Challenging “Alligator Alcatraz”: The Legal Fight to Protect the Everglades with Elise Bennett

It's a very recent lawsuit. Usually I don't interview people when things are so new, but it's regarding the infamous, I don't whether we're calling it a detention center, a prison, a concentration camp, anyway, in the Everglades, which I know you have all heard about, known as Alligator Alcatraz.

I think that's the last time I'll use that loathsome title for it 'cause it's disgusting. And you know, obviously this is a huge human rights problem, but it's also a huge environmental and animal issue. Unbelievable issues here that really are pretty shocking and uh, we have exactly the right person to talk about it.

Elise is a Florida and Caribbean Director and a Senior Attorney at The Center, and she's also a native Floridian and she is exactly the right person to be talking about this, so thank you so much for joining us, Elise.

Elise Bennett: Thank you, Mariann. I'm glad to be here and talk about this with you.

Mariann Sullivan: So let's just start with some facts. People know some of the facts because this has been all over the news, but your facts are different because they're putting everything, it's the same situation going on, but in a very different context 'cause we're talking about the animals. First of all, can you just locate the facility for us?

We know it's like in the Everglades somewhere, but most of us don't really have it very specifically, and that's pretty important in this case.

Elise Bennett: Sure. So the Greater Everglades ecosystem extends across most of the southern tip of Florida, so that's the general setting. And then within the Everglades we have Big Cypress National Preserve, which is a national park service managed property that's critical to the environmental health, the clean water, and the endangered species that live in the Everglades. The setting for this mass immigration detention center is right in the middle of this preserve that's right in the middle of the Everglades, America's Everglades, which we've been working to restore for decades now. The site is owned by Miami-Dade County, or I should say it was before the state of Florida commandeered it, and has a pretty unique history.

It was once under threat of development back in the sixties and seventies, and fortunately we were able to fight that off. We, being the environmental movement, people long before me. And it's pretty shocking and appalling to be back here again, fighting yet another development in this incredibly sensitive area, uh, particularly one with such a despicable purpose.

Mariann Sullivan: So you mentioned Big Cypress National Preserve. I don't even know the difference between all the different names, but I know there are. There's also Everglades National Park, right? Is that like contiguous with the National Preserve?

Elise Bennett: It's right next door to the National Preserve. Uh, so if you look in southern Florida, it's actually a really, uh, kind of beautiful mosaic of national and state and local preserves. And that's because it's, it's just such an ecologically sensitive area, and so critical to our clean water and healthy ecosystems.

Mariann Sullivan: Yeah. And actually I saw a reference to something called the Comprehensive Everglades Restoration Plan. So that's the big plan that has governed the restoration of the entire area? And like we're talking about a lot of money has been spent. I mean, not that this is all about money, obviously, but, but it is kind of a relevant consideration that people have spent a lot of money and effort and, and heart and soul try to save this area.

Elise Bennett: That's right. It's more than reasonable to be talking about it. And that's in part because we've spent billions, with a b, between the federal and the state and local governments and conservation partners to restore the flow of water from Lake Okeechobee, which is in the northern part of the Greater Everglades ecosystem, south to the tip of Florida. And so as you could imagine, when you're trying to have a nice, you know, natural flow, what you're trying to do is remove obstructions, not put new ones in, like this mass detention center. When I first heard about this project back in mid-June, it seemed so boneheaded. I didn't think it could possibly be real or serious.

It's environmentally harmful and fiscally wasteful.

Mariann Sullivan: Yeah. You, you've pinpointed where it is for us. Is that contested? Like do they say No, it's not in the Big Cypress National Preserve. It's like. Uh, is this a contested fact? 'Cause it seems very hard to contest because y'know, it is where it is.

Elise Bennett: Yeah, I would say no. I have actually been past this site many a time. I've hiked and visited Big Cyprus. It's well known to people that this site is in the middle of, of an ecological treasure, not just nationally, but uh, internationally recognized, for its dark skies, for its wetlands.

You know, there, there's no question what the setting around this site is.

Mariann Sullivan: Now there is something there, right? There's a airstrip there that's like left over from something else. Is that right? It's not. I mean, it's a site that they kind of found and are just making incredibly bigger and more complicated.

Elise Bennett: Right. So I, I think some folks who maybe aren't from around here get confused because they hear that it's, it's an airport site. And when you think of an airport, you think of an international airport that's got, you know, restaurants and, and bathrooms. And that's not what this is. This is essentially a, a little used, nearly abandoned airstrip.

Uh, and it's actually the remnants of the Everglades Jetport project that had been proposed, back in the late 1900s uh, in the sixties and seventies. Environmental icons like Marjorie Stoneman Douglas,

Mariann Sullivan: right.

Elise Bennett: and the Friends of the Everglades, who are our co-plaintiffs in this case, fought to stop that jet port. And, and it was intended to be one of the largest airports in the world. and can you imagine this beautiful preserve having become an airport? So I, I think the history of this site is really fascinating and the history of why that strip is even there. And I think it's a reminder that we're lucky it's only a paved strip. Uh, just one, you know, airstrip on that property, which has largely been used for pilots to practice taking off and landing. They call 'em touch and go. Pretty little used. Uh, I've learned through talking with folks and through research that, you know, we now actually have a lot of ways to practice landing planes with sort of, uh, digital, you know, uh, practice things.

So it's, it's really not a well used site. And what we're seeing now is, uh, an increase in intensity in use. You know, there's no sewage, plumbing, anything like that on the site, or at least, you know, and, and so now, you know, what we have seen is essentially a new town popping

up in the middle of a preserve.

Mariann Sullivan: Yeah, and I wanna get into more details on that, but let's talk about the animals first because everybody, everybody's heard about the alligators because as I mentioned, their like funny name. Really makes me insane every time I hear it. But they're not the only animals in the Everglades.

I mean, like, there are a lot of animals. I mean, when you're not just talking about, and even other animals who would be dangerous to humans, but we're mostly talking about animals who are going to be impacted by humans. And of course, we need to focus, you need to focus because we're talking about the law here, on the ones who are endangered or threatened

as a

species, they're all endangered or threatened as individuals because... yeah.

