

Everglades National Park.

27. The extensive damage to the native vegetation

which has already occurred in Loxahatchee Wildlife Ref-

uge and the Water Conservation Areas constitutes clear

and convincing evidence of the current danger to

Everglades National Park. Unless immediate measures

are taken to prevent excessive nutrients and contami-

nants from being dumped downstream into Everglades

National Park, the damage which is occurring in Lox-

ahatchee and the Water Conservation Areas will also

occur in the Park.

28. Such damage threatens to undermine the very

purposes for which these areas were established. Con-

gress has repeatedly affirmed that National Parks must

be protected from ecological damage and remain unim-

paired for the enjoyment of future generations.

Numerous Acts of Congress have been directed at pre-

serving and protecting intact the sensitive ecological bal-

ance in Everglades National Park. Specifically:

(a) National Park Service Organic Act (16

U.S.C. § 1), August 25, 1916, whose stated

“purpose is to conserve the scenery and the

natural and historic objects and the wild

life therein and to provide for the enjoy-

ment of the same in such manner and by

A42

such means as wiil leave them unimpaired

for the enjoyment of future generations.”

(b) Everglades National Park Authorization

Act (16 U.S.C. § 410c), May 30, 1934, which

states that Everglades National Park area

shall “be permanently reserved as a wilder-

ness and no development of the project or

plan . . . shall be undertaken which will

interfere with preservation intact of the

unique flora and fauna and the essential

primitive natural conditions now prevail-

ing in this area.”

(c) Wilderness Act (16 U.S.C. § 1131(a)), Septem-

ber 3, 1964, which sets forth Congressional

intent as it relates to wilderness management

and protection, specifically, “ . . . there is

hereby established a National Wilderness Pre-

servation System to be composed of federally

owned areas designated by Congress as ‘wil-

derness areas’, and these shall be adminis-

tered for the use and enjoyment of the

American people in such manner as will leave

them unimpaired for future use and enjoy-

ment as wilderness... . ”

By Act of Congress, November 10, 1978, 16 U.S.C. § 1132,

1.3 million acres of Everglades National Park was

declared wilderness, to be administered pursuant to the

Wilderness Act of 1964.

COUNT I

DER AND SFWMD HAVE VIOLATED STATE LAW

BY FAILING TO REGULATE WATER POLLUTION

29. Plaintiff realleges paragraphs 1 through 28

above.

A43

30. Defendant, Department of Environmental Regu-

lation, is the Florida agency vested under Florida Stat.

373 with the power and responsibility to conserve, pro-

tect, manage, and control the waters of Florida. DER is

further responsible for administration of the provisions of

Fla. Stat. 373 otherwise known as the Florida Water

Resources Act of 1972 (“Chapter 373”).

31. Pursuant to Chapter 373, DER may delegate its

powers to the governing board of a water management

district such as the South Florida Water Management

District. For example, the power to issue consumptive use

permits is delegated to SFWMD.

32. Under the Florida Surface Water Improvement

and Management Act of 1987, Fla. Stat. 373.4595(2)(a)1.,

SFWMD shall not divert waters to Everglades National

Park in such a way that:

(a) State water quality standards are violated;

or

(b) The nutrients in diverted waters adversely

affect native vegetative communities or

wildlife.

33. Vegetative changes caused by nutrient polluted

waters delivered by SFWMD have occurred in Conserva-

tion Area 3A, immediately north of and adjacent to

Everglades National Park. If the excess nutrient pollution

continues, the same vegetative changes will occur in the

Park. Increased nutrient levels have already been docu-

mented in the Park.

34. DER has the power and duty to control and

prohibit pollution of water under Fla. Stat. 403, otherwise

known as the Florida Air and Water Pollution Control Act

A44

(“Chapter 403”). That Act declares that the public policy

of Florida is to conserve the waters of the State and to

protect, maintain, and improve the quality thereof for

public water supplies, for the propagation of wildlife,

fish, and other beneficial uses. It also prohibits the dis-

charge of wastes into Florida waters without treatment

necessary to protect those beneficial uses of the water.

35. Pursuant to the provisions of Chapter 403, DER

has designated both Everglades and Loxahatchee as Out-

standing Florida Waters. Accordingly, they are afforded

the highest protection because of their exceptional eco-

logical significance.

36. Both DER and SFWMD have the power and

responsibility to issue and enforce various permits for

protection and management of water. The purpose of

these permits is to ensure that the waters within the State

are protected in accordance with State regulation.

