City of Sarasota wins extension through March 14 to respond to judge’s order in Siesta Key Association’s Circuit Court case
As the Siesta Key Association (SKA) continues to wage a battle in the 12th Judicial Circuit Court to try to prevent the dredging of Big Sarasota Pass, the value of preserving the pass in its virgin state was underscored on March 2 by the guest speaker at the nonprofit’s annual meeting.
Dr. Philip M. Farrell, emeritus dean and professor of pediatrics and population health sciences at the University of Wisconsin-Madison, talked of discussions about Big Pass that he had had with Richard A. Davis, emeritus distinguished research professor at the University of South Florida (USF). Those talks served as the basis for information in the book Farrell co-authored last year with his grandson, Thomas Philip Farrell, An Illustrated History of Siesta Key.
Big Pass, Farrell told the approximately 120 attendees at the March 2 meeting, “is a crucial factor” in the buildup of sand on Siesta’s main beach and a protector of the Key’s shoreline. Farrell discussed some of the facets of the natural flow of sediment from north to south on Florida’s west coast, noting, “It’s very technical.”
Davis had explained to him, Farrell continued, about the nature of the “integrated coastal system.”
Furthermore, “swash bars,” which are visible from higher points on the island — including buildings at Siesta Public Beach — bring sand to the island, Farrell pointed out to the SKA audience. Some of that sediment, he pointed out, is “donated sand” from Longboat and Lido keys.
The swash bars, he noted, “have been evident for centuries. … I believe that Big Pass serves as a sand reservoir, as well.”
If sand is removed from the pass, Farrell added, “There’s no doubt whatsoever” that damage to Siesta will ensue.
Farrell’s remarks followed outgoing President Gene Kusekoski’s review of the SKA’s top initiatives in 2018, including the Circuit Court case. (See the related article in this issue.) The nonprofit has asked the City of Sarasota for more than two years to comply with the city’s own comprehensive plan in ensuring that no harm would come to Siesta Key as a result of the city’s plans to dredge up to 1.3 million cubic yards of sand from Big Pass to renourish an approximately 1.6-mile stretch of South Lido Key Beach.
On Feb. 11, Circuit Court Judge Andrea McHugh ruled that the city must “show cause” why she should not compel it “to make an official determination that the Project is consistent with the City [Comprehensive] Plan and all other applicable local, regional, state, and federal plans and regulations.”
A delay in the city’s latest answer in court
On March 1, the outside counsel for the city in the case — which dates to March 2017 — asked the court for a 14-day extension of the deadline for the city’s answer, through March 18. McHugh’s Feb. 11 order had given the city 20 days.
John R. Herin Jr. of the Fox Rothschild firm in Miami attributed his request for the extension “to other pressing workload commitments,” as well as the fact that he recently began working for a different law firm. He had been with GrayRobinson in Fort Lauderdale. (The Fox Rothschild website says Herin is a partner with the firm, specializing in environmental law.)
Herin had contacted Kent Safriet of the Tallahassee firm Hopping Green & Sams, the attorney for the SKA, Herin added, but had not heard back from Safriet by the time Herin filed his motion on March 1.
On March 4, Safriet notified the court that the SKA opposed the extension through March 18, writing that Herin had contacted him on Feb. 28 to request a four-day extension. Herin indicated to him, Safriet continued, that the extra four days “would be all that was needed” in which to respond to McHugh’s Feb. 11 order.
Safriet added in his March 4 response that he had told Herin he would consult with his clients. Then, on March 1 — having made no attempt to follow up with Safriet — Herin filed his motion for the prolonged extension, Safriet wrote in his response.
Therefore, the SKA and its co-petitioner in the case, Siesta resident David Patton, would agree to an extension only through March 8, Safriet pointed out.
In a March 5 ruling, McHugh ended up giving Herin through March 14 to respond to her Feb. 11 order.
The Circuit Court case is the second legal attempt by the SKA to try to preserve the Pass as a waterway that never has been dredged. During his remarks at the March 2 SKA Annual Breakfast Meeting, outgoing President Kusekoski alluded to the earlier effort.
