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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« 9th Circuit divided (again) over judicial deference in case styled CBD v. DOI (again) | Main| NOAA proposes critical habitat for black abalone, but not listing the Warsaw grouper »

11th Cir says appropriations act narrowly repealed ESA for Everglades project: "Congress wanted the bridge built now."

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MICCOSUKEE TRIBE OF INDIANS OF FLORIDA v. UNITED STATES ARMY CORPS OF ENGINEERS, Nos. 09-14194, 09-14539, --- F.3d ----, 2010 WL 3581910 (11th Cir. Sept. 15, 2010)(Before BLACK, WILSON and MARTIN, Circuit Judges).

SUMMARY: Indian tribe brought action against United States, alleging that planned replacement of section of roadway with bridge, in order to increase flow of water into Everglades National Park, violated National Environmental Policy Act (NEPA) and Federal Advisory Committee Act (FACA). The United States District Court for the Southern District of Florida, Ungaro, J., Doc. No. 08-21747-CV-UU, 650 F.Supp.2d 1235, granted United States' motion to dismiss. Tribe appealed. Tribe brought separate action against United States, alleging that planned replacement of roadway with bridge violated Endangered Species Act (ESA). The District Court, Seitz, J., 2009 WL 2872989, Doc. No. 08-22966-CV-PAS, granted United States' motion to dismiss. Tribe appealed. Appeals were consolidated.  The Court of Appeals, Wilson, Circuit Judge, held that the Omnibus Appropriations Act, 2009, Pub.L. No. 111-8, 123 Stat. 524 repealed NEPA, FACA, and ESA for purposes of tribe's suits, and thus deprived federal courts of subject matter jurisdiction over suits.

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The Tamiami Trail, also known as U.S. Highway 41, was the first highway to cross the Everglades. Its name derives from the cities at its ends, Tampa and Miami. Construction began during the First World War and took more than a decade to complete. When workers were not battling the swamp, they were using dynamite to break through the rock beds on the Naples side.  The Trail remains a vital road and hurricane evacuation route.  Although the 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.  Aerial photo of Tamiami Trail looking south, from The South Florida Watershed Journal.

KEITHINKING: The 11th Circuit opinion contains a valuable discussion of the legal concept of Congressional repeal, methodically reviewing the case law, and explaining that Supreme Court and Eleventh Circuit cases, and Sutherland Statutes and Statutory Construction, identify three categories of repeal: explicit repeals, general repealing clauses, and implied repeals.  This case involved a general repealing clause.  In other words, through an appropriations clause, Congress, for purposes of this particular project, repealed the Endangered Species Act.

EXCERPT: In this case, we hold that the notwithstanding clause of the Omnibus Act, analyzed within its surrounding statutory language, repeals the relevant environmental laws so as to deprive the federal courts of subject matter jurisdiction over the Tribe's suits. The district court's finding that there was an “explicit exemption” from the environmental laws, while yielding the correct result, blurred the lines between the categories of repeal established in the cases. We believe it is correct and clearer to identify as such the general repealing clause that is at work here…  On March 11, 2009, Congress passed the Omnibus Appropriations Act, 2009, Pub.L. No. 111-8, 123 Stat. 524 (Omnibus Act). The Omnibus Act included this passage:

CONSTRUCTION (INCLUDING RESCISSION OF FUNDS).  For construction, improvements, repair or replacement of physical facilities, including a portion of the expense for the modifications authorized by section 104 of the Everglades National Park Protection and Expansion Act of 1989, $233,158,000, to remain available until expended:

Provided, That funds appropriated in this Act, or in any prior Act of Congress, for the implementation of the Modified Water Deliveries to Everglades National Park Project, shall be made available to the Army Corps of Engineers which shall, notwithstanding any other provision of law, immediately and without further delay construct or cause to be constructed Alternative 3.2.2.a to U.S. Highway 41 (the Tamiami Trail) consistent with the Limited Reevaluation Report with Integrated Environmental Assessment and addendum, approved August 2008....

123 Stat. at 708 (emphases added). In the following discussion, we refer to the phrase “notwithstanding any other provision of law” as the notwithstanding clause. We call the phrase “immediately and without further delay” the immediacy clause...  In the Omnibus Act, Congress orders the Corps to build the bridge “immediately and without further delay.” Like the notwithstanding clause, this immediacy clause also splits the verb phrase “shall ... construct.” Our cases require us to read such simple English simply. “In the absence of a statutory definition of a term, we look to the common usage of words for their meaning.” CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir.2001) (quotation omitted)...

The simplest reading of this plain language is that Congress wanted the bridge built now. Congress sought to facilitate this goal by repealing the environmental laws that it had previously passed. Allowing further administrative challenges to the bridge under those environmental laws, more than two decades after Congress passed legislation seeking to improve water flows in the Everglades, would further delay the speedy completion of the bridge and frustrate Congress's clear intent.