But no matter what your species is doing, you can still end up killed. But we're talking about the law here, so we do have to focus on who's endangered and threatened. So some, what are some of the species that are involved that are really going to be legally relevant?

Elise Bennett: Right. Well, so this is, as you mentioned, an incredibly biodiverse area in part because of how preserved the, the ecosystem is and the fact that we're restoring it.

Mariann Sullivan: Of course. Yeah. You set, you set these animals up to be there.

Elise Bennett: And, and really, I, you know, I always like to preface this, but this is one of the last few safe havens for some of these species as development for commercial and residential uses across the rest of the state is eating away at habitat. So the idea that, you know, they're already not protected on those lands and now they can't even be safe in a federal preserve is outrageous. And it's even more outrageous when you know the cast of characters here. I mean. The Everglades, the Greater Everglades ecosystem, and Big Cyprus is home to the endangered Florida panther, which what once roamed across much of the southeastern United States. And because of persecution, hunting, habitat destruction, they've been sort of forced down into this very small area in southwest Florida. And that includes this very site. We actually have telemetry collar data, these radio collars are put on panthers, and we can see that they have actually traversed this site and all around it. We know that there's a panther den nearby. And we know that federal lands like Big Cyprus and like the Everglades are critical home bases for the species. And so coming in and disrupting with a development, as you could imagine, I mean, I can talk more about the impacts later, but they are multifaceted. But the panther isn't the only one. We also have the Florida bonneted bat. It's Florida's only endemic bat, which means it's, it's a bat that's only found in Florida, and it's actually only found in South Florida. It's called bonneted because it's ears hang over its face like a little news boy hat. So, um, they've got these little bonnets. They're Florida's largest bat, and they really need open dark skies to forage and feed, because they're so large, they actually have difficulty flying through dense forests.

I was talking with a bat biologist about this species a few years ago, and they were saying that, um, Florida bonneted bats are almost like jet planes. They've got big long wings and they fly really fast. That means that while they're very fast, they can't maneuver very well around obstacles.

And so they'll live in the forest, but then they fly out to vast open spaces to feed where they can go fast and not run into obstacles. So, you know, places where it's more open and un forested, places like this site, could be really important feeding areas so long as they stay dark at night.

Uh, and the bats feed on all types of insects in the evenings. this is also an endangered species. There's, uh, one population in Miami-Dade County that's considered the largest known population. Uh, and then there's several populations on the southwestern side of Florida that are much smaller and more vulnerable, but recent study has shown are actually genetically unique from the Eastern bats. And so it's, we we're learning that each of these populations is critically important to the genetic health of the species as a whole. So a really incredible that we even have a population in Big Cyprus, and we know too that they have been, um, through doing recordings at night, we've been able to tell that there are bats that use areas within miles of the site. Um, they haven't been surveyed on the site, but it suggests because they can fly dozens of miles at a night to hunt that they probably are flying over the site and using it as well.

Mariann Sullivan: Yeah. And as I mentioned, well, I mean, darkness is obviously one of the huge, um, factors that we're talking about. But in addition to these animals, there are many, many animals, including the alligators, who are not endangered, right? So I guess we're not supposed to worry about them ending up dead on the roads.

But of course, a lot of them are going to end up dead on the roads and, and animals who don't currently belong to endangered species. So, though God knows it sounds like they could be soon, uh, but they're also just gonna be put at risk and, but they don't really enter into the lawsuit.

Elise Bennett: Right. Well, I think, you know, the cruelty begins at the site, but it extends far beyond, and you're right, it includes all kinds of species, including ones that may be considered common. And as, as you probably know from speaking with others in this field, you know, we're worried about endangered and threatened species, but conservationists are also worried about declines in what were once common species as well because it indicates the health of our environment is declining. And, and that's the web of life that we all depend on.

Mariann Sullivan: And our, you know, the listeners of this podcast, believe me, they don't care whether they're endangered or not, they just care about them. Which is perfectly legitimate, but you know, we have to deal with the law as it is. So, talk, when we talked about darkness is a really important value, I imagine that's really being disrupted.

But tell us about what are the potential harms to the animals that are occurring now and are going to get even worse as it develops.

Elise Bennett: I think light is a perfect place to start because it's so open and obvious. Anybody who drives past the site can see it. And what we know now is that the artificial lighting that was brought onto the site is visible from more than 15 miles away on land. You can

Mariann Sullivan: Unbelievable.

Elise Bennett: hike or drive. That means from Everglades National Park you can see the light. From photos that I've seen, it looks like the Yankee Stadium lit up in the middle

Mariann Sullivan: Yeah,

Elise Bennett: of Big Cypress

Mariann Sullivan: yeah. No, I can picture it. Those, those huge, huge floodlights that they put up. Yeah.

Elise Bennett: Right. And we've actually also looked at satellite imagery, and you can see this spot from space.

Mariann Sullivan: Wow.

Elise Bennett: It was once entirely dark in this area and through satellite imagery and after the, the beginning of the construction and operation, you can see by jumping back and forth between satellite images, um, this just bright spot in the middle of Big Cypress.

So there's no question the light is extensive and, you know, for people that means they can't go out and star gaze and enjoy the stars. That also means wildlife can't use the night skies. Um, you know, the Mikasuki tribe who have villages nearby, you know, using the sky and stars they've talked about in, in, in interviews that I've listened to, you know, are an incredibly important part being in Big Cypress for them.

And it's, it's all blotted out by these lights. But for the animals, it's life or death. Uh, for Panthers, it means that they aren't gonna go near the site. You know, there's sort of this myth perpetuated by both the state and federal government and the government officials that it we're putting people here because the wild animals are coming to get them, the alligators and the panthers. But that that couldn't be further from the truth. And animal lovers understand that. They understand that animals see humans as threats and all of the human activity and bright lights means that Florida panthers are and do avoid the site now, there's no question about it. We have panther experts who have provided reports talking about panther behavior. That's immediately impactful because it means they have fewer places to roam and hunt. Uh, we know they did pass over the site and were likely using it for that purpose. But also panthers are very territorial. And so if you have two male panthers that have home ranges near each other and one is forced out of part of its home range and perhaps starts using another panther's home range. they will actually confront each other.

