From the Fall 2002 issue of The News Media & The Law, page 37.
By Rebecca Daugherty
The tiny Miccosukee Indian tribe has lived in the Florida Everglades since the early 1800s and is facing radical alterations to its way of life from development. Projects including those by the U.S. Army Corps of Engineers rechanneled swampland waters, backing them up over the lands on which the Miccosukee hunt and fish. The manmade flooding is destroying the tree islands basic to tribal culture.
According to the tribe’s attorneys, it is anxious to realize long-promised water restoration measures and opposes new projects — both developmental and environmental — that stall progress on the long-delayed Modified Water Deliveries Project Congress ordered for the Everglades in 1989.
In early September, the Miccosukee won a court case challenging the various recommendations of the Southern Everglades Restoration Alliance (SERA) because it failed to follow the openness and other requirements of the Federal Advisory Committee Act, one of two federal open meetings acts.
Joette Lorion,who works for a law firm representing the tribe, said it wants to get on with the plan it was promised and that the Corps of Engineers should be doing the desperately needed work that has been slowed by SERA meetings and recommendations. Instead the Corps has looked for advice from other agencies and entities, meeting to come up with plans that do not necessarily reflect the plan laid down by Congress. Too many cooks, she said, are spoiling the stew.
A three-judge panel of the U.S. Court of Appeals in Atlanta (11th Cir.) ruled unanimously Sept. 4 that the group of federal and state agencies that may or may not also have included private consultants, banded together as SERA and acted as an advisory group subject to FACA when it addressed legal, biological and development issues arising in the Everglades.
FACA requires that groups providing advice to federal agencies meet in the open. They must give notice of their meetings and, unless certain exemptions apply, they must hold open meetings. The law puts other requirements on advisory groups as well. For example, they must represent a balance of interests or viewpoints.
Reversing a decision of the lower court, the appeals panel found that SERA, formed to address Everglades projects and restorations, was an advisory group subject to FACA. The panel sent a lawsuit by the Miccosukee against the federal government back to the federal district court in Miami to determine what damage had occurred because the government did not adhere to FACA.
The tribe of fewer than 500, most of whom live near the border of Everglades National Park, complained that water restoration has been stalled by SERA-inspired measures to protect the habitat of the endangered Cape Sable seaside sparrow. Closing water gates to protect the sparrow slowed the rechanneling, endangering not only the tribe’s resources but other wildlife as well, Lorion said.
SERA initiated plans to restore an 8.5 square mile area within the area Congress had laid plans to protect that would have involved the demolition of a community. The plans triggered lawsuits from the community to be displaced and slowed the construction of a levee vitally needed to divert waters. The levee was part of the congressional plan that has not yet been realized, the tribe said.
SERA also developed a set of performance measures for member agencies to follow. The tribe said that it is unclear what their effect was on agency programs.
Federal, state and local agencies created SERA in 1996. Major players included the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, the National Park Service, the Florida Department of Environmental Protection and the South Florida Water Management District, an agency that provided SERA’s executive director. But, according to the government, many other groups attended some of SERA’s meetings. Miccosukee tribe members themselves were invited to and attended some of the meetings.
In 1999, the Miccosukee sued the federal government saying that SERA recommendations influenced government action even though it had not adhered to FACA requirements. According to court papers filed by the tribe, SERA appeared to meet monthly, sometimes announcing its meetings and sometimes not. It prepared formal reports in the form of advice for high-level agency officials.
But it did not adhere to the requirements of FACA. It had not filed a charter, announced its meetings in the Federal Register, kept minutes or made records available, held its meetings in public or allowed interested persons to appear and file statements, the tribe told the court.
Probably because of that lawsuit, SERA disbanded. But the tribe maintained its lawsuit against the federal agencies that had been involved because it said the agencies were still following SERA’s advice and slowing water restoration.
Judge Joan Lenard of the U.S. District Court in Miami held Sept. 5, 2001, that SERA fit the definition of an advisory board: It was established to give advice to the government and the government had utilized its advice. But she said that even if SERA were technically like an advisory group, it was not the sort of group that Congress had sought to regulate when it passed the law. FACA was designed to limit the influence of special interest groups, she said. In this case, where there were no special interest groups involved who opposed the government, FACA would not apply.
The appeals panel rejected that opinion. SERA was established “by one or more agencies, in the interest of obtaining advice or recommendations.” If the alliance fit the “plain language” defining an advisory board, it was an advisory board, even if it did not “fall within the spirit of the statute.”
“Unambiguous language in a statute is more than mere evidence of what Congress intended the law to be — it is the law,” the panel wrote. The panel also said that although it is unclear whether SERA included non-government members, nothing in the law requires that a board must have non-government members to be subject to FACA. (Miccosukee v. SERA)