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Note: Status of cases
is as of December 11, 2002. Readers are encouraged to advise the
authors of pending appeals that should be included.
FLORIDA SUPREME COURT
Hennessey v. Department of Business and Professional Regulation,
Case No. SC02-1586.
Petition to review a
First DCA decision upholding a DBPR rule requiring licensed animal
trainers to be the "absolute insurer" that the animals they train are
not drugged, holding that a statute allowing DBPR to take action
against a licensee who was responsible for the condition of a drugged
animal. This decision could potentially influence environmental
rulemaking to make a permittee absolutely liable for conditions at a
permitted facility. 27 Fla. L. Weekly D907 (Fla.1st DCA 2002).
Status: Notice to invoke jurisdiction filed July 18.
Bradfordville Phipps Ltd Partnership v.
Leon County, Case No. SC02-283.
Petition to review a First DCA
decision affirming a circuit court decision denying the Partnership's
motion for summary judgment and granting summary judgment in favor of
the County in the Partnership's inverse condemnation action. The
action was filed following imposition of a temporary injunction
against certain development permits within an area known as the Bradfordville Study Area, and the Partnership owns property within
that area. 804 So. 2d 464 (Fla. 1st DCA 2001, rehearing denied Jan. 7,
2002). Status: Review denied October 9.
Paulucci v. General Dynamics Corp., Case No. SC01-2346.
Petition to review a Fifth DCA opinion holding that the trial court
was without jurisdiction to entertain a motion to enforce a settlement
agreement between private parties to address pollution on the
Paulucci's property, allegedly caused by General Dynamics and others,
even though the trial court had previously issued the final judgment
incorporating the settlement agreement. 797 So. 2d 18 Fla. 5th DCA
2001). Status:
Oral argument held December 10.
Miami-Dade County v. Omnipoint Holdings, Case
No. SC02-815.
Petition to review a
Third DCA opinion upholding a
lower court decision allowing Omnipoint to build a communications
tower in a local community despite the refusal of the community
council to grant a zoning exception. The Third DCA declared that the
entire zoning code was "legally deficient because it lacks objective
criteria for the County's zoning boards to use in their
decision-making process" and was overly vague. 811 So. 2d 767 (Fla.3d DCA 2002). Status: Petition filed April 8.
Barley v. South Florida Water Management
District, Case No. SC00-1998.
Petition to review a Fifth DCA decision
holding that the "Polluter Pays" amendment to the constitution did not
bar the water management district from levying a tax to clean up the
Everglades on all property owners within the district, instead of just
those primarily responsible for the pollution, because the amendment
is not self-executing. 766 So. 2d 433 (Fla.5th DCA 2000). Status:
The court affirmed on April 11.
Rehearing denied July 19. 823 So. 2d
73.
Sarnoff v. Department of Highway Safety &
Motor Vehicles, Case No. SC01-351.
Petition to review the
constitutionality of the $10 fee motorists in six counties were
required to pay up until July 2000 under the mandatory auto emissions
inspection program. The First DCA reversed an order granting class
certification on the ground that the plaintiffs had failed to exhaust
their administrative remedies by first seeking a refund of the fee
from the state comptroller. 776 So. 2d 976 (Fla.1st DCA 2001).
Status: The court affirmed on August 22. 825 So. 2d 351.
Board of Trustees of the Internal Improvement Trust Fund v. Day Cruise
Association, Case No. SC01-2656.
Petition to review a
First DCA
decision holding that a proposed Trustees rule prohibiting gambling
"cruises to nowhere" from docking over sovereign submerged lands was
an invalid exercise of delegated legislative authority. 798 So. 2d
847 (Fla.1st DCA 2001). Status: Review denied July 16.
Caribbean Conservation Corp., et al. v. Florida Fish & Wildlife
Conservation Commission, Case No. SC01-1885.
