             Case: 10-14271   Date Filed: 05/15/2013   Page: 1 of 52


                                                                       [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 10-14271
                         ________________________

                     D.C. Docket No. 1:08-cv-23001-KMM

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,
a federally-recognized Indian Tribe,

                                                 Plaintiff - Appellant,

                                    versus

UNITED STATES OF AMERICA,
U.S. ARMY CORPS OF ENGINEERS,
SECRETARY OF THE ARMY,
in his official capacity,
LT. GENERAL ROBERT VAN ANTWERP,
Chief of Engineers, U.S. Army Corps of Engineers,
in his official capacity,
BG. GENERAL JOSEPH SCHROEDEL,
Division Engineers,
in his official capacity, et al.,

                                                 Defendants - Appellees.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                                (May 15, 2013)
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Before TJOFLAT and MARTIN, Circuit Judges, and DAWSON, ∗ District Judge.

TJOFLAT, Circuit Judge:

       Since 1995, the Miccosukee Tribe of Indians of Florida (“Tribe” or

“Miccosukee tribe”) has had a running battle with the federal government over the

government’s management of the Central and Southern Florida Project for Flood

Control (“C&SF Project”) in the Everglades. This case is the most recent chapter. 1

The gist of the four-count complaint the Tribe filed in this case is that the project

diverts excessive flood waters over tribal lands—in part to protect other land

owners whose properties are located within the project. The District Court

dismissed three of the complaint’s counts for failure to state a claim for relief and

the fourth on summary judgment. The Tribe appeals these decisions. We affirm.

       To place the Tribe’s claims in full context, we describe the genesis of the

C&SF Project, the nature of the Tribe’s rights of occupancy in the Everglades, and

the manner in which the government’s management of the project affects the

Tribe’s rights.

                                               I.

       ∗
        The Honorable Robert T. Dawson, District Judge, United States District Court for the
Western District of Arkansas, sitting by designation.
       1
         Miccosukee Tribe of Indians of Fla. v. United States, 163 F.3d 1359 (11th Cir. 1998)
(unpublished table decision); Miccosukee Tribe v. United States, 103 F. App'x 666 (11th Cir.
2004) (unpublished table decision); Miccosukee Tribe of Indians of Fla. v. United States, 509 F.
Supp. 2d 1288 (S.D. Fla. 2007); Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d
1257 (11th Cir. 2009); Miccosukee Tribe of Indians of Fla. v. U.S. Army Corps of Engineers,
619 F.3d 1289 (11th Cir. 2010).
                                               2
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      The unique ecology of the Everglades is at the heart of the events

surrounding this case. Beginning at Lake Okeechobee and running to the southern

tip of Florida at Florida Bay, the Everglades is “not quite land and not quite water,

but a soggy confusion of the two.” Michael Grunwald, The Swamp: The

Everglades, Florida, and the Politics of Paradise 9 (2006). The natural terrain of

the Everglades slopes southward in a “vast sheet of shallow water spread across a

seemingly infinite prairie of serrated sawgrass.” Id. Aside from an occasional

island of trees, it consists entirely of water, grass, wildflowers, and lily pads.

Much of the water in the Everglades derives from Lake Okeechobee. The lake

does not have a traditional outlet, such as a river, and overflows frequently from

summer storms. As a result, the waters flood across Florida’s southern terrain in

an expansive sheet to form the Everglades.

      Through the mid-nineteenth century, the Everglades was virtually

uninhabited and unused because of its surplus water and sodden topography. In

1848, Congress proposed to drain the overflowed lands in southern Florida to

promote agricultural interests in the state. Id. at 64-67. It eventually passed the

Swamp and Overflowed Lands Act of 1850, which conveyed the Everglades and

surrounding overflowed areas to the State of Florida for development. 9 Stat. 519,

520 (1850). It took until the early 1900s for development in the Everglades to

finally take shape. By 1926, six canals had been constructed from Lake

                                            3
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Okeechobee, as well as a dike that ran along the southern end of the lake.

Grunwald, supra, at 106. Spurred by the promise of a controlled Everglades,

people began to move to South Florida coastal communities, including Miami, in

large numbers. Id. at 172.

       But the Everglades was not yet tamed. Extreme drought, followed by

devastating floods in 1926, 1928, and 1947, revealed that the challenges of water

management in the Everglades were too complex for state and local agencies to

address alone. Record, no. 128-5, at 14. The system of canals, levees, locks, and

dams created by the State of Florida were simply not up to the task of adequately

protecting against future disaster.

       The federal government intervened. 2 Through the Flood Control Act of

1948, Congress enlisted the United States Army Corps of Engineers (“Corps”) to

partner with state and local agencies in Florida to implement the C&SF Project. 3

The project is an elaborate network of water control structures spanning thousands


       2
           Congress’s authority to exercise power over the waters of the Everglades is found in
the Commerce Clause. U.S. Const. art. I, § 8; see Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 193, 6
L. Ed. 23 (1824) (holding that Congress has the authority under the Commerce Clause to
regulate navigable waters); Kaiser Aetna v. United States, 444 U.S. 164, 174, 100 S. Ct. 383,
389–90, 62 L. Ed. 2d 332 (1979) (“[C]ongressional authority over the waters of this Nation does
not depend on a stream’s ‘navigability.’ [Congress’s power is] best understood when viewed in
terms of more traditional Commerce Clause analysis than by reference to whether the stream in
fact is capable of supporting navigation or may be characterized as ‘navigable water of the
United States.’”).
       3
         Pub. L. No. 80-858, 62 Stat. 1171, 1176 (1948); see Flood Control Act of 1954, Pub. L.
No. 83-780, 68 Stat. 1256 (1954) (renewing and extending the project); Flood Control Act of
1968, Pub. L. No. 90-483, 82 Stat. 731 (1968) (same).
                                              4
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of miles, including canals, levees, pumping stations, gates, and dams. At its

inception, the C&SF Project serviced two constituencies: the agricultural areas

immediately south of Lake Okeechobee and the residential and privately-owned

areas east of the Everglades. Later, Congress dedicated the C&SF Project to a

third constituency, Everglades National Park, to preserve the Park’s ecosystem and

protect its endangered species. Currently, the C&SF Project encompasses two

primary objectives: preserving the Everglades and providing water supply and

flood protection to South Florida. Miccosukee Tribe of Indians of Fla. v. United

States, 980 F. Supp. 448, 454 (S.D. Fla. 1997).

      The operational area of the C&SF Project is massive, comprising 16,000

square miles. The project stretches from the Kissimmee River Basin, just south of

Orlando, to the southern tip of Florida, at Everglades National Park. To aid in

administering this vast system, the Corps has divided the Everglades into three

areas: the Everglades Agricultural Area, the Water Conservation Area, and the

Everglades National Park. These areas are contiguous and follow one after

another, beginning at Lake Okeechobee and proceeding southward.

      The northernmost area is called the Everglades Agricultural Area. As the

name suggests, it is used for farming and other agricultural purposes. With the

Okeechobee Lake immediately to its north, the Everglades Agricultural Area

begins along the south and southwest borders of the lake. The area is about the

                                         5
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size of Rhode Island and is surrounded on each of its sides by a canal. It also has

four canals running south and southwest through its center. Prior to the C&SF

Project, the land was commercially useless. With the help of the project’s canals,

water gates, and pump systems, the land is kept drained and cultivable.

      The second area is called the Water Conservation Area (“WCA”), a grassy

expanse to the south and east of the Everglades Agricultural Area consisting

mostly of marshland. The WCA is composed of three reservoirs: WCA 1, WCA 2,

and WCA 3. These reservoirs are interconnected by gate structures and channels

that link to the water control systems in the Everglades Agricultural Area, such that

water flows from the Everglades Agricultural Area into WCA 1, from WCA 1 into

WCA 2, and from WCA 2 into WCA 3. The depth of the WCA marshland

fluctuates based on whether the Corps is storing water in the WCA reservoirs or

allowing water to flow south into Everglades National Park. Altogether the WCAs

cover 1,350 square miles across Dade, Broward, and Palm Beach counties.

      Immediately to the south of the WCA lies the third area of the C&SF

Project, Everglades National Park. The park is home to twenty-three endangered

or threatened species. According to the Everglades National Park Act of 1934, the

park must be “permanently reserved as a wilderness, and no development of the

project or plan for the entertainment of visitors shall be undertaken which will

interfere with the preservation of the unique flora and fauna and the essential

                                          6
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primitive natural conditions now prevailing in this area.” Pub. L. No. 73-267, § 4,

48 Stat. 816, 817. Using the gates and pumps in the canals to the north, the Corps

is able to maintain and regulate the ecosystem within the park by controlling how

much water enters it and from what locations.

      The WCA reservoirs are the lynchpin of the Corps’s water management

system. They function as the water depository for the entire C&SF Project. By

manipulating the water levels in the reservoirs, the Corps can regulate the

hydrologic conditions in all three sections of the Everglades. Operations in the

WCA, therefore, are critical to providing water to Everglades National Park,

irrigating agricultural areas during times of drought, absorbing water from farms

and cities during storms, and recharging South Florida’s aquifers. Grunwald,

supra, at 222-23.

      This appeal concerns the canal gates at the south end of WCA 3 and the

environmental factors that have influenced their operation. WCA 3 is split into

two subsections, WCA 3A and WCA 3B. They are separated by a pair of canals,

L-67A and L-67C, that run south from WCA 3 into Everglades National Park.

