Judge keeps bulldozers at bay on Walmart site but too late for swath of rare Miami forest

New pines grow among old at Larry and Penny Thompson Park, a pineland that was nearly destroyed by Hurricane Andrew and restored by Miami-Dade County.
New pines grow among old at Larry and Penny Thompson Park, a pineland that was nearly destroyed by Hurricane Andrew and restored by Miami-Dade County. pfarrell@miamiherald.com

A federal judge extended an injunction halting work on a Walmart-anchored shopping center in rare pine rockland on Wednesday after learning the project’s developer has already cleared a wide swath of the disappearing forest.

It’s not yet clear how much damage the work caused, or whether the forest can be restored if environmentalists win their case.

Attorneys for Palm Beach County developer Peter Cummings said trees were cleared on 31 acres near Zoo Miami in just three days last month — the time it took environmentalists to obtain an initial emergency order halting work from U.S. District Court Judge Ursula Ungaro. George LeMieux, the developer’s attorney, could not say whether the forest floor was plowed, which would make restoring the rockland nearly impossible.

Pine rockland once covered much of South Florida’s high ground but has been mostly wiped out by development and is now considered globally imperiled. The uniquely rocky floor forms the foundation for a host of plants and animals in the forest, including 22 endangered plants and animals.

pine rockland bulldozed
Bulldozers began clearing trees the morning the U.S. Fish and Wildlife Service approved a permit in December. Courtesy Al Sunshine

“To learn they got so much cleared in such little time is discouraging,” said Jaclyn Lopez, an attorney for the Center for Biological Diversity, one of four environmental groups suing to stop work.

A hearing Wednesday to decide whether to extend the injunction largely focused on the pitched battle over developing the 137-acre project that would include the shopping center and 900 apartments. Environmentalists have long eyed the rockland, part of an old blimp base that once covered a 1,200-acre tract, for conservation.

But in 2014, Cummings purchased the property from the University of Miami and has spent the last three years working with the U.S. Fish and Wildlife Service to create a conservation plan needed to avoid violating the Endangered Species Act.

That plan is now at the center of the legal case, with the two sides divided on whether adequate public notice for the project was provided, federal rules followed or thoughtful science used in addressing impacts.

coral reef common protest
Protesters march as the Miami Rocklands Preservation Coalition and other groups rally to protest a Walmart and an amusement park planned for protected pine rockland near Zoo Miami in January 2015. Al Diaz MIAMI HERALD STAFF

At Wednesday’s hearing, Lopez said it was clear the developer got advance warning about the plan’s approval, allowing him to get a jump start on work.

Heavy equipment needed to clear trees was moved to the site on Nov. 30, five days before the Service approved the plan, according to an affidavit from Cumming’s director of development. Work started, the employee said, early on Dec. 5. Lopez said her organization was not notified until after 3 p.m. that afternoon. Within hours, she let the Service know her clients intended to sue. Ungaro issued the emergency injunction three days later.

“That does jump out,” said U.S. Magistrate William Turnoff, who extended the injunction and will issue a recommendation to Ungaro on a final decision. “As soon as the finding was made, the bulldozers come out.”

The sides also differ on the intention of the Endangered Species Act.

Cummings attorneys, along with the U.S. Fish and Wildlife Service, say it is intended to help developers and property owners use endangered land.

“The plaintiffs are seeing this as a zero sum gain, that it’s restored and none of the land is returned for development,” said attorney Rafe Petersen. “This isn’t a public park.”

But environmentalists say federal wildlife managers “abdicated their duty” by relying too heavily on the developer to create the plan and in the future will allow him to police himself for any violations. They also argue the act wasn’t intended to clear the way and should be used to protect disappearing habitat.

“We didn’t create this Earth,” said attorney Paul Schwiep. “We don’t own it and we don’t have a right to wreck it.”

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