On Oct. 24, the Cape Coral City Council voted 5-0 to execute a waiver of conflict of interest for the two municipalities that have joined the city in its appeal of a ruling by the South Florida Water Management District regarding water releases from Lake Okeechobee into the Caloosahatchee River.
The waivers of conflict allow co-petitioners Fort Myers Beach and Sanibel to use the law firm of Manson Bolves Donaldson Varn, out of Florida, which is representing the Cape. Attorney Craig Varn requested them so that the firm can represent Sanibel and Fort Myers Beach in a limited capacity.
On Oct. 17, Sanibel City Attorney John Agnew and his firm, Henderson Franklin, filed a motion to withdraw as counsel with the Florida Division of Administrative Hearings after the firm determined a conflict of interest existed with another client, who holds interests opposite of the city in the case.
Sanibel City Attorney John Agnew
According to the document, the client objected after the municipalities’ joint petition had been filed. The other client is a business that relies on water received from permitting through the SFWMD.
“The city of Sanibel is now represented in the proceeding by the firm of Manson Bolves Donaldson Varn, which is based out of Tampa,” Agnew said on Oct. 25. “It is a boutique law firm that focuses on water, environmental, administrative, and governmental law, and it is the firm that has represented Cape Coral in this case from the inception.”
“Fort Myers Beach also elected to hire Manson Bolves as outside counsel, so the firm is now representing all three of the original petitioners in the case, which will provide efficiencies in the presentation of the case at the final hearing and also in the costs of representation,” he added.
CEPD PETITION TO INTERVENE DENIED
Cape Coral City Attorney Dolores Menendez said while she would not recommend clients share lawyers on the same case, this is an exception since the proceedings have moved at an incredible pace and because the views held by the Cape, Sanibel and Fort Myers Beach on the matter are similar.
“I get about 20 emails a day on this case and we’re just in the deposition stage,” she said. “Our interests are also well-aligned. My concern is about future litigation between Fort Myers Beach and Sanibel.”
Menendez explained that the possibility was addressed within the waiver. Manson Bolves Donaldson Varn will represent the Cape, even if there is a future issue with either of the parties.
According to Menendez, Fort Myers Beach was a new twist, as the waiver was originally set for only Sanibel. Fort Myers Beach received conflict of interest documents prior to the council’s meeting. Sanibel had already signed its waiver, while Fort Myers beach had signaled its intent to move forward.
As part of its motion to withdraw, Agnew and Henderson Franklin also requested the granting of a continuance to allow Sanibel adequate time to retain new counsel and for the new counsel to prepare.
“The motion for continuance was denied,” Agnew said.
The hearing before the Florida Division of Administrative Hearings is still Oct. 29-30.
Other Lee County entities have filed paperwork to take part as intervernors.
“The motions to intervene filed by the cities of Fort Myers, Estero and Bonita Springs were granted, as was the motion to intervene filed by the CCP (Captiva Community Panel), so those four entities are also now parties to the case,” Agnew said. “The motion to intervene filed by the CEPD (Captiva Erosion Protection District) was denied.”
The SFWMD had filed separate oppositions to all five joining the case as intervernors.
The Lee County Board of County Commissioners voted 4-1 at its October meeting against attempting to join the petition as an intervernor, instead sending a letter to the SFWMD asking it to increase the minimum flow of releases in the dry season. Commissioner Cecil Pendergrass cast the dissenting vote.
“While the administrative law judge denied the Captiva Erosion Protection District’s motion to intervene, the judge granted the Captiva Community Panel’s motion to intervene based on the island’s interest in the ecology of the estuary,” attorney Ralf Brookes, counsel for the CCP – who also stepped forward to represent the CEPD – said. “We are excited that Captiva will be well represented by the Captiva Community Panel at the hearing to support Sanibel Island’s quest for more low flow water during the dry season to support the estuary and the health of the Caloosahatchee that has gone through ecological collapse after years of mismanagement by the SFWMD and Army Corps of Engineers.”
He pointed out that the Caloosahatchee needs at least 750 cubic feet per second during dry season, but has not received that amount and as a result thousands of acres of tapegrass have died over the year.
“It is important that we get the water right and that means clean water at the right amount at the right time,” Brookes said. “We are invested and engaged on changing the water mismanagement of Lake Okeechobee releases at low times, as well as high water releases.”
At the recent Cape meeting, Menendez also asked the city council to consider how the legal costs would be split between the co-petitioners. It was decided the Cape and Sanibel would split the costs from Oct. 19-23, with Fort Myers Beach then signing on as an equal partner from Oct. 23 forward.
Cape Mayor Joe Coviello saw a bright side to the arrangement.
“By having this in the long run, there will be less cost as opposed to all of us paying for our own attorneys,” he said.
Last month, Sanibel, Fort Myers Beach and Cape Coral filed a joint petition with the Florida Division of Administrative Hearings. The municipalities questioned the validity of the South Florida Water Management District’s “proposed amendments” to the rule on the minimum flows and levels or MLFs.
The SFWMD’s board voted to raise the Caloosahatchee MLF criteria from a 30-day flow of 300 cubic feet per second (cfs) to 400 cfs at the Franklin Lock, despite requests for a higher baseline number.
The co-petitioners are asking the judge to find that the changes to the Caloosahatchee MLF Rule are “an invalid exercise of delegated legislative authority,” that they are “vague” and fail to establish adequate standards for agency decisions and they are arbitrary and capricious in that they are “not supported by logic or the necessary facts” and were “adopted without thought or reason.”