Without allowing oral arguments in the case, federal judge issues final order, ruling against Save Our Siesta Sand 2 in complaint filed in January 2019

SOSS2 leaders decide against appeal

Cottrell Contracting Corp.’s dredge, the Rockbridge, has been removing sand from Big Pass to renourish the Lido Key Beach. Photo courtesy of Michael Holderness

On Sept. 30, the lawsuit Save Our Siesta Sand 2 (SOSS2) filed against the U.S. Army Corps of Engineers (USACE) in January 2019, to try to stop the removal of sand from Big Sarasota Pass to renourish about 1.6 miles of Lido Key Beach, formally came to a conclusion.

Responding to an SOSS2 motion filed in the late fall of 2019, seeking a finding that the USACE had not complied with federal environmental policies in planning for the Lido Key Hurricane and Storm Damage Reduction Project, Chief Judge Steven D. Merryday wrote in his Sept. 30 order, “A review of the administrative record [in the legal case] confirms that the Corps arrived at rational conclusions compelled by a thorough review of the project’s effect on the affected environment.”

Merryday is chief judge of the U.S. District Court for the Middle District of Florida, in Tampa.

In one section of the 20-page ruling, Merryday wrote, “None of SOSS2’s arguments offer a convincing reason to dismiss the expertise of the Corps, particularly because SOSS2 repeats unfounded arguments about stale data … and incomplete analysis … both of which arguments fail …” For one example, the judge pointed to the fact that although the USACE incorporated older National Environmental Policy Act (NEPA) documents into its initial Environmental Assessment, the USACE “generated [a] 2018 environmental assessment to refresh the scientific basis for the project … even though aspects of the project remain unaffected since earlier findings.”

Mark Smith. File photo

SOSS2 Chair Mark Smith told The Sarasota News Leader during the summer that the nonprofit would seek a formal conclusion to the case, because that would enable it to file an appeal with the U.S. Court of Appeals for the 11th Circuit, which is based in Atlanta. Merryday’s ruling for the USACE in the case was expected, Smith indicated at the time, because, in early July, Merryday rebuked SOSS2 after the nonprofit filed a motion for a Temporary Restraining Order (TRO) to prevent dredging in Big Pass before the SOSS2 case had ended at the U.S. District Court level. Merryday swiftly denied the TRO motion.

Contacted on Oct. 6 about Merryday’s final ruling, Smith told the News Leader that the nonprofit’s leaders again had discussed the option of an appeal. “We’re not going to [do that],” he added. A retired federal judge who lives on Siesta Key advised them against it, Smith noted.

Smith did express frustration about the resolution of the federal complaint. “It’s just so bizarre that the case is closed without [the judge’s allowing SOSS2 to be] heard. We’re kind of beside ourselves.”

He added, “You just find yourself kind of wondering about the whole [federal government] system.” SOSS2 leaders and members do not believe the USACE is “doing the right thing,” he continued, but a federal judge says, “‘It’s fine.’ … As a citizen, you sit there and go, ‘Wow.’”

With the dredging and sand placement on Lido expected to continue until mid-November — based on the USACE project team’s latest timeline estimate — Smith said, “I would suggest to everybody that’s on the water [on Siesta Key to] document [it] if they see any erosion and damage to their property.”

Smith added that he had heard from a boater that the channel in Big Pass has been “shifting dangerously close to the beach,” which could lead to problems for people in vessels in the waterway as well as for people enjoying recreation in the water.

“Just keep track of what’s going on” is his advice to property owners and residents on the barrier island.

More facets of the ruling

Chief Judge Steven Merryday of the U.S. District Court for the Middle District of Florida. Image from OpenJurist.org

In providing background on the complaint, Merryday wrote in his final order, “Despite the Corps’s and the City of Sarasota’s prevention efforts, Lido Key’s shoreline continues to erode. … In 2018, the Corps and the City of Sarasota proposed a ‘beach nourishment’ and ‘groins’ construction project to strengthen the shoreline,” Merryday added.

(In reality, it was September 2013 when the USACE unveiled the plans for the removal of sand from Big Pass to renourish Lido Key’s critically eroded beach. At the time, the USACE proposed three groins on South Lido, to try to keep the new sand in place between subsequent renourishment initiatives. Later, the USACE eliminated the southernmost groin from its proposal. Then, in March 2015, the USACE and the city filed their application for a permit from the Florida Department of Environmental Protection (FDEP) to pursue the Lido project with two groins.)

Merryday noted in his order that parts of the sand borrow areas in Big Pass “fall within ‘Outstanding Florida Waters,’ which require ‘special protection’ because of natural attributes. These natural attributes include threatened or endangered species, fragile breeding grounds, and sprawling marine ecosystems. … The channel and surrounding water enable navigation and recreation and strengthen the local economy.”

He added that the USACE prepared an Environmental Assessment to determine whether the dredging of Big Pass would be action that constitutes a “major federal action” — “that is,” Merryday wrote, “an action ‘significantly affecting the quality of the human environment,’ including the natural attributes. … The Corps’ environmental assessment concluded with a ‘finding of no significant impact on the human environment,'” he added. That relieved the agency of the need to prepare an Environmental Impact Study (EIS), which requires a ‘full and fair discussion of significant environmental impacts,’” he added, quoting from a 2002 opinion of the 11th U.S. Circuit Court of Appeals in the case Sierra Club v. U.S. Army Corps of Engineers.

SOSS2 had argued for an EIS in its complaint against the USACE, Merryday noted. “SOSS2 suggests a properly prepared environmental assessment and EIS would support a different conclusion about the proper sand sources for the [Lido] project,” he added.

These are the sand borrow areas in Big Pass, as noted in an attachment to the USACE’s December 2019 solicitation for the renourishment initiative on Lido Key. Image courtesy USACE

The nonprofit’s claims, Merryday explained, were governed by the U.S. Administrative Procedure Act. Under that act, Merryday continued, “[T]he Corps’ actions must prevail unless the agency acts arbitrarily, capriciously, in abuse of discretion, or otherwise not in accord with law. … ‘This standard is exceedingly deferential,’” he wrote, quoting from another ruling by the 11th Circuit Court, this time in a 1996 case, Fund for Animals, Inc. v Rice.

“SOSS2 fails to provide convincing evidence that the Corps inadequately examined the effect of the [Lido] project, especially considering the depth of analysis by the Corps during the years before the project,” Merryday wrote.

For one example, Merryday noted that “SOSS2 often points to the occurrence of ‘red tide’ as compelling evidence reducing the accuracy of the biological opinions [of the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, on which he USACE relied in its analysis of the potential effects of the Lido initiative]. But these opinions acknowledge the threat of ‘red tide,’” Merryday added.

Citing yet another opinion of the 11th Circuit Court — this one from 2008 in Fla. Key Deer v. Paulison — Merryday pointed out, “‘Another agency’s reliance on [a federal department’s] opinion will satisfy its obligations … if a challenging party can point to no ‘new’ information, i.e., information the [agency] did not take into account — which challenges the opinion’s conclusions.’”