37. Both DER and SFWMD have failed to exercise

their power and failed to fulfill their respective respon-

sibilities under Chapter 373 and Chapter 403, including

but not limited to, the following ways:

(a) They have failed to regulate polluted

waters from the Everglades Agricultural

Area and elsewhere surrounding the Lake

that contain harmful nutrients and other

contaminants, including, inter alia, nitro-

gen, phosphorus, herbicides;

(b) They have failed to prevent violation of

state water quality standards for waters

entering Loxahatchee, and Everglades

National Park;

A45

(c) They have failed to halt movement of the

expanding nutrient front that threatens the

ecological integrity of Everglades National

Park;

(d) They have allowed the ambient water qual-

ity of Everglades National Park and Lox-

ahatchee National Wildlife Refuge to be

lowered beyond the quality that existed

when they were designated as Outstanding

Florida Waters in March of 1979; and

(e) SFWMD has deliberately and consistently

diverted polluted waters into Loxahatchee

that have adversely affected native vegeta-

tive communities.

COUNT II

SFWMD HAVE VIOLATED STATE STATUTORY

AND COMMON LAW BY OPERATING

UNPERMITTED STRUCTURES

38. Plaintiff realleges paragraphs 1 through 37

above.

39. Florida law governing the issuance of DER per-

mits to use or dispose of water are applicable to SFWMD

when SFWMD operates and maintains pumps and other

water control structures.

40. The pumps, water controi structures, and canals

operated by the SFWMD constitute stationary installa-

tions as defined by Florida Law.

41. SFWMD operates certain stationary installa-

tions, such as the S-5A and S-6 pumps, without permits

from DER. These structures deliver large quantities of

nutrient polluted water to Loxahatchee National Wildlife

A46

Refuge. SFWMD also without DER permits operates

structures S-7 and S-8 that deliver water to the Conserva-

tion Areas north of Everglades National Park.

42. Florida law e2quires that any stationary installa-

tion which may reasonably be expected to cause water

pollution must not be operated without a permit.

43. SFWMD has violated Florida law by operating

unpermitted stationary installations that have been

shown to cause or contribute to pollution.

44. DER has violated Florida law by allowing

SFWMD to operate such stationary installations without

permits.

45. The operation of unpermitted structures has

caused violations of State water quality standards in Lox-

ahatchee and Everglades National Park.

46. Ambient water quality standards for Lox-

ahatchee and Everglades National Park were established

according to Florida law when they were designated as

Outstanding Florida Waters on March 1, 1979.

47. Florida Code provisions dealing with Outstand-

ing Florida Waters require that nutrient concentrations of

a body of water cannot be altered to cause an imbalance

in the natural populations of aquatic flora or fauna. Man-

induced nutrient loading of water constitutes degrada-

tion under Florida law. ;

48. Since its designation in 1979 as an Outstanding

Florida Water, Loxahatchee has suffered thousands of

acres of change in its native vegetation causing an imbal-

ance of the natural flora and fauna by giving rise to

monocultures of cattails. These changes have been caused

A47

by the nutrient-loaded waters delivered through the

unpermitted S-5A and S-6 structures. The delivery of

nutrient-loaded water constitutes a nuisance under Flor-

ida law.

49. The S-7 and S-8 structures have caused or con-

tributed to increased pollution in the waters being deliv-

ered to Everglades National Park. If these discharges

continue, they will result in the same vegetative changes.

The discharges have already resulted in changes in the

water and soils of Everglades National Park constituting

a nuisance under Florida law.

COUNT III

SFWMD HAS BREACHED AN EXPRESS CONTRACT

BY DIVERTING POLLUTED WATER INTO

EVERGLADES NATIONAL PARK

50. Plaintiff realleges paragraphs 1 through 49

above.

51. On February 10, 1984, SFWMD entered into a

contract with the National Park Service and the United

States Army Corps of Engineers (“Corps”). This contract

sets forth water quality standards for deliveries by

SFWMD to the Park.

52. The terms of the contract specify water quality

criteria for 27 parameters including nitrogen, phos-

pl orus, dissolved oxygen, and trace metals. The concen-

trations of pesticides and herbicides in surface waters

delivered to the Park are to be zero or below the level of

detection. Federal, State, or local water quality criteria

that are more stringent shall apply.

