Happy Thanksgiving, y’all! Contrary to what you were told in the second grade, the first Thanksgiving took place in St. Augustine 56 years before the Pilgrims arrived. The attendees were Spanish settlers and the native Timucuans. They ate garbanzo stew and alligator and afterward probably got into an argument over whose sports team had a better record.
This is why, as a Floridian, I try every year to count my blessings and look for reasons to be thankful. This year, I’m thankful I do NOT live in Cape Coral. You should be too.
The reason I say this is because Cape Coral’s elected officials seem to think the great American tradition of speaking your mind should be, as Sgt. Schultz once warned Col. Hogan, “verboten.”
Let me explain:
In any historical display of why we need growth management in Florida, Cape Coral would be Exhibit A. Billed as Florida’s “Waterfront Wonderland,” the city’s construction by Gulf American was very poorly planned. The company built lots of houses and a country club with a dancing fountain called Waltzing Waters, but the developers forgot to include water lines, sewers, schools, and supermarkets. Oops.
The one thing they built plenty of were canals — 400 miles of them, the most of any city on Earth, laid out in Florida’s second-biggest city in land mass after Jacksonville.
Just one small problem: The company did this without applying for any state permits.
Back in the ’70s, the state cared about stuff like that. State officials ordered the developers to stop doing what they were doing. Within days, “they filed for the largest bankruptcy in the state’s history,” recalled Kevin Erwin, an ecologist who worked for the old Department of Natural Resources.
To deal with the destruction, Erwin ordered the builder to construct a lock designed to hold back the water that would carry pollutants into the Caloosahatchee River and Matlacha Pass, he told me. Plus, the company was hit with the state’s largest environmental fine in history — $1 million dollars.
That lock bears the bananas name of “Chiquita” because of a nearby road. It’s still there — damaged by a hurricane and neglected by the city but still protecting the waterways from pollution. But not for long.
Some boaters who live near the lock don’t like that it slows their trips to open water and want the city to rip it out. They think eliminating the lock will boost their property values, no matter what happens to water quality or the strong possibility of worsening storm surge from the next hurricane.
A trio of avid anglers objected to removing the lock. Now the city wants to severely punish them for challenging the permit — to the tune of nearly $2 million.
“They’re going after us to make an example of us,” one of the anglers, Jim Collier, told me this week. “They want to silence public input.”
When we talked, I could hear Collier repairing his dock. He’s nearly done fixing the damage done to it by Hurricane Ian in 2022.
In Texas, he worked as a real estate lawyer but now he’s retired and 72. When he and his wife visited Florida and went fishing, he told me, they enjoyed it so much they decided to move to Cape Coral. He talked so enthusiastically about a saltwater fish called a “red drum” that at first I thought he was referring to the famous “red rum” scene in “The Shining.”
Now his wife runs the Tom Allen Memorial Butterfly House, one of the city’s top tourist attractions. And he became chairman of the city’s waterways advisory committee.
“We’re fixtures in the city now,” he told me.
When the city first tried to remove the Chiquita Lock in 2018, he paid close attention. Several groups, including the Matlacha Civic Association, jumped in to oppose the permit being issued by the Florida Department of Everlasting Pitifulness — er, excuse me, “Environmental Protection.”
The challengers brought in Erwin to testify about why the lock existed and the important purpose it served. These groups “pointed out all the defects in the project,” Karl Diegert, then the president of the Matlacha Civic Association, told me this week.
They won the case. An administrative law judge ruled in 2019 that the city’s plans would damage the environment, so in 2020 the DEP rejected the permit application.
“What the judge saw … is that the main criteria that the Cape put forward to remove the locks was inconvenience for the boaters,” one environmental organization leader told the Fort Myers News Press. “Inconvenience for the boaters did not hold water for us or the judge.”
The city could have appealed the judge’s decision or, better yet, complied with it and even fixed the lock to modernize it. At least eight manatees have been crushed by the operation of the lock, and the city had done nothing to stop that.
In fact, Save the Manatee Club executive director Pat Rose called for the city to keep the lock closed until a new, safer lock could be designed and constructed, noting, “Unless it can be proven that the original water quality goals can be met without the lock, this seems to remain the best final strategy.”
But the city went in a different direction — the same one a lot of Florida polluters pursue these days.
“They try again, with new expert witnesses to contradict every point you made before,” Diegert told me. “The goal is to exhaust the opposition.”
The city filed for a new DEP permit to remove the lock, this time promising to install several projects to offset what they admitted would be an increase in pollution.
It also hired a different law firm, one that’s known for its scorched-earth tactics versus citizen challenges: Lewis, Longman & Walker of West Palm Beach.
One of the first steps Lewis Longman took: Scare all those civic and environmental groups into dropping out by threatening to stick them with hefty legal expenses. The quickest way to victory is to convince your opponents to flee the field of battle.
But then Collier and two of his fishing buddies replaced them, picking up the cause just as they would pick up a dropped pole.
“Holy smokes, it blew up in our faces,” Collier told me.
The services provided by Lewis Longman do not come cheap. According to the website Salary.com, the average annual salary for attorneys at Lewis Longman is $118,713.
Lewis Longman had six attorneys and several paralegals working on the Cape Coral case. You do the math on how much that cost, because such big numbers make my head hurt. Basically, though, hiring lawyers like you’re buying a six-pack of Budweiser does not save money.
Representing the three Cape Coral fishermen: former federal prosecutor Michael Hannon of Matlacha, who didn’t charge a dime for representing them, and veteran environmental attorney John Thomas, who’s never collected big fees for his work for such groups as the Florida Springs Council, the Save the Manatee Club, and the Sierra Club.
“I was convinced this was a righteous cause,” Thomas told me.
This is the team that won the first case. There was even talk of forcing the city to restore a state-required boat lift it had removed in 2007 with no permit whatsoever.
But the second round in court turned out very differently. This time, in August, the challengers lost.
“They knew we were probably working on a shoestring,” Thomas said. “They had us on our heels right from the get-go.”
Part of the problem was the judge, Erwin said. “She wouldn’t let me talk about the history of the lock,” he told me.
This echoed the DEP’s own position that the state’s original order to install the lock to prevent pollution was irrelevant now, Thomas told me. That the current DEP finds the old environmental regulators’ concern for stopping pollution irrelevant doesn’t surprise me.
Without hearing testimony on the lock’s historic purpose, Judge Suzanne Van Wyk seemed persuaded by the things the city promised to do to make up for the increased pollution. For instance, the city said it would create better drainage for a dog park to keep dog poop from the water (even though most dog owners pick up their pets’ poop), plant thousands of mangrove seedlings. and contribute to a study of the endangered smalltooth sawfish.
No, I am not making ANY of that up.
“We felt very strongly the first decision was based on science and the second one wasn’t,” Hannon told me, choosing his words carefully.
Rather than fight on, the trio of anglers said they would not appeal the ruling.
When I talked to Diegert, he pointed out that the city hasn’t done any of those make-up things yet, but it’s rushing to obtain the federal permit it needs for removing the lock. If the feds are as easily fooled as the DEP and say yes, then the lock will be gone by next June.
Given how lackadaisical DEP officials have become about Florida’s many water quality problems, he doubts the city will ever be required to make good on its promises.
Threatening to stick their opponents with their legal bills has proven to be an effective Lewis Longman tactic before in places such as Fernandina Beach.
Lewis Longman represents a big corporation that wants to build an ethanol plant there despite a ban on such factories in the city’s growth plan. The law firm scared away an attorney who was helping one of the plant’s opponents.
But those pay-up demands were made before going to court. Now, for the first time I’ve heard of, Lewis Longman is seeking payment after the case ended.
It’s demanding money from the trio of anglers as well as their attorneys, contending these Davids’ fight against Goliath was “to pursue frivolous purposes.” To me this seems as vicious as the winning army running back out on the field after the battle to bayonet the losing army’s wounded.
I tried repeatedly this week to ask Cape Coral’s mayor, John Gunter, whether he and the rest of the council were OK with this. I wanted to know if they approved of their attorneys trying to squeeze nearly $2 million from a trio of retirees and a couple of down-at-the-heels public interest lawyers, none of whom are rolling in the dough like Poppin’ Fresh.
Gunter didn’t want to talk about it. His assistant emailed me he was “unavailable for an interview.” Every other city official was out for the holiday too, she said, “so we don’t have anyone available for an interview.”
When I was talking to Collier, I asked him what he would do if Lewis Longman succeeded in forcing him to pay money that he doesn’t have.
“I bought a lottery ticket,” he joked.
There’s still a chance that this travesty can be averted.
The council members who pushed for removal of the lock were all voted out of office this fall. The lock fight wasn’t the issue that drove voters to turn them out. It was that the incumbents had voted to give themselves a “stipend” that doubled their salary.
Five new council members were sworn in this month and in their first meeting eliminated the “stipend.” But they also heard a plea for help from the three fishermen.
“The fact that the city is trying to punish its citizens for taking a reasonable legal action by charging us with its legal fees … is in my mind a warning to others not to challenge the city on any issue it wishes to pursue,” Daniel Carney told the new council members.
“I ask the new City Council to look into this and see for themselves whether the city administration is doing the right thing by continuing to threaten the three of us for doing nothing more than pursuing our responsibilities as citizens,” Kevin Sparks said.
The council members said nothing in response. But I suuuuure hope they’re thinking about what they heard from Collier, Carney, and Sparks.
When you sit down for your Thanksgiving dinner of garbanzo stew and alligator today, maybe you should say a prayer of thanks that there are still people in Florida like these three — people who care more about the environment than the DEP does and are willing to fight for it. Then pray that Cape Coral will come to its senses and let these anglers off the hook.
Florida Phoenix is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Florida Phoenix maintains editorial independence. Contact Editor Michael Moline for questions: info@floridaphoenix.com. Follow Florida Phoenix on Facebook and X.
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kmskepton
Wow. Ugh.
Friday, November 29 Report this
lib224
This problem starts and ends with the Republican governor and legislature that passed the law making it so difficult to challenge local governments.
Sunday, December 1 Report this