By Rachel Brown Hackney
A Siesta Key nonprofit has been 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 was going to have to file a May 16 answer to the U.S. Army Corps of Engineers (USACE) after its team pored 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.
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 11th Circuit Court of Appeals case.
In an April 18 telephone interview, 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.
Following a timeline
In regard to the imminent release of the USACE materials for SOSS2’s review, a court document in the case said 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.
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 …”
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.”