Friday, September 17, 2010

Miccosukee Tribe of Indians v. U.S. Army Corps of Eng'rs.

Sep 15: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 09-14194, 09-14539 & 09-11891. The Appeals Court indicates that the Miccosukee Tribe of Indians of Florida (the Tribe) filed two lawsuits challenging the Federal government's plans to replace a mile of the ground-level Tamiami Trail (U.S. Highway 41) with a bridge, to increase the flow of water into Everglades National Park. The district courts dismissed the Tribe's claims for lack of subject matter jurisdiction, and the Appeals Court have consolidated the Tribe's appeals of those decisions.
    The district courts concluded that language Congress inserted in a spending bill partially repealed the environmental laws that the Tribe was invoking. The Tribe challenges that interpretation, and asserts the rulings violate the Constitution on several counts. However, Appeals Court concluded that "the act of Congress deprived the federal courts of subject matter jurisdiction over the Tribe's claims," and affirmed the judgments of the district courts.
    The Appeals Court provides background indicating, "Although the Trail [Tamiami Trail] remains an impressive engineering achievement, it poses a substantial environmental challenge. It acts as a dam to restrict water from flowing south into Everglades National Park and greatly reduces the flow into the Shark River Slough, the main water corridor of the Everglades. Moreover, to preserve the roadbed from erosion, engineers found that they had to lower water levels of the surrounding swamp. The restricted water flow was subsequently blamed for vast losses of wading birds, fish, and native plants.
    In 2000, the President signed the Water Resources Development Act, Pub. L. No. 106-541, § 601, 114 Stat. 2572, 2680 (WRDA), outlining the thirty-year Comprehensive Everglades Restoration Plan (CERP) that updated the original Central and Southern Florida plan for the Everglades. One element of CERP called for improvement of water flow through the Trail. On September 30, 2008, Congress passed a continuing appropriations act, Pub. L. No. 110-329, 122 Stat. 3574. Section 153 of the act spoke to the immediate building of the bridge saying, "SEC. 153. Amounts provided by section 101 for implementation of the Modified Water Deliveries to Everglades National Park shall be made available to the Army Corps of Engineers, which shall immediately carry out Alternative 3.2.2.a to U.S. Highway 41 (the Tamiami Trail) as substantially described in the Limited Reevaluation Report with Integrated Environmental Assessment and addendum, approved August 2008 . . . "
    Access the complete opinion (click here).

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