A48

53. SFWMD contractually agreed, among other

promises, to:

(a) Ensure that surface waters delivered to the

Park are of sufficient purity to prevent eco-

logical damage or deterioration of the

Park’s environment;

(b) Deliver water to the Park that meets the

criteria set forth in the contract; and

(c) Take legal action where necessary to pre-

vent ecological damage to, or deterioration

of, the Park’s environment from water qual-

ity violations.

54. SFWMD has breached the promises set forth in

the contract. Data have been collecied by the SFWMD

and the Corps pursuant to the contract which document

these violations.

55. Under the power delegated to SFWMD by DER,

SFW MD has both the duty and the means to reduce levels

of nutrients and other pollutants in the waters delivered

to the Park. SFWMD is required to improve water quality

through its permitting and other authority pursuant to

state law. Plaintiff United States does not have the power

to undertake such action.

56. Irreversible ecological damage to the sensitive

and valuable resources of Everglades National Park will

result if violations continue. Such damage will include,

but is not limited to, changes in the native vegetative

communities and-fishery resources such as have already

occurred at Loxahatchee National Wildlife Refuge where

large segments of the diverse ecosystem have disap-

peared. :

A49

57. Everglades National Park preserves the heritage

of all United States citizens and protects a resource of

international significance. Money damages cannot com-

pensate for any impact on, or loss of, this precious

resource.

58. Everglades National Park has repeatedly insis-

ted that SFWMD take action to prevent pollution of its

water deliveries. All conditions precedent to the enfor-

ceability of the contract have been performed.

COUNT IV

SFWMD HAS BREACHED AN EXPRESS CONTRACT

BY DIVERTING POLLUTED WATERS INTO

THE LOXAHATCHEE NATIONAL WILDLIFE REFUGE

59. Plaintiff realleges paragraphs | through 58

above.

60. On June 8, 1951, the SFWMD entered a fifty year

contract with the United States entitled “Cooperative and

License Agreement between the Central and Southern

Flood Control District and the United States of America,”

(“The contract”). See Exhibit C.

61. Paragraph 18 of the contract states, “[iJt is

understood and agreed that in the operation and manage-

ment of the Conservation area lands for the primary

purpose of flood control and other aliied purposes, the

lands and waters will be managed and operated in the

manner most consistent with Section 2 hereof, so far as it

is not inconsistent with the said primary purpose.”

62. Paragraph 2 of the contract states in part: “[t]he

Service shall use said property as a Wildlife Management

A50

Area, to promote the conservation of wildlife, fish, and

game, and for other purposes embodying the principles

and objectives of planned multiple use.”

63. By diverting nutrient rich waters which are

destroying the habitat necessarv for conservation of wild-

life, fisn and game, the SFWMvD has violated the express

provisions of the contract.

PRAYER FOR RELIEF

Wherefore, Plaintiff requests that:

64. Defendants, DER and SFWMD, be mandated to

carry out their statutory duties to enforce all applicable

water quality standards in waters diverted to Lox-

ahatchee and Everglades National Park.

65. Defendants, DER and SFWMD, be enjoined and

restrained from delivering to Everglades National Park

and Loxahatchee National Wildlife Refuge polluted and

contaminated water.

66. Defendant SFWMD be enjoined and restrained

from operating unpermitted stationary installations

which are the subject of this lawsuit that cause or contrib-

ute to pollution to Everglades National Park and Lox-

ahatchee National Wildlife Refuge

67. Defendants, DER and SFWMD, be mandated to

immediately take all actions within their authority to

ensure that water delivered to Loxahatchee and

Everglades National Park conform to the requirements of

the 1951 and 1984 contracts, respectfully.

A51

68. Defendant SFWMD be mandated to abate the

nuisance.

69. The Court award such other relief as may be

appropriate.

