Judge denies request of parties in Lido Renourishment Project hearing for pretrial conference over concern about insufficient time for all witness testimony

Dispute also arises over order of presentations and burden of proof in the proceeding set for December

Concern has arisen that not enough time has been scheduled in December for the challenges of three nonprofit organizations seeking to prevent the dredging of Big Sarasota Pass to renourish about 1.6 miles of South Lido Key.

On Oct. 23, the respondents in the case — the City of Sarasota, the U.S. Army Corps of Engineers (USACE), the Florida Department of Environmental Protection (FDEP) and an intervenor, the Lido Key Residents Association (LKRA) — filed a joint motion, asking for a prehearing conference to address their concerns, The Sarasota News Leader has learned.

Two days later, the administrative law judge who is presiding over the case denied their request.

Because the lead FDEP attorney suffered an injury in late July, Administrative Law Judge Bram D.E. Canter agreed to delay the hearing from late August to a Dec. 12 start date. The Division of Administrative Hearings (DOAH) proceeding is scheduled for six days, concluding on Dec. 19.

The Oct. 23 motion pointed out that the hearing originally was set for nine days instead of six. Nonetheless, in an Oct. 25 order, Canter wrote, “Six days is probably more time than required for a hearing on the issues raised in this proceeding.”

On a second point of concern, the motion argued, “The issue of order of presentation [during the proceeding] and burden of persuasion is also a disagreement between the parties.” The respondents had filed a separate motion that same day, seeking an order from Canter that would make it necessary for the petitioners to comply with the guidelines of Section 120.569(2)(p) of the Florida Statutes.

The petitioners are Save Our Siesta Sand 2 (SOSS2), the Siesta Key Association (SKA) and the Florida Wildlife Federation (FWF).

The section of state law the respondents cited says that the permit applicant must make its argument first, followed by the presentation of the agency that would be issuing the permit. Then the parties challenging the permit would be allowed to make their arguments, with the burden of persuasion upon them.

In a separate Oct. 25 order, Canter agreed with the respondents on that issue. That was another reason, he wrote, that he denied the request for the pretrial conference. His decision on that point of contention should facilitate completion of the proceeding within the time frame allowed, he added.

In this case, the applicants are the City of Sarasota and the USACE, which filed in March 2015 for an FDEP permit to dredge about 1.2 million cubic yards of sand from Big Pass to bolster the critically eroded shoreline of Lido Key. FDEP’s Dec. 22, 2016 notice of its Intent to Issue that permit prompted the challenges from SOSS2, the SKA and the FWF.

The nonprofits have maintained that the USACE’s modeling of the project — which includes two groins on South Lido Key — has been inadequate in demonstrating the USACE’s assertion that no harm will come to Big Pass or Siesta Key if the dredging takes place. The FDEP permit would be valid for 15 years, but the USACE has called for continual renourishments of Lido Key every five years over a 50-year timeline, with the groins designed to try to hold sand in place between the initiatives.

The City of Sarasota and the Lido Key Residents Association have decried the efforts to stop the project, saying that the USACE’s expertise in such undertakings has been well demonstrated and that no other economically viable sand source has been located.

In July, the Sarasota City Commission formally reaffirmed its support of the proposed project in a submittal to FDEP; that documentation said the expense had risen from $19 million to $21 million, with the federal government expected to pay $13,020,000. The document added that the city expects a state grant to cover $3,990,000 of the expense, with the rest of the cost — another $3,990,000 — coming from Tourist Development Tax revenue Sarasota County allocates to the city for beach renourishment initiatives.

The motion for the prehearing conference pointed out that because of the dispute over the order of presentation and the worries about insufficient time for the proceeding, “the Parties agree that they would benefit from having these [issues] resolved by the Administrative Law Judge in advance of the hearing in order to avoid confusion and allow for a more orderly presentation during the hearing.”

The motion added that the LKRA’s attorneys — Kevin S. Hennessy and Richard P. Green of Lewis, Longman & Walker in Bradenton — had conferred with the petitioners, and neither SOSS2 nor the SKA objected to the conference. They tried unsuccessfully on numerous occasions to reach the counsel for the FWF, Hennessy and Green added, but they had heard no response.

