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Note: Status of cases is as of July 7, 2004. Readers are encouraged to
advise the authors of pending appeals that should be included.
FLORIDA SUPREME COURT
City of Miami Beach v. Royal
World Metropolitan, Inc., Case No. SC04-233. Petition to
review a
Third DCA opinion holding that a section of the Bert J. Harris,
Jr., Private Property Rights Protection Act that states "this section
does not affect the sovereign immunity of government" does not bar a
private property rights claim against the City. 863 So.2d 320 (Fla. 3d
DCA 2003), reh'g denied (2004). Status: Petition for review filed
February 19.
Crist 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), reh'g denied (2003). Status: Petition
filed May 7, 2003. The original parties filed notices of
non-participation because their dispute had been resolved, and the
court removed them as parties on September 25, 2003. DEP filed a
motion to realign the parties on October 20, 2003, to show its support
of the Attorney General's position, which would effectively leave no
respondents in the case. On March 9, the Court issued an order to show
cause why the case should not be dismissed as moot, since the parties
in interest were gone. Crist and DEP filed responses to the order on
March 24.
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), reh'g denied (2002). Status: Oral argument held August 26,
2003.
FIRST DCA
Department of Environmental Protection v. Save Our Suwannee, Inc.,
Case No. 1D04-1258. Appeal of a second circuit court decision holding
that large dairies in Florida must apply for wastewater discharge
permits to comply with both federal and state clean water laws and
stating that the DEP has only partially performed its duties to adopt
and enforce the federal NPDES permitting program in Florida by
entering into consent agreements with some dairy farms that have the
practical effect of exempting those farms from permitting. The judge
ordered DEP to immediately require all dairy animal feeding operations
with more than 700 mature cattle to apply for NPDES permits or to
demonstrate that the operation is entitled to an applicable exemption.
The DEP was specifically enjoined from relying on section 403.0611 of
the Florida Statutes as authority to use an alternative scheme to
traditional permitting for dairies. Case No. 2001-CA-001266 (Fla. 2nd
Cir. Mar. 5, 2004). Status: Notice of appeal filed March 23.
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: Motions to dismiss the appeal
were denied on July 31, 2003 (857 So. 2d 207) and January 22, 2004;
motions for rehearing were denied October 28, 2003. In their answer
briefs, the appellees argue that the appeal is moot because of the
subsequent reenactment of Chapter 403, F.S. See ECOSWF et. al., v. DEP,
852 So. 2d 349 (Fla. 1st DCA 2003). Oral argument scheduled for July
27.
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. On
appeal, the appellants argue that the 2002 amendment is
unconstitutional because it violates the single subject requirement.
Status: All briefs have been filed. In its answer brief, DEP has
suggested the appeal is now moot because of the subsequent reenactment
of Chapter 403, Florida Statutes. See ECOSWF et. al., v. DEP, 852 So.
2d 349 (Fla. 1st DCA 2003). Oral argument scheduled for July 27.
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: The court
affirmed per curiam on January 29. 865 So.2d 483.
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, 2003.
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: Dismissed May 19.
Motions for rehearing and certification to the Supreme Court denied
July 1.
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, 2003; motion to
dismiss denied June 3. Notice of cross appeal filed July 2.
U.S. SUPREME COURT
EPA v. Tennessee Valley Authority, Case No. 03-1162.
Petition to review an Eleventh Circuit decision holding that EPA could
not issue an administrative compliance order against the TVA without
first filing an enforcement action in federal court. 336 F.3d 1236
(11th Cir. 2003). Status: Petition denied May 3, 2004
County of Okanogan v. National Marine Fisheries Service,
Case No. 03-1071. Petition to review a Ninth Circuit decision holding
that the U.S. Forest Service acted within its authority to reduce the
amount of water that may be diverted to ditches from the Chewuch River
in Washington in times of low flow to protect listed salmon in the
Okanogan National Forest. 347 F.3d 1081 (9th Cir. 2003). Status:
Petition denied May 3, 2004.
Cooper Industries Inc. v. Aviall Services, Inc., Case
No. 02-1192. 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. U.S., 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 Corps of Engineers could assert jurisdiction over
the wetlands. 339 F.3d 447 (6th Cir. 2003). Status: Petition denied
April 5, 2004.
