UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JESSE JAMES HARDY,

Plaintiff,

Case No. ______________________

v.

UNITED STATES DEPARTMENT
OF DEFENSE; DONALD RUMSFELD,
Secretary of the Department of Defense;
LES BROWNLEE, Acting Secretary of the
United States Army; JOHN PAUL
WOODLEY, JR., Assistant Secretary of
Civil Works, United States Army; UNITED
STATES ARMY CORPS OF ENGINEERS,
an agency of the United States Department of
Defense; CARL STROCK, Commanding General
for the United States Army Corps of Engineers;
MICHAEL WALSH, Division Commander for the
South Atlantic Division of the United States Army
Corps of Engineers; ROBERT CARPENTER,
District Commander for the Jacksonville District
of the United States Army Corps of Engineer;

and

UNITED STATES DEPARTMENT OF
THE INTERIOR; GALE NORTON,
Secretary of the United States Department
of the Interior; UNITED STATES FISH AND
WILDLIFE SERVICE, an agency of the United
States Department of the Interior; STEVEN
WILLIAMS, Director of the United States Fish
and Wildlife Service;

and

COLLEEN CASTILLE; Secretary of the
Florida Department of Environmental Protection;
HENRY DEAN, Executive Director of the South
Florida Water Management District;
CAROL WEHLE, Assistant Executive Director
of the South Florida Water Management District;
CHIP MERRIAM, Deputy Executive Director for
Environmental Regulation, South Florida Water
Management District; PAMELA MACKIE, Deputy
Executive Director for Land and West Coast
Resources, South Florida Water Management
District, CLARENCE TEARS, Basin Director,
Big Cypress Basin, South Florida Water
Management District,

Defendants.

____________________________ COMPLAINT COMES NOW the Plaintiff, by and through undersigned counsel, and for his causes of action against the Defendants, alleges as follows: INTRODUCTION The Plaintiff Jesse Hardy ("Mr. Hardy") owns and lives on 160 acres of land in the Florida Everglades. His land is situated within the northern part of a 55,247 acre subdivision property was and continues to be "homestead" property, known as the Southern Golden Gate Estates ("SGGE"). Mr. Hardy's property was and continues to be "homestead" property. The Florida Department of Environmental Protection ("DEP"), South Florida Water Management District ("SFWMD"), U.S. Army Corps of Engineers ("COE") and U.S. Fish and Wildlife Service ("FWS") have been collaborating to complete a project to purchase or condemn all land within the SGGE, and to restore this land to "sheet flows" ("SGGE Project"). The SGGE Project is one of many projects which fall under the Comprehensive Everglades Restoration Plan ("CERP"). There are many federal and state statutory and regulatory requirements which must be met before any CERP project, including the SGGE Project, can be implemented. The Defendants have not yet complied with these state and federal laws with respect to the SGGE Project. The Defendants have nevertheless decided to proceed with implementation of the SGGE Project, including condemnation of Mr. Hardy's land. Had the Defendants complied with all applicable law prior to implementing the SGGE Project, the Defendants would have discovered that condemnation of Mr. Hardy's property is not necessary to complete the SGGE Project. Mr. Hardy now seeks to enjoin the Defendants reckless disregard of the law, and in the process save the home he loves. PARTIES Mr. Hardy is a resident of the State of Florida. Mr. Hardy is fee owner of 160 acres of land in fee, described as the Northwest One-Quarter of Section 16, Township 50 South, Range 28 East, Collier County, Florida. Mr. Hardy has homestead rights on his land, where he has lived for 30 years. Defendant Donald Rumsfeld is the Secretary of the United States Department of Defense. As Secretary, Mr. Rumsfeld is responsible for the direction and supervision of all operations and activities of the Department, including those of the COE. Defendant Les Brownlee is the Acting Secretary of the United States Army. As Acting Secretary, Mr. Brownlee is responsible for the direction and supervision of all operations and activities of the Army, including those of the COE. Defendant John Paul Woodley, Jr. is the Assistant Secretary of Civil Works, United States Army. As Assistant Secretary, Mr. Woodley is responsible for the direction and supervision of all operations and activities in the Army's civil works program, including programs for conservation and development of the nation's water and wetland resources, flood control, navigation, and shore protection implemented by the COE. Defendant Carl Strock is the Commanding General for the COE. As Commanding General, Mr. Strock is responsible for the direction and supervision of all operations and activities of the COE. Defendant Michael Walsh is the Division Commander for the South Atlantic division of the COE. As Division Commander, Mr. Walsh is responsible for the direction and supervision of all engineering, construction, real estate and water resource development activities of the COE in the Southeast United States. Defendant Robert Carpenter is the District Commander of the COE, Jacksonville, Florida district. As District Commander, Mr. Carpenter is responsible for the direction and supervision of all engineering, construction, real estate, and water resources development activities of the COE in Florida. Defendant Gale Norton is Secretary of the United States Department of the Interior. As Secretary, Ms. Norton is responsible for the direction and supervision of all operations and activities of the Department, including those of the FWS. Defendant Steven Williams is the Director of the FWS, a federal agency under the direction and supervision of the United States Department of the Interior. As Director, Mr. Williams is responsible for the direction and supervision of all operations of the Service, including the distribution of federal funds to the DEP for the acquisition of certain lands within the State of Florida. Defendant Colleen Castille is the Secretary of the DEP in the state of Florida. As Secretary, Ms. Castille is responsible for the direction and supervision of the DEP, including oversight of Florida state environmental regulation, the acquisition and management of Florida state lands for conservation purposes, the development and regulation of Florida state water resources, and the receipt and use of federal funds from the FWS for the acquisition of certain lands within the State of Florida. As Secretary, Ms. Castille is also responsible for the direction and supervision of the SFWMD. Defendant Henry Dean is Executive Director of the SFWMD. As Executive Director, Mr. Dean is responsible for the direction and supervision of the SFWMD. Defendant Carol Wehle is the Assistant Executive Director of the SFWMD. As Assistant Executive Director, Ms. Wehle is responsible for the direction and supervision of the SFWMD. Defendant Chip Merriam is the Deputy Executive Director, water resources, of the SFWMD. As Deputy Executive Director, Mr. Merriam is responsible for overseeing environmental restoration and watershed management projects for the SFWMD. Defendant Pamela MacKie is the Deputy Executive Director, land and west coast resources, of the SFWMD. As Deputy Executive Director, Ms. MacKie is responsible for overseeing land acquisition and management programs for the SFWMD. Defendant Clarence Tears is the Basin Director for the Big Cypress Basin, SFWMD. As Basin Director, Mr. Tears is responsible for administration of SFWMD operations in the Big Cypress Basin, including those lands surrounding the land on which Mr. Hardy