When 77-year-old environmental activist Maggy Hurchalla stepped out of her deposition on the morning of July 16, 2018, she was surprised to find a sheriff’s deputy blocking her way to the parking lot. He held a thick stack of papers.
“Give me your car keys, or we’ll have to tow your car,” said the deputy, holding out his hand. He had a court order to seize her white 2004 Toyota Camry and two of the kayaks at her house. The car, with 207,000 miles on it and no working air conditioning, had sentimental value: It had once belonged to Hurchalla’s sister, former U.S. Attorney General Janet Reno, who passed away in 2016.
“That leaves me without a way to get home,” Hurchalla said. She offered to drive herself from the deposition near Stuart, Florida, to her home on the St. Lucie Estuary and show the police which kayaks to take. She wanted to make sure they didn’t accidentally seize kayaks that belonged to her friends.
The deputy said someone was already at the house removing the kayaks. They were only doing what they had to do, he said. Then he took her keys.
Hitching a ride, Hurchalla raced home on the Intracoastal Waterway. But by the time she arrived, the kayaks were gone, and the court order to seize them was stuffed into the screen door. One of the kayaks had also belonged to her sister, who bought it used in 1996.
Later that day, Hurchalla wrote in an impassioned blog post about the incident. “There is something very childish about thinking that if they take away my car and my toys I will burst into tears and stop defending the First Amendment,” she wrote. “The car and the kayaks can be replaced. The First Amendment cannot.”
Hurchalla, who is retired, now has to pay Lake Point $4,391,708 in return for her activism.
A development company called Lake Point had sued Hurchalla for “tortious interference.” The company was aggrieved over delays in the development of 2,200 acres of sugarcane fields near the heavily polluted Lake Okeechobee. Lake Point, owned by billionaire George Lindemann Jr., claimed that Hurchalla’s ceaseless petitioning and activism against its plans had cost the company its contracts with Martin County and the water district, which were supposed to bring in millions. Lake Point just wanted to recoup its losses.
Hurchalla, who is retired, now has to pay Lake Point $4,391,708 in return for her activism. Two kayaks and an old Toyota hardly made a dent.
You may not be familiar with the term SLAPP suit, but chances are you’ve seen them play out: In 2016, protestors started to collect at the site where the Dakota Access Pipeline planned to cross sacred Lakota Sioux land. The protests went viral, with thousands proclaiming they stood with Standing Rock.
The next year, Energy Transfer Partners, the company behind the Dakota Access Pipeline, filed suit against Greenpeace and other allies, alleging that activists protesting the pipeline had violated the Racketeer Influenced and Corrupt Organizations (RICO) Act by provoking unrest and inciting campaigns against the project.
“The bogus lawsuit filed by Energy Transfer against Greenpeace and others for their support of the peaceful water protectors at Standing Rock is a legal tactic to silence any opposition to the company’s wrongdoings,” says Rodrigo Estrada, a spokesperson for Greenpeace USA. “It is intended to have a chilling effect on the defendants and, further, on anybody that voices opposition against corporate social and environmental abuses.”
Most people lack the funds or the fortitude to stand up to corporate lawyers, and many balk, apologizing and retracting their statements.
When corporations file suit to stifle their detractors, the cases are what activists call a SLAPP, or a Strategic Lawsuit Against Public Participation. A SLAPP suit may go unnoticed for what it truly is, like the tortious interference accusation leveled against Hurchalla, appearing instead to be a legitimate civil lawsuit. Though SLAPP is a subjective term and not a legal designation, those who know what to look for can recognize a SLAPP suit almost immediately: excessive, over-the-top claims against individuals voicing seemingly legitimate grievances.
SLAPPs back dissenters into a corner. Most people lack the funds or the fortitude to stand up to corporate lawyers, and many balk, apologizing and retracting their statements to avoid months or years of emotionally and financially draining litigation.
The Public Participation Project, a nonprofit devoted to defending free speech, has made it their mission to pass anti-SLAPP legislation at the federal level. These laws protect citizens from meritless lawsuits for exercising their constitutional rights of free speech and petition. Such legislation makes it easier for courts to dismiss meritless lawsuits, especially those seen as penalizing free speech. Although some states already have anti-SLAPP laws, with Texas and California boasting some of the strongest, others, like Michigan and the Carolinas, lack legislation that helps fend off meritless lawsuits before they can drag on in court.
In late July, I drove deep into a cookie-cutter Florida subdivision where, hidden on an out-of-place rutted dirt path and past an overgrown entrance, I could just barely make out Hurchalla’s house. I parked and crept up to the screened porch. Fishing tackle, scuba gear, dolphin skulls, washed-up coral, aquamarine glass telegraph insulators — a museum’s worth of Florida artifacts — festooned the place. Beyond the porch, the river sparkled in the morning sun.
Hurchalla had invited me to go kayaking with her to give me a sense of the surrounding ecology and what was at stake. I wanted to visit Lake Point myselfbut made little headway when I contacted the company’s representatives.Hurchalla told me that any development at the Lake Point site there would affect the whole downstream ecosystem. A solid plan could protect the estuary from the Lake Okeechobee’s dirty water, but reckless construction at the headwater might have a cascading effect that could spread damage all along the St. Lucie River.