Mariann Sullivan: Of course, of course.

Elise Bennett: They could fight to the death. It's

Mariann Sullivan: Yeah.

Elise Bennett: specific aggression. Uh, and so there are real consequences for individual panthers and for the species as a whole because we know that we only have about 120 to 230 left in the wild, and losing even one is a huge blow to the population as a whole. whole

Mariann Sullivan: That's unbelievably endangered, isn't it?

Elise Bennett: It

Mariann Sullivan: It's a very small population. All right, so, so let's sort out the players. Just, just very briefly. The defendants are both state and federal. Miami Dade County owns the site, I think. Then there's the Florida Division of Emergency Management, the United States Department of Homeland Security and and ICE, or the US Immigration and Customs Enforcement.

And a lot of the lawsuit kind of, we won't go into it right now, I guess, because a lot of the lawsuit kind of is controlled by who's really doing what, right?

Elise Bennett: Right. I, I mean, I think there's sort of a shell game going on right now, when it comes to the briefing and public statements about who's in charge. Although we could dig more into that,

Mariann Sullivan: Yeah,

Elise Bennett: The answer is, it's the federal government.

But yes, so especially for these federal environmental laws we're gonna talk about, the focus is really on Department of Homeland Security and Immigration and Customs Enforcement.

Mariann Sullivan: So who has done, I mean, it, it, who, this is hard to figure out even reading all your papers. 'Cause it is really is like a shell game. Reading your papers, then reading their papers. It's like, huh, what? But who actually built, well it's not finished, built what has been done so far and it's continuing to build this is? And you know, I I I just wanna keep reminding myself 'cause I'm talking about it like it's a normal facility.

We're talking about a concentration camp being built. So the facility itself is like a nightmare. But we're talking about other aspects about it. So, so I don't wanna sound too matter of fact about it, but who's put together this horrible place?

Elise Bennett: You are right. It, I mean, it's, it's a haphazard and frantic attempt at what appears to be a political ploy, right? I mean, I think what we've seen is that government officials are more interested in giving this cutesy name to this political stunt than they are to thinking about the impacts to people or the environment, and they're standing by that position. Even though Floridians and, and I would say Americans care about the Everglades, they care about the wellbeing of people. Um, and, and they want our government to take care of those things.

Mariann Sullivan: Yeah, I was just thinking about that before we started, like, because I was reading that, you know, you're a native Floridian and thinking, well, of course the Everglades are very important and I, I just think it's, it's so important for us all to remember that yes, as a Floridian they're very special to you, but all of this is very special to all of us.

I mean, to think of ourselves as Americans and, and having a responsibility for all of it. And the Everglades, I've never been to the Everglades, but they're part of, of, you know, my country and part of my responsibility. And I think we should all be thinking like that.

Elise Bennett: Oh, they're the pride of the world. It's a world heritage site. I mean, people travel the world to come and see this place,

and they don't come to see an immigration detention camp. I guess it got us a little off topic there. Sort of going back to who is doing this is, I think, um, only underscores how preposterous it is because, you know, what we know is that Department of Homeland Security Secretary Noem, has publicly stated that her agency and the state are partnering on this. Uh, she's referenced that it's gonna be paid for by the Federal Emergency Management Administration, FEMA. We've seen Department of Homeland Security vehicles going off and on the site. We have individuals who have witnessed that and are willing to attest to it. And I think maybe what's most important here is sort of regardless of who pays for it or who's the one setting up tents on the ground, this is inherently a federal activity.

The state can't act in the field of immigration law, which is federal, without approval or control from the federal government. And so, uh, you know, that's where it kind of gets to, I talk about the shell game, right? We, you know, we can talk about specific details about who bought the porta-potties or who is driving the van, but ultimately this is carrying out federal immigration law.

And that can only happen with the participation of the federal government.

Mariann Sullivan: I don't, you know, I think probably almost everybody in the country has heard about this place. I don't think there is anybody who thinks it's a state of Florida facility. Like, like you just, we all think of it as a, a homeland security

facility. I mean, that's, that's just how it, what it is to everybody.

And everybody said, I got, when I was reading this, I was like, what do they mean it's Florida? Like, like it makes no sense whatsoever. Before we get into that, there was one more question I wanted to ask. Like, like why did they pick the Everglades? I mean, this has gotta be like a really odd, do you think there was anything deliberate in it? Or was it just there? Or they must have known that this was going to be particularly controversial. Do you have any idea why?

Elise Bennett: I can't think of any good reason, you

Mariann Sullivan: Yeah.

Elise Bennett: I mean, and I, but

Mariann Sullivan: Well, there could be a bad reason.

Elise Bennett: Right, I mean, I, it, it's incredibly expensive, right? Instead of using a facility that already exists, that already has plumbing, that already has electric, uh, you decide to build a tent camp in the middle of the Everglades? You know, my interest and the interest of my organization is to protect the Everglades and to protect biodiversity, but also as a taxpayer, I'm outraged that my hard earned money is going to this wasteful project. And, there are clearly a lot of, uh, you know, contracted companies that are making lot of money off of this.

Mariann Sullivan: Oh yeah.

Elise Bennett: And

Mariann Sullivan: I should. I should have thought of that.

Elise Bennett: I mean, there's really interesting reporting about it. You know, I can't say for certain what the plan or goal was here, but given that it's so obviously wasteful in terms of money, wasteful in terms of natural resources, cruel.

Mariann Sullivan: And they must have known it was le legally dicey. I mean, they can't have been completely unaware that, that there were legal problems. There was some place, this is like, I'm, I'm digressing, but there was some place in, in the papers where one, I don't remember where it was, but one of the defendants was saying, you know, why it was not, um, a federal action or something like that Biden's administration had housed immigrants in a hotel in Manhattan. And that wasn't considered a federal facility. I was thinking, well, if they had built a hotel, if the Biden administration had built a hotel in the middle of Central Park, it would've been considered a federal facility.

Uh, like, they didn't just find something.