WCA 3A comprises nearly all of WCA 3, while WCA 3B consists of only a small

part of the southeast corner of the reservoir. Inside the canal that forms the

southern border of WCA 3A is a series of gates. From west to east, they are: S-

12A, S-12B, S-12C, and S-12D (collectively, the “S-12 gates”). The S-12 gates

                                          7
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control the water flow from WCA 3A into the western portion of Everglades

National Park. Record, no. 128-5, at 16. The Corps takes into account a variety of

considerations when determining how best to manage water flow throughout the

Everglades. These considerations influence decisions about the water levels in the

WCA reservoirs and when the S-12 gates should be opened and closed. This suit

raises questions about the propriety of the Corps’s water management decisions

regarding the operation of the S-12 gates and the nature and source of that

authority.

                                           A.

      The C&SF Project established a partnership between the United States and

the State of Florida. The United States agreed to furnish money, expertise,

materials, and personnel to assist in the construction and operation of a

comprehensive flood control system within Florida. The State of Florida in turn

agreed to provide the United States with

      all lands, easements, and rights-of-way; make a cash contribution of
      15 percent of the estimated construction cost for each part of the work
      prior to its initiation . . . ; [] furnish assurances satisfactory to the
      Secretary of the Army that [the State of Florida] will hold and save
      the United States free from damages due to the construction and
      operation of the works[; and] maintain and operate all the works after
      completion in accordance with regulations prescribed by the Secretary
      of the Army, except [among other areas] the main spillways of the
      conservation areas [which will remain under control of the Corps].




                                           8
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Comprehensive Report on Central and Southern Florida for Flood Control and

Other Purposes, H.R. Doc. No. 80-643, 80th Cong., 2d Sess., at 5 (1948).

       In 1949, the Florida Legislature accepted this proposal and created the

Central and Southern Florida Flood Control District by special act to serve as the

local sponsor for the C&SF Project.4 The District was later renamed the South

Florida Water Management District (“SFWMD”). 5 The SFWMD is authorized to

facilitate the implementation of the C&SF Project, which includes (1) acquiring fee

title or easements by eminent domain for C&SF Project initiatives, (2) acting as

local sponsor and liaison for the Corps, and (3) operating and maintaining various

sections of the C&SF Project pursuant to regulations issued by the Corps. Fla.

Stat. § 373.1501.

       Though the SFWMD currently has a substantial operational role in the

C&SF Project,6 during the C&SF Project’s earliest stages, its role primarily

involved (1) obtaining easements on various lands within the Everglades on behalf


       4
          See Fla. Stat. § 373.1501 (originally enacted as Law of June 10, 1949, ch. 25270, § 2,
1949 Fla. Laws (repealed 1972)); Cent. and S. Fla. Flood Control Dist. v. Wye River Farms, Inc.,
297 So.2d 323, 329 (Fla. Dist. Ct. App. 1974) (describing the authority granted by the Florida
legislature to the Central and Southern Florida Flood Control District as informed by House
Document 643).
       5
         The SFWMD has jurisdiction over sixteen counties, encompassing Broward, Collier,
Lee, Charlotte, Hendry, Highlands, Glades, Martin, Miami-Dade, Monroe, Okeechobee, Orange,
Osceola, Palm Beach, Polk, and St. Lucie counties. The District is directed by a nine-member
governing board, which sets the agency’s policies. Governing board members are appointed by
the Governor and confirmed by the Florida Senate to serve four-year terms. Fla. Stat. § 373.073.
       6
           See infra note 7.
                                               9
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of the State of Florida and (2) granting the Corps permission to construct water

structures on the lands burdened by these easements. As a Florida District Court of

Appeal described this process,

       [the SWFMD] is the local agency or instrumentality of the State
       charged with the duty of acquiring the lands necessary for the project.
       Upon acquisition, by negotiation and purchase or condemnation, [the
       SWFMD] certifies to the United States Army Corps of Engineers that
       it has so acquired the necessary title and that the Corps of Engineers
       may proceed with its obligation of construction of the project. . . .
       Upon completion of the construction, the Corps of Engineers turns the
       project back to [the SWFMD] for continued operation and
       maintenance on behalf of the State of Florida.

Cent. and S. Fla. Flood Control Dist. v. Wye River Farms, Inc., 297 So.2d 323,

329-30 (Fla. Dist. Ct. App. 1974).

       Though the Corps and the SFWMD work together to operate and maintain

the water management structures created under the C&SF Project, the Corps

exercises operational control over critical points within the system. The Corps

directly manages Lake Okeechobee, its major outlets, and the main spillways for

the WCA reservoirs, including the S-12 gates. The SFWMD operates the

remainder of the structures in accordance with regulations issued by the Corps. 7


       7
            See Appellee Mem. in Resp. to Ct.’s Letter of August 16, 2012 at 14, ECF No. 84
(Circuit Docket) (“The project features to be operated and maintained by the Corps of Engineers
are . . . the main spillways of the water conservation areas [including the S-12 Gates]. . . . The
[SFWMD] is responsible for operation and maintenance of all project facilities not operated and
maintained by the Corps of Engineers . . . .”). The SFWMD’s operations and maintenance staff
operate this portion of the C&SF Project’s canals, levees, pumps, gates, and culverts from its
West Palm Beach headquarters and eight field stations. The SFWMD coordinates these water
control operations on a daily basis with the Corps. Record, no. 129-5, at 6.
                                                10
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Despite the Corps exercising control over these systems, either directly or by

issuing regulations to the SFWMD, the project is a function of state authorization.

The federal government’s initiation of the project was premised on the State of

Florida’s permission; all title to the easements and rights-of-way upon which the

C&SF Project structures operate belong to the State of Florida; and the Corps

administers the C&SF Project pursuant to an agreement between the United States

and the State of Florida. That being said, the Corps is the principal organization

charged with overseeing the project and maintains the lion’s share of

decisionmaking responsibility. It is to that decisionmaking process that we now

turn.

                                                B.

        Because of the operational complexity and varied purposes of the C&SF

Project, Congress has delegated broad decisionmaking authority to the Corps to




         The SFWMD also provides the Corps with early warnings about potentially hazardous
conditions. It is charged with monitoring groundwater levels, canal levels, and rainfall. If these
conditions indicate a strong likelihood of flooding, the SFWMD will recommend that the Corps
initiate pre-storm operations. The Corps will review the data, advise the Everglades National
Park and the Fish and Wildlife Service, consult with the Miccosukee tribe, and then make a
decision to alter system-wide operations from those established in the water regulation schedule.
Record, no. 129-7, at 14.
         The SFWMD is also in charge of overseeing that the C&SF Project is as consistent with
Florida water regulations as possible. When the SFWMD determines that water quality benefits
may be achieved in the C&SF Project area without significant impact on achieving the project’s
authorized purposes, it may petition the Corps for changes in flood control and navigation
regulations. Record, no. 128-6, at 19.

                                               11
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operate it. 8 Pursuant to this authority, the Corps promulgates water regulation

schedules that set time periods for when certain channels and gates should be

opened or closed. The Corps also sets maximum and minimum ranges for water

levels within various portions of the C&SF Project water system. The Corps

creates these schedules according to the authorized purposes of the C&SF Project. 9

The schedules provide operational guidelines for the Corps and SFWMD staff that

operate the pumps, gates, and other structures that control the inflow and outflow

of water throughout the WCA.

       In accordance with its regulations, the Corps is permitted to deviate from the

water regulation schedules in certain circumstances. For example, if a forest fire

threatens the habitat of an endangered species, such as the Cape Sable seaside

sparrow, the Corps “will coordinate with the [Fish & Wildlife] Service and seek a

deviation from the WCA-3A regulation schedule to ameliorate impacts to the Cape

       8
          See e.g., Comprehensive Everglades Restoration Plan, Pub. L. No. 106-541, Title VI, §
601(c)(1), 114 Stat. 2572, 2683 (2000) (“[T]he Secretary [of the Interior] may implement
modifications to the Central and Southern Florida project that . . . will produce a substantial
benefit to the restoration, preservation and protection of the South Florida ecosystem.”);
Experimental Program of Water Deliveries to Everglades National Park, Pub. L. No. 98-181, §
1302, 97 Stat. 1153, 1292-93 (1983) (“The Secretary of the Army is authorized . . . to modify the
schedule for delivery of water from the central and southern Florida project to the Everglades
National Park.”).
       9
           The authorized purposes for the C&SF Project include: (1) absorbing water for flood
control; (2) maintaining water supplies for agricultural irrigation, municipalities, and industry;
(3) restoring hydrologic conditions in the Everglades National Park; (4) controlling regional
groundwater; (5) ensuring water quality; (6) maintaining fish, wildlife, and marsh vegetation;
and (7) enhancing the availability of recreational areas within the Everglades. Record, no. 128-6,
at 8, 13.

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Sable seaside sparrow habitat, as necessary.” Record, no. 129-8, at 36. The Corps

may also implement changes to the gate schedules if, after consultation with the

Tribe Chairman, the District Commander of the Corps deems a schedule alteration

appropriate to secure the health or safety of the Tribe.10 In addition to these

deviation protocols, the schedules themselves often set ranges—not exact

amounts—for water levels within various C&SF Project basins, reservoirs, and

other structures. The Corps thus has a degree of discretion with which it can adjust

water levels within the ranges provided in the published schedules. 11 These

measures provide the Corps operational flexibility to better respond to adverse

circumstances in case of drought, flooding, or other environmental disaster.

       When setting a water regulation schedule, the Corps is required to abide by

the Endangered Species Act of 1973 (“ESA”), 16 U.S.C. §§ 1531–1544. Under §

7(a) of the ESA, the Corps is required to ensure that its water regulation schedules

       10
         The Corps’s water regulation schedule defines the procedure for making water level
adjustments based on the concerns of the Miccosukee tribe as follows:

       The Chairman of the Miccosukee Tribe . . . will monitor the conditions in WCA-
       3A and other tribal lands and predicted rainfall. If the Tribe determines these
       conditions indicate jeopardy to the health or safety of the Tribe, the Chairman will
       make a recommendation to the Corps to change the operations of the S-12
       structures or other parts of the system. The Corps will review the data and advise
       appropriate agencies of the conditions, and the District Commander will
       personally consult with the Chairman prior to making a decision whether to
       implement changes to the S-12 operations.