While I stood on her porch, Hurchalla retrieved a laminated map of the St. Lucie Estuary and traced our journey: We would cut across the Intracoastal Waterway, past places named Hell’s Gate, Hole in the Wall, and Great Pocket. Our final destination was just off the edge of the map, a place Hurchalla called the End of the World.
Hurchalla is the kind of person people listen to and the kind of person you would trust to lead you to the end of the world: Over six feet tall, with a gray pixie haircut, she has a commanding presence, an unselfconscious grin, and the distinguished air of a ship’s captain. A person with everything under control.
Since the 1970s, Hurchalla has been a leader in Florida’s environmental movement. In 1974, she became a county commissioner for Martin County and held the job for 20 years. During that time, she fought for the protection of wetlands, notably serving on the Governor’s Commission for a Sustainable South Florida and advocating for wetlands conservation and restoration. She was the Everglades Coalition’s Conservationist of the Year in 2002 and over the course of her career has been honored by a number of other organizations, including the National Wildlife Federation. At 77, Hurchalla continues to take part in protests and educational initiatives throughout the state. So when she heard of Lake Point’s plans in Martin County, her home, she felt compelled to get involved.
The 23 emails Hurchalla had sent to commissioners voicing her protestation were presented as a smoking gun.
The proposed Lake Point development was supposed to take place one mile from Lake Okeechobee, Florida’s largest freshwater lake. Plans for the land changed over time: Initially, George Lindemann Jr. and his business partners proposed using the area just for rock mining. But then they wanted to store excess water from Lake Okeechobee in the empty pits. Overflow from lake Okeechobee has been a problem in recent years: When water levels are too high, the Army Corps of Engineers discharges water down canals to the east and west of the lake. These canals feed into the St. Lucie and Caloosahatchee Rivers. Discharges cause a number of problems, including the harmful algal bloom that plagued the state this July.
At face value, diverting excess water from Lake Okeechobee into the Lake Point pits sounds like a cure-all: It would take stress off the already overtaxed dike system, and it would relieve the need for discharges, which send polluted water from the lake into coastal estuaries. But for environmentalists, the Lake Point plans were flawed, and worse — unclear. For one, development of the site may have required the destruction of wetlands. (In the trial, this was a major point of contention.) For another, you can’t store water in rock pits, because, geologically, much of Florida is porous: Any water pumped into the pits might leak out, contaminating the area around them, seeping into the water supply, or trickling back into Lake Okeechobee.
Then, in 2012, the Palm Beach Post revealed that Lake Point was planning to join forces with American Water, a utilities company that already operates in 47 states and Ontario. Together, American Water and Lake Point wanted to take polluted water from Lake Okeechobee, clean it, and sell it back to Palm Beach County.
According to the Florida Water Resources Act of 1972, Florida’s water is held in public trust for the benefit of its citizens. Water management districts can grant permits to withdraw water, but permits are temporary, and to get one, companies have to show they intend to withdraw water for “reasonable beneficial use” for the citizens of Florida. Lindemann has since claimed that selling water was never his intention, but the idea of Lake Point profiting off Florida’s precious water was enough to attract environmentalists to the cause, including Hurchalla.
“I howled!” Hurchalla said. She and the environmentalists raised a number of concerns, but no matter who she emailed at Lake Point with questions, Hurchalla says she was forever referred to someone else for answers she never received. Hurchalla brought her opposition to the attention of the Martin County commissioners, who began raising their own questions.
But the deal had already been signed: In 2008, Lake Point made a deal with the South Florida Water Management District (SFWMD) to store water in its mining pits. In 2009, the water district signed an agreement with Martin County for land use. Lake Point expected to reap millions as the contracts played out.
But Hurchalla succeeded, at least temporarily, in stopping the water storage proposal: Martin County and SFWMD canceled their contracts with the developer in 2012. Lake Point claims it lost the contracts because Hurchalla sabotaged its business, coaching Martin County commissioners on how to do away with the project.
In 2013, Lake Point sued Hurchalla for tortious interference, or the intentional damage of contractual relationships with the intent to cause a business financial harm. The developer claimed Hurchalla had deleted incriminating emails. Lake Point also sued Martin County and SFWMD in a separate lawsuit. Lake Point refused to comment for this piece.
Hurchalla defends her efforts to speak with her elected representatives and insists she was exercising her right to petition the government to deflect what she believes to be a potentially harmful project.
After the lawsuit was filed, court proceedings carried on for five years. Before Hurchalla’s trial, Martin County settled with Lake Point for $12 million plus a letter of apology. The district’s settlement included a pledge to make an annual purchase 50,000 tons of rubble from Lake Point Restoration. (More in-depth information regarding these settlements has been hard to come by: This year, SFWMD lawyers sued the Everglades Law Center and threatened 17 others with subpoenas for making public records requests about a closed district meeting addressing the agreement — a drastic move in a state that prides itself on its extremely open public records laws.)
