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Politics

Environmentalist Maggy Hurchalla Loses Latest Effort to Overturn $4.4 Million Award Against Her

September 7, 2019 - 2:45pm
Maggy Hurchalla
Maggy Hurchalla

Dorian's dark clouds over Florida are gone now, but the cloud hanging over environmental icon Maggy Hurchalla just grew darker.

The pithy Sept. 6 order by the Fourth District Court of Appeal ruled that Hurchalla is not entitled to a rehearing before all 12 judges in her quest to overturn a lower court's $4.4 million award against her. (See the order in the "Download" attachment below the story.)

The judges denied her July 15 motion for en banc rehearing, denied acceptance of a myriad of amicus curiae “friend of the court” briefs offered by state environmental and free speech organizations, and rejected her attorney's arguments that a “question of great public importance” could be settled only by the Florida Supreme Court.

Hurchalla still could seek to have her case heard by the state's highest court without certification by the appeals court that the question of determining malice as it pertains to state and federal free-speech protections is warranted for their review. 

Whether they will agree is left to speculation, although it seems unlikely based on other state supreme court decisions.

Hurchalla's intent, according to her previous public statements, is to have her case heard by the U.S. Supreme Court.

“I will appeal,” she told a small throng of supporters bearing chocolates, roses and balloons outside of the Martin County courthouse Feb. 14, 2018. They gathered immediately following a jury's Valentine's Day ruling that Hurchalla's actions had harmed Lake Point Restoration, concluding a five-year civil case that charged her with tortious interference in Lake Point's agreements with Martin County and the South Florida Water Management District.

“I will take this all the way to the U.S. Supreme Court if I have to,” Hurchalla added, “which really is where this (case) needs to be.”

Her first steps in that quest, however, were to ask the appellate court for a retrial on three separate motions and to remove Martin County Circuit Court Judge William Roby from her case, all of which were denied in 2018.

Hurchalla's appeal to see if the jury's ruling could be overturned was argued March 12 by the state's then-leading First Amendment expert, the late Talbot “Sandy” D'Alemberte, in the District's West Palm Beach courthouse before a three-judge panel. 

The appellate court affirmed the Martin County Circuit Court jury's ruling in favor of Lake Point Restoration three months later on June 19. The judges also did not reduce the amount of the $4.4 million award.

With the Sept. 6 order, Hurchalla's options now are limited.

According to the Fourth District's opinion published June 19, Hurchalla did not engage in public protest as protected by both the U.S. Constitution's First Amendment and Florida's common law. 

Trial testimony confirmed that she used false information behind the scenes to damage the relationship between Martin County officials and Lake Point, a public-private project to mine rock on 2,000 acres of land near Indiantown that would eventually convert rock-pits to stormwater treatment areas.

Most of the acreage would have been donated to the state and to Martin County over the 20-year term of the contract.

Lake Point filed suit in 2013 against Martin County and the South Florida Water Management District for breach of contract and against Hurchalla for deliberately interfering in those contracts.

The county and SFWMD both settled the civil suits out of court in 2017. The county agreed to pay $12 million to Lake Point, and SFWMD gave around $6 million in concessions to the mining operation, extending their contract from 20 to 50 years.

After refusing to apologize to Lake Point for seven alleged misstatements in return for dropping their lawsuit, Hurchalla proceeded to trial in February 2018. 

The six-person jury deliberated 90 minutes after a five-day trial before ruling that Hurchalla had directly caused Lake Point to suffer nearly $4.4 million in damages due to her actions.

In response to Hurchalla's appeal of that judgment, the appellate court's ruling in July focused on two conflicting statements by Hurchalla as “examples of competent substantial evidence that clearly and convincingly proved that Hurchalla demonstrated actual malice … by making statements she either knew were false or with reckless disregard as to whether they were false.”

In public emails to Martin County commissioners Jan. 4, 2013, Hurchalla charged that no studies had been conducted on the Lake Point project, yet on the witness stand during her trial, Hurchalla admitted she had seen the studies that demonstrated the Lake Point project would increase the efficiency of the proposed C-44 water restoration project adjacent to Lake Point by 20 percent.

