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Note: Status of cases is as of September 29, 2003. Readers are
encouraged to advise the authors of pending appeals that should be
included.
FLORIDA SUPREME COURT
Aramark Uniform & Career Apparel, Inc. v. Easton, Case
No. SC02-2190. Petition to review First DCA decision reversing a trial
court ruling in favor of Aramark on Easton's suit against Aramark for
the migration of environmental contamination from Aramark's property
to Easton's property. Status: Oral argument held August 23.
Haire v. Department of Agriculture and Consumer Services,
Case No. SC03-446; Brooks Tropical, Inc. v. Department of Agriculture
and Consumer Services, Case No. SC03-552. Petition to review a Fourth
DCA opinion reversing a temporary injunction enjoining DACS inspectors
from entering upon private property to search for citrus trees
infected with citrus canker or in close proximity to infected trees
without individually issued search warrants. The court held that the
statute requiring removal of citrus trees within 1900 feet of a tree
infected with citrus canker did not violate due process, but that the
statute authorizing area-wide search warrants to locate affected trees
was unconstitutional. Nonetheless, magistrates have the discretion to
include multiple properties in affidavits and search warrants based
upon his or her determination that probable cause to search each
included property exists. 836 So. 2d 1040 (Fla. 4th DCA 2003). Status:
Review granted April 14 in Case No. 03-446 and April 23 in Case No.
03-552. Oral argument scheduled for October 7.
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. Pepper's 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. 2002). Status: In its June 12 opinion, the
Court rephrased the question slightly as follows:
Is an insured
entitled to attorneys' fees under section 627.428, Florida Statutes,
for litigating, during a lawsuit to determine coverage under an
insurance policy, whether the insured and the insurer settled the
coverage issue?
As rephrased,
the
Court answered the question in the affirmative. 850 So. 2d 462.
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 zoning board 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: On
September 25, the
Court quashed the decision below and remanded,
holding that the Third DCA exceeded the proper scope of second-tier
certiorari review when it, sua sponte, held that the zoning code was
facially unconstitutional. On remand, the Third DCA was directed to
review the circuit court's decision in light of the standards
enunciated in the Vaillant, G.B.V., and Florida Power cases. 2003 WL
22208012.
NAACP, Inc .et al. v. Florida Board of Regents et al.,
Case No. SC02-1878. Petition to review a First DCA opinion holding
that the NAACP, a high school student, and his mother did not have
standing under the Administrative Procedure Act to challenge proposed
amendments to Board of Regent and Board of Education rules that
eliminated the use of racial and gender preferences or quotas in
college admissions decisions. The court held that the NAACP failed to
demonstrate that any of its members would suffer a real and
sufficiently immediate injury in fact or be substantially affected by
the proposed amendments. The court also held that neither the mother
nor her son had offered any evidence to show their immediate injury in
fact, noting that the student had two more years of school left and
had not even applied to any colleges; further, his school record
indicated he would be admitted to college regardless of any racial
preferences. 822 So. 2d 1 (1st DCA 2002) Status: Oral argument was
held June 6.
St. Johns County v. Department of Community Affairs et al., Case No.
SC03-400. Petition to review a Fifth DCA opinion holding that water
and sewer line extensions and roads constructed from existing
rights-of-way are exempt from the Growth Management Act, quashing a
declaratory statement issued by the Department designating large water
and sewer line extensions as "public facilities" and "capital
improvements" which must be listed in the local comprehensive plan.
836 So. 2d 1034 (5th DCA 2002) Status: Petition denied June 10.
FIRST DCA
D'Alto v. Department of Environmental Protection, Case
No. 1D02-4579. Appeal of DEP final order determining that D'Alto was
not eligible for participation in the Petroleum Cleanup Participation
Program (PCPP) because the Early Detection Incentive (EDI) application
D'Alto filed in 1988 did not a constitute discharge reporting form or
report of contamination form for purposes of eligibility in PCPP
because DEP denied EDI eligibility in part because the existence of
contamination could not be established at the time, and D'Alto did not
contest the EDI denial. Status: Oral argument scheduled for October
14.
