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UNITED STATES COURT OF FEDERAL CLAIMS
JOHN R. MILDENBERGER, )
et al., )
)Plaintiffs )
)
)
)
v. ) No. 06-760L
) Judge Lynn J. Bush
)
THE UNITED STATES, )
)Defendant. )
ANSWER
Pursuant to Rule 7(a) of the Rules of the United States Court of Federal Claims,defendant, the United States, answers the allegations in the introductory paragraph andsubsequent numbered paragraphs of plaintiffs’ Complaint as follows. The introductoryparagraph contains legal conclusions and a characterization of plaintiffs’ complaint to which noanswer is required. To the extent an answer might be required, the allegations are denied.
1. Defendant admits that John R. Mildenberger and Michele C. Ruth are named plaintiffs inthis action. However, defendant is without knowledge or information sufficient to form abelief as to the truth of the remaining allegations and, on that basis, denies the allegations.
2. Defendant admits that Dr. Robert O. Baratta and Mrs. Carol A. Baratta are namedplaintiffs in this action. However, defendant is without knowledge or informationsufficient to form a belief as to the truth of the remaining allegations and, on that basis,denies the allegations.
3. Defendant admits that Joseph K. Henderson and Patricia T. Henderson are named

plaintiffs in this action. However, defendant is without knowledge or information

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sufficient to form a belief as to the truth of the remaining allegations and, on that basis,denies the allegations.
4. Defendant admits that Charles C. Crispin and Julie D. Crispin are named plaintiffs in thisaction. However, defendant is without knowledge or information sufficient to form abelief as to the truth of the remaining allegations and, on that basis, denies the allegations.
5. Defendant admits that Athol Doyle Cloud, Jr. and Patricia P. Cloud are named plaintiffsin this action. However, defendant is without knowledge or information sufficient toform a belief as to the truth of the remaining allegations and, on that basis, denies theallegations.
6. Defendant admits that James J. Harter and Patricia C. Harter are named plaintiffs in thisaction. However, defendant is without knowledge or information sufficient to form abelief as to the truth of the remaining allegations and, on that basis, denies the allegations.
7. Defendant admits that Dr. Robert H. Paré, Jr. and Eryn T. Paré are named plaintiffs inthis action. However, defendant is without knowledge or information sufficient to form abelief as to the truth of the remaining allegations and, on that basis, denies the allegations.
8. Defendant admits that William E. Guy, Jr. and Stella S. Guy are named plaintiffs in thisaction. However, defendant is without knowledge or information sufficient to form abelief as to the truth of the remaining allegations and, on that basis, denies the allegations.
9. Defendant admits that Mark S. Beatty is a named plaintiff in this action. However,defendant is without knowledge or information sufficient to form a belief as to the truthof the remaining allegations and, on that basis, denies the allegations.
10. Defendant admits that Rufus Wakeman II and Melynda Wakeman are named plaintiffs

in this action. However, defendant is without knowledge or information sufficient to

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form a belief as to the truth of the remaining allegations and, on that basis, denies theallegations.
11. Defendant admits that Robert L. P. Voisinet and Karen M. Voisinet are named plaintiffsin this action. However, defendant is without knowledge or information sufficient toform a belief as to the truth of the remaining allegations and, on that basis, denies theallegations.
12. Defendant admits that Ann S. MacMillan is a named plaintiff in this action. However,defendant is without knowledge or information sufficient to form a belief as to the truthof the remaining allegations and, on that basis, denies the allegations.
13. Defendant admits that John Francis Patteson is a named plaintiff in this action.However, defendant is without knowledge or information sufficient to form a belief as tothe truth of the remaining allegations and, on that basis, denies the allegations.
14. Defendant admits that Dr. Paul Paré is a named plaintiff in this action. However,defendant is without knowledge or information sufficient to form a belief as to the truthof the remaining allegations and, on that basis, denies the allegations.
15. Defendant admits that Brian Schmidt and Deborah Schmidt are named plaintiffs in thisaction. However, defendant is without knowledge or information sufficient to form abelief as to the truth of the remaining allegations and, on that basis, denies the allegations.
16. Defendant admits that Frederick Rutzke and Kimberly Rutzke are named plaintiffs inthis action. However, defendant is without knowledge or information sufficient to form a

belief as to the truth of the remaining allegations and, on that basis, denies the allegations.