The 12-page ruling, written by Judge Burton Conner and joined by judges Dorian Damoorgian and Alan Forst, tackled the standards of actual malice and express malice required by state or federal law that would negate First Amendment and common law protections in Hurchalla's case.

“Hurchalla’s comments were represented as statements of fact, as opposed to statements of pure opinion,” Conner wrote. “Even if we viewed the statements as ‘mixed opinions,’ the statements would not be privileged under the First Amendment.”

Hurchalla attorney Richard Ovelman, of Carlton Fields PA in Miami, wrote in his motion for a rehearing, “Just because facts are untrue, does not constitute actual malice,” the standard required to lose First Amendment rights under federal law.

He also disagreed with the appellate judges' determination that “the use of improper means” does not show express malice, which is the standard to nullify Florida's common law protection of a citizen's right to petition government officials.

Conner, who was the primary author of the appellate court's decision, noted that Hurchalla's attorneys had argued she did not act with the purpose of harming Lake Point, but “to promote the public interest in the environment,” and he conceded that although some of her environmental arguments could weigh in Hurchalla's favor, her use of “wrongful means to interfere in Lake Point's contract” by misrepresenting facts demonstrated malice.

The judges also noted that Lake Point entered into the contract with Martin County in 2009 and was monitored for four years by the county with no issues, little concern, and no public protests by Hurchalla. Controversy arose after the 2012 election that put Hurchalla's friend, Anne Scott of Jupiter Island, on the commission, and Commissioner Sarah Heard was elected chair.

In a separate but related case, a civil court ruled in 2017 that the actions of three county commissioners, including Scott and Heard, had caused the county to violate public records laws in an apparent attempt to hide their private email correspondence with Hurchalla.

The county was sanctioned $502,000 in that case; however, a criminal court jury found in April that they could not convict Heard as charged on two misdemeanor counts of violating public records laws. 

Subsequently, the state attorney's office in Martin County refused to proceed to trial on the misdemeanor criminal indictments against Scott and former commissioner Ed Fielding on public records violations. Without convictions, the county is obligated to pay the commissioners' legal fees in those cases.

Barbara Clowdus, who has covered every stage of the Lake Point case since its inception, is editor and publisher of Martin County Currents newspaper.

 

Barbara Clowdus stories about this case since Feb. 1, 2018:

No SLAPP: Environmentalist Maggy Hurchalla Loses Lake Point Appeal

Environmental Icon Maggy Hurchalla's $4.4 Million Day in Court 

Maggy Hurchalla Ups Her Game Mightily in Lake Point Appeal

Has Maggy Hurchalla's Army of Supporters Actually Read the Trial Transcripts (column/commentary)

A Big Ol' 'Pants on Fire' for Tampa Bay Times' Craig Pittman (column/commentary)

No Mistrial on the Horizon for Martin County's Maggy Hurchalla

Maggy Hurchalla Drops a Bomb in Lake Point Appeal

SFWMD Plagued by Martin County's Public Records, Legal Shenanigans

Ruling in Hurchalla Lake Point Case Delayed by Yet Another Hearing

Finally, Martin Activist Maggy Hurchalla Goes to Trial (column/commentary)

Comments

In a Republican-ruled jurisdiction - and especially in Florida since the Scott debacle - ALL environmentalists will take it in the ear!

Maggie Hurchalla is not the saint she is painted to be by enviros. She lied. She had been judged guilty by a jury and judges and her malicious interference has cost our county millions of dollars. Stop trying to turn her into a martered saint.

These days, "environmentalist" is a code word for terrorist.

ain't no such thing as free speech in Martin County...dem judges are bought and paid for...

"Free speech" in this state applies ONLY to Republicans! Just ask Marion Hammer - she'll tell ya'!