There was no attempt to settle with Hurchalla. She claims the trial, which finally took place in February 2018, was unfair: Lake Point’s attorneys framed missing emails and private conversations as pulling strings behind the scenes. Meanwhile, the 23 emails she had sent to commissioners voicing her protestation were presented as a smoking gun. During the trial, Hurchalla was disallowed from mentioning the recent deaths of her family members and her own battle with cancer, because these might win her sympathy. She asserted that the Lake Point project had bulldozed wetlands, but Lake Point disagreed. The area the company bulldozed was technically “agricultural wetlands,” which its experts argued does not constitute wetlands. Legendary environmentalist Nathaniel Reed, who co-wrote the Endangered Species Act of 1973, came to Hurchalla’s defense, but to little avail.
Though Hurchalla legitimately believed there was a threat of potential harm from the project, Lake Point claimed her statements were lies and convinced the jury of “malice” and intent to harm the Lake Point contracts.
After only eight days, the trial ended in favor of Lake Point, and Hurchalla was slapped with a fine so monumental that she says she will never be able to pay it back. If Hurchalla can’t pay, Lake Point can keep trying to collect for the next 20 years, though she cannot be arrested for nonpayment. Hurchalla says it’s all just a warning to environmentalists: Speak out, and you may lose everything you have.
Hurchalla began the appeals process almost immediately after the judgment against her. Since then, many nonprofits have filed amicus “friend of the court” briefs to introduce support for Hurchalla and her cause into the court record. Amici include the First Amendment Foundation, the University of Florida Brechner Center for Freedom of Information, League of Women Voters, ACLU of Florida, Florida Society of News Editors, Natural Resources Defense Counsel, Sierra Club, and the Florida Press Association.
Penelope Canan and George Pring, authors of SLAPPs: Getting Sued for Speaking Out, also filed amicus briefs in Hurchalla’s appeal. Though Lake Point’s lawyers explicitly deny that they’re engaged in a SLAPP suit, Canan and Pring assert it has all the earmarks of one. According to their book, SLAPP suits are dangerous because they rob matters of public interest of their political gravity and context, instead turning them into trifling private disputes only fit to be brushed aside — or, in Hurchalla’s case, splashed all over the gossip pages. Either route has the same effect, according to Holt, to “forcibly shut down dissenting viewpoints.”
Barbara Petersen, president of the Florida First Amendment Foundation, believes SLAPP suits can be detrimental to the success of a free and liberated society. “We want citizens to participate,” Petersen says. “We want them to be engaged, and we want them to be able to do that without fear.”
Out on the water, Hurchalla was a human encyclopedia, pointing out a scarlet ibis and a mullet that jumped and splashed out of the water.
“This isn’t a partisan issue,” says Evan Mascagni, policy director for the Public Participation Project. “Every American values the First Amendment, the right to free speech and petition activity.”
What Hurchalla and her army of lawyers want now is a reversal. She says anything else is still a blow to all environmentalists — and peaceful protesters — in Florida. But fighting for an appeal will be a long road paved with depositions and many days in court. Hurchalla’s lawyers, some of whom have volunteered to work pro bono, while others have tacked onto her debt, don’t expect the court to reach a decision until next summer.
Back in the St. Lucie Estuary, I followed Hurchalla in her wobbly Kevlar kayak across Great Pocket. She pointed me toward a wall of mangroves across the waterway. A moment later, I disappeared into them, slipping into a tunnel just wide enough for our kayaks. Hurchalla followed.
Out on the water, Hurchalla was a human encyclopedia, pointing out a scarlet ibis and a mullet that jumped and splashed out of the water. We ventured through the last leg of woods on foot. Down dunes strewn with sargassum, Hurchalla went to bodysurf, swimming in the weedy waves with a graceful ease. This place was home for her. With Hurchalla out in her element, it was easy to see why she took a stand: You fight for one patch of wetlands, fearing that your little postage stamp of earth is next.
“Freedom of speech is the bedrock of democracy,” Hurchalla told me earlier that morning. “But if you lie with express malice, threaten bodily harm, or offer bribes, you do not have a free speech right. Well, they’re attempting to define express malice as ‘our expert doesn’t agree with your expert.’ If that was the law, it would knock out environmental debate everywhere.”
Through our hours of conversation, I became convinced that Hurchalla wasn’t doing this out of self-interest, and at 77 years old, she knows she isn’t going to last forever. But she is resolved and takes the environmental dangers that threaten Florida very seriously — plastic pollution, algal blooms, runoff, and red tides. Her voice, she believes, is her most powerful tool.
Eventually we left the beach, got in our kayaks, and headed home. For now, part of the 2,200 acres owned by Lake Point is a rock mining operation, but the company plans to move forward with plans for what it calls a “public works project.”
“This settlement [with Martin County and the water district] clears the way to let us take dirty water from Lake Okeechobee and the canal, keeping some of it from flowing to the estuary; clean it and put it back into the system,” Lindemann said in a statement last December. “We’re glad to be moving forward.”
With Hurchalla preoccupied by her appeal, the responsibility of keeping watch over land developments in South Florida may fall to others. But now they know: They protest at their own risk.