Save Our Siesta Sand 2 preparing for review of thousands of Army Corps of Engineers documents as next step in lawsuit to try to stop dredging of Big Pass

Federal judge designates case for a track that entails review of administrative record, instead of working toward trial

Big Sarasota Pass separates Lido Key, to the north, from Siesta Key. Image from Google Earth in August 2017

A Siesta Key nonprofit is awaiting what its leaders believe will be thousands of documents from the U.S. Army Corps of Engineers, which they and their subject matter experts will have to review as they seek to stop the dredging of Big Sarasota Pass.

And they anticipate having just one week to conclude that undertaking, Save Our Siesta Sand 2 Chair Peter van Roekens reported in an April 18 newsletter. The nonprofit has to file a May 16 answer to the U.S. Army Corps of Engineers (USACE) after its team pores over the materials.

The review is just one step outlined in a schedule in conjunction with a new designation for the lawsuit Save Our Siesta Sand 2 (SOSS2) filed against the U.S. Army Corps of Engineers (USACE) in January. In late March, the federal judge presiding over the case redesignated it for “Track One” proceedings.

After the case was transferred in February from the Jacksonville Division to the Tampa Division of the U.S. District Court for the Middle District of Florida, the USACE filed a motion that SOSS2 did not oppose, seeking the switch to Track One. Among the categories of proceedings in Track One cases, according to the U.S. District Court for the Middle District of Florida, are those involving the review of an administrative record; a challenge of a criminal conviction or sentence; and action to enforce an arbitration award.

Initially, the USACE’s March 18 motion pointed out, the case was designated a Track Two, which typically includes a trial.

Chief Judge Steven Merryday. Image from OpenJurist.org

In the order he issued in the case on March 20, U.S. District Court Chief Judge Steven D. Merryday pointed out that SOSS2 is requesting “judicial review of the administrative record.”

The SOSS2 complaint contends that the USACE failed to adhere to the standards set forth in a variety of federal laws when the USACE issued a finding of No Significant Impact for its proposal to remove up to 1.3 million cubic yards of sand from Big Pass to renourish about 1.56 miles of South Lido Key Beach. The USACE issued its Final Environmental Assessment and Finding of No Significant Impact (FONSI) on July 30.

The City of Sarasota was the co-applicant with the USACE in March 2015 in seeking a Florida Department of Environmental Protection (FDEP) permit for the Lido project.

SOSS2 attorney Jane West, whose eponymous law firm is located in St. Augustine, has argued that the USACE has violated the National Environmental Policy Act (NEPS), the Clean Water Act (CWA), the Endangered Species Act (ESA) and the Administrative Procedure Act (APA).

The APA “governs the process by which federal agencies develop and issue regulations,” the Environmental Protection Agency (EPA) website explains.

The March 18 USACE motion in the case noted that the Administrative Proceeding Act (APA) “provides for judicial review of final agency action based on the administrative record.” Citing a ruling by the Fifth U.S. Circuit Court of Appeals, the USACE motion said, “‘The task of the reviewing court is to apply the appropriate APA standard of review … to the agency decision based on the record the agency presents to the reviewing court.’”

“Further,” the motion continued, “because this litigation seeks to review the Corps’ actions under the APA, discovery is not warranted and expert reports should not be filed. Additionally, the motion said, “This District Court has further recognized that ‘[s]ince the Court determines the issues based on the agency’s administrative record, a trial is generally unnecessary and summary judgment is often appropriate,’” citing an 11thCircuit Court of Appeals case.

Jane West. Photo from her law firm’s website

In an April 18 telephone interview with The Sarasota News Leader, SOSS2 attorney West said it is common for cases such as the SOSS2 action to be designated for Track One.

Nonetheless, West continued, “If the Corps decides to proceed with construction [before the conclusion of the case], we would have to file for emergency injunctive relief.” That would entail an evidentiary hearing, she pointed out, as SOSS2 sought to persuade the judge to issue an order stopping the dredging of Big Pass.

Over the past several months, Sarasota City Manager Tom Barwin has written in several of his newsletters that city leaders expect the USACE’s Lido Shoreline Protection Project to begin in the fall. Most recently, on April 12, he included that information in a report on the completion of an emergency renourishment initiative on Lido Key.

Following a timeline

In regard to the imminent release of the USACE materials for SOSS2’s review, a court document in the case says the nonprofit “will identify and communicate to the Corps any issues regarding completeness of the record and/or any issues regarding the admission of extra record evidence.” The document also points out that SOSS2 “will provide the Corps with copies of any materials it seeks to include in the administrative record and copies of any materials that it seeks to admit as extra record evidence.”

In the update to supporters that he released on April 18, SOSS2 Chair Van Roekens wrote that the nonprofit would be relying on the assistance of “experts in the relevant fields” to examine all the USACE documents. The USACE essentially has to produce everything upon which it relied in making its case to the FDEP that the state should issue the permit for the removal of sand from Big Pass, SOSS2 representatives told the News Leader.

FDEP issued that permit in June 2018.

The USACE’s March 18 motion explained that the USACE and SOSS2 had “conferred and agreed to a proposed schedule for resolving the merits of this case …”

Peter van Roekens. File photo

After the document review and SOSS2’s filing of its response, van Roekens pointed out in his April 18 newsletter, “[T]he next major actions will be when we file for summary judgement by July 1st and when the [USACE] files their final cross to the summary judgement on October 17th. Then it is in the hands of the judge.”

Judge Merryday is the chief judge of the U.S. District for the Middle District of Florida, the court’s website says. He has served in that capacity since 2015.

Merryday joined the court in 1992, the website adds. He was nominated to the bench by President George H.W. Bush.

Prior to that appointment, Merryday was in private practice in Florida.

Merryday is a 1972 graduate of the University of Florida (UF). He received his law degree from UF’s Levin College of Law in 1975, the court’s website notes.

In a February 2018 article for Law360, reporter Jeff Overley wrote of Merryday, “He has a reputation in the Middle District of Florida as someone who carefully crafts his judicial opinions. They’re extremely well written and thoughtful,” said Lee Bentley, a former U.S. attorney in the district and current partner at Bradley Arant Boult Cummings LLP.”

USACE answer to SOSS2’s complaint

A USACE map shows the sand borrow areas proposed in Big Pass. Image courtesy FDEP

In its April 1 answer to the SOSS2 complaint, the USACE denies the nonprofit’s allegations of violations of federal laws. It admits only to specific facts, including acknowledgment that Big Pass “has never been dredged by the U.S. Army Corps of Engineers …”

It also argues that the statute of limitations has run out on some of SOSS2’s claims, that SOSS2 has failed “to state a claim upon which relief can be granted,” and that SOSS2 “lacks standing to pursue some or all of its claims.”

The U.S. Supreme Court created a three-part test to determine whether a party has standing to sue in a federal case, the Cornell Law School explains:

  • “The plaintiff must have suffered an ‘injury in fact,’ meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent
  • “There must be a causal connection between the injury and the conduct brought before the court
  • “It must be likely, rather than speculative, that a favorable decision by the court will redress the injury.”

The USACE asks the court to dismiss the SOSS2 case “with prejudice,” meaning the nonprofit could not file an amended version of its complaint. The federal agency also asks that it “be allowed its costs and such other and further relief as the Court may allow.”

The attorney handling the case for the USACE — Mark Arthur Brown — is with the Wildlife and Marine Resources Section of the Environment and Natural Resources Division of the U.S. Justice Department in Washington, D.C. He is a member of the Florida Bar.

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