Sunday, September 08, 2019

The Florida Activist Is 78. The Legal Judgment Against Her Is $4 Million. Environmental activists fear that Maggy Hurchalla’s case against a rock-mining company could have First Amendment ramifications. (NY Times)

Those of us who love Florida and want to preserve and protect our environment are concerned about this case.  We've had bullies in St. Johns County threaten activists before with threatening letters in retaliation for First Amendment protected activity, but this decision flies in the face of Florida's anti-SLAPP law and the First Amendment.

The defendant in this case is the sister of the late U.S. Attorney General Janet Reno, former Miami-Dade State's Attorney, with whose staff I interviewed in 1986.  One of the defense lawyers is Jamie Gorelick, a Washington, D.C. attorney who was Janet Reno's Deputy Attorney General, 1994-97.

This case is likely headed for the Florida Supreme Court and possibly the U.S. Supreme Court. The District Court of Appeals decision is here.

From The New York Times:

By Patricia Mazzei
Sept. 8, 2019

STUART, Fla. — Maggy Hurchalla’s piece of Florida heaven is a patch of pristine Atlantic shore accessible only by boat in St. Lucie Inlet Preserve State Park. She and her husband nicknamed it the “End of the World” when they first came upon it half a century ago, after paddling south along the barrier island to the water’s end. She still likes to skinny-dip at the beach.

Ms. Hurchalla, 78, could spend her remaining years kayaking here, readily outpacing paddlers less than half her age. Or traveling the country, giving speeches about the legacy of her sister, Janet Reno, the first female attorney general of the United States.

But instead of reveling in her retirement, Ms. Hurchalla, who has devoted her life to protecting the untamed Florida wilderness that she loved, has been fighting a public battle with a rock-mining company — and losing.

ImageMs. Hurchalla was successfully sued by Lake Point Restoration for encouraging Martin County commissioners to back out of a water deal. She had argued that it would destroy wetlands.
Ms. Hurchalla was successfully sued by Lake Point Restoration for encouraging Martin County commissioners to back out of a water deal. She had argued that it would destroy wetlands.CreditEve Edelheit for The New York Times
A jury decided last year that Ms. Hurchalla should pay $4.4 million in damages to Lake Point Restoration, a company that has a limestone mining operation in Martin County, along Florida’s Treasure Coast.

Lake Point sued her for interfering with a contract after she emailed Martin County commissioners, urging them to back out of a water deal with the company that had initially been approved as a public-private partnership that could keep polluted water out of a nearby estuary. Ms. Hurchalla argued that she had merely exercised her First Amendment rights.

The legal saga involved secret emails, the ownership of Florida’s fresh water, and the constitutional rights to free speech and to petition the government.

Three months ago, a state appeals court upheld the verdict, alarming environmental and free speech organizations that had implored the three-judge panel to consider how profoundly such a precedent could chill citizens’ ability to question their leaders.

Ms. Hurchalla appealed again, this time asking for a hearing before the full Fourth District Court of Appeal. On Friday, the court denied her request. She could still petition the Florida Supreme Court to consider her case.

She does not have the money to pay the judgment. But Ms. Hurchalla does not worry about that.

“What I worry about now,” she said, “is dying before we win.”

She is one of the few remaining voices of a generation that remembers hurricanes before they had names, the last surviving child of a mother who built the family homestead by hand. Her life has spanned much of the state’s modern history, a story of growth inextricable from development.

The sale of 650 acres on the southern tip of Hutchinson Island in 1972 first spurred Ms. Hurchalla into activism. She wanted the land protected for conservation. Instead, a developer bought it and built a gated residential community. Ms. Hurchalla became Martin County’s first female commissioner in 1974, a liberal Democrat in a town of Republicans.

The commission adopted strict protections for wetlands and a four-story height limit for buildings. Growth happened anyway, but slowly and “sanely,” Ms. Hurchalla said, keeping the county green and preserving an Old Florida way of life.

George Lindemann Jr. is the billionaire real estate investor behind the limestone mining operation by Lake Point.
CreditTampa Bay Times, via ZUMA Wire

In 1994, she lost re-election to an opponent largely bankrolled by developers. Ms. Hurchalla returned to activism. Even now, she says, “I spend too much time at the computer, trying to save the world.”

That is how she got in trouble with Lake Point, which in 2008 bought 2,200 acres of former sugar cane fields in the western fringes of Martin County, near Lake Okeechobee.

Behind Lake Point was George Lindemann Jr., a billionaire real estate investor and heir to a cellphone and cable TV fortune. He served prison time after being convicted in 1995 of paying a man $25,000 to electrocute his horse so Mr. Lindemann could collect a $250,000 insurance payout.

Mr. Lindemann’s consortium wanted to mine for limestone and use the leftover pits to store lake water and clean its pollution, which would otherwise be flushed down the fragile St. Lucie Estuary, contributing to toxic algae blooms. The South Florida Water Management District and Martin County signed off on the project.

