STATUS OF KEY DEER CASE

By Jim Lupino, Esq. and Russell Yagel, Esq.

In a sentence, the case is status quo. Not any different than 10 months ago and not any better. As you will recall, Federal Court Judge Michael Moore entered orders in 2005 which resulted in approximately 40,000 properties in Monroe County being restricted from National Flood Insurance coverage through FEMA. This resulted in Monroe County, as well as many companies and individuals, seeking to intervene in the case to have some say in how their properties were affected. The judge denied all such requests and appeals were taken. To date, no order has been entered by the appellate court addressing the various potential intervenors’ appeals. Additional several entities joined together to file a petition for a Writ of Mandamus seeking the 11th Circuit Federal Court to throw out the flawed FEMA list altogether, but the court denied this petition.

The U.S. Fish and Wildlife Service (FWS) has recently filed an amended biological opinion with Reasonable Prudent Alternatives. As noted below, the new list of parcels was to be filed by October 6, 2006. In summary, the new RPA’s put “teeth” into the process of reviewing building permits for properties contained on the new habitat list by requiring local communities to establish and enforce the processes set forth in the RPA’s or run the risk of losing eligibility for participation in the National Flood Insurance Program. If communities participating in the National Flood Insurance Program fail to comply with the procedures, FEMA will place them on probation and may ultimately deny them further participation in the program.

The RPA’s provide, in part, FEMA will require participating communities to establish written procedures for referring floodplain development/building permit applicants to the Service for review and basically be responsible for ensuring the permit applicant complies with any requirements the services impose on the applicant. Further, FEMA will meet with participating communities every six months and evaluate the administrative records of the participating communities to ensure compliance with the required procedures. Again, failure to comply with the RPA’s will constitute a substantive program deficiency which could result in the community being placed on probation, being suspended from the program or indefinitely being denied future participation in the program.

These guidelines are currently under review by the Plaintiffs in the 15-year old lawsuit to determine if they are acceptable to them for future use. If they are and the judge agrees, there may be a resolution of many issues affecting the properties. If the guidelines are unacceptable, status quo will remain and the only current way to get an individual property off of the list is by inspection. If denied through the inspection process, an individual property owner may have only two choices: to wait to see if further guidelines or ultimate court decisions are favorable or, take an individual lawsuit against the appropriate parties, which may or may not be accepted by the Court.

As noted above, FWS had only until October 6, 2006, to file an amended suitable habitat list of properties. FWS and FEMA have until November 10, 2006, to file their respective administrative records; i.e., positions pertaining to the new biological opinion and amended suitable habitat list. The Environmentalists (Plaintiffs) and the Government (Defendants) will file a proposed briefing schedule or a joint motion for a consent final judgment on or before November 20, 2006.