IN THE CIRCUIT COURT FOR THE

SECOND JUDICIAL CIRCUIT, IN

AND FOR LEON COUNTY FLORIDA

CASE NO.:03-CA-1833

ROBERT R. ROSCOW and

THEODORE E. BIERLY

(a/k/a TEDDI BIERLY),

Plaintiffs,

v.

JOSE’ ABREU,

as Secretary of the

FLORIDA DEPARTMENT

OF TRANSPORTATION,

Defendant.

_____________________________/

PLAINTIFFS’ MOTION FOR REMEDIES

AND ENFORCEMENT OF

FINAL SUMMARY JUDGMENT

Plaintiffs, Robert R. Roscow and Theodore E. Bierly (a/k/a Teddi Bierly), pursuant to Order, Florida Rules of Civil Procedure, move for an order on remedies and for enforcement of the Final Summary Judgment, and state:

1. On August 6, 2004, this Court entered a Summary Final Judgment in Plaintiffs’ favor.

2. This Court retained jurisdiction to determine any remedy necessary to address actions taken at ERRAG meetings conducted prior to the entry of the judgment, and to ensure compliance with the judgment.

3. The undersigned has conferred with counsel for Defendant, but the parties have been unable to reach agreement on what actions Defendant, if any, will take to remedy the Defendant’s failure to conduct pre-judgment ERRAG meetings in accordance with law.

4. The Summary Final Judgment includes an enumeration of actions documented to have been taken by ERRAG. [Summary Final Judgment, page 5]. The Summary Final Judgment provides in part:

ERRAG’s screening of potential project alignments and development of criteria for screening and evaluation of potential Project alignments goes well beyond mere fact-finding....

By necessity, ERRAG is therefore engaged in performing the “elimination function” with respect to alignments by considering the impacts of certain proposed routes.

[Id. at pages 9-10].

5. As established in the record before the Court, Defendant maintains an internet site associated with the Project: www.suncoastparkway2.com. The internet site, as of September 22, 2004, has not been updated to recognize the Final Summary Judgment, including the “Public Involvement Opportunities” and “Environmental Resource and Regulatory Agency Group” portions of the site. Although Defendant has not conducted an ERRAG meeting subsequent to the Final Summary Judgment, it has not taken the minimal, reasonable steps required to comply with the spirit of the Sunshine Law by advising the public of the opportunity to attend future ERRAG meetings.

6. The materials of record with the Court, including the ERRAG “Agency Agreement” [Final Summary Judgment, page 3] indicate that Defendant has taken a number of actions at the five ERRAG meetings, that should be set aside based upon the Defendant’s violations of the Sunshine Law. No minutes of the meetings have been made available on the internet site (only “executive summaries” are available).

7. The ERRAG “Agency Agreement” should be set aside as void since it was approved at the January 7 and 8, 2003 ERRAG meeting (prior to the Final Summary Judgment).

8. All work on the Project Development and Environment Study (PD&E) considered by ERRAG starting at the January 7 & 8, 2003 ERRAG meeting through the date of the Final Summary Judgment – August 6, 2004 - should be set aside as void. Stated differently, Defendant should be required to disregard and not rely upon changes to the draft PD&E made after January 7, 2003 and to conduct properly noticed and open, public ERRAG meetings to discuss the draft PD&E as it existed on January 7, 2003.

9. The relief requested in paragraph 8, above, will necessarily require Defendant to repeat the “corridor analysis phase” and cease all reliance on the Corridor Analysis Report of the PD&E and then to repeat the “alignments alignment phase” including development of project alignment criteria (including avoidance, minimization and mitigation criteria) for the PD&E. The “Updated Recommended Corridor” dated May 2003 (on the internet site) should be set aside as void, along with the “Alternative Alignments Map” as depicted in the Defendant’s October 2003, Newsletter. In addition, Defendant should be required to revise its internet site for the Project to reflect the revision to the status of the PD&E and the public involvement opportunities associated with the Project.

10. Because of Defendant’s violations of the Sunshine Law at the five ERRAG meetings, all of ERRAG’s deliberations on the PD&E must be set aside as void and Defendant should not be allowed to hold a public ERRAG meeting to merely ratify its past actions. See, Government in the Sunshine Manual, Part I, Section H.6., and cases cited therein.

WHEREFORE, Plaintiffs respectfully request that the Court enter and order to require Defendant to make necessary changes to the Suncoast Parkway 2 internet site to advise of the public’s opportunity to attend future ERRAG meetings, to set aside as void the ERRAG Agency Agreement, to set aside as void the corridor analysis phase and the alignments analysis phase of the PD&E, and to set aside as void the associated “Updated Recommended Corridor” dated May 2003 and “Alternative Alignments Map” as depicted in the Defendant’s October 2003, Newsletter; and to grant such other relief as is otherwise lawful and in accordance with the Final Summary Judgment.

Respectfully submitted,

_______________________

Ross Stafford Burnaman

Attorney at Law Fla. Bar No. 397784

1018 Holland Drive

Tallahassee, Florida 32301

(850) 942-1474