Venue change denied in sewer lawsuit filed by CARES

After legal counsel for the Florida Department of Environmental Protection asked for a transfer of venue in a lawsuit filed against it by Citizen's Advocating Responsible Environmental Solutions, or CARES, Magistrate Lawrence S. Pivacek denied the change.

Pivacek cited a provision in the Environmental Protection Act, which the political action group claims both the city and the DEP violated, that requires court proceedings to occur in the county of the alleged violation.

During the scheduled May 18 hearing, which was delayed because of paperwork complications, DEP attorney Charles Collette stated that the agency — like all state agencies — has a right to have civil procedures heard in the county of their principal headquarters, which in this case would be Leon County.

The lawsuit, filed in Collier County Circuit Court and overseen by Judge Daniel Monaco, seeks an injunction for the Septic Tank Replacement Program.

The political action group contends that the DEP unlawfully issued permits to Marco Island for the expansion of its wastewater treatment plant and put the citizens of Marco Island at an increased risk of sewage spills. The court ruled in the city's favor earlier in the month over the political action group's claim that special assessments for the project were unfairly distributed among future sewer customers.

Because the capacity plant could be strained in the next few years, the city is required to submit annual capacity reports to the agency. The political action group alleges that city officials did not submit 2005's report and the agency wrongfully issued an operating permit in February to allow capacity to increase from 3.5 million gallons per day to 5.0 million gallons per day to accommodate new customers the city will acquire as part of the Septic Tank Replacement Program. Both the city and DEP officials claim the capacity report was filed in November 2005.

The DEP also requested that the court dismiss the action against it, prompting the city to file a request to have the second count against it thrown out "on the grounds that the Plaintiff's purported cause of action ... arises from DEP's issuance of a general permit to the city, and that DEP is an indispensable party to Count II, which seeks injunctive relief against the city predicated upon the DEP's issuance of the general permit."

While the political action committee's attorney, Sam Gold, said previously he feels the group has sufficient justification to sue in Collier County, he said early last week that he understands the DEP's desire to transfer the hearing to Leon County.

"While we don't necessarily fault the Department of Environmental Protection for trying to move the case near its headquarters in Tallahassee, it is beyond belief that the city would officially join DEP's motion to take the case out of the hands of local citizens and transfer it hundreds of miles north," he said. "One can only surmise it was a desperation tactic to crush the citizens' ability to prosecute its case by lobbing on the tremendous costs to litigate hundred of miles away."

City Manager Bill Moss contends that the city never asked for the hearing to be transferred to Tallahassee, but rather did not object to the agency's request.

"The city did file a subsequent motion requesting, if the court grants the FDEP motion, that the court either transfer the entire case to Leon County or transfer Count II (the count raising the issue of the legality of the FDEP permit)," he wrote in a May 30 e-mail. "Neither the city nor FDEP thought the lawsuit filed by CARES should be heard in two different judicial circuits as that would drive up the cost to all parties."

Gold, however, denies Moss' claims that the city never requested a venue transfer.

"Any claim by Mr. Moss or the city that it had nothing to do with the motion to transfer the case is belied by the court record," he wrote in May 30 e-mail. "The city stood silently by while DEP moved to transfer the case to Tallahassee and then filed papers supporting DEP's request ... Whoever gave the order at City Hall to support the transfer clearly lacks experience in sound financial management."

Moss anticipates that this lawsuit will quickly be dismissed since the political action group has recognized the flawed basis for their suit.

"They alleged a permit should not have been issued by (DEP) to the city because a report had not been submitted when, in fact, it was submitted and had no impact on the decision to issue a permit," he wrote. "CARES tried to take a big bite by suing both the city of Marco Island and the state of Florida. They now find themselves entwined in complicated legal issues with little or no law supporting their position ...

They are now fighting a legal battle on two fronts with little chance of success."

DEP representatives could not comment because their attorneys had not been able to review the judgment.

As of June 2, DEP officials were still waiting for the agency's legal council to review the ruling.