With positions having been laid out by the parties, Siesta Key Association, City of Sarasota and Lido Key Residents Association awaiting Appeal Court’s decision on request for oral arguments in Big Pass case

Both sides also file for attorneys’ fees

The renourishment of Lido Key Beach continues, as shown in an aerial view taken by a drone. Image courtesy of Michael Holderness

The removal of sand may be underway in Big Sarasota Pass, but leaders of the Siesta Key Association (SKA) continue to argue in their Second District Court of Appeal case that a 12th Judicial Circuit Court judge last year ignored the fact that the City of Sarasota and the U.S. Army Corps of Engineers needed multiple permits — state and local — before that dredging could begin.

The nonprofit’s attorney emphasized in the opening of his July 21 reply brief in the appeal that the city and the Lido Key Residents Association (LKRA) — an intervenor in the lawsuit — misconstrued the SKA’s allegations in the second amended complaint the SKA filed in the 12th Judicial Circuit Court in Sarasota. That “only confirms that the circuit court’s order … should be reversed and the case remanded for judgment on the merits,” Kent Safriet of Hopping Green and Sams in Tallahassee wrote in his July 21 filing.

The SKA’s cause of action, Safriet pointed out, “is premised [on] the City’s failure to obtain a WNCA [Water and Navigation Control Authority] Permit from Sarasota County. Thus, the critical issue is whether a WNCA Permit is required for the Project. If it is,” Safriet added, then the Florida Statute that Circuit Judge Andrea McHugh cited in ruling against the SKA last year does not prevent the nonprofit from claiming that the city still needs that permit.

Even before filing their suit in Circuit Court in March 2017, SKA leaders contended that because Big Pass never had been dredged, and the waterway is within the county’s jurisdiction, the city needed to apply to the county for the WNCA permit.

In March 2015, the City of Sarasota was the co-applicant with the U.S. Army Corps of Engineers (USACE) for the state Joint Coastal Permit that would allow the USACE to remove up to 1.3 million cubic yards of sand from the pass to renourish Lido Key Beach.

Cottrell Contracting Corp.’s dredge Rockbridge removes sand from Borrow Area C in Big Pass on Aug. 8. Image courtesy of Michael Holderness

The city and the LKRA contend that no WNCA permit was required for the Lido Key Hurricane and Storm Damage Reduction Project. However, Safriet continued in his reply brief to point to Section 54 of the Sarasota County Code, which says, “No work shall be performed having the effect of Altering any Jurisdictional Areas without first obtaining a [WNCA] permit from the Authority or Administrator, unless specifically exempted under the provisions of Section 54-653(4)(g).”

That portion of the code, he explained, defines “Altering” so that it includes dredging. Further, he noted, “‘Dredging’ is defined to include ‘excavating,’ by any means, in Jurisdictional Areas.’ … And, ‘Jurisdictional Areas’ are ‘all water bodies, watercourses, and waterways in the coastal areas of Sarasota County,’” according to the County Code.

These are the exemptions cited in Chapter 54-653(4)(g) of the Sarasota County Code of Ordinances in regard to the need for a WNCA permit. The SKA has contended that, because no sand ever had been removed in the past from Big Pass, the project underway is not ‘maintenance dredging.’ Image courtesy Sarasota County

Conversely, the attorneys for the city and the LKRA argue that the Lido Key undertaking “is a federal construction project, which, based on the federal supremacy doctrine, is not subject to local regulation.”

John R. Herin Jr. of the Miami firm Fox Rothschild is the outside counsel for the City of Sarasota, while Kevin S. Hennessy, a partner with the St. Petersburg firm of Lewis, Longman & Walker, is the LKRA attorney.

While they acknowledged that “some environmental projects require more than one permit from more than one government entity,” Herin and Hennessy wrote, “this Project simply does not require a Sarasota County permit … [The SKA leaders] incorrectly allege that the County has the authority to supersede the State’s proprietary powers of the use of sovereign submerged lands.” They added that “the Florida Attorney General has opined on several occasions regarding the limits on county and municipal governments to regulate property under [their] powers as it pertains to sovereign lands.” Hennessy and Herin cited several opinions of the attorney general to support their assertion.

Along with the exchanging of briefs in the appeal, all parties also have filed motions for attorneys’ fees, court records show. Additionally, the City of Sarasota and the LKRA have asked for oral arguments before a panel of Second District Court of Appeal judges. As of Aug. 12, the court had not responded to that request.

Point and counterpoint

In their June 25 joint reply to Safriet’s initial brief in the appeal, the attorneys for the city and the LKRA pointed out that the areas where the sand will be removed from Big Pass are the channel and the ebb shoal. Those “are entirely on sovereign submerged lands held in trust by [the state],” they added. However, they conceded, “A portion of the borrow areas falls within the boundaries of Sarasota County.”

