Note: Status of cases is as of
March 10.
Readers are encouraged to advise the authors of pending appeals that
should be included.
FLORIDA SUPREME COURT
Pepper's Steel & Alloys, Inc. v. U.S.A.,
Case No. SC02-971. The United States sued Pepper's and others for
contamination at a scrap metal recovery site. Pepper's sought
coverage from its insurer and successfully sued the insurer for
enforcement of a $2 million settlement offer by the insurer. Peppers
unsuccessfully sought attorney's fees. The case was appealed to the
11th Circuit Court of Appeals, and the 11th Circuit certified the
following question to the Florida Supreme Court: "Under Section
627.428 of the Florida Statutes, is an insured entitled to an award of
attorneys' fees incurred in enforcing a settlement agreement against
an insurer? 289 F. 3d 741 (11th Cir. 4/25/02). Status:
Oral argument held December 11, 2002.
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: Oral argument scheduled for
June 2.
Caribbean Conservation Corp. v. Florida Fish & Wildlife Conservation
Commission,
Case No. SC01-1885. Petition for review of a district court of appeal
decision holding that sections 20.331(6)(c), 370.025(4), and 370.12
unconstitutionally usurp the authority of the constitutional body the
Florida Fish & Wildlife Conservation Commission (FWCC) to regulate
marine life. The statutes in question require the FWCC to comply with
the provisions of the Administrative Procedure Act in adopting rules
or regulations concerning species of marine life defined as
endangered, threatened, or species of special concern. The
Petitioners argued that the powers of the FWCC encompass all marine
life without exception and that therefore, the Legislature cannot
restrict FWCC's management or regulatory actions regarding any
subclass of such marine life. 789 So. 2d 1053 (Fla. 1st DCA 2001).
Status: On January 16, the Court held that, except for the
portion of section 20.331(b)(c)(1) referring to marine species "of
special concern," the challenged statutes were constitutional. The
Court held that the constitutional jurisdiction of the FWCC consists
of whatever jurisdiction and authority the previous Game and Fresh
Water Fish Commission had as of March 1, 1998, and that the DEP had
such jurisdiction with respect to endangered and threatened species of
marine life. 28 Fla. L. Weekly S46 (2003 WL 124536).
FIRST DCA
ECOSWF v. State
of Florida, et al.,
Case No.
1D03-0784. Appeal of circuit court order dismissing the plaintiffs'
challenge to Chapter 2002-261, Laws of Florida (relating to citizen
standing), claiming that the law violates the single subject
requirements of the Florida Constitution. Status: Appeal
filed February 27.
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.
FWCC v. Pringle, Case No. 1D02-0580. 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: In its February 28 opinion, the court found
that the action was not properly before the circuit court -- because
the plaintiffs had not exhausted available administrative remedies –
and reversed.
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 Leon County. Status: Notice of appeal
filed May 9; all briefs have been filed.
Charlotte County v. IMC Phosphates Co. and Department of
Environmental Protection, Case No. 1D02-4874. Appeal of a DEP
final order (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.
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.
FIFTH DCA
St. Johns County v. Department of Community Affairs et al.,
Case No. 5D01-3413. Appeal of a declaratory statement issued by the
DCA opining that the County should amend its comprehensive plan to
include certain water and sewer lines that the Department of
Transportation intended to construct and turn over to the County.
Status: On December 27, 2002, the court quashed the declaratory
statement, holding that all road and utility improvements completed
within existing rights-of-way are exempt from the Growth Management
Act (Chapter 163, Part II). Rehearing denied February 3. 28 Fla. L.
Weekly D126 (2002 WL 31875008).
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; all briefs have been filed.
U.S. SUPREME COURT
Power
Engineering v. United States, Case No. 02-1086. Appeal of a
Tenth Circuit opinion 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. 303 F. 3d 1232. Status:
Petition filed January 22.
South Florida
Water Management District v. Miccosukee Tribe of Indians, 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.
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: The court
affirmed on December 16.
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 granted February 24.
SIXTH
CIRCUIT
Rapanos v.
United States, Case No. 02-1377.
Appeal of a district court
ruling holding that John Rapanos could not be convicted under the
Clean Water Act for filling isolated wetlands on his property, when
that property was located twenty miles from the nearest navigable
waterway. The lower court held that the isolated wetlands were not
"directly adjacent" to the navigable waterway as intended by the
Supreme Court in the SWANCC decision. U.S. v. Rapanos, 190 F.Supp.2d
1011 (E.D.Mich. Feb 21, 2002) (NO. 93-CR-20023-01).
Status: All briefs have been filed.
NINTH
CIRCUIT
Environmental Defense Center v. E.P.A.,
Case No. 00-70014. Challenge to EPA's rules promulgated under the
Clean Water for stormwater discharges from municipal storm sewer
systems, the so-called Phase II stormwater rules. Status: On
January 14, the court upheld the majority of the rules, but held that
that the provisions allowing for the use of general permits by filing
a Notice of Intent violated the Clean Water Act because they did not
require EPA to review the content of the NOIs and did not provide for
public participation because the NOIs were not published. 319 F. 3d
398. Petition for rehearing filed February 28.
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.
ELEVENTH
CIRCUIT
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
Okeechobee is 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 Florida and 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. Petition for
rehearing denied.
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 denied
January 8. Oral argument held May 21. Court-sponsored mediation
effort in August unsuccessful.
D.C. CIRCUIT
Utility Air Regulatory Group v. E.P.A.,
Case No. 01-1204. Challenge by a trade association of electric
utilities to EPA's interpretation of its State Operating Permit
Program regulations under the Clean Air Act concerning what
constitutes a release of air pollutants for purposes of the Act.
Status: On February 28, the court held that the trade association
lacked standing to challenge the interpretation because it was merely
a policy statement and not a rule or proposed rule. 2003 WL 554962.
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; status report due April 21.
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:
EPA motion to stay to allow time to review the rule granted; status
report due April 3.
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: EPA motion to dismiss for lack of jurisdiction granted
July 10; rehearing denied October 7.
_________________
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.
Susan L.
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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