Legal bills in Big Pass case approaching the $900,000 mark for City of Sarasota and two nonprofit organizations on Siesta Key

City already has paid close to $490,000

A woman walks along the sandbar in Big Pass, just north of Siesta Key, in July 2017. File photo

The City of Sarasota and two nonprofit organizations altogether have paid close to $900,000 in legal fees as they have wrangled over the proposed dredging of Big Sarasota Pass to renourish a 1.6-mile stretch of South Lido Key Beach, The Sarasota News Leader has learned.

The city’s legal bills through December 2017 totaled $488,637.56, according to figures City Attorney Robert Fournier provided the News Leader at its request.

However, in a Jan. 31 email, Fournier pointed out that an additional payment was possible, as he had received a statement the previous week from the Bradenton firm representing the Lido Key Residents Association. That nonprofit also has been a party to the legal challenges, as Lido residents repeatedly have expressed fear that condominium towers on South Lido could suffer severe storm damage, given the extent of erosion on that part of the island.

“[W]e verbally agreed to assist the Lido Key Residents Association (LKRA) with some of their legal expenses,” Fournier explained in the Jan. 31 email, if he and the city’s outside counsel, John R. Herin Jr. of GrayRobinson in Fort Lauderdale, had given advance approval of “the subject matter of the work.”

City Attorney Robert Fournier. File photo

Lewis, Longman & Walker has been serving as counsel for the Lido Key Residents Association. Its last statement to the city included $92,229 in attorneys’ fees and $8,407.05 in other expenses for the month of December 2017, Fournier noted, for a total of $100,636.05.

“I am presently reviewing this statement,” Fournier wrote on Jan. 31. “A decision will be made as to what portion of this statement will be paid by the City after I have completed my review and consulted with the City Manager and Assistant City Manager regarding payment.”

Responding to a follow-up News Leader question on Feb. 8 regarding whether a decision had been made about paying that statement, Fournier wrote, “No, that determination has not been made yet because of my schedule this week. I am hoping to resolve that question next week.”

(The City Commission held its regular, semi-monthly meeting this week.)

The two Siesta Key-based organizations — the Siesta Key Association (SKA) and Save Our Siesta Sands 2 (SOSS2) — together have paid almost $400,000 for legal expenses, their representatives have said.

The SKA and SOSS2 have been urging the city for about four years to find a source for the Lido sand replenishment other than Big Pass. In January 2017, both filed administrative challenges after the Florida Department of Environmental Protection (FDEP) announced in December 2016 that it was prepared to issue a permit to the City of Sarasota and the U.S. Army Corps of Engineers (USACE) for the dredging of the pass.

Additionally, the SKA has filed a complaint in the 12th Judicial Circuit Court in the event the administrative law challenges fail.

SOSS2 posted this notice on its website after the Florida Department of Environmental Protection announced in December 2016 that it would issue a permit for the dredging of Big Pass. Image courtesy of SOSS2

SOSS2 Chair Peter van Roekens has said on several occasions that his organization is prepared to collaborate with the Florida Wildlife Federation (FWF) if the fight ultimately goes to federal court. In December 2017, Manley Fuller, president of the FWF, indicated to the News Leader that his organization was still preparing for the possibility of a U.S. District Court case.

During a Feb. 6 telephone interview, van Roekens told the News Leader that his organization has spent about $200,000 on legal bills. The amount includes payments for expert witnesses who testified in December 2017 during a Florida Division of Administrative Hearings (DOAH) proceeding in Sarasota regarding the SKA and SOSS2 challenges to FDEP’s Notice of Intent to issue a permit for the dredging of the pass.

(The FWF had to withdraw from the hearing because of a personal matter involving its attorney, Fuller told the News Leader in early December 2017.)

SKA Vice President Catherine Luckner. File photo

During the Feb. 1 SKA meeting, Treasurer Bob Miller said that that nonprofit’s expenses have totaled about $197,000.

Additionally, during the Nov. 2, 2017 SKA meeting, Vice President Catherine Luckner reported that that nonprofit’s attorney, Kent Safriet of the Tallahassee firm Hopping Green & Sam, had ended up waiving $23,000 in legal fees in midsummer 2017. Hopping Green & Sam had exceeded the cap the SKA had set for what it could spend, she explained. “They actually reduced their hourly fees for us.”

The $23,000, she pointed out, was only half of what the SKA would have owed the firm for one month.

The SKA not only is in the midst of its annual membership renewal drive, but it also is asking that people consider contributing to the Siesta Key Environmental Defense Fund (SKEDF) it established last year as a 501(c)(3) corporation. Donations to the SKEDF are tax-deductible, SKA directors have pointed out, and the money is going toward the fight against the dredging of Big Pass.

“This is not over,” Miller said of the legal challenges on Feb. 1. “We have a ways to go.”

Van Roekens and the other SOSS2 board members, likewise, are welcoming donations.

Breaking down the city’s costs

In his Jan. 31 email to the News Leader, City Attorney Fournier broke down the city’s expenses through December 2017 as follows:

  • $329,798.01 in attorney’s fees and costs to GrayRobinson. Fournier noted that Herin, the GrayRobinson attorney handling the legal challenges for the city, charges an hourly rate of $300.
  • $14,250.01 to Ocean Sciences Inc. for expert testimony by Mark Fonseca.
  • $65,298.55 to Thomas Campbell, a professional engineer with the firm Coastal Engineer, for expert witness testimony and consulting services.
  • $10,800.00 to Angel Eyes UAV LLC. The firm provided aerial photography for exhibits used at the DOAH hearing, Fournier wrote.
  • $68,490.99 to Lewis, Longman & Walker, which charges an hourly rate of $425 for senior counsel.
John R. Herin Jr. Image from the GrayRobinson website

After the December 2017 DOAH hearing, Florida Administrative Law Judge Bram D.E. Canter told the attorneys for all parties that he would give them 30 days after the transcript of the proceeding was released to provide him with written recommendations for his ruling. Then he would take 45 days or so to issue his order, he added.

As of midafternoon on Feb. 8, the News Leader found no record yet in the case’s DOAH docket showing that the transcript had been completed.

Susan J. Jackson, spokeswoman for the USACE at its Jacksonville District Office, wrote of the transcript in a Feb. 2 email to the News Leader only that “it will become available.”

SKA Vice President Luckner told SKA members on Feb. 1 that the nonprofit had not been able to learn a timeline for the release of the transcript.

If Canter rules against SOSS2 and the SKA, Luckner also has pointed out to members, the SKA is prepared to return to the Circuit Court to pursue the case it initiated last year.

In April 2017, 12th Judicial Circuit Court Judge Lon Arend ruled that that case be held in abeyance, pending the outcome of the DOAH hearing. He did tell Safriet, the SKA attorney, that he would be willing to entertain a motion for an emergency injunction to prevent the dredging of Big Pass if the DOAH judge ruled that FDEP could issue the permit to the city and the USACE.

Then the SKA would have the opportunity to make its case in the Circuit Court.