by Henry Lamb
November 8, 2004
Jesse Hardy, the disabled vet who has battled government to stay on his Everglades-area land, has charged 13 officials in six state and federal agencies with multiple violations of law in a 43-page complaint filed Wednesday in the U.S. District Court. Officials of the Army Corps of Engineers, Department of Interior, U.S. Fish and Wildlife Service, Florida Department of Environmental Protection, and the South Florida Water Management District are named in the complaint.
The complaint alleges “ongoing violations of federal law and the United States Constitution” during the eight years the agencies have been developing the Comprehensive Everglades Restoration Plan (CERP), and “requests relief in the forms of declaratory judgment and injunctive relief.”
The complaint arises because the Florida Department of Environmental Protection has filed a petition to condemn 160 acres owned by Jesse Hardy/ The DEP contends that the land is necessary to complete the CERP. Hardy contends that the state has failed to demonstrate how or why the land is needed, as is required by law.
The massive multi-billion dollar CERP involves 52 different projects across South Florida, designed to restore the Everglades to its “pre-settlement” condition. Hardy’s land is located in one of those projects, known as South Golden Gates Estates, in Collier County.
The CERP enabling legislation, the Water Resources Development Acts of 1996, and 2000, set forth “restrictions and conditions” which must be met before implementing the various projects, which include compliance with all relevant existing legislation, such as the Endangered Species Act, the National Environmental Policy Act, and the Administrative Procedures Act.
Among the pre-implementation requirements is the completion of a Project Implementation Report (PIR) which establishes the “cost-effectiveness and engineering feasibility” as well as the maximum cost of each project. Once completed, each PIR must be approved by Congress before implementation.
Florida’s DEP received grants of “at least $38,000,000" to acquire 52,000 acres which constitute the South Golden Gate Estates. Jesse Hardy’s land is among the last parcels to be acquired.
The complaint alleges that acquisition of the land is, in fact, implementation of the project, for which a Project Implementation Report has never been completed, or approved by Congress, as required by the enabling legislation.
The complaint also alleges that the acquisition of 52,000 acres, and the removal of residents constitutes a “major federal action that significantly affects the quality of human environment,” which requires the development of an Environmental Impact Statement. No EIS has yet been prepared, as required by the National Environmental Policy Act.
Nevertheless, the state is moving forward with the condemnation and acquisition of Jesse Hardy’s land for a project that “has never, and may never be approved.”
Specifically, the complaint alleges that the federal and state government agencies have not yet completed a PIR, or EIS, have not formally approved the South Golden Gate Estates project, have not consulted with the Fish and Wildlife Service regarding potential impacts to threatened or endangered species, have not complied with Florida law, and have not submitted the SGGE project to Congress or the Florida Legislature for approval. Therefore, “the project is not a legally approved and authorized project which may be implemented.”
The complaint further alleges that the U.S. Constitution forbids the taking of private property except for “public use.” One of the functions of the PIR and the EIS is to establish that the proposed project is an essential “public use.” Since these documents have not been prepared, there is no evidence that Hardy’s land is essential to the project.
Hardy has independent engineering studies, which demonstrate that his land is not needed to achieve the goals of the project, but without the formal PIR and EIS procedures, his studies are ignored and are not considered in the decision-making process.
“We’re disappointed that the federal government can ignore federal law and proceed with this project without a Project Implementation Report or an Environmental Impact Statement,” said Karen Budd-Falen, the lead attorney in this case.
“Federal agencies and environmental organizations have used these same laws to stop hundreds of private projects across the nation. But these laws have been conveniently ignored by both state and federal agencies, as well as the environmental organizations that support the project,” Budd-Falen said.
The Budd-Falen Law Offices, located in Cheyenne, Wyoming, specialize in land and resource use law, and are working with the law firm of Forman, Hanratty & Montgomery in Fort Lauderdale.
The complaint asks for:
1. A declaration that the Corps or Engineers, the Fish and Wildlife Service, the Florida Department of Environmental Protection, and the South Florida Water Management District has violated, and are continuing to violate the Water Resources Development Acts of 1996, and 2000, the National Environmental Policy Act, and the Administrative Procedures Act, and the Florida State Constitution and the U.S. Constitution.
2. A declaration that the COE, FWS, DEP, and SFWMD cannot implement the SGGE Project prior to fully complying with all applicable state and federal laws.
3. A preliminary and/or permanent injunction prohibiting the COE, FWS, DEP, and SFWMD from implementing the SGGE Project prior to fully complying with all applicable state and federal laws.
4. An award of costs and attorneys’ fees.
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