But a few years later, Lake Point partnered with another company to try to sell the water to the city of West Palm Beach, troubling Ms. Hurchalla and Martin County officials, who questioned whether the revised plan would really result in environmental benefits. (West Palm Beach ultimately did not buy Lake Point’s water.)

Ms. Hurchalla fired off emails to county commissioners encouraging them to get out of the agreement with Lake Point, arguing that it would destroy wetlands and noting that no peer-reviewed study had examined the effects on restoration plans for the downstream Florida Everglades, which are supposed to get water from Lake Okeechobee, near the mine site.

She sent some of the emails to commissioners’ private email addresses. She signed one of them “Deep Rock Pit” — a joke, she said later, alluding to Deep Throat, the secret Washington Post source during the Watergate scandal.

County staff members issued notices of violation against Lake Point.

In 2013, Lake Point sued the county, the water management district and Ms. Hurchalla, claiming she waged an unlawful campaign against the company that cost it its plans to make money off its cleaned lake water.

The court agreed: The litigation found that commissioners conducted public business using their private email and delayed production of those emails — or destroyed them altogether — in violation of public records laws. Three commissioners were charged in criminal court. A jury acquitted one of them in April, and the state attorney dropped the charges against the other two last month.

The county and water management district settled with Lake Point for millions of dollars, and the mine continues to operate. But Ms. Hurchalla fought on, even after Lake Point offered to drop the case if she publicly apologized.

Kayaks outside of Ms. Hurchalla’s home. Sheriff’s deputies seized two kayaks and a Toyota Camry when a jury decided last year that Ms. Hurchalla should pay $4.4 million in damages.

Kayaks outside of Ms. Hurchalla’s home. Sheriff’s deputies seized two kayaks and a Toyota Camry when a jury decided last year that Ms. Hurchalla should pay $4.4 million in damages.CreditEve Edelheit for The New York Times

She had nothing apologize for, she said: She had engaged her elected leaders. But Lake Point accused her of improperly instructing commissioners through the private emails — and of falsely claiming that the wetlands would be harmed (they were not, the company said) and that no scientific studies had been done (a preliminary review had been conducted). That amounted to malice, the court ruled.

“The First Amendment’s very important, but it has its limits,” said Ethan J. Loeb, the lead lawyer for Lake Point. “You’re not allowed to tell falsehoods. You’re not allowed to lie. That’s not anything that’s new or exotic. And if, in fact, you do not tell the truth, and those falsehoods were designed to injure or harm a business, there’s a consequence for that.”

Any wages Ms. Hurchalla makes are subject to garnishment. One of her husband Jim’s retirement accounts was taken over. After the jury ruled against her last year, sheriff’s deputies seized what they could of Ms. Hurchalla’s property: two kayaks and a 2004 Toyota Camry — with a faded “Defend Maggy” bumper sticker — that had been owned by her sister.

Lake Point later returned the kayaks and the car. But first, Ms. Hurchalla’s neighbors dropped off other kayaks at her home in solidarity.

“Thank you for standing up for our First Amendment rights,” read a handwritten note they left behind.

Richard Grosso, a law professor at Nova Southeastern University who filed amicus briefs on behalf of advocacy groups as part of Ms. Hurchalla’s appeal, said he had already heard from other activists who feared that the ruling might hamper their ability to criticize the government.

“I’ve had several clients contact me with deep concern about whether and what they can say about environmental issues,” he said. “Florida is battling global warming and sea-level rise and the loss of biodiversity, so we cannot afford to be quiet.”

Ms. Hurchalla, as is her style, put it more bluntly: “I don’t think anybody could safely stand at a podium in the state of Florida.”

One evening in July, Ms. Hurchalla, barefoot, with a knife cut on her finger bandaged with duct tape, contemplated the recent events from the screened porch of the home she and Jim built in 1968 after buying a $5,000 lot on the banks of the Indian River. They raised four children there. Two adult grandchildren live nearby.

Her breast cancer is in remission, but she has suffered since 1992 from an autoimmune disorder that requires monthly intravenous transfusions of antibodies.

“I did not expect to be alive at 78,” said Ms. Hurchalla, whose sister died of complications from Parkinson’s disease at 78.

But Ms. Hurchalla did not dwell on what was to come. Instead, she looked around in wonder. Past the mangroves, mullet jumped in the river.

“Look at what the world has done for me,” she said.

She served crackers and smoked fish dip from barracuda that Jim had caught the night before. Then she planned the next day’s paddle, checking on the high tide.

Ms. Hurchalla swimming in the Atlantic Ocean at a place she refers to as the “End of the World.”CreditEve Edelheit for The New York Times
Kitty Bennett and Sheelagh McNeill contributed research.

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