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Environmental Law

: ESA Blawg

District Court in Florida rejects Tribe's equal protection claims, upholds water management decisions as rational effort to protect Cape Sable seaside sparrows and comply with Endangered Species Act

By Keith Rizzardi

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Miccosukee Tribe of Indians of Florida v. United States, No. 08-23001-CIV, 2010 WL 2730095 (S.D. Fla., July 12, 2010)(K. Michael Moore, District Judge)

INTRODUCTION. Federally-recognized Indian tribe claimed that certain water management actions by Defendants caused high water levels on lands to which the Indian Tribe has rights, in violation of the Tribe's constitutional rights. Specifically, the Tribe leased lands within Water Conservation Area 3A,(WCA 3A), part of the Central and Southern Florida Project for Flood Control and Other Purposes (the “C & SF Project”), and the Tribe alleged that decisions not to release waters out of WCA 3A, through water management structures S-12A, S-12B, S-12C, S12D, and S-333, resulted in flooding of tribal lands, and allegedly violated the Fifth Amendment’s equal protection clause.

LEGAL BACKGROUND. The first step in adjudicating a Fifth Amendment equal protection claim is to determine the applicable level of scrutiny. Nat'l Parks Conservation Ass'n v. Norton, 324 F.3d 1229, 1244 (11th Cir.2003). When the government creates a suspect classification that distinguishes people along lines of race or alienage, that classification is subject to strict scrutiny. Id... Alternatively, under intermediate scrutiny, a “preference may be upheld so long as it is substantially related to an important governmental objective.” Id.

FACTUAL BACKGROUND. On May 15, 2008, a large fire began in Everglades National Park in the vicinity of subpopulation A of the Cape Sable seaside sparrow (the “sparrow”)which ultimately affected over 2000 acres of land. The Fish and Wildlife Service (“FWS”) requested that the S-12A gate opening, scheduled for July 15, 2008, be postponed to help alleviate the fire's impact on the habitat of subpopulation A of the sparrow. Id. The sparrow is protected by the Endangered Species Act and represents one out of eight subspecies of North American seaside sparrow. (Photo above by FWS from University of Florida, Museum of Natural History.) In a July 11, 2008, teleconference, the Corps, FWS and Everglades National Park decided to postpone opening the S-12A gate for nine days until July 25, 2008. Id.

The Miccosukee Tribe also claims that the Corps' denial of the Tribe's request to leave the S-12A gate open after November 1, 2008, was motivated by a racial purpose or object or is unexplainable on grounds other than race. In a letter dated October 22, 2008, Billy Cypress (“Chairman Cypress”), the Tribal Chairman of the Miccosukee Tribe sent the Corps a letter requesting that it leave the S12A gate open after the scheduled closing on November 1. The reasons expressed by Chairman Cypress in his letter to the Corps as to why the S-12A gate should be left open included damage to plant and animal life in WCA 3A, degradation of the Tribe's culture and way of life, and risk to the health and safety of Tribe members who live south of the S12 gates and L-29 levee. The Corps responded in a letter dated October 31, 2008, denying the Tribe's request to leave the S-12A gate open. In its letter, the Corps stated that its denial was based on the need to protect the sparrow and its habitat, the absence of any known danger to the Tribe's health or safety, and the fact that the Corps was taking other actions to offset the reduction of water discharge from WCA 3A caused by closing the S-12A gate.

RULING. In light of the foregoing, the Miccosukee Tribe has failed to demonstrate that there is a genuine issue of material fact that the Corps' decision … was made with a racial object or purpose, or that its decision is unexplainable on grounds other than race. Accordingly, rational-basis scrutiny applies …

The Corps left the S-12A gate open from July 15 to July 24, 2008, to protect the fledging of the sparrows and to mitigate the effects of the fire. This is a legitimate goal and the closure of the S-12A gate directly furthered the Corps' goal of protecting the sparrow by keeping water levels low in the relevant area during that period. The closure of the S-12A gate on November 1 was taken pursuant to the WCA 3 A regulation schedule, which in conjunction with the IOP, the BiOp 2006, and other related documents, assists the Corps in achieving its water management obligations in compliance with federal statutory requirements, including the Endangered Species Act. This is a legitimate goal and closure of the S-12A gate on November 1 directly furthered the goal of permitting the Corps to execute its water management obligations. Therefore, the Corps' challenged conduct survives rational-basis scrutiny. Accordingly, summary judgment on the Miccosukee Tribe's equal protection claim is warranted in favor of the Federal Defendants.

KEITHINKING: As the opinion also reveals, the Miccosukee Tribe has made these types of EPC claims multiple times in the past, alleging that various water management actions are discriminatory. The Court refused to apply res judicata or to otherwise preclude the claim, finding that the new facts and recent water management decisions provided a new basis for a new claim.

Full post as published by ESA Blawg on July 14, 2010 (boomark / email).