Record, no. 129-7, at 14.
       11
         See e.g., Record, no. 129-7, at 11 (describing the ranges for the reservoir designated
“Angel well” as: “[i]f Angel’s well is 5.5-6.0 feet, S-331 avg. daily is between 5.0-4.5 [feet]”).
                                                13
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are “not likely to jeopardize the continued existence of any endangered species.”

Id. § 1536(a)(2). The ESA makes it unlawful for any person—including the

Corps12—to “take” any endangered species of fish or wildlife designated pursuant

to 16 U.S.C. §1534(a)(1). To “take” a species includes to “harm” it. Id. §

1532(19). “Harm” is defined to include “significant habitat modification or

degradation where it actually kills or injures wildlife by significantly impairing

essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R.

§ 17.3(c) (2006).

       To comply with the ESA, the Corps consults with the Fish and Wildlife

Service (“FWS”) to ensure its water schedules are not “likely to jeopardize the

continued existence of any endangered species or threatened species or result in the

destruction or adverse modification” of a habitat designated critical to an

endangered species.13 16 U.S.C. § 1536(a)(2). If the proposed schedule may

adversely modify 14 an endangered species or its habitat, the FWS will prepare a


       12
          “The term ‘person’ means . . . any officer, employee, agent, department, or
instrumentality of the Federal Government [or] any State.” 16 U.S.C. § 1532.
       13
           “Jeopardize the continued existence of means to engage in an action that reasonably
would be expected, directly or indirectly, to reduce appreciably the likelihood of both the
survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or
distribution of that species.” 50 C.F.R. § 402.02 (2009) (emphasis added).
       14
          “[A]dverse modification means a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and recovery of a listed species.
Such alterations include, but are not limited to, alterations adversely modifying any of those
physical or biological features that were the basis for determining the habitat to be critical.” 50
C.F.R. § 402.02 (emphasis added).
                                                 14
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biological opinion discussing whether the retention or release of water ordered by

the schedule will likely jeopardize the species or its habitat, and, if so, whether a

“reasonable and prudent alternative” to the proposed schedule exists. 50 C.F.R. §

402.02. Where the schedule is unlikely to jeopardize an endangered species or its

habitat but might result in some harm, the FWS will issue an “incidental take”

statement. Id. A taking that is executed in compliance with an “incidental take”

statement does not violate the ESA. 16 U.S.C. § 1536.

      The Cape Sable seaside sparrow was listed as an endangered species in

1967. It lives in and around Everglades National Park. We have encountered this

frail bird before and have had the opportunity to describe its plight.

      The fragility of the sparrow as a species stems from two of its
      attributes. It has a short lifespan, and its nesting success depends on
      specific kinds of vegetation and water levels. If it is to survive, this
      species must have favorable breeding conditions without long periods
      of interruption. The sparrow exists in six subpopulations, all of which
      live in or around the Everglades. One of them is located apart from
      the others, which might provide the species with a measure of
      protection against extinction if some calamity were to wipe out the
      other five subpopulations. This important outlying group, called
      “Subpopulation A,” lives directly south of the S-12 gates . . . and it
      decreased from more than 2,600 birds in 1992 to 112 birds in 2006.
      The Corps’ method of releasing water into the Everglades, specifically
      at its S-12 gates, has been blamed for that decline.

Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1262 (11th

Cir. 2009); see Record, no. 129-8, at 22 (noting that gate S-12A’s water regulation




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schedule “probably has the greatest direct influence” on Subpopulation A’s

breeding).

       The sparrow’s habitat has been threatened by the Corps’s water management

activities for some time. Throughout the 1970s, Congress authorized minimum

water delivery schedules for various Everglades basins and reservoirs. These

minimum allocations, however, were frequently exceeded due to supplemental

water discharges ordered by the Corps, which were done to ensure that water levels

in the Everglades Agricultural Area were sufficient to meet water supply and flood

control demands. Record, no. 128-5, at 15. These additional discharges had a

dramatic effect on the surrounding environment. In particular, water levels became

disproportionately high in the western half of Everglades National Park than in the

eastern half. Unsurprisingly, this phenomenon caused the western portion of the

park—where Subpopulation A is located—to become unnaturally wet. Record, no.

129-8, at 2. The park suffered severe ecological consequences as a result,

including a decline in the Cape Sable seaside sparrow population. Record, no.

128-5, at 15.

       Recognizing this dilemma, Congress in 1983 authorized the Experimental

Program of Water Deliveries to the Everglades National Park. 15 This experimental


       15
          “The Secretary of the Army is authorized, for a period of two years beginning with
enactment of this Act with the concurrence of the Director of the National Park Service and the
South Florida Water Management District, to modify the schedule for delivery of water from the
                                              16
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program charged the Corps, the SFWMD, and the National Park Service to

experiment with different methods of delivering water to the park in an effort to

restructure the Corps’s water management system and restore wildlife. 16

       Under the experimental program, the agencies instituted a series of tests,

each lasting several years, designed to recalibrate the gate and canal systems to

approximate the naturally occurring water flows that existed prior to manmade

development in the Everglades. Each test involved releasing varying amounts of

water from various gates. In 1995, the Corps introduced “Test 7,” an experiment

involving the release of large amounts of water through the S-12 gates, including

the S-12A gate, which is located immediately north of the Subpopulation A

habitat. Record, no. 129-1, at 10, 16–17.

       Over the course of these experiments, the FWS consulted with the Corps

regarding the requirements of the ESA, with particular focus on each experiment’s

impact on the Cape Sable seaside sparrow. The FWS surveyed the ecological


central and southern Florida project to the Everglades National Park . . . and to conduct an
experimental program for the delivery of water to the Everglades National Park from such
project for the purpose of determining an improved schedule for such delivery.” Supplemental
Appropriations Act of 1984, Pub. L. No. 98-181, § 1302, 97 Stat. 1153, 1292-93 (1983).
       16
           In 1989, Congress passed the Everglades National Park Protection and Expansion Act,
which extended the time period permitted for the experimental program—the experiments were
to be completed “as promptly as practicable.” Pub. L. 101-229, § 104(a)(2), 103 Stat. 1946,
1949 (1989). The Act also authorized the Modified Water Deliveries Project, which called for
the construction of new modifications to the C&SF Project north of Everglades National Park.
Id. § 104(a)(1). These modifications would be based on the results of the experimental program
and would be designed “to improve water deliveries into the park and . . . to restore the natural
hydrological conditions within the park.” Id. § 104(a)(1–2).
                                               17
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impact of Test 7 and issued two biological opinions, one in October 1995 and a

final opinion in February 1999. Both opinions concluded that continued operation

of Test 7 would jeopardize the existence of the sparrow and adversely modify its

habitat. Record, no. 129-8, at 3.

       In December 1999, in response to the FWS opinions, the Corps instituted the

Interim Structural and Operational Plan (“ISOP”). The ISOP adopted several FWS

recommendations intended to forestall additional harm to the sparrow until the

Modified Water Deliveries Project 17 was complete. Under the ISOP, the Corps

made temporary structural modifications to the C&SF Project’s water delivery

system in an attempt to reduce high water levels in the sparrow’s habitat. The

Corps also made water schedule changes, including closing the S-12 gates during

the sparrow breeding season. These modifications enabled greater control of water

levels in the Subpopulation A habitat, which created more favorable nesting

conditions for the sparrow. Record, no. 129-4, at 3.

       In 2002, the Corps replaced the ISOP with the Interim Operational Plan for

the Protection of the Cape Sable Seaside Sparrow (“IOP”), a longer term solution

to replenish the Sparrow population.18 The IOP is designed specifically to

accommodate sparrow breeding patterns. To increase the population, the sparrow

       17
            See supra note 16.
       18
        The IOP is also a temporary plan that will be followed until completion and
implementation of the Modified Water Deliveries Project. See supra note 16.
                                             18
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must have at least two nesting cycles per year. A nesting cycle only will occur if

the sparrow’s habitat remains continuously “dry” (water levels in the nesting

habitat must be below six feet) for approximately forty days. Record, no. 129-8, at

22. To maximize the number of continuously dry periods (in the hopes of

achieving at least two, but as many as four, nesting cycles), the IOP requires that

the S-12A gate be closed on November 1 and opened on July 15. Record, no. 129-

7, at 10. This November to July period approximates the Everglades dry season.

The Everglades rainy season lasts from July to October. Id. at 20. The heavy

rainfall in this period substantially increases the water level in the Sparrow’s

habitat, which prevents nesting cycles from occurring. Because there is no risk of

disrupting a nesting cycle during the rainy season, the S-12A gate is opened during

this period to relieve the reservoirs of water buildup. When this case was filed in

the District Court, the Corps was operating under the IOP.

                                          C.

      In addition to being the subject of large-scale Corps operations, the

Everglades is home to the Miccosukee Tribe of Indians of Florida. The Tribe

holds rights to use and enjoy certain portions of the Everglades. This appeal

involves an alleged clash between the Tribe’s rights to use and enjoy these lands

and the Corps’s operational duties.




                                          19
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       The Tribe is a federally recognized Indian tribe, as defined under the Indian

Reorganization Act of 1934. 19 It maintains various land rights in the Everglades.

The lands that concern this appeal are (1) land held in trust by the federal

government on behalf of the Tribe (“Reservation Land”) and (2) land provided to

the Tribe under a perpetual lease from the State of Florida (“Leased Land”). All of

the Leased Land and a portion of the Reservation Land are located within WCA

3A.

                                                1.