ROGER J. MARZULLA

ASSISTANT ATTORNEY GENERAL

DEXTER W. LEHTINEN

UNITED STATES ATTORNEY

/s/ Dexter W. Lehtinen

DEXTER W. LEHTINEN

United States Attorney

155 South Miami Avenue, Suite 700

Miami, Florida 33130

/s/ Robyn J. Hermann

ROBYN J. HERMANN

Assistant U.S. Attorney

Chief, Civil Division

(305) 536-5957

/s/ Suzan Hill Ponzoli

SUZAN HILL PONZOLI

Assistant U.S. Attorney

(305) 536-6832

/s/ Richard W. Harrison

RICHARD W. HARRISON

Assistant U.S. Attorney

(305) 536-5934

/s/ Robert K. Senior

ROBERT K. SENIOR

Special Assistant U.S. Attorney

(305) 536-5424

A52

/s/ Celia Campbell-Mohn

STEVEN A. HERMAN

CELIA CAMPBELL-MOHN

Attorneys, Department of Justice

Washington, D.C. 20530

(202) 272-6851

A53

GOVERNMENT EXHIBIT A

7 JJGOHITTHO JAVT

p<

Ly

A54

GOVERNMENT EXHIBIT B

MEMORANDUM OF AGREEMENT AMONG

THE ARMY CORPS OF ENGINEERS THE

SOUTH FLORIDA WATER MANAGEMENT

DISTRICT AND THE NATIONAL PARK

SERVICE FOR THE PURPOSE OF PROTECTING

THE QUALITY OF WATER ENTERING

EVERGLADES NATIONAL PARK

Since the Congress, in connection with the

Everglades National Park, has directed the Corps and the

National Park Service “to reach an early agreement on

measures to assure that the water delivered to the park is

of sufficient purity to prevent ecological damage or dete-

rioration of the park’s environment.” (River Basin Mone-

tary Authorizations and Miscellaneous Civil Works

Amendments, Senate Report No. 91-895, p. 24); and

The quality of existing water deliveries to the park

does not depart significantly from that of waters which

have not been altered by the works of man; and

The Corps, the National Park Service (NPS), and the

Water Management District (WMD) are concerned that

surface waters delivered to the park are not degraded;

THEREFORE, the Corps, NPS, and WMD (parties)

mutually agree to the following: "

1. Water Quality criteria for 27 parameters as enu-

merated in Appendix A shall apply only to surface waters

delivered to the park. Federal, State, and local water

quality criteria which are more stringent than those

appended criteria shall continue to apply.

2. The concentrations of pesticides/herbicides in

surface waters delivered to the Park are to be 0.0. Actual

-?

A55

concentrations are to be below the limits of detection. A

listing of pesticides/herbicides is shown in Appendix B.

3. The Corps shall collect and analyze for specified

parameters (see appendix A) and pesticide/herbicide res-

idues (see appendix B) in surface water from delivery

water locations (see appendix C). Sediment from the

inflow stations will also be tested for trace metals and

pesticide/ herbicides. Sampling frequencies are described

in appendix C.

4. The WMD shall collect and analyze for specified

parameters (see appendix A) and pesticide/ herbicide res-

idues (see appendix B) in surface water from watershed

locations (see appendix D). Sampling frequencies are

described in appendix D.

5. The WMD shall also conduct diurnal studies for

dissolved oxygen, specific conductance, pH, and water

temperature at the inflow stations as described in appen-

dix C.

6. All sample collection data and anaylses shall be

reported monthly to NPS, Corps, and WMD.

7. The Corps, NPS, and WMD shall meet at such

times as may be necessary at the request of any party, but

not less frequently than once a year to review results of

this agreement.

8. Should water quality criteria not be met and a

clear and present danger to water quality has been deter-

mined to exist by the parties, appropriate actions or such

legal process as may be necessary to restore or protect the

quality of water entering the Park shall be taken by the

Corps, NPS, and WMD.

A56

9. This agreement may be revised upon mutual con-

sent of all parties. A 90-day review period will be allowed

for review of proposed changes to this agreement.

10. The Corps, NPS, and WMD recognize that the

data base for the appended standards needs periodic

review. Therefore, the standards will be reviewed fcr

adequacy and necessary revisions in 1984 and peri-

odically thereafter.

IN WITNESS THEREOF, THE PARTIES HERETO

HAVE SIGNED THIS AGREEMENT ON THE DATES

INDICATED.

SOUTH FLORIDA WATER

MANAGEMENT DISTRICT, BY

ITS GOVERNING BOARD

BY /s/

CHAIRMAN

DATE February 10, 1984

(CORPORATE SEAL)

ATTEST:

/s/ John R. Wodraska

SECRETARY

/s/ 2/9/84

/s/

AS TO WMD

A57

THE UNITED STATES OF AMERICA

CORPS OF ENGINEERS

BY /s/

COLONEL, CORPS OF

ENGINEERS

DISTRICT ENGINEER

JACKSONVILLE DISTRICT

DATE Nov. 21, 1983

EXECUTED IN THE PRESENCE

OF:

AS TO CORPS OF ENGINEERS

THE NATIONAL PARK SERVICE

By /s/

SUPERINTENDENT

EVERGLADES NATIONAL PARK

DATE FEB 8 1984

EXECUTED IN THE PRESENCE

OF:

