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Decision favors Tribe in Hendry County suit

The latest chapter of a three-year legal battle that held Seminole history, culture and tradition at risk ended Sept. 25 with a judgment in favor of the Seminole Tribe of Florida.

The news spread quickly via emails, texts and Facebook through the next day when the judgment went public – appropriately on Indian Day while Tribal members, employees and friends gathered throughout reservations for various holiday celebrations.

“It was the best Indian Day I ever had,” said Big Cypress Councilman Mondo Tiger during a recent community meeting.

The case against Hendry County, McDaniel Reserve Realty Holdings LLC and Florida Power & Light (FPL) stemmed from a 2011 Hendry County ordinance that effectively allowed the construction of a solar and gas-powered electrical generation plant on 3,127 acres next door to Big Cypress Reservation. The property, owned by FPL, was rezoned by the ordinance from agricultural to planned unit development (PUD).

Judge Donald Mason, of the 20th Judicial Circuit, ruled in the 32-page decision that Hendry County could not enforce the changes. In fact, Mason decreed the zoning change “inconsistent with the Hendry County Comprehensive (Plan) and, therefore, null and void.”

In a written statement, the Tribe’s legal team, led by Andrew Baumann of Lewis, Longman & Walker, called the decision a “victory.”

“The court’s order prevents FPL from moving forward with the power plant. This victory is critically important to preserving the Seminole Tribe’s way of life,” the statement read.

However, lawyers for Hendry County, McDaniel Reserve and FPL filed a notice of appeal to Mason’s decision Oct. 21. Further, at a recent Hendry County Board of County Commissioners meeting, county leaders decided to revisit amending the comprehensive plan in order to address deficiencies that they claim led to Mason’s order.

Tara Duhy, co-counsel for the Tribe’s legal team, said the appeal process and the amendment process will be both long and public.

“The Seminole Tribe will have the opportunity to challenge proposed changes. We have to be vigilant and watch. We will monitor the appeal, but so far so good. Time is on our side,” Duhy said.

Here’s a brief recap of the case so far:

The Tribe filed suit against the defendants in June 2011 charging that the zoning change did not abide by the county’s long-term land use plan which, by law, trumps zoning changes.

Testimony at the trial, under orders by Mason, was limited to arguments concerning whether the zoning change was made in harmony with the county’s comprehensive plan; matters regarding wildlife, wetlands or water were not to be entered.

For Tribal members, the case was less about the interpretation of laws and more about the land, water and wildlife on property contiguous with Tribal land.

The FPL land is less than a mile from the future Ahfachkee High School and is home to several endangered species, including the Florida panther. The land is largely (all but 6 acres) part of the U.S. Fish and Wildlife Service’s Panther Focus Area.

Archaeologists have also documented nearly 30 potentially sensitive sites on the property that include a military trail used during the Seminole Wars that could be entered into the National Register of Historic Places.

Several of FPL’s 10-year plans, submitted in succession to the Florida Public Service Commission, exponentially increased the size and scope of a power production plant in Hendry County. For example, the 2010 plan called for a solar plant on 1,500 acres of land yet to be determined. By 2013, the plan called for a natural gas-fired combustion operation on 3,127 acres – a virtual twin of the largest electrical power plant in the United States – with a potential solar component.

Demonstrations by environmental activists groups and concerned Tribal members preceded the July 14-17 trial.

The Tribe is currently awaiting a decision on a second lawsuit against Hendry County to overturn significant amendments passed in February 2014 to the county comprehensive plan that would rewrite economic development and future land use components. The trial in that case, heard before Judge Suzanne Van Wyk of the state’s Division of Administrative Hearings, was held May 29.

Van Wyk had not made a decision as of press time.

“As long as the Seminole Tribe wants, we will remain vigilant, on our toes and fighting the fight,” Duhy said.

Councilman Tiger said he has confidence that the Tribe and its legal team will win.

“Sure, we might have another fight on our hands, but we’re smart small-town homeboys who pulled in the smart city boys,” Councilman Tiger said.