       Indian peoples occupied Florida long before it became a United States

territory. By the time the United States purchased Florida from Spain in 1821, 20

the Seminole tribe 21 was the dominant aboriginal culture in Florida. United States

v. Seminole Indians of the State of Florida, 180 Ct. Cl. 375, 379, 383 (1967).

When the United States took control of the Florida territories, the government

moved quickly to reach a formal understanding with the Seminoles and resolve any

potential land claims held by the tribe. In 1823, the Seminoles and the United

States signed the Treaty of Camp Moultrie, which established a reservation in

       19
            See Indian Reorganization Act, Pub. L. No. 73-383, 48 Stat. 984 (1934).
       20
          See Treaty of Amity, Settlement and Limits between the United States of America and
His Catholic Majesty, 8 Stat. 252, 254, 260 (1819).
       21
          The Miccosukee tribe was originally part of the Seminole tribe. The Miccosukee split
from the Seminoles due to disagreements over dealings with the United States government. The
New History of Florida 204 (Michael Gannon ed., 1996).

                                                20
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central Florida for the Seminoles. In exchange, the Seminoles agreed to relinquish

all claim and title they had over the territory of Florida. 22

       After a shift in United States policy and the passage of the Indian Removal

Act, 23 in 1832 the Seminoles and the United States signed the Treaty of Payne’s

Landing. Under the treaty, the Seminoles agreed to relinquish to the United States

all claims to the lands they were currently occupying (including the reservation

established under the Treaty of Camp Moultrie) and move west of the Mississippi

River. In exchange, the United States provided monetary compensation and

various services and provisions. 24

       The Treaty of Payne’s Landing, however, was not fully successful in

bringing about peace between the two nations. In 1835, a small group of

Seminoles who were opposed to the treaty’s relocation plan began to attack federal

troops. Hostilities ensued from 1835 to 1842 in what is known as the Second

Seminole War. See Seminole Indians of the State of Fla. v. United States, 25 Ind.

Cl. Comm. 25, 26–27 (1971). To bring about a resolution to the conflict, in 1839

the Secretary of War issued orders to General Alexander Macomb to reach a

temporary truce with the warring Seminoles. General Macomb reached an

       22
            Treaty with the Florida Tribes of Indians, Sept. 18, 1823, 7 Stat. 224.
       23
           Indian Removal Act, 4 Stat. 411 (1830) (granting authority to the President to relocate
Indians residing in any state or territory to territory west of the Mississippi River).
       24
            Treaty with The Seminoles, May 9, 1832, 7 Stat. 368.

                                                 21
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armistice (“Macomb Truce”), in which the Seminoles agreed to retire to southern

Florida (“Macomb Area”) until a formal treaty could be reached. 25 President Polk

issued an Executive Order declaring the Macomb Area an Indian territory under

the Trade and Intercourse Act.26 Id. at 30. As time went on, relations in the

Florida territory normalized and peace returned. But the status of the lands

designated in the Macomb Truce remained unresolved. The New History of

Florida 201–203 (Michael Gannon ed., 1996). The Seminoles continued to reside

in the area under the color of the Macomb Truce, but without any definitive title or

right.

                                               2.

         Meanwhile, Florida became a state in 1845. By this time, the United States

held title to the territory comprising the Everglades, which had been secured

through the purchase of the Florida territory from Spain in 1821 and the treaties of

Payne’s Landing and Camp Moultrie. In 1850, Congress transferred twenty-

         25
           The temporary zone contemplated by the armistice approximated five million acres,
Seminole Indians of the State of Fla. v. United States, 25 Ind. Cl. Comm. 25, 32 (1971); General
Macomb’s orders allotted the Seminoles “that portion of the [Florida] Peninsula South of 27°
30m latitude, until they can be finally removed according to the terms of the treaty of Paynes
Landing,” id. at 28 (internal quotation marks and citation omitted).
         26
           Adjudication before the Indian Claims Commission has indicated that the designation
of the Macomb Area as Indian territory by President Polk’s Executive Order did not convey title
of the land to the Seminoles; the designation merely rendered invalid any attempt to convey that
land by the Seminoles to others, absent congressional approval. Seminole Indians, 25 Ind. Cl.
Comm. at 30.
        The Trade and Intercourse Act provides that no purchase, grant, lease, or other
conveyance of lands from any Indian nation or tribe of Indians shall be valid unless made by
treaty or convention entered into pursuant to the Constitution. 25 U.S.C. § 177.
                                               22
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million acres of land, including the Everglades, to the State of Florida to oversee

development of the area. 27

       In 1891, the State of Florida began planning to establish a permanent

reservation for the Seminoles. Id. at 203. The Florida legislature established a

reservation in 1917, designating 99,200 acres of Monroe County to be held in trust

for the perpetual use and benefit of the Seminole Indians of Florida. Fla. Stat. §

285.01.

       The placement of the Seminole reservation was short-lived. Growing

federal interest in the Everglades led Congress to create the Everglades National

Park in 1934. 28 The Seminole reservation was situated within the designated park

area. As a result, the Florida legislature resolved to move the Seminole

reservation; it withdrew the 99,200 acres in Monroe County, Fla. Stat. § 285.06,

and granted 104,800 acres in Broward County as the new site for the Seminole

reservation, Fla. Stat. § 285.03.29 The Broward County reservation included land


       27
            Swamp and Overflowed Lands Act, 9 Stat. 519 (1850).
       28
            Pub. L. No. 73-267, 48 Stat. 816.
       29
            In response to the withdrawal of the Monroe County reservation, the Seminole tribe
brought two claims against the United States before the Indian Claims Commission, alleging (1)
that the Executive Order relating to the Macomb Truce conveyed title to five-million acres of
land in southern Florida to the Seminole tribe and (2) that the federal government violated its
duties to the tribe under the Trade and Intercourse Act, 25 U.S.C. § 177. The Commission found
that the Executive Order did not convey title to the Seminoles and that there was no violation of
the Trade and Intercourse Act for the Monroe County land exchange. The Commission did
conclude, however, that the federal government could be found liable under the Indian Claims
Commission Act on two possible theories: (1) participating in an unconscionable exchange or (2)
                                                23
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that is located within northwest WCA 3A. In 1944, the State of Florida deeded the

original Seminole reservation location—the 99,200 acres in Monroe County—to

the United States, which was incorporated into Everglades National Park.

Seminole Indians, 25 Ind. Cl. Comm. at 34–35 (1971).

       After the substitution of reservation lands, in 1957 the Seminoles became a

federally recognized tribe. Shortly thereafter, the federal government formally

distinguished between the Seminole and Miccosukee tribes—a distinction that had

existed in reality for some time—and granted the Miccosukee tribe federally-

recognized status in 1962. In 1971 the Florida legislature split the Broward

County reservation, granting 76,000 acres for the use and benefit of the

Miccosukee tribe and 28,000 acres to the Seminole tribe. Fla. Stat. §§ 285.17;

285.18. These 76,000 acres constitute the Reservation Land.

                                               3.

       In 1960, the Tribe received an additional interest in the Everglades—what

later would become the Leased Land—from the State of Florida. In 1959, a series

of meetings were held with the governor of Florida and representatives of the

Seminole tribe to commit certain state lands for Indian use. The State of Florida

set aside 143,620 acres of contiguous land for the Seminole tribe, along what is



failing to engage in fair and honorable dealings. Seminole Indians, 25 Ind. Cl. Comm. at 37-38;
see Indian Claims Commission Act, Pub. L. No. 79-726, § 2, 60 Stat. 1049, 1050 (1946).

                                              24
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currently the eastern border of the Reservation Land. This grant, however, only

gave the Seminoles a license to use and enjoy the land—a license that appeared to

be revocable at the state’s discretion. See Indians and License to Use Certain

Lands (AG Op.), Fla. Att’y Gen. Op. 75-68, 11 (1975) (“The license is revocable

in the best interest of the State, does not convey title, but only a right to use and

occupy.” (internal quotation marks omitted)). In addition, the license was subject

to all easements and other rights held by the SFWMD. Id. at 7.

       The legal foundations of the license were uncertain. In addition to the

impermanence of the license, a 1975 opinion by the Florida Attorney General

called into question whether the license was properly granted pursuant to the

language of the license agreement itself. 30 Given that the State of Florida, the

Seminoles, and the Miccosukee tribe had been acting as if the license had been

valid for fifteen years, the Attorney General recommended that negotiations begin

between the State of Florida and the tribes31 to reach a more permanent agreement.

Id. at 17. A series of public hearings was held from 1976 to 1978 to fashion an

agreement in which the State of Florida would hold the licensed lands in trust for

the tribes. Negotiations broke down, however, when the Governor conditioned the


       30
          The language of the agreement calls for the joint approval of four state boards—
approvals that apparently were never received. See Indians and License to Use Certain Lands
(AG Op.), Fla. Att’y Gen. Op. 75-68, 7 (1975).
       31
            By this time, the Miccosukee had been recognized as a distinct tribe.

                                                 25
                Case: 10-14271      Date Filed: 05/15/2013      Page: 26 of 52


agreement on the Miccosukee tribe waiving any outstanding legal claims they may

have had against the State of Florida. See 128 Cong. Rec. S11286 (daily ed. Sept.

10, 1982) (statement of Sen. Lawton Chiles).

       After withdrawing from negotiations and examining their potential legal

claims, the Tribe filed suit in federal court. Miccosukee Tribe of Indians of Fla. v.

Florida, No. 79-253 (S.D. Fla. 1979). The Tribe alleged two claims: (1) the State

of Florida wrongfully flooded the Reservation Land based on illegally granted

easements to various state agencies—including the SFWMD—in violation of the

Trade and Intercourse Act, 25 U.S.C. § 177, 32 and (2) the State of Florida illegally

appropriated lands committed to the Tribe by Executive Order under the Macomb

Truce.