/s/ Gary Hendrix

AS TO NATIONAL PARK SER-

VICE

A58

Parameter

A. Field Parameters

Upper Limit*

1. Dissolved Oxygen (mg/1) 4.5

2. Spec Conductance (umho/cm? @ 25°C) 647

3. pH (units) 7.6-8.0

4. Temperature (°C) not applicable

B. Physical Parameters

1. Color (PCU)

2. Turbidity (NTU)

C. Nutrients

1. Ortho Phosphorus (mg/1 as P)

2. Total Phosphorus (mg/1 as P)

3. NO, (mg/1 as N)

4. NO, (mg/1 as N)

5. NH, (Mg/1 as N)

6. Organic N (mg/1 as N)

D. Major Ions

1. Calcium (mg/1)

2. Magnesium (mg/1)

3. Sodium (mg/1)

124

1]

* Annual mean not to exceed this value. For dissolved oxygen,

annual mean not to be less than this value

A59

4. Chloride (mg/1) 143

5. Iron (mg/1) 270

6. Alkalinity (mg/1 as CaCO,) 269

E. Trace Metals

1. Mercury (ug/1) 0.5

2. Cadmium (ug/1) 10

3. Copper (ug/1) 8

4. Lead (ug/1) 13

5. Zinc (ug/1) 72

6. Arsenic (ug/1) 20

F. Biological Parameters

1. BOD (mg/1) 3

2. Fecal Coliforms To be determined

3. Total Coliforms To be determined

RATIONALE FOR UPPER LIMITS

Water quality data from inflow stations to the Park (S-12C

and L-67A) for 1970-1978 were analyzed. From this data,

upper limits for each parameter were computed based on

control chart theory which uses the mean standard devia-

tion, annual sampling frequency and control line factor.**

These upper limits are to be used as criteria against which

future water quality data could be compared.

** Bowker, A.H., G.J. Liberman 1972. Engineering Statistics, 2d

ed., Prentice-Hall, Inc., Englewood, New Jersey.

A60

PESTICIDES / HERBICIDES

- Aldrin

- Lindane

- Chlordane

- DDD

- DDE

- DDT

- Dieldrin

- Endrin

- Ethion

- Toxaphene

- Heptachlor

- Heptachlor E

- PCB

- Malathion

- Parathion

- Diazinon

- Methyl Parathion

- 2, 4, 5-T

- Silvex

- Trithion

- Methyl Trithion

Monitoring Locations

1. L-67 at S-12D

2. $-332

3. $-18C

4. Tamiami Trail between

40 Mile Bend and jetport

Field Parameters

Physical Parameters

Nutrients

Major lons

Trace Metals

Biological Parameters

Pesticides / Herbicides

Aél

Monthly

Monthly

Monthly

Monthly

Monthly-water

semiannually sedi-

ments

Quarterly

Quarterly-water

semiannually sedi- -

ments

(Map Omitted in Printing)

Monitoring Locations

1. S-178

S-177

S-176

L-28 gap

S-140

S-8

8. S-7

2

3

4

5. L-3 at Deer Fence Canal

6

7

9. S-11A, S-11B, and S-11C

10. $-9

A62

(Map Omitted in Printing)

Field Parameters Biweekly-

bimonthly depend-

ing on flow

Physical Parameters Biweekly-

bimonthly depend-

ing on flow

Nutrients Biweekly-

bimonthly depend-

ing on flow

Major Ions Biweekly-

bimonthly depend-

ing on flow

Trace Metals As needed based

upon results of

- inflow monitoring

(minimum semian-

nual survey)

Biological Parameters As needed based

upon results of

inflow monitoring

Pesticides / Herbicides As needed based

upon results of

inflow monitoring

; (minimum semian-

nual survey)

A63

GOVERNMENT EXHIBIT C

COOPERATIVE AND LICENSE AGREEMENT

BETWEEN

THE CENTRAL AND SOUTHERN FLORIDA

FLOOD CONTROL DISTRICT

AND

THE UNITED STATES OF AMERICA

THIS AGREEMENT, Made and entered into between

the Central and Southern Florida Flood Control District,

(hereinafter referred to as the District), pursuant to Chap-

ters 25209 and 25214, Laws of Florida, Acts of 1949, and

the United States Department of the Interior, acting by

and through the Fish and Wildlife Service (hereinafter

referred to as the Service), pursuant to the Act of August

14, 1946 (60 Stat. 1080).