Petition to review a
First DCA case holding that Chapter 99-245, Laws of Florida, is a
constitutional statutory delegation of authority over endangered
marine life to the Fish and Wildlife Conservation Commission (FWCC)
and holding that the FWCC is subject to the rulemaking requirements of
the APAin promulgation of rules related to such species. 789 So. 2d
1053 (Fla.1st DCA 2001). Status:
Oral argument held August 27.
FIRST DCA
Jacqueline Lane v. DEP, Case No. 1D02-2043, and
Apalachicola Bay and River Keeper, Inc. et al. v. DEP, Case No.
1D02-2319.
Appeal of a
DOAH final order
upholding DEP's rule
establishing the criteria for determining whether a state water body
is "impaired", thereby requiring development of a Total Maximum
Discharge Limit (TMDL). Status: Notice of appeal in Case No.
1D02-2043 filed on May 22; all briefs have been filed. Notice of
appeal in Case No. 1D02-2319 filed June 7; all briefs have been filed.
Pringle v. FWCC, Case No. 1D02-580.
Appeal of
a circuit court decision holding that an FWCC rule governing
entangling or gill nets was an unconstitutional regulatory taking, in
that it allowed only nets that were not commercially viable. The
judge also ruled that fishermen could use mesh of any size, provided
the net was not made of monofilament, was not larger than 500 square
feet, and did not kill 90% of fish by gilling or entangling them.
Case No. 97-271 (2d Circuit). Status: Notice of appeal filed
February 13. All briefs have been filed.
Angelo's Aggregate Materials, Ltd. v. Suwannee
River Water Management District, Case No. 1D02-1904.
Appeal of a DOAH
final order dismissing challenges to policies as to Works of the
District (WOD) and Environmental Resource Permit (ERP) requirements
for activities located in floodways as unpromulgated rules, and to
certain existing WOD rules involving floodways. DOAH Case Nos.
01-4026RU and 01-4383RX. Status: Voluntarily dismissed October 10.
Wilkinson v. Florida Fish & Wildlife
Conservation Commission, Case No. 1D02-1841.
Appeal of a
summary
judgment in favor of the FWCC on a boater's action for declaratory
judgment challenging the FWCC's administrative rule establishing a
manatee protection zone in LeonCounty. Status: Notice of appeal
filed May 9.
Charlotte County v. IMC Phosphates Co. and
Department of Environmental Protection, Case No. 1D02-4874.
Appeal of
a
DEP final order
[google cache page -
original unavailable] (issued by a substitute agency head) granting an ERP
permit authorizing phosphate mining and reclamation in a tract known
as the Manson Jenkins property that includes the West Fork of Horse
Creek. DOAH Case Nos. 01-0180, 1081 and 1082; DEP OGC Nos. 01-0364,
01-0371 and 01-0372. Status: Notice of appeal filed December 3.
SECOND DCA
Ronald L. Barnett, Stardancer Casino, Inc.,
and Fernandina Cruises v. Paradise of Port Richey, Inc. d/b/a SunCruz
Casino,Case No. 2D02-776.
Appeal of trial court decision granting an
injunction pursuant to section 403.412, Florida Statutes, in favor of
Paradise of Port Richey and enjoining the appellants from operating
their casino boat shuttles in a manner that "prop dredged" the Pithlachascotee River bottom. The trial court found that prop
dredging the river bottom constituted irreparable harm to the
environment for which there was no adequate remedy at law. The
injunction established standards for the operation of the appellants'
vessels. Status: On September 4, the court affirmed per curiam. 827
So. 2d 986.
FOURTH DCA
Osceola Fish Farmers v. South Florida Water
Management District, Case No. 4D02-89.
Appeal of a DOAH final order
ruling that OFFA's unpromulgated rule challenge to an unwritten policy
of SFWMD pursuant to section 120.565(4) became moot when the SFWMD
complied with the requirements of section 120.56(4)(e) and initiated
rulemaking. This ruling effectively allowed the SFWMD to avoid paying
attorney's fees and costs to OFFA pursuant to section 120.595(4) by
publishing a proposed rule addressing the statement at issue and
proceeding "expeditiously and in good faith" to adopt the proposed
rule. Status: The court affirmed on November 20. 27 Fla.L. Weekly
D2525.