Elise Bennett: Yeah, I, it's, yeah, it's

Mariann Sullivan: didn't just find something and put people in it, like, uh, there's a whole different story here. Alright. Before, and before we, I'm gonna get to the lawsuit. I promise everybody I'm gonna get to the lawsuit any second now, but people don't really know a lot about what's going on with the prisoners, but can you just tell us a little bit, this isn't directly relevant to your case, but a little bit about, uh, what's happening to the people there and what's going, you know, how, what the future plans are.

And I know that you also have in your papers some talk about how risky this site is, particularly flood risk.

Elise Bennett: Right. Yeah. I mean, I, I think in terms of conditions on the site, which, which is relevant here, right? Because, you know, we will get to it, but one of the things we're asking for early in the case is a restraining order to stop bringing more people to the site and eventually to shut it down because of every day there's more impacts that are harming the environment. Um, but, you know, one of the things that the court will have to weigh is whether it's in the public interest to keep it open. And I think relevant to that question is how we're treating people on the ground there. And, and you know, from what we're hearing from reporting, people are packed cages and tents in the middle of the That's, uh, you know, the mosquitoes there are, are nothing to joke about. Every time I go there, I call it my Everglades sweater. You know, you just get covered, you know, fuzzy 'cause you're covered in mosquitoes. It's one thing to choose to do that, but to be held there in that place, you know, and not to be able to escape or go, you know, put on a mosquito shirt is, is another thing.

So we know, we know that, you know, it's, it's hot. I understand from reporting that the generators have failed on numerous occasions. The bathrooms in each of the units are also connected to where the water comes from. And there's been reports about toilets overflowing. you know,

Mariann Sullivan: Well, just, just sewage for, I mean, in that area must be, I mean, you can't just like put in sewage like.

Elise Bennett: And there's, you know, because there was no environmental analysis, which is really at the heart of our case, we don't know what, if any, planning, and I would doubt there was much at all, if any, uh, went in to how to manage all of this waste. Uh, we do have this one two page document that says that, you know, human refuse and wastewater will be held in large tanks that will be trucked on and off the site.

Mariann Sullivan: Oh my God.

Elise Bennett: But imagine, you know, the contamination risk with overflowing toilets, with the tanks. Um, you know, that's a lot of traffic going in and out every day and that, you know, we could talk about road death and the threat to panthers and eastern indigo snakes and all sorts of rare species. But, you know, the impacts are really, I tell people when I talk to them, it's hard to even know where to begin. It extends from, you know, the cruelty to people all the way out to the cruelty to animals around the site.

But yes. You know, I mean, it's, it's not a place that you would want to be held where you can't leave. And, you know, I think that's important to keep in mind and in weighing, you know, the environmental impacts here and whether it makes sense to keep running this place when we know that there are more humane places that people could be detained, if that's what's necessary.

Well, I think it's particularly telling that, you know, our, our main allegation under the National Environmental Policy Act, or you'll hear people call it NEPA. I'll try not to call NEPA.

Mariann Sullivan: No, we can call it NEPA. You just, uh, you just have to define them the first time you say them. After that, it's okay.

Elise Bennett: I'm happy to do that. Um, I work with law students regularly, so I I'm

Mariann Sullivan: Yeah. All right. Yeah, because the rest of us just, you know, get confused easily.

Elise Bennett: That's right. So under this act, NEPA, the main allegation

is about, uh, compliance with NEPA, and doing an environmental impact statement, which is what's required for any major federal action that will significantly affect the human environment.

That's the language from the statute. Our main allegation is that that environmental impact statement didn't occur. So a really easy way to diffuse the case would've been to say, actually we did, and here it is. That not been the counter argument.

Mariann Sullivan: Yeah. So, yeah. Yeah.

Elise Bennett: They're saying that they weren't required to do it at all.

Mariann Sullivan: Yeah. So we're pretty clear they didn't do anything.

Elise Bennett: Yeah, that's important, to avoid really consequential impacts to wildlife, clean water, clean air, but it's also consequential to the public because NEPA is a public process that, uh, you know, allows for public scoping where the public can come in and ask questions and understand the nature of the project and what the government intends to do.

Which here we don't know because the government has not been transparent about its plans. Uh, and it's also an opportunity for the public to come and share their opinion about the project, to share scientific information that might be relevant to the project's impacts, impacts to the in the surrounding areas, uh, impacts to tribes. None of that happened because the federal agencies bypassed this landmark environmental law.

Mariann Sullivan: So the main plaintiff here, or the first named plaintiff is, is Friends of the Everglades. And I just wanted to mention them because I noticed in the papers that they have actually been in involved with the site for a long time and, and even in that fight you were talking about before about the jet port that was going to be built.

And they are one of the main reasons that that didn't happen. And they're still fighting to save the Everglades.

Elise Bennett: They are. And it's sort of interesting because that project is part of, uh, what inspired NEPA, the National Environmental Policy Act and federal laws.. I often like to call it the law of looking before you leap. Uh, you know, it makes sense to understand what the consequences are of your action before you do it, so you don't regret taking that action later.

Uh, and, and the, the process aside from just analyzing impacts also requires looking at alternatives, you know, which is, is a, I think just a very common sense, reasonable way to go about making decisions, not just for the environment, but also, you know, monetarily and, and for communities. But yes, Friends of the Everglades have been, you know, defending Big Cypress and the Everglades for decades and against projects just like this one.

Mariann Sullivan: Yeah.

Elise Bennett: It's heartbreaking to know that we're back here again. You'd like to think we've learned from history, um, but, but clearly

Mariann Sullivan: It just keeps going around, doesn't it?

Elise Bennett: Yeah.

Mariann Sullivan: Yeah. I, I remember reading about NEPA, I don't know whether this was true, but I imagine it was, that a lot of environmentalists were not happy with it at all when it was passed. Didn't think it would accomplish much, because it doesn't actually set any rules other than you have to look at what you're doing.

And it has actually had an enormous, enormous effect.

Elise Bennett: Right. I think the public accountability part of it is huge, right. I think to be able to understand what our government is doing in any major decision it makes is so important. And even if there are not substantive requirements, which there are not under NEPA, just that process gives us so much.

And that process was completely bypassed here.

Mariann Sullivan: What court are you suing in?

Elise Bennett: We filed our case in the Southern District of Florida

Mariann Sullivan: Okay.