D'Asaro et al., v. Department of Environmental Protection et.
al, Case No. 1D03-1184. Appeal of a circuit court order
dismissing without prejudice the plaintiffs' complaint for failure to
state causes of action for trespass, nuisance, negligence, and the
alleged civil theft of "public employees' services" as to any of the
defendants with regard to the operation of a rock crusher by Anderson
Columbia Co. pursuant to a permit issued by DEP. The order also
dismissed with prejudice two conspiracy counts in the complaints and
held that no claims could be brought individually against David Struhs
or Bobby Cooley for acts or omissions taken in the course of their
employment with the State. Status: On May 29, the Court granted the
appellees' motion to dismiss, on the ground that the order on appeal
is not a final appealable order. 846 So. 2d 636.
Environmental Confederation of Southwest Florida, Inc. v. IMC
Phosphates Co. and DEP, 1D03-1717. Appeal of a DEP final order
dismissing ECOSWF's petition challenging DEP's decision to issue an
ERP to IMC to authorize mining and reclamation activities on property
known as the Ona Mine, on the ground that ECOSWF alleged standing only
as a citizen pursuant to section 403.412, without alleging that a
substantial number of its members would be substantially affected by
issuance of the permit. The final order noted that section 403.412, as
amended in 2002, only allows citizens to intervene in an ongoing
administrative proceeding and does not allow a citizen to initiate an
administrative action without showing that his or her substantial
interests would be affected. Status: Motion to dismiss appeal denied
(28 Fla. L. Weekly D1786); IMC and DEP have filed motions for
rehearing and rehearing en banc.
ECOSWF et. al., v. DEP, Case No. 1D03-1302. Appeal of a
Second Circuit final order dismissing the Plaintiffs' complaint
challenging Chapter 2002-261, Laws of Florida, in particular, Section
9, which modifies section 403.412, Florida Statutes, to specify that a
citizen can only intervene in ongoing administrative proceedings and
may not, merely by alleging citizenship, initiate or petition for
proceedings under Chapter 120, Florida Statutes. The Plaintiffs sought
injunctive relief and a declaratory judgment that Chapter 2002-261
violates the single subject requirements of Article III, Section 6,
Florida Constitution. The trial court held that the Plaintiffs failed
to show any "bona fide need" for a declaration on the
constitutionality of Chapter 2002-261 and that the Plaintiffs had
failed to demonstrate the injury in fact necessary to seek declaratory
or injunctive relief. The trial court also held that Chapter 2002-261
does not violate the single-subject requirement. Case No. 02-CA-1963
(March 4, 2003). Status: On August 14, the court dismissed the case as
moot; the re-enactment of Chapter 403 as part of the biennial
readoption of the Florida Statutes cured the defect. 852 So. 2d 349.
Environmental Confederation of Southwest Florida, Inc. v. Charlotte
County and DEP, 1D03-784. Appeal of a DEP final order dismissing
ECOSWF's petition challenging DEP's decision to issue a Class I
underground injection permit to Charlotte County, on the ground that
ECOSWF alleged standing only as a citizen pursuant to section 403.412,
without alleging that a substantial number of its members would be
substantially affected by issuance of the permit. The order noted that
section 403.412, as amended in 2002, only allows citizens to intervene
in an ongoing administrative proceeding and does not allow a citizen
to initiate an administrative action without showing that his or her
substantial interests would be affected. Status: All briefs have been
filed. In its answer brief, DEP has suggested the appeal is moot
because of the re-enactment of Chapter 403, Florida Statutes. See
above.
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: On July 28, the court affirmed, holding that Wilkinson
was required to exhaust his administrative remedies before seeking
declaratory relief. 28 Fla. L. Weekly D1741.
Charlotte County v. IMC Phosphates Co. et al., 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: All briefs have been filed.
SECOND DCA
Aloha Utilities v. South Florida Water Management District,
Case No. 2DC02-4635. Appeal of denial of a petition for administrative
hearing to challenge the Water Management District's denial of Aloha's
request for an extension of time to come into compliance with the
terms of a consent order Aloha entered into with the District to
resolve water use permit violations. Status: Affirmed per curium on
June 27. 851 So. 2d 156.