       Settlement negotiations began immediately. Although the Indian Claims

Commission had previously rejected the claim relating to the Macomb Truce

Executive Order in 1971,33 the suit nevertheless threatened to cloud the title over a

great deal of Floridian lands, both publicly and privately owned. See 25 U.S.C. §

1714 (referencing the 1979 suit and finding the pendency of the suit could result in

economic hardship for Florida residents). On April 16, 1982, the Tribe and the


       32
            See supra note 26. An Indian tribe has a cause of action under federal common law to
establish its right to land allegedly conveyed in violation of the Act. See, e.g., Narragansett
Tribe of Indians v. S. R.I. Land Dev. Corp., 418 F. Supp. 798 (D.R.I. 1976).
       33
            See supra note 29.

                                              26
               Case: 10-14271        Date Filed: 05/15/2013       Page: 27 of 52


State of Florida entered into a settlement agreement (“Settlement Agreement”) to

resolve the dispute.

       The Settlement Agreement enumerated a series of obligations for both

parties. Under the agreement, the Tribe agreed to extinguish all right, title,

interest, or claim it may have possessed in any public or private lands or natural

resources in Florida.34 Record, no. 1, at 58-63. In exchange, the State of Florida

agreed to enter into a lease agreement (“Lease Agreement”) that would grant the

Tribe a perpetual leasehold interest to the lands described in the agreement.35 Id. at

63.

       The Settlement Agreement also incorporated all the commitments and

obligations enumerated in the Lease Agreement. The Lease Agreement stated that

it had three purposes: “(1) to preserve the Leased Land in its natural state for the

use and enjoyment of the Miccosukee Tribe and the general public; (2) to preserve

fresh water aquatic life, wildlife, and their habitat; and (3) to assure proper

management of water resources.” Record, no. 1, at 35. It also granted the Tribe a




       34
           In addition to the Leased Land and the Reservation Land, the Tribe retained rights to
certain land interests not relevant here.
       35
           The State of Florida also agreed to (1) construct a road connecting the Tribe’s lands;
(2) pay the Tribe a sum of $975,000; and (3) waive any and all claims for offsets, including tort
and contract claims, which were or could have been asserted by the State of Florida or its
agencies. Record, no. 1, at 63, ¶ 4.
                                                27
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variety of specific rights over the Leased Land, the most important of which was

the right to use and enjoy the Leased Land. 36

       In exchange, the Tribe agreed to various concessions.37 A critical

concession was that the rights granted to the Tribe were not absolute. All rights

granted under the Lease Agreement were subject to the water management

activities of the SFWMD and the Corps as follows:

       [t]he Leased Area has for many years comprised a portion of a large
       reservoir utilized for the flowage and storage of water servicing the
       area of Broward, Dade, Monroe and Collier Counties and designated
       as Water Conservation Area 3 as part of the federally authorized
       project of flood control and water management for central and
       southern Florida. The [Florida Game and Freshwater Fish]
       Commission and the . . . Tribe agree that all of the rights [granted to
       the Tribe in the Lease Agreement] are subject to and shall not
       interfere with the rights, duties and obligations of the SFWMD or the
       [Corps], pursuant to the requirements of the aforesaid federally
       36
           Under the Lease Agreement, the Tribe was also granted (1) the right to hunt and fish
for subsistence purposes; (2) the right to take frogs for consumption as food and for commercial
purposes; (3) the right to engage in traditional subsistence agricultural activities on the Leased
Land; (4) the right to reside in the Leased Land, including the construction of traditional homes;
(5) the right to use the Leased Land for tribal religious purposes; (6) the right to take and use
native materials from the Leased Land for tribal purposes, fabrication into artifacts, utensils,
handicrafts and souvenirs for sale; (7) the right to receive 50% of the net revenue derived from
the exercise of mineral rights in the Leased Land, and the right to require that any exercise of
these rights be performed in accordance with reasonable and acceptable methods which best
protect the natural state and beauty of the Leased Land with least disruption to tribal uses listed
under the Lease Agreement; (8) a guarantee from the State of Florida not to construct additional
revenue-producing facilities within a half mile of the Leased Land without the Tribe’s consent;
and (9) a guarantee to be compensated by the State for any public hunting and fishing that occurs
on the Leased Land. Record, no. 1, at 29, 33-36, ¶¶ 1, 3–4.
       37
           These concessions included: (1) the Florida Game and Freshwater Fish Commission
could continue freshwater aquatic life and wildlife management programs; (2) the public could
enter the Leased Land to engage in non-commercial recreational activities provided they did not
interfere with the rights of the Tribe; and (3) the public could engage in commercial recreational
activities with consent of the Tribe. Id. at 33-36, ¶¶ 3–4.
                                                28
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       authorized project, conveyances, easements, grants, rules, statutes, or
       any other present or future lawful authority to manage, regulate, raise,
       or lower the water levels within the Leased Area or Water
       Conservation Area 3.

Record, no. 1, at 37, ¶ 6.

       For all the rights granted and obligations incurred under the Settlement and

Lease Agreements, the primary concession made by the Tribe was its agreement to

relinquish all land claims in Florida. Because the Lease and Settlement

Agreements would extinguish tribal land claims, they required approval by

Congress before they could become effective. 38 Congress approved the Lease and

Settlement Agreements in the Florida Indian Land Claims Settlement Act of 1982

(“FILCSA”), 25 U.S.C. §§ 1741–1749.

       With regards to Leased Land, the FILCSA did three things. First, the

legislation approved the Lease and Settlement Agreements between the Tribe and

the State of Florida in satisfaction of the Trade and Intercourse Act. Id. §§ 1743–

1744. Second, the legislation extinguished any aboriginal right, title, interest, or



       38
           Congressional approval is required to extinguish title in land held by Indians under the
Trade and Intercourse Act. 25 U.S.C. § 177. Congress passed the first version of the Trade and
Intercourse Act, 1 Stat. 137, in 1790. “The obvious purpose of [the Act] is to prevent unfair,
improvident or improper disposition by Indians of lands owned or possessed by them to other
parties, except the United States, without the consent of Congress, and to enable the
Government, acting as parens patriae for the Indians, to vacate any disposition of their lands
made without its consent.” Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 119,
80 S. Ct. 543, 555, 4 L. Ed. 2d 584 (1960). Congress therefore was required to pass the Florida
Indian Land Claims Settlement Act of 1982 in order to give the Settlement and Lease
Agreements legal effect.
                                                29
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claims to land within the State of Florida held by the Tribe.39 Id. § 1744. Third,

the FILCSA indicated that the Act did not “grant to the Miccosukee Tribe any

greater rights or interests in the leased area other than those expressly set forth in

the Lease Agreement.” Id. § 1746.

       The FILCSA also altered the character of the Reservation Land. It

authorized the Secretary of the Interior to accept the transfer of the Reservation

Land from the State of Florida to the United States to hold in trust for the Tribe.40

Of particular importance, the FILCSA noted that the transfer of the Reservation

Land to the United States rendered that land subject to all rights, easements, and

reservations in favor of the SFWMD, ensuring that the SFWMD, in conjunction

with the Corps, possessed the legal authority to conduct water management

activities within the Reservation Land. 41 Once the FILCSA was passed, the State


       39
           The Tribe’s aboriginal title regarding certain areas of land designated the “excepted
interests” was not affected by the FILCSA. 25 U.S.C. § 1744(b). These lands are not relevant to
the case before us.
       40
           “The Secretary [of the Interior] is authorized and directed to accept the transfer to the
United States, to be held in trust for the use and benefit of the Miccosukee Tribe of Indians of
Florida, of the lands authorized to be conveyed to the Miccosukee Tribe by [Fla. Stat. §
285.061], and the lands described in Dedication Deed No. 23228 from the Trustees of the
Internal Improvement Trust Fund subject to the provisions of [Fla. Stat. § 285.061], and of this
section.” 25 U.S.C. § 1747(a).
       41
            The FILCSA states in pertinent part:

       (c) Transfer of lands as subject to existing leases, etc.; additional water rights
               (1) Any transfer of lands under this section shall be subject to all existing
               leases, easements, and rights-of-way, and all the rights, easements, and
               reservations in favor of the Central and Southern Florida Flood Control
                                                   30
              Case: 10-14271       Date Filed: 05/15/2013       Page: 31 of 52


of Florida deeded to the United States the 76,000 acres comprising the Reservation

Land (“Trustee Deed”). Record, no. 1, at 95. The Trustee Deed set forth that the

United States would hold the Reservation Land in trust for the use and benefit of

the Tribe. It also contained the same rights, easements, and reservations language

in favor of the SFWMD’s water management activities as was enumerated in the

FILCSA. Id. at 96.

       Based on the language concerning water management activities on the

Leased Land and the Reservation Land in the FILCSA, the Lease Agreement, and

the Trustee Deed, the Corps and the SFWMD continue to operate the C&SF

Project within WCA 3.

                                       *       *      *

       In summary, since 1948, the federal government has been operating water

control structures under the C&SF Project. The project was originally intended to

benefit two constituencies: the agricultural areas immediately south of Lake

Okeechobee and the residential areas along South Florida’s eastern coast. The

project ensures that these areas have adequate drought and flood protection. If

              District [now the SFWMD] and shall not increase, diminish, modify, or
              otherwise affect the extent to which chapter 373, Florida Statutes, and its
              successor laws, have force and effect within such lands.
              (2) Any transfer of lands under this section shall not confer upon the
              Miccosukee Tribe, or upon the lands within the reservation, any additional
              water rights.

25 U.S.C. § 1747(c).

                                              31
             Case: 10-14271     Date Filed: 05/15/2013   Page: 32 of 52


water levels in these areas are too high, the Corps opens the canal gates and

transfers water from the agricultural and residential areas into the WCA reservoirs.

