The city of Cape Coral is pursuing the recoupment of significant legal fees from three residents who filed a lawsuit challenging the removal of the Chiquita Lock and the plaintiffs, who call themselves “the three fishermen,” are hoping for city council intervention.

The city has asked an administrative law judge to require the plaintiffs who contested the permit to pay the city’s legal expenses.

Exactly how much the city is seeking is uncertain but may be seven figures.

An attorney representing the plaintiffs said in September the fees sought were in excess of $1 million.

A public records request submitted then by The Breeze seeking legal fees and recoupable expenses produced a 31-page document that totaled a little more than $1.97 million as of August.

The city did not respond to a question by press time as to whether all the fees listed in the worksheet were recoverable or being sought.

A hearing has been set for late February of 2025 to determine the outcome under Judge Suzanne Van Wyk, who also presided over the challenge.

Attorney for the trio, Michael Hannon, has stated in their filings that the city seeking these fees from his clients is “unjust, unprecedented, and a violation of their first amendment rights” as the challenge was not frivolous in nature, a legal standard for an award of legal fees.

The residents, James Collier, Kevin Sparks, and Dan Carney, each spoke at Wednesday’s Cape Coral City Council meeting, stating that they accepted their loss and the removal of the lock will so happen, but are facing financial jeopardy for doing what they say was their due diligence in fighting for what they believe was the right thing for Cape Coral waters.

Collier, a 20-year Cape resident and former chairman of the Waterway Advisory Board, said he and his peers wanted the present lock system replaced with a new, more modern, faster system.

Their argument was that the lock provides storm surge and water quality protection.

After a five-day hearing late last year, an administrative law judge voted in favor of the city.

“Now, and for the last several months, we have been sued by the city alleging that we were involved in this matter for an improper purpose,” Collier said.

“None of us were ever even close to an improper purpose. Of the three of us here today, two of our homes were badly damaged by Hurricane Ian’s storm surge. My wife and I are still repairing that damage. Never was there a frivolous or improper purpose on our side. The effort to sanction and penalize us has been going on since last spring. There is no reasonable ground for sanctions against the three of us.

“The defense effort is draining us all financially, as well as exhausting us personally.”

Collier called for a pause on the city’s legal action towards the three fishermen until the new city council can weigh-in.

Collier also questioned how the city’s hired lawyers are being compensated.

“If hourly, then the city is spending lots of taxpayer money on a very iffy and likely relatively small recovery,” he said. “If this fee arrangement is contingent, or a percentage fee, then the city has effectively put a bounty on some of the most responsible citizens for exercising their free speech rights. The city should take the win and move on.

“At a minimum, the city should instruct these hired attorneys to stop the sanctions effort until the new council weighs in.”

According to the petitioners’ motion to strike in documents provided to The Breeze, the city has moved at least four times for an award of fees against the Petitioners for pursuing this matter for an improper purpose “to cause unnecessary delay, to pursue frivolous purposes, or to needlessly increase the cost of litigation.”

According to the filing provided by the city attorneys, their motion, states, in part, “Petitioners repeatedly caused unnecessary delay of this proceeding. In doing so, they also attempted to try this case by surprise. Petitioners’ experts never provided final opinions before the Final Hearing began, and then during the Final Hearing attempted to testify as to undisclosed opinions.”

Carney, a 12-year Cape resident, said his overriding decision to move to the Cape was to have access to world-class fishing and the environment that supports it. He said that’s no longer the case.

“I have become deeply involved in the fishing environmental community,” he said while touting his efforts in protecting the environment. “I take my responsibility of protecting the environment very seriously. When I was informed about the city’s desire to remove the Chiquita Lock despite a long-standing consent decree, I became very concerned about the impact it would have on the environment.

“The petition to stop the lock removal was made in good faith. But we lost. The fact that the city is trying to punish its citizens for making a reasonable legal action by charging us with its legal fees, over which we have no control, is in my mind a warning to others not to challenge the city on any issue it wishes to pursue. All three fishermen signed a settlement agreement proposed by the city that acknowledged that the city won, and that we would not pursue any action against the city regarding the removal. Yet here we are, being sanctioned for fees. We ask the city to do the right thing and drop all sanction requests against the three fishermen.”

Sparks, a lifelong fisherman, also said fishing is what brought him to Cape Coral.

“Since I have been here, I have seen an unrelenting decline in water quality, and fishing success in the waters surrounding the Cape,” he said, noting that’s the reason why he, Carney and Collier first teamed with the Matlacha Civic Association, Calusa Waterkeeper, and Sanibel Captiva Conservation Foundation on the challenge.

“We were not happy with the ruling and did not agree with it, but accepted it and did not appeal,” Sparks said. “We decided to move on. Now we find ourselves attacked by the city’s attorneys, who claim we filed our challenge for an improper purpose. This is false. This puts Jim, Dan and me in real financial jeopardy.

“I was deployed to the Panhandle to manage the recovery after a devastating hurricane by the same city that is suing me now.

“It is clear that the city’s attorneys are trying to make an example of us and send a message to others that it doesn’t pay to question the city.”

The new Council members have been advised that they should not speak with the plaintiffs or others with an interest in the suit.

In response to this request for a meeting with the council members regarding the Chiquita Boat Lock litigation, the request was brought directly to the attention of the city attorney,” an email to Cheryl Anderson from the Council office dated Thursday states.

“Regrettably, please be advised that the council members will not be able to meet with you to discuss this matter. The city attorney’s office has advised against meeting with the petitioners or anyone associated with them for the purpose of discussing any aspect surrounding the city’s entitlement to sanctions and attorney’s fees against the petitioners in this ongoing, pending litigation.”

The lock, which provides access in and out of the South Spreader Waterway for boats, has had long-term maintenance and boating constriction issues — reasons cited by the city as it pursued its removal for the last several years.

The city has worked towards obtaining permits from the Florida Department of the Environment and Army Corp of Engineers. The city, as of Aug. 16, obtained the Florida Department of Environmental Protection permit. It is currently seeking an Army Corps of Engineers permit, as both are needed to remove the lock and move forward with the marine improvements.

According to city documents, the removal of all existing utilities, proper containment and removal of all hydraulic fluids, tanks, lines, operations building, and lock gates are part of the scope of work. Other items to be removed include all concrete, earth, and seawall in the north side of the lock’s footprint.

The installation of the new seawall on the north side of the lock will be done prior to the removal of the existing one. The seawall on the south side of the lock will remain, as well as the concrete channel base. There will be oyster reef balls placed once the construction is done.

The final shutdown of the Chiquita Lock is expected to begin April 1, 2025, with work to last up to 81 days.

Wright Construction Group Vice President of Civil Operations Andrew Powell said from January through March 2025, they will demobilize from the site.

There is no dredging of the waterway from Nov. 15 through March 31, according to the U.S. Army Corps of Engineers permit, to protect manatees and other aquatic life during peak breeding season.

The navigable waterway access will shut down again on April 1, 2025, and remain closed for up to 81 days.

The anticipated reopen will occur in June 2025.

Powell said they will complete the final excavation between July and August.

The substantial completion is expected in October 2025 with the final completion and closeout in November 2025.

Editor’s note: This story has been updated to include an email response to the plaintiffs.