Court to hear trespass case

By Steve Estes

Circuit Court Judge David Audlin is expected to hear more legal arguments Friday morning in the cases surrounding the electrification of No Name Key.

Audlin has already ruled on one No Name Key case, the original declaratory action filed by the county against Keys Energy Services.

In that case, with the county seeking legal clarification to several questions it has regarding the validity of allowing commercial power to the remote island off the northeast shore of Big Pine Key, Audlin kicked the case to the Public Service Commission, opining that the PSC has sole jurisdiction to regulate the expansion of commercial power in the state of Florida.

That decision is currently on appeal in the Third District Court of Appeals, with the county joining the appeal with No Name resident Alicia Putney. Oral arguments in that appeal were heard last Monday. The DCA issues opinions on Wednesdays, and no ruling was issued this week, meaning it will be at least another week before the parties know whether Audlin will get the original case back, or whether the PSC will take a shot at it.

The PSC has delayed hearing the issue twice, although it has stated in legal briefs that it does some jurisdiction in the matter. The PSC’s public website, however, claims that its jurisdiction ends at the meter box, which is where Monroe County claims it has jurisdiction to issue building permits to tie individual homes to the power grid.

Without having those various legal questions answered, KEYS accepted a line extension contract with 22 homeowners on No Name Key and has installed an energized power grid that at the moment supplies power to no one.

County officials claim that they cannot issue building permits to the homeowners because of a land use prohibition against extending public utilities to or through areas designated as a federal Coastal Barrier Resource Area. Much of No Name Key is in such a designation, and any area to be served would have to have a pole or line extend through the CBRS.

In running the power grid, KEYS had asked the county for a utility easement across conservation lands the county owns on No Name Key and were denied. But the utility board went ahead with the grid construction, crossing county lands in three areas.

That prompted the Board of County Commissioners to authorize their legal staff to file civil trespass charges against the utility.

That is the case Audlin will be hearing today since his court is currently the one with jurisdiction.

No Name Key resident Bob Reynolds has petitioned the judge to dismiss the county’s trespass claim because he says the issue is moot as the county has no legal authority under Audlin’s previous ruling to step in the way of a power grid to the island.

Reports are that county legal staff will ask that action on the dismissal be delayed until the appeals court has made a determination on whether the local circuit court must act on the original declaratory action, or the judge’s initial punt to the PSC is upheld.

County legal staff also expects to have to argue the trespass case during the dismissal action.

Later this morning, Judge Audlin is expected to hear another dismissal motion from Andy Tobin, attorney representing a majority of No Name Key property owners who signed the line extension agreement with KEYS.

Reports are that the county will also ask that action on that motion be delayed until the appeals court has chimed in.

Meanwhile, county staff is currently working on a contract amendment with their land use consultant to do some extra research on CBRS areas in the county.

The BOCC last week asked staff to study what effect it may have on the remaining CBRS areas in the county if they were to change the language prohibiting new utilities in CBRS areas.

Specifically, the commissioners want to know if the current Tier designation of those areas could change to allow easier development, and if the Tier designation alone, which is Tier One in all of No Name Key, provides enough protection against development to meet the county’s charge to protect species.

The question of utilities in a CBRS has become more widespread in recent weeks after the Key Largo Wastewater Treatment District made an independent decision to extend public sewers up Card Sound Road into a CBRS area and county staff told the district it would not be able to issue building permits for homes in those areas to hook into the pipes.

In addition to all the legal action, the US Fish and Wildlife Service, mother agency to the National Key Deer Refuge which owns a lot of land on No Name Key and is charged with protection of endangered species on those lands, specifically the Key Deer and Marsh Rabbit, has been making inquiries about the changes being bandied about by the BOCC for potential future action.

USFWS had issued a letter a couple of years ago that said the electrification project as proposed would not adversely affect the endangered Key Deer, but in the letter, federal staffers for FWS referenced the county’s existing land use policies prohibiting extension of public utilities into CBRS areas.

Now, those same federal staffers want to know what changes might be contemplated. In the original letter, the agency reserved the right to reopen the consultation with Keys Energy should circumstances change on the island.

Under terms of the KEYS’ contract with homeowners, the homeowners are on the hook to pay for any reviews needed, as they are on the hook for any costs incurred by KEYS to defend legal actions and ultimately on the hook should legal actions go against the utility and it be forced to take the grid down.

A ruling from the circuit court on today’s actions was not available by presstime Wednesday.

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