resides. JURISDICTION AND VENUE Jurisdiction in this Court is based upon 28 U.S.C. § 1331, 2201, 2202; 5 U.S.C. §§ 701 et seq.; and 16 U.S.C. § 1540, in that this action is civil in nature, alleges ongoing violations of federal law and the United States Constitution, and requests relief in the forms of declaratory judgment and injunctive relief. Mr. Hardy alleges that Defendants Norton and Williams, acting in their official capacities, and the employees, officers and agents of the United States Department of the Interior and the FWS, violated Section 7 of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536, the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq., the National Environmental Policy Act ("NEPA"), 32 U.S.C. §§ 4331 et seq., the Water Resources Development Act of 1996 ("WRDA of 1996"), Pub. L. No. 104-303, 110 Stat. 3658 at § 528, and the Water Resources Development Act of 2000 ("WRDA of 2000"), Pub. L. No. 106-541, 114 Stat. 2572 at § 601, in the course of performing their duties under these laws. Mr. Hardy alleges that Defendants Rumsfeld, Brownlee, Woodley, Strock, Walsh and Carpenter, acting in their official capacities, and the employees, officers and agents of the United States Department of Defense and the COE, violated the APA, the NEPA, the WRDA of 1996, and the WRDA of 2000, in the course of performing their duties under these laws. Mr. Hardy alleges that Defendants Castille, Dean, Wehle, Merriam, MacKie and Tears, acting in their official capacities, and the employees, officers and agents of the DEP and the SFWMD, violated the APA, the NEPA, the WRDA of 1996, the WRDA of 2000, the Fifth Amendment of the United States Constitution, and various applicable Florida State laws, in the course of performing their duties under these laws, and that these violations are prospective and ongoing. Jurisdiction over Defendants Castille, Dean, Wehle, Merriam, MacKie and Tears is proper to enjoin prospective and ongoing violations of federal statutory and constitutional law. Jurisdiction over Defendants Castille, Dean, Wehle, Merriam, MacKie and Tears is also proper to enjoin prospective and ongoing violations of Florida state statutory and constitutional law, in that the State of Florida has waived its sovereign immunity under the Eleventh Amendment of the United States Constitution when it agreed to participate and has participated in certain federally funded everglades restoration programs under the WRDA of 1996, the WRDA of 2000 and the Federal Agriculture Improvement and Reform Act of 1996, Pub. L. No 104-127, § 390, 110 Stat. 888 (1996). Venue is proper in the United States District Court for the District of Florida, based upon 28 U.S.C. § 1391(e), in that the property which is the subject of this complaint is within the Middle District of the State of Florida. APPLICABLE LAW AUTHORITY TO IMPLEMENT CERP PROJECTS Federal Law The WRDA of 1996 authorized the COE, in cooperation with the SWFMD, to develop the CERP. Water Resources Development Act of 1996, Pub. L. No. 104-303, 110 Stat. 3658 at § 528. The CERP is supposed to be "a proposed comprehensive plan for the purpose of restoring, preserving, and protecting the South Florida ecosystem." Id. at § 528(b)(1)(A)(I). Importantly, the Act did not authorize implementation the CERP, but instead required that the CERP be developed as a "proposed" plan, which must be submitted to Congress for approval prior to implementation. Id. at § 528(b)(1)(B)(ii). Four years later, with passage of the Water Resources Development Act of 2000, Congress approved the then complete CERP, instructing the COE to "carry out the projects included in the Plan . . . ." Water Resources Development Act of 2000, Pub. L. No. 106-541, 114 Stat. 2572 at § 601(b)(2)(A)(I). However, the WRDA of 2000 also placed a number of restrictions and conditions on the COE and the State of Florida which must be met prior to actual implementation of any individual project included within the CERP. For example by law, all CERP projects must be implemented in partnership and coordination with the State of Florida. Id. at §§ 601(e), 601(h). Specifically, the State is responsible for 50% of the cost of each CERP project, and is responsible "for all land, easements, rights-of-way, and relocations necessary" to implement each CERP project. Id. at §§ 601(e)(1), 601(e)(2)(A). Before a project can be implemented, the COE must enter into a binding "project cooperation agreement" regarding implementation of the project with the State of Florida, and the President of the United States must enter into a binding agreement with the Florida State Governor, agreeing that the State will ensure that all water made available by a particular CERP project will be dedicated to "restoration of the natural system." Id. at §§ 601(h)(4)(B)(I), 601(h)(2)(A). However, before these things can occur, the COE, in partnership and cooperation with the State, must complete a Project Implementation Report ("PIR"). Id. at §§ 601(f)(1), 601(h)(4)(A); 601(b)(2)(A)(ii). The PIR must explain how the proposed CERP project is consistent with the CERP, applicable law and regulation, describe the quantity, timing and distribution of water made available by the proposed project, explain how the proposed project would comply with applicable water quality standards, explain how the proposed project is based on the best available science, and include an analysis concerning the cost effectiveness and engineering feasibility of the proposed project. Id. The PIR must also fully comply with the NEPA. Id. Substantively, each CERP project "must be justified by the environmental benefits" and must to be deemed "cost effective." Id. at § 601(f)(2)(A). To "ensure against cost overruns," the maximum cost of each CERP project cannot exceed that set forth within the PIR. Id. at § 601(b)(2)(E); 33 U.S.C. § 2280. In addition, the project must protect existing water quality standards, cannot eliminate or transfer existing legal sources of water, and cannot reduce existing flood control protections. Id. at §§ 601(b)(2)(A)(ii), 601(h)(5). Once the PIR is completed for a proposed CERP project and approved by the COE, it must be submitted to Congress for approval. Id. at §§ 601(b)(2)(D). No appropriation can be made by Congress to construct any CERP project unless and until Congress approves the PIR. Id. State Law "The [Florida State] Legislature intends to establish a full and equal partnership between the state and federal governments for the implementation of the comprehensive plan [CERP]." FLA. STAT. ANN. § 373.470(3)(a). "The comprehensive plan [CERP] shall be used as a guide and framework for a continuing planning process to . . . [e]nsure that [CERP] project components will be implemented . . . ." Id. at § 373.470(3)(b.2). The State designated the SFWMD as the State sponsor and partner with the COE in implementation of CERP projects. Id. at § 373.470(2)(c). "Prior to executing a project cooperation agreement with the Corps [COE] for the construction of a project component, the district [SFWMD], in cooperation with the Corps [COE], shall complete a project implementation report [PIR] to address the project component's economic and environmental benefits, engineering feasibility, and other factors provided in s. 373.1501 sufficient to allow the district to obtain approval under s. 373.026." Id. at § 373.470(3)(c). The "other factors" noted by § 373.470(3)(c) and found in § 373.1501, which the SFWMD must include in the PIR, include the impact of the proposed CERP project on water supply, water quality, flood control, threatened and endangered