Deaton v. U.S., 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 reasonably be considered a
"tributary" and that therefore, the COE had jurisdiction over the
adjacent wetlands. 332 F.3d 698 (4th Cir. 2003). Status: Petition
denied April 5, 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, particularly air impacts, before it allows
trucks from Mexico full access to U.S. roads. 316 F.3d 1002 (9th Cir.
2003). Status: The Court reversed the circuit court’s decision on June
7, 2004, reasoning that the agency regulations were not a “but-for”
cause of any increase in emissions in the U.S. from the operation of
the Mexican trucks. The Court found that it was the President, not the
agency, who could authorize the cross-border operations of trucks
coming from Mexico, and that the agency has no discretion to prevent
the entry of the Mexican trucks. The agency, in this instance, did not
act improperly by not performing a full conformity review analysis for
its proposed rules governing safety regulation of the Mexican trucks
including the environmental effects of allowing the trucks to operate
on U.S. roads.
Newdunn Associates v. Treacy, Case No. 03-637. Petition
to review a Fourth Circuit decision holding that Newdunn 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 denied May 5, 2004.
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: On June 14, 2004, the Court
unanimously reversed the circuit court reasoning that the land use
plan that the BLM promulgated in order to guide its management actions
are not binding commitments that can be compelled under the APA.
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,
2003. On November 17, 2003, the Court appointed a special master to
mediate the suit.
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. 2002). Status: Judgment vacated and case remanded
April 28, 2004. Judgment entered by Ninth Circuit on June 1, 2004.
Texas Cities Coalition for Stormwater v. EPA, Case No.
03-1125. Petition to review a Ninth Circuit decision upholding an EPA
rule requiring discharges from small municipal sewer systems and
construction sites between one and four acres in size be subject to
the National Pollutant Discharge Elimination System permitting
requirements of the Clean Water Act. Status: Petition denied June 7,
2004.
Nebraska v. EPA, Case No. 03-1640. Petition to review a
decision of the D.C. Circuit upholding the constitutionality of the
EPA’s decision to lower the drinking water standard for arsenic from
50 ppb to 10 ppb in January 2001. Status: Petition filed by State of
Nebraska on June 4, 2004.
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, 2003. Status: Petition filed March 7, 2003.
SIXTH CIRCUIT
U.S. v. Wayne County, Case No. 02-2245. Appeal of a
district court decision denying a city’s motion to amend a consent
decree entered in an environmental lawsuit brought under the Clean
Water Act. The consent decree required the closure of a sewage bypass
valve in the city but the city argued that the decree should be
amended to allow the bypass to remain open in order to prevent
basement flooding during heavy weather. Status: On April 23, 2004, the
court affirmed the district court’s decision and refused to amend the
consent decree because heavy weather was necessarily a consideration
of the parties when they reached the decree.
NINTH CIRCUIT
U.S. v. Phillips, Case No. 02-30035. Appeal of a
district court decision sentencing a Montana developer to five years'
probation after he was found guilty under the Clean Water Act for
illegally diverting creek water onto his planned subdivision to fill
ponds, then sending the water back to the creek laden with old mine
tailings and other sediments from the property. Status: In a case of
first impression, on January 28, 2004, the court affirmed the
conviction, but reversed and remanded the sentence, holding that
district courts must enhance sentences and may boost penalties for
convicted polluters who cause the government to incur substantial
Superfund-related cleanup costs. 356 F.3d 1086. Petition for rehearing
denied May 6, 2004. Motion for clarification denied May 27, 2004.
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, 2003;
motion to dismiss pending.
ELEVENTH CIRCUIT
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: Oral argument held
April 27.
D.C. CIRCUIT
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/equipment replacement" 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: A motion to stay the equipment
replacement rule was granted December 24, 2003. EPA to convene
proceeding on reconsideration. Status report due July 19, 2004.
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 the NSR rule amendments was denied December 24, 2003. A motion to
consolidate with Case No. 03-1380 (above) was denied.
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, 2003. Latest
status report filed December 9, 2003.
_________________
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.
Douglas E. Walker, douglas.walker@hklaw.com, received his J.D. from
the University of Florida College of Law in 2003. He is an associate
in the Orlando office of Holland & Knight LLP.
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