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Note: Status of cases is as of
December 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: Oral argument held
November 5.
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 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 a 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: The
Court affirmed on October 7. 29 F.L.W. S551. Motion for rehearing is
pending.
FIRST DCA
Ernie Mosley v. DEP, Case
No. 1D04-1614. Appeal of a DEP final order dismissing Mosley's
petition for administrative hearing as being untimely filed two days
after the extension of time that Mosley had requested. Mosley had
argued that he should be allowed additional time for mailing.
Status: Fully briefed; request for oral argument denied November 24.
Save the Manatee Club, Inc. v FWCC, Case No.
1D04-3903. Appeal of a declaratory statement issued by FWCC.
Petitioner requested that FWCC issue a declaratory statement
describing: the criteria required for counties to adopt manatee
protection plans; the criteria that FWCC will apply to review and
approve manatee protection plans; the criteria that FWCC will use to
designate "substantial risk counties for manatee mortality" in the
event that rules are not adopted; the criteria that FWCC will use
for approval of manatee protection plans in substantial risk
counties in the event that rules are not adopted; and whether FWCC
considers review and approval of County manatee protection plans to
be "agency action" as defined by Section 120.52(2), Florida Statutes
(2003). FWCC’s declaratory statement denied Petitioner's request for
a declaratory statement except as to the last inquiry (i.e., whether
FWCC considers review and approval of County manatee protection
plans to be “agency action”). Status: Notice of appeal filed
September 1; fully briefed; no oral argument requested or set.
Save the Manatee Club, Inc. v. FWCC, Case No.
1D04-4274. Appeal of a Final Order dismissing a petition for hearing
on FWCC's approval of the Lee County Manatee Protection Plan.
Status: Notice of appeal filed September 24; request for stay denied
November 1.
Butler Chain Concerned Citizens, Inc. v. DEP, Case No.
1D04-3941. Appeal of a DEP final order holding that petitioner
failed to prove standing to challenge a consent agreement between
DEP and the developer that allowed dredging and filling of sovereign
submerged lands in Lake Butler, as the developer's removal of muck
and a tussock in the cove would improve water quality in the lake.
Status: Notice of appeal filed September 1; motion to dismiss is
pending. Oral argument requested.
Bay Point Club, Inc. v. Bay County, et al, Case No.
1D03-1240. Appeal from a Florida Land and Water Adjudicatory
Commission 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: The Court affirmed
October 25. 29 F.L.W. D2375. Suggestion to certify pending.
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: The Court affirmed without
opinion on October 20. 884 So. 2d 938.
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: Per curiam dismissed October 28. 2004 WL 2402691.
Lambou v. Wakulla County, 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; motion
to dismiss is pending.
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: Oral argument scheduled for February 22, 2005.
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). On October 28, the Court held that the appeal was not moot
because the statutory reenactment did not apply retroactively to bar
the challenge, but that the amendment did not violate the single
subject rule. 29 F.L.W. D2421 (consolidated with Case No. 1D03-784,
below).
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: The Court affirmed on October 28. 29 F.L.W. D2421
(consolidated with 1D03-1717, above).
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: Oral argument is scheduled for February
8, 2005.
FOURTH DCA
WCI Communities, Inc. v. City of Coral Springs,
Case No. 4D03-1901. Appeal of a final judgment entered in favor of
the City on WCI's complaint alleging that the City's nine-month
temporary moratorium on processing site plan applications for
townhouse and multi-family developments constituted substantive and
procedural due process violations and a regulatory taking. Status:
The Court affirmed on September 29. 29 F.L.W. D2196.
FIFTH DCA
Thomas Kerper & All Salvaged Auto Parts, Inc. v. Florida
Department of Environmental Protection, Case No. 5D04-1182.
Appeal of DEP Final Order requiring assessment and remediation of an
alleged discharge of used oil in compliance with DEP’s directives
under “Corrective Actions for Contaminated Site Cases” (“CACSC”).
DEP brought an administrative action pursuant to an eight-count
Notice of Violation (“NOV”). After a formal administrative hearing
the ALJ dismissed seven of eight counts but found that Appellants
were liable to assess and remediate a small portion of the used oil
discharge for which DEP sought cleanup. The ALJ denied Appellants’
motion for attorneys fees despite his finding that DEP had
“unnecessarily litigated” the dismissed counts of the NOV. DEP
affirmed the ALJ’s recommended order. Appellants appealed claiming
that the CACSC is unenforceable as an unpromulgated rule and that
Section 376.305, F.S., requiring remediation “to the satisfaction of
the Department” is unconstitutional, as it violates the
nondelegation doctrine. Appellants also contest the denial of
attorneys fees. Status: Oral argument was held December 9.
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: Motion to dismiss denied June 3.
Notice of cross appeal filed July 2. Oral argument requested.
U.S. SUPREME COURT
Kelo, et al. v. New London, CT, Case No. 04-108.
Petition to review a decision of the Connecticut Supreme Court
holding that the City of New London is entitled to take property by
eminent domain to facilitate the development of a new major drug
research complex; the Fifth Amendment's public use requirement
authorizes eminent domain of property for the sole purpose of
"economic development" to potentially increase tax revenues and
improve the local economy. 843 A.2d 500 (Ct. 2004). Status: Petition
granted September 28.
Appolo Fuels v. U.S., Petition to review a Federal
Circuit decision rejecting a coal mining company's claim that an
Interior Department determination that company land was unsuitable
for mining constituted a taking requiring compensation. 381 F.3d.