WITNESSETH:

The parties hereto, for themselves and their respec-

tive successors and assigns, do hereby mutually covenant

and agree as follows:

1. The District hereby grants a license upon, and

makes available to the Service for the purposes and sub-

-ject to the terms and conditions hereinafter set forth, all

those portions of the real property, or interests therein,

acquired or to be acquired by the District in connection

with the area designated as Conservation Area Number

One, a part of the Central and Southern Florida Flood

Control District, in Palm Beach County, Florida, together

with all improvements which are located thereon (here-

inafter referred to as the property). Those portions of the

A64

property already acquired by the District in connection

with Conservation Area Number One, which are to made

subject to the terms and conditions of this license and

agreement, are described in “Exhibit A”, and those por-

tions of the property to be acquired by the District in

connection with Conservation Area Number One, which

are to be made subject to the terms and conditions of this

license and agreement, are described in “Exhibit B”, such

exhibits being attached hereto and expressly made a part

hereof. The property described in “Exhibit B”, or any part

of such property, shall become subject to all of the terms

and conditions of this license and agreement, or any

renewal thereof, when any interest or title thereto has

vested in the District, but not before such time. The

District shall notify the Service in writing when title to

any of the property described in “Exhibit B” has vested in

the District.

2. The Service shall use said property as a Wildlife

Management Area, to promote the conservation of wild-

life, fish, and game, and for other purposes embodying

the principles and objectives of planned multiple land

use.

These objectives are to be attained through the fol-

lowing management practices covering the wildlife and

recreational phases of land use represented by this area

(a) Wildlife:

Adequate provision shall be made to main-

tain the wildlife resources in a productive

condition through:

(1) Maintaining as closed areas for breed-

ing and feeding grounds so much of

the unit as will ensure maximum

A65

stocks of game, fish and furbearers

and thus permit the harvesting of sur-

pluses.

(2) Maintenance and development of

wildlife environments and habitat

where such use is not inconsistent

with the use of land for flood control

and water retention purposes.

(3) Planting of cultivated crops and natu-

ral wildlife foods to increase the carry-

ing capacity of the area for wildlife.

(4) Construction, operation, and mainte-

nance of such canals, ditches, and sub-

impoundments as may be deemed

necessary by the Service for the pur-

pose of creating conditions suitable for

wildlife species using the area. Pro-

vided, that such construction, opera-

tion and maintenance shall be

consistent with the objectives of flood

control and other allied purposes in

the area.

(5) Opening by regulation of the Service

of portions of the area to controlled

public hunting, fishing and trapping,

whenever the Service determines such

procedure to be necessary for the har-

vesting of surplus stocks of game, fish

and furbearers. Open season shall be

limited to the period necessary only

for harvesting the surplus stock and

shall conform to State law and regula-

tion.

(b) Recreation:

Recreational facilities existing, or to be

developed, shall be operated, maintained,

and administered according to the follow-

ing principles and objectives:

A66

(1) The recreational facilities shail be

available for the use and benefit of the

general public.

(2) Fees charged for the use of the facili-

ties shall be non-discriminatory and

consistent with the public non-profit

character of the area. Such controlled

public hunting and fishing as is

allowed by the Service shall be made

available to the general public without

charge.

(3) All recreational facilities which may be

developed in the future shall be

located where their use will not inter-

fere with the use of the land for flood

control and water retention purposes.

(c) Monies obtained from the sale or granting

of permits by the Service for trapping and

other economic uses are to be retained by

the Service for deposit and distribution

under Section 401 of the Act of June 15,

1935 (49 Stat. 383-16 U.S.C. 715s).

3. The use of said property by the Service shall be

subject to the requirements and uses by the Corps of

Engineers and the District for flood control and other

allied purposes and the Service shall not be obligated in

any manner for costs, charges, expenses, or other obliga-

tions as are properly chargeable to the maintenance and

development of the flood control activities. The use of

said property shall be further subject to all valid ease-

ments, rights-of-way, licenses, and outstanding interests

in, upon, across, or through said property.

4. The District reserves all rights not vested in pri-

vate persons, corporations or other public agencies, to the

oil, gas, coal and other mineral ores whatsoever, upon, in

A67

or under said property, together with the using mineral

rights, powers and privileges, including the right of

access to the use of such parts of the surface of the

premises as may be necessary for mining and saving said

minerals. The Service, however, shall have the right to

use stone, marl, sand or peat and similar substances from

said property, provided such materials are used for con-

struction purposes upon or in connection with said prop-

erty. The license herein granted to the Service is subject to

the rights of the District and to the rights heretofore

vested in private persons, and public agencies, as the

same appear of record, to mine, explore for and develop,

any mineral in, under or upon said lands, including oil

and gas, and including the right of ingress and egress on,

upon or across such lands as may be necessary for the

purposes stated.