      In 1973—with the passage of the Endangered Species Act—the project

became beholden to a third constituency: the Cape Sable seaside sparrow. Since

the ESA’s passage, the Corps has been required to balance the flood protection and

water supply interests of residential and agricultural areas with the ecological

interests of the sparrow when designing its water regulation schedules.

      In 1982, the Tribe obtained the right to use and enjoy the Leased Land and

the Reservation Land under the Lease Agreement and the Trustee Deed. These

agreements took legal effect when Congress approved them in the FILCSA. A

significant portion of these lands is located in WCA 3A, a reservoir that stores

water from the residential and agricultural areas. Water levels in the WCA 3A are

controlled, in part, by the S-12A gate, which releases the reservoir’s water into

Everglades National Park. By the time the Tribe obtained rights to the Leased

Land and the Reservation Land, the Corps had been conducting water management

operations in WCA 3A for thirty-four years. Paragraph 6 of the Lease Agreement

and § 8 of the FILCSA acknowledged these activities and subjected any rights

granted to the Tribe in the Leased Land and the Reservation Land to them.

      Since 2002, the Corps has been operating the S-12A gate under the IOP,

which is a water regulation schedule specifically designed to promote sparrow

                                         32
             Case: 10-14271     Date Filed: 05/15/2013    Page: 33 of 52


breeding. The IOP requires that the S-12A gate be closed during the Everglades

dry season, November 1 to July 15, and opened during the Everglades rainy

season, July 15 to October 31. This schedule is intended to maximize the number

of continuously dry periods in the sparrow habitat, which encourages sparrow

breeding.

      The IOP does not affect the water level priorities of the agricultural and

residential areas to the north and east of the WCA reservoirs. The Corps will fill

the WCA reservoirs to ensure that these areas have proper drought and flood

protection. The Tribe’s enjoyment of its land therefore is always at the mercy of

the water needs of these two constituencies. Between November 1 and July 15, the

Tribe is also at the mercy of the sparrow: if the residential and agricultural areas

bring in too much water (such that water levels rise high enough to interfere with

the Tribe’s use and enjoyment of its land), the Corps will not deplete the WCA 3A

of water because the IOP calls for the S-12A gate to be closed. Thus, the risk that

the Tribe will experience high water levels is at its peak at the beginning of

November—the end of the rainy season. For though the S-12A gate remains open

between July 15 and November 1, the water level in the reservoir still increases

month by month throughout the rainy season. Accordingly, when the S-12A gate

finally closes on November 1, the reservoir will be at its highest level. See Record,

no. 129-7, at 20 (indicating WCA 3A’s monthly average water elevation and

                                          33
               Case: 10-14271       Date Filed: 05/15/2013       Page: 34 of 52


demonstrating that water levels are highest in October). Though this risk is present

every year by October 31, there is no guarantee that the Corps will modify its

schedule to prevent the S-12A gate from closing on November 1. 42

       The model we have sketched above favors both the residential and

agricultural areas and the sparrow over the Tribe. If there is too much water in the

north, water is released into the WCA reservoirs. If there is too much water in the

WCA, the Corps will not open the gates in the south to drain the reservoir between

November 1 and July 15. The net result is that the Corps’s activities create the

conditions for high water levels in the WCA, even though high water levels may

interfere with the Tribe’s use and enjoyment of its land.

       Given this relationship, it was just a matter of time before the interests of the

Corps and the Tribe clashed.

                                               E.

       In June 2008, a forest fire known as the West Camp Fire burned over 2,000

acres of the Cape Sable seaside sparrow’s Subpopulation A habitat. On July 11,

2008, representatives from the Corps, the FWS, and the Everglades National Park

Service discussed possible modifications to the water regulation schedule in


       42
          There is a provision in the IOP that allows the Tribe to request a departure from the
water regulation schedule (such as a later closing date for the S-12A gate) whenever its
Chairman determines that water conditions jeopardize the health or safety of the Tribe. See
supra note 10. But this option neither requires the Corps to make any particular findings nor
does it compel the Corps to alter its schedule—all adjustments are made at the discretion of the
Corps.
                                               34
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response to the fire. The National Park Service reported that the fire had burned

away a substantial amount of vegetation in the Subpopulation A habitat and that

water flow through the habitat would disrupt the sparrow’s nesting cycle if it did

not contain sufficient vegetation. The group was concerned that opening the S-

12A gate on July 15, as scheduled in the IOP, would not permit enough time for

the vegetation to return. The group concluded that a ten-day delay should be

implemented to ensure sufficient vegetation regrowth and allow sparrow hatchlings

enough time to complete the nesting cycle. The Corps agreed to keep the S-12A

gate closed until July 25. Record, no. 130-2, at 2. The gate remained closed until

July 24—nine days after the scheduled opening under the IOP.

      In October 2008, the Corps began releasing excess water from Lake

Okeechobee according to its water schedules. Shortly thereafter, the Tribe’s

Chairman observed flooding on tribal lands and extremely high water levels in

WCA 3A. The Chairman requested by letter that the Corps allow the S-12A gate

to remain open beyond the scheduled November 1 closure date listed in the IOP.

The Tribe’s letter stated that conditions in WCA 3A were “extremely dire” and that

failure to release additional water through the S-12A gate would endanger the

“health, safety, and welfare of the Tribe.” Record, no. 130-4, at 1. On October 31,

2008—one day before the scheduled closure of S-12A—the Corps denied the

Tribe’s request in writing, explaining that it was not aware of any facts that

                                         35
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constituted a threat to the health or safety of Tribe members that had not been

accounted for in the IOP. Record, no. 130-5, at 2. The Corps’s letter listed

additional steps that were being taken to reduce the water levels in WCA 3A and

explained that the FWS had “informed the [Corps] that [the FWS could not]

endorse continued operation of S-12A beyond November 1.” Id. at 1.

                                                II.

                                                A.

       Anticipating that the Corps would deny its request to leave the S-12A gate

open beyond November 1, the Tribe, on October 28, 2008, filed this suit for

declaratory and injunctive relief in the United States District Court for the

Southern District of Florida, alleging that the manner in which the Corps had been

operating the C&SF Project caused extreme flooding of tribal lands and would

continue to do so in the future.43

       The Tribe’s complaint contains four counts, each incorporating by reference

the Lease Agreement, the Settlement Agreement, the Trustee Deed, and the

FILCSA, which are attached as exhibits.

       Count I, titled “Violation of Plaintiff’s Rights under the Florida Indian Land

Claims Settlement Act,” alleges that:



       43
            Unless stated otherwise, any reference to the “Corps” in the remainder of this opinion
refers to all appellees.
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       75. Congress, through the Florida Indian Land Claims Settlement
       Act of 1982, waived Tribal land claims in exchange for specific
       property rights for the Miccosukee Tribe, as set forth in the Perpetual
       Lease and the Trustee Deed.

       76. Defendants are required to protect, and must not interfere, [sic]
       with the Rights granted to the Tribe in the Settlement Agreement, the
       Perpetual Lease and the Trustee Deed.

       77. Defendants have failed to protect, and have interfered, [sic]
       with the Tribe’s rights under the Settlement Agreement, the Perpetual
       Lease, and the Trustee Deed.

       [65. Defendants’ actions have caused and are causing extreme
       flooding of the lands where the Miccosukee people live, including
       WCA 3A, thereby taking and destroying Plaintiff’s property,
       impairing Plaintiff’s rights under the Perpetual Lease, and otherwise
       impairing Plaintiff’s rights.]44

       78. Plaintiff is irreparably harmed as a result of Defendants’
       actions, and has no remedy at law. A balancing of the equities and the
       public interest militate in favor of granting Plaintiff preliminary and
       permanent injunctive relief against further interference and violations
       by Defendants of Plaintiff’s legal rights.

       79. Plaintiff has rights under the Florida Indian Land Claims
       Settlement Act, the Permanent Lease and the Trustee Deed and
       Defendants’ actions are violating such rights.

Record, no. 1, at 17-19, ¶¶ 65, 75-79.

       Count II, titled “Violation of Plaintiff’s Due Process Rights,”

alleges that:



       44
          Paragraph 65 is a general allegation of the complaint that is incorporated by reference
into Count I. See Record, no. 1, at 18, ¶ 74 (“Plaintiff realleges and reavers the allegations in
paragraphs 1 through 73 as though fully set forth herein.”).
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      82. As more fully set forth above, Defendants have violated
      Plaintiff’s rights and protections under the Fifth Amendment of the
      Constitution of the United States by acting in a manner that deprived
      Plaintiff of life, liberty and property without due process of law
      through actions that have stopped the flow of water through the
      Everglades and backed up excessive amounts of water on Tribal
      lands, resulting in the flooding and destruction of the traditional
      homeland of the Miccosukee people that the government promised to
      preserve in a natural state in perpetuity for the use and enjoyment of
      the Tribe.

      83. Plaintiff has rights under the Constitution of the United States,
      the Florida Indian Land Claims Settlement Act, the Perpetual Lease
      and the Trustee Deed, which Defendants are violating.

Id. at 19-20, ¶¶ 82-83.

      Count III, titled “Action in the Nature of Mandamus against Defendants,”

alleges that:

      87. Plaintiff has a clear right to be protected from actions by
      Defendant that cause excessive and damaging water levels on Tribal
      Lands and property in violation of the Tribe’s rights under the Florida
      Indian Land Claims Settlement Act, the Permanent Lease and the
      Trustee Deed.

      88. Defendants have a clear legal duty to operate the C&SF Project
      in accordance with its design specifications, but have failed to fulfill
      such duty as more fully set forth above.

      89. Defendants have a clear legal duty not to flood and destroy
      Plaintiff’s property in violation of the U.S. Constitution, Florida
      Indian Land Claims Settlement Act, the Perpetual Lease and the
      Trustee Deed.

