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Note: Status of cases is as of January 9, 2004. Readers are
encouraged to advise the authors of pending appeals that should be
included.
FLORIDA SUPREME COURT
Crist, etc. v. Department of Envtl. Protection,
Case No. SC03-844. Petition by the Attorney General to review a First
DCA decision holding that the trade secrets exemption in what is now
section 812.045, Florida Statutes, should be read to exempt from
disclosure as public records all trade secrets meeting the definition
in section 812.081, regardless of whether such documents are stored on
or transmitted by computers, to the extent those documents were
submitted to a public agency under a written claim of confidentiality.
The court held that the exemption applied to public records
disclosures even though it is contained in a chapter entitled
"Computer-Related Crimes" and not the Public Records Law, Chapter 119,
Florida Statutes. SePro Corp. v. Department of Envtl Protection, 839
So. 2d 781 (Fla. 1st DCA 2003). Status: Petition filed May 7.
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. The First DCA held that Easton had a strict
liability cause of action against Aramark. 825 So. 2d 996 (Fla. 1st
DCA 2002). Status:
Oral argument held August 26.
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 held October 7.
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 and that neither the mother nor her son had
offered any evidence to show their immediate injury in fact. The court
certified the question of the appellants' standing. 822 So. 2d 1 (1st
DCA 2002) Status: On November 13, the Court reversed, holding that the
NAACP had associational standing to challenge the rule amendment. 28
Fla. L. Weekly S815.
FIRST DCA
Department of Envtl. Protection v. St. Marks Refinery, Inc.,,
Case No. 1D03-1047. Appeal of a declaratory judgment proving for a
release from liability to the City for contamination occurring before
1992 in valid. Status: Oral argument scheduled for January 21, 2004.
Linda Young v. Putnam County Envtl. et al., Case No. 1D02-3673, and
Putnam County Envtl. et al., v. Linda Young et al., Case No.
1D02-3674. Appeals of a DEP final order granting an industrial
wastewater permit to Georgia-Pacific for discharge of treated
wastewater from its paper mill to Rice Creek, which is a tributary of
the St. Johns River. Among other things, the petitioners appealed the
denial of their motion to disqualify Secretary Struhs from issuing the
final order on grounds of bias and prejudice. Status: On November 26,
the Court dismissed the appeals on the grounds that the appellants
lacked standing.
Mullins et al., v. IMC Phosphates Co. et al., Case No.
1D03-4471. Appeal of a final order of the Department of Environmental
Protection denying IMC an ERP permit and conceptual reclamation plan
approval for phosphate mining and reclamation in a tract known as the
Altman Tract; the Mullins family originally challenged the
authorizations based on fractional mineral interests in portions of
the property. Status: In concert with the Mullins' notice of appeal,
the Mullins and Charlotte County sought to transfer venue of IMC's
appeal of the permit denial, which was filed in the Second District
Court of Appeal, to this Court. Charlotte County also sought to
consolidate this proceeding with both Case Nos. 1D02-4874 (see below)
and 2D03-4862 (see below). IMC sought to dismiss the appeal and
objected to any consolidation because the Mullins, as petitioners, won
the relief sought—denial of the permits—and their only goal in filing
an appeal appeared to be to thwart IMC's choice of venue. The Court
denied the motions to consolidate on November 21. On December 23, the
Court issued a per curiam opinion dismissing the appeal in Case No.
1D03-4471.
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: Reversed and remanded on November 6.
28 Fla. L. Weekly D2542.
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
(857 So. 2d 207); motions for rehearing were denied October 28. On
December 24, DEP filed another motion to dismiss, arguing that the
biennial readoption in 2003 of section 403.412, as amended, rendered
the appeal moot. See ECOSWF et. al., v. DEP, 852 So. 2d 349 (Fla. 1st
DCA 2003).
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 ECOSWF et. al., v. DEP, 852 So. 2d 349
(Fla. 1st DCA 2003).
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: Oral
argument scheduled for January 20, 2004.
Coastal Petroleum Co. v. Florida, Case No. 1D02-4712. Appeal of a
circuit court decision holding that a petroleum company was not
entitled to compensation based on the denial of its applications
permits to drill for oil and gas in the Gulf of Mexico. Status: The
Court affirmed on December 3; motions for rehearing, clarification and
written opinion denied January 9.
SECOND DCA
IMC Phosphates Co. v. Department of Environmental Protection,
Case No. 2D03-4682. Appeal of a final order of the Department of
Environmental Protection denying IMC an ERP permit and conceptual
reclamation plan approval for phosphate mining and reclamation in a
tract known as the Altman Tract. Status: Notice of appeal filed
October 15.
THIRD DCA
Miami-Dade County v. Omnipoint Holdings, Case No.
