Legal bills in Big Pass case approaching the $1 million mark

| February 27, 2018

By Rachel Brown Hackney

   The City of Sarasota and two nonprofit organizations altogether have paid close to $1 million 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 city’s legal bills through December 2017 totaled $561,564.11, according to figures City Attorney Robert Fournier provided with a recent inquiry.

   That figure included a December 2017 payment for attorneys’ fees of $70,596.50 to 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.”

Lewis, Longman & Walker has been serving as counsel for the Lido Key Residents Association.

   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 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 that his organization was still preparing for the possibility of a U.S. District Court case.

   During a Feb. 6 telephone interview, van Roekens stated 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.

   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 has been 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 emails to the inquiry, 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.
  • $139,087.49 to Lewis, Longman & Walker, which charges an hourly rate of $425 for senior counsel.
  • $2,330.05 in associated costs for the Bradenton firm.

   Lewis, Longman & Walker had submitted a statement to the city in December 2017 totaling $100,636.05, Fournier noted in a Feb. 20 email.

   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, no record yet was found 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 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.

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