Herin and Hennessy further explained in their reply brief that after the Florida Department of Environmental Protection (FDEP) issued a Notice of Intent to Issue the permit for the Lido project — in December 2016 — the SKA challenged the decision, which resulted in a Florida Division of Administrative Hearings (DOAH) proceeding in December 2017. The administrative law judge who heard the case, Hennessy and Herin continued, found that the city and the USACE “met all applicable rules and regulations for FDEP to issue the Lido Key [project permit], including the proprietary authorization to use state owned sovereign submerged lands as a borrow area …”

Kent Safriet. Image from the Hopping Green and Sams website

SKA attorney Safriet countered that that argument is erroneous, noting that it “has been expressly rejected in GLA & Associates v. City of Boca Raton,” a 2003 Florida Fourth District Court of Appeal case. That appeal court, Safriet continued, held that Chapter 161 of Florida Statutes, which pertains to beach and shore preservation, as well as coastal zone protection, “does not pre-empt local ordinances.”

“Even [FDEP] filed a [friend of the court] brief in that case affirmatively arguing that the City’s ordinances are not preempted by Chapter 161,” he added.

In fact, Safriet added, citing a 2005 Florida Second District Court of Appeal case, “There is no indication in the statutes or rules that the Legislature intended to preempt the authority of local governments to regulate lands within their jurisdiction.”

He further noted that the FDEP permit awarded the City of Sarasota and the USACE “expressly recognizes local permits may be required,” as stated in General Condition 3 of the permit.

Yet, Herin and Hennessy pointed out, “The GLA case has little similarity to the facts in the [SKA] case other than both cases concern coastal activities.” The GLA lawsuit, they continued, “involved the adjudication of [a] developer’s attempt to exercise its property rights over private land it owned that was seaward of the coastal construction control line.”

“Additionally,” they wrote, “Sarasota County has not taken any action to stop the [Lido] Project or subject it to any County permitting despite having full knowledge of the details of the Project.”

In summarizing their arguments, Hennessy and Herin wrote in their reply brief that Circuit Judge McHugh did not err when she ruled that Section 403.412(2)(e) of the Florida Statutes [Florida’s Environmental Protection Act of 1971) bars a cause of legal action “where a valid permit has been issued to the City and the [USACE] by FDEP.”

They argued that the statute specifically says, “No action pursuant to this section may be maintained if the person (natural or corporate) or governmental agency or authority charged with pollution, impairment, or destruction of the air, water, or other natural resources of the state is acting or conducting operations pursuant to a currently valid permit or certificate covering such operations, issued by the appropriate governmental authorities or agencies, and is complying with the requirements of said permits or certificates. (emphasis added).”

Further, Hennessy and Herin wrote that the SKA’s complaint was “devoid of any factual allegations” that Section 54-653 of the Sarasota County Code “qualifies as an environmental law, rule or regulation enforceable under the Florida Environmental Protection Act (FEPA).

However, Safriet contended that they misrepresented the FEPA. He asserted that the statute “applies to ‘laws, rules, and regulations for the protection of the air, water, and other natural resources of the state.’ There can be no doubt,” he continued, “Chapter 54 of the Sarasota County Code is designed to protect the air, water, and natural resources as the Chapter is entitled ‘Environmental and Natural Resources.’”

Further, he argued, Section 403.412(a) of the statutes says, “Any person, natural or corporate, or governmental agency or authority” can act to prevent “persons, agencies, or authorities from violating any laws, rules, or regulations for the protection of the air, water, and other natural resources of the state.’ (emphasis added).”

‘Indispensable parties’

Yet another argument Hennessy and Herin put forth in their reply brief was that the SKA complaint should be dismissed with prejudice — meaning a revised version of it could not be filed as a new complaint — because the SKA did not include FDEP, the county or the USACE as “indispensable parties.”

Kevin S. Hennessy is the primary attorney for the Lido Key Residents Association in the SKA case. Photo from the Lewis, Longman & Walker website

Safriet countered that by pointing to a 2006 Florida Supreme Court case, Fla. Dep’t of Revenue v. Cummings, in which the court ruled, “An indispensable party is one whose interest in the controversy makes it impossible to completely adjudicate the matter without affecting either that party’s interest or the interest of another party in the action.”

For example, Safriet continued, Herin and Hennessy argued that the USACE “is an indispensable party to the case simply because it is a co-applicant for the Lido Key [permit from FDEP].” Yet, at the same time, Safriet added, Hennessy and Herin pointed out that the USACE, “by way of federal supremacy, is not required to get a Sarasota County permit in this case.”

When “a federal agency refuses to recognize a state court’s jurisdiction, and thus protect its rights, the federal agency cannot be an indispensable party,” Safriet wrote, citing a 1987 Florida Third District Court of Appeal ruling.

As for the county, he continued, it “need not be a party for the circuit court to order the City to seek approval from the County.”

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