species, and other environmental impacts. Id. at § 373.1501(5)(a). In addition, the SFWMD must ensure that the proposed project is practically feasible, cost effective, ensures existing water rights and flood control, and is consistent with all applicable law and regulation, including all federal law and regulation. Id. at § 373.1501(5)(b-d). To ensure compliance with all applicable federal law, the SFWMD must request that all federal agencies with relevant jurisdiction provide the SFWMD with the information necessary to ensure that the CERP project component is in compliance with all applicable federal law. Id. The "approval" noted by § 373.470(3)(c) and found in § 373.026 is that of the DEP. Specifically, the DEP, based on the proposed CERP project PIR, must either approve or disapprove of the proposed project. FLA. STAT. ANN. at § 373.026(8). Any such approval or disapproval is "subject to confirmation by the [Florida State] Legislature," and may be limited as "otherwise provided by state or federal law . . . ." Id. "Before any [CERP] project component is submitted to Congress for authorization or receives an appropriation of state funds, the department [DEP] must approve, or approve with amendments, each project component within 60 days following formal submittal of the project component to the department. Department approval shall be based upon a determination of the South Florida Water Management District's compliance with s. 373.1501(5)." Id. In addition to all of these requirements, prior to implementing a proposed CERP project, the SFWMD must obtain from the DEP, or the DEP must obtain from the SFWMD, a project implementation permit. Id. at § 373.1502(3)(b). These permits must take into account "all other statutory responsibilities" for implementation of a proposed CERP project. Id. at § 373.1502(1)(b). The permit application "must provide reasonable assurances" that the proposed CERP project will comply with the PIR, that state water quality standards are met, and that all impacts to wetlands and threatened or endangered species will be avoided, minimized or mitigated. Id. "Under no circumstances shall the project component cause or contribute to violation of state water quality standards." Id. State and Federal Funding of Everglades Restoration Section 390 of the 1996 Farm Bill allows the FWS to distribute money for "restoration activities in the Everglades ecosystem in South Florida, which shall include the acquisition of real property and interests in real property located within the Everglades ecosystem . . . ." Federal Agriculture Improvement and Reform Act of 1996, Pub. L. No 104-127, § 390, 110 Stat. 888 (1996). Section 390 does not abrogate or override any other federal law applicable to the distribution of federal funding which may impact the environment. Id. Regarding funding of proposed CERP projects, Congress has unambiguously stated "FUNDING CONTINGENT ON APPROVAL.-- No appropriation shall be made to construct any project under this paragraph if the project implementation report for the project has not been approved by resolutions adopted by the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate." Water Resources Development Act of 2000, Pub. L. No. 106-541, 114 Stat. 2572 at § 601(b)(2)(D)(iii). Likewise, regarding funding of proposed CERP projects, Florida law prohibits either State appropriation of funds or the submission of a proposed project to Congress for federal approval and appropriation prior to the DEP and the Florida Legislature's approval of the project, based upon the completed PIR. FLA. STAT. ANN. at § 373.026(8). The Florida Legislature created the "Save Our Everglades" trust fund to implement the CERP. Id. at § 373.472(1) "The trust fund shall be expended to implement the comprehensive plan [CERP] . . . ." Id. All federal, state and local funds received by the state to implement the CERP must be deposited into the trust fund. Id. National Environmental Policy Act The NEPA requires that for every major federal action that significantly affects the quality of human environment, the federal government shall prepare an environmental impact statement ("EIS"). 42 U.S.C. §4332(c)(I)-(v); 40 C.F.R. §1508.11. The purpose of an EIS is to provide a "full and fair discussion" of significant potential environmental impacts of the proposed action, in order to facilitate informed decision making. See Catron County Board of Commissioners, New Mexico v. United States Fish and Wildlife Service, 75 F.3d 1429, 1434 (10th Cir.1996); Vermont Yankee Nuclear Power Corp. v. N.R.D.C. Inc., 435 U.S. 519, 558 (1978) 40 C.F.R. §1502.1. Although the requirements of NEPA are procedural in nature, agencies are required to fully and strictly comply with them and a violation of the requirements can constitute a tangible injury-in-fact. Id. A NEPA analysis must include all information which is relevant and essential to a reasoned choice among alternatives, including the "no action" alternative. Robertson v. Methow Valley Citizens, 490 U.S. 332 (1989); 40 C.F.R. §1502.14. An EIS must include (a) the environmental impact of the proposed action; (b) any adverse environmental effects which cannot be avoided if the proposed action is implemented; (c) alternatives to the proposed action; (d) the relationship between local short term uses and the maintenance of long term productivity; and (e) any irreversible and irretrievable commitment of resources should the proposed action be implemented. 42 U.S.C. § 4332 (c)(i)-(v). The regulations implementing NEPA mandate that federal agencies cooperate with state and local agencies, and must discuss any inconsistency of a proposed action with any approved State or local plan and laws. 40 C.F.R. § 1506.2. For an agency to justify its failure to prepare an EIS, it must prepare an environmental assessment ("EA") and issue a finding of no significant impact which explain why the proposed action is not a major federal action which will significantly affect the environment. 40 C.F.R. §§ 1501.4, 1508.9, 1508.13. Endangered Species Act Section 7 of the ESA provides that each federal agency, including the FWS and COE, must "in consultation with the assistance of the Secretary [of the Interior], insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the secretary . . . to be critical . . . ." 16 U.S.C. § 1536(a)(2). "In fulfilling the requirements of this paragraph, each agency shall use the best scientific and commercial data available." Id. If an agency determines that a proposed action may adversely affect a listed species or critical habitat, it must initiate a consultation process with the FWS. 50 C.F.R. § 402.12. The first step in this process is to establish a list of threatened or endangered species and identify critical habitat which may be found in the area affected by the proposed action. Id. at § 402.12(c-d). If the FWS determines that no such species or habitat exists, then the consultation is complete. Otherwise, the FWS must approve the list. Once the list is approved, the acting agency must prepare a "Biological Assessment" ("BA"). Id. The contents of the BA are at the discretion of the agency, but must evaluate the potential effects of the action on the listed species and habitat and determine whether any such species or habitat are likely to be adversely affected by the proposed action. Id. at § 402.12(a, f). In doing so, the agency must use the best available scientific evidence. Id. at § 402.14(d); 16 U.S.C. §1536(a)(2). The agency must then submit the BA to the FWS. The FWS will then use the BA to determine whether "formal" consultation is necessary. The acting agency may also request formal consultation at the same time it submits the BA. 50 C.F.R. § 402.12(j-k). "Formal" consultation with the FWS is initiated by written request from the acting agency. Id. at § 402.14. During formal consultation, the FWS will use information provided by the agency, including the BA, to formally review and evaluate the potential affects of the proposed action on the listed species or critical habitat, and to report these findings in a "Biological Opinion" ("BO"). Unless extended, the FWS must conclude the formal consultation process within 90 days, and must issue the BO within 45 days after that. Id. at § 402.14(e); 16 U.S.C. § 1536(b)(1)(A). If the BO concludes that the proposed agency action will jeopardize the continued existence of any listed species or destroy or adversely modify critical habitat ("Jeopardy Opinion"), it must so state and provide any reasonable and prudent alternatives which would avoid this consequence. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h). If the BO contains a Jeopardy Opinion with no reasonable and prudent alternatives, the acting agency cannot lawfully proceed with the proposed action. 16 U.S.C. § 1536(a)(2). If the BO does not include a Jeopardy Opinion, or if such can be avoided by reasonable and prudent measures, then the BO must also include an "Incidental Take Statement" ("ITS") 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(I). The ITS describes the amount or extent of potential "take" of listed species which will occur from the proposed action, the reasonable and prudent measures which will help avoid this result, and the terms and conditions which the agency must follow to be in compliance with the ESA. Id. Administrative Procedure Act The APA guides judicial review of agency actions. Upon reviewing an agency action, a court must "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law . . . ." 5 U.S.C. § 706(2)(A). "In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party . . . ." 5 U.S.C. § 706(2). "The duty of a court reviewing agency action under the "arbitrary and capricious" standard is to ascertain whether the agency examined the relevant data and articulated a rational connection between the facts found and the decision made." Olenhouse v. Commodity Credit Corporation, 42 F.3d 1560, 1574 (10th Cir. 1994). In reviewing the agency's explanation, the reviewing court must determine whether the agency considered all relevant factors and whether there has been a clear error of judgment. Id. Agency actions will be set aside if the agency "entirely failed to consider an important aspect of the problem" or if the decision "runs counter to the evidence before the agency." Id., quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983). Furthermore, agency action must be supported by "substantial evidence." Olenhouse at 1575; 5 U.S.C. § 706(2)(E). Thus, an agency must have taken a "hard look" at the issues, articulated and considered all relevant data, and engaged in genuine, "reasoned decision-making." Greater Boston Television Corp., et al. v. Federal Communications Commission, 444 F.2d 841, 851 (D.C. Cir. 1970). Fifth Amendment of the United States Constitution The Constitution prohibits state and federal government from taking private property, unless it is reasonably necessary for a public purpose. U.S. CONST. amend. V, XIV; Kohl v. U.S. 91 U.S. 367, 373-374 (1875); Tennessee Valley Auth. v. Welch, 327 U.S. 546, 551 (1946); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 126 (1978). The Florida State Constitution also prohibits the State of Florida from taking private property, unless it is reasonably necessary for a public purpose. FL Const. art. X, § 6; Canal Authority v. Miller, 243 So.2d 131, 134 (Fla. 1970); Katz v. Dade County, 367 So.2d 277, 279 (Fla. App. 1979); Knappen v. Division of Admin., State Dept. of Transp., 352 So.2d 885, 886 (Fla. 2d DCA 1977). Eleventh Amendment of the United States Constitution As a general rule, a citizen may not sue a state in federal court. U.S. CONST. amend. XI. However, state officials may be sued in federal court to enjoin ongoing and future violations of federal statutory and constitutional law. Ex Parte Young, 209 U.S. 123, 159-160 (1908); Loggerhead Turtle v. County Council of Volusia County, Florida, 92 F.Supp.2d 1296, 1303 (n. 5)(M.D. FL 2000); Michigan Bell Telephone Co. v. Climax Telephone Co., 202 F.3d 862, 867-868 (6th Cir. 2000). A state may also waive its sovereign immunity by consenting to be sued in federal court. College Sav. Band v. Florida Prepaid Postsecondary Educ. Expense Bd., 522 U.S. 666 (1999); Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275 (1959). A state's waiver of immunity may be inferred by the state's conduct. Garrity v. Sununu, 752 F.2d 727, 738 (1st Cir. 1984). A state may consent to suit in federal court by virtue of the state's participation in federal programs, or receipt of federal funding. Verizon Maryland Inc. v. Public Service Commission of Maryland, 535 U.S. 635 (2002); MCI Telecommunications Corp. v. Public Service Comm. of Utah, 216 F.3d 929 (10th Cir. 2000). FACTS COMMON TO ALL CLAIMS FOR RELIEF MR. HARDY AND HIS HOMESTEAD Mr. Hardy is a honorably discharged disabled United States veteran. After being discharged, Mr. Hardy purchased 160 acres of homesteaded land, described as the Northwest One-Quarter of Section 16, Township 50 South, Range 28 East, Collier County, Florida. Mr. Hardy has lived on his homestead for over 30 years. Mr. Hardy's land lies in the north-central portion of the SGGE. The SGGE is a 55,247 acre platted subdivision. The SGGE was never developed, and is currently heavily vegetated and wild. Mr. Hardy loves the rural and wild nature of his land, and cares about protecting the fish and wildlife habitat on his land, for his continued use and enjoyment and for the use and enjoyment of his heirs. Mr. Hardy's dream, which he is currently implementing, is to own and operate a number of fish ponds on his land which people may pay to catch fish from, and from which Mr. Hardy can derive a living. Mr. Hardy is currently deriving income from his property by selling the limestone gravel which is removed from his land in the course of building his fish ponds. Mr. Hardy currently has one fish pond stocked with fish. Mr. Hardy cares about protecting the quality of the groundwater on his land, both for his domestic use and for use in his fish ponds. Mr. Hardy wishes to live on his property for the rest of his life, and to pass his property on to his heirs for their use and enjoyment. THE SOUTHERN GOLDEN GATE ESTATES PROJECT When the SGGE was created, with Florida State and county approval, several canals were dug to help drain the land, and roads were built throughout the SGGE. Some scientists believe that these canals and roads have changed the original character of the land from being uniformly wetted with "sheet flows" for much of the year, to being mostly dry, and that this change in hydrology has changed the character of the plant and animal communities found within the SGGE. For at least eight years now, the State of Florida, the FWS and the COE have been conceptually interested in "restoring" the SGGE to wetland conditions believed by some scientists to be found prior to the settlement of Florida. Specifically, the Defendants have been and continue to be interested in purchasing the land within the SGGE, tearing out the roads, plugging the canals, and distributing water flowing in the canals from the north into spreader canals which spread out and