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Miccosukee Tribe of Indians of Fla. v. EPA

ELR Citation: 27 ELR 20705
Nos. No. 95-5080, 105 F.3d 599/(11th Cir., 02/10/1997)

The court holds that a Florida Native American tribe's citizen-suit action against the U.S. Environmental Protection Agency (EPA) for failing to comply with its duties under the Federal Water Pollution Control Act (FWPCA) may not be dismissed by a court for lack of subject matter jurisdiction without first determining whether the Everglades Forever Act creates new or revised state water quality standards for Florida. The court first holds that under the FWPCA, the EPA Administrator has a mandatory duty to review any new or revised state water quality standards. The court then holds that in the absence of action by the Administrator, the district court should have conducted its own factual findings. Because citizen-suit jurisdiction depended on whether or not the Everglades Forever Act constituted new or revised state water quality standards, invoking a mandatory duty of the Administrator, the district court had to decide independently the effect of the Everglades Forever Act on existing state standards. The district court could not simply accept Florida's representations. Without determining the effect of the Everglades Forever Act, the district court could not decide whether jurisdiction existed under the FWPCA citizen-suit provision. Next, the court holds that the district court should have treated EPA's motion to dismiss as a factual attack rather than a facial attack on the tribe's complaint for lack of subject matter jurisdiction. Factual attacks on the district court's jurisdiction challenge jurisdiction in fact, irrespective of pleadings, allowing parties to submit matters outside the pleadings, such as testimony or affidavits. The court accepts the tribe's contention that the jurisdictional question is intertwined with the merits of the tribe's claim. Given such circumstances, the court then holds that the district court should apply a summary judgment standard when ruling on the motion to dismiss as a factual attack on subject matter jurisdiction.

[Briefs in this litigation are digested at ELR BRIEFS & PLEADS. 66508 and 66516.]

Counsel for Plaintiff
Sonia E. O'Donnell
Lehtinen, O'Donnell, Vargas & Reiner
7700 N. Kendall Dr., Miami FL 33156
(305) 279-1166

Counsel for Defendants
Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before HATCHETT, Chief Judge, DUBINA, Circuit Judge, and COHILL*, Senior District Judge.