THIRD DCA
Royal World Metropolitan, Inc. v. City of Miami Beach,
Case No. 3D02-3161. Appeal from order granting final summary judgment
to the City and barring claim under Bert J. Harris, Jr., Private
Property Rights Protection Act based on defense of sovereign immunity.
Status: The court reversed on July 16, holding that the Act does not
bar a private property rights claim against a government agency. 28
Fla. L. Weekly D1620. Motion for rehearing filed September 2.
Benson et al. v. Norwegian Cruise Line, Ltd., et al., Case No.
3D01-1845. Appeal of a circuit court opinion dismissing a lawsuit
alleging medical malpractice aboard a cruise ship, at a time when the
ship was 11.7 nautical miles east of the Florida coast, on the grounds
that the ship was outside the territorial waters of Florida at the
relevant times. Status: On January 15, 2003, the court reversed,
holding that under either the United Nations Convention of 1982 or the
description of Florida's boundaries set forth in Article II, Section 1
of the 1968 Florida Constitution, Florida's territorial waters extend
at least 12 nautical miles in the area in question and rejecting a
claim that, under the federal Submerged Lands Act, Florida cannot
claim an Atlantic territorial sea greater than three nautical miles.
The court held that the Submerged Lands Act addressed claims of
ownership to the ocean bed, not Florida's exercise of police powers on
the ocean's surface. 834 So. 2d 915. Motion for rehearing was filed
January 30.
Clay et al. v. Monroe County, Case No. 3D01-2280. Appeal
of a circuit court order denying takings damages and a petition for
writ of mandamus to compel Monroe County to issue building permits to
the appellants to construct single-family homes on their lots on Big
Pine Key. The owners applied under the Monroe County Rate of Growth
Ordinance and received the required ROGO approval, but received
letters from the County Planning Director holding the building permits
in abeyance because of the concurrency requirements in the Land
Development Regulations, due to the substandard service level on U.S.
Highway 1. While the case was pending on appeal, the County instituted
proceedings before a special hearing officer for a beneficial use
determination on behalf of the property owners and obtained a ruling
authorizing issuance of the building permits being held in abeyance.
Status: On May 14, the court affirmed, holding that the appeal as to
denial of the writ of mandamus was moot and that the appellants had
failed to exhaust their administrative remedies before filing takings
claims. Rehearing denied July 9. 849 So. 2d 363.
FOURTH DCA
O'Connell et al., v. Department of Community Affairs et al.,
Case No. 4D03-380. Appeal of a final order of the Department approving
Martin County's commercial lands need methodology and finding the
County's amendments to the Economic Development Element and to the
Future Land Use Map that would allow commercial development to be in
compliance with the Growth Management Act. Status: Notice of appeal
filed January 31.
FIFTH DCA
St. Johns River Water Management District v. Womack,
Case No. 5D03-2493. Appeal of a Circuit Court decision ordering the
District to pay Womack $262,383 in damages pursuant to 42 U.S.C. s.
1983, for denying Womack equal protection under the laws and holding
that the District's action constituted an unreasonable exercise of
police power in violation of s. 373.617 of the Florida Statutes.
Womack had filed an application for a MSSW permit to allow subdivision
and development of his property along the Wekiva River, a portion of
which lay within the Riparian Habitat Protection Zone of the River.
Over the course of two years, Womack and his engineer submitted six
separate development plans, all of which were denied by the District.
Womack's neighbor, Patricia Harden, who openly opposed the
development, was the chair of the Governing Board of the District at
the time, and the District, while denying Womack's plans, had in the
meantime approved construction of a number of other structures within
the RHPZ. The circuit court held that the only reasonable conclusion
for the continued denial of Womack's application was Harden's control
of District personnel and collusion of the District Board and staff at
her request. Unrefuted testimony established the value of the
temporary taking of the property at $245,000 and expenses incurred in
the amount of $17,384. Thus, the court awarded damages in the amount
of $262,384. Circuit Court Case No. 92-CA-3044-14-K (June 8, 2003).