distribute the water south (SGGE Project). With these actions, the Defendants hope to restore "sheet flows" to much of the SGGE, and thereby hope to restore the original plant and animal communities believed by some scientists to be found therein. IMPLEMENTATION OF THE SGGE PROJECT The WRDA of 1996 authorized the COE to develop CERP. Since then, the COE, in partnership with the FWS, SFWMD, and DEP, have included the SGGE Project within the CERP. Despite the clear Congressional mandates of the WRDA of 1996 not to implement CERP projects prior to Congressional approval, the Defendants began to immediately implement the SGGE Project. Specifically, the DEP and SFWMD began acquiring lands, through so-called "voluntary" purchases and condemnation, for the purpose of implementing the SGGE Project. By 1997, the DEP had acquired approximately 31% of the SGGE. The COE and FWS began assisting in the land acquisition process. By 1999, the DEP had received grants totaling at least $38,000,000 from the FWS, approved by the COE, which the DEP in turn was to use to acquire property for the SGGE Project. The money was earmarked for the everglades restoration process by Congress via the Federal Agriculture Improvement and Reform Act of 1996 ("1996 Farm Bill"). As stated, the 1996 Farm Bill allowed the FWS to distribute money for everglades restoration, including property acquisition. However, the 1996 Farm Bill did not abrogate the FWS's responsibility to comply with all applicable federal law in the course of distributing any such money, including the ESA and the NEPA, nor did it abrogate the Congressional mandates found within the WRDA of 1996. Despite applicable law requiring such, the FWS did not then, nor has it ever, examined the impacts to the natural and human environment or threatened or endangered species when it granted to the DEP money for the acquisition of land for the SGGE Project, nor did the FWS submit the SGGE Project to Congress for approval prior to funding the SGGE Project. The SGGE Project will have many impacts to the natural and human environment and to threatened or endangered species. For example, restoring sheet flows to the SGGE may increase water pollution by flushing harmful or deadly agricultural chemicals from fields which were previously farmed. Some of these adverse impacts may be realized by merely acquiring land for the SGGE Project, prior to actually restoring sheet flows to the land. For instance, the acquisition of tens of thousands of acres of land, without an accompanying change in hydrology and without active management, could increase the proliferation of exotic and noxious species of plants which already are harmful to native Florida ecosystems. Despite the many potential impacts associated with implementing the SGGE Project, the FWS and COE failed to prepare an environmental impact statement, consult regarding the potential for impacts to threatened or endangered species, or submit the SGGE Project to Congress for approval prior to funding implementation of the SGGE Project. The FWS and COE did not comply with the ESA, NEPA, or the WRDA of 1996 prior to funding implementation of the SGGE Project. From 1999 to the present, the DEP has been using the money provided by the FWS to acquire SGGE Project lands. To date, the DEP has acquired nearly 98% of all lands within the SGGE. Without the federal money, the DEP would have been unable to acquire the SGGE Project lands. As stated by the COE: Without . . . receipt by FDEP of Federal Farm Bill funds, land acquisition by FDEP from the end of 1997 through 2060 would have continued only from willing sellers and at a pace so that by 2060 only an estimated 60% of the area would have been in public ownership. Without federal participation it is questionable whether the state would have been able to acquire land at anywhere near the current existing rate. See Draft Integrated Project Implementation Report and Environmental Impact Statement, Southern Golden Gate Estates Ecosystem Restoration, April 2004 ("PIR") at 4-5. The COE has approved of these ongoing state and federal actions. With passage of the WRDA of 2000, Congress approved the then complete CERP, and authorized the COE to begin planning implementation of projects included in the CERP. The CERP included a short reference to the SGGE Project: 9.1.9.1 Southern Golden Gate Estates Restoration (OEP) This feature includes a combination of spreader channels, canal plugs, road removal and pump stations in the Western Basin of the Big Cypress, Collier County, south of I-75 and north of U.S. 41 between the Belle Meade Area and the Fakahatchee Strand State Preserve. The purpose of this feature is to restore and enhance the wetlands in Golden Gate Estates and in the adjacent public lands by reducing over-drainage. Implementation of the restoration plan would also improve the water quality of coastal estuaries by moderating the large salinity fluctuations caused by freshwater point discharge in the Fahka Union Canal. The Plan would also aid in protecting the City of Naples eastern Golden Gate wellfield by improving groundwater recharge. CERP Final Feasibility Report and PEIS at 9-26. While the CERP did mention the SGGE Project in the above noted programmatic manner, it did not give any specific analysis regarding the environmental impacts of the SGGE Project, nor did it comply with the NEPA. As admitted by the COE: The SGGE project was first proposed in the CERP Comprehensive Review Study Integrated Feasibility report and Programmatic Environmental Impact Statement. Due to the conceptual nature of the CERP report and its associated uncertainties, site-specific documents such as this PIR/EIS are needed to address problems and solutions at a level of sufficient detail for the final decision making and for full compliance with NEPA requirements. PIR at 1-25. While the WRDA of 2000 authorized the COE to begin planning implementation of CERP projects, including the SGGE Project, the WRDA of 2000 specifically prohibited the COE, in partnership with the SFWMD and DEP, from beginning actual on-the-ground implementation of the Project unless and until the COE first complies with the NEPA, prepares a PIR, submits these documents to Congress for approval, and actually receives Congressional approval and funding for the project. Florida State law also requires the SFWMD and DEP to comply with these laws, and requires a number of similar or identical requirements to be met, prior to implementation of the SGGE Project. The COE, FWS, SFWMD and DEP have not yet completed a PIR or NEPA document, have not formally approved the SGGE Project, have not consulted with the FWS regarding potential impacts to threatened or endangered species, have not complied with Florida law, and have not submitted the SGGE project to Congress or the Florida Legislature for approval. Therefore, the SGGE Project is not a legally approved and authorized project which may be implemented by the FWS, COE, SFWMD and DEP. Despite these Congressional limitations and Florida State law, the Defendants continue to aggressively implement the SGGE Project prior to complying with the required environmental laws. In addition to the DEP's ongoing land acquisition program, funded by the FWS and approved by the COE, the SFWMD has already begun on-the-ground construction activities, plugging one of the four canals scheduled to be plugged by the SGGE Project. The COE and DEP have approved the SFWMD's construction activities implementing the SGGE Project. The Defendant's ongoing implementation of the SGGE Project is a direct violation of