In 1971, President Richard Nixon
cancelled construction of the Cross Florida Barge Canal in order to prevent
permanent damage to the Ocklawaha River.
By the time the Canal construction was cancelled, nearly one-third of
the project was completed. The Rodman
Dam (now the Kirkpatrick Dam) blocked the Ocklawaha River and created the
Rodman Reservoir. The creation of the
reservoir flooded approximately 9,000 acres of forest and significantly damaged
the Ocklawaha River.
In 1991, the federal government transferred
the Kirkpatrick Dam and nearly all land around the canal to the State of
Florida (the “State”), who operates and maintains it. A portion of the land occupies the Ocala
National Forest, which requires the State to obtain a permit to use and occupy
the land from the U.S. Forest Service.
In 2002, the state permit was permitted to expire after the U.S. Forest
Service conditioned the renewal of the permit on the State’s agreement to
partially restore the Ocklawaha River. The
State has refused similar renewal conditions multiple times since 2002 and
continued to operate the canal structures.
In 2013, the Forest Service submitted
to the State another special-use permit that further stated that the expiration
of the permit required the State to remove the canal structures or be liable
for the cost of such removal. In 2016,
members of the FDE petitioned the Forest Service to redress the failure of the
State to manage its land in accordance with the Forest Plan. The Forest Service denied the Petition in
2017, stating that the terms of the original permit was still in effect and
that the State could continue to use and occupy federal land on that
basis. The Forest Service’s decision was
later revised to replace that reasoning with the decision that the Forest
Service’s rulemaking was not an appropriate means of obtaining enforcement of a
special use permit. Additionally, the
Forest Service stated that the FDE had no power to require the Forest Service
to prioritize one particular use of the forest over other uses.
In 2017, the Florida Defenders of the
Environment (“FDE”) and individual members filed suit under the Administrative
Procedures Act (“APA”) to compel the Forest Service to take action to restore
the Ocklawaha River. The FDE alleged
that the Forest Service abused its discretion by continuing to allow Florida’s
canal structures to occupy national forest land. The FDE alleged that the Forest Service’s
denial of the FDE’s petition was “arbitrary and capricious”, as the original
permit was not “still in effect” and had expired. The FDE sought
declaratory judgment that the Federal Service violated the Federal Land Policy
and Management Act (“FLPMA”), and an injunction requiring Florida to apply for
a new permit.
The Forest Service moved to dismiss the
complaint on the grounds that (1) the APA did not authorize judicial review, (2)
the Forest Service was not legally required to enforce the terms and conditions
of the special use permit, (3) the claims were time-barred, and (4) the denial
of the petition on the grounds that the original permit was “still in effect”
was irrelevant due to the replacement of that decision with the decision
outlining alternative grounds for denial.
The trial court granted the Motion to Dismiss based on the argument that
the APA did not authorize judicial review.
The Eleventh Circuit noted that the APA
establishes a presumption of judicial review, but that matters traditionally
regarded as committed to agency discretion are immune from judicial
review. Among these matters is “an
agency's decision not to take enforcement action.” The reason for this exception from judicial
review is that agencies are tasked with balancing a number of factors regarding
enforcement and limited resources available to such agencies. The Eleventh Circuit affirmed the trial
court, concluding that the APA did not authorize judicial review of an
agencies’ decision not to enforce the requirements of a permit. However, because the trial court lacked
subject matter jurisdiction, it was unable to enter judgment “with prejudice”
and was reversed on that basis alone.
Fla. Defs. of Env't v. United States Forest Serv., No. 20-12046, 2021 WL 4944806 (11th Cir. Oct. 25, 2021)
