BY TRACY LEE TATE
Times Editor
LAKE BUTLER — The conflict between a group of four families who have joined together in an attempt to mine phosphate in Union County and the government and people of the county is approaching its sixth year and most people who find themselves along for the ride to see how it all turns out seem to be beginning to feel the need to ask, “Are we there yet?”
To recap the issues from the start seems appropriate.
The initial proposal came with much PR and fanfare as the mining company, HPS Enterprises, worked to “sell” the county on the idea that phosphate mining was a wonderful thing to do. They touted a “revolutionary new process” that would make land recovery after the strip mining of the mineral more efficient and effective.
Union County Commissioners responded by doing their job – researching the issue and discovering a potential danger to the residents of the county. They decided they needed more time to look into the matter, so they declared the first, of three, moratoriums on the acceptance by the county of any applications for a mining permit.
The county examined its current regulations on mining and land use and found them to be lacking, so they sought the help of the North Florida Regional Planning Council to see if there needed to be any updates to the land use regulations.
With the assistance of the North Florida Regional Planning Council, Union County began working on its land use regulations in an attempt to create a series of controls on mining activities in the county. After three years of a moratorium prohibiting the acceptance by the county of any application for a mining permit, the amendments and changes to the land development and use regulations were put into place just a few months prior to the filing.
In October 2018, HPS Enterprises II, LLC filed a suit against Union County for relief from the (then) recently adopted land use regulations which it said would create a burden on the company and its use of its lawfully owned property, citing the Bert J. Harris Jr. Private Property Rights Protection Act (1995) as their legal precedent. The act is a provision purposed for the protection of businesses from governmental persecution and sanctions.
In the complaint, HPS lead attorney D. Kent Safriet, with the firm Hopping, Green and Sams, sought relief from what is called in the complaint, “inverse condemnation.” The complaint stated that it is seeking relief through state judicial remedies, as required by Florida law, before taking the next step and filing in federal court. The suit alleged “unconstitutional taking” of land whose use is controlled by the new LDRs.
In a claim made possible by the Harris Act, HPS sought payment of $298,750,000.00, plus attorney fees and costs, from the county for damages in October 2018. HPS did offer to remove this claim and to waive any right to damages incurred since “the initial adoption of the County’s illegal moratorium and Plan Amendment” if the county would immediately issue mining approvals for the property and pay its attorney fees and costs.
According to the suit, “the County’s adoption of the Plan Amendment inordinately burdens the Property by directly restricting the development potential of the Property as a phosphate mine such that the Landowner is now directly restricted or limited in the use of the property.” It goes on to claim that the amendments will make HPS unable to “attain its reasonable, investment-backed expectation for the existing use of the property.” The claim made is that the land use amendments will restrict HPS to using only 341 acres of the 2,757.6 acres it originally planned to mine, an 87% reduction.
The suit goes on to state that the county’s actions have “imposed a loss in fair market value” of the property of $298,750,000. It is also stated that “the county’s actions have deprived the landowner of substantially all economically viable use of its Property,” despite the fact that said property has seen past use as pasture, crop and timber land, presumably as a part of a profit-motivated business venture. In addition to this, on the website of the Union County Property Appraiser, there has been no change in the assessed value of any of this property to reflect its value for mining.
The suit requested that the court, in this case the circuit court of the Eighth Judicial Circuit, grant a judgement against the county for compensation under the Harris Act including an award of “costs, pre-judgement interest, reasonable attorney’s fees and other such relief” the court deems appropriate and that the county be ordered to pay full compensation, including the above mentioned costs. The summons for this lawsuit was filed with the court on March 8, 2019 and served on the board on March 14, but no court date was set.
On March 8, 2019 attorneys for Union County formally filed a motion to dismiss the above suit, citing seven defects in the suit. HPS’s attorneys, with the firm Hopping, Green and Sams, filed an opposition to the county’s motion to dismiss on April 16, 2019.
The case came before Eighth Judicial District Judge Denise Ferrero on June 26 in the main courtroom in the Union County Courthouse and these alleged defects were discussed by both sides at length. Present at the hearing were James Jack Taylor representing HPS and David A. Theriaque, S. Brent Spain and County Attorney Russ Wade representing Union County.
Ferrero heard the case and said she would study the matter and then make her decision in the matter. A few weeks after the hearing, she requested a number of items from the county pertaining to the matter, especially the newly implemented land use regulations. On March 6, 2020, the Union County Board of County Commissioners received notice of the judge’s decision in the matter.
On the request for compensation under the Bert Harris Act, which the county asked to be dismissed, was found to be valid by the court. The decision does not deal with whether or not the county will be ordered to pay HPS the nearly $300 million it plans to ask for, but simply that HPS’ claim is “legally sufficient,” meaning that it is sufficient to be heard as a valid case in the future.