state and federal law. CONDEMNATION OF MR. HARDY'S LAND As part of its ongoing SGGE Project land acquisition program, the DEP has now filed a petition to condemn Mr. Hardy's land for the SGGE Project. At the time this federal case was filed, the DEP's petition had not been served on Mr. Hardy. Mr. Hardy is not conceptually opposed to the SGGE Project. However, Mr. Hardy is opposed to the COE, FWS, SFWMD, and DEP implementing the SGGE Project prior to compliance with all applicable state and federal law, and submission to Congress for approval and funding. The SGGE Project, which has never and may never be approved by Congress, and which may have significant environmental impacts or impacts to threatened or endangered species which have never been assessed, is already over one-half complete. Mr. Hardy is also opposed to the condemnation of land for a public project which has never and may never be approved. Moreover, even if the SGGE Project were approved, it is not necessary to acquire Mr. Hardy's land for the SGGE Project as it is currently being implemented. As proposed, the SGGE Project restores sheet flows south of Mr. Hardy's property. Any compromise in the flood protection of Mr. Hardy's land which may be caused by the SGGE Project can easily be mitigated at a cost far less than actually condemning the land. Thus, the DEP's condemnation action against Mr. Hardy is not necessary to implement the project. The DEP's condemnation of Mr. Hardy's land in these circumstances violates federal and state statutory and constitutional law. CLAIMS FOR RELIEF CLAIMS AGAINST THE CORPS OF ENGINEERS Plaintiff reasserts and realleges the preceding paragraphs as fully stated herein. A. Facts The SGGE Project is a CERP project. The COE approved the 1998 and 1999 grants to the DEP for implementation of the SGGE Project. The COE has completed a draft PIR for the SGGE Project. In the draft PIR, the COE approves of the DEP and SFWMD's past and present implementation of the SGGE Project. The COE's "baseline" or "no-action" alternative, included in the COE's draft PIR (for the purpose of NEPA and WRDA of 2000 analysis), does not include the DEP and SFWMD's purchase and condemnation of SGGE Project lands. Rather, the COE's no-action alternative falsely assumes that the DEP and SFWMD never received federal funding to implement the SGGE Project, assuming a full 40% residential development of the SGGE by the year 2060. For the purpose of environmental analysis, the COE assumed that a full 40% development of the SGGE would result in a near 100% destruction of the everglades and associated wetlands in the area, resulting in significant environmental impacts. In contrast, the COE's "preferred" alternative to implement the SGGE Project, includes the DEP and SFWMD's purchase and condemnation of SGGE Project lands, and considers these acquisitions to be part of the implementation of the SGGE Project. The COE's preferred alternative also assumes that the federal funds received by the DEP and SFWMD were vital to implementation of the project, and without these funds the DEP and SFWMD would be unable to provide the lands necessary to implement the SGGE Project. The COE states: Without . . . receipt by FDEP of Federal Farm Bill funds, land acquisition by FDEP from the end of 1997 through 2060 would have continued only from willing sellers and at a pace so that by 2060 only an estimated 60% of the area would have been in public ownership. Without federal participation it is questionable whether the state would have been able to acquire land at anywhere near the current existing rate. PIR at 4-5. Thus, the COE not only approved the use of federal funds from 1998 to the present to implement the SGGE Project, the COE considers this use to be an essential part of implementation of the SGGE Project. Likewise, the COE has also approved of the SFWMD's current on-the-ground construction activities implementing the SGGE Project. Based on these actions, the COE, in partnership with the FWS, SFWMD and DEP, has implemented and is currently implementing and approving implementation of the SGGE Project. The COE has not completed a PIR for the SGGE Project, has not submitted a PIR to Congress for approval, has not completed an EIS for the SGGE Project, and has not completed consultation with the FWS regarding the potential impact of the SGGE Project on threatened and endangered species. The COE has not entered into a binding "project cooperation agreement" with the State of Florida regarding implementation of the SGGE Project. B. Violations of Law Violation of the WRDA of 1996. The WRDA of 1996 did not authorize the COE to implement either the SGGE Project specifically, or any CERP project generally. Water Resources Development Act of 1996, Pub. L. No. 104-303, 110 Stat. 3658 at § 528. The COE's approval of federal funding and implementation of the SGGE Project from 1998 to the present violates the WRDA of 1996, the APA, and is arbitrary, capricious, an abuse of discretion and is not in accord with applicable law. Violations of the WRDA of 2000 The WRDA of 2000 prohibited unilateral federal implementation of the SGGE Project; the SGGE Project must be implemented in partnership and coordination with the State of Florida. Water Resources Development Act of 2000, Pub. L. No. 106-541, 114 Stat. 2572 at § 601(e)(h). Before implementation of a CERP project, the COE must enter into a binding "project cooperation agreement" with the State of Florida. Id. The WRDA of 2000 prohibits implementation of the SGGE Project prior to completion of a PIR for the project. Id. at §§ 601(f), 601(h)(4)(A), 601(h)(2)(A)(ii). The WRDA of 2000 prohibits implementation of the SGGE Project prior to full compliance with the NEPA, including preparation of an EIS. Id. The WRDA of 2000 prohibits implementation of the SGGE Project prior to the COE demonstrating that the Project is "justified by the environmental benefits" and is "cost effective." Id. at § 601(f)(2)(A). The WRDA of 2000 prohibits implementation of the SGGE Project prior to establishing the maximum cost of the project in the PIR, which the COE cannot exceed. Id. at § 601(b)(2)(E). The WRDA of 2000 prohibits implementation of the SGGE Project prior to submission to, approval by, and receipt of funds from Congress. Id. at § 601(b)(2)(D). The COE has not fulfilled these legal obligations. The COE's implementation and approval of implementation of the SGGE Project prior to fulfilling these legal obligations violates the WRDA of 2000 and the APA, and is arbitrary, capricious, an abuse of discretion, and not in accord with applicable law. Violations of the NEPA The NEPA requires preparation of an EIS prior to implementation of any major federal action significantly affecting the environment. 