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Bush brief backs Fla. agency over Miccosukee Tribe
Thursday, September 11, 2003

The Bush administration asked the Supreme Court on Wednesday to overturn a victory the Miccosukee Tribe obtained as part of the $8 billion battle to clean up the Florida Everglades.

In May, the Department of Justice sided with the tribe in urging the justices not to take the case. At the time, Solicitor General Ted Olson, who handled President Bush's Florida election appeal, said in a brief that the matter was not of national significance and didn't create a conflict among the lower courts.

But now that the nation's high court has agreed to hear the dispute, Olson and other government lawyers have shifted their stance. They are not supporting the tribe's bid to stop water containing high levels of phosphorous, a dangerous pollutant, from being pumped into the Everglades.

"The Bush administration's approach would allow phosphorous pollution to poison the Everglades," said Nancy Stoner, director of the Clean Water Project at Natural Resources Defense Council in response to the brief. "[Gov.] Jeb Bush should call his brother and tell him this idea is as bad as drilling for oil off the coast of Florida."

At issue is a pumping station operated by the South Florida Water Management District, a state agency. The station discharges polluted water directly into the Miccosukee's homelands.

The tribe and a coalition of environmental groups contend that the activity violates the federal Clean Water Act. They want the district to seek a permit from the Environmental Protection Agency, a process that would allow for greater tribal and public input.

The district, in a brief submitted on Tuesday, stood firm in its opposition to the permit issue. The managers argue that they are not generating new pollution that would trigger the Clean Water Act.

That point is crucial to the government's stance in the case. Olson's brief supports the view that the pumping station itself doesn't add pollutants to the water.

The pumping station "water contains, however, higher levels of phosphorus than the waters in" the Everglades, the brief admits.

And in a position somewhat contrary to the May brief, Olson argues that the U.S. has a "substantial interest" in the case due to the $8 billion Everglades cleanup. The Bush administration, Secretary of Interior Gale Norton and the U.S. Army Corps of Engineers are big backers of the plan.

In a separate case, the tribe has challenged how the plan was developed. The 11th Circuit Court of Appeals ruled in the tribe's favor last September and said there wasn't enough tribal or public consultation.

The tribe and the environmental groups have not yet submitted their final arguments in South Florida Water Management District v. Miccosukee Tribe, No. 02-626. The brief is due by November 14.

Relevant Documents:
Department of Justice Brief In Support of South Florida Water Management District (September 10, 2003) | Department of Justice Brief In Support of Miccosukee Tribe (May 30, 2003)

Lower Court Ruling:
Miccosukee Tribe v. South Florida Water Management District, No. 00-15703 (February 1, 2002)

Relevant Documents:
Docket Sheet: No. 02-626 (Supreme Court)

Relevnat Links:
Miccosukee Tribe - http://www.miccosukee.com

Related Stories:
Fla. water managers filing brief in tribe's case (9/10)
Miccosukee Tribe challenges state on Everglades (08/08)
Supreme Court to hear Everglades cleanup case (06/27)
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