As Dec. 12 hearing begins on proposed dredging of Big Sarasota Pass, Siesta Key Association officer and a Siesta resident expected to testify so judge can rule on their right to challenge the project

Florida Wildlife Federation withdraws from case because of attorney’s health

Editor’s note: This story was updated on Dec. 12 to include more details about the location of the hearing.

Condominiums are easily visible across Big Pass on the evening of July 6. File photo

Concern over whether a Siesta Key nonprofit organization and a Siesta resident have the legal right to challenge the proposal of the City of Sarasota and the U.S. Army Corps of Engineers to dredge Big Sarasota Pass prompted a flurry of motions this week, as the parties in a state administrative law case made preparations for the Dec. 12 start of a hearing on the challenges.

As a result of the court filings, Catherine Luckner, vice president of the Siesta Key Association (SKA), and Michael Holderness, a real estate agent and Siesta Key property owner, are expected to testify as the proceeding gets underway next week. Then Florida Administrative Law Judge Bram D.E. Canter can determine their standing, The Sarasota News Leader has learned.

“It’s not really a big issue in the case,” Kent Safriet, the attorney for the SKA and Holderness, told the News Leader in a Dec. 6 telephone interview,

Safriet is with the Tallahassee firm of Hopping Green & Sams.

Additionally, the Florida Wildlife Federation (FWF), which also had been a petitioner in the case — along with Save Our Siesta Sand 2 (SOSS2) — has withdrawn from the proceeding because of a personal matter involving its attorney, the FWF president told the News Leader this week.

The Judicial Center where the hearing is being held is located at 2071 Ringling Blvd. in downtown Sarasota. File photo

The Florida Division of Administrative Hearings (DOAH) case will be held in Courtroom 2 of the Judge Lynn N. Silvertooth Judicial Center in downtown Sarasota, the DOAH docket shows.

Canter will convene the proceedings at 9 a.m. on each of the six days set aside for it, according to a notice in the docket: Dec. 12-15 and Dec. 18 and 19.

Courtroom 2 is on the sixth floor of the Judicial Center, which is located at 2071 Ringling Blvd. It is the same building on the north side of Ringling Boulevard that formerly housed the administrative staff for the Sarasota County Sheriff’s Office. The State Attorney’s Office also is located at 2071 Ringling Blvd.

During the hearing, Save Our Siesta Sand 2 (SOSS2) and the Siesta Key Association (SKA), along with Holderness and Siesta resident Diane Erne, will challenge the December 2016 decision of the Florida Department of Environmental Protection (FDEP) to issue a permit to the City of Sarasota and the U.S. Army Corps of Engineers (USACE) for the Lido Renourishment Project. The USACE and the city want to remove about 1.1 million cubic yards of sand from Big Sarasota Pass to renourish a 1.6-mile stretch of South Lido Key. City leaders and representatives of the Lido Key Residents Association have decried the challenges to the plan. They argue that erosion on Lido has grown even worse because of storms this year, portending the threat of significant damage to buildings on the beach.

The SKA and SOSS2 have been adamant that they do not oppose the renourishment of South Lido. However, they also have stood stalwart in their view that dredging Big Pass will lead to significant property damage on Siesta Key and kill a wide variety of sea life. They have cited research and the opinions of experts on coastal engineering and shoreline protection, saying the modeling the USACE undertook for the project is flawed.

Bowing out for now

Image from the Florida Wildlife Federation website

Regarding the Florida Wildlife Federation action: On Nov. 23, Thomas W. Reese, the nonprofit’s counsel in the case, filed notice that the FWF was pulling out of the case, but he offered no explanation. He noted only, “The FWF has consulted with the other parties and they do not oppose the FWF’s withdrawal and dismissal …”

Manley Fuller, president of the nonprofit, told the News Leader in a Dec. 6 telephone interview that Reese has had health issues that would prevent him from remaining in Sarasota over the six-day course of the hearing. The FWF felt that Martha Collins, the attorney for Save Our Siesta Sand 2 (SOSS2), would do a very good job of representing the FWF’s positions as well, Fuller said. “We’re totally in support of the challenges.”

The Florida Wildlife Federation remains staunchly opposed to the dredging of Big Pass, he added. It also most likely will pursue a federal court challenge if the petitioners are not successful at the state level in stopping the project as it has been designed, Fuller told the News Leader.

The dispute over standing

A USACE map shows the borrow areas in Big Pass. Image courtesy FDEP

As for the issue of standing: A Joint Pre-Hearing Stipulation, filed on Dec. 4 with the DOAH, says, “With the exception of the U.S. Army Corps of Engineers, all of the parties affirmatively stipulate to … each and every other [party’s] standing. The U.S. Army Corps of Engineers [USACE] has voluntarily appeared in this hearing in a limited capacity and as a matter of comity to the Division of Administrative Hearings and the Florida Department of Environmental Protection in reaching an informed determination on the request of the Jacksonville District of the [USACE] for water quality certification pursuant to the Section 401 of the Clean Water Act … and concurrence with the consistency determination pursuant to Section 307 of the Coastal Zone Management Act …”

That motion adds, “Without an affirmative stipulation to standing by the [USACE], the parties agree that the Petitioners [the SKA and SOSS2] will present standing testimony without objection or cross examination at the hearing to protect their interests.”

