HPS II drops Union County phosphate mine lawsuit 2022-06-23

Last Thursday, Kate Ellison posted on her facebook page the news that HPS II had dropped its lawsuit against Union County, Florida, which had been going on since 2019.

The miners were attempting to overturn Union County’s rejection of their phosphate mining permit applicaiton, and Union County’s changed land development regulations that prohibited such mining except in a small area. This is big news, although there may be more to come, and there are implications as far away as the Okefenokee Swamp in Georgia.

[Union County Times, Nutrien Phosphate Mine]
Union County Times, Nutrien Phosphate Mine

Suwannee Riverkeeper has opposed this mine since 2017, because it is uphill from the New River which flows into the Santa Fe River and then the Suwannee River, and above the Floridan Aquifer. Our Santa Fe River (OSFR) has been in the middle of this opposition all along, so, not surprisingly, OSFR has posted an extensive review, see below, naming many of the other people involved.

I’d also like to mention that, back in 2019, Alachua County Commissioners voted up to $621,000 for attorney fees to assist in this case.

And, of course, there’s still Bradford County, which has never rejected HPS II’s application for the other half of the same mine.

And, if this lawsuit dismissal actually turns out to be the end of HPS II, remember that HPS II said they would not process the mined material onsite. The nearest likely processing site is the Nutrien phosphate mine in Hamilton County, north of White Springs.

[PCS Phosphate Mine 2016-10-22, Southwings flight for WWALS, pictures by Jim Tatum, https://wwals.net/?p=32043]
PCS (now Nutrien) Phosphate Mine 2016-10-22, Southwings flight for WWALS, pictures by Jim Tatum, https://wwals.net/?p=32043

Without that projected revenue, Nutrien has even more incentive to expand east across the Suwannee River into Columbia County. Or north across the state line into Echols County, Georgia. The Nutrien mine in Hamilton County is visible from the air near Fargo, GA.

[US 441 on right, 30.6574854, -82.5277756]
US 441 on right, and to its left Nutrien phosphate mine on the horizon, https://www.google.com/maps/@30.6574854,-82.5277756,17z/data=!3m1!4b1!4m2!3m1!1s0x0:0x0

We have enough mining problems near the Okefenokee Swamp with that titanium strip mine application southeast of it without any mining closer southwest of it.

[Nutrien Phosphate mine seen from near Fargo, GA, 30.6543828, -82.5286208]
Nutrien Phosphate mine seen from near Fargo, GA, above GA 94 and Cypress Creek, just outside the Okefenokee National Wildlife Refuge https://www.google.com/maps/@30.6543828,-82.5286208,17z/data=!3m1!4b1!4m2!3m1!1s0x0:0x0

Georgia readers may be unfamiliar with Florida’s 1995 Bert Harris Act, which gives private property owners who claim a “vested interest” such as mining the right to sue governments that pass ordinances restricting such interests, even if the restriction does not amount to a taking under the U.S. Constitution. Georgia does not have an equivalent, so far as I know. But if phosphate miners move into Georgia, I’m sure they’ll find some basis to sue.

Jim Tatum, OSFR News, June 27, 2022, HPS II Drops Lawsuit,

Many of our readers have learned of the recent dismissal of the lawsuit HPS II had against Union Co. and here we have some information. Thanks to Michelle Rose Moretti and Kate Ellison for images, and to Rachael Curran of Center for Biological Diversity for legal information.

Many felt that the Bert Harris act, the basis of the legal challenge, was a weak argument. Documents addressing the act, written by prominent lawyers Randall Denker of Tallahassee and Paul Boudreaux of Stetson University College of Law, more than adequately show the ineffectiveness and inappropriateness of this act in regard to fracking, and at least some of their reasons should apply to phosphate mining.