Status: Notice of appeal filed July 28. Parties have agreed to extend
the time for filing of the initial brief.
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
Department upholding amendments to the comprehensive plan of St. Johns
County that create a new future land use element category known as
"New Town Development" and change 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, 2002; oral argument is scheduled for October 14.
U.S. SUPREME COURT
Alabama v. North Carolina, Case No. 220132, original
jurisdiction. Motion for leave to file bill of complaint to settle a
dispute among the seven member states of the Southeastern Low-Level
Radioactive Waste Compact pursuant to the Court's original
jurisdiction, regarding North Carolina's withdrawal from the Compact
in 1999 and liability for $90 million in sanctions based on that
withdrawal. Status: The Court agreed to hear the bill on June 16.
Motion to dismiss filed by North Carolina on August 15 is pending.
Fidelity Exploration and Development Co. v. Northern Plains Resource
Council, Case No. 03-257. Petition to review a Ninth Circuit case
holding that Fidelity was required to obtain a state NPDES permit for
the discharge of unadulterated ground water retrieved during methane
gas extraction to the Tongue River in Montana. The court held that the
ground water qualified as an "industrial waste," even though not
treated or altered, because it was a necessary and unwanted byproduct
of Fidelity's extraction process. 325 F.3d 1155 (9th Cir. 2003).
Status: Petition filed August 8.
South Florida Water Management District v. Miccosukee Tribe of
Indians, Case No. 02-626. Petition to review an Eleventh Circuit
opinion that the District's pumping of water from one water body to
another requires a NPDES permit when this action serves to add
phosphorus to the receiving water. 280 F. 3d 1364 (11th Cir. 2002).
Status: On June 27, the petition was granted in part, limited to
question one of the petition.
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 Alaska DEC on the basis that the permit did not require
implementation of Best Available Control Technology. 298 F.3d 814 (9th
Cir. 2002). Status: Oral argument to be held October 8.
Engine Manufacturers Ass'n v. South Coast Air Quality Mgmt District,
Case No. 02-1343. Petition to review a Ninth Circuit decision
upholding rules promulgated by the SCAQMD that require diesel engine
fleet operators in Los Angeles to purchase low-emission, alternate
fuel vehicles when replacing vehicles or expanding the fleet. The
Engine Manufacturers Association argues that the rules have the
practical effect of banning sales of traditional vehicles. 309 F.3d
550 (9th Cir. 2000). Status: Petition granted June 9.
Pronsolino v. Nastri, Case No. 02-1186. Petition to
review a Ninth Circuit decision upholding EPA's authority to list a
California river as impaired under Section 303(d) of the Clean Water
Act, even though the source of the pollution was non-point source
sediment and agricultural runoff. 291 F.3d 1123 (9th Cir. 2002).
Status: Petition denied June 16.
American Forest & Paper Assoc. v. League of Wilderness Defenders, Case
No. 03M10. Petition to review a Ninth Circuit decision holding that
the U.S. Forest Service's aerial spraying of pesticides in national
forests to prevent tree damage constituted a point source discharge
requiring an NPDES permit. 309 F.3d 1181 (9th Cir. 2002). Status:
Petition filed July 28.
SECOND CIRCUIT
Waterkeeper Alliance et al. v. EPA, Case No. 03-4470.
Petition to review EPA's rule governing wastewater discharges from
concentrated animal feeding operations (CAFOs), which became effective
February 26. Status: Petition filed March 7.
FOURTH CIRCUIT
U.S. v. Deaton, Case No. 98-2256. Appeal of a district
court decision holding that the Corps of Engineers could not require a
dredge and fill permit for filling of wetlands adjacent to a roadside
ditch by arguing that the ditch was a tributary to a navigable
waterway. Status: On June 12, the court reversed, holding that the
roadside ditch, which eventually reached the navigable Wicomico River,
could reasonably be considered a "tributary" and that therefore, the
COE had jurisdiction over the adjacent wetlands. 332 F.3d 698.
