29 - Order denying Florida DHR Mtn. to Dismiss.pdf - Hon. Jose E. Martinez, U.S.D.J.

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Case 4:20-cv-10140-JEM Document 29 Entered on FLSD Docket 02/14/2022 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA KEY WEST DIVISION Case Number: 20-10140-CIV-MARTINEZ MOTIVATION, INC., et al., Plaintiffs, v. WILBUR L. ROSS, JR., et al., Defendants. _____________________________________/ ORDER DENYING DEFENDANTS FLORIDA DIVISION OF HISTORICAL RESOURCES AND TIMOTHY PARSONS’S MOTION TO DISMISS THIS CAUSE came before this Court upon Defendants Florida Division of Historical Resources and Timothy Parsons’s, in his official capacity as the Director of the Florida Division of Historical Resources (collectively, “Florida DHR”), Motion to Dismiss (“Florida DHR’s Motion”), (ECF No. 19). This Court has reviewed the pertinent portions of the record, including Plaintiffs’ Brief in Opposition to Florida DHR’s Motion, (ECF No. 24), and Florida DHR’s Reply, (ECF No. 27), and is otherwise fully advised in the premises. Therefore, for the reasons set forth herein, Florida DHR’s Motion to Dismiss is DENIED. I. BRIEF FACTUAL BACKGROUND This action surfaces from the depths of litigation that has spanned just about half a century. This Court presumes the Parties have submerged themselves well in the facts of the underlying case, so it provides no more than a summary of the factual backdrop before which the instant action proceeds. In short, the underlying litigation involves the fate of two famed Spanish treasure galleons that sank in 1622 off the coast of the Florida Keys: the Nuestra Señora de Atocha (the “Atocha”) and Santa Margarita (the “Margarita”). Plaintiff here, Motivation, Inc, acquired sole title and ownership of the Atocha and Margarita as successor-in-interest to Treasure Salvors, Inc., Case 4:20-cv-10140-JEM Document 29 Entered on FLSD Docket 02/14/2022 Page 2 of 10 which had sole title and ownership of both vessels since the 1980s. See generally Fla. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 677 (1982) (Atocha); Treasure Salvors, Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 556 F. Supp. 1319, 1342 (S.D. Fla. 1983) (Margarita). Adjusting this Court’s course to the instant action, Plaintiff[s] bring[] this action seeking judicial review of the National Oceanic and Atmospheric Administration’s (“NOAA”) Final Decision issued on October 26, 2020 regarding the administrative Sanctuary Permit Appeal brought by Plaintiffs of the Research/Recovery of Historical Resources Permits, Nos. FKNMS-2019- 0522 . . . and FKNMS-2019-1103 . . . to conduct survey, inventory, research, and recovery activities in the [Florida Keys National Martine Sanctuary] . . . . (Compl. ¶ 1, ECF No. 1.) Specifically, Plaintiffs claim that “Defendants’ Final Decision violates the Administrative Procedure Act[, 5 U.S.C. § 702] ([the] “APA”).” (Id.) To this end, they allege four counts arising under the APA, with one of which alleging that all Defendants violated the National Historic Preservation Act, 54 U.S.C. § 306101 (the “NHPA”), (Count I). Plaintiffs base their claim on NOAA’s final decision, issued on October 26, 2020, in an administrative appeal challenging terms and conditions contained in permits issued by NOAA on February 4, 2019 ( “Defendant NOAA’s Final Decision”). Plaintiffs contend that Defendant NOAA’s Final Decision contains findings and imposes requirements that are arbitrary and capricious in violation of the APA. Plaintiff, accordingly, request that this Court seek judicial review of Defendant NOAA’s Final Decision as follows: a. Whether the Atocha and Margarita are “eligible” as “historic properties” under the NHPA; b. Whether the Atocha and Margarita, which are private property owned by [Plaintiffs] at the time of formation of the Sanctuary, are “Sanctuary historical resources”; c. Whether the NOAA Defendants and [Florida] DHR have unlawfully interfered with [Plaintiff’s] property rights, salvage rights and rights to access to the Margarita admiralty area within Florida state waters; 2 Case 4:20-cv-10140-JEM Document 29 Entered on FLSD Docket 02/14/2022 Page 3 of 10 d. Whether the NOAA Defendants and [Florida] DHR should be required to notify [Plaintiffs] if they operate or intend to operate within Atocha and Margarita admiralty areas, including search, salvage or activities that are invasive or have the potential to affect the Atocha and Margarita artifacts; e. Whether the NOAA Defendants and [Florida] DHR should be required to notify [Plaintiffs] if they locate or recover Atocha and Margarita materials and immediately surrender any recovered Atocha or Margarita materials and immediately to [Plaintiffs] for conservation and cataloging; f. Whether [Plaintiffs] should be required to comply with Florida/[Florida DHR] standards for surveying and reporting for permitting areas which are not within Florida State waters; g. Whether the NOAA Defendants have jurisdiction to make determinations regarding [Plaintiffs’] ownership status; and h. Whether Plaintiffs’ salvage activities with regard to Atocha and Margarita are within the public interest. (Compl. ¶ 59, ECF No. 1.) To this end, Plaintiffs allege that Florida DHR determined that the Atocha and Margarita are “historic properties” under the NHPA. (Id. ¶¶ 60–61, 72, 106.) Importantly, however, Plaintiff states that Florida DHR’s determination is, rather, a concurrence. (Id. ¶ 60 (“Defendant Superintendent F[angman] stated during the administrative appeal: ‘The ONMS has determined that Florida[ DHR] has concurred that the Atocha and Margarita are considered historic properties under the NHPA.” (emphasis added)); Compl. Ex. B, ECF No. 1-2, at 4.) The attachments to the Complaint reveal that Florida DHR merely concurred that the Atocha and Margarita “are potentially eligible for listing under the National Register [as a ‘historic property.’]” Defendant NOAA’s Final Decision 18, ECF No. 1-1, at 19–20.) Plaintiffs refer to this as a “‘wink of the eye’ concurrence, without which “NOAA’s determination would have no basis.” (Resp. Fla. DHR’s Mot. Dismiss 18, ECF No. 24.) Now, Florida DHR moves to dismiss the Complaint for lack of subject matter jurisdiction on two grounds: (1) This Court has no subject matter jurisdiction over Florida DHR because Plaintiffs state causes of action arising under the APA, and because Florida DHR is a state agency 3 Case 4:20-cv-10140-JEM Document 29 Entered on FLSD Docket 02/14/2022 Page 4 of 10 not subject to the APA, there is no case or controversy against Florida DHR; and (2) Florida DHR is immune from suit as it has not waived sovereign immunity. (Fla. DHR Mot. Dismiss 1–5, ECF No. 19.) Plaintiffs argue in opposition that it has a case or controversy against Florida DHR because it jointly manages the Florida Keys National Marine Sanctuary (the “Sanctuary”) in partnership with NOAA and, therefore, “has actual and real decision-making authority with regard to permits within [the Sanctuary], at least within Florida state waters” and “has responsibilities and decision-making authority under the NHPA.” (Pl.’s Resp. Fla. Def.’s Mot. Dismiss 14–15, ECF No. 24.) Further, Plaintiff argues that Florida DHR does not enjoy sovereign immunity because Florida waived its potential claim to sovereign immunity decades ago when it sought title in the Atocha and Margarita, (id. at 20–22), and under the Ex Parte Young doctrine, (Id. at 22–27.) II. LEGAL STANDARD Motions made pursuant to Federal Rule of Civil Procedure 12(b)(1) attack a district court’s subject matter jurisdiction to consider the case before it. Fed. R. Civ. P. 12(b)(1). “[I]t is extremely difficult to dismiss a claim for lack of subject matter jurisdiction.” Garcia v. Copenhaver, Bell & Associates, M.D.’s P.A., 104 F.3d 1256, 1260 (11th Cir. 1997) (citing Simanonok v. Simanonok, 787 F.2d 1517, 1519 (11th Cir. 1986). Motions to dismiss for lack of subject matter jurisdiction “can be based upon either a facial or factual challenge to the complaint.” McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007) (citing Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. May 1981)). Where the attack on the complaint is facial, “the plaintiff is left with safeguards similar to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised.” Id. (quoting Williamson, 645 F.2d at 412). A facial attack on a complaint requires a court to look and see if the plaintiff “sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (quoting Menchaca v. 4 Case 4:20-cv-10140-JEM Document 29 Entered on FLSD Docket 02/14/2022 Page 5 of 10 Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). When the attack on a complaint is factual, however, the trial court may proceed as it never could under 12(b)(6) or Fed. R. Civ. P. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction—its very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Garcia, 104 F.3d at 1261 (quoting Lawrence, 919 F.2d at 1529). Plaintiffs label Florida DHS’s Motion as both a facial and factual attack on the Complaint; however, the Court disagrees. Rather, the Court views Florida DHS’s Motion as a pure facial attack. As it is a facial attack, the Court takes the allegations in the Complaint as true. See Lawrence, 919 F.2d at 1529. In any event, this Court may not rely on Rule 12(b)(1) unless “the facts necessary to sustain jurisdiction do not implicate the merits of plaintiff’s cause of action.” Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003) (quoting Garcia, 104 F.3d at 1261). Where a defendant’s attack implicates the merits of a plaintiff’s cause of action, [T]he proper course of action for the district court . . . is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of plaintiff’s cause. Judicial economy is best promoted when the existence of a federal right is directly reached and, where no claim is found to exist, the case is dismissed on the merits. This refusal to treat indirect attacks on the merits as Rule 12(b)(1) motions provides, moreover, a greater level of protection to the plaintiff who in truth is facing a challenge to the validity of his claim: the defendant is forced to proceed under Rule 12(b)(6) . . . or Rule 56 . . . both of which place great restrictions on the district court’s discretion . . . . [A]s a general rule a claim cannot be dismissed for lack of subject matter jurisdiction because of the absence of a federal cause of action. Garcia, 104 F.3d at 1261 (alterations in original) (emphasis added) (citing Williamson, 645 F.2d at 415–16). Exceptions to this “general rule” are narrow; jurisdictional dismissals are only allowed in cases “where the federal claim is clearly immaterial or insubstantial.” Id. 5 Case 4:20-cv-10140-JEM Document 29 Entered on FLSD Docket 02/14/2022 Page 6 of 10 III. DISCUSSION A. Lack of Subject Matter Jurisdiction under the APA “Standing to bring and maintain a lawsuit is fundamental to a federal court’s subject matter jurisdiction.” Sierra Club, Inc. v. St. Johns River Water Mgmt. Dist., No. 14-cv-1877, 2015 WL 6814566, at *4 (S.D. Fla. Nov. 6, 2015) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340–42 (2006)). A plaintiff bears the burden of proving standing by establishing that: (1) the plaintiff suffered an “injury in fact,” (2) that was causally connected to the defendant’s actions, and (3) which can be redressed by a court’s favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). Florida DHR’s Motion focuses squarely on the second and third prongs: In short, they argue that (1) “[a]ny injury from the NOAA Defendants’ decision is not fairly traceable to Florida DHR” as they did not and could not issue the permits that were the subject of NOAA’s final decision and (2) this Court’s reversal of Florida DHR’s alleged “concurrence” would not redress Plaintiff’s injury. Therefore, at the heart of Plaintiffs’ argument is that Plaintiff cannot bring Florida DHR into this Court’s jurisdiction under the APA. To be sure, “the federal APA does not apply to state agencies.” Doe, 1–13 ex rel. Doe Sr. 1–13 v. Bush, 261 F. 3d 1037, 1055 (11th Cir. 2001) (citing 5 U.S.C. § 701(b)(1)); see also § 701(b)(1) (defining “agency” as certain authorities of the “Government of the United States”). But that is true with a pertinent exception: The Eleventh Circuit has ruled that a district court may have jurisdiction over a state agency under the APA where the agency plays a “substantial role” in the administrative proceeding, the plaintiff only seeks injunctive relief, and the state agency “work[s] in tandem with federal agencies.” Citizens for Smart Growth v. Sec’y Dep’t of Transp., 669 F.3d 1203, 1210 (11th Cir. 2012) (finding that a district court properly exercised its jurisdiction over Florida Department of Transportation and its Secretary pursuant to APA because agency’s “substantial role [was] well document in the Administrative Record,” agency was “a 6 Case 4:20-cv-10140-JEM Document 29 Entered on FLSD Docket 02/14/2022 Page 7 of 10 party working in tandem with federal