Wednesday, May 14, 2008

Should Judge Hoeveler recuse in the rock-mining case?

Judge Hoeveler says he doesn't "consider [himself] biased" in the rock-mining case in which he was just reversed. (Read the 2-1 opinion here). Although the 11th Circuit did not remove "the respected" Judge Hoeveler from the case, it did say that he had "predetermined" to ban the practice at issue. And as John Pacenti points out in his Daily Business Review article, the Judge has had his issues with environmental cases before.
So should he recuse? Or do we give him the benefit of the doubt? The appellate court did not take Judge Hoeveler off the case, so unless he thinks he should recuse, he will continue to be the judge.

The Herald had on op-ed yesterday saying that Judge Hoeveler has the opportunity to strengthen his opinion:

In lifting an injunction banning three rock mining permits in Northwest Miami-Dade County and remanding the case back to U.S. District Judge William Hoeveler for reconsideration, an appellate panel left the door open for the judge to review and strengthen his decision. A three-judge panel of the U.S. 11th Circuit Court of Appeals found that Judge Hoeveler didn't show proper deference to the U.S. Army Corps of Engineers' decisions to issue more rock-mining permits in a case pitting rock miners against environmental groups.

Here's the rest of the op-ed, which gets a couple facts wrong (including that it was a 3-2 decision instead of a 2-1 decision) but it provides an interesting argument nonetheless:

In July, Judge Hoeveler issued an injunction against permits requested by three of nine mining companies. The Corps hadn't given enough consideration to the proximity of mining activities to Miami-Dade's drinking-water wellfield, the judge said. He wanted a new environmental study, which the Corps agreed to conduct. But the miners appealed, and in doing so launched personal attacks against the judge, perhaps hoping that he would be removed from the case.
The 11th Circuit panel wisely kept Judge Hoeveler on the case. After reading the ruling, our advice to both sides: Don't pop the Champagne corks just yet. The 3-2 appellate-court majority said Judge Hoeveler appeared to have made up his mind, regardless of the evidence, in finding that rock mining in Miami-Dade's Lake Belt ''is a bad thing.'' The judges also said that he misread the scope of the National Environmental Policy Act and how the Corps interpreted it in permitting more mining in the Lake Belt. NEPA, said the panel, allows the Corps to determine that, even though an activity like mining may damage or even destroy an environment, economic value can outweigh environmental concerns.
That said, the appellate judges took pains to make it clear that Judge Hoeveler had not erred in his ruling. In fact, the panel's third judge, Phyllis Kravitch, dissented, writing that Judge Hoeveler's ban on mining in the Lake Belt to protect the water supply was justified under the Clean Water Act.
Which will it be, NEPA or the Clean Water Act? In addition to its concerns for wellfield protection, the U.S. Fish and Wildlife Service had questions regarding the endangered wood stork during the permitting process. There were other issues about wetlands destruction, too. Ultimately, the Corps shortened the lifetime of the permits and required mitigation via wetlands acquisition by the miners.
Judge Hoeveler nevertheless found reason to want more information on what threat mining could pose for wellfield contamination. We don't find that unreasonable, nor for that matter, did the appellate panel. The appellate court said that Judge Hoeveler would have to find firmer ground upon which to uphold a ban on the three permits. That's fair to both sides.

Here's the original Herald article explaining the 11th Circuit's opinion in more detail.

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