      90. Defendants have taken affirmative actions that have stopped the
      flow of water through the Everglades and caused excessive flooding
      of Plaintiff’s property in violation of the U.S. Constitution, Florida

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       Indian Land Claims Settlement Act, the Perpetual Lease and the
       Trustee Deed.

Id. at 21, ¶¶ 87-90.

       Count IV, titled “Violation of Equal Protection Rights,” alleges that:

       [60. When discharging excess water from the storms, Defendants
       acted to restrict the amount of flood waters pumped into other areas,
       including federal government lands in the Loxahatachee National
       Wild Life Refuge (WCA 1), to protect it from damage.

       61. Defendants took actions to protect non-Indian people and non-
       Indian land from excess flood water while the lands of the
       Miccosukee Tribe of Indians and the Miccosukee people, including,
       but not limited to the Leased Lands in WCA 3A, were not provided
       any relief.]45

       94. From on or about December 1998 to the present, and on-going,
       the federal Defendants have violated the rights and protections of the
       Miccosukee Tribe and the Miccosukee people under the Fourteenth
       Amendment of the Constitution of the United States by acting, and
       failing to act, in a manner that deprived the Miccosukee Tribe and the
       Miccosukee people and the Tribal Everglades in WCA 3A, of equal
       protection guarantees through their disparate, unequal, and
       discriminatory water management.

       95. In doing so, Defendants were actively and directly involved in
       violations of Constitutional guarantees of equal protection of the
       Miccosukee Tribe and the Miccosukee people.

       96. In addition, the Miccosukee people, consisting of all racially-
       defined Miccosukee Indians (including both those Miccosukee
       Indians who have joined the Tribe and those Miccosukee Indians who
       have not joined the Tribe) are a discrete and insular minority which is


       45
           Paragraphs 60 and 61 are general allegations of the complaint that are incorporated by
reference into Count IV. See Record, no. 1, at 22, ¶ 92 (“Plaintiff realleges and reavers the
allegations in paragraphs 1 through 72 as though fully set forth herein.”).
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      less able to use the majoritarian protections of the political system to
      protect their rights.

      97. Thus, the governmental actions or classifications which
      discriminatorily and adversely disfavor the Miccosukee people (in
      favor of non-Miccosukee interests) are subject to heightened scrutiny
      under the equal protection clause. The governmental action alleged
      herein fails the test of heightened scrutiny; the governmental action
      does not achieve any compelling state interest (in fact, it fails to
      achieve any positive results); the governmental action is not essential
      and necessary because it disregards viable alternatives which would
      be less harmful to the Miccosukee people.

      98. Plaintiff Tribe seeks a declaration that Defendants are operating
      the Central and Southern Florida Project in a discriminatory manner
      that does not provide the Miccosukee people and the Miccosukee
      Tribe of Indians, and the Tribal Everglades, with equal protection of
      the laws and an injunction against doing so.

Id. at 16, 22-23, ¶¶ 60-61, 94-98.

                                          B.

      The Corps responded to the complaint with a motion to dismiss for failure to

state a claim for relief. Fed. R. Civ. P. 12(b)(6). The gist of its motion was that

whatever rights the Tribe possesses are expressed in the Lease Agreement and the

Trustee Deed and are subject to provisions in those agreements—which provide

that easements held by the SFWMD and the Corps are superior to the Tribe’s

rights of use and enjoyment of the Leased Land and the Reservation Land.

According to the Corps, those easements essentially rendered it immune from the

Tribe’s suit for injunctive relief from the flooding of tribal lands. As a fallback

position, the Corps argued that the Tribe had unsuccessfully asserted the same
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claims in previous lawsuits, and therefore the claims were barred by the doctrine of

collateral estoppel. The Tribe responded to the motion to dismiss by asserting,

first, that the easements did not give the Corps an unfettered right to flood its

property and, second, that collateral estoppel did not bar the claims.

                                                 C.

        The District Court granted the Corps’s motion to dismiss as to Counts I, II,

and III, but denied the motion as to Count IV. The court concluded that Count I

failed to state a claim for relief because “the precedents of [the District Court for

the Southern District of Florida] concerning the Miccosukee Tribe’s ability to

bring claims under the [FILCSA, i.e., the Lease Agreement and the Trustee Deed]

challenging the water levels in the Leased Area or WCA 3A so clearly bar

Plaintiff’s claim that this Court finds that this claim is frivolous.” Record, no. 37,

at 4–5 (citing Miccosukee, 980 F. Supp. at 461-62). Moreover, the District Court

held that dismissal was warranted because ¶ 6 of the Lease Agreement 46 and § 8 of

the FILCSA 47 provide that the Tribe’s rights to the lands within the WCA 3A “are

subservient to, and cannot interfere with, the rights and duties of the Corps and the

SFWMD to raise or lower the water levels in the Leased Lands and WCA 3A.” Id.

at 4.



        46
             See Record, no. 1, at 37, ¶ 6.
        47
             See 25 U.S.C. § 1747(c).
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      Precedent, in the court’s view, required the dismissal of the Count II due

process claim as well. Id. at 6 (citing Miccosukee, 980 F. Supp. at 463–64, and

Miccosukee Tribe of Indians of Fla. v. United States, No. 02-22778 (S.D. Fla. July

30, 2007) (Report and Recommendation, at 8–9 (O’Sullivan, Magistrate, J.)

(adopted by Moore, J.)). As the court correctly observed, those cases held that

because “the Lease specifically reserved to the Corps and SFWMD the right to

control water levels in the Leased Area and WCA 3A . . . the Miccosukee Tribe

lacked a constitutionally protected property interest that would enable them to

prevail on a due process claim based on water levels.” Id.

      The court dismissed Count III because “the Corps and SFWMD’s

management of water levels through the C&SF project is precisely the kind of

discretionary action that is outside of this Court’s mandamus jurisdiction.” Id. at 9

(citing Kirkland Masonry, Inc. v. C.I.R., 614 F.2d 532, 534 (5th Cir. 1980)).

      The court denied the Corps’s motion to dismiss as to Count IV because

“plaintiff . . . sufficiently pleaded an equal protection claim, ” in that the complaint

alleged “that Defendants’ water management actions have been taken, at least in

part, because of, and not merely in spite of, adverse effects on the Miccosukee

Tribe.” Id. at 7–8.

      At the close of discovery on the Count IV claim, the Corps moved the court

for summary judgment. The court granted the motion, but it did not rule on the

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claim as stated in Count IV of the complaint and in its order denying the Corps’s

motion to dismiss. As stated in the complaint, Count IV alleged that the Corps

denied the Tribe and its members the equal protection of the law by taking steps to

protect non-Indian People and non-Indian lands against excess flood water and

diverting the water to tribal lands. In granting the Corps summary judgment, the

court, drawing on a statement in the Tribe’s Response in Opposition to

Defendants’ Motion for Summary Judgment, interpreted the Tribe’s equal

protection claim as “limited to: (1) the Corps’ decision to postpone opening the S-

12A gate from July 15, 2008, to July 24, 2008; and (2) the Corps’ refusal of the

Tribe’s request to leave the S-12A gate open after November 1, 2008.” Record,

no. 175, at 6. According to the court, whether these two decisions denied the Tribe

and its members equal protection of the law depended on whether the Corps had a

“rational basis” for the decisions. The court found a rational basis and therefore

denied the Tribe’s Count IV claim. 48

       After granting the Corps’s motion, the District Court entered a final

judgment for the Corps on all claims. The Tribe appeals, challenging the court’s




       48
           The court found no violation, stating that (1) the “Corps left the S-12A gate open from
July 15 to July 24, 2008, to protect the fledgling of the sparrows and to mitigate the effects of the
fire” and (2) the “closure of the S-12A gate on November 1 was taken pursuant to the WCA 3A
regulation schedule, which in conjunction with the IOP, the BiOp 2006, and other related
documents, assists the Corps in achieving its water management obligations in compliance with
federal statutory requirements, including the Endangered Species Act.” Record, no. 175, at 28.
                                                 43
              Case: 10-14271      Date Filed: 05/15/2013     Page: 44 of 52


order dismissing Counts I, II, and III and its order granting summary judgment on

Count IV.

                                            III.

       We cannot undertake a review of the District Court’s ruling without pausing

to comment on the quality of the Tribe’s complaint. Most of the complaint’s

allegations are general and are devoted to description of the Tribe’s history, the

importance of the Everglades to the livelihood of its members, the evolution and

implementation of the C&SF Project, and the injury the members suffer when

tribal lands are flooded. The remaining allegations of the complaint are a tangled

morass of vague and conclusory statements; thus, the theory of liability that each

count asserts is, but for the count’s title, difficult to discern.

       A plaintiff must “plead factual matter that, if taken as true, states a claim”

that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 666, 129 S. Ct. 1937,

1942–43, 173 L. Ed. 2d 868 (2009). Each count incorporates by reference the

complaint’s general allegations, in paragraphs 1 through 73, then, in conclusory

language, advances the count’s cause of action. These allegations do not comport

with Iqbal requirements. Not only is this apparent from a straightforward reading

of the allegations, it is apparent from the Corps’s responses. For example, in

answering the allegations of Count IV, the Corps’s answer states, in thirteen

separate paragraphs, that the complaint’s allegations are “vague, ambiguous, or

                                            44
              Case: 10-14271     Date Filed: 05/15/2013     Page: 45 of 52


uncertain.” Record, no. 42, at 5, 9, 10, 12, 14–15. We find that the District Court,

itself, had difficulty discerning the predicates for the theories of liability asserted.

