Federal judge denies Save Our Siesta Sand 2’s motion for Temporary Restraining Order to try to prevent dredging of Big Pass

Chief U.S. District Court Judge Merryday repeatedly criticizes nonprofit for failing to seek a preliminary injunction early on, which could have put Lido Key project on hold until case was decided

Chief Judge Steven Merryday of the U.S. District Court for the Middle District of Florida. Image from OpenJurist.org

The federal judge presiding over the Save Our Siesta Sand 2 lawsuit against the U.S. Army Corps of Engineers (USACE) has denied a motion for a Temporary Restraining Order (TRO) to prevent the removal of sand from Big Sarasota Pass to renourish about 1.56 miles of Lido Key Beach.

Chief Judge Steven D. Merryday of the U.S. District Court for the Middle District of Florida, in Tampa, pointed out in his July 6 order that Save Our Siesta Sand 2 (SOSS2) filed its original complaint against the USACE in January 2019, and the final documents were submitted in the case in December 2019. “SOSS2 remained free to request a preliminary injunction at any time [to ensure the project could not proceed until after a ruling had been handed down in the litigation]. Instead,” he continued, “SOSS2 waited until three business days (and the intervening Fourth of July weekend) before filing an amalgamated request for a temporary restraining order and a preliminary injunction. The absence of an explanation for this tardiness suggests either an inexplicable obliviousness or a calculated attempt to secure by force a delay of the project.”

The City of Sarasota announced the decision just after 10 a.m. on July 6, which was the day City Manager Tom Barwin had said would mark the beginning of the Lido Key Hurricane and Storm Damage Reduction Project.

David Ruderman, spokesman for the USACE District Office in Jacksonville, confirmed the judge’s decision for The Sarasota News Leader in a July 6 email. He added that the USACE would decline from commenting other than to note that the Lido initiative would proceed as planned.

Mark Smith, chair of SOSS2, did not provide a formal statement to the News Leader before its publication deadline this week.

During the July 6 regular Sarasota City Commission, City Attorney Robert Fournier reported the ruling, adding that City Engineer Alexandrea DavisShaw told him she expected the work on Lido to get underway as of Wednesday, July 8.

An aerial view shows the South Staging Area for the Lido project, which is in the county’s Ted Sperling Park. The agreement between the county and the City of Sarasota requires that, after all the work has been completed, the park be returned to the condition it was in prior to the start of the beach renourishment initiative. Photo courtesy of Michael Holderness

A graphic the city released in June showed that the first sand would be placed on the southern end of the beach, with the renourishment effort moving north from there.

As of midafternoon on July 6, the dredge that the USACE contractor for the project — Cottrell Contracting Corp. of Chesapeake, Va. — plans to use in Big Pass was off Ormand Beach, just north of Daytona Beach. Accompanied by a tug, the dredge was making 2.5 knots, according to information available from MarineTraffic.com. The website noted that the dredge’s average speed was 5.5 knots.

Shortly after 1:30 p.m. on July 9, the Rockbridge dredge was in the canal south of St. Lucie River, heading west to Lake Okeechobee, according to information provided by MarineTraffic.com.

This map shows the Rockbridge dredge in the canal heading west toward Lake Okeechobee. The vessel is marked as a dot just below a light blue arrow above the town of Arundel. Image from MarineTraffic.com

Throughout his order, Merryday scolded SOSS2, especially for failing early on to request a preliminary injunction. In January 2019, when the nonprofit filed its complaint, he pointed out, the USACE already had issued one solicitation for the Lido Key initiative. (The USACE ultimately cancelled that solicitation because the two bids it received came in at levels that it characterized as “unreasonably high.”)

Then, in October 2019, Merryday continued, in a summary judgment memorandum in the SOSS2 case, the USACE reported its “expectation ‘to award a contract [for the project] by mid-February [2020],’ but SOSS2 failed to request preliminary injunctive relief.”

In March, he added, the USACE awarded the Lido contract to Cottrell Contracting, and that contract was available not only on a federal government website but also “was widely reported in the media …” Yet, “SOSS2 failed to request preliminary injunctive relief.”

This Cottrell Contracting slide in a May 27 PowerPoint presentation to the USACE shows plans for the execution of the Lido project. Image courtesy FDEP

“Instead,” Merryday wrote, “on June 30 2020, three business days (the three-day, Fourth of July weekend, intervenes) before the Army Corps plans to begin the project, SOSS2 claims an ‘emergency’ and requests an order immediately [preventing the work from going forward] without affording the usual time within which to respond and to conduct a hearing.”

Merryday also explained that under Rule 65(b) of the Federal Rules of Civil Procedure and Local Rule 4.05(b)(2), a temporary restraining order can be issued only if the party seeking it “‘is threatened with irreparable injury … so imminent that notice and a hearing on the application is impractical if not impossible.’”

Citing a 2016 decision of the U.S. District Court for the Middle District of Florida — Kotori Designs LLC v. Living Well Spending Less Inc. — Merryday made it clear that “any emergency” of a plaintiff’s own making “warrants denial of the request for a temporary restraining order.” He added, “SOSS2’s silence about the day on which SOSS2 learned about the start of the project, the Army Corps’ publicizing the award of the contract to Cottrell, and SOSS2’s waiting until three business days before the start of the project to request a temporary restraining order collectively compel the conclusion that the reported ‘emergency’ is primarily SOSS2’s own creation.”

Moreover, he wrote, to the extent that the nonprofit’s June 30 motion sought a preliminary injunction, “the motion warrants denial.” Such an injunction should be issued, he continued, only if the entity filing it “enjoys a substantial likelihood of success on the merits” and if the harm to that entity would outweigh the harm to the defendant.

This is the north staging area for the project, located next to the Lido Pavilion, as shown in the May 27 PowerPoint presentation to the USACE. Image courtesy FDEP

More criticism

Moreover, Merryday wrote in his order, SOSS2 violated court rules requiring a TRO motion and an accompanying memorandum in support of the motion to appear in the same document. The nonprofit’s attorney split the request “between a two-page motion and an eleven-page memorandum of law in support of the motion.”

The attorney is Jane West, whose firm is located in St. Augustine.

He further criticized what he characterized as the “inconsistent requests in the motion and the memorandum,” with the motion’s title saying the organization was seeking a TRO, while the motion itself requested “entry of ‘a preliminary injunction to halt the dredging of Big Sarasota Pass until this court is able to resolve the merits of [SOSS2’s] claims.’ … And in the memorandum, SOSS2 requests that ‘the status quo be maintained until the parties are afforded an opportunity to respond …’”

Cottrell Contracting included this preliminary schedule for the Lido Key Hurricane and Storm Damage Reduction Project in its May 27 PowerPoint presentation for the USACE. Image courtesy FDEP

His review of the motions both SOSS2 and the USACE filed in the lawsuit last year — with each seeking a ruling in its favor — “suggests that a measure of the relevant merits plus the deference afforded to an agency in this circumstance renders SOSS2 unlikely to succeed on the merits,” Merryday added.

He also pointed out that the USACE has demonstrated that delaying the Lido project “will cause the Army Corps to incur ‘at least $48,000 in costs’ per day” and that the USACE “fairly claims surprise at the sudden request for a temporary restraining order. … The relief requested in SOSS2’s motion subjects the Army Corps to extensive, ongoing, and unnecessary expense, and SOSS2 fails (1) to describe the incremental harm that SOSS2 might suffer if the project continues [while the lawsuit is pending] or (2) to explain how this incremental harm exceeds the loss of $48,000 per day to which an injunction would subject the Army Corps.”