Miccosukee Tribe of Indians of Florida v. U.S.

Page 1235

650 F.Supp.2d 1235

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, Plaintiff, v. UNITED STATES of America, et al., Defendants.

Case No. 08-21747-CIV-UNGARO.

United States District Court, S.D. Florida.

June 17, 2009.

COPYRIGHT MATERIAL OMITTED

Dexter Wayne Lehtinen, Felippe Moncarz, Kelly Brooks Smith, Lehtinen Riedi

Brooks Moncarz, P.A., Sonia Escobio O'Donnell, .Jorden Burt LLP, Miami, FL, for Plaintiff.

Edward S. Geldermann, United States Attorney's Office, Miami, FL, Mark A. Brown, United States Department of Justice, Washington, DC, for Defendants.

ORDER ON MOTION TO DISMISS

URSULA UNGARO, District Judge.

THIS CAUSE is before the Court upon Defendants' Motion to Dismiss the Amended Complaint for Lack of Subject Matter Jurisdiction, or, in the Alternative, Motion for Judgment on the Pleadings, filed on March 20, 2009. (D.E.111.) Plaintiff filed its Response in opposition on April 6, 2009. (D.E.122.) Defendants filed their Reply in further support of their Motion on April 16, 2009. (D.E.124.)

THE COURT has considered the Motion and the pertinent portions of the record and is otherwise fully advised in the premises. This case arises out of the Modified Water Deliveries Project (the "MWDP"), which was authorized by the Everglades National Park Protection and Expansion Act of 1989 (the "ENPPE Act"), Pub.L. No. 101-229, 103 Stat.1946, 16 U.S.C. § 410r-8, in order to restore more natural water flows in the Everglades. (Am. Compl. ¶ 24.) In June 2008, the Corps issued its Modified Water Deliveries to Everglades National Park Tamiami Trail Modifications Final Limited Reevaluation Report and Environmental Assessment (the "LRREA") and an associated Finding of No Significant Impact (FONSI). (Am. Compl. ¶¶ 32-53.) Throughout the LRREA process, the Corps used a group of advisors which Plaintiff alleges constituted an advisory committee (the "LRR Team") to develop performance measures and cost estimates, screen out alternatives, and make recommendations. (Am. Compl. ¶ 59.) The LRREA ultimately adopted Alternative 3.2.2.a as the Recommended Plan, as urged by the LRR Team, which proposes to relocate a one mile portion of the Tamiami Trial, currently running outside the Park, and replace it with a newly constructed one mile bridge in the eastern part of the Park. (Am. Compl. ¶ 55.)

According to Plaintiff, because of the fact that there are significant differences between Alternative 14, which was the Recommended Plan in the 2005 GRR/EIS, and Alternative 3.2.2.a., the Corps violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., by not issuing a supplemental environmental impact statement ("SEIS") on either the environmental consequences or the impact on the human environment posed by Alternative 3.2.2.a. (Am. Compl. ¶¶ 66, 69-70, 90.) Additionally, Plaintiff alleges that Defendants committed other violations of NEPA in its issuance of the LRREA and that the LRREA fails to comply with NEPA. (Am. Compl. ¶¶ 91-105.) Further, Plaintiff contends that the LRR Team constitutes an advisory committee for purposes of FACA and that the LRR Team violated numerous provisions of the Federal Advisory Committee Act ("FACA"), 5 U.S.C.App. 2, §§ 1-16. (Am. Compl. ¶¶ 108-118.)

On June 18, 2008, Plaintiff initiated this action, subsequently filing the Amended Complaint that is the subject of this Motion on July 31, 2008. (D.E.17.) Therein, Plaintiff seeks declaratory and injunctive relief for Defendants' alleged violations of NEPA and FACA.¹ (Pl.'s Mot. 1.) On November 13, 2008, the Court granted Plaintiff's motion for preliminary injunction, enjoining Defendants from taking any further steps to implement Alternative 3.2.2.a. (D.E.71.) Now, Defendants move the Court to dismiss Plaintiffs Amended Complaint based on a recent Congressional enactment, the "Omnibus Appropriations Act of 2009," Public Law 111-8, 123 Stat. 524 ("2009 Omnibus Act"). The 2009 Omnibus Act provides, in pertinent part:

That funds appropriated in this Act, or in any prior Act of Congress, for the implementation of the Modified Water Deliveries to Everglades National Park Project, shall be made available to the Army Corps of Engineers which shall, notwithstanding any other provision of law, immediately and without further delay construct or cause to be constructed Alternative 3.2.2.a to U.S. Highway 41 (the Tamiami Trail) consistent with the Limited Reevaluation Report with Integrated Environmental Assessment and addendum, approved August 2008....

