After nearly two years of court filings, a lawsuit over the practice of burning sugar cane fields in preparation for harvest continues to be narrowed by judicial rulings.

The lawsuit, filed by Hagens Berman and Berman Law Group, alleges 10 residents of Moore Haven, Clewiston, Belle Glade, Pahokee and South Bay were injured due to particulates in the air from sugar cane burning. Over the past two years, the court has allowed the defendants to amend the complaint three times.

On July 2, the Southern District of Florida dismissed two of the five claims in the third amended complaint, with prejudice. (“With prejudice” means these claims cannot be refiled.)

The Third Amended Class Action (TAC) Complaint lists as defendants: Florida Crystals Corporation, Osceola Farms Co., Okeelanta Corporation, and Sugar Cane Growers Cooperative. The plaintiffs allege they have been harmed by the smoke from sugar cane burning.

U.S. Sugar Corporation issued the following statement on July 2: “We are pleased with the court’s decision today to dismiss two more of the plaintiff’s claims at this early stage in the litigation, which now join the majority of plaintiffs’ claims that have been dismissed with prejudice. We look forward to showing the court that the remaining claims are without merit, while continuing to defend our farming community. As we have said from the beginning, the facts and actual air quality monitoring data show the Glades’ air is safe, clean, and healthy.”

The TAC alleges five causes of action against all defendants: (1) negligence on behalf of the property owner class; (2) strict liability pursuant to section 376.313, Florida Statutes on behalf of the property owner class; (3) a violation of 42 U.S.C. § 1983 on behalf of the property owner class; (4) medical monitoring on behalf of the medical monitoring class; and (5) battery on behalf of the battery class.

In the July 3 ruling, the judge dismissed counts 3 and 5 of the complaint, and directed the defendants to answer the remaining three counts.

The court dismissed count 3, explaining: “While Florida Forest Service’s (FFS) involvement in the permit process and its application and enforcement of state rules and regulations may aid defendants in causing the harm plaintiffs allege, FFS does not make the decision whether to burn the sugarcane.”

The court also dismissed count 5. “The intent necessary for battery is such that a reasonable man would believe that a particular result was substantially certain to follow; however, the appreciation of a risk, short of substantial certainty, is not the equivalent of intent,” the ruling states. “Plaintiffs’ allegations that defendants knew or should have known that their sugarcane burning would release pollutants and impact essentially all of the residents of the hazard zone are too vague and conclusory to plead intent on the part of each defendant.”

The court order, signed by United States District Judge Rodney Smith, directs the defendants to file an answer to the TAC by July 16, 2021.

About the lawsuit

Attorneys for the defendants also point out that plaintiffs continue to rely on flawed computer modeling data instead of documented air quality available from the Florida Department of Environmental Protection. One of the FDEP air quality monitors is in Belle Glade. The plaintiffs have also made “outrageous claims,” the defendants argue. For example, they made a comparison between controlled 40-acre sugarcane burns lasting an average of less than 20 minutes and the 2018 California Camp Fire, an uncontrolled burn of more than 150,000 contiguous acres that lasted 17 days.

• The class action lawsuit was filed June 4, 2019, against Florida Crystals, Sugar Cane Growers Cooperative of Florida, U.S. Sugar Corporation, Flo-Sun Inc., American Sugar Refining Inc., Okeelanta Corp., Osceola Farms, Sugarland Harvesting, Trucane Sugar Corp., Independent Harvesting Inc., King Ranch Inc., J&J Ag Products Inc. and DOES 1-50. The original complaint had two plaintiffs, Clover Coffie and Jennie Thompson.

• The first amended complaint was filed Aug. 28, 2019, and lists three plaintiffs, adding Shante LeGrand.

• On May 8, 2020, U.S. District Judge Rodney Smith dismissed much of the amended lawsuit. The court permitted plaintiffs to attempt to re-plead only three of the seven counts. In the court order, U.S. Southern District of Florida Judge Smith noted, “There is nothing in the amended complaint showing that each of the plaintiffs has been harmed by all of the defendants … Unlike the plaintiffs in the cases cited by plaintiffs, who sued one or two defendants, plaintiffs here have sued virtually an entire industry involving what amounts to dozens of actual sugarcane growers. Additionally, the cases cited by plaintiff all involved waterways which have a unidirectional flow, unlike wind patterns, which change. There is nothing in the amended complaint alleging that plaintiffs have been exposed to smoke and ash from all of these dozens of sugarcane producers.”