agencies,” and “the plaintiffs sought only injunctive relief” against the state agency); see also Sierra Club, Inc., 2015 WL 6814566, at *7 (finding it had subject matter jurisdiction over state agency under APA). Under the APA, “a ‘reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Hewitt v. Comm’r, 21 F.4th 1336, 1342 (11th Cir. 2021) (citing 5 U.S.C. § 706(2)(A)). Pertinent to this Court’s analysis, Florida DHS only moved to dismiss the Complaint pursuant to Rule 12(b)(1). The Court, therefore, must determine whether the facts in the Complaint sustain this Court’s subject matter jurisdiction without implicating the merits of Plaintiff’s causes of action. See Morrison, 3223 F.3d at 925 (citing Garcia, 104 F.3d at 1261). The Court must not dismiss for lack of jurisdiction if jurisdiction is “intertwined with the merits” of the action unless the federal claim clearly immaterial or insubstantial. Id. at 926. The Eleventh Circuit has stated that “jurisdiction becomes intertwined with the merits of a cause of action when ‘a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff’s substantive claim for relief.” Id. (quoting Garcia, 104 F.3d at 1261). From the APA’s plain language, the elements of a cause of action for judicial review under the APA can be simply summarized as follows: A plaintiff must prove that (1) an “agency” (2) took a final action, (3) “for which there is no other adequate remedy in a court,” (4) that caused the plaintiff (5) to suffer an alleged legal wrong or an adverse effect or grievance within the meaning of a relevant statute. 5 U.S.C. §§ 702, 704. Given the requirement that an action requesting judicial review of an agency’s final action be made by an “agency” and the fact that the Eleventh Circuit has held that a state agency can fall within the ambit of the definition of “agency” outlined in the APA, this Court finds that the determination of agency status is a “substantive element” of a claim under the APA that is necessarily intertwined with the merits of a cause of 7 Case 4:20-cv-10140-JEM Document 29 Entered on FLSD Docket 02/14/2022 Page 8 of 10 action under the APA. See, e.g., Garcia, 104 F.3d at 1263 (“[I]t seems the section of ADEA that provides the substantive relief, § 623, is intertwined and dependent on the section of ADEA that defines the scope of the act, § 630. An analysis of the two sections is circular as the two sections are dependent on one another. For a plaintiff to recover under the act, plaintiff must prove as part of his claim that an ‘employer’ discriminated against him/her. To prove that a defendant is an ‘employer,’ a plaintiff must satisfy the definition of ‘employer’ set forth in § 630(b).”); Williamson, 645 F.2d at 416 (“[T]he definition of the term ‘security’ in the context of a suit based on the federal securities laws may reach the merits of the case and thereby limit the court’s discretion to dismiss for lack of subject matter jurisdiction.”). Therefore, given that agency status “is a substantive element” of a claim for judicial review under the APA that reaches the merits here, the Court finds that the proper ruling is to deny Florida DHR’s motion to dismiss for lack of subject matter jurisdiction as whether Florida DHR qualifies as an “agency” under the APA and subject to the Eleventh Circuit’s decision in Citizens for Smart Growth is a question that reaches the merits of Plaintiffs’ claims. B. Florida DHR’s Alleged Enjoyment of Sovereign Immunity “Sovereign immunity is the privilege of the sovereign not to be sued without its consent.” Va. Office for Prot. & Advoc. v. Stewart. 563 U.S. 247, 253 (2011). “Waiver of [a] state’s constitutional immunity must appear clearly and will not be easily implied.” Jagnandan v. Giles, 538 F.2d 1166, 1177 (5th Cir. 1976). A state, however, “may waive its sovereign immunity at its pleasure . . . .” Stewart, 563 U.S. at 253 (citing Coll. Sav. Bank. v. Fla. Prepaid Postecondary Ed. Expense Bd., 527 U.S. 666, 675–76 (1999)). Even still, this Court may not entertain a suit against a state “absent waiver or valid abrogation . . . .” Id. The test for “determining whether a State has waived immunity from federal-court jurisdiction is a stringent one. . . . Generally, [a court] will find a waiver either if the State voluntarily invokes our jurisdiction, . . . or else if the State makes 8 