Judge clears way for Walmart in rare Miami forest, but legal battle continues

A Miami federal judge has lifted a temporary stop to construction on a Walmart-anchored shopping center on rare pine rockland and hinted that environmentalists are unlikely to win their battle in court.

It’s not clear when Palm Beach County developer Peter Cummings will resume work on the planned shopping center and apartments spread across nearly 140 acres near Zoo Miami. But environmentalists, armed with additional information released by the U.S. Fish and Wildlife Service since the case was argued, said they plan to keep fighting a project that could pave over one of the largest remaining tracts of pineland outside Everglades National Park.

“There remains a live controversy,” said Jaclyn Lopez, an attorney for the Center for Biological Diversity, one of four environmental groups that filed a lawsuit in December. “The merits of the case remain.”

Cummings said through a spokesman that he welcomed the decision.

“We believe strongly that Coral Reef Commons will be a blueprint for environmentally conscious development and restoration,” he said, creating “a community that will preserve extensive habitat, restore previously degraded habitat and provide amenities and homes for this community while creating more than 500 jobs and generating more than $3 million in yearly local tax revenues.

In January, U.S. District Judge Ursula Ungaro ordered Cummings to stop work and referred the case to a magistrate to determine whether a permanent restraining order should be issued while the case winds through court.

Cummings outraged environmentalists in 2014 when he unveiled a plan for a shopping center that included the Walmart, an LA Fitness, a Chili’s and 900 apartments on part of an old blimp base he bought from the University of Miami. Pine rockland once covered much of Miami-Dade County’s high ground — a tropical airy forest dotted with slash pines rising from a limestone floor filled with silver palms and wildflowers and inhabited by a growing list of endangered animals.

In the mid 1990s, the university objected when county conservationists tried to include it on a list of endangered lands for preservation, but environmentalists have long hoped to save it.

Although his project won approval from the county by conserving just under 40 acres, Cummings agreed to create a conservation plan after the U.S. Fish and Wildlife said the project would likely kill endangered species and lead to legal action. The agency also upped its efforts to save the menagerie of disappearing species that live in the forest, adding six to the endangered species list in recent years.

His initial plan set aside just 55 acres. As opposition mounted — protesters staged marches at the site and near the University of Miami — the university agreed to put another 51 acres it owned nearby under stricter conservation.

But in their lawsuit, environmentalists pointed out the UM land was already under a county-ordered conservation plan. They also said the plan was based on an untested method of assessing impacts that the Service allowed consultants hired by Cummings to create. The Service also failed to set a specific number for how many endangered animals could be harmed before the agency intervened.

In addition, money to maintain the preserves, to be collected by a property management association, failed to ensure the complicated care of the land, which must be regularly burned to maintain the open canopy, they said.

Federal magistrate William Turnoff rejected the arguments saying that while the Service allowed Cumming’s consultant to create the assessment, it relied on its own experts to reach a final decision. He also sided with the developer who argued the judge’s decision should not “entail a deep dive into minutiae.” Turnoff said the court “must refrain from substituting its own judgment” and had to defer to the Service’s expertise.

On Monday, Ungaro endorsed his decision and went a step further, criticizing environmentalists for not presenting more evidence.

“Missing from the record is any expert testimony or scientific evidence from Plaintiffs,” she wrote, citing the complexity of the science and the laws that define conservation efforts.

“Extrinsic evidence is appropriate when technical terms or complex subjects need to be explained,” she wrote.

Lopez said her clients were limited because the Service had not yet released all the records that went into approving the plan, leaving them to rely on publicly available information. That information has since been released, she said.

“Now that we have the administrative record it does provide a lot of additional information on claims that we do believe are favorable to us,” she said.

Ungaro also took issue with the environmentalists’ contention that Turnoff misunderstood requirements in the law and complaints that the Service improperly relied on the outside environmental assessment. The agency independently prepared its own biological opinion and set of findings, she said — although both rely heavily on the assessment.

She also rejected arguments that the Service had failed to follow rules requiring detailed assessments on projects with significant impacts and agreed with its finding that conditions would actually improve despite the construction of the apartments and nearly 300,000 square feet of commercial space. And despite the public outcry, she found they failed to provide evidence of any scientific dispute.

Having the injunction removed may make saving the pineland harder, said plaintiff Al Sunshine, a retired TV reporter and founder of the Miami Pine Rocklands Coalition who lives across the street from the project. But not impossible.

At the nearby Goldcoast Railroad Museum, pines have sprouted through asphalt, he said. Pines also pop up on nearby Coast Guard land, he said.

“The idea that it’s paved over and oh my god totally gone and can’t be repaired? Totally a red herring,” he said. “Mother nature, with a little bit of help from her friends, has the ability of regrowing ... New pine trees are growing through asphalt. New pine crotons. All the understory trees that support the myriad life in pine rocklands will grow and come back.”

The two sides are scheduled to return to court Friday to hash out how the case proceeds.

This story was originally published March 14, 2018 at 5:44 PM with the headline "Judge clears way for Walmart in rare Miami forest, but legal battle continues."