1338 (Fed. Cir. 2004). Status: Petition filed.
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 and
the new drinking water standards for arsenic promulgated in 2001
pursuant thereto by alleging the SWDA 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: Review denied October 4.
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: On December 13, the Court reversed, holding
that the contribution provisions of CERCLA do not authorize a
private party to sue for contribution unless an enforcement action
is filed against that party first. 2004 WL 2847713.
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.
FIRST CIRCUIT
Rhode Island v. EPA.
Challenge filed by six northeastern states to EPA's rules governing
cooling water intake structures associated with power plants; EPA's
"Phase II" performance standards, issued July 9, require power
plants withdrawing large amounts of water for cooling to
significantly reduce the number of organisms sucked in or impinged
against intake screens. Status: Challenge filed July 26. Author's
Note: See related suit filed in the Second Circuit, infra.
SECOND CIRCUIT
New York and Connecticut v. EPA. Petition by two
states challenging EPA's decision not to finalize proposed effluent
guidelines governing stormwater runoff from the construction and
development industry, on the ground that EPA has failed to perform a
nondiscretionary duty under the CWA to set the guidelines. Status:
Challenge filed September 7. Author's Note: See related suit filed
in the Ninth Circuit.
Waterkeeper Alliance et al. v. EPA, Case No. 03-4470.
Petition challenging EPA's rule governing wastewater discharges from
concentrated animal feeding operations (CAFOs), which became
effective February 26, 2003. Status: Oral argument held December
13..
Riverkeeper v. EPA. Suit by coalition of environmental
groups challenging EPA's rules governing cooling water intake
structures associated with power plants; EPA's "Phase II"
performance standards, issued July 9, require power plants
withdrawing large amounts of water for cooling to significantly
reduce the number of organisms sucked in or impinged against intake
screens. Status: Challenge filed July 26. Author's Note: See related
suit filed in the First Circuit.
FOURTH CIRCUIT
Ohio Valley Environmental
Coalition, et al. v. Bulen, et al., Case No. 04-2129. Appeal
of a district court decision barring the U.S. Army Corps of
Engineers from issuing general discharge permit Nationwide 21 (NWP
21) for mountaintop mining in the southern district of West
Virginia, on the ground that the permits unlawfully allow placement
of mining debris into streams below (a practice called "valley
fills") using procedures Congress never intended for general permits
under section 404 of the CWA. The Justice Department is arguing that
the decision will lead to inconsistent application of the NWP 21
nationwide. Ohio Valley Environmental Coalition v. Bulen, Case No.
CIV.A.3:03-2281, 34 ELR 201048 (July 8, 2004), modified in part,
2004 WL 2384841 (August 13, 2004), reconsideration denied (August
31, 2004). Status: Notice of appeal filed September 13.
NINTH CIRCUIT
Natural Resources Defense Council
and Waterkeeper Alliance v. EPA, Case No. 04-74479. Petition
filed by environmental groups challenging EPA's decision not to
finalize proposed effluent guidelines governing stormwater runoff
from the construction and development industry. Status: Voluntarily
dismissed December 15. Author's Note: See related suit filed in the
Second Circuit.
TENTH CIRCUIT
Sierra Club v. Seaboard Farms, Inc., Case No. 03-6104.
Appeal of a district court's grant of summary judgment to the
defendants, owners and operators of a pig-farming operation in
western Oklahoma. Sierra Club had filed suit alleging that the
operation had violated section 103 of CERCLA by failing to report
the release of hazardous substances above the reportable quantity
from a "facility," i.e., ammonia emissions. The district court
defined "facility" to apply narrowly to each individual barn,
lagoon, and land application area, holding that the "reportable
quantity" threshold was not reached at each area. 2002 WL 32443305 (W.D.Okla
2002), modified on reconsideration, 2002 WL 32443304 (2002). Status:
On October 29, the Court reversed and remanded, holding that the
term "facility" should be defined broadly to include the entire farm
site, and the ammonia emissions from the entire site must be
aggregated. 387 F.3d 1167.
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: Hearing set for January
2005 session.
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 the EPA and intervenor Florida Department of
Environmental Protection on FPIRG's suit alleging that EPA violated
the CWA by failing to review Florida's Impaired Waters Rule, Chapter
62-303, Florida Administrative Code, as a revision to Florida's
water quality standards. D.C. N.Fla. No. 02-408-CV. Status: The
Court reversed and remanded on October 4, holding that EPA should
have reviewed the Rule as to its practical effect on Florida's water
quality standards and should not have relied on FDEP's
representations that the Rule did not change any standards. 386 F.3d
1070.
Parker v. Scrap Metal Processors, Inc., Case No.
03-14516. Appeal of a federal district court decision finding that
owners and operators of a scrap metal business were liable under the
Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA)
for contamination of property adjoining the scrap metal yard and
awarding compensatory and punitive damages and attorneys fees.
Status: On September 28, the Court affirmed the jury's verdict of
liability under the CWA and RCRA claims and the award of attorney's
fees and contribution under a related Georgia statute, but reversed
the jury's award of compensatory and punitive damages under Georgia
nuisance law. 386 F.3d 993.
DLX, Inc. v. Commonwealth of Kentucky, Case No.
03-5528. Appeal of a district court decision barring DLX from
bringing a suit alleging a regulatory taking in federal court
because of sovereign immunity from suit granted by the 11th
Amendment to the U.S. constitution. Status: The Court affirmed on
August 26; rehearing en banc denied October 28. 381 F.3d 511.
D.C. CIRCUIT
Honeywell Internat'l v. