All five Lee County commissioners have agreed to proceed to the next stage of the litigation, which is to arrange for the appointment of a mediator as required by Chapter 164 of the Florida Statutes.

The Cape Coral City Council has sent a letter to the County Commissioners saying that they are they are unwilling to extend the 15 May agreement to continue mediation talks [which was set to expire on 16 November]. I can only assume that means the Cape will not show up at the mediation proceedings. The DEP has thus far also refused to engage in mediation as required by Chapter 164. Neither the Cape nor the DEP can be forced to mediate, but their refusal to do so will increase their potential liability at trial.

Some of the comments at the Cape City Council meeting on Monday are interesting. Mayor Sullivan asked the City Attorney if the County had standing to sue Cape Coral, and the answer by Assistant City Attorney Steve Griffin was “yes” [which is accurate]. He noted that the County believes the City did not apply for the Ceitus permit in good faith, did not file a sufficient application, and even argued against granting the permit. He also provided a rather good description of the concept of “standing,” and noted that mediation is required by Florida law. City Attorney Delores Mendez advised the Council that they should stand assured that the County by following the mediation process is preparing for litigation, and that the litigation will include DEP.

The Cape City Council received good legal advice, but did not follow it. Mayor Sullivan instead said the Ceitus issue is off the table, and will not be further discussed by Cape Coral. The other councilmen agreed and said even the Councilman McGrail meetings with County Staff should be discontinued. The Mayor said he could not understand why the County continues to collect scientific data and most of the other Councilmen agreed there is no need for more environmental data. The Mayor particularly objected to the County hiring of “expert witnesses” because that sounds like litigation. McGrail labeled the County’s actions an ‘attack” and an “unnecessary provocation.” He said that on 31 October he had met with Commissioner Hall and was delighted that she would replace Commissioner Judah [in the talks they refuse to attend??]. McGrail also said the County could use 20/20 funds to solve “the problem.” [The Council had previously declared there is no environmental problem.]

The Cape vote was 7 to 1 to not extend discussions with the County pass 15 November, and to send the County a letter to that effect.

Florida law requires mediation, and the County is correct to follow the law, even if the Cape and DEP refuse to do so. Both the Cape and DEP also stand in violation of the Settlement Agreement, the Second Amended Consent Order, and the EMA findings.

Phil Buchanan
email: coolcherokee@comcast.net