Elise Bennett: Federal

Mariann Sullivan: Okay. And I, article three, standing doesn't seem to be a huge issue here, and frequently in environmental cases. When we talk about animal law cases, it's always a huge, huge issue, so I always like to mention it, but, but can you just lay out the types of facts you laid out to demonstrate that your particular plaintiffs were able to show that they were harmed, um, injured by the harm to the area?

Elise Bennett: Right. So we demonstrated the harm to our organizations through harms to our members who use these sites frequently and have plans to go back, uh, and to go back and see species like the Florida bonneted bat, like the Florida Panther. Red-cockated woodpeckers, uh, a threatened species is near the site.

You know, they go there to enjoy wildlife, to star gaze, to enjoy being out in, in peaceful tranquility, not hiking next to a, a detention center. And so, you know, we were able to lay out just a few examples of our members though we have so many that, uh, you know, venture into Big Cypress regularly.

Uh, myself included. We were able to set forth things like plans to go on a night bicycle ride that would be marred by the lighting from the site, plans and attempts to see Florida Panthers, uh, which are so rare. And, and, you know, every time I'm down in Big Cypress, I'm, I always have my eye out, you know, either whether I'm driving or hiking through, I'm looking for them. And more harm to individuals of the species means, you know, harm to the population and, and a less of an ability to, to be able to see them.

Mariann Sullivan: It's not that you care only about the humans, but that's what you have to do in order to show standing that injury to, to the humans. Yeah. So,

Elise Bennett: Mm-hmm.

Mariann Sullivan: You are easily able to do that with all of the people who care so much about, about this site.

Elise Bennett: Right, it's important to know. I mean, one of our, our members, you know, also mentioned that she just cares about wildlife because of their inherent value, because they deserve to live, each and every one of them. Now, you know, that's less relevant to the court's analysis, but I

Mariann Sullivan: Right.

Elise Bennett: to note that our, our members absolutely care,

Mariann Sullivan: course.

Elise Bennett: These are living beings and they deserve to be treated that way.

Mariann Sullivan: So, uh, your complaint, which has been, this is a very recent case. You only filed it relatively recently. There are a few causes of action, but as you mentioned, your main argument, at least currently has to do with NEPA. Um, and you've already told us what the statute requires, particularly the environmental impact statement.

NEPA does not have a private right of action, right? So you have to sue through the Administrative Procedure Act. Is that, is that right?

Elise Bennett: That's correct.

Mariann Sullivan: So when you sue through the administrative procedure act, you normally arguing something along the lines of what the government did was arbitrary and capricious, abusive of discretion,

Elise Bennett: or failed to comply with law..

Mariann Sullivan: So you're, you're basically relying on that failed to comply with law. Yeah, that makes sense. And there are also a few causes of action against Florida governmental entities. I'm not sure we should spend too much time on these, but I could be wrong, so correct me if, if I am, if you think it's important for us to spend time on them.

But in any case, can you just kind of give us the gist? I think that there was a, um, complaint against the Florida Division of Emergency Management and a cause of action against the county.

Elise Bennett: Exactly. And then we've also actually noticed additional federal violations, which I can talk about, relating to the Endangered Species Act, Clean Water Act and, and National Park Service Organic Act.

Mariann Sullivan: Those are still to come, right? Because you had, you have to give notice. So yeah, we'll have to interview you again.

Elise Bennett: Absolutely

Mariann Sullivan: They're not, they're not on here yet, but they're coming.

Elise Bennett: They're not on the complaint, but we've notified the agencies and that notice is public. And, uh, it's relevant to NEPA in that, you know, environmental impacts are often intimately intertwined with the treatment of wetlands and wildlife.

Mariann Sullivan: But for those particular causes of action, you have to give notice before you actually file your complaint. And like I said, we, I don't usually interview people this early on, but, but here we are.

Elise Bennett: Precisely right. So, so the two other claims that are currently in the complaint, one relates to the Florida Department of Emergency Management, and I would say the short form explanation of that argument is that, uh, you know, the, Florida Department of Emergency Management doesn't have authority to detain federal immigration detainees. There's no law that authorizes them to do that. And so the, the argument is that they're acting outside the scope of their legal authority. And then the other claim is against Miami-Dade County, which essentially alleges that the county, allowed an improper use of its property by, sort of conceding to the state to use, you know, land that isn't zoned for this purpose, for an a Mass Immigration Detention Center.

Mariann Sullivan: Yeah. Those are important, but I'm not sure we have time to focus on them because the, the big cause of action that I really wanna talk about is the NEPA cause of action. I promise we're gonna get to the, but, uh, but we're talking about a TRO on a preliminary injunction.

That's how, you know, that's how early on we are in this. So for those who are unfamiliar, can you, I mean, they, I think they have the same elements, but can you just tell us what those elements are, what you have to show to get TRO, a temporary restraining order or a preliminary injunction, and what is the difference between them?

Elise Bennett: Right. So I'll maybe start with the difference and then we can talk about the elements

Mariann Sullivan: Great.

Elise Bennett: similar. Um, so a temporary restraining order is basically, it's an order that a judge can issue at any time, even without a hearing or a notice to the parties that puts a pause on whatever the activity is that's causing irreparable harm. So in this case, you know, the request was, um, we had filed this motion before any detainees had been brought to the site, and our ask was to pause that because of the irreparable harm that would be caused by bringing people to the site. A preliminary injunction, is usually entered after there's an evidentiary hearing, uh, on these elements that I'll mention in a moment and would last for the course of the case, while we brief the merits of the case. Essentially the whole purpose of a temporary restraining order or a preliminary injunction is to maintain the status quo, so that the very harm that we are concerned about and the harm to our organizations and members, won't occur in a way that can't be repaired on the tail end by a court order.

Mariann Sullivan: I guess the moment for A TRO has passed, because they have responded and... is it always an ex parte application?

Elise Bennett: I would say

generally that's how it occurs.

Mariann Sullivan: Yeah.

Elise Bennett: Yeah. Uh, you know, and I would say it's not too late. Uh, we actually did renew our request for a temporary restraining order until we can get in for a hearing.

Mariann Sullivan: Oh, okay. Cool.

Elise Bennett: As of today, we have a status conference scheduled for Monday.