111 P.L. 8, 823 (emphasis added). According to Defendants, this congressional mandate that the Corps immediately carry out Alternative 3.2.2.a deprives the Court of Article III subject matter jurisdiction with respect to Plaintiffs NEPA and FACA claims because the Court can no longer grant Plaintiff the relief it requests: specifically, that Defendants be enjoined permanently from implementing Alternative 3.2.2.a and from utilizing any material from the allegedly unlawful advisory group unless and until they comply with NEPA and FACA. (Defs.' Mot. 2.) In the alternative, Defendants argue that Plaintiffs claims must be dismissed because the 2009 Omnibus Act divests Plaintiff of any NEPA and/or FACA claim upon which relief may be granted. (Defs.' Mot. 2.)

The plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A Rule 12(b)(1) motion may be in the form of a "facial attack" on the complaint, which "requires the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (citations omitted). Or, the motion may take the form of a "factual attack," which challenges "the existence of subject matter jurisdiction in fact, irrespective of the pleadings." Dunbar, 919 F.2d at 1529. Because a factual Rule 12(b)(1) motion challenges the trial court's power to hear the claim, the court must closely examine the plaintiffs factual allegations and "is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id. The court is not limited to the allegations contained in the complaint, and it may consider materials outside the pleadings to determine whether it has jurisdiction. Id. "In short, no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating itself the merits of jurisdictional claims." Id. As it relies on information outside the pleadings, Defendants' Motion takes the form of a factual attack on subject matter jurisdiction.²

Defendants first contend that, as a result of the 2009 Omnibus Act, there is no longer any case or controversy for which the Court can grant effective judicial relief. (Defs.' Mot. 1.) Article III of the Constitution limits the judicial power of the United States to matters that present actual cases or controversies. U.S. Const. art. III, § 2, cl. 1. The "case or controversy" requirement of Article III prohibits federal courts from considering questions that cannot affect the rights of the litigants in the case before them. See Amalgamated Ass'n of Street, Elec. Ry. & Motor Coach Employees of America Div. 998 v. Wis. Employment Relations Bd., 340 U.S. 416, 418, 71 S.Ct. 373, 95 L.Ed. 389 (1951) (a court may not give an opinion where it cannot grant relief or affect the rights of the litigants before it). If events that occur subsequent to the filing of a lawsuit deprive the court of the ability to give meaningful relief, then the case is moot and must be dismissed because mootness deprives the court of subject matter jurisdiction. Lewis v. Continental Bank Corp., 494 U.S. 472, 477-79, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990),

As the Court has previously noted, congressionally mandated project-specific exemptions from the reach of statutes such as NEPA must be explicit. See Robertson v. Seattle Audubon Soc., 503 U.S. 429, 440, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992) (stating that Congress has the power to amend, suspend, or repeal a statute through an appropriations bill, as long as it does so clearly); see also Sierra Club v. Andrus, 610 F.2d 581, 601 (9th Cir. 1979); Izaak Walton League of America v. Marsh, 655 F.2d 346, 367-68 (D.C.Cir. 1981). In its Order on Defendants' previous motion to dismiss, the Court, recognizing the two circumstances³ under which courts have recognized a congressionally-mandated NEPA exemption, found that Congress's late 2008 continuing resolution providing funds to the Corps "to immediately carry out Alternative 3.2.2.a to U.S. Highway 41" did not exempt Defendants from complying with NEPA or FACA. (D.E. 59 at 2-5 (citing H.R. 2638; Pub.L. No. 110-329; 110th Cong.2d Sess.; 122 Stat. 3574 at Sec. 153).) The Court based its ruling on the fact that "[w]hile the recent resolution does in fact mention the Modified Water Deliveries Project and Alternative 3.2.2.a by name, the resolution fails to either (1) include the `notwithstanding any other provision of law' language in its approval of the project or (2) mention NEPA by name, despite the fact that it specifically mentions the project's compliance with the Federal Water Pollution Control Act." (D.E. 59 at 4-5.)

Now, in the 2009 Omnibus Act, Congress has once again ordered the Corps to "immediately and without further delay construct or cause to be constructed Alternative 3.2.2.a," specifically mentioning the MWDP. 111 P.L. 8, 823. However, in this iteration of its directions regarding the MWDP, Congress has also included the "notwithstanding any other provision of law" language that others courts have previously found to indicate a Congressionally-mandated exemption. Given the above, the Court finds that Congress has exempted the bridging of...