# Petition for Writ of Certiorari — Western Palm Beach County Farm Bureau, Inc. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2491%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 502 U.S. 953 ## Text 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 Page ec dees eee vscseuns i Statement concerning the parties................... ii dss coc evevecececteseues iii ccc c ve wivccscveccevce yee ee cocks ac. dscddpevs vecess ae ee Nc cc pevcvvcevvcececvuc 1 Constitutional provisions and statutes involved .... 2 Statement of the Case....... SS RE RE hs ae 2 Reasons for Granting the Writ en cll ieee secccceees 12 ee eee we vieve veces 14 ee ee neceepees 16 I Fe 17 cv evtncescecceens 18 iv TABLE OF AUTHORITIES Page Cases Atascadero State Hospital v. Scanlon, iis se daei cy scene eevascceces 14 Bender v. Williamsport Area School Dist., Se IE ov ccseccscscvercssvesvvesesess 13 Diamond v. Charles, , 2 . Sat ere ere ere sey 14 Dugan v. Rank, PE I NEED ov cc vn ese rcevverecesvancesctanee 8 Falls Riverway Realty, Inc. v. City of Niagara Falls, FOO Fe GO GR GR Fe os ic va ccveseecveneccess 15 Gregory v. Ashcroft, ee) eee | ee 15, 16, 17 Juidice v. Vail, NS prs ecdetaciccskeceneeeeeeyes 13 Lewis v. Continental Bank Corp,., SE eer ee eerrerer rere 13 McCulloch v. Maryland, EF Wha GO Wemted DOO CUBES) occ cece etewnseseces 16 Pennhurst State School & Hosp. v. Halderman, ee RO vias ccebcecenss cts sevauns 8, 14, 16 Sugarman v. Dougall, ee TOP eT TET Cere Te 15 United States Parole Comm'n v. Geraghty, ee ceo ydsceceeessesesssavananee) 13 United States v. South Florida Water Management Dist., Se ee Fe AT Ge EF ia oc svcnececenveenncuns 8 TABLE OF AUTHORITIES - Continued Page Vernon v. Resolution Trust Corp., Pe Gee POE GE OU GOy CUO se 5 vee s ce cvcesceuestis 15 Will v. Michigan Dept. of State Police, ee I sock vc ences es 60seuseccren 15, 16, 17 STATUTES ~ Pe EE I 5 5 oc cckcpccccectevevcsusenes 3 ee EE SUID. on ook wk e eeeeKN Tee cnenns ees 2,9 eT 0s was 00s 66a execute banker 5, 7, 15 EN a vcdes va Verns cess snes eee cence nnns 1 EE hs obey a cnac ase ceevse ee. eeenpenes oe I 66.65.00 9 0.4 4.050 0655 05eees ee bne eee 2, 7 icin kwkig hae cues dvde seek coke een ees 7 FEDERAL REGULATIONS ok DS reer re rr rrr er cre 7 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. A69 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 perso [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2491%3A1. Public record. Not legal advice.