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Note: Status of cases is as of
September 22, 2004. Readers
are encouraged to advise the authors of pending appeals that should
be included.
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FLORIDA SUPREME COURT
Daniels
v. Department of Health, Case No. SC04-230. Petition to
review a per curiam affirmance of a DOAH order denying Daniels'
amended petition for attorney's fees based on the administrative law
judge's finding that she is an individual, not a "small business
party" as defined by section 57.111(3)(d), F.S. 868 So. 2d 551 (Fla.
3d DCA 2004). Status: Petition for review granted August 24.
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.
Islamorada v. Thora Ambrose, Case No. 3D02-1716. Petition to
review a Third DCA decision holding that nearly 15,000 undeveloped
lots throughout the Florida Keys must comply with current
development restrictions, not the restrictions in place at the time
the lots were purchased. 866 So. 2d 707 (Fla. 3d DCA 2003), reh'g
denied and reh'g denied en banc (2004). Status: Petition for review
denied on July 13.
Crist v.
Department of Environmental 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, F.S., 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, F.S.
SePro
Corp. v. Department of Environmental 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. The Department of Environmental
Protection (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
Hussey,
et al. v. Collier County, et al., Case No. 1D03-3543. Appeal
of Department of Community Affairs final order finding comprehensive
plan amendments "in compliance" with the County's comprehensive
plan. The amendments divide the County's Rural Fringe Mixed Use
District into sub-areas designated as "Sending," "Receiving," or
"Neutral." The Rural Fringe area is a transition zone between the
Urban areas in the west of the County and the Estates,
Agricultural/Rural, and Conservation areas to the east. Areas
designated as "Receiving" lands within the Rural Fringe are those
deemed most appropriate for development; "Sending" lands are
designated as most appropriate for preservation or conservation.
Status: Affirmed per curiam on September 15.
Bay
Point Club, Inc. v. Bay County, et al, Case No. 1D03-1240.
Appeal from a Florida Land and Water Adjudicatory Commission’s final
order holding that a proposed non-substantial change to the Bay
Point DRI development order must be consistent with the Bay County
Comprehensive Plan. Status: Oral argument held February 17. On July
29, the court advised that it will make its determination en banc.
City of Hallandale Beach v. Broward County, et al, Case No.
1D03-4472. Appeal of a text amendment to the Broward County
comprehensive plan limiting the densities in the coastal high hazard
areas as exceeding the county’s charter authority and arguing that
the amendment discourages urban infill and redevelopment. The
Appellees' position is that even if urban infill and redevelopment
is discouraged in the coastal high hazard areas, the remaining urban
area is not impacted by the amendment and therefore urban infill and
redevelopment can continue. Status: Oral argument is scheduled for
October 12.
Florida
Public Interest Research Group v. Florida Department of Community
Affairs, Case No. 1D03-5025. Appeal of a Department of
Community Affairs final order dismissing a petition to set new
energy efficiency standards for ten products sold in Florida.
Status: Oral argument scheduled for October 12.
Victor Lambou et al v. Wakulla County et al., Case No. 1D04-422.
Appeal of a circuit court order dismissing with prejudice the
Petitioners' verified complaint seeking declaratory and supplemental
relief regarding the County's adoption of an ordinance amending the
Wakulla County Comprehensive Plan. Status: Oral argument held
September 14.
Dillard
& Associates Consulting, Inc. v. Department of Environmental
Protection, Case No. 1D03-3279. Appeal of DEP's final order
dismissing Dillard's petition challenging the consent order between
DEP and the Florida Department of Transportation. DOT and DEP had
entered into the consent order to address certain wastewater
violations at one of the DOT's wastewater treatment plants; the
consent order required DOT to pay a certain amount in penalties for
the violations. Dillard operated the DOT wastewater facility under
contract with DOT, and the contract provided that Dillard would pay
any penalties DOT incurred for any noncompliance at the facility.
Dillard filed a petition asking for a hearing on the amount of
penalties and alleging financial harm, since it, not the DOT, would
be paying the penalties. DEP dismissed the petition on the basis
that Dillard had no standing under the APA to challenge the consent
order, because financial interests are not within the zone of
interest protected by Chapter 403, F.S., which governs wastewater
permits. Status: Oral argument held July 21.
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 permits or to demonstrate that the operation is entitled to an
applicable exemption. The DEP was specifically enjoined from relying
on section 403.0611, F.S., as authority to use an alternative scheme
to traditional permitting for dairies. Case No. 2001-CA-001266 (Fla.
2nd Cir. Mar. 5, 2004). Status: Fully briefed. Oral argument
requested.
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 held 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, F.S. See ECOSWF et. al., v. DEP, 852 So.
2d 349 (Fla. 1st DCA 2003). Oral argument held July 27.
SECOND DCA
IMC
Phosphates Co. v. Department of Environmental Protection,
Case No. 2D03-4682. Appeal of a DEP final order denying IMC an ERP
permit and conceptual reclamation plan approval for phosphate mining
and reclamation of an area known as the Altman Tract. Status: Notice
of appeal filed October 15, 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, F.S. 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 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
Texas
Cities Coalition for Stormwater v. EPA, U.S., No. 03-1125.
Petition to review a decision by the Ninth Circuit upholding EPA’s
stormwater rules subjecting discharges from small municipal sewer
systems and construction sites between one and five acres in size to
the NPDES permitting requirements. 344 F.3d 832 (9th Cir. 2003).
Status: Petition denied on June 7.
Nebraska
v. Central Interstate Low-Level Radioactive Waste Compact Commission,
Case No. 04-92. Petition to review a $151.4 million judgment against
Nebraska over a regional low-level radioactive waste site, awarded
on remand of a case holding that Nebraska had waived its 11th
Amendment immunity by entering into the multi-state compact. Status:
Petition dismissed August 23.
Nebraska v. EPA, Case No. 03-1640. Petition to review a D.C. Circuit
case dismissing a petition filed in 2002 by Nebraska that challenged
the Safe Water Drinking Act’s Constitutionality by alleging it
exceeds the authority of the commerce clause of the U.S.
Constitution, as well as the First and Tenth amendments. The Court
held that the state did not meet the burden of proof required for a
facial constitutional challenge and that the SWDA comports with both
the Commerce Clause and the Tenth Amendment. 331 F.3d 995 (D.C.Cir.
reh'g en banc denied (Aug 22, 2003). Status: Petition filed June 4.
Conference on petition scheduled for September 27.
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. Oral argument held August 24.
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.
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.
NINTH CIRCUIT
Waterkeepers Northern California v. AG Industrial Manufacturing,
Inc., Case No. 03-15023. Appeal of a district court
decision dismissing an action brought by Waterkeepers against the
manufacturer of farm equipment alleging violations of the Clean
Water Act for lack of jurisdiction, on the ground that the 60-day
notice letter required by the Act was deficient, as it failed to
provide specific dates of alleged violations. AG Industrial filed a
cross appeal on the court's denial of its motion for attorney's fees
as the prevailing party. Status: On July 16, the Court affirmed in
part and reversed in part, upholding the denial of attorney's fees,
but reversing the dismissal, holding that the 60-day notice letter
was not required to list every specific detail of every alleged
violation. 375 F.3d 913.
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 DEP, 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
(NSR/PSD) programs. The rule amendments were scheduled to take
effect on December 26, 2003. Status: A motion to stay the equipment
replacement rule was granted December 24, 2003. EPA to convene
proceeding on reconsideration. Status report was due September 16.
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., 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, 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, 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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