In January 2017, the SKA — along with another Siesta-based nonprofit, Save Our Siesta Sand 2 (SOSS2) — filed challenges with the Florida Division of Administrative Hearings (DOAH). Their action followed the late December 2016 announcement of the Florida Department of Environmental Protection (FDEP) that it was prepared to issue a permit to the city and the city’s co-applicant, the U.S. Army Corps of Engineers (USACE), for the Lido Renourishment Project.
During the DOAH hearing, conducted mostly in Sarasota in December 2017, the SKA and SOSS2 presented expert testimony underscoring the fact that disruption of one part of the coastal system could not help but affect the other facets of it, just as Farrell noted during his March 2 remarks.
FDEP Secretary Noah Valenstein agreed with the DOAH administrative judge’s recommendations on two points experts hired by the SKA and SOSS2 raised during the hearing. Nonetheless, on June 18, 2018, Valenstein issued a modified permit to the city and the USACE.
As a result, the SKA went back to Circuit Court last summer, seeking a remedy in that venue. (The judge originally presiding over the case ordered that the proceeding be put in abeyance until after the DOAH challenge process had been completed.)
After the SKA revived the lawsuit, McHugh ruled twice against the nonprofit last year. Her February order was based on a second amended complaint, in which the SKA sought a Writ for Mandamus. It asked her to order the city to seek permission the SKA says the city needs from Sarasota County leaders before the city can undertake any initiative in Big Pass. That petition also pointed out what the SKA has contended are the city’s obligations according to its own environmental policies.
“Finally, we found a judge who read the latest argument” and agreed that it made sense, Kusekoski told the audience at the March 2 Annual Breakfast Meeting.
“Hopefully, we’re going to make some progress,” he continued, with the city finally being forced to request permission from the county to dredge Big Pass.
“Worst case,” he continued, “the county says, ‘Fine.’” The best case, Kusekoski added, is that the county tells the city it can proceed with the plan only after an in-depth analysis of the potential impacts of the sand removal has been completed and shows no harm would result to the Key.
In August 2016, the County Commission asked the U.S. Army Corps of Engineers (USACE) to conduct what is called an Environmental Impact Statement (EIS) on the Lido project. Later that year, the USACE informed the commission that it believed the studies it already had undertaken were sufficient to prove Siesta would not suffer from the dredging of the pass.
In a federal lawsuit it filed in early January in the U.S. District Court for the Middle District of Florida, SOSS2 argues that the USACE has violated federal regulatory standards in its plan to forgo an EIS on the Big Pass project.
Although SOSS2 filed its case in the U.S. District Court in Jacksonville — where the USACE district office is located — SOSS2 Chair Peter van Roekens told The Sarasota News Leader this week that the venue has been changed to the U.S. District Court in Tampa. The nonprofit is awaiting a response from the USACE, which is due by early April, van Roekens reported to members of the Siesta Key Chamber of Commerce during their quarterly meeting on Feb. 20.
At the conclusion of the SKA’s March 2 meeting, newly elected President Catherine Luckner was asked whether the SKA still is seeking contributions to help cover its legal fees.
“Yes, indeed we are,” she replied.
Referencing the SOSS2 lawsuit, Luckner said the SKA had not been active in its fundraising as SOSS2 was pursuing donations for its latest initiative. “We’re trying to make sure that there’s not too many wonderful places to spend your money all at the same time,” she said with a laugh. Nonetheless, she continued, if Judge McHugh granted the city an extension in the Circuit Court case, the SKA “might need some experts to … qualify the studies that we have already done,” to underscore the validity of the SKA’s arguments if another hearing is scheduled. “So please think of us down the road.”
During the Feb. 20 Siesta Chamber meeting, SOSS2 Chair van Roekens reported that his organization had set a goal of $100,000 for expert testimony for its federal lawsuit, based on the expenses it incurred for the DOAH proceeding. “Were about two-thirds of the way there,” he said. Yet, “The closer you get, the harder it gets to finish that funding.”
“The Chamber’s been tremendously supportive,” Van Roekens said, “and we really appreciate that.”
He and his board members have been focusing on owners of condominiums and homes “that are definitely threatened” by the prospect of the dredging in the pass.
He also indicated hope that owners of some of the businesses on the Key would provide financial support, as well.