Sugar cane burning lawsuit dismissed

Posted 2/26/22

CLEWISTON – After nearly three years of litigation, a lawsuit filed against sugar cane farmers over the preharvest burning of sugar cane fields has been dismissed.

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Sugar cane burning lawsuit dismissed


CLEWISTON – After nearly three years of litigation, a lawsuit filed against sugar cane farmers over the preharvest burning of sugar cane fields has been dismissed.

The plaintiffs dropped the case just before deadlines required them to produce facts and evidentiary reports in support of their claims.

The lawsuit, filed by Hagens Berman and Berman Law Group, alleged 10 residents of Moore Haven, Clewiston, Belle Glade, Pahokee and South Bay were injured due to particulates in the air from sugar cane burning.

On Feb. 25, the United States District Court Southern District of Florida dismissed the case with prejudice. This prevents the plaintiffs from filing the same case again.

“As sugarcane farmers have maintained from the start, the case against air quality in the farming region was without merit,” said Judy Sanchez, U.S. Sugar’s Senior Director for Corporate Communications and Public Affairs.

“We believed the science, data, and regulations that support our work every day would show that the air quality in the Glades is ‘good’—the highest quality under federal regulations. Today, the Plaintiffs and their lawyers dropped the lawsuit and voluntarily dismissed all of their claims with prejudice,” she explained.

“The plaintiffs are walking away from their case after U.S. Sugar recently released three years of air quality data and its second annual State of Our Air Report, which provided scientific, accurate, and actual air quality data from both publicly available monitors and a series of private monitors located throughout the farming communities,” Suarez explained. “Every one of these monitors provided consistent data confirming the Glades air is safe, healthy and ‘good.’  This data also confirmed air quality in the Glades region meets all state and federal clean air standards.

“In contrast, the plaintiffs failed to produce or provide a single data point related to the Glades communities’ air quality. Instead, they relied on hypothetical modeling to provide speculations—which, they admitted, was inaccurate and had to be corrected in repeated re-filings before the court.

“Throughout these continued attacks both in court and by well-funded outside activist groups, the people of the Glades communities have demonstrated unwavering support for our local farmers who live here, work here, and raise our children here,” Suarez continued.  “They understand that our farming practices are safe, environmentally sound and among the most advanced and heavily regulated in the nation.”

The Sugar Cane Growers Cooperative of Florida released the following statement on Feb. 25, concerning the dismissal of a complaint regarding sugarcane farmers’ practice of prescribed burning:

“The complaint was voluntarily dismissed by the plaintiffs with prejudice, and there was no settlement.

"Our family farmers at the Sugar Cane Growers Cooperative of Florida remain steadfast in our commitment to being good stewards of our land, our air, and our water because our legacy is in the land, and our job is to farm it with great care so that these family farms may be passed from one generation to the next.

"At the Cooperative, our 41 member-growers not only farm sugarcane but also rotate our crops to produce winter vegetables, leafy greens, sweet corn and much more, ensuring families across America can rely on a secure source of home-grown foods at their dinner tables.

"The Cooperative will continue to lead the way when it comes to incorporating Best Management Practices that result in clean air, water, and soil and a healthy environment. Our investment in sustainability standards reflects our deeply rooted dedication to caring for the land that is our livelihood today and our families’ livelihoods for future generations to come.”

Cane field burns only account for about 20% of the state’s prescribed fires each year, according to data from the Florida Forest Service (FFS). Cane field burns are regulated by FFS. Permits are given for a particular day, either morning or afternoon, based on the wind and weather conditions for that day. It takes less than 20 minutes for fire specialists to burn a 40 acre field.

Courtesy photo/Richard Marion
Courtesy photo/Richard Marion

• 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 listed 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 had 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 argued.

The plaintiffs claimed 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 noted 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 continued, “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 noted 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.”

  • On July 2, 2021 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 listed as defendants: Florida Crystals Corporation, Osceola Farms Co., Okeelanta Corporation, and SugarCaneGrowers Cooperative.  
sugar cane, burning, lawsuit