Mariann Sullivan: Okay.

Elise Bennett: so,

Mariann Sullivan: And this will be, this will, that will have already happened by the time people hear this, so hopefully, uh,

Elise Bennett: had it then. Um,

You asked about the elements, which I would be

Mariann Sullivan: right? Right, right.

Elise Bennett: be helpful.

Mariann Sullivan: Yeah, no, that would be,

Elise Bennett: So, uh, you know, the first element that we would have to show is the likelihood of success on the merits of the case. So in this case, a likelihood that we can prove that the federal agencies were required to do an environmental impact statement and did not. And then we also need to show risk of irreparable harm. And so for, for the environment, that actually is often, um, fairly easy to do because harm that you do to water quality or wetlands or endangered species can't be undone by throwing money at it. In other cases, maybe in business law, you know, you can, you can fix almost anything with money, but you can't do that here. So we'll have to show that. And then we have to show that the public interest and that a balance of the equities also favor putting a hold on activities at the site. And so that's, that's kind of the scope of the argument in our motion for a temporary restraining order and preliminary injunction.

Mariann Sullivan: And so let's talk about likelihood of success on the merits 'cause that really gets us into the whole case, um, even though this is a very preliminary application. You already talked about the elements of a NEPA claim, um, and you noted before that it's about federal actions.

And I would just mention some states have little NEPA statutes. I assume Florida's not one.

Elise Bennett: No, no, not

Mariann Sullivan: Yeah. Yeah. So we're just talking about federal actions and they argue as, you know, you were intimating before that there's just no federal nexus here as this has been carried out for, and just paid for by the state of Florida, which, you know, shocks us all.

What? And so can you just kind of go through what their arguments are and why they're wrong? I mean, it seems obvious, but they do make quite a few. They're pretty adamant about it. That, that this doesn't have anything to do with the federal government.

Elise Bennett: That's right. I mean, the, the argument they make is essentially that the state of Florida has gone rogue and decided to open its own mass detention center for, for federal immigration violators. There is, uh, you know, no basis in fact or in law for that. You know, we talked a little bit about that earlier.

Um, but you know. know, they've talked about, well, we, we don't actually have federal funding. We haven't sought it or gotten it yet. This, it's actually the state of Florida who's leading this. Um, but all of those arguments fail because ultimately what this is, is a federal immigration detention center, and the state of Florida can't operate that without the participation of the federal government. but even beyond sort of that basic truth about the activity at the site, we also have, just loads of public statements from both state and federal officials acknowledging that this is a federal and state partnership, the federal agencies and the state agencies are working together. There's been statements that this is being paid for by federal money.

So I, you know, there's sort of a factual question about, you know, getting the story straight here about what's going on. So, you know, I mean, I, I think for all those reasons, we look forward to having our day in court and having a hearing to, to sort this out because we believe that it's quite clear that the, this is a federal action and there's no way it couldn't be.

Mariann Sullivan: So who's bringing all these prisoners in? I mean, now that they've started

Elise Bennett: You know, that's something we're trying to determine. And in part because it isn't transparent and because, you know, we didn't have a public process before this began, we're having to piece it together ourselves. But I will say this, we have seen Department of Homeland Security buses and vans enter the site. There's no question that there is federal participation in what's going on there. You know, we've also seen unmarked cars, um, you know, trying to determine who's inside those vehicles. It's, it's, um,

Mariann Sullivan: Yeah, it's true. Like trying to figure out what an ICE vehicle is isn't uh, that easy these days? Is it?

Elise Bennett: But the fact is, you know, in the end, no matter who's driving that vehicle, they, they can't be doing it without the approval and the participation of the federal government.

Mariann Sullivan: Oh yeah. I mean, as you pointed out, Florida isn't even allowed to, to do this kind of enforcement. I mean, you go into a number of laws, which we won't go into here, but it seemed, it seemed pretty clear. They also talk about funding. I was a little shocked when you just said a few minutes ago that this is funded by FEMA.

Like FEMA doesn't have anything else to spend its money on. Since we're all like in shock about the terrible job that FEMA is doing, particularly in reference to Texas. Um, so, but they, they don't exactly say that they're never going to pay for this. They just say that they haven't yet. Is that right?

So you can't bring the lawsuit.

Elise Bennett: That does seem to be the argument. Uh, you know, although it's, it's not clear that the facts actually bear that out. But regardless, you know, again, you

Mariann Sullivan: Florida's just kind of fronting the money for the Feds like.

Elise Bennett: It, it's outrageous. I mean, I, you know, and besides the fact, you know, you make a great point about FEMA and, you know, this is not so much relevant to the case itself. But, uh, you know, in some ways FEMA is creating more work for itself by building or funding a tent camp in the middle of the Everglades in the middle of hurricane season.

Mariann Sullivan: Seriously.

Elise Bennett: The evacuation alone, I can't imagine what that is gonna look like, uh, and what will be left behind to be strewn across Big Cypress National Preserve, you know, what kind of waste, tents.

Mariann Sullivan: Yeah. It's horrible.

Elise Bennett: it's, yeah,

Mariann Sullivan: Do you think they planned this all? I mean, is it, was this planned to avoid NEPA that it was gonna be fronted by Florida, even though it's really a federal project.

Elise Bennett: I, I honestly don't know. I think there's aspects of it that seems so poorly planned that it suggests there wasn't planning. But you know, I mean, it does it, um, the way I've been sort of framing it is it's, it's a convenient litigation position to try to, to hide behind the state of Florida here.

I think maybe that in itself, you know, it's hard to know what their intent was, but certainly what they're doing now right, is, is hiding behind the state of Florida

Instead of taking.

Accountability for what's clearly a federal action.

Mariann Sullivan: Yeah. And just keeping things, uh, kind of unwritten and, uh, done on a casual basis. And I dunno. Well, you'll find out whether it's all unwritten. I bet you'll find if you manage to get to discovery you'll be finding some interesting, uh, documentation.

Elise Bennett: And, and federal judges are shrewd, you know, the judge is gonna be able to, to parse out what's going on here. think pretty quickly.

