Plaintiffs contend county must remain a defendant in Midnight Pass suit

A Sarasota County aerial view shows Midnight Pass in the 1970s.

The Midnight Pass Society and its fellow plaintiffs in a federal lawsuit seeking the reopening of Midnight Pass say they have met their legal burden in alleging a case against Sarasota County.

Therefore, in a motion filed July 3 in the U.S. District Court for the Middle District of Florida, in Tampa, they say Sarasota County’s June 19 motion for dismissal as a defendant should be denied.

In the meantime, other defendants in the case have filed motions for dismissal: the Florida Department of Environmental Protection, DEP Secretary Herschel Vinyard and Danielle Fondren, deputy director of the DEP’s Division of Water Management.

In further action in the case, the plaintiffs filed a summons on July 19, seeking an answer to the complaint from the U.S. Fish & Wildlife Service, which is also a defendant.

That summons says that as a United States agency, the FWS has 60 days from the June 12 filing of the lawsuit to respond. Otherwise, a “judgment of default will be entered against you for the relief demanded in the complaint,” the summons says.

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 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.”

In 1983, two Siesta Key residents, Syd Solomon and Pasco Carter Jr., received county permission to close the inlet temporarily to protect their waterfront homes, which were threatened by beach erosion.

The lawsuit points out that the agreement called for the pass to be reopened at some point, but that has not happened.

Response to Sarasota County

A 2012 Sarasota County aerial view shows the approximate location of the former Midnight Pass.

In response to Sarasota County’s motion to be dismissed from the case, the plaintiffs say they have made five claims against multiple defendants. Along with the Florida Department of Environmental Protection, they are the Florida Fish and Wildlife Conservation Commission, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers.

The plaintiffs’ response says the county is attempting to extricate itself from the suit “by arguing that the Complaint alleges only minimal involvement by the County and lacks specificity as to which counts the County is liable on.”

The response adds, “The argument is without merit.”

The county’s role is spelled out clearly in the complaint, the response says. Further, it says, that role “is not limited to passively allowing two homeowners to close Midnight Pass as the County suggests.”

The response says the county failed to force the homeowners to re-open the pass, in spite of their agreement with the county to do so. It also says the county attempted to obtain permits from DEP on two occasions to re-open the pass. The first application, in 1991, was denied. In 2008, DEP issued a Notice of Intent to Deny the application, after which the county withdrew it, the lawsuit says.

The response also asserts that the lawsuit contains substantive counts regarding the county’s violation of the Clean Water Act and the Endangered Species Act. It adds that both those acts provide for any person to bring suit against a governmental entity when it is responsible for people acting in violation of those acts.

The response reiterates that the county is “partly responsible for the ongoing failure to reopen the Pass …” and therefore responsible for the resulting degradation of water quality in Little Sarasota Bay and harm to the endangered manatees, whose population in the area has diminished since the pass was closed.

For all those reasons, the response says, “the County is an indispensable party” to the lawsuit as defined in Federal Rules of Civil Procedure. “Its presence in this case is necessary for a just adjudication of the dispute because complete relief could not be accorded among the remaining parties.”

The response adds, “By its own admission, the County has the authority to give or withhold consent to some of the permits necessary to reopen the Pass. … The Pass is located within the County’s jurisdiction, and is obviously publically owned. Thus, this matter may not move forward and be resolved without the County’s interests in the Pass being affected.”

The response concludes that if the court finds defects in its complaint against the county, the plaintiffs should be accorded the opportunity to correct them by amendment to the lawsuit.

DEP motions

In a joint motion seeking to be dismissed from the case, DEP and Vinyard say the plaintiffs were not a co-applicant with Sarasota County when the county applied to DEP’s predecessor organization, the Department of Environmental Regulation, for a permit in 1998 to dredge a new inlet.

The motion also says the plaintiffs were not a co-applicant in 2004, when the county applied to DEP for a Joint Coastal Construction Permit to reopen Midnight Pass by excavating a pass across the island.

The motion adds that DEP at that time “determined that opening the inlet would have caused significant adverse impacts to the existing coastal structure.”

The motion also says the 11th Amendment to the U.S. Constitution “is an absolute bar to this suit in federal court against the Department …”

The 11th Amendment recognizes that states have a certain degree of sovereign immunity. It applies only to lawsuits in federal courts.

The motion says, “In Florida, the supreme executive power is vested in the governor.”

It adds , “In an attempt to circumvent Florida’s Eleventh Amendment immunity, Plaintiffs name the [DEP] Secretary as a defendant in his official capacity. Sovereign immunity under the Eleventh Amendment cannot be avoided by semantics.”

It also points out that the Clean Water and Endangered Species acts were passed by Congress.

Additionally, the motion says the requested relief “would divest the State of its sovereign control over submerged lands, lands with a unique status in the law and infused with a public trust the State itself is bound to respect.”

The motion points out that the plaintiffs are seeking an order compelling DEP to issue permits allowing the dredging of sovereign submerged lands to reopen Midnight Pass and that that action would require Sarasota County to obtain an ownership interest in those lands.

Yet, in Florida, the motion says, the title to sovereign submerged lands is vested with the Florida Board of Tustees of the Internal Improvement Trust Fund, and the plaintiffs failed to include those trustees among the defendants.

Fondren’s motion

DEP Deputy Director Fondren’s motion to dismiss also claims 11th Amendment protection, but it adds that the complaint should be dismissed “for failure to effect proper service.”

The motion says the summons originally was addressed to Michael Barnett, chief of DEP’s Bureau of Beaches and Coastal Systems, which has the authority to approve or deny permits to reopen inlets.

The motion scontends that the process server “amended the summons by scratching out [Barnett’s] name and leaving the title ‘Bureau Chief.’”

However, the motion says, the Federal Rules of Civil Procedure say a summons must be amended with the permission of the court, and “It does not appear from the docket that the Plaintiffs asked the court for permission to amend the summons.”

While Fondren, instead of Barnett, was serving as the chief of the bureau when the summons was served on July 5, the motion says, she no longer is serving in that capacity.