Judge finds manatee die-off proves Florida broke endangered species law

Yahoo

24-04-2025

State biologists examine a manatee that starved to death during the big die-off. (Photo via FWC)
Back in the 1990s, when I was on the criminal court beat, I sat through more murder trials than Perry Mason and Ben Matlock combined.
Every case concerned a tragedy, but occasionally there were moments of comedy. One case involved two hitmen who were so inept, they got lost trying to find their target in St. Petersburg. They were so lost, they wound up in Tampa.
There was another murder trial of sorts recently that involved inept killers. In April, it reached its startling conclusion.
Criminal trials are always called 'The State v. The Alleged Killer.' Not this one. In this one, the state wasn't the prosecutor. It was the defendant.
The case didn't involve just one death, either, but nearly 2,000. The victims did nothing to deserve their fate. They were manatees, and they starved to death because the seagrass they depend on for food was wiped out by the consequences of human pollution.
The case was styled as Bear Warriors United v. Lambert. That's as in Alexis Lambert, whom Gov. Ron DeSantis recently appointed as secretary of the Florida Department of Environmental Prot– well, you can't really say 'Protection,' can you? The agency utterly failed to protect the manatees.
Because of the DEP's failure, a federal judge ruled on April 11 that the agency had violated the Endangered Species Act. Nobody shouted out 'Guilty, guilty, guilty!!' as in a famous 'Doonesbury' cartoon, but they sure could have.
'In a state where it's so hard to ever win anything for the environment in court,' said Katrina Shadix, founder of Bear Warriors United, 'this is a big victory.'
The question is: What happens next, in the penalty phase?
'We are going to be compelling the state of Florida to care about the Endangered Species Act,' predicted Jessica Blome, one of the attorneys who represented the Bear Warriors.
The scene of the crime for these many manatee murders was the Indian River Lagoon, once considered the most biodiverse estuary in North America.
The lagoon stretches for 156 miles along Florida's Atlantic coast. It was once blanketed with mangroves, salt marshes, and seagrass. In those days, the lagoon boasted more than 600 species of fish and more than 300 kinds of birds, not to mention dolphins and manatees galore.
'The water used to be clear and the seagrass abundant,' said Peter Barile, a marine scientist who grew up near the shores of the Indian River Lagoon. 'Now the lagoon is dominated by harmful macroalgae.'
He said one particularly bad species called 'Caulerpa' has taken over.
What went wrong? For years, the state and local governments allowed pollution to flow into the lagoon, fueling a series of toxic algae blooms that killed nearly all of the seagrass.
Leaky septic tanks were a major contributor to the blooms, according to Barile. It didn't have to be that way. In 2010, the Legislature passed a law requiring septic tank owners to get an inspection every five years to make sure they weren't polluting the state's waterways.
But septic tank owners rebelled, and two years later legislators repealed the inspections — a move the sponsor of the repeal later conceded was a mistake.
Once the algae blooms wiped out their seagrass, the manatees suffered, especially when the weather turned cold and they sought refuge in the warmth of the lagoon. That's how hundreds of manatees became malnourished. The starvation situation grew so dire, biologists began tossing lettuce out for the hungry manatees to feed on — an unprecedented step.
Despite multiple warnings about what would happen if the seagrass disappeared, Barile said, 'the state let things go on for decades and let builders and the septic tank industry continue dumping waste, and we got a Sewage Apocalypse.'
One of the people issuing those warnings over the years was Barile. Among his many attempts to convince decision-makers to do something, he met with a gubernatorial candidate named Ron DeSantis in 2018.
The candidate seemed open to what Barile was saying. He definitely grasped who would gain from reining in the pollution and promised to fix it.
SUBSCRIBE: GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX
'If you're doing this right and you're solving the problem, the community stands to reap benefits far in excess of that because you're talking about the fishing industry, you're talking about tourism, you're talking about property values,' DeSantis said at the time.
Then, after he was elected, the governor opted NOT to solve the problem.
DeSantis did convene a panel of respected scientists to recommend ways to prevent toxic algae blooms. But when they turned in their recommendations, he ignored nearly all of them.
Instead, he hired an Israeli company to dump a hydrogen peroxide mixture into our waterways to chase the blooms away temporarily.
But the algae keep coming back because he didn't do anything to stop the pollution that fuels it.
Not even after the manatees started dying.
In most of the murder cases I covered, the accused presented what attorneys call the 'SODDI defense.' That's short for 'Some Other Dude Did It.'
Similarly, the DEP's defense in this suit was: Hey, this wasn't OUR fault.
While the death of so many manatees was 'undeniably tragic,' DEP communications director Alexandra Kuchta said in an emailed statement to me this week, 'the state of Florida has responded with unprecedented investments to improve water quality and restore habitats, especially in critical ecosystems like the Indian River Lagoon.'
In court, 'their argument was, 'We complied with the Clean Water Act, therefore we are immune from being found to have violated the Endangered Species Act,' Blome told me.
