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)