In its order dismissing Counts I through III, the court does not expressly address

the complaint’s allegations; instead, it focuses on the District Court for the

Southern District of Florida’s precedent—in cases previously brought by the Tribe

against the Corps and the SFWMD. Additionally, the court’s order disposing of

Count IV’s equal protection claim does not refer to the parties that benefit when

the Corps allegedly floods the Tribe’s land in a discriminatory manner.

      The Corps should have moved the District Court to order the Tribe to

provide it with a “more definite statement” under Federal Rule of Civil Procedure

12(e), but it did not do so. Nor did the court require a more definite statement on

its own initiative. See Cesnik v. Edgewood Baptist Church, 88 F.3d 902, 907 n.13

(11th Cir. 1996) (describing the district court’s power to order a more definite

statement sua sponte). In Magluta v. Samples, we found the complaint’s

allegations so nebulous as to preclude meaningful appellate review—especially

with respect to the “serious constitutional issues” the complaint presented. 256

F.3d 1282, 1284 (11th Cir. 2001). We therefore vacated the district court’s

judgment and remanded the case for repleading. This case likewise presents

serious constitutional issues. As in Byrne v. Nezhat, after hearing oral argument

and wading through the voluminous record, “our first thought was to return the

                                           45
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case to the district court and instruct it to narrow the issues by ordering the plaintiff

to redraft the complaint so that it conformed with the pleading requirements of

Fed. R. Civ. P. 8 and 10.” 261 F.3d 1075, 1134 n.115 (11th Cir. 2001). We

choose not to do so, however, because we believe that we can discern enough from

the complaint’s allegations to dispose of this appeal with confidence. That said,

we turn to the District Court’s dispositive rulings.

       The sine qua non of the District Court’s dismissal of Counts I through III is

that the Lease Agreement and the Trustee Deed authorize the Corps and the

SFWMD to flood its lands with impunity, regardless of the extent to which the

flooding interferes with the Tribe’s use and enjoyment of the Leased Land and the

Reservation Land. The Tribe argues that the rulings defy logic and common sense

and thus must be reversed. 49 With this argument in mind, we examine the legal

sufficiency of the allegations of Counts I, II, and III.

                                                A.

       Count I alleges that the “Defendants are required to protect, and must not

interfere, [sic] with the Rights granted to the Tribe . . . in the [Lease Agreement]

and the Trustee Deed,” and that the “Defendants have failed to protect, and have

interfered, [sic] with the Tribe’s rights under the . . . [Lease Agreement], and the

Trustee Deed.” Record, no. 1, at 17-19, ¶¶ 76-77. The Tribe contends that the

       49
          The Tribe advances several arguments for the reversal of the court’s rulings; all boil
down to the argument as we have posed it.
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FILCSA obligates the Corps to protect and not interfere with its rights under the

Lease Agreement and the Trustee Deed. All that the FILCSA does, however, is

approve the Lease Agreement and create a reservation through the Trustee Deed;

the FILCSA does not obligate the Corps to “protect” and “not interfere with” the

Tribe’s rights under the Lease Agreement. And we find nothing in the language of

the Lease Agreement or the Trustee Deed creating such obligation.

      We have considered the possibility that the Tribe finds the Corps’s

obligation to protect its rights, not in the language of these instruments or the

FILCSA, but, instead, under the Corps’s authority to conduct lawful water

management activities. Those activities, which have to do with the administration

of the C&SF Project, take place on easements held by the SFWMD. The Tribe

may be contending that the Corps’s activities—here, flooding tribal lands—are

beyond the scope of the SFWMD’s easements. In other words, the Corps is akin to

a trespasser.

      These easements, which limit the Tribe’s right to use and enjoy the land, are

not part of the record.50 Unless the terms of the easements are known, it cannot be


      50
           The Lease Agreement refers to the SFWMD’s easements and the C&SF Project with
this language:

      [The Tribe’s] rights . . . are subject to and shall not interfere with the rights, duties
      and obligations of the SFWMD or the [Corps], pursuant to the requirements of the
      . . . conveyances, easements, grants, rules, statutes, or any other present or future
      lawful authority to manage, regulate, raise, or lower the water levels within the
      Leased Area or Water Conservation Area 3.
                                                47
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determined whether the flooding is beyond their scope. The complaint’s

allegations shed no light on what those terms might be. In sum, the complaint

contains nothing—beyond a bald conclusion—to support Count I’s allegation that

the Corps has an obligation to “protect” and “not interfere with” the Tribe’s rights.

Because the complaint contains no allegation establishing such obligation, the

District Court properly dismissed Count I for failure to state a claim for relief.

                                                B.

       Count II alleges that “Defendants have . . . deprived Plaintiff of life, liberty

and property without due process of law through actions that have stopped the flow

of water through the Everglades and backed up excessive amounts of water on

Tribal lands, resulting in the flooding and destruction of the traditional homeland

of the Miccosukee people that the government promised to preserve . . . for the use

and enjoyment of the Tribe.” Record, no. 1, at 19-20, ¶ 82. Because the Tribe

alleges that the Corps’s water management activities have deprived the Tribe of its

rights to use and enjoy the Leased Land and the Reservation Land—and nowhere

does the complaint allege a deprivation of a life or liberty interest—we read Count

II as alleging the deprivation of property without due process of law.




Record, no. 1, at 37, ¶ 6. The Trustee Deed refers to the SFWMD’s easements, but not the
project, thusly: The tribal lands “shall be subject to all existing leases, easements and rights of
way, and all rights, easements and reservations in favor of the [SFWMD].” Record, no. 1, at 96.

                                                48
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      The District Court held that the interests the Tribe holds pursuant to the

Lease Agreement and the Trustee Deed do not qualify as property within the

intendment of the Due Process Clause. We disagree; the interests obviously

qualify as a property entitled to procedural due process protection. The Corps

cannot take all or part of the Tribe’s property interests under the Lease Agreement

and the Trustee Deed without affording the Tribe due process. The question is:

what process was due? To state a claim for the denial of property without due

process of law, the plaintiff must allege (1) deprivation of a constitutionally

protected property interest; (2) governmental action; (3) and constitutionally

inadequate process. Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003).

Count II contains no allegation of the process the Tribe claims was due, much less

that it was inadequate. The District Court’s dismissal of Count II is accordingly

affirmed. See Tinney v. Shores, 77 F.3d 378, 382 (11th Cir. 1996) (holding that,

by failing to allege inadequate process, appellant did not state a procedural due

process claim).




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                                               C.

       Count III essentially mimics Count I, except that the remedy sought is a writ

of mandamus. Count III fails for the same reasons we find Count I insufficient to

state a claim; hence, the District Court was required to dismiss it.

                                               D.

       As noted in part II.C, the District Court, in disposing of Count IV,

disregarded its allegations and, in effect, treated Count IV as though it had been

amended—to conform to a statement the court found in the Tribe’s response to the

Corps’s motion for summary judgment. 51 In this circuit, a plaintiff cannot amend

his complaint through argument made in his brief in opposition to the defendant’s

motion for summary judgment. Gilmour v. Gates, McDonald & Co., 382 F.3d

1312, 1315 (11th Cir. 2004) (per curiam). “At the summary judgment stage, the

proper procedure for plaintiffs to assert a new claim is to amend the complaint in

accordance with Fed. R. Civ. P. 15(a).” Hurlbert v. St. Mary’s Health Care Sys.,

Inc., 439 F.3d 1286, 1297 (11th Cir. 2006). And it goes without saying that the

court is barred from amending a plaintiff’s claim. One reason for barring such

amendment is that in sua sponte amending a plaintiff’s claim on summary

judgment, the court may create the impression that it has become the plaintiff’s


       51
          We find nothing in the record to indicate that the court, in effectively amending Count
IV, was exercising its power under Rule 16(c)(2)(A) or (B) to narrow or recast the issues before
it.
                                               50
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advocate—or his worst enemy—depending on what the court does with the claim

after amending it. We therefore decide the Tribe’s appeal of the Count IV

judgment by assessing the record in the light of Count IV’s allegations, as stated in

the complaint.

      Count IV alleges that the Corps deprived the Tribe and its members of the

equal protection of the law “under the Fourteenth Amendment of the Constitution

of the United States . . . through their disparate, unequal, and discriminatory water

management.” Record, no. 1, at 22, ¶ 94. Although the Fourteenth Amendment

does not apply to the Corps (because it is not a state or local governmental entity),

we treat Count IV as having been brought under the equal protection component of

the Fifth Amendment’s Due Process Clause. Bolling v. Sharpe, 347 U.S. 497, 74

S. Ct. 693, 98 L. Ed. 884 (1954).

      Count IV tells us that the Corps, in discharging its obligations under the

C&SF Project, restricted the amount of water pumped into areas other than tribal

land; that it took actions to protect non-Indians and non-Indian land from excess

flood water; and that it failed to provide tribal lands with any relief. Although

Count IV does not say whether the Corps did all of this at the same points in time,

we assume that it did. That is, the flood waters would have covered the entire

C&SF Project area had the Corps not diverted more of the excess water to the

WCA 3A reservoir than to other areas.

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      Count IV’s allegations are so vague and ambiguous that in order to

determine whether they state a cause of action, we would have to make all sorts of

assumptions. Among other things, we would have to assume the nature and

location of the other areas; that they were similarly situated to tribal lands that

were inundated; and that the water was diverted contrary to C&SF Project

specifications. We decline to indulge these assumptions. Moreover, the Tribe’s

response to the Corps’s motion for summary judgment contains nothing to fill in

the blanks created by Count IV’s allegations. In short, Count IV fails to allege a

case sufficient to withstand a motion to dismiss or, on summary judgment, to make

out a case for a jury. We therefore affirm the District Court’s judgment on Count

IV.

                                          IV.

      For the reasons stated in part III of this opinion, the judgment of the District

Court is

      AFFIRMED.




                                           52