In the event the District determines that the exercise

of the said mining rights are necessary and not inconsis-

tent with the purposes referred to in Section 2 above, it

agrees that the exploration by the District, its successors

or assigns, the drilling for, development of, and the trans-

portation or removal of mineral resources, including oil,

and the control of abandoned wells or wells taken out of

production, shall be conducted by the most approved

methods. Paramount consideration shall be given to the

prevention both of pollution and contamination by oil or

field brine and of other oil field contamination or damage

of the lands for wildlife refuge purposes. Human occu-

pancy and housing facilities therefor and structures

erected for drilling, development, transportation or

removal of mineral resources, will be held to a minimum.

Any inevitable waste in proximity to the sources will be

A68

so confined as to prevent escape that might otherwise

occur as a result of rains or high water.

Suitable provision will be made for the removal of oil

field brine from the area, by pipe line or any other

approved method, so as not to contaminate the lands or

the water in the ponds or lakes now created or that may

hereafter be created.

5. The term of this license and agreement shall be

fifty (50) years beginning on the Ist day of January, 1951,

and ending on the Ist day of January, 2001, and shall

automatically be renewed for three (3) successive terms

of fifteen (15) years unless written notice to the contrary

is given by either party to the other not less than ninety

(90) days prior to the termination of this instrument, or

any renewal thereof, and each renewal shall be subject to

all of the terms and conditions of this license and agree-

ment.

6. The Service shall not use or permit to be used,

and shall take such measures as may be necessary to

prevent the use or occupancy of said property, or any

portion thereof, for any purpose which is inconsistent or

incompatible with the purposes set forth in Section 2

above; nor shall the Service, except with the written

consent of the District, assign any of its rights or obliga-

tions under this license and agreement, or any renewal

thereof, or grant or create any rights in favor of third

persons with reference to said property. This provision

shall not be construed to apply to such employees of the

Service as are engaged in the administration of said prop-

erty during the period they are actually so engaged.

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The Service shall not, except with the written consent

of the District, authorize or permit third persons includ-

ing employees of the Service engaged in the administra-

tion of the area, to erect structures or dwellings on the

property, whether such authorization or permission cre-

ates any rights in such third persons or not. This provi-

sion shall not be construed as requiring a permit from the

Service to mine, explore or develop the minerals, includ-

ing oil and gas, as provided for in Section 4.

7. The Service shall assume and defray all costs,

charges, expenses, and other obligations except as other-

wise provided for under Section 3, incident to the use of

said property for the purposes provided herein, shall

maintain said property in good condition and repair,

making all repairs and replacements necessary caused by

deterioration, damage, use, negligence, or any other

cause whatsoever, and shall not remove any improve-

ments except in accordance with Section 12 below, or

alter any major improvements without the written con-

sent of the District.

8. The obligations of the Service under this agree-

ment are conditioned upon the passage of an appropria-

tion by Congress from which expenditures thereunder

may be made and shall not obligate the Service upon the

failure of Congress to so appropriate.

9. The District agrees to hold and save the Service

free from damages due to the right to operate under the

terms of this license and agreement. The Service agrees to

hold and save the District free from damages due to

operations under the terms of this license and agreement.

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10. The Service shall submit, not iater than one year

after the effective date of this license and agreement, a

general plan of operation and development, setting forth

the measures to be taken by the Service to effectuate the

purposes of this license and agreement. The Service shall

also permit at all times, any duly authorized representa-

tive or representatives of the District to enter upon and

inspect said property.

11. Upon the expiration or termination of this

license and agreement, or any renewal thereof, the Ser-

vice shall quietly and peaceably vacate said property and

surrender possession thereof, and the District may imme-

diately, or at any time thereafter, re-enter and take pos-

session of the property and remove all persons therefrom.

12. Upon the expiration or termination of this

license and agreement, or any renewal thereof, the Ser-

vice shall have the right to remove only those improve-

ments which have been erected exclusively with funds

specifically or generally appropriated by the Congress of

the United States. Provided, however, that no such right

for removal shall extend to, or include, any works con-

structed as part of the flood control program.

13. The invalidity of any provision of this instru-

ment, or of any part thereof, shall not affect the validity

of the remaining provisions or the rights and obligations

of the parties thereunder.