Treacy & U.S. v. Newdunn Assocs., Case Nos. 02-1480,
02-1594. Appeal of a district court decision holding that the COE
could not assert jurisdiction over Newdunn's property simply by
claiming that a manmade ditch receiving water from wetlands on the
property provided a sufficient hydrologic connection to navigable
waterways. Status: On September 10, the court (a separate panel from
the panel that decided the Deaton case) reversed, holding that the
ditch was a "tributary" and citing Deaton. 2003 WL 22093616.
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. 2002). Status: On August 5, the court
reversed, holding that a manmade drain, which flowed into a creek,
which then flowed into a navigable river, provided a sufficient nexus
between wetlands adjacent to the drain and navigable waters such that
the COE could assert jurisdiction over the wetlands. 339 F.3d 447.
TENTH CIRCUIT
Utah v. Norton, Case No. 03-4147. Challenge to an
agreement reached in April between the Department of the Interior and
Utah that reduces the amount of federal land eligible for designation
as "wilderness areas" protected from logging, mining, drilling, and
other development. Status: Notice of appeal filed June 19.
ELEVENTH CIRCUIT
In re New Hope Sugar Co., Case No. 03-12865-I. Petition
for writ of mandamus by New Hope Sugar to recuse U.S. District Judge
William Hoeveler from continued oversight of a state-federal agreement
to clean up the waters in the Everglades. New Hope's petition alleged
that the judge had sought to improperly influence Florida legislation
by issuing orders that were critical of a bill addressing Everglades
clean-up that was pending before Governor Bush at the time and that
suggested that Bush veto the bill. Status: On June 10, the court
rejected the petition by holding that New Hope Sugar lacked standing
to bring the petition.
Florida Public Interest Research Group et al. v. EPA,
Case No. 03-13810. Appeal of a district court order granting summary
judgment in favor of EPA and intervenor Florida Department of
Environmental Protection, which held that Florida's Impaired Waters
Rule did not constitute a revision to Florida's water quality
standards that must be approved by EPA. Status: Notice of appeal filed
July 24.
Tennessee Valley Authority v. EPA,, Case No. 00-15936. Appeal of an
Environmental Appeals Board decision upholding EPA's administrative
compliance order (ACO) charging the TVA with violating the Clean Air
Act by making significant modifications to its power plants without
complying with New Source Review requirements. TVA maintained that the
plant upgrades constituted exempt routine maintenance. 9 E.A.D. 357
(EPA ALJ Sept. 15, 2000). Status: On June 24, the court ruled that
EPA's issuance of the ACO violated the Due Process Clause of the
Constitution, to the extent that it allowed for severe criminal and
civil penalties to be imposed for noncompliance without the
opportunity for judicial review and could be issued on the basis of
any available evidence, a far lesser standard than the criminal
"probable cause" standard. 336 F.3d 1236.
D.C. CIRCUIT
Friends of the Earth, Inc. v. EPA, Case No. 02-1123.
Challenge to EPA's issuance of TMDL limits on certain pollutants
discharged to rivers. Status: On June 20, the court dismissed for lack
of jurisdiction, holding that the challenge was not an action
specifically enumerated as authorized under 33 U.S.C. s. 1369(b)(1),
because TMDLs are not "effluent limitations or other limitations." 333
F.3d 184.
State of Nebraska v. EPA, Case No. 01-1101. Challenge to
EPA national primary drinking water standard for arsenic promulgated
pursuant to the Safe Drinking Water Act, on the grounds that the SDWA
violates the Commerce Clause and the 10th Amendment of the federal
constitution. Status: On June 20, the court upheld both the
regulations and the Act as constitutional. Rehearing en banc denied
August 22. 331 F.3d 995.
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: On July 30, the court dismissed the case on stipulation of the
parties. 2003 WL 21803323.
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. In
settlement; status report due August 5 and every 60 days thereafter.
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: Motion to dismiss case as moot
filed by EPA on August 18; response due October 14.
_______________
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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