Some of the unanswered questions posed by Tracy Lee Tate [below] relating to this dismissal are solved by Rachael Curran. With her permission, I am posting here her comments after her consultation with Russ Wade, the Union County Attorney:

He [Russ Wade] confirmed the joint stipulation of dismissal was unconditional and there was no outside settlement. They are still waiting for HPS to execute and file with the court. Once that happens, the dismissal will be effective as of the date of the filing of the joint stip. Keep in mind that even though this is without prejudice (meaning there’s a possibility that HPS II could re-open or re-file their case based on the same Bert Harris Act claim), there’s still a Bert Harris Act statute of limitations of 4

rachael curran
Rachael Curran. Photo by Jim Tatum.

years from the date the Notice of Claim was first sent to the County. The Notice of Claim was sent October 29, 2018, and since the statute of limitations wasn’t tolled by any HPS II administrative or judicial action seeking relief from the government action forming the basis of the Notice of Claim (the Comp Plan Amendments and LDRs) as far as I can tell, the statute of limitation runs October 29, 2022, after which they are time-barred from refiling or reopening the same case. That’s about four months from now, and it’s unlikely HPS would re-file or reopen the same lawsuit based on the same Bert Harris claim between now and then. They could always submit a new application or resubmit the old one so that the County actually has to review it (the only other time HPS II submitted an application was during the moratorium which is why it was never decided upon), but the County would use the current comp plan and LDRs to process the application now, and due to the very limited acreage that’s now available for a mining permit, the end result would almost certainly be a denial, (that HPS is free to submit another Notice of Claim on within a year, but that would be even more baseless than the October 29, 2018 one.

There’s of course still Bradford County to contend with, but draglines and beneficiation plants are very expensive and its highly unlikely mining only the amount of acreage in the Bradford side of the MMP would be economically feasible.
Neither Attorney Wade nor the commissioners have any idea why HPS is dismissing, and they were just as surprised and happy as we are. I’d let HPS II answer reporters’ questions on that one and not speculate. There is the very small chance that HPS II will change its mind and not execute the joint stipulation of dismissal, but I doubt it. I’d go ahead and celebrate as soon as the joint stipulation of dismissal hits the court docket. Union County OCRS (civitekflorida.com)
Next step is getting Bradford to deny the permit application, and then adopting similar comp plan amendments and LDRs that Union County did. A campaign to get all the counties in the ridge/deposit to adopt comp plan amendments and LDRs with the same effect would be great.

OSFR has spent a lot of time, money and effort fighting this attempt by a company which, for money, would put the Santa Fe River at great risk

brad18carol In: Florida Springs Council Presents Springs Advocacy & Communications Workshop | Our Santa Fe River, Inc. (OSFR) | Protecting the Santa Fe River
Carol Mosley. Photo by Jim Tatum

of permanent catastrophic contamination. Under the direction of Merrillee Malwitz-Jipson, a local group was formed called Citizens Against Phosphate Mining. Along with OSFR, that group has continued the years-long fight and among the locals, Carol Mosley has been the stalwart advocate, along with Cindy North and Carol Burton. They, and others also, have spent untold hours collecting documents, attending meetings and writing letters.

One must once again recognize the wisdom, courage and persistence of the Union County Commissioners who, under tremendous threats, intimidation and pressure, have remained steadfast in their determination to preserve the rural lifestyle that HPS II would take from them forever.
That a group of landowners could take it upon themselves to risk destroying a thing such as the Santa Fe River for personal profit is an unspeakable transgression, and is a deafening shout out to us why we need to put the amendment in our Constitution to prevent this criminal act and others of its ilk.

unioncohps2022 In: Florida Springs Council Presents Springs Advocacy & Communications Workshop | Our Santa Fe River, Inc. (OSFR) | Protecting the Santa Fe River


Union co hps 2022B In: Florida Springs Council Presents Springs Advocacy & Communications Workshop | Our Santa Fe River, Inc. (OSFR) | Protecting the Santa Fe River

Comments by OSFR historian Jim Tatum.