Why is everybody so against this women? From an article by Maggy Hurchalla posted on July 1, 2019---On environment, Florida Legislature refuses to close the barn door By Maggy Hurchalla - July 1, 2019 Florida wetlands Florida wetlands. J Hauserman photo Florida lawmakers came away from this spring’s session congratulating themselves on the heroic job they did in defense of Florida’s environment. After the Rick Scott years, that wasn’t hard. Unfortunately, it wasn’t true. With Gov. Ron DeSantis’ leadership they did a heroic job of spending money on trying to repair self-inflicted damage. They did nothing to stop the bleeding. They refused to close the barn door. Closing the barn door when some horses have escaped is basic common sense. You don’t go chasing out after what’s escaped without doing something to keep more problems from escaping. Toxic blooms of blue green algae, red tide, and brown tide are a serious public health problem from the Indian River down to Florida Bay, up the west coast and across Florida’s lakes and waterways. On an issue where people argue a lot about who to blame, most everyone agrees that the causes for the dramatic increase in toxic water in the last decade are warmer weather and more nutrients (meaning fertilizer, sewage, and manure). The Florida Legislature may yet join the scientific community in believing that action is necessary on global warming, but slowing down that trend is going to take a while. The legislature can do something about the increased inflow of nutrients into our waterways. They chose not to. They spent a lot of our tax money, but they did nothing to stop the problems at the source. They did absolutely nothing to close the barn door. Sugar companies and their allies keep repeating the mantra that “We are all to blame.” It is true that every single one of us adds nutrients in one way or another: septic tanks, broken sewer lines, urban sludge spread in rural pastures, lawn fertilizer, crop fertilizer, livestock, inadequate stormwater treatment and the destruction of natural wetland filters that often goes with new agricultural or urban development. Blaming all of us seems to be an excuse for doing nothing about any of it. The legislature thought about requiring septic tanks to be inspected and repaired, but they decided that was unfair. They threw $20 million at a grant program to help homeowners hook up to central sewer. Based on that level of funding it will take more than 1,000 years to hook up all of Florida’s existing 2.6 million septic systems. They didn’t even think about tightening the rules in order to quit approving more high density, high volume septic tanks. They considered punishing municipalities for broken sewer lines, but didn’t think about keeping it from happening. They thought about doing something to stop the companies from spreading urban sludge on rural watersheds – which recycles massive amounts of nutrients. The bills in the legislature all died. There was no effort to tighten nutrient standards on treated wastewater. Florida allows three times the concentration of nitrogen in effluent used for irrigation compared to the state of Maryland. Maryland is making progress in reducing nutrient loads into Chesapeake Bay. We are not making progress on Lake Okeechobee. Legislators didn’t even think about asking both urban and agricultural development to clean up the nutrients at the source. That approach is fairer to taxpayers as well as being more efficient. They continued to allow small wetlands to be destroyed. They failed miserably in fully funding the Florida Forever conservation land-buying program. Florida voters resoundingly supported restoring Florida’s successful program to purchase and preserve natural wilderness. Those are the areas that provide free natural cleanup and storage as well as public recreation and wildlife conservation. And then, right at the end, the legislature passed and the governor signed, a bill that effectively prevents Florida residents from challenging local government on the kind of bad land use decisions that have cumulatively destroyed so much of Florida’s environment. It’s hard to believe that a bunch of politicians who call themselves Republican, conservative, and fiscally responsible could spend so much money on chasing horses and never think of closing the barn door.--------- https://www.floridaphoenix.com/2019/07/01/on-environment-florida-legislature-refuses-to-close-the-barn-door/--------------It seems to me that this women is on a crusade to stop environmental bad-boys, how many of the posters have any knowledge of the environmental issues facing Florida?

Not everyone is, just Barbara And the developers of Martin County that can't wait to build, build, build. The fab 4 that sit on the commission now will sell there souls in order to make a buck, it is very sad what is happening now in this county.

WHO THE HELL DOES THIS LADY THINK SHE IS? TRUMP? ONLY TRUMP CAN LIE, CHEAT, AND STEAL!

No one lied more than Hillary. That's why 30 out of 50 states told her to **** off during the last presidential election.

LOCK HER UP!!!!!!!!!!

self labeling one’s self as “ an environmentalist “ or as an “ environmental activist “ apparently confers no special immunities against acting in a truthful manner and using one of those labels as some sort of a ticket that enables one to act in bad faith or malice in an effort to “ win “ . Put another way , the end doesn’t justify the means . A good ruling and the woman now flailing about seeking sympathy from likeminded liberal scholars can now ponder whether to list one of the above labels or “ free speech activist “ when arguing that somehow the law regarding the consequences of her malice should somehow not apply to her .

Your summation is most excellent.

Pay up 'ole girl. You hurt people with your lies.

It is a beautiful use of the court system to see this justice meted out.

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