3D01-2347. On remand from Miami-Dade County v. Omnipoint Holdings,
Inc., 28 Fla. L. Weekly S717 (Fla. Sept. 25, 2003), petition for writ
of certiorari to review a circuit 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. Status: On December
10, 2003, the court upheld the circuit court's decision, holding that,
although the circuit court did not apply the correct law when it
considered the Federal Telecommunications Act in its decision, the
circuit court also ruled that the zoning board's decision was not
based on competent substantial evidence, and this ruling was reached
applying the correct law. Therefore, in light of the Supreme Court's
decision, the petition for writ of certiorari was denied. 28 Fla. L.
W. D2839.
Monroe County v. Ambrose et al.,, 3D02-1716. Appeal
from a circuit court decision granting summary judgment in favor of
owners of undeveloped parcels of land in the Florida Keys purchased
between 1924 and 1971, finding that Section 380.05(18) created a
vested right for the owners to complete development of single-family
homes on their land, regardless of land use development regulations
enacted since the parcels were purchased. Status: On December 10, the
Court reversed and remanded, holding that the landowners acted at
their peril by failing to start development after Monroe County was
designated as an area of critical state concern in 1979, but before
land use regulations were enacted there in 1986. The Court concluded
that the landowners must show that they actually relied on section
380.05(18) and changed their position in furtherance of developing
their land in order to have vested development rights. Mere ownership
of the property was not enough to grant vested rights to build a
single-family home. 28 Fla. L. W. D2836.
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. On November 3, the opinion was
withdrawn and superseded on motion for rehearing; the Court held that,
because the alleged act of malpractice occurred within Florida's
territorial boundaries, the trial court had personal jurisdiction over
the defendant. Those territorial boundaries extend to the edge of the
Gulf Stream pursuant to the Florida Constitution, some 14 nautical
miles east of the pertinent coastline. 859 So.2d 1213.
FOURTH DCA
Slusher v. Martin County et al., Case No. 4D02-3779.
Appeal of a final order of the South Florida Water Management District
holding that a water use well issued to the County for a well
constructed on land adjacent to Slusher's property was properly
issued, notwithstanding that operation of the well caused all of the
water to be drained from a fish pond on Slusher's property. Status: On
November 19, the Court reversed, holding that the District
misinterpreted the term "presently existing legal use" in its own
rules by defining it to include existing uses for which a permit is
not required only if those uses are expressly exempted. 859 So. 2d
545.
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, 2003.
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. Status:
Notice of appeal filed July 28; motion to dismiss pending.
Ellen Whitmer, 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: Per curiam
affirmed October 21. 851 So.2d 897.
O'Donnell's Corp. v. Ambroise, Case No. 5D03-324. Appeal
of an "Order Remanding Petition for Relief from an Unlawful Employment
Practice" that was issued by the Department of Agriculture and
Consumer Services. Status: On November 7, the Court dismissed the
appeal, holding that the order was not appealable because it simply
remanded the petition back to the administrative law judge for further
proceedings and was therefore not a final order. 858 So. 2d 1138.
Thomas v. Southwest Florida Water Management District,
Case No. 5D02-3319. Appeal of a final order of the SWFWMD denying
Thomas' application for modification of his water use permit to
increase his water usage to irrigate additional pasture land he had
purchased within Pasco County. The parties stipulated that the sole
reason for denial of the modification were potential impacts on the
availability of water to meet the needs of water users outside of
Pasco County. Thomas argued that, as a resident of Pasco County, his
rights to water within Pasco County were superior to water users
outside the county, based on section 373.1961, Florida Statutes.
Status: On December 19, the Court affirmed, holding that section
373.217 sets forth the SWFWMD's permitting authority and states that
Part II of Chapter 373 expressly preempts Part I of the chapter,
including section 373.1961. 2003 WL 22970865.
St. Johns River Water Mgmt District v. Koontz, Case No.
5D02-4066. Appeal of a circuit court order in favor of the landowner
in an inverse condemnation suit, following the SJRWMD's denial of a
MSSW permit to dredge and fill a portion of Koontz' property. Status:
On December 17, the Court dismissed the appeal for lack of
jurisdiction, holding that the trial court's order expressly
contemplated further judicial action when it remanded the matter back
to the SJRWMD and was therefore not a "final order." Judge Pleus wrote
an interesting concurring opinion, taking the SJRWMD to task for its
"extortionate demands" on the Koontz and urging the District to "agree
to a reasonable option" on remand. 2003 WL 22970871.
U.S. SUPREME COURT
Cooper Industries
Inc. v. Aviall Services, Inc., Case No. 02-1191. Petition to
review a Fifth Circuit decision holding that Aviall, purchaser of
contaminated land, could sue the former owner under the Superfund law
to share in the costs of a voluntary cleanup that is not being ordered
by the government. 312 F.3d. 677 (5th Cir. 2002). Status: Petition
granted January 9, 2004.