Tracy Lee Tate, Union County Times, June 23, 2022, HPS, Union County agree to dismiss $300M lawsuit,

[Page 1, Union County Times 2022-06-23]
Page 1, Union County Times 2022-06-23

USPS 062-700 — Starke, Florida

Thursday, June 23, 2022

HPS, Union County agree to dismiss $300M lawsuit

Times Editor

LAKE BUTLER — It’s been a long road. For more than six years the Union County Board of County Commissioners has been at odds with a group of four families who wanted to mine phosphate in Union and Bradford counties.

Since 2018 the county has been under the threat of a suit under the Bert Harris Act filed against it for nearly $300 million for compensation for the restriction of mining activities — depriving HPS Enterprises I of its rightful use of its land and other related matters. Whether the issue of mining is now mute, or whether it may retum, for now the county is out from under the onus of the suit after both parties recently agreed to “stipulate to the dismissal without prejudice of this action.” The agreement was announced by County Attormey Russ Wade at the regular June meeting (June 20) of the Board of Commissioners

When the mining proposal first came to the fore, commissioners did their due diligence and agreed that the mining operation would be a detriment to the county and its citizens if allowed to proceed as planned. They sought the aid of the North Florida Regional Planning Council to update the Land Development Regulations (LDRs) to help protect environmentally delicate areas and to reduce the risk to county residents and their welfare. This began the run of three year-long moratoriums that prohibited the county from accepting any applications for mining permits until the new regulations could be put in place, which they were in mid-2018. In Oct. 2018, HPS II filed suit for $298,750,000.00, plus attomey fees and court costs against the county for the “inverse condemnation” of its property, “restricting the development potential of the Property” and rendering HPS TI unable to “attain its reasonable, investment-backed expectation for the existing use of the property.”

In the claim it was stated that the new LDRs would restrict HPS II to the use of only 341 acres of the 2,757.6 acres it had originally planned to mine — an 87% reduction. Also claimed was the loss of the “fair market value” of the property in the amount of $298,750,000 and that the county’s actions had “deprived the landowner of substantially all economically viable use of the property.

The summons for this action was filed with the court on March 8, 2019 and served on the board on March 4, 2019 with no court date set. Also on March 8, 2019. the county filed a motion to dismiss the suit, citing seven defects it. HPS II filed an opposition to the county’s motion to dismiss on April 16, 2019. The case was heard on June 26, 2019 by Eighth Judicial District Judge Denise Ferrero and she delivered her judgement on March 6 2020 ~ she deemed the suit filed by HPS II was “legally sufficient”, which meant it would be heard, not that it was decided in their favor. She also dismissed HPS II’s claim of “inverse condemnation” as being “not ripe” — not ready for consideration because it depended on contingent events in the future that might not unfold as expected.

In February 2021 a case management hearing was held under the authority of Judge Robert Groeb. This was during the height of the COVID-19 pandemic and the case was conducted as a ZOOM virtual meeting. Because of the judicial backlog caused by the pandemic, no definite date was set for the hearing of the case. Since that time the court ordered both parties to enter into mediation sessions to see if any or all of the problems could be worked out between them, allowing for a shorter and less costly trial. The result of these sessions has not yet been made available to the Times as public records, so it is not known what took place in the meetings.

See DISMISS, page 6

[Page 6, Union County Times 2022-06-23]
Page 6, Union County Times 2022-06-23


Continued from page 1

Now that the suit by HPS II has been dismissed it is really not known what will happen next. The matter could be resolved with no mining to take place mining could be conducted on the 341 acres of Union County allowed by the LDRs and the property in Bradford County included in the original plan or HPS II could come back and file suit against the county again Only time will tell what will come next, but commissioners and Union County residents are breathing a little easier for now with the threat of the lawsuit off the table.

There is still a great deal that is not known, such as what occurred in the mediation sessions and what the thoughts are of the participants on both sides throughout the past years The Times will attempt to gather this information and fill in the rest of the story in the near future.

For much more about phosphate mining, see: https://wwals.net/issues/phosphate-mining/

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

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