Subsequently, on Dec. 4, Richard P. Green of the Bradenton law firm Lewis, Longman & Walker filed a motion with the DOAH on behalf of the City of Sarasota, the USACE, FDEP and the Lido Key Residents Association [LKRA], seeking a pre-hearing conference on the issue of the USACE’s position regarding standing.

Richard P. Green. Image from the website of Lewis, Longman & Walker

Green, who is representing the Lido Key Residents Association — which Canter allowed to intervene in the case — pointed out in the motion that the SKA attorney, Safriet, “took the position that an affirmative stipulation by all parties to standing was necessary … or he would move forward with presenting evidence of standing at the [December] hearing.” He continued, “Counsel for SKA stated that [the USACE’s] no objection stance does not provide adequate assurance that SKA and Michael Holderness’ standing is not subject to denial by the Administrative Law Judge or being overturned on appeal.”

Green insisted in the motion that the USACE “will not object to any party’s standing and will not require any proof of standing” at the hearing. Given that position and all other parties’ “affirmative stipulation to standing,” Green pointed out, “there is no need for proof to be presented [at the hearing].”

Finally, Green wrote, “This matter is of the utmost importance as the timeframe for the final hearing was shortened from 10 days to 6 days. Petitioners have refused to stipulate to any material facts, that any permit criteria has been met, or to material points of law. Accordingly, all of the time allotted to this hearing is critical and should not be used needlessly to address standing which is an issue not in dispute.”

On behalf of the city, the USACE, FDEP and the LKRA, Green asked that Canter issue a determination that the petitioners’ standing is not in dispute and, therefore, no evidence will have to be presented on that point during the hearing.

On Dec. 6, Canter issued an order denying the motion for a pre-hearing conference on the motion.

“Generally, in environmental cases,” Canter wrote, “the facts that establish standing are facts that show a party’s substantial interest (commonly, the significant use and enjoyment of the natural resource which is the subject of the agency’s proposed action) and facts that show the substantial interest could be adversely affected by the proposed action.”

Canter added that “stipulations regarding these matters are not the kind of thing that can be sorted out in a telephone conference with the Administrative Law Judge.”

Another motion; another denial

Later on Dec. 6, Safriet filed a motion on behalf of the petitioners, pointing out that Green’s motion raised an issue about the USACE that needed to be resolved: If the USACE “insists on a limited appearance for two issues (as suggested in the Joint Motion),” then the petitioners wanted the judge to exclude all USACE witnesses and exhibits not specifically related to those two issues.

Kent Safriet. Image from the Hopping Green & Sams website

Safriet was referring to the points the USACE already had made in the stipulations document, that its purpose in the proceeding is related to the Clean Water Act and the Coastal Zone Management Act. Green’s motion had noted that the USACE “has not subjected itself as a party” under the authority of the Division of Administrative Hearings or waived federal supremacy or federal sovereign immunity. “As such,” Green continued, “it is the position of the [USACE] that it is not in the position to stipulate to any procedural matter before the Division of Administrative Hearings …”

The Dec. 4 stipulations document also said, “It is the Corps’ position that the application process used in this case is consistent with the established practices that FDEP uses in its permitting process to issue water quality certification … pursuant to … the Clean Water Act … and to issue state concurrence with the Corps’ coastal zone consistency determination pursuant to … the Coastal Zone Management Act … The Corps’ intent in participating in the state’s permitting process is not [to] obtain a state permit or authorization under state law but to obtain state determinations under federal law. The Corps and FDEP agreed to use the state’s established permitting procedures to meet these federal purposes.”

In his Dec. 6 motion, Safriet called the USACE’s position in this case “a contradiction,” referencing that statement from the stipulations document. “Yet,” Safriet continued, “the Corps has joined in and sought affirmative relief on the several procedural matters from DOAH,” including the Dec. 5 joint motion, when it acted with the city, the FDEP and the LKRA. “The Corps cannot decide when and to what extent it subjects itself as a party to DOAH,” Safriet wrote. “Either it is a party or it is not. Accordingly, a ruling on the scope of the Corps’ role in this DOAH proceeding will assist the parties in the presentation of evidence at the hearing.”

On Dec. 6, Judge Canter denied Safriet’s motion. “The scope of issues encompassed by the Corps’ position is broad,” Canter wrote, “especially because the ‘appropriate’ issuance of the [FDEP] Joint Coastal Permit [for the dredging of Big Pass] would mean all applicable regulatory criteria have been satisfied by the proposed project.”

Canter also noted that, because the hearing was near, he had issued his order quickly so the city, the FDEP, the USACE and the Lido Key Residents Association would have an opportunity to respond. As of the publication deadline for the News Leader this week, no response had been filed.

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