Rapanos v. United States, Case No. 03-929. Petition to
review a Sixth Circuit decision 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. Status: Petition filed December 22.
United States v. Deaton, Case No. 03-701. Petition to
review a Fourth Circuit decision holding that the Corps of Engineers
could require a dredge and fill permit for filling of wetlands
adjacent to a roadside ditch because the roadside ditch, which
eventually reached the navigable Wicomico River, could reasonable be
considered a "tributary" and that therefore, the COE had jurisdiction
over the adjacent wetlands. 332 F.3d 698. Status: Petition filed
November 10.
Environmental Protection Agency v. Sierra Club, Case No. 03-509.
Petition to review a D.C. Circuit decision awarding attorneys fees to
the Sierra Club following settlement and dismissal of the Sierra
Club's challenge to EPA's implementation of its rules extending the
interim approvals of various states' Title V air operating permit
programs under the Clean Air Act, holding that the Clean Air Act
allows attorney fee awards under the so-called "catalyst" theory. The
settlement resulted from Sierra Club's suit, and the organization
achieved at least some of the relief it sought by way of the
settlement. 322 F.3d 718 (D.C. Cir. 2003). Status: Petition denied
January 12, 2004.
U.S. Department of Transportation v. Public Citizen,
Case No. 03-358. Petition to review a Ninth Circuit decision holding
that the DOT must prepare an Environmental Impact Statement analyzing
the environmental effects before it allows trucks from Mexico full
access to U.S. roads. 316 F.3d 1002 (9th Cir. 2003). Status: Petition
granted December 15.
Dodge v. Cotter Corp., Case No. 03-332. Petition to
review a Tenth Circuit decision reversing and remanding a trial court
award of $43 million in damages to a group of Colorado residents for
injuries purportedly caused by exposure to uranium waste from a local
mill, based on the trial court's error in limiting the expert witness
evidence at trial. 328 F.3d 1212 (10th Cir. 2003) Status: Petition
denied November 10.
Alcan Aluminum v. United States, Case No. 03-433.
Petition to review a Second Circuit decision upholding a order that
Alcan pay $12.2 million to the United States and $1.4 million to the
State of New York for costs the governments incurred in cleaning up
the Fulton Terminals and Pollution Abatement Services Superfund sites.
Alcan argued that the principle of joint and several liability should
not be applied to make a company liable for the entire cleanup cost at
a site when it is responsible for only trace amounts of contamination.
315 F.3d 179 (2nd Cir. 2003). Status: Petition denied January 12,
2004.
Newdunn Associates v. U.S. Army Corps of Engineers, Case
No. 03-637. Petition to review a Fourth Circuit decision holding that
the developers needed a Section 404 dredge and fill permit for its
ditching and draining activities in certain wetlands because the
creation of ditches to drain the wetlands created the necessary
hydrological connection to navigable waters to assert Clean Water Act
jurisdiction. 344 F.3d 407 (4th Cir. 2003). Status: Petition filed
October 27.
Norton v. Southern Utah Wilderness Alliance, Case No.
03-101. Petition to determine whether federal courts have the
authority under the Administrative Procedure Act to review the
adequacy of the Bureau of Land Management's management of public
lands, following a Tenth Circuit decision concerning the use of
off-road vehicles in Wilderness Study Areas that held that, once land
is designated as a WSA, the BLM has a continuing obligation to manage
the area so that it remains eligible for wilderness classification.
301 F.3d 1217 (10th Cir. 2002). Status: Petition granted July 18.
Alabama v. North Carolina, Case No. 132, 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. On
November 17, the Court appoint a special master to mediate the suit.
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 denied October 20.
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 the
question of whether a permit was required. The Bush administration
filed an amicus curiae brief in support of the SFWMD on September 10.
Oral argument is scheduled for January 14, 2004.
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 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. On December 15,
the Solicitor General's motion for leave to participate as amicus
curiae at oral argument was granted.
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 denied October 6.
Rueth Development Co. v. United States, Case No. 03-548.
Petition to review a Seventh Circuit decision upholding a $4 million
fine levied against the developer for failure to comply with a consent
decree requiring the restoration of wetlands filled in violation of
the Clean Water Act. Rueth argued that the federal government lacked
jurisdiction over the wetlands because they were not adjacent to
navigable waters; EPA determined that the wetlands were adjacent to a
tributary to navigable waters and therefore subject to jurisdiction.
335 F.3d 598 (7th Cir. 2003). Status: Petition denied December 1.
McQueen v. South Carolina Department of Health & Envtl Control, Case
No. 03-159. Petition to review a South Carolina Supreme Court decision
holding that no compensatory taking occurred when an owner's coastal
lots naturally reverted to tidelands, which are public trust lands,
and he was denied a wetlands permit to develop them. 580 S.E.2d 116
(S.C. 2003). Status: Petition denied November 3.
