In late August, a Florida District Court judge ordered the famed "Alligator Alcatraz" closed and dismantled. That decision was appealed both by the state (Florida Division of Emergency Management (FDEM)) and the federal government, with both sets of defendants seeking a stay of the lower court injunction pending the appeal.
They now have it — along with a stay of any additional merits proceedings pending appeal.
There were some critical flaws in Judge Kathleen Williams' ruling, as indicated by the FDEM appeal — and highlighted by streiff in his write-up of the appeal:
Judge Williams is assigned to the Southern District of Florida. That district comprises the counties Broward, Dade, Highlands, Indian River, Martin, Monroe, Okeechobee, Palm Beach, and St. Lucie. The Alligator Alcatraz is located near Ochopee, Florida, in Collier County. This places it in the Middle District of Florida. As the appeal notes, two other judges in the Southern District have refused to hear Alligator Alcatraz cases because they lack jurisdiction. This would seem to be important.
The ruling by Judge Williams cites the National Environmental Protection Act as her reason for ordering the facility dismantled. The NEPA applies to actions by federal agencies. Alligator Alcatraz is owned and operated by the state of Florida.
READ MORE: Florida's Appeal of Alligator Alcatraz Ruling Claims Massive Errors and Bias by the Obama Judge
A three-judge panel of the 11th Circuit appears to agree — or, at least two of them do. In a 59-page opinion (35 pages for the majority, 24 for the dissent), the court granted the defendants' motions to stay the underlying case. The opinion was authored by Judge Barbara Lagoa (a Trump appointee) and joined by Judge Elizabeth Branch (also a Trump appointee). Judge Adalberto Jordan (a Clinton/Obama appointee) authored the dissent.
In issuing the stay, the majority analyzed the four factors required by the Supreme Court's holding in Nken v. Holder:
- whether the stay applicant has made a strong showing that he is likely to succeed on the merits
- whether the applicant will be irreparably injured absent a stay
- whether issuance of the stay will substantially injure the other parties interested in the proceeding
- where the public interest lies
As to the first factor, the court noted that, as streiff pointed out, the NEPA applies to actions by federal agencies, while Alligator Alcatraz is owned and operated by the state of Florida:
[H]aving not yet formally “committed to funding that project,” the Federal Defendants have taken no “major federal action” subjecting them to the procedural requirements of NEPA. Atlanta Coal., 599 F.2d at 1340. And because the Federal Defendants were not “required” to complete an EIS, the Plaintiffs’ APA claim based on the Federal Defendants’ failure to do so is foreclosed as a matter of law. Norton, 542 U.S. at 64. For the foregoing reasons, we conclude that the Defendants are substantially likely to succeed on the merits of this claim.
The court then analyzed the remaining three factors and found they also weighed in favor of the defendants. In doing so, they noted some of the additional flaws in the lower court's reasoning:
It is entirely unclear to us, moreover, how the district court concluded that it could order the proactive dismantling of the Facility by way of a mandatory preliminary injunction. If there were a substantial likelihood that the Plaintiffs would succeed on their NEPA claim (and as we’ve already explained, there isn’t), the appropriate remedy at this stage might, at most, have been to enjoin the further use of or construction at the Facility pending completion of an EIS, not the affirmative expenditure of public monies to take it apart.
RELATED: Watch: Governor Ron DeSantis Just Blew a Gasket Over Democrats' Obsession With Alligator Alcatraz
Ultimately, the court determined that the balance of the equities and the public interest tip in favor of the state and federal defendants, noting:
Our job, at this stage, is to balance the equities, as well as the overall public interest, and we are compelled in this case to conclude that these factors favor the Defendants: While the environmental effects mentioned by the Plaintiffs may result in down-the-line harm, the injuries facing the Defendants and the public are critical, immediate, and concrete.
So, the stay of operations at Alligator Alcatraz is itself now stayed. Next move will be by the plaintiffs to seek rehearing en banc and then appeal if that is denied. We will, of course, keep a watchful eye on the case and report on any new developments.
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