The judge’s ruling also stated, “Defendants maintain that sugarcane burning falls squarely within the Right to Farm Act: It is a generally accepted agricultural management practice, as evidenced by the fact that it is statutorily permitted and regulated by the Florida Forest Service, and there are no allegations that preharvest burning was a nuisance to anyone at the time these farm operations commenced.”

The order also references the “air quality in Florida is monitored and regulated by FDEP (Florida Department of Environmental Protection) which sets standards for air quality.”

• On June 22, 2020, the plaintiffs filed a second amended complaint. In this complaint, the defendants claimed “Preliminary air dispersion modeling by plaintiffs demonstrates to a high degree of certainty that byproducts from burning conducted by each defendant impacts receptors in all seven communities in the class area, and that defendants’ burning cumulatively exceeds air quality standards.” The first amended complaint had three plaintiffs. This complaint now has 10 plaintiffs: William Armstrong of Moore Haven, Gloria Atkins of Clewiston, James Brooks of Clewiston, Clover Coffie of Belle Glade, Debra Jones of Pahokee and Shante Legrand of Belle Glade, Donald Mcclean of South Bay, Robert Reimbold of Moore Haven, Elijah Smith of Clewiston and Linda Wilcher of South Bay.

• On Aug. 5, 2020, attorneys for the defendants responded to the second amended complaint. The court previously dismissed plaintiffs’ First Amended Complaint because plaintiffs’ allegations against the entire sugar industry across all of an approximately 675-square mile area were far too generic to plausibly trace their alleged injuries to each defendant,” the response states. “The court allowed plaintiffs an opportunity to amend to attempt to cure the standing deficiencies ... Plaintiffs responded by filing the SAC, which attempts to address standing by using air modeling without any actual air quality data.”

These “models project air quality that is comparable to or far worse than air quality in the vicinity of significantly larger emission events like the Mount St. Helens volcanic eruption and the recent massive Camp Fire in California. In short, plaintiffs offer an unexplained model that spits out pure fiction — a conclusory set of numbers with no plausible basis — and does not come close to curing the standing defects the court found in plaintiffs’ prior complaint,” the defendants argue.

The plaintiffs claim the model shows a high level of particulate matter of 3,934 micrograms per cubic meter in 2016, while actual monitoring by Palm Beach County Health Department shows the high for that year was 22.9 micrograms per cubic meter on July 5, 2016. Defendants also note the highest particulate levels documented by the health department were in June, July, August and September, which are not months in which sugar cane is burned, indicating the particulates came from other sources.

The response continues, “The most concrete and particularized injury alleged in the SAC involves cane ash falling on plaintiffs’ properties and vehicles, but — contrary to the direction issued by the court — the SAC makes no attempt to trace cane ash to each defendant.” The response also notes that photos of cane burning included in the SAC show the smoke going straight up, in an otherwise blue sky, not affecting adjacent properties. The SAC does not attribute the photos to any particular location. The defendants note one photo was taken in Maui (Hawaii), not Florida.

• On Aug. 26, 2020, the plaintiffs filed a motion to amend their second amended complaint.

• In October 2020, mayors and ministers from the Glades area gathered to voice their support for the sugar industry and their opposition to a lawsuit that seeks to end sugar cane burning. “We are not going to sit back and allow them to file lawsuits to shut down the sugar industry,” said South Bay Mayor Joe Kyles. “It is very vital that we have the sugar industry in the Glades area. We will continue to fight and support the sugar industry at all times, not just 100% but 110%. We will go beyond and over to make sure our sugar industry stays in the Glades area.”

Belle Glade Mayor Steve Wilson commented: “If at any point, if I thought burning the cane was causing any problems ... I love all of you. I love the people I serve. I love me, too. Do you think I would put myself in harm’s way as well as my family? That’s not going to happen.”

“I have seen the impact when you close down mills in this area and the economic impact it has on our community. We just can’t afford to lose the sugar industry,” Pastor Robert Rease of Belle Glade said.

• On Nov. 6, 2020, Judge Smith granted the motion to amend the second amended complaint, directing the plaintiffs to file their third amended complaint by Nov. 12.

• On Dec. 16, 2020, the plaintiffs filed a motion to dismiss the third amended complaint.