Nonprofits cite "intimidation" from Cape Coral over Chiquita Boat Lock

Several high-profile groups and nonprofits bowed out of a legal challenge to keep Cape Coral's Chiquita Boat Lock, a nearly 50-year-old manmade barrier, in operation, citing fears of massive attorney's fees and alleged "intimidation" by the city.

In several press releases Thursday and Friday, the Matlacha Civic Association, Sanibel-Captiva Conservation Foundation, and Calusa Water Keepers announced that other petitioners will proceed with the case.

"Their strategies of 'papering' the case, running up fees (on the taxpayers’ dime), and intimidating the non-profit organizations and individual citizens have partially worked," said the Calusa Waterkeeper's press release.

Cape Coral Spokesperson Melissa Mickey gave a statement on the claims made by these nonprofits.

"Due to the fact that we do not comment on active legal matters we will not be responding at this time; however, we will address the statements made in the future," wrote Mickey in an email statement.

The boat lock provides Gulf of Mexico access from Camelot Canal and Southwest Spreader Waterway. Boaters must wait, sometimes 15 to 30 minutes, to pass through it.

Opponents of the removal argue that it would harm the mangroves and the water in the Caloosahatche River, while supporters say that it contributes to a growing number of manatee deaths and outlived its usefulness.

The Calusa Waterkeeper said that Cape Coral is the petitioner with various motions and filings to run up the time and cost and describes it as another example of systematic efforts to "diminish and discourage citizen initiatives by those in power throughout the state of Florida."

Capt. Codty Pierce, Calusa Waterkeeper, said he couldn't risk the nonprofit's future.

"Being a nonprofit, we do support the community and we are a grassroots organization, so having to withstand the potential financial implications, is not a risk that I can take at this time because I do need to survive to continue to provide for our community and safeguard for water quality," he said.

Previous coverage Hearing for Cape Coral's Chiquita Boat Lock removal set for winter

Related Cape Coral's removal of the Chiquita Boat Lock faces challenges from barrier islands

Background on the Chiquita Lock removal

Since 2018, the city of Cape Coral has been taking steps to remove the lock.

Its previous attempt met challenges from many of the same opposition today as the city couldn't meet the requirement of the permit needed to remove the lock and prove that water quality standards would be met after its removal.

Cape Coral received a notice of intent issued by the Florida Department of Environmental Protection on Feb. 17, after providing an environmental plan to address concerns about degrading water quality.

Current legal challenges on Chiquita Lock removal

Michael Hannon, president of the Matlacha Civic Association, said the nonprofits made their decision after the city's legal counsel allegedly sent a 21-day "safe harbor" notice on Aug. 3 informing the petitioners of its intentions to sanction and have the organizations pay the city's legal fees unless the challenge is withdrawn.

Under the Florida Statute, courts can have the losing party pay the prevailing party's reasonable attorney fees if the losing party’s attorney knew or should have known that a claim when presented to the court was not supported by the material facts necessary to establish the claim or defense, would not be supported by the application of then-existing law to those material facts, and or it was found that the request was made for an unreasonable delay.

According to documents filed on Aug. 24, Administrative law judge Suzanne Van Wyk denied the city's request to be compensated for attorney's fees.

Hannon said that was unrelated to the "safe harbor" notice that the nonprofits received.

"They filed a motion to compel production of some discovery from us, and the judge granted it, and then she held a hearing on whether the city is entitled to attorneys fees, and she said no," Hannon said.

After 21 days, the boards and leadership of each organization decided to take a step back from the case while expressing support for keeping the boat lock.

“We are disappointed that we are not able to continue as a petitioner. However, we remain committed to our position that the lock should remain in place and to our mission to protect and care for Southwest Florida’s coastal ecosystems,” said The Sanibel-Captiva Conservation Foundation CEO James Evans in a press release.

The current petitioners include Cape Coral residents Daniel Carney, James Collier, and Kevin Sparks, with Hannon acting as their "qualified representative."

"When this kind of a threat is made, no matter how slim the chance of success by the lawyers, a volunteer, resident of the city of Cape Coral, has to generate a great deal of courage to go forward even though there's only an unreasonably small risk that the City of Cape Coral might come back at them for hundreds of thousands of dollars in legal fees," Hannon said.

Key decision possible Monday on Chiquita Lock

An evidentiary hearing is scheduled for 9 a.m. Monday where the city is contending that the petition must be dismissed based on untimely filing.

The petition for a hearing was filed on April 19, but the petitioners asked for an extension on March 21.

The city agrees that notice of intent was sent and received by all interested parties and therefore was due no later than March 15.

Despite the obstacles the city has presented, Hannon believes the challenge will succeed as it did years ago.

"The request to remove the lock now has less factual legal support than the one in 2020, so we do not doubt our likelihood of success," Hannon said.

Luis Zambrano is a Watchdog/Cape Coral reporter for The News-Press and the Naples Daily News. You can reach Luis at Lzambrano@gannett.com. Follow him on Twitter @Lz2official.

This article originally appeared on Fort Myers News-Press: Nonprofits rescind challenge over Cape Coral's Chiquita Boat Lock