Re-filed lawsuit seeks reopening of Midnight Pass

The Midnight Pass Society has re-filed a lawsuit in federal court, seeking judicial orders requiring the appropriate Sarasota County, State of Florida and U.S. officials to issue permits necessary for the reopening of Midnight Pass between Siesta and Casey keys.

The case was filed June 12 in U.S. District Court for the Middle District of Florida in Tampa.

“We’re looking to get relief,” Jim Herbert, chairman of the 2,000-member Midnight Pass Society, told The Sarasota News Leader June 27. “It’s been a long time now,” he added, noting the pass was closed in 1983.

The defendants are Sarasota County, the Florida Department of Environmental Protection, the Florida Fish and Wildlife Conservation Commission, the U.S. Environmental Protection Agency, the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service.

The lawsuit was filed under the citizen suit provisions of the federal Clean Water and Endangered species acts, it says.

The case originally was filed in March 2011, but it was withdrawn last fall after the determination was made that errors in it could have hindered its progress through the legal system, Herbert said.

“Our attorneys felt it was better to pull it and re-file,” he added. “We’re just hoping to get this back on track. Ideally,” he said, “we could sit down with the parties and get this thing done.”

The lawsuit contends that “acts and omissions of federal, state and local governmental officials are keeping Midnight Pass artificially closed, which is causing ongoing harm to the environment, the Florida manatee, and residents of the Siesta Key area in continuing violation of the Clean Water Act and the Endangered Species Act …”

It also contends that the continuing closure of the pass “is depriving plaintiffs of their rights to engage in interstate commerce and to the equal protection of the laws …” The latter clause refers to the 14^th Amendment to the U.S. Constitution.

The lawsuit points out that Midnight Pass “was a natural and navigable channel owned by the State of Florida at the juncture of Siesta Key and Casey Key … [which are] barrier islands located between the western side of Little Sarasota Bay and the Gulf of Mexico, approximately 12 miles south of the city of Sarasota.”

The lawsuit says the pass appeared on navigation charts dating to 1883. Even the “improper dumping of approximately 225,000 cubic yards of dredged material” during the construction of the Intracoastal Waterway in the 1960s did not cause the pass to close naturally, the lawsuit points out, though that dumping did result in the pass migrating, leading to erosion of beachfront property.

In 1983, two Siesta Key residents “whose homes were threatened by beach erosion artificially filled Midnight Pass with spoil and sand and closed it,” the lawsuit points out.

Those private homeowners were Syd Solomon and Pasco Carter Jr.

The county, the state and the Army Corps of Engineers issued the permits for that closure, the lawsuit says, “on the condition that [the pass] be reopened in the future. Midnight Pass remains closed, resulting in ongoing harm to the water in Little Sarasota Bay, the property of thousands of homeowners, the economic livelihood of businesses that depend on tourism, fishing and boating, and the safety and well-being of the endangered Florida Manatee.”

The suit adds that the closing “has resulted in a substantial diminution in the number of species that historically inhabited this area.”

In 1991 and 2008, Sarasota County and the Midnight Pass Society applied to DEP for permits to reopen the pass, the lawsuit notes. DEP denied the permit on the first try, the suit says. In 2008, DEP issued a Notice of Intent to Deny the second application, “after which it was withdrawn by Sarasota County.”

The lawsuit says that Notice of Intent to Deny was issued because DEP officials “determined that opening a new inlet would cause significant adverse impact to the existing (post-closure) coastal structure,” and that they “did not consider whether the closure of the original Pass was having an adverse impact on the natural coastal system.”

Along with the Midnight Pass Society, plaintiffs include two restaurants on the south part of Siesta Key — Turtles and Ophelia’s on the Bay — and Turtle Beach Marina.

Four individuals also are listed as plaintiffs: Vince Plodzien, a resident of Blind Pass Road on Siesta Key; Randy Cornell, a Chattanooga, Tenn., resident who visits Siesta Key regularly, according to the suit; Steve Brannan, a Sarasota County resident and “avid fisherman and boater,” the suit says; and Arthur Singleton, a resident of Fisherman’s Haven Condominiums, adjacent to the pass.

County’s response

Sarasota County Assistant Attorney David M. Pearce filed a motion on June 19 to dismiss the lawsuit.

The motion says three of the lawsuit’s counts fail to state a cause of action against the county under the Federal Rules of Civil Procedure. Those regard violations of the Clean Water Act, the Endangered Species Act and the Commerce Clause.

The court should dismiss the other two counts, the motion says, “for lack of subject matter jurisdiction” under Federal Rues of Civil Procedure.

Those last two counts deal with the issue of the Equal Protection Clause and the failure to act on the permit for reopening Midnight Pass.

Regarding the last count, the county’s motion says, “as the permit applicant, it would be the County which would have been harmed by the alleged failure to process an application.” The motion adds that the plaintiffs were relying on “third-party standing” to assert the rights of the county.

The county contends the plaintiffs lack that standing.