MIAMI, Fla. – The federal government has filed a second motion to dismiss with the U.S. District Court – Southern District of Florida in a case that is preventing the U.S. Army Corps of Engineers from building a bridge that the Miccosukee Tribe fears will flood its Everglades homelands.
The motion, filed March 20, seeks to lift a preliminary injunction sought by the Miccosukee and granted by the court in November that prohibits the corps from implementing the Tamiami Trail Modifications Project.
The project, authorized under the Everglades National Park Protection and Expansion Act of 1989, includes the construction of a one-mile bridge on the east end of the Tamiami Trail, U.S. Highway 41, in Miami-Dade County to improve the flow of fresh water into the park.
In issuing the injunction, the court found that the bridge would cause irreparable injury to the tribe and that the corps must adhere to all federal laws, including the National Environmental Policy Act and Endangered Species Act, before continuing with the project.
In its motion, the government argues that the 2009 Omnibus Act, the spending bill signed into law March 11, includes a provision that orders the corps, “notwithstanding any other provision of law, immediately and without further delay,” to build the $212 million bridge. The motion states that the legislation imposes a non-discretionary duty and, thus, the project is exempt from laws such as NEPA and the Federal Advisory Committee Act.
Everglades National Park spans some 1.5 million acres. The Everglades ecosystem, however, is much larger, beginning as far north as Lake Okeechobee and ending as far south as Florida Bay. Development in south Florida, particularly the dredging and draining that took place in the early 1900s, has significantly altered this system’s natural north-south flow.
The Miccosukee is the only group of people living in the Everglades. It owns or has perpetual leases to tens of thousands of acres of land there. Many tribal members live on a 666-acre wedge of land bordering the national park.
The tribe maintains that the bridge will flood the tribal Everglades and private property, pollute the park and endanger wildlife, such as the Snail Kite, that is already endangered.
The tribe does not know who put the bridge into the spending bill, but it does know that it will not give up should the injunction be lifted.
“We expect to see a court fight, unless we get cooler heads in the administration to defer on this matter,” said Dexter Lehtinen, an attorney for the Miccosukee.
In the weeks before the legislation was enacted, the tribe sent a letter to House Speaker Nancy Pelosi and all members of Congress warning them not to “add another sad chapter to the lamentable history of mistreatment and exploitation of American Indians.” The letter also told lawmakers that the judge who issued the injunction had called the Tamiami Trail project an “environmental bridge to nowhere.”
Lehtinen said in implementing the bill, the government is disregarding harm to a tribe and repealing all laws the tribe relies on to protect itself. He questions the government’s commitment to environmental and rule laws and its new sound science policy.
“The issue here is the [scientific] analysis was not done about the impacts. That is why you really should not build it because you do not know the impacts.”
A few days after the latest motion was filed, Lehtinen traveled to Washington, D.C., to meet with people in charge of the new administration’s Indian policy and explain the tribe’s position. He hopes they will step in and use their authority.
Nanciann Regalado, communications manager for the corps, would not comment on details of the case, as it is still pending, yet she said, “In our analysis, in working with the park and the state and all of our partners, we have found that the better solution for getting the needed flows into the Everglades was the bridge.”
Published last fall, a National Research Council report titled “Progress Toward Restoring the Everglades: The Second Biennial Review 2008,” sponsored by several agencies, including the corps and South Florida Water Management District, berated the delays hampering restoration efforts in the Everglades.
Dr. Wayne C. Huber, a professor in the Department of Civil, Construction and Environmental Engineering at Oregon State University who served on the committee for the report, said the bridge is needed to get the most water in the east end of the highway and to achieve the overall goal, which is to restore water in the northeast Shark River Slough. Though it can be partially done with culverts, Huber said, the water level on the north side needs to be raised to get the required flow through the culverts. The bridge, he pointed out, would ease hydraulic restrictions.
“In my opinion, it is a must.”
