TC Palm
Judge rules against Rivers Coalition on
By Tyler Treadway
http://www.tcpalm.com/news/2010/jan/29/judge-rules-against-rivers-coalition-lake-okeechob/?print=1
Judge Lynn J. Bush of the U.S. Court of Federal Claims in Washington ruled pollution in the St. Lucie Estuary caused by the discharges do not amount to a “taking” of riparian rights from the 22 landowners on whose behalf the coalition filed the lawsuit.
Karl Wickstrom, head of the
coalition’s legal committee, called the ruling “a setback, but our campaign for
the estuary will continue until we stop the senseless pollution that degrades
our St. Lucie Estuary.”
He said an appeal would be filed “within days” with the
three-judge U.S. Court of Appeals in Washington, adding “I wouldn’t close the
door on this even if it was necessary to go to the (U.S.) Supreme Court.”
The coalition’s lawsuit filed Nov. 9, 2006,
claims the discharges of nutrient-rich freshwater from the lake pollute the
estuary and the Indian River Lagoon and violate the riparian rights of the
landowners.
The corps claimed the releases are made only in response to
unusually high rainfall events, such as the hurricanes of 2004 and 2005, that
threaten the dike surrounding
In a 75-page ruling, Bush called the St. Lucie River “a
national treasure. The long-term environmental consequences of (the corps’)
massive discharges into the river are tragic, and the court takes note of (the
coalition’s) tireless efforts to reverse that damage.”
But Bush also said she could not “ignore applicable statutes
of limitation, ... invent new property rights out of
whole cloth or ... create novel standards of takings liability in order to
reach a laudable outcome.”
Bush suggested new laws would have to be enacted to protect
the estuary, quoting an earlier case in which a judge ruled: “Much as we may
regret the destruction of unspoiled natural game and fishing areas in navigable
waters, the remedy lies in the hands of Congress, not the courts.”
Noting Bush’s description of the estuary, Leon Abood, chairman of the coalition, said the group would “ask
the community to redouble efforts to restore and protect this national
treasure, as described by the court itself.”
Nanciann Regalado,
a spokeswoman for the corps; Steven D. Bryant, a trial attorney in the
Environment & Natural Resources Division of the U.S. Department of Justice
who represented the Corps; and Andrew Ames, a spokesman in the Department of
Justice public affairs department, all declined to comment.
Coalition v. Corps
Excerpts from the ruling filed Friday by U.S. Court of
Federal Claims Judge Lynn J. Bush on John R. Mildenberger
etal. v. The
“In this case, the court must decide whether the transfer of
water from one navigable waterway into another as part of a comprehensive
system of water management effects an uncompensated physical taking of the
riparian rights held by owners of land situated along the receiving body of
water. This appears to be an issue of first impression in this court.”
(According to Black’s Law Dictionary, an issue of first impression is “an
entirely novel question of law for the decision of the court.”)
“Average lake (Okeechobee) levels were unusually high for
long periods of time between 2003 and 2005. ... As a result, annual discharges
of water into the St. Lucie River ... were similarly high in those years. (The
Corps) states that the releases made during that period were necessary to
protect the structural integrity of the Herbert Hoover Dike (around
“In 2005, (the Corps) released ... approximately 399 billion
gallons of water into the St. Lucie River.”
“According to (the coalition, the Corps’) releases of turbid
fresh water into the South Fork of the St. Lucie River have resulted in a
number of adverse environmental impacts on the estuary ... (including) the
disappearance of many acres of oyster and sea grass beds, as well as a significant
reduction in other plant and animal populations(,) algal blooms and the
proliferation of toxic cyanobacteria that present
serious risks to human health and safety ... (and) significant muck deposits on
the bed of the river.”
“The St. Lucie River is, by all accounts, a national
treasure. The long-term environmental consequences of (the Corps’) massive
discharges into the river are tragic, and the court takes note of (the
coalition’s) tireless efforts to reverse that damage. This court is not free, however,
to ignore applicable statutes of limitation, to invent new property rights out
of whole cloth or to create novel standards of takings liability in order to
reach a laudable outcome.”