Mariann Sullivan: Yeah. I think that covers the issue of whether it's federal, correct me if I'm wrong, but they also argue that it's not final. What is the meaning of final in this context? I mean, they have built facilities, they have moved people into them, like what's not final about it?

Elise Bennett: Right. I think you hit the nail on the head, right? How can you not have a final agency action when you're already building and operating the facility? I mean, I think that on its face is pretty clear as well.

Mariann Sullivan: So, those are the main two arguments I focused on. But are there any other arguments they set forth on why they think you are not likely to succeed on the merits?

Elise Bennett: No, I think you've probably hit the main tenets of what they raise.

Mariann Sullivan: All right, so let's talk about irreparable harm. I mean. As you pointed out, that's usually easy to show, but I was kind of wondering, do you have to couch irreparable harm to the animals or to the plaintiffs?

Elise Bennett: Yeah. Well, you know, we talk about it in the context of both, uh, and I

Mariann Sullivan: Well, that, that's a good idea to cover your bases.

Elise Bennett: You

Mariann Sullivan: I just wondered how it interacted with that whole standing question. Yeah. Uh,

Elise Bennett: I mean, I, I think it's, it's important to tie it back to the interests of the groups, right? And the interests of our groups is to protect the Everglades and to protect endangered and threatened species.

And so it's incredibly relevant to talk about what the impacts to these species will be. You know, we go into great detail, for species and also for, for water quality. Every day that this site operates is another day that you risk a fuel spill that then washes off the site.

Um, we

actually just

saw some aerial imagery from today, that shows that the water levels, um. I can't remember if I mentioned this earlier, but the site is surrounded by water. Um, and you can see it in aerial imagery because you can see the sunlight glinting off the water all around the site. Today we're seeing is that the water levels are rising because it's a rainy season.

You know, we're getting a lot of rain. And so you can think of all that rain washing around and off the site as a vehicle to take contaminants right off the site into site into this,

the, the sensitive wetlands of Big Cypress National

Mariann Sullivan: Totally.

Elise Bennett: and,

Mariann Sullivan: Oh, when you think of the sewage you were talking about, oh my God,

Elise Bennett: Right? And, and Floridians. We are very familiar with nutrient pollution and the impact of nutrient pollution, which is, um, you know, massive algae blooms

Mariann Sullivan: Yeah.

Elise Bennett: basically suck all the oxygen out of the water, kill fish, kill plants.

Um, it causes this cascading negative effect on entire ecosystems, which impacts the animals, also impacts water quality, and the aesthetic and recreational values that people uphold who, who use Big Cypress.

Mariann Sullivan: I mean, I, I think you argue that it's certainly not too late to prevent the harm, but is that relevant, that question? Does that come up, whether it's the harm is already done that would interfere with getting an injunction?

Elise Bennett: I mean, that's certainly a counter argument we've heard, right? Like, we're already doing it. Uh, which, one, you're only doing it because you broke the law, so you're trying to

benefit from your own legal violation.

Mariann Sullivan: A bad argument,

Elise Bennett: Uh, but, but furthermore, um, you know, many of these impacts, there's still more harm to be done.

You know, every night

that we have those

bright artificial lights is potentially starving

Mariann Sullivan: yeah.

Elise Bennett: bats, or, you know, every, every new vehicle that comes onto the site is another risk of a panther getting hit by a car. Which by the way, we lose about 20 to 30 to car crashes each year already. And it's clear from many Fish and Wildlife Service, US Fish and Wildlife Service analyses that they really can't sustain many more losses a year without having, um, population and species level impacts. So, you know, every day that these risks continue to occur is another day of likely irreparable harm. Same goes for the contamination, right? Uh, it's just one major spill before we have an incredible ecological catastrophe that we can't undo.

Mariann Sullivan: Of course. I mean, of course it can get much worse than it is right now. Alright. The, the final issues, as you pointed out, are the balance of equities and, um, and public interests. And I think you said in your papers that when the government is a party, those, those elements kind of merged together.

And I think you've already adequately laid out, um, you can add anything you want. You've adequately laid out all for the reasons the equities are in your favor,

Elise Bennett: Yeah.

Mariann Sullivan: What are the government's arguments?

Elise Bennett: Right. Well, you know, their, their argument, maybe ironically goes back to, uh, you know, federal immigration law and the enforcement of federal immigration law, which, you know, kind of underscores our point about this being a major federal action. But their argument is that, you know, they need a place to detain people.

Um,

Mariann Sullivan: Well,

Elise Bennett: that's

Mariann Sullivan: Not this place,

Elise Bennett: Right. And I mean, already, you know, um, we've heard officials identify other locations that they could use. Uh, we know that this location, um, you know, operations have not been going well on the, on the July 1st tour that was given, there was already flooding during a rainstorm. Uh, you know, we're hearing reports about, you know, the, the sewage backing up in the toilets and. Um, one would imagine that you wouldn't have those problems if you were in a, a building that already existed. Right.

Mariann Sullivan: Right?

Elise Bennett: And so in some ways, I think, you know, arguably the hasty, thoughtless nature of throwing this together undercuts any kind of public interest argument for keeping people at this

site. And

then of course, you know, we talked about just the inhumane conditions themselves. It's not in the public interest to treat people inhumanely.

Mariann Sullivan: Yeah. And I, I mean, I think that the vast it, it looks like the vast, well, not the vast majority, but certainly majority of Americans don't think there's any I emergency that warrants any of this. Uh, so arguing that in that it warrants something this insane is, is particularly, um, ridiculous when a people don't think it's an emergency.

Nobody thinks it's an emergency. Um, you know, even if you wanna crack down on immigration, you don't have to do it today. Um, and, the idea that they've already completed a lot of it. So, uh, you know, they have sunk costs is completely ridiculous. The idea that there's nowhere else to put detainees is it's, all of their arguments are ridiculous.

Elise Bennett: Well, and speaking of a, you know, a so-called emergency, uh, you know, the, the states Governor DeSantis state of emergency has been ongoing for years. Uh,

Mariann Sullivan: Yeah. They just call everything an emergency.

Elise Bennett: And it's just because you've created an emergency by not handling something on the front end, you know, and arguably if this emergency has been going that long, a facility should have already been built.

Mariann Sullivan: Right, right.