Case 4:20-cv-10140-JEM Document 29 Entered on FLSD Docket 02/14/2022 Page 9 of 10 a ‘clear declaration’ that it intends to submit itself to [federal] jurisdiction.” Coll. Sav. Bank, 527 U.S. at 675–56 (citations omitted) (first citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985); then citing Gunter v. Atl. Coast Line R.R. Co., 200 U.S. 273, 284 (1906); and then citing Great N. Life Ins. v. Read, 322 U.S. 47, 54 (1944)). “Under the Eleventh Amendment, state officials sued for damages in their official capacity are immune from suit in federal court.” Jackson v. Ga. Dep’t of Transp., 16 F.3d 1573, 1575 (11th Cir. 1994) (citing Kentucky v. Graham, 473 U.S. 159, 169 (1985)). But the Eleventh Circuit immunity only applies where “the judgment must, under all circumstances, be paid out of state funds.” Id. (citing Travelers Indem. Co. v. Sch. Bd. of Dade Cnty., 666 F.2d 505, 509 (11th Cir. 1982)). The Supreme Court’s decision in Ex parte Young, 209 U.S. 123 (1908), “has evolved into the link between state sovereign immunity and the vindication of federal rights.” In re Levin, 384 B.R. 308, 313–14 (S.D. Fla. 2002) (quoting In re Richmond Health Care, Inc., 243 B.R. 899, 907 (S.D. Fla. 2000)). “In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Version Md., Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (citing Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)). In determining whether the Ex parte Young doctrine applies, this Court does not analyze the merits of Plaintiffs’ claims. Id. at 646 (citing Coeur d’Alene Tribe of Idaho, 521 U.S. at 281); Coeur d’Alene Tribe of Idaho, 521 U.S. at 281 (“An allegation of an ongoing violation of federal law where the requested relief is prospective is ordinarily sufficient to invoke the Young fiction.” (emphasis added)). To be sure, Plaintiffs do not state a claim for damages against Florida DHR. (See Compl. 37–39, ECF No. 1.) Rather, Plaintiffs request injunctive relief for alleged ongoing violations of the APA as Plaintiffs allege that Florida DHR and the federal Defendants “acted in concert” as 9 Case 4:20-cv-10140-JEM Document 29 Entered on FLSD Docket 02/14/2022 Page 10 of 10 well as declaratory relief as Plaintiffs seek declarations related to past and future agency actions, which “do not impose upon the State ‘a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials.” See Verizon Md., 535 U.S. at 646. Like in Verizon, Plaintiffs’ “prayer for declaratory relief adds nothing to the prayer for injunction.” Therefore, here, Plaintiffs’ prayers for relief—that Defendants, including Florida DHR, be restrained from enforcing Defendant NOAA’s Final Decision insofar as it is allegedly unlawful under the APA— satisfies this Court’s “straightforward inquiry” under the Ex parte Young doctrine. See id.at 645. Accordingly, this Court finds that Plaintiffs causes of action against Florida DHR is not barred by the Eleventh Amendment. 1 IV. CONCLUSION Accordingly, and for the foregoing reasons, it is ORDERED AND ADJUDGED that Florida DHR’s Motion, (ECF No. 19), is DENIED. DONE AND ORDERED in Chambers at Miami, Florida, this 14th day of February, 2022. ____________________________________ JOSE E. MARTINEZ UNITED STATES DISTRICT JUDGE Copies provided to: All Counsel of Record 1 This Court also finds doubtful Florida DHR’s argument that it raised “immunity at the first opportunity to do so.” (Fla. DHR’s Mot. Dismiss 5, ECF No. 19.) As the record reflects, the State of Florida sued Plaintiff’s predecessor-in-interest to enforce its then-alleged rights to ownership of the Atocha and Margarita. While Florida DHR “now takes the position that it has no authority to regulate [Plaintiffs’] salvage activities here[,]” that has not always been the case. See Coll. Sav. Bank, 527 U.S. at 675–76 (“Generally, [a court] will find a waiver either if the State voluntarily invokes our jurisdiction, . . . or else if the State makes a ‘clear declaration’ that it intends to submit itself to [federal] jurisdiction.”). The Court, however, does not squarely address Florida DHR’s waiver as Plaintiffs argue that, even absent waiver, they may proceed against Florida DHR under the Ex parte Young doctrine. See Verizon Md., 535 U.S. at 645 (declining to address waiver of sovereign immunity where plaintiff alleged it may have proceeded under Ex parte Young doctrine). 10