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17. Defendant admits that Floyd D. Jordan and Marjorie N. Jordan are named plaintiffs inthis action. However, defendant is without knowledge or information sufficient to form abelief as to the truth of the remaining allegations and, on that basis, denies the allegations.
18. Defendant admits that Philip Tafoya and Geraldine Tafoya are named plaintiffs in thisaction. However, defendant is without knowledge or information sufficient to form abelief as to the truth of the remaining allegations and, on that basis, denies the allegations.
19. Defendant admits that William H. Addeo and Lisa Addeo are named plaintiffs in thisaction. However, defendant is without knowledge or information sufficient to form abelief as to the truth of the remaining allegations and, on that basis, denies the allegations.
20. Defendant admits that Mark R. Connell is a named plaintiff in this action. However,defendant is without knowledge or information sufficient to form a belief as to the truthof the remaining allegations and, on that basis, denies the allegations.
21. Defendant admits that Robert Pearson is a named plaintiff in this action. However,defendant is without knowledge or information sufficient to form a belief as to the truthof the remaining allegations and, on that basis, denies the allegations.
22. Defendant admits that Charles V. Locke and Vera A. Locke are named plaintiffs in thisaction. However, defendant is without knowledge or information sufficient to form abelief as to the truth of the remaining allegations and, on that basis, denies the allegations.
23. To the extent paragraph 23 purports to characterize the United States Constitution, theUnited States Constitution is the best evidence of its contents.
JURISDICTION
24. Defendant admits that the Tucker Act, 28 U.S.C. § 1491, is the principal statute

conferring jurisdiction on this Court.

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OPERATIVE FACTS
25. Defendant admits the St. Lucie River estuarine system is in Martin and St. Luciecounties, Florida and has a mixing zone in which tidal waters advance and retreat but iswithout knowledge or information sufficient to form a belief as to the remainingallegations in the first sentence of paragraph 25, and, on that basis, denies the allegations.The second sentence in paragraph 25 contains a quote from a South Florida WaterManagement District website which is the best evidence of its contents. Defendantadmits the third sentence of paragraph 25. The fourth sentence in paragraph 25 containsplaintiffs’ characterization of its “riparian values” to which no answer is required. To theextent that an answer might be required, this characterization is denied. Regarding theremaining allegations in the fourth sentence of paragraph 25, defendant avers the regionalwatershed combined with tidal flows affect the salinity levels in the estuary, but iswithout knowledge or information sufficient to form a belief as to the remainingallegations in this sentence, and, on that basis, denies the allegations. Regarding the fifthsentence in paragraph 25, due to the vagueness and ambiguity as to the meaning of theterms “invaded,” “normally,” “excessive,” “extreme” and “other problems,” defendantlacks knowledge or information sufficient to form a belief as to the remaining allegationsin the fifth sentence of paragraph 25 and therefore denies the same.
26. Defendant admits the allegations contained in the first sentence of paragraph 26. Withregard to the second sentence in paragraph 26, defendant admits that historically, LakeOkeechobee, which extended farther south and west than it does today, with a moreextensive littoral zone, generally flowed southward. Defendant lacks knowledge or

information sufficient to form a belief as to the remaining allegations in the second

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sentence of paragraph 26 and therefore denies the same. With regard to the thirdsentence in paragraph 26, defendant denies the Corps built and expanded a dike in 1924but avers that pursuant to authorization received in 1930 and thereafter, the Corpsconstructed and subsequently improved, by lengthening and raising, a dike around LakeOkeechobee. Defendant denies that it initially constructed a canal connecting the Lakewith the St. Lucie Estuary but avers that it expanded a canal connecting the St. LucieRiver and Estuary with Lake Okeechobee and that a structure known as S-80 existsbetween Lake Okeechobee and the St. Lucie Estuary. Defendant admits the allegationscontained in the fourth sentence of paragraph 26.
27. With regard to the first sentence in paragraph 27, defendant admits that LakeOkeecohobee is part of the federal Central and Southern Florida Project which hasmultiple purposes including flood control, water supply for municipal, industrial andagricultural uses, prevention of saltwater intrusion, water supply for Everglades NationalPark, and protection of fish and wildlife resources, navigation and recreation. Defendantlacks knowledge or information sufficient to form a belief as to the remaining allegationsin the first sentence of paragraph 27 and therefore denies the same. With regard to thesecond sentence in paragraph 27, defendant admits that Lake Okeechobee is regulated toachieve multiple project purposes of the Central and Southern Florida Project butotherwise denies the allegations in the second sentence. With regard to the third sentencein paragraph 27, defendant avers the Corps constructed a dike more than 30 feet higharound Lake Okeechobee but otherwise denies the allegations in the third sentence ofparagraph 27. With regard to the fourth sentence in paragraph 27, defendant admits that

the Central and Southern Florida Project includes the approximately 154-mile-long Lake

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Okeechobee waterway, portions of which were authorized as early as 1930. Defendantdenies plaintiffs’ characterization of the Central and Southern Florida Project as a“system.” Defendant admits the allegations in the fifth sentence of paragraph 27.Regarding the sixth sentence in paragraph 27, defendant avers that the OkeechobeeWaterway provides, among other purposes, a means whereby the Corps releases waterfrom the Lake east to the St. Lucie River and west to the Gulf of Mexico.
28. With regard to the first sentence in paragraph 28, defendant admits that LakeOkeecohobee has received nutrients as a result of agricultural practices but deniesplaintiffs characterization that it is “heavily laden with excess nutrients.” Defendantadmits the second sentence of paragraph 28. Defendant admits the third sentence ofparagraph 28. The fourth sentence contains legal conclusions to which no answer isrequired. To the extent that an answer might be required, defendant lacks knowledge orinformation sufficient to form a belief as to the remaining allegations in the fourthsentence of paragraph 28 and therefore denies the same. Defendant admits theallegations in the fifth sentence of paragraph 28. Defendant denies the allegations in thesixth sentence of paragraph 28. With regard to the seventh sentence in paragraph 28, oninformation and belief, defendant avers that discharges into the St. Lucie Canal haveexceeded 150 billion gallons for at least four years of the last eleven years.
29. Defendant avers that the Corps releases fresh water into the St. Lucie River that containspollutants, but denies the remaining allegations in the first sentence of paragraph 29.Defendant denies the allegations in the second sentence of paragraph 29. Regarding thethird sentence of paragraph 29, defendant avers that non-saline water can kill oysters and

prevent certain fish from residing and spawning, but defendant lacks knowledge or

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information sufficient to form a belief as to the remaining allegations in the third sentenceof paragraph 29 and therefore denies the same. Defendant lacks knowledge orinformation sufficient to form a belief as to the allegations in the fourth sentence ofparagraph 29 and therefore denies the same. Regarding the fifth sentence in paragraph29, defendant denies plaintiffs’ characterizations, such as “cataclysmic” “well known,”and “immense socioeconomic benefits.” Defendant lacks knowledge or informationsufficient to form a belief as to the remaining allegations in the fifth sentence ofparagraph 29 and therefore denies the same.
30. Defendant avers that it is aware of a sign posted by the Florida Department of Healththat contains the quotations in paragraph 30, and that sign is the best evidence of itscontents. Defendant lacks knowledge or information sufficient to form a belief as to theremaining allegations in paragraph 30 and therefore denies the same.
31. The first and second sentences of paragraph 31 contain legal conclusions to which noanswer is required. To the extent that an answer might be required, these allegations aredenied. Defendant lacks knowledge or information sufficient to form a belief as to theremaining allegations in the third sentence of paragraph 31 and therefore denies the same.Cause of Action
32. Defendant incorporates by reference all of the preceding responses.
33. This allegation states a legal conclusion to which no answer is required. To the extentthat an answer might be required, this allegation is denied.
34. This allegation states a legal conclusion to which no answer is required. To the extent

that an answer might be required, this allegation is denied.

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35. This allegation states a legal conclusion to which no answer is required. To the extentthat an answer might be required, this allegation is denied.
36. The first sentence in this paragraph contains legal conclusions to which no answer isrequired. To the extent that an answer might be required, this allegation is denied. Thesecond sentence of this paragraph states plaintiffs’ intent to amend the complaint towhich no answer is required. Defendant avers that plaintiffs are not entitled to anycompensation whatsoever, as there has not been a taking of private property by theUnited States.
37. The first sentence in this paragraph contains legal conclusions to which no answer isrequired. To the extent that an answer might be required, this allegation is denied. Thesecond and third sentence of this paragraph discusses plaintiffs’ retention of legal counseland the costs of litigation to which no answer is required. The fourth sentence of thisparagraph states plaintiffs’ intent to amend the complaint to which no answer is required.The remaining paragraphs of plaintiff’s Complaint contain plaintiff’s prayer for relief, towhich no response is required. To the extent that an answer might be required, defendant denies

that plaintiff is entitled to any relief.

ALL CLAIMS

Defendant denies any allegations contained in plaintiffs' Complaint, whether express orimplied, that are not specifically admitted, denied, or qualified. To the extent that any allegation

contained in plaintiffs’ Complaint remains unanswered, defendant denies such allegations.

AFFIRMATIVE DEFENSES

Plaintiffs’ claim must be dismissed because plaintiffs have failed to state a claim upon

which relief can be granted.

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WHEREFORE, the United States denies that plaintiffs are entitled to the relief prayedfor, or any relief whatsoever, and requests that this action be dismissed with prejudice, thatjudgment be entered for defendant, and that defendant be allowed its costs and such other andfurther relief as the Court may allow.
Dated: February 12, 2007 Respectfully submitted,
MATTHEW J. MCKEOWN
Acting Assistant Attorney General
Environmental & Natural Resources Division
/s/ Steven D. Bryant
STEVEN D. BRYANT
Environmental & Natural Resources Division
United States Department of Justice
601 D Street, NW, Rm. 3205
Washington, D.C. 20004
steven.bryant@usdoj.gov
202-305-0424
Of Counsel:
Brooks Moore
Assistant District Counsel
U.S. Army Corps of Engineers, Jacksonville District
701 San Marco Boulevard
Jacksonville, Florida 32207