Department of Agriculture v. Haire, et al.,
Case Nos. 4D02-2584 and 4D02-3315.
Appeal of a lower court decision
issuing a temporary injunction preventing Agriculture officials from
entering private property without a search warrant to find and destroy
all citrus trees within 1,900 feet of a tree infected with citrus
canker. Status: Oral argument held December 4.
Lost Tree Village Corp. v. City of Vero Beach,
et al., Case No. 4D01-3954.
Appeal of a final judgment dismissing
Lost Tree's inverse condemnation complaint against the city and the
Town of Indian River Shores as to a group of islands in the Indian RiverLagoon on the grounds that the claims raised were not ripe
because Lost Tree had not obtained a final determination of the uses
that would be permitted on the islands. Status: On November 13, the
court affirmed in part and reversed in part, holding that the
as-applied takings claims for the OuterIslandswere not ripe, but those
for the InnerIslandswere ripe. Lost Tree was not required to seek
future amendments to the municipalities' comprehensive plans after its
development applications for the InnerIslandswere denied. Lost Tree
also stated a valid claim for reduced access as to the InnerIslands.
27 Fla.L. Weekly D2454.
FIFTH DCA
Ellen Whitmire, et al., v. St. Johns County and
the Department of Community Affairs, Case No. 5D02-2631.
Appeal of a
final order of the DCA upholding amendments to the comprehensive plan
of St. Johns County that created a new future land use element
category known as "New Town Development" and changed the future land
use map designations of nearly 13,000 acres of land from Rural/Silviculture
to primarily New Town, with some "Conservation." The
amendments also authorize "pipelining" to satisfy transportation
concurrency requirements. DCA Final Order No. DCA02-GM-189. Status: Notice of
appeal filed August 22.
Mann v. Board of County Commissioners of
Orange County, Case No. 5D01-1741.
Petition for certiorari review of a
circuit court decision upholding the Board's action in denying a
proposed rezoning request based on a lack of adequate school
facilities to support the planned residences. Status: Petition
denied February 11. On June 3, a motion for rehearing was granted and
the February 11 order vacated. On October 4, the court issued another
order holding that the Board observed the essential requirements of
the law in denying rezoning. 27 Fla. L. Weekly D2165.
U.S. SUPREME COURT
Miccosukee Tribe of Indians v. South Florida
Water Management District, Case No. 00-15703.
Petition to review an
Eleventh Circuit opinion that pumping water from one water body to
another requires an NPDES permit when this action serves to add
phosphorus to the receiving water. 280 F. 3d 1364 (11th Cir. 2002).
Status:
Petition filed October 21.
Eliasv. U.S., Case No. 01-1502.
Petition to
review a 9th Circuit decision upholding Elias' conviction and 17-year
sentence under RCRA's hazardous waste laws for knowingly exposing a
worker to cyanide poisoning. Elias, the owner of Evergreen Resources,
a fertilizer company in Idaho, was convicted in 1990 for ordering an
employee to clean a storage tank without protective equipment, even
though the tank was contaminated with cyanide. The employee suffered
severe and permanent brain damage. 269 F.3d 1003. Status: Petition
denied December 9.
Borden Ranch Partnership v. U.S. Army Corps of Engineers, Case No. 01-1243.
Petition to review a 9th Circuit decision
holding that a permit is required under Section 404 of the Clean Water
Act for a farming technique called "deep ripping" because it causes
discharge of soil into waters of the United States. 261 F.3d 810 (9th
Cir. 2001). Status: Petition granted June 10.
Churchill County v. Norton, Case No. 01-800.
Petition to review a Ninth Circuit opinion holding that the U.S. Fish
& Wildlife Service adequately considered expected environmental
impacts of its plan to acquire water rights in a wetlands area in
Nevada. 276 F. 3d 1060 (9th Cir. 2001). Status: Petition denied
October 7.
