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Note: Status of cases is as of April 1, 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.
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), reh'g
denied (2003). Status:
The Court affirmed on February 12, and approved the issuance of a
single search warrant for multiple properties where probable cause is
established to search the named properties and provided the properties
are described with particularity. The court also authorized electronic
signatures on the warrants. 29 Fla. L. Weekly S67.
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.
Department of
Envtl. Protection v. St. Marks Refinery, Inc., Case No.
1D03-1047. Appeal of a declaratory judgment holding that a 1992
addendum to a consent order between Seminole Refinery and DEP that
provided for a release from liability for St. Marks for contamination
at the refinery prior to 1992, when St. Marks purchased the facility,
was valid and enforceable, even though Seminole allegedly violated the
terms of the consent order. Status: The court affirmed per curiam on
February 16. 2004 Fla. App. LEXIS 1890.
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).
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).
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: Oral argument held
March 2.
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 filed December 29, 2003; motion in abeyance pending
proceedings below.
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 filed February 13.
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 filed January 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.
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 filed
December 22, 2003. Scheduled for conference April 2.
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
filed November 10, 2003. Scheduled for conference April 2.
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:
Petition granted December 15, 2003. Scheduled for argument April 21.
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 filed October 27, 2003. Scheduled
for conference April 2.
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 November 3,
2003. Argued March 29.
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 appoint a special master to
mediate the suit.
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 (C-11) to another (WSA-3) requires a NPDES permit when this
action serves to add phosphorus to the receiving water. 280 F. 3d 1364
(11th Cir. 2002). Status: On March 23, the court quashed and remanded
for further factual findings to determine whether C-11 and WSA-3 are
in fact separate water bodies and holding that, if not, no permit is
required for the pumping. 2004 U.S. LEXIS 2376; 2004 WL 555324.
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: The Court affirmed on January 21. 124 S.Ct. 983.
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: Petition granted June 9, 2003. On
December 15, 2003, the Solicitor General's motion for leave to
participate as amicus curiae at oral argument was granted. Argued
January 14.
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.
Riverkeeper, et al. v. EPA, case No. 02-4005. Appeal of EPA's cooling
water intake structure rule, published December 18, 2001, which
creates a two-track plan for regulating new structures that are used
to draw in water to cool electric generating equipment in an effort to
reduce the impacts to fish and other aquatic organisms that get sucked
into such systems or impinged against screening devices for the
systems. The two-track plan would allow a facility either to meet
stringent standards in the rules or conduct a site-specific analysis
to develop site-specific technology. Status:
The court upheld most of the rule on February 3, but struck down a
portion that allowed facilities to implement restoration measures as a
way of meeting the rule requirements. 358 F.3d 174.
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. Motion for rehearing pending.
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
scheduled for April 27.
D.C. CIRCUIT
Northeast Maryland Waste Disposal Authority 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:
On February 24, the court remanded the rules to EPA to (1) explain
its decision to subcategorize small municipal solid waste combustors
according to aggregate capacities of the plants at which they are
located; (2) establish new MACT floors for small municipal solid waste
combustors; and (3) readdress the beyond-the-floor standards. 358 F.3d
936.
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 petition for
reconsideration pending.
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 February 9, 2004.
_________________
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.
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