Why did SFWMD Cave?

Stuart News Editorial, Treasure Coast Newspapers Editorial Board, April 19, 2018

Water Management District must drop its shady crusade against citizens

Pity the poor South Florida Water Management District. All the $758 million taxpayer-funded agency wants to do is serve the public. But sometimes the public can be so unreasonable.

We might, for instance, want to know how our tax money is spent.

Outraged at that audacity, the district is turning to intimidation as public policy. How else can we describe the district's threats to subpoena personal emails, letters and memos of citizens who dared — dared! — request information about a pivotal meeting that led to an out-of-court settlement with the billionaire owners of the controversial Lake Point rock quarry in western Martin County?

The Lake Point saga began in 2008 and led to an avalanche of litigation, including a 2013 lawsuit against the Water Management District for breach of contract. Following an Aug. 23, 2017, closed-door meeting, the district announced it would settle, agreeing to buy 50,000 tons of rubble annually for 15 years and giving Lake Point the right to mine rock for 50 years before turning over the land to the state.

The deal raised eyebrows and led the nonprofit Everglades Law Center to file a public records request, seeking transcripts of the Aug. 23 meeting and other closed sessions. Two months later, a second request was filed by Maggy Hurchalla, a former Martin County commissioner who had been sued separately by Lake Point.

The district provided several transcripts, but balked at providing the Aug. 23 records. Then, in an extraordinary move, it sued the law center and Hurchalla, asking Martin County Judge William L. Roby to rule the records could stay secret.

Earlier this year, Roby did so, saying state law permits public agencies to keep “mediation” discussions under wraps.

Several public-records experts dispute this interpretation, and the Everglades Law Center has said it will appeal. Yet even if the courts ultimately decide the transcripts aren’t public record, surely the public has a right to ask for the information.

The South Florida Water Management District begs to differ. After the law center and Hurchalla filed their requests,16 other Treasure Coast residents asked for the Aug. 23 transcripts. One, Paul Laura, chair of the Treasure Coast Democratic Environmental Caucus, said citizens thought multiple requests might carry more weight than a single query. But the district, calling them "suspiciously identical," suggested in court filings they were part of an orchestrated campaign to trick the agency into violating Florida's public-records laws.

The "onslaught" of requests "may have been to cause the district to slip up in how it handles requests, or maybe we would miss a request," said water management attorney Brian Accardo in a March 8 board meeting. The district had means to retaliate thanks to a 2017 change in Florida law requiring a requester to pay attorney fees if a judge decides the request is frivolous.

The district demanded Hurchalla and the law center turn over all Lake Point-related communications and personal emails to and from the 16 residents. If they won't, the district said it would subpoena those 16 citizens, seeking all Lake Point communications with Hurchalla or anyone else.

So far, the district’s demands have been stymied by legal objections. Activists say if subpoenaed, they'll comply. But this whole charade is ludicrous.

Roby's ruling, while questionable, provided the Water Management District with all the legal cover it needed — for now — to keep the Aug. 23 transcripts secret.

What's worse: By going after members of the public who sought the transcripts, the district is seeking to intimidate them into silence. There was nothing “frivolous” about their requests.

Due to the contentious nature of the Lake Point project and the litigation surrounding it, there's a legitimate interest in finding out why the district chose to settle.

The South Florida Water Management District needs to drop its crusade, now. And it needs to knock it off with the adversarial approach.

Editorials of Treasure Coast Newspapers/TCPalm are decided collectively by its Editorial Board. To respond to this editorial in a letter to the editor, email up to 300 words to TCNLetters@TCPalm.com.



Attorneys for the District explained the good, the bad and the ugly.

The ugly was that Executive Director Carol Wehle and other District staff had been working against the District and insisting that Lake Point had the right to sell water.

The good was that the District had won summary judgment on that issue. Judge McManus ruled that the contract did not allow Lake Point to sell water.

The bad included the fact that the other side were vindictive billionaires with lots of lawyers who wanted to punish those who opposed Lake Point. District lawyers expressed concern that the lawyers for the other side and their billionaire clients didn't care how much they spent

And the story kept changing. When the District won on the water claim, Lake Point claimed they interfered with mining. The District filed for summary judgment on the mining issue but withdrew when they thought they couldn't win before that judge.