In the matter of the second count dealt with in the hearing, HPS’ claim for inverse condemnation was declared “not ripe,” meaning that at the present time the case was not ready for consideration because it rests upon contingent events in the future that may not happen as expected or which may never happen. This count was dismissed on the grounds of this lack of “ripeness.”
The end result left the county open for a suit made by HPS for the $298,750,000 in lost property value it claims as a result of the new land use regulations. Of course, the amount requested in the suit will include all HSP’s legal and court fees for the action as well.
In apparent preparation for this action, attorneys with Hopping, Green and Sams filed the latest in a long line (since the phosphate issue began) of public records requests with the county, transmitted to the county on March 10, 2020. This request asks for “any and all public records since September 18, 2018, related to or concerning phosphate mining in Union and/or Bradford counties,” and “any and all public records since September 18, 2018, related to or concerning HPS Enterprises II, LLC.” The law firm included a guarantee of reimbursement for copying fees for the requested documents, but no such offer for the county employee hours that fulfilling this request will require – the county will have to pay for those it seems.
Finally a date was set for a case management hearing on the Bert Harris Act claim. On Feb. 10, 2021 the case management for HPS Enterprises vs. Union County, FL was held, under the authority of Judge Robert Groeb. The case was held as a Zoom meeting, as are most cases in the age of COVID-19. D. Kent Safret was on hand representing HPS while David A. Theriaque and Russ Wade were there representing Union County.
Safret was quick to state that he felt that the case was ready for trial, while Theriaque said he believed that he and Wade were still in the first round of discovery in preparation of the case. He made several points about the upcoming case, such as looking at planners, engineers and other experts. He also said he believed that the court would need to consider the mine as a whole, despite the fact part of it is located in adjacent Bradford County.
The judge agreed that the case seemed to be in a “pretty preliminary stage right now”. Wade then added that he felt time would be needed to consult with and retain a number of expert witnesses on the more technical aspects of the case.
Safret quickly responded that he did not think any expert witnesses were necessary since HPS had already done an impact study and the allegation that the county had changed the comprehensive land use plan specifically to prevent the mining was the primary issue. He said he would like to set a date at that time, and then either party could ask for an extension with good cause.
Groeb said he wanted to set a “hard and firm” trial date when he did so, with very few acceptable reasons for any extensions.
“When I set a date it is pretty much a drop dead date,” Groeb said.
Groeb said he would adjourn the case management session for 90 days and then bring everyone back to the table to set a hard and fast date. During further discussion, Safret revealed that he was looking for a two part trial, the first half before the judge alone, then a second part with a jury to decide the extent of the damages. The judge then decided to set the date for the decisions on the initial trial for May 26, 2021, adding that, given the judicial backup, a trial date set then would most likely take place 9-12 months out.
Discussion then moved to the expected duration of the trial. Safret said he did not feel that it would take more than three days, while Theriaque and Wade said they were looking at two or three week, as they expected to have multiple expert witnesses, This would require a set-aside of 8-10 days in the judicial calendar, with more days to be added if necessary.
Groeb said he had been on the bench for 11 years and had not ever tried this type of case (a Bert Harris Act action) but he felt like it would probably take about 10 days. He said that he had not indication that the courts would be back to normal by the time the trial date would come around, 12 months or more from then, and that, from what he was hearing from the Florida Supreme Court, the trial would probably be held on Zoom. He added that he hoped the trial could be conducted with all the player in the courtroom, in person.
Since the time of the above action, the county and HPS Enterprises has entered into what has become a series of mediation sessions between county representatives, those from HPS and legal representatives from both sides. The purpose of these talks is to attempt to reach an agreement between the two entities and avoid a lengthy, and costly, trial. So far, there have been two such sessions, with a third set for April 2022.
Certain legal sessions, such as those held for mediation, are closed to the public and the press (allowed under Florida law to protect both parties from jurors who might come to the trial, should one be necessary, who may have formed opinions on the matter before being presented with the case and its evidence, as well as for other issues). As such, it is not possible for the Times to obtain or present any information on how, if at all, the sessions are proceeding. Numerous sessions are not uncommon in such a complicated case and are not a sure indication of just how the discussion is proceeding. Such information will be available only when the case is either “settled” through mediation of come to trial and decided there.
So, Union County, we are not “there yet” and no one seems sure of when that destination will be reached, or even exactly what it will be. As of now, the Times has no new information as to when the matter will be settled, one way or the other, or even when it will come to trial (if that is necessary). All we can do is wait and see.