14. The failure of the District to insist upon the

strict performance of any of the terms, covenants, agree-

ments and conditions herein contained shall not consti-

tute a waiver or relinquishment of the right of the District

to enforce thereafter such terms, covenants, agreements,

A71

or conditions, but the same shall continue in full force

and effect.

15. Any notice, consent, or other actions to be given

or done by the District under this license and agreement,

or any renewal thereof, shall be valid only if in writing

and executed by the Chairman of the Board of Governors

of the Central and Southern Florida Flood Control Dis-

trict, or his duly authorized representative, or in the case

of a successor to the rights of the Central and Southern

Florida Flood Control District, by the chief administrative

officer of such successor, or his duly authorized represen-

tative. All notices to be given by the District under this

license and agreement, or any renewal thereof, shall be

delivered or forwarded by mail to the Director, Fish and

Wildlife Service, United States Department of the Interior,

Washington, D. C.

Any notice, consent, or other action to be given by

the Service under this license and agreement, or any

renewal thereof, shall be valid only if in writing and

executed or performed by the Secretary of the Interior or

his duly authorized representative, or in the case of a

successor to the rights of the Department of the Interior,

by the chief administrative officer of such successor or his

duly authorized representative. All notices to be given by

the Service under this license and agreement, or any

renewal thereof, shall be delivered or forwarded by mail,

addressed to the Central and Southern Florida Flood

Control District, West Palm Beach, Florida, or its suc-

cessor hereunder.

16. No member of or delegate to Congress or Resi-

dent Commissioner shall be admitted to any share or part

A72

of this license and agreement, or any renewal thereof, or

to any benefit to arise therefrom.

17. This license and agreement shall become effec-

tive when duly executed by all parties indicated below,

but possession of the said property shall not be granted

until January 1, 1951, the beginning of the 50-year pri-

mary term provided for in paragraph 5 hereof.

18. It is understood and agreed that in the operation

and management of the Conservation area lands for the

primary purpose of flood control and other allied pur-

poses, the lands and waters will be managed and oper-

ated in the manner most consistent with Section 2 hereof,

so far as it is not inconsistent with the said primary

purpose.

IN WITNESS WHEREOF, the parties hereto have

hereunto subscribed their names as of the dates indi-

cated.

CENTRAL AND SOUTHERN

FLORIDA FLOOD

CONTROL DISTRICT

Date Nov. 20, 1950 BY /s/ Jor S. Earman

Chairman of the Board of

Governors

THE UNITED STATES OF

AMERICA

Date JUN 8, 1951

Secretary of the Interior

BY /s/ Allen M. Day

on" Director, Fish and Wildlife

Service

A73

EXCERPT FROM THE MINUTES OF THE MEETING ON

NOVEMBER 10, 1950, OF THE GOVERNING BOARD OF

CENTRAL AND SOUTHERN FLORIDA FLOOD CON-

TROL DISTRICT.

The lease and cooperative agreement for the use of

Conservation Area Number One by the U. S. Fish and

Wildlife Service as a wildlife and migratory bird refuge

was read and considered in relation to the multiple pur-

poses of the flood control plan. Upon recommendation by

the Engineering and Legal Departments and upon motion

of Commissioner Rogers, seconded by Commissioner

Driggers and unanimously carried, the lease and cooper-

ative agreement as read, a copy of which is annexed to

these Minutes, was approved and the Chairman was

authorized and directed to execute the same for and on

behalf of and in the name of the District.

(Insert Cooperative Agreement)

I, W. Turner Wallis, Secretary of Central and Southern

Florida Flood Control District, do hereby certify that the

foregoing is a true and correct copy of an excerpt from

the Minutes of a meeting of the Governing Board of

Central and Southern Florida Flood Control District, held

on November 10, 1950.

In witness whereof, I have hereunto set my hand and

affixed the seal of the District this 22nd day of November,

1950.

/s/ W. Turner Wallis

W. Turner Wallis,

Secretary

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The first amendment to the Cooperative and License

Agreement, dated July 8, 1953, establishing the southern

and southwestern boundaries of Conservation Area No. 1

to be the centerline of Levee L-39, is omitted.

The second amendment dated December 15, 1959, mod-

ifying the northern and southern boundaries of Conser-

vation Area No. 1 is omitted.

The third amendment signed July 18 and 23, 1962, rees-

tablishing the southwest boundary of Conservation Area

No. 1 is omitted.