‘Three fishermen’ ask city to drop efforts to recoup legal fees

Dec 6, 2024 By MEGHAN BRADBURY 6 min read

Pleas from “the three fishermen” continued at two of three city meetings Wednesday with the residents continuing to ask Cape Coral City Council to stop efforts to recoup legal fees wracked up in a lawsuit contesting the removal of the Chiquita Lock.

City Attorney Aleksandr Boksner said that amount on the city side alone is $2 million, or maybe more.

“The lawyers are on the hook as well. It’s not only three of them — five are on the hook,” Boksner said of those from whom the city seeks reimbursement. “These individuals had a Florida licensed attorney that did counsel them. They proceeded forward at their own peril.”

Boksner said under the Florida law there is a fee shifting provision.

“If you bring a matter that is unsupported by the law, we have the ability to move to recoup our attorney fees,” he said, adding that the city is going after the recovery of the expenses that occurred as a result of litigation.

Newly-elected Councilmember Jennifer Nelson-Lastra told the three fishermen — Jim Collier, Kevin Sparks and Dan Carney — that she was learning a lot about what is going on.

“Many people all around the county reached out to me about your efforts. I am working with staff to get as much information as possible,” she said, adding that her greatest concern is that their attorney did not advise them differently. “Give me some time to get up to speed.”

She went on to say that she is over lawsuits.

“What can we do to compromise? There is a number, we kind of know the number. I am over the whole lawsuit thing. What can we do? Anything we can do,” Lastra said.

Council members will receive updates in one-on-ones with city staff, both legal and administrative, and perhaps call a “shade” meeting during which the board can discuss the legal issue privately.

Collier, Sparks and Carney, long-time residents, each spoke during public comment as did supporters of their efforts.

Collier said it is a slap in the face that this sanctions effort is proceeding at all.

He said the city’s lawyers are running the cash register.

“That cash register is still ringing. We say you should stop it cold,” he said.

Carney asked why punish them, holding them accountable for the city’s legal fees over which they have no control.

“Withdraw the efforts to sanction the three fishermen,” he said. “I have spent several years advocating for the environment and protecting the waters of Southwest Florida. I am an avid fisherman. I could not wait to move here from Illinois. However, Cape Coral is gaining a reputation for not being a friendly place to live. Now the city is in the press again in trying to sue the three fishermen for legal fees.”

Sparks said they have already spent many thousands of their own dollars defending themselves and they have not even had a hearing yet.

Boksner said the city did not initiate litigation against the three individuals, or any others. He said the three were the ones who initiated proceedings against the city challenging the environmental permit.

“Their conduct by initiating that process forced us to expend resources,” Boksner said.

He said the city put them on notice, contending they had no legitimate basis in the law, or facts, surrounding their proceedings. Although several parties to the challenge dropped out after being informed the city would seek to recoup its fees, Boksner said the three residents proceeded.

“They caused this. We are entitled to recoup our fees. We did not initiate the proceeding; we responded to what they were doing. They did not have legal basis, but they moved forward and did so at their own peril,” he said.

Boksner said City Manager Mike Ilczyszyn extended efforts to end the process to avoid the expenses the city had to incur.

“I had a legal obligation to ensure that we get that environmental permit for the removal of the lock,” he said.

Ilczyszyn said prior to the hearings beginning, he had asked the legal team the city hired if it would be proper to try to reach some type of settlement before spending millions of dollars in fees. He said he made phone calls and attended meetings and advised them that he had up to $100,000 at his discretion to do a joint project together of their choosing to further benefit the environment. His efforts were turned down by all of them, he said.

The parties that challenged the removal of the lock were successful in their first attempt with the city losing that case.

The city then resubmitted the permit a second time and successfully staved off this subsequent challenge, which the three fisherman and their attorney — who was denied permission to discuss the legal aspects of the case at Wednesday’s meeting — adamantly contend to not meet statutory standards for any recoupment of legal fees by the city.

The residents contend the reason behind the recoupment effort is to dissuade residents and organizations from challenging city actions in the future.

City officials say the cases are different as its permit submission was different.

“This permit was not the same 2020 boat lock removal permit. The 2024 permit was completely different,” Ilczyszyn said of the South Spreader Waterway Improvement Project, which involves many things that encompasses the entire water system.

The permit includes such aspects as harvesting aquatic vegetation to remove nutrient loading before it moves into the weir behind the lock, putting in oyster fish havens to increase filtration, replacing stormwater inlets with a higher system, a joint scientific study with Florida Fish & Wildlife Commission for the small tooth sawfish and planting 3,000 mangroves. Ilczyszyn said the city also worked with the marina behind the lock and worked out a side agreement for two docks that may be an issue, as well as providing further treatment of the water near the Rotary Dog Park, so dog feces bacteria does not load off into the environment.

“On top of that was removing the lock. We had received multiple letters from FWC,” he said of the manatees in the canal system around the lock.

FWC would remove the deceased manatees and do a study, which revealed their bones and organs were crushed from the lock.

“That is where the lock went into being removed,” Ilczyszyn said.

To reach MEGHAN BRADBURY, please email news@breezenewspapers.com