During the Oct. 5 SKA meeting, Vice President Catherine Luckner told the audience, “I’m already hearing it’s possible [the hearing] could carry over into January.” She noted that the applicants, who wish the Lido project to proceed as designed, “have added a lot of professional help” to their lists of expert witnesses. “We have to answer that.”

When the SKA held its August meeting, Director Robert Spicer indicated that during depositions for the DOAH proceeding, Judge Canter had taken note of questions expert witnesses had raised about the USACE’s modeling and other scientific analyses related to the project. “There’s some interesting developments,” Spicer said.

When the News Leader asked Peter van Roekens, chair of SOSS2, about the potential extension of the proceeding into 2018, he responded in an email: “We are in favor of the shorter trial as long as all of our expert witnesses can be fully heard.”

In an Oct. 24 telephone interview with the News Leader, Brooke Robertson, a DOAH administrative assistant, explained that if it appears a case will not be able to conclude in the time provided for it, the presiding judge generally will consult with the attorneys on the last day or two to determine how much extra time they believe they will need and the dates when all the parties once again can be present.

“Typically,” she said, “they rarely do anything ahead of time” in regard to scheduling extra days. Even though it might appear insufficient time has been set aside for a case, Robertson pointed out, no one can predict exactly how a hearing will go.

Dispute over the statute’s guidelines

The state statute at the heart of the dispute over the order of presentations says that “if a nonapplicant petitions as a third party to challenge an agency’s issuance of a license, permit, or conceptual approval, the order of the presentation … is for the permit applicant to present a prima facie case demonstrating entitlement to the license, permit, or conceptual approval, followed by the agency.”

After the presentation of the applicant’s case and “any direct evidence submitted by the agency, the petitioner initiating the action challenging the issuance of the license, permit, or conceptual approval has the burden of ultimate persuasion …”

The respondents’ motion asked Judge Canter to affirm that the statute the respondents’ attorneys cited applies in this case.

On Oct. 24, Kent Safriet of the Tallahassee firm Hopping Green & Sams, the attorney for the SKA, filed a response, arguing that the statute does not apply to this DOAH proceeding.

The statute “is very explicit that it applies to permits and licenses that arise under three chapters of Florida Law,” Safriet emphasized: Chapters 373, 378 and 403. However, he continued, a coastal construction permit falls under a different chapter of Florida law — 161 — and a sovereign submerged lands authorization under yet another one — 253. “[P]ermits and licenses under those Chapters do not quality for the burden shifting provision” of the statute the respondents cited, he contended.

(The FDEP permit would allow the USACE to dredge sovereign submerged lands, which are underwater properties that Florida took ownership of when it became a state in 1845.)

“Respondents’ attempt to sidestep the plain language of the statute and bootstrap Chapters 161 and 253 into section 120.569(2)(p) [of the Florida Statutes] [relies] on [a] completely procedural rule that allows multiple different permits to be processed and reviewed by [FDEP] at a single time,” Safriet wrote.

“Not surprisingly,” he continued, “the Respondents cite no law for trying to add Chapters 161 and 253 to the statutory text of section 120.569(2)(p) [of the Florida Statutes].”

However, the respondents argued in their motion that that section of state law “applies to ‘any proceeding’ arising under chapter 373 … including those which are issued in conjunction with other chapters …”

Nonetheless, Safriet pointed out, FDEP itself has acknowledged in earlier legal cases that “[t]he consent to use sovereignty submerged lands is an authorization issued under chapter 253. Such authorizations are not subject to section 120.569(2)(p).”

Therefore, Safriet asked that Judge Canter deny the respondents’ motion regarding the order of the proceeding.

In a motion filed on Oct. 24 on behalf of SOSS2, attorney Martha Collins of the Collins Law Group in Tampa wrote that her clients “agree with all the reasons” Safriet stated in the SKA response.

In his Oct. 25 order on that issue, Canter wrote, “Section 120.569(2)(p) focuses on the proceeding and where it arises. The Legislature is presumed to have intended the plain meaning of the words it used and the effects that are caused by their plain meaning.”

He added that the issue recently was addressed in a different DOAH case, “where it was concluded that [the section] is applicable to a Joint Coastal Permit because the proceeding to determine the validity of the permit arises under section 373.427.”