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.
THIRD CIRCUIT
Morton International Inc. v. A.E. Staley Manufacturing Co.,
Case No. 01-4259. Appeal of a lower court decision granting the
defendant's motion for summary judgment in a CERCLA contribution suit,
where Morton argued that the defendant "arranged for" the treatment of
hazardous materials at Morton's facility by entering into agreements
with the facility in which the facility agreed to process prime virgin
mercury into red and yellow oxides of mercury. The defendant argued
that it only sold prime virgin mercury to Morton and purchased final
products from Morton and thus should not incur liability under the
"useful product defense." 2001 WL 34078535 (D. N.J. 2001). Status: On
September 16, the Court struck a middle road between conflicting
circuits on the issue of arranger liability under CERCLA, holding
that, to be liable as an "arranger" under CERCLA, a party must possess
a hazardous substance and must also either control the production
process or know that the processing of the substance could cause a
release; in the instant case, the Court held that Morton had presented
enough evidence on the issue of the defendant's knowledge to survive
summary judgment. 343 F.3d 669.
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. This case could impact future designations of
"wilderness areas." Status: Notice of appeal filed June 23; motion to
dismiss pending.
ELEVENTH CIRCUIT
Sierra Club v.
Hankinson, Case No. 03-11263. Appeal of a district court
decision granting attorneys' fees to four environmental groups for
monitoring EPA's compliance with a 1997 consent decree under the Clean
Water Act setting a timetables for EPA to establish TMDLs for waters
on Georgia's water quality limited segments list. When none of the
TMDLs had been set by 1999, the groups moved to reopen the decree to
compel further action. Following settlement of this issue, the
environmental groups then moved for attorneys' fees for their costs
associated with monitoring compliance with the decree. Case No.
94-02501-CV-MHS-1 (N.D. Ga.). Status: The Court affirmed on December
5. 351 F.3d 1358.
Anderson v. Smithfield Foods, Inc. Case No. 02-14089.
Appeal of a district court decision dismissing claims brought under
the Racketeer Influence and Corrupt Organizations (RICO) Act for
alleged violations of various federal environmental statutes and
awarding sanctions against Anderson for filing a second amended
complaint that continued to rely on RICO claims after a court order
dismissing the first complaint indicated that RICO claims were not
viable for environmental violations. Status: On December 17, the Court
affirmed the dismissal, but reversed the award of sanctions, holding
that the court's order was ambiguous as to whether better-pleaded RICO
claims might be viable. 2003 WL 22962176.
Jacksonville v. Department of Navy, Case No. 03-10570. Appeal of a
district court decision finding that the Navy was potentially liable
for punitive damages for alleged violations of state and local air
pollution control laws, holding that the Clean Air Act implicitly
waived sovereign immunity for punitive damages and denying the Navy's
motion to dismiss. 187 F. Supp. 2d 1352 (M.D. Fla. 2002). Status: The
Court reversed on October 28, holding that there was no unequivocal
waiver for punitive damages under the CAA; therefore, dismissal was
required. 348 F.3d 1307.
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. In a related proceeding, the chief judge of the
Southern District removed Judge Hoeveler from the case. United States
v. South Florida Water Management District, S.D. Fla., Case No.
88-1886-CIV-Zloch (Sept. 23, 2003).
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.
D.C. CIRCUIT
Waste Energy Partners Ltd. v. EPA, Case No. 01-1053.
Challenge to EPA's emissions limits for small municipal solid waste
combustors on the ground that they violate the Clean Air Act by
improperly imposing the same level of control on a subcategory of 37
small combustors as is applied to large combustors, while exempting
the smallest combustors altogether. Status: Oral argument held
November 13.
New York v. EPA, Case No. 03-1380. Challenge to EPA's
New Source Review rule amendments published on October 27, which
expands the "routine maintenance" exclusion from review under the New
Source Review/Prevention of Significant Deterioration programs. The
rule amendments were scheduled to take effect on December 26. Status:
Notice of appeal filed October 27. On November 17, the challengers
asked the court to stay implementation of the rule amendments pending
the challenge. Motion to stay granted December 24.
New York v. EPA, Case No. 02-1387. Challenge to EPA rule
amendments granting additional exemptions from NSR/PSD requirements.
Status: Notice of appeal filed December 31, 2002. EPA published notice
of its final reconsideration of the rules on November 7. A renewed
motion to stay was denied December 24.
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. Status report filed
December 9; next status report due February 9, 2004.
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 November 18,
the Court granted EPA's motion to dismiss the case as moot. 2003 WL
22799694.
_______________
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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