42 U.S.C. § 4332. Implementation of the SGGE Project is a major federal action significantly affecting the environment. Approval of $38,000,000 in federal funding to purchase or condemn over 52,000 acres of private property is a major federal action significantly affecting the environment. Approval of on-the-ground construction and implementation of the SGGE Project is a major federal action significantly affecting the environment. The COE's failure to prepare an EIS prior to implementation and approval of implementation of the SGGE Project violates the NEPA and the APA, and is arbitrary, capricious, an abuse of discretion, and not in accord with applicable law. CLAIMS AGAINST THE FISH AND WILDLIFE SERVICE Plaintiff reasserts and realleges the preceding paragraphs as if fully stated herein. A. Facts The FWS is responsible for distribution of money appropriated by the 1996 Farm Bill to state and federal agencies for everglades restoration and land acquisition. As a federal agency, the FWS is responsible for complying with all applicable federal law in the distribution of federal funding which may impact the environment, including the NEPA, ESA, and WRDA of 1996. In 1998 and 1999, the FWS distributed at least $38,000,000 to the DEP and SFWMD for acquisition of land for the SGGE Project. Land acquisition for and implementation of the SGGE Project has had and will continue to have significant impacts on the natural and human environment, and may adversely affect threatened and endangered species. The FWS did not complete an EIS evaluating the environmental impacts of land acquisition for and implementation of the SGGE Project. The FWS did not consult with itself as required by the ESA regarding the potential impacts of land acquisition for and implementation of the SGGE Project on threatened and endangered species. B. Violations of Law Violation of the WRDA of 1996. The WRDA of 1996 did not authorize the FWS to implement either the SGGE Project specifically, or any CERP project generally. Water Resources Development Act of 1996, Pub. L. No. 104-303, 110 Stat. 3658 at § 528. The FWS's approval of federal funding and implementation of the SGGE Project from 1998 to the present violates the WRDA of 1996, violates the APA, and is arbitrary, capricious, an abuse of discretion, and not in accord with applicable law. Violation of the NEPA The NEPA requires preparation of an EIS prior to implementation of any major federal action significantly affecting the environment. 42 U.S.C. § 4332. Land acquisition for and implementation of the SGGE Project is a major federal action significantly affecting the environment. Approval of $38,000,000 in federal funding to purchase or condemn over 52,000 acres of private property to implement the SGGE Project is a major federal action significantly affecting the environment. The FWS's failure to prepare an EIS prior to funding implementation of the SGGE Project violates the NEPA and the APA, and is arbitrary, capricious, an abuse of discretion, and not in accord with applicable law. Violation of the ESA The FWS is required to consult with itself prior to taking action which may adversely affect threatened or endangered species. 16 U.S.C. § 1536. Approval of $38,000,000 in federal funding to purchase or condemn over 52,000 acres of private property to implement the SGGE Project may adversely affect threatened or endangered species. The FWS's failure to consult with itself prior to funding implementation of the SGGE Project violates the ESA and the APA, and is arbitrary, capricious, an abuse of discretion, and not in accord with applicable law. CLAIMS AGAINST THE AGENTS AND EMPLOYEES OF THE FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION AND THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT Plaintiff reasserts and realleges the preceding paragraphs as if fully stated herein. A. Facts Implementation of the SGGE Project, as well as all CERP projects, was intended by both Congress and the Florida State Legislature to be inextricably intertwined. Congress clearly indicated that the COE cannot implement a CERP project without equivalent participation by the State of Florida. Water Resources Development Act of 2000, Pub. L. No. 106-541, 114 Stat. 2572 at §§ 601(e)(f)(h). For example, the State of Florida must be responsible for acquisition of all of the land and 50% of the total cost of a CERP Project. Id. The COE must also consult and coordinate with the State, must complete the PIR in partnership with the State, must comply with state water law and water quality standards, and must enter into an implementation agreement with the State. Id. Likewise, "The [Florida State] Legislature intends to establish a full and equal partnership between the state and federal governments for the implementation of the comprehensive plan [CERP]." FLA. STAT. ANN. § 373.470(3)(a). "The comprehensive plan [CERP] shall be used as a guide and framework for a continuing planning process to . . . [e]nsure that [CERP] project components will be implemented . . . ." Id. at § 373.470(3)(b.2). Consistent with the Florida Legislature's intent to create a "full and equal partnership" with the COE in implementing CERP projects, the Legislature passed a number of laws which substantively mirror those of the WRDA of 2000. The SFWMD cannot implement a CERP project without first completing, in cooperation with the COE, a PIR. Id. at § 373.470(3)(c). The PIR must then be approved by both the DEP and the Florida Legislature prior to implementation and funding by either the Florida Legislature or Congress. Id. at §§ 373.026(8), 373.1501(5). The SFWMD cannot implement a CERP project without first evaluating all environmental impacts, complying with state water law and water quality standards, minimizing harm to threatened and endangered species, and ensuring that the project is practically feasible and cost effective. Id. The Legislature also created a trust fund expressly to implement CERP projects and to receive federal funds for such implementation. Id. at § 373.472(1). Perhaps the most important indication that the Florida Legislature intended to intertwine state and federal participation with respect to CERP project implementation is the requirement that implementation of all CERP projects must be in compliance with all applicable federal law. Id. at § 373.1501(5). Florida law clearly indicates that the Florida Legislature wished to inextricably intertwine Florida participation in CERP projects with applicable federal law. Just as the COE cannot implement a CERP project without the State, neither can the State implement a CERP project without the COE. In so doing, the State of Florida waived its right to be immune from suit in federal court for violations of state and federal law pertaining to implementation of a CERP project. Since at least 1998, the DEP and SFWMD have been implementing the SGGE Project. The DEP and SFWMD accepted federal money and used state money to purchase and condemn land specifically for the SGGE Project. The DEP and SWFMD have claimed that the necessary public purpose for such acquisitions was the SGGE Project. The DEP and SFWMD have claimed that acquisitions of land for the SGGE Project may be claimed against the State of Florida's obligations to provide all of the land and 50% of the total cost of the SGGE Project, as required by the WRDA of 2000. The SFWMD is currently, with approval by the DEP, engaged in on-the-ground construction activities implementing the SGGE Project. The DEP has filed although not served, a petition for condemnation of Mr. Hardy's land. The DEP claims that condemnation of Mr. Hardy's land is necessary to implement the SGGE Project. The SFWMD has not completed a PIR for implementation of the SGGE Project. The SFWMD has not obtained a project implementation permit from the DEP to implement the SGGE Project, nor has the DEP obtained a project implementation permit form the SFWMD to implement the SGGE Project. The DEP has not formally approved of implementation of the SGGE Project, based upon a completed PIR for the SGGE Project. The Florida Legislature has not approved of implementation of the SGGE Project, nor has it appropriated funding for the SGGE Project. The SFWMD and DEP have not complied with applicable federal law prior to implementing the SGGE Project. The SFWMD and DEP have not completed an EIS regarding the environmental impacts of the project, and