Elise Bennett: And, and, and a court is not gonna look favorably on them creating

Mariann Sullivan: There isn't a statutory exclusion to NEPA for emergencies is there?

Elise Bennett: There is not,

It, it's just, you know, at every level of analysis they lose. Uh, and, and so I think that's why we're looking forward to this opportunity to talk this through with the judge and, and get to the bottom of things and to stop the madness. I've been down to the site now and seen for myself and, I think for a lot of us who care about Florida, it feels like we need to wake up from a nightmare.

You know?

Mariann Sullivan: Yeah.

Elise Bennett: feel like it could possibly be real, but it is. And

Mariann Sullivan: yeah,

Elise Bennett: That's why we're moving forward and we're trying to stop this.

Mariann Sullivan: Yeah. I mean, we could really say that about so much these days. Um. So what are the next steps? I mean, we're recording this a week before it's airing, so the next steps, as you mentioned, one of the next steps probably will have happened by then. Don't, don't do anything. Okay. Don't do anything until after this comes out.

No, actually, you can win if you want to, and then people will just find out why. But, tell us what, what steps are going to happen before people hear this, and then, and then after that as well.

Elise Bennett: That's right. Well, we, we do know we'll have a status conference, um, and then have renewed our motion for a temporary restraining order. And I, I think, you know, if our hope would be that that temporary restraining order would be put in place until we could very quickly have a hearing before the judge and present evidence in support of the motion for preliminary injunction. And so, you know, that is already fully briefed by all the parties and we could easily move forward on that. And then once that injunction is in place, then we would set, uh, you know, the schedule for the rest of the case to actually get to the merits.

Mariann Sullivan: And exactly what would that injunction, what would the TRO do and what would the injunction do? If it would be any, if the preliminary injunction, if it was any different. And then as long as we're talking about relief, what is the ultimate relief that you're seeking?

Elise Bennett: Right. The ultimate relief is, is to, um, you know, enjoin further activity at this site to turn off the lights.

Mariann Sullivan: Completely. Yeah.

Elise Bennett: Yeah,

Mariann Sullivan: All right.

Elise Bennett: All of those impacts. And for the agencies to go back and do the environmental analyses that they're required to do under federal law. You know, what we've filed so far, under National Environmental Policy Act, but also the claims we've notified them of under Endangered Species Act and Clean Water Act.

Mariann Sullivan: And for the TRO and the preliminary injunction, are you seeking to have them shut it down now and just wait until the end of the lawsuit, but have no further activity until then?

Elise Bennett: We've clarified that, you know, for the purpose of getting to that hearing. What we're asking for is, you know, no more construction on the site, no new paving, lighting, installation of additional infrastructure. And no detaining of any further people at the site than they already have there.

Uh, and then to get a hearing as quickly as we possibly can, you know, we're, we're ready and raring to go. Longer term, yes, it would be more extensive. It would be, you know, basically taking those activities off the site, um, until the court could rule on the, on the merits. And, you know, if, and when we prevail on that motion for, um, the preliminary injunction will have already showed a likelihood of success on those merits.

Mariann Sullivan: Right, right.

Elise Bennett: it's, you know, it's moving in the right

Mariann Sullivan: We're in a good place then. Yeah. Yeah. Well, when also you mentioned that you have an Endangered Species Act and Clean Water Act, um, causes of action pending. Um, having given notice. When do they kick in?

Elise Bennett: Right. So let's see. We, we submitted that notice on July 11th. So in about, you know, mid-September,

Mariann Sullivan: Okay?

Elise Bennett: able to amend those claims in. Um, and those, you know, just briefly relate to failure to, for the federal agencies to consult over the impacts on a whole slew of endangered and threatened species.

Um, purpose of that consultation is to ensure that you don't jeopardize the survival or recovery of any endangered or threatened species. So it's, it's an important analysis that needs to happen, and it has substantive weight because if a project would jeopardize a species, then there has to be an alternative action taken that won't cause that, that, uh, you know, that harm to the species.

Mariann Sullivan: Yeah, an alternative. I mean this, like there is no reason this kind of a facility, well, there's no reason it should exist probably, but if it's going to exist, there's no reason it has to be in any particular place. It's crazy.

Elise Bennett: Let alone in the middle of the Everglades.

Mariann Sullivan: crazy.

Elise Bennett: Right, you know, the, the, our national parks, including Everglades National Park, were America's best idea, this project is America's worst.

Mariann Sullivan: Totally.

Elise Bennett: reason a detention center should be in the middle of Big Cypress National Preserve.

Mariann Sullivan: I mean, you are, you are on the forefront of the environmental and the animal concerns here. Are there any loss? Are, are there lawsuits going on regarding this facility, including the human rights violations? Or I would assume, yeah.

Elise Bennett: are, yes. So, uh, within our own case, we've had, uh, a motion to intervene filed by the Miccosuki Tribe of Florida.

Mariann Sullivan: Oh.

Elise Bennett: And so they're particularly interested in their rights and interests as a sovereign nation,

Mariann Sullivan: Yeah.

Elise Bennett: And, and their use of the site, you know, for, for time immemorial, uh, and, and their rights to be consulted with and to, have a say in what happens there, they're opposing this project as well. Uh, and then we also have a motion by the Florida Immigrant Coalition to file a friend of court

Mariann Sullivan: Mm-hmm. Cool.

Elise Bennett: uh, in this case. And then I, I understand there's also a recently filed, uh, immigration related case relating to this site, which I, I have not had a chance to read yet, but it's on my list for the weekend.

Mariann Sullivan: Well, it's, it, I mean, it's, it's nice to see all these people stepping up to the plate and fighting and you, you at the forefront, Elise. So, thank you so much for joining us. Uh, this has really been a privilege to hear so much about this case so early in the game. We will be keeping a close eye on it.

Elise Bennett: Thank you.

Mariann Sullivan: And thank you to all of you for tuning in. Please remember to subscribe on your favorite pod catcher and or on YouTube. If you're not listening yet on YouTube, just go on there and subscribe because it helps us. And then you don't ever have to watch it again if you don't want to. You can become a flock member if you want to, if you would like to donate at ourhenhouse.org/support. Thanks for being here.