War in Federal Court
May 16, 2011
By Karl Wickstrom
Declared Against Estuary Discharges
It's official. We've declared war in federal court against our own government.
The result may be a landmark case that stops authorities from devastating our estuaries by flooding them with excessive, polluted fresh water shunted from inland.
We didn't want to sue. Our claim represents a mountain of expenses, work and worry. But an essentially compromised government, determined to protect Big Agriculture at all costs, gives no choice.
Hundreds of billions of gallons of turbid, nasty and often dangerous water is in most years unnaturally gushed into the St. Lucie and Caloosahatchee estuaries where it converts estuarine havens into sickened mud baths.
All efforts to get politicians and bureaucrats to tame the scandalous discharges have failed. Failed miserably.
And all legal actions based on the Clean Water Act, Endangered Species Act and other toothless acts against nature, as they've too often turned out, have failed as well.
Now, the new lawsuit represents a whole new approach that we find exciting, and so do a number of attorneys and legal eagles who have studied it.
The prospectively historic lawsuit was filed Nov. 9 in the Federal Court of Claims in Washington, D.C., on behalf of citizens brought together by the Rivers Coalition Defense Fund in the Stuart area.
Keep your eye on this one. It's based not on an obscure and unseen animal but on something dear to most hearts—money.
Basically, the new case states that the government continually takes the riparian rights of waterfront property when its Army Corps of Engineers invades and prevents normal use of adjacent waters. When you do that, you must pay, contends the suit. And pay big. It's called inverse condemnation.
The private properties cited in the federal complaint are officially appraised at $50 million. More importantly, the overall riparian private property in Martin County is appraised at an eye-popping $6 billion. And that doesn't count millions more in value in county parks and joint ownerships.
And yet, the goal is not to bring in a big bag of money. The goal is to force the government to stop the discharges by sending the excess Lake Okeechobee water south, where it belongs, instead of wasting it to the coasts. The southbound alternative has been, and is, readily available if it weren't for the influence of Big Sugar and the powerful office holders it commands.
Faced with the immense possible “takings” costs, the government/Corps hopefully will agree to a settlement whereby it will devise a program carved in stone to stop the discharges, all under court supervision. There would be no wiggle room for more bogus promises.
State government, a “partner” in perpetuating the Drainage Machine, would be brought into the act subsequently.
Individual plaintiffs in the Rivers Coalition Defense Fund suit seek no money. The 22 distinguished waterfront property owners ask nothing but a return of the clean estuary taken from them every other year. The plaintiffs have even signed away rights to any compensation awards.
Plaintiffs are to be commended for giving, not taking.
The lawsuit will be known as the Rivers Coalition case, or simply Mildenberger, which is the name of the hydrologist engineer who's the first named plaintiff. Also, other areas, notably the Fort Myers/Sanibel community, are interested in this property rights approach. It's a theory of law more often used against environmental projects, ironically, but in this case the legal weapon is in the hands of conservation. It feels just right.
The Court of Claims in Washington handles larger monetary claims against the federal government and that's where this case is based, though some hearings or a trial could be set in Florida. It's a non-jury case to be presided over by one of 16 judges.
Lead attorneys for the Rivers Coalition Defense Fund are Roger and Nancie Marzulla of Marzulla & Marzulla of Washington. They'll be supported by the Earthjustice law firm and other environmental entities.
Lawsuits, as you must know, are tremendously expensive. Floridians everywhere, and other citizens, should pitch in for this cause that can have truly amazing ramifications. Will you help?
If you lack fire in your belly right now, think of how the estuaries are ruined when the unnatural discharges muddy the water, kill all the oysters, wipe out the seagrasses, prevent trout spawnings, cover waters with toxic slime, chase away dozens of life forms, deprive hungry porpoises, eliminate food for eagles and pelicans and render the water untouchable by grandkids and all other folks.
Channel your anger into this action.
We've been taken; Enough is Enough.
Read more, including the complete lawsuit text, at:
www.riverscoalition.org .