The District did not initially take the mining claims seriously. The good news was that Martin County was vigorously defending the case and had shouldered the financial burden of multiple expert witnesses.

Lake Point was thought to be financially "upside down on the property" and politically motivated. That was clear from the fact that Lake Point spent a million dollars to win the public records case.

The District's theory of the case was "bait and switch". Lake Point came in with a water quality project. They got hit with the housing crash and the fact that their rock wasn't good enough for the Lake Okeechobee dike project. They decided to sell water instead and the District's senior staff helped them pursue that.

The District stopped enforcing the terms of the contract because the contract manager said that, given the switch to selling water, he had no idea what the project would be a month from then.

Martin County got upset because the District wasn't enforcing the contract and the County wasn't getting what it had agreed to in their agreement.

The political situation blew up.

Instead of supporting Lake Point against the County, the District sent them a letter saying "you need to perform."

Lake Point immediately sued and said they couldn't perform because of District screw ups while Lake Point was trying to turn it into a water project.

Mitch Hutchcraft, Board Member and King Ranch consultant, asked if Martin County was blaming the District. He was assured by staff that "No.No.No. Martin County has not turned on us."

Rather, Martin County told Lake Point they couldn't keep mining because they weren't a public works project and they had not donated the property.

Then Lake Point said it was the District's fault because they wouldn't help Lake Point get their permits.

Mr. Hutchcraft pointed out that politics in Martin County had changed and suggested the County would settle.

The session ended.

The final executive session occurred immediately prior to SFWMD's vote to settle with Lake Point. In the public meeting where the vote was taken, Martin County's attorney objected to the fact that the terms of the settlement were not made public. The District has gone to court against the Everglades Law Center for asking for a transcript of the executive session that ended in a settlement agreement.

If the District prevails in the case, we will never know why they settled.



For the full transcript of April 2017, click here

And for the August 2016 Executive Session, click here

The District has refused to release the transcript of the August 2017 executive session in which they decided to settle with Lake Point. They contend that the Public Records law does not apply and the transcript must remain a secret because it includes information from confidential mediation discussions.

Excerpts from April 2017 Executive Session:

page 3

9 District and Martin County. That's the Interlocal

10 Agreement where we basically -- I mean for shorthand

11 we were middlemen. That agreement allowed Lake Point

12 to mine in Martin County, where they would not normally

13 have been allowed to mine.

16 for a while. The party on the other side has done a

17 lot of fighting so far in the case. You've read about

18 the public records case, which is related, although the

19 District wasn't a direct party.

20 They're well financed on the Other Side. The

21 Lake Point principals are billionaires, with a "b."

22 And there's clearly Martin County politics and

23 interests in play that you know,

page 4

6 The good news from last time is still the

7 Only good news in the case, and that's that we were

8 Successful in defeating Lake Point's claim that the

9 Contract between ourselves and Lake Point allowed them

10 to sell water.

23 The bad news last time was about the costs,

25 ugly news concerned former Staff at the District,

page 5

1 executive leadership of the District, how they were

2 furthering the Lake Point case. In that instance, they

3 were providing testimony in support Of the Water

4 project. Again, that claim failed, but their

5 participation with Lake Point still has remaining

6 repercussions .

9 Claim. The Lake Point team is six, seven, eight

10 lawyers right now. We already know that there are

11 going to be additional lawyers brought in to try the

12 Case for Lake Point.

20 Board meeting, and we had brought in an outside firm;

21. that was the Hopping Green & Sams firm. They

page 6

1 We promised last time that we would file a

2 motion for Summary judgment on the mining Claims.

3 Again, the Water claims, we did file a motion and we

4. Were successful. We filed a motion for Summary

5 judgment on the mining Claims.

7 And we picked up from the judge during some

8 of his other rulings that he was not likely to grant

9 Our Summary judgment motion, given that there were

10 factual issues for the jury. So we withdrew that

11 summary judgment motion, because, well, we didn't think

12 We would win in front of that judge,

there are going to be costs. And the recognition

24 was that if we do, in fact, go to trial, those costs

25 are going to increase dramatically.

page 7

4. fortunate that Martin County had been defending this

Case so Vigorously, particularly with regards to the

mining claims.