Alaska Department of Environmental Conservation
v. EPA, Case No. 02-658.
Petition to review a Ninth Circuit decision
holding that EPA has the authority to overturn an air construction
permit issued by the DEC on the basis that the permit did not require
implementation of Best Available Control Technology (BACT). 298 F.3d
814 (9th Cir. 2002). Status: Petition filed October 25.
South Camden Citizens in Action v. New Jersey
Department of Environmental Protection, Case No. 01-1547.
Petition to
review a Third Circuit decision overturning a preliminary injunction
prohibiting the NJDEP from issuing an air permit for a cement
processing facility, on the grounds that the disparate impacts from
granting the permit violated Title VI of the Civil Rights Act. 274
F. 3d 771 (3d Cir. 2001). Status: Petition denied June 24.
FIFTH CIRCUIT
Aviall Services, Inc. v. Cooper Industries,
Inc., Case No. 00-10197.
Appeal of a district court decision holding
that the plaintiff, a potentially responsible party (PRP) was not
entitled to recover cleanup costs from a third party under Superfund
if EPA has not issued a cleanup order. 2000 WL 31730 (N.D. Tx 2000).
Status: On August 14, 2001, the Fifth Circuit held that the plaintiff
was not entitled to recover the cleanup costs. 263 F. 3d 134. On
December 19, 2001, the court agreed to re-hear the matter en banc.
278 F. 3d 416. On November 14, on rehearing en banc, the court
reversed, holding that a PRP could bring a contribution action even if
no administrative or cost recovery action had been brought against
it. 2002 WL 31521595.
Community Association for Restoration of the
Environment v. Henry Bosma Dairy, Case No. 01-35261.
Appeal of district
court decision ruling that two dairies' manure spreaders,
manure-storing fields, and ditches used to transport waste from
livestock operations are part of concentrated animal feeding
operations (CAFOs) and "point sources" subject to regulation under the
Clean Water Act and upholding civil penalties imposed for failure to
have NPDES permits. 2001 WL 1704240 (2001) (E.D.Wi.1999). Status:
The court affirmed on September 16. 305 F. 3d 943.
SIXTH CIRCUIT
Rapanos v. United States, Case No. 02-1377.
Appeal of Rapanos' conviction under the Clean Water Act for illegally
filling isolated wetlands, on the ground that the conviction should be
overturned due to the limitation of the Corps' jurisdiction over
isolated wetlands set by the U.S. Supreme Court in Solid Waste Agency
of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S.159
(2001), 190 F. Supp 2d 1011 (E.D. Mich. 2002). Status: All briefs
have been filed.
SEVENTH CIRCUIT
Krilich v. United States, Case No. 01-0246.
Appeal of a lower court's refusal to vacate a consent decree entered
to resolve alleged CleanWater Act violations for filling isolated
wetlands without a permit on the ground that the SWANCC case
invalidated the consent decree. 152 F. Supp. 2d983 (N.D. Ill.2001).
Status: The court affirmed on September 9, holding that the consent
decree did not need to be modified or vacated due to a change in the
law. 303 F. 3d 784.
NINTH CIRCUIT
Neighbors of Cuddy Mountain v. Alexander, Case No. 01-35184.
Appeal of
a district court challenge to the U.S. Forest Service's approval of a
timber sale on national forest land as moot because any violation had
already occurred where harm to old growth species may yet be remedied
by any number of mitigation strategies. 303 F. 3d 1059. Status: On
September 5, the
court affirmed in part, reversed in part and
remanded, holding that the action is not moot. The court upheld the
lower court's finding that the environmental impact statement prepared
in connection with the sale was adequate.
California v. Norton, et al., Case No.
01-16637.
Appeal of a district court decision holding that the U.S.
Minerals Management Service illegally extended 36 oil and gas
development leases along California's central coast because it failed
to comply with the Coastal Zone Management Act and the National
Environmental Policy Act. Case No. 99-4964 (N.D. Cal. June 21, 2001).
Status: The court affirmed on December 2. 2002 WL 31681515.