have not ensured that the impact to threatened and endangered species will be minimized by consulting with the FWS. The SFWMD and DEP have not obtained formal approval or documentation from the COE and FWS that its actions in implementing the SGGE Project are in compliance with applicable federal law. B. Violations of Federal Statutory Law Violations of the WRDA of 1996 The WRDA of 1996 did not authorize the State of Florida to implement either the SGGE Project specifically, or any CERP project generally. Water Resources Development Act of 1996, Pub. L. No. 104-303, 110 Stat. 3658 at § 528. The DEP and SFWMD's acceptance and use of federal funding to implement the SGGE Project from 1998 to the present violates the WRDA of 1996 and the APA, and is arbitrary, capricious, an abuse of discretion, and not in accord with applicable law. Violations of the WRDA of 2000 The WRDA of 2000 prohibits implementation of the SGGE Project prior to completion of a PIR for the project. Water Resources Development Act of 2000, Pub. L. No. 106-541, 114 Stat. 2572 at §§ 601(f), 601(h)(4)(A), 601(h)(2)(A)(ii). The WRDA of 2000 prohibits implementation of the SGGE Project prior to full compliance with the NEPA, including preparation of an EIS. Id. The WRDA of 2000 prohibits implementation of the SGGE Project prior to the SFWMD entering into a binding "project cooperation agreement" with the COE. Id. at § 601(e)(h). The WRDA of 2000 prohibits implementation of the SGGE Project prior to demonstrating that the Project is "justified by the environmental benefits" and is "cost effective." Id. at § 601(f)(2)(A). The WRDA of 2000 prohibits implementation of the SGGE Project prior to establishing the maximum cost of the project in the PIR that cannot be exceed. Id. at § 601(b)(2)(E). The WRDA of 2000 prohibits implementation of the SGGE Project prior to submission to, approval by, and receipt of funds from Congress. Id. at § 601(b)(2)(D). The DEP and SFWMD have not fulfilled or ensured that these legal obligations were fulfilled by the COE or FWS prior to implementation of the SGGE Project. The DEP and SFWMD's implementation of the SGGE Project prior to fulfilling these legal obligations violates the WRDA of 2000 and the APA, and is arbitrary, capricious, an abuse of discretion, and not in accord with applicable law. Violation of the NEPA The NEPA requires preparation of an EIS prior to implementation of any major federal action significantly affecting the environment. 42 U.S.C. § 4332. Implementation of the SGGE Project is a major federal action significantly affecting the environment. The DEP and SFWMD's acceptance and use of $38,000,000 in federal funding to purchase or condemn over 52,000 acres of private property to implement the SGGE Project is a major federal action significantly affecting the environment. The DEP and SFWMD's on-the-ground implementation of a proposed federal project is a major federal action significantly affecting the environment. The DEP and SFWMD's failure to prepare or ensure preparation of an EIS prior to implementation of the SGGE Project violates the NEPA and the APA, and is arbitrary, capricious, an abuse of discretion, and not in accord with applicable law. C. Violations of Constitutional Law The United States and Florida Constitutions prohibit the DEP and SFWMD from taking private property, unless it is reasonably necessary for a public purpose. U.S. Const. amend. V, XIV; Kohl v. U.S. 91 U.S. 367, 373-374 (1875); Tennessee Valley Auth. v. Welch, 327 U.S. 546, 551 (1946); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 126 (1978); FL Const. art. X, § 6; Canal Authority v. Miller, 243 So.2d 131, 134 (Fla. 1970); Katz v. Dade County, 367 So.2d 277, 279 (Fla. App. 1979); Knappen v. Division of Admin., State Dept. of Transp., 352 So.2d 885, 886 (Fla. 2d DCA 1977). The DEP and SFWMD claim that it is necessary to take Mr. Hardy's private property for the SGGE Project. The SGGE Project has not and may never be a legally approved project. The DEP and SFWMD cannot take private property for a public purpose for a project which has not and may never be legally approved. Even if the SGGE Project did legally exist, Mr. Hardy's land is not necessary for the SGGE Project. The DEP and SFWMD cannot take private property unless it is necessary for the public purpose. The DEP and SFWMD's actions are in violation of the United States Constitution and the Florida State Constitution. D. Violations of Florida State Law Florida law does not authorize the DEP and SFWMD to implement a CERP project prior to complying with all applicable federal law. FLA. STAT. ANN. § 373.1501(5). Florida law does not authorize the DEP and SFWMD to implement a CERP project in a manner inconsistent with the CERP itself, which requires compliance with all applicable federal law. Id. at § 373.470(3)(b.2) Florida law does not authorize the DEP and SFWMD to implement a CERP project prior to completion of a PIR. Id. at § 373.470(3)©. Florida law does not authorize the DEP and SFWMD to implement a CERP project prior to executing a project cooperation agreement with the COE. Id. Florida law does not authorize the DEP and SFWMD to implement a CERP project prior to approval by the DEP and the Florida State Legislature. Id at §§ 373.470(3)©, 373.026(8). Florida law does not authorize the DEP and SFWMD to implement a CERP project prior to obtaining a project implementation permit, providing "reasonable assurances" that all applicable law has been complied with, that state water quality standards will be met, and that impacts to wetlands and threatened and endangered species will be avoided, minimized or mitigated. Id. at § 373.1502. Florida law does not authorize the DEP and SFWMD to implement a CERP project prior to ensuring that the project is practically feasible, cost effective, ensures existing water rights and flood control, and is consistent with all applicable federal and state law and regulation. Id. at § 373.1501(5). The DEP and SFWMD's implementation of the SGGE Project prior to compliance with all applicable state and federal law is a violation of these laws. The DEP's petition for condemnation against Mr. Hardy for the SGGE Project prior to compliance with all applicable state and federal law is a violation of these laws. REQUESTS FOR RELIEF Mr. Hardy hereby request the following declaratory and injunctive relief: A declaration that the COE has violated and are continuing to violate the WRDA of 1996, the WRDA of 2000, the NEPA, and the APA. A declaration that the FWS has violated and are continuing to violate the WRDA of 1996, the NEPA, the ESA and the APA. A declaration that the agents and employees of the DEP and SFWMD have violated and are continuing to violate the WRDA of 1996, the WRDA of 2000, the NEPA, the APA, the United States and Florida State Constitutions, and applicable Florida State law. A declaration that the COE, FWS, DEP, and SFWMD cannot implement the SGGE Project prior to fully complying with all applicable state and federal law. A preliminary and/or permanent injunction prohibiting the COE, FWS, DEP, and SFWMD from implementing the SGGE Project prior to fully complying with all applicable state and federal law. An award of costs and attorneys fees. Any other relief this Court deems just and reasonable. RESPECTFULLY SUBMITTED, this ___ day of October, 2004. ______________________________________ Charles R. Forman, Trial Counsel Florida Bar No. 229253 Forman, Hanratty & Montgomery 1323 SE 3rd Avenue Ft Lauderdale, Florida 33316 (954) 522-9441 - Telephone (954) 522-2076 - Telefax

(Filed November 3, 2004)