Court lifts ban on rock mining in Dade (Miami Herald May 10, 2008)

BY CURTIS MORGAN

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Posted on Sat, May. 10, 2008

A federal appeals court on Friday lifted a ban on rock mining in thousands of acres of Northwest Miami-Dade County, saying U.S. District Judge William Hoeveler let personal views color a ''`predetermined'' decision to halt digging last July.

A three-judge panel in Atlanta, with one dissenter, ruled that Hoeveler improperly relied on his own analysis and opinions to dismiss studies and decisions by the Army Corps of Engineers, the federal agency charged with regulating the industry.

''No matter what the Corps concluded, and no matter what evidence supported that conclusion, the court would have banned mining because of its own conclusion that mining in the Lake Belt is a bad thing,'' Judge Joel Dubina wrote in the 11th Circuit Court of Appeals panel's majority opinion.

In July, the judge, citing ''grave concerns'' about health risks, ordered an indefinite halt to mining in a portion of the Lake Belt near the county's largest drinking-water wells.

The industry, the Corps of Engineers and county regulators call the water safe and Judge Hoeveler's concerns overblown.

The rock-mining industry, which says the 10-month curtailment cost South Florida thousands of jobs and drove up road- and home-building costs, called the ruling a major victory.

The decision lifted Hoeveler's ban on mining tracts owned by four companies -- White Rock Quarries South, APAC Florida, Vulcan Materials and Tarmac. It also reversed his 2006 ruling that the Corps had erred in 2001 in issuing permits for the industry to expand into 5,700 acres of wetland near the Everglades.

''This ruling is welcome news for Florida's economy,'' said Kerri Barsh, an attorney for several mining companies. ``It advances transportation projects throughout the state and puts the environmental benefits of the Lake Belt Plan back on track.''

But the decision clearly won't end years of legal battle over the Lake Belt, home to four of the state's five largest limestone mines and source of half the state's cement and fill.

The ruling said Hoeveler condemned Corps actions based on ''simple disagreement'' and had failed ''to grant the Corps the proper level of deference'' it argues is mandated under federal environmental laws.

But the panel issued no opinion on whether the Corps had complied with federal environmental laws in issuing the permits and it put the case back in Hoeveler's court, ordering him to reconsider that key question using ``proper standards of review.''

Paul Schwiep, an attorney representing three environmental groups who sued the Corps in 2002 over the mining permits, called the decision disappointing but based on narrow technical points could allow Hoeveler ``the discretion to reach the same result although on narrower grounds.''

''The appeals court went out of its way to explain that it was not holding that Judge Hoeveler had erred on the merits of his ruling,'' Schwiep wrote in an e-mail.

The panel also rejected a request from miners to reassign the case to another judge

on grounds that Hoeveler was biased. In 2003, complaints of bias by the sugar industry led to Hoeveler's removal from a landmark case that forced Florida to reduce pollution flowing into the Everglades.

In the mining case, the Atlanta panel wrote, ``We have no reason to believe that a well-respected district judge . . . will not be able to apply the proper standards of review.''

In two lengthy rulings in 2006 and 2007, Hoeveler had blasted the Corps as a weak environmental watchdog, saying the federal agency had relied on old or industry-provided data to approve a mining expansion that could harm the Everglades, and endangered wading birds and drinking water. Citing a benzene plume and risks of bacterial contamination, the judge ordered mining halted in a zone near the Northwest Wellfield until the Corps completed a new environmental review. He allowed other mining to continue.

The industry, the Corps and county agencies have played down the concerns.

In September, the Corps completed a draft environmental study that again concluded excavation poses no significant environmental or health risk. The industry also argues its plan to ''mine-out'' another 15,000 to 18,500 acres over the next 50 years will provide environmental benefits because Everglades restoration plans call for abandoned rock pits to serve as reservoirs.

The court's majority opinion said Hoeveler too broadly interpreted the demands of some laws, such as the National Environmental Policy Act (NEPA), which the ruling said simply required federal agencies to follow a process.

``In this case, it would not violate NEPA if the [Corps environmental study] noted that granting the permits would result in the permanent, irreversible destruction of the entire Florida Everglades, but the Corps decided that economic benefits outweighed the negative environmental impacts.''