And Lake Point, of course, is

11 claiming that the lost mining sales are in excess of

12 $60 million, and so there's a lot of expert testimony

13 about that.

14 But we have not contributed to those expert

15 fees to date.

because we will be

17 exposed if Martin County settles this case and takes

18 their experts with them.

So this

24 Could be a Case that exceeds over a million dollars.

page 8

1. the District defending it. It's just a well financed

2. opposition, and they're determined, and there’s not a

3. settlement here.

4. They're, from what we understand, again from

5. the good work of Martin County's efforts, they're

6. upside down on their property. And they're clearly

7. politically motivated, and the effort and the amount

8. Of -- the effort they put into the public records

9. trial, at which they were ultimately victorious, at

10. what Cost? I don't know. A million dollars, but they

11. Were Victorious.

page 10

5 This Case has been so -- it's kind of

6 ridiculous when you have counsel and the billionaire

7 Clients who don't Care about money.

14 prior counsel didn’t even think the

15 mining claim applied to us, it was a scramble;

And their expert came, and realizing that

19 they now had to convert over from the water claim on us

20 to the mining claim, they retooled their story.

page 12

16 Came in, and our theory of this case is basically bait

17 and switch. They came in, they sold us on the water

18 quality project, and we donated through the District SO

19 that they would get the exemption and mine and make

20 money on the sales of mining.

21 They were hit in 2008, 2009 with the market

22 crash. It turns out the quality of the rock was not

23 good enough for the dike . They changed — — that 's when

24 the water project Came about. Our employees were

25 considering it. They were working with them.

page 13

2 What happened during that period of time is

3 we didn't enforce performance of the contract, so

4 deadlines were missed.We didn't provide things to

5 them that they needed to be able to do the Water

6 project that we had agreed to do because our project

7 manager was down there saying: I don't know what the

8 project's going to be in a month from now. So

9 everybody was put on hold.

12 is our risk in this case. We have witnesses who didn't

3 necessarily know why we weren't performing. It was

14 because we were entertaining a water project.

15 Then in 2013 Martin County got upset because

16 this project wasn't moving, wasn't what they had agreed

17 to in their agreement, and they basically came out --

18 and then there were articles that we were going to

19 steal their water and send it all to West Palm Beach.

20 And the political machinery just blew up. That's where

21 the public records issues arose. People -- Maggie

22 Hurchalla is a defendant in this case for interfering

23 With the project.

24 We would not go up to Martin County and

25 support them. Essentially what happened is we turned

page 14

1 and we sent them a letter in 2013 and said no, you need

2 to perform. And they said, well, we can't because of

3 all the screw-up things that you didn't do. And they

4 filed litigation immediately.

the reality is neither staff nor the legal

10 Office got them going, got this project back on track.

And that's

23 part of the reason the fees are up, is because we've

24 been reacting to things

page 15

17 MR. HUTCHCRAFT: In Martin County's

18 withdrawal of the local development order, did they

19 Cite any actions or inactions by the District as a

20 rationale - -

23 MR. NUTT: No. No, they were focused on Lake

24 Point not doing what they're supposed to do. They

25 never -- Martin County, to date, has not turned on us

page 16

in about the last three or four months,

3 that potential has arisen, and we've got to guard

4 against that, because they issued MOBs and said we're

5 not going to let you mine anymore because it's not a

6 public project and you won't donate your property.

7 Lake Point said, well, I couldn't donate my property

8 because the District wouldn't help me get the permits

18 MR. HUTCHCRAFT: Well, I think, you know, the

19 politics have clearly changed in Martin County from

20 when this all started.

2. MR. NUTT : Yes.

22 MR. HUTCHCRAFT : And I believe there's

23 probably a desire on the County's part to - -

page 17

and roll more exposure to the District, I think that

2 Will do it.

Mr Nutt: I think they're out for

21 vengeance. They want this to be painful, they want it

22 to be hard, and they want to punish the governments

page 18