Editorial | Time to move on
The city of Cape Coral’s legal wrangle to recoup what could be more than $2 million in fees from “the three fishermen” who challenged the city’s effort to remove the Chiquita Lock came to naught this week.
The First District Court of Appeals found that the city’s legal team failed raise the issue of reimbursement at the proper time and that the state’s Department of Administration Hearings did not have jurisdiction to address the city’s fee motion belatedly.
“…Bottom line, the City as the movant was responsible for its own fee motion, but let it fall between the procedural cracks. There is no do-over. QUASHED,” the three-judge panel’s opinion states.
It’s a victory, but not a victory-in-hand for the three residents, at least not yet.
State law provides for a 15-day window from the date of the opinion for post-opinion motions, including a request for a new hearing or a hearing before the full Court of Appeal.
City officials said Wednesday the city is weighing its options.
Our opinion?
It’s time to let the three fishermen — Cape residents Daniel Carney, James Collier and Kevin Sparks — off the hook.
First, for the city to be successful in its bid to recover its legal expenses, it must prove that the unsuccessful second challenge of the city efforts to remove the water control structure in the South Spreader was frivolous or filed with malicious intent.
It was not.
The challenge, like the first one the city lost, was filed because the residents, and groups like the Calusa Waterkeeper and the Sanibel-Captiva Conservation Foundation, were concerned that the lock’s removal would affect water quality in the Caloosahatchee, a protected water body.
Water quality advocates continued to have concerns the second time around although the city added an enhanced mitigation plan and so again challenged the proposal.
In its second effort, the city did two things:
It hired new outside counsel.
And it announced what the opposition took as a threat.
The city said it would seek legal fees if the challenge failed, which the environmental non-profits said forced them to withdraw because the city’s threat to recoup its escalating legal fees made the potential financial risk too burdensome.
The Calusa Waterkeeper and the Sanibel-Captiva Conservation Foundation both re-affirmed, though, their opposition to the removal of the water control device intended to prevent pollution from entering state waters.
Two things:
First, given the definitive opinion by the First District Court of Appeal’s judicial panel, we predict a bid for rehearing, or a new hearing, will fail at the starting point.
If the city somehow gets another bite?
It will not be able to prove that the challenge was either frivolous or filed with malicious intent.
Because it was not.
The standing challengers were three unflinching, taxpaying water quality advocates doing what they have the right to do: Challenge the actions of their local government.
Second, the city’s effort to recoup the still-escalating fees is a paper chase.
Literally
The three fishermen don’t have $2 million or whatever amount the city thinks it can extract via settlement.
Yet the idea of spending MORE on legal fees is somehow an option?
Please.
It’s time to move on.
We urge council take a page from the judicial opinion it has in hand — quash any continued legal action where it stands.
Breeze editorial