In her dissent, Judge Phyllis Kravitch argued that Hoeveler's ruling and ban were justified under the Clean Water Act, which required the Corps to assess broader options for mining and to independently verify data. She noted that the Corps had largely parroted an industry study to support the need to mine the Lake Belt.

That report might be fair, she wrote, ``But for all the Corps has explained in the record, it is a classic hired-gun expert report painted over with a thin veneer of rigor.''

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Press Release

Appeals Court Ruling Good News for Environment and Economy Friday May 9, 9:15 pm ET

Appellate Court Reverses Ruling and Ends Partial Shut-Down

ATLANTA--(BUSINESS WIRE)--A Federal Appeals Court today vacated a lower court's decisions that invalidated mining permits in the Lake Belt area of Northwest Miami-Dade County and shut down limestone mining operations in approximately one-third of that area. The appellate court concluded that the lower court rulings of March 22, 2006 and July 13, 2007 were wrongly decided and ended a nearly 10 month shut-down of some of the most important limestone mining operations in America.

In its decision, the Eleventh Circuit Court of Appeals concluded:

The district court seems to have predetermined the answer to the ultimate issue, concluding that the Corps should not permit mining in the Lake Belt, and analyzed the permitting process with that answer in mind. Indeed, the court made its predetermination of the ultimate issue explicit in its conclusion.... In other words, no matter what the Corps concluded, and no matter what evidence supported that conclusion, the court would have banned mining because of its own conclusion that mining in the Lake Belt is a bad thing.

"This ruling is welcome news for Florida's economy," said Kerri Barsh, an attorney representing three of the companies affected by the ruling, White Rock Quarries, APAC Florida and Sawgrass Rock Quarry. "It advances transportation projects throughout the state and puts the environmental benefits of the Lake Belt Plan back on track."

Today's decision vacated two rulings by the lower court in the lawsuit, Sierra Club v. Flowers. This lawsuit contended that the Army Corps of Engineers and the U.S. Fish and Wildlife Service did not follow proper procedures when originally issuing Lake Belt mining permits in 2002. The first of the rulings vacated today was issued on March 22, 2006 and it invalidated Lake Belt mining permits. The second ruling vacated today was issued on July 13, 2007 and it imposed a partial mining shut-down.

Today's ruling benefits the environment by putting the Lake Belt Plan back on track. This comprehensive plan was endorsed by the late Governor Lawton Chiles, former Secretary of Interior Bruce Babbitt and former Governor Jeb Bush. It establishes specific areas for limestone mining operations in Miami-Dade County and uses special fees paid by mining companies in the Lake Belt to provide the funding needed for the state to acquire, restore and preserve a 2-mile buffer protecting the Florida Everglades. The plan also calls for quarry-lakes to become an essential element of the Comprehensive Everglades Restoration Plan (CERP) by ultimately becoming massive water reservoirs to provide water to nourish the famed River of Grass. The Lake Belt Plan supports Everglades restoration, provides funding for regional drinking water, and protects the Everglades from encroaching development while maintaining the numerous economic benefits of Florida's limestone industry.

The Lake Belt Area is a 78 square mile region located on the western edge of Miami-Dade County's urbanized area. Named for the quarry-lakes created when limestone is excavated, the Lake Belt provides a buffer between developed areas to the east and the Everglades to the west. For almost 60 years, the companies that excavate more than half of the state's limestone have worked safely in the Lake Belt area, producing jobs for thousands of Floridians, and providing the raw materials that support the state's growing network of roads and highways

Limestone operations in the Lake Belt provide nearly half of the limestone and one-fourth of the cement used in Florida for road construction as well as residential, commercial, and industrial construction projects in virtually every Florida community. The Lake Belt provides the highest quality and quantity of aggregate material in Florida and is served by an efficient network of roads and railways needed to transport this vital material. Florida consumes 150 million tons of limestone every year and 55 million tons come from the Lake Belt region. All of the limestone rock produced in the Lake Belt area stays in Florida and is used for road projects as well as residential, commercial, and industrial construction jobs.

Contact:

Greenberg Traurig

Kerri Barsh, 305-579-0772

Source: Greenberg Traurig

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