To me, that's like saying, 'I was obeying the speed limit when I ran over that pedestrian, so I can't possibly be held responsible for the tire marks on his face.' One doesn't have anything to do with the other.
U.S. District Judge Carlos Mendoza apparently felt the same way.
'Compliance with the Clean Water Act … is just one piece of the regulatory puzzle the state must solve,' he wrote in his 21-page order.
Manatees were dying because of the consequences of the pollution the DEP allowed to flow into the lagoon. That's why, even though its actions may comply with the Clean Water Act, the DEP has repeatedly violated the Endangered Species Act's protection of that threatened marine mammal, the judge ruled.
Don't assume the judge was a pushover for environmental groups. Just last year, he rejected a lawsuit filed by the Save the Manatee Club and its allies that attacked the U.S. Environmental Protection Agency and the DEP for setting inadequate standards for water quality.
The Endangered Species Act legal argument was a novel one, Shadix told me, but it proved effective.
The DEP's attorneys apparently didn't know how to counter the Bear Warriors complaint. They failed to call as a witness any scientists like Barile to testify, Blome told me. Instead, they called DEP regulators to talk about their water quality rules and enforcement, both of which have proven to be inadequate.
In fact, they conceded that, with the DEP's current level of cleanup efforts, restoring the lagoon's seagrass beds would likely take another 12 to 17 years. That's a loooooong time to put up with dirty water, repeated algae blooms, and manatees going hungry (and dolphins too).
It sounds to me like DEP missed the point of the case. At one point during the hearing, Blome told me, the lead attorney for the DEP stood up waving a letter and dramatically announced that the manatee die-off had officially ended.
The judge didn't think much of that move.
'Defendant believed this letter was a proverbial smoking gun establishing that manatee takings were no longer occurring,' he wrote. 'But even assuming the [die-off] has ended, that would not move the needle in FDEP's favor.'
That's because the conditions that caused the die-off haven't changed much. There was a previous manatee die-off in 2013, and there could be another one this year or next or some other time before full seagrass restoration.
'Is there an ongoing risk of manatee takings in the northern Indian River Lagoon?' the judge wrote. 'The answer is clearly yes.'
Meanwhile, the lack of seagrass beds has affected everything from the manatees' reproduction rate to their feeding behavior — another violation of the Endangered Species Act, which forbids humans from altering either one.
As for the DEP's bragging about its recent efforts to clean up the lagoon at last, the judge noted that those efforts were 'perhaps not so much admirable as legally required.'
I'd like to point out that Florida had a hand in creating the law that the DEP violated.
A major co-author of the Endangered Species Act was a Florida man named Nathaniel Reed — a Republican, I might add. Reed was a birder and a butterfly collector, and he loved fishing so much his mother joked he emerged from the womb with a fly rod in his hands.
The first endangered species list included quite a few Florida animals, including not just the manatee but also the panther, Key deer, and alligator.
The alligators have bounced back so strongly that they're now in every single body of water larger than a mud puddle. That proves that listing a species as endangered doesn't have to be the final word on their future. With hard work and planning, some species can be restored.
But this case marks the second Endangered Species Act case in the last two years that showed Florida officials under DeSantis haven't been taking the law seriously.
Last year, U.S. District Judge Randolph Moss ruled that the DEP was doing an end-run around the act to speed up issuing permits for developers to wipe out wetlands.
The judge ordered the DEP to stop issuing those permits, in effect halting a lot of wetlands-destroying development all over the state. That includes a pair of new 'towns' in Lee and Collier Counties expected to generate so much traffic they're likely to kill off our recovering panther population.
In that case, the DEP's defense was to say, basically, that they broke the law because protecting endangered critters is reeeeeeally haaaaaaard. Imagine a teenager complaining about homework and you've got the right tone.
''It's hard' is NOT a reason to not comply with federal law,' an Earthjustice attorney told me after the judge's ruling, enunciating what I think is one of the bedrock principles of the law.
The DEP is appealing that case, and my guess is that it will wind up appealing this decision as well. Our state officials would rather keep arguing than admit that they disregarded the death of an iconic Florida animal in favor of helping big-money campaign donors keep fouling our waterways.
By the end of this week, Bear Warriors United is scheduled to submit to the judge its proposed punishment for the DEP. Shadix and Blome told me they're considering asking the agency be required to spell out how it's going to speed up cleaning the lagoon and regrowing the seagrass.
If I were the judge, I'd make the penalty even tougher. I would require that everyone from DeSantis on down to the lowliest bureaucrat to march down and line up next to the lagoon. Then I would require each and every one of them to issue a public apology for not fixing this problem sooner.
Then, to really bring it home to them, I'd require them to do the apology right at lunchtime, and tell them they weren't allowed to eat anything for the next six hours.
I don't want this punishment to seem cruel and unusual, but I think making them feel a little of the desperation of the dying manatees would go a long way toward doing justice.
SUPPORT: YOU MAKE OUR WORK POSSIBLE