Association To Protect Hammersley, Eld &
Totten Inlets v. Taylor Resources, Inc., Case No. 00-35667.
Appeal of a
grant of summary judgment in favor of Taylor, holding that Taylor's
mussel-growing rafts are not "point sources" requiring an NPDES permit
under the Clean Water Act. Status: The court affirmed on August 6.
299 F. 3d 1007.
TENTH CIRCUIT
Power Engineering v. United States, Case No.
01-1217.
Appeal of a district court opinion holding that, in an RCRA
hazardous waste case, if a state enforcement action did not address a
particular issue, EPA could initiate a separate enforcement action.
125 F. Supp. 2d1050 (D. Colo.2000). Status: The court affirmed on
September 4. 303 F. 3d 1232.
ELEVENTH CIRCUIT
Sierra Club v. Meiburg, Case No. 01-14587.
Appeal of a district court
opinion holding that a consent decree stating that EPA will create
certain Total Maximum Daily Loads (TMDLs) mandates that EPA also
develop implementation plans for those TMDLs. No. Dist.Ga.Case No.
94-02501-CV-MHS-1. Status: On July 2, the court quashed the lower
court's decision, holding that the statutory definition of "TMDL" did
not include an implementation plan. 296 F. 3d 1021.
Fishermen Against the Destruction of the Environment, Inc. v.
Closter Farms, Inc., Case No. 01-11932.
Appeal of a district court
decision holding that runoff from a sugarcane farm into Lake Okeechobeeis exempt from NPDES permitting under the Clean Water Act.
2001 WL 838437. Status: The court affirmed on August 7. 300 F. 3d
1294.
State of Georgia v. U.S. Army Corps of Engineers, Case No. 02-10135.
Appeal of a district court decision that denying motions to intervene
filed by the State of Floridaand an association of hydropower
preference customers in a suit seeking to compel the increase of the
City of Atlanta's water supply. Status: The court reversed on
August 21, holding that the State and association could intervene as
of right, where disposition of the action may impair or impede its
ability to protect their respective interests in the waters downstream
of Atlanta. 302 F. 3d 1242.
Tennessee Valley Authority v. EPA, Case No.
00-12310.
Challenge to an EPA administrative compliance order holding
that TVA violated the Clean Air Act because various upgrades over the
years were major modifications requiring New Source Review, not
routine maintenance. Status: EPA's motion to dismiss was denied
January 8. Oral argument held May 21.
D.C. CIRCUIT
Environmental Defense Fund v. EPA, Case No. 98-1363.
Challenge to
EPA’s revocation of the one-hour ozone standard for 2,901 counties on
June 5, 1998, on the ground that EPA must first formally redesignate
the counties as being in attainment with the standard. Status: In
abeyance pending settlement discussions; motions to govern future
proceedings due July 1.
American Iron & Steel v. EPA, Case No. 00-1435.
Petition to review
EPA's final air pollution monitoring rule and performance standard
published August 10, 2000, for requiring use of continuous opacity
monitors. Status: Oral argument held February 25.
American Farm Bureau Federation v. Whitman, Case No. 00-1320.
The TMDL
Coalition v. EPA, Case No. 00-1468; and consolidated cases. Petitions
to review EPA's TMDL rule. Status: On July 16, EPA filed a motion to
stay to allow time to review the rule, and proposing to extend the
effective date of the TMDL rule by 18 months.
Natural Resources Defense Council v. Whitman, Case No. 01-1515.
Petition challenging EPA's primary drinking water standard for arsenic
as not sufficiently protective of public health. Status: Petition
filed December 14, 2001.
Lawrence E. Sellers, Jr.,
larry.sellers@hklaw.com, received his J.D.
from the University of Florida College of Law in 1979. He is a
partner in the Tallahassee office of Holland & Knight LLP.
SusanL.Stephens, susan.stephens@hklaw.com, received her J.D. from the
Florida State University College of Law in 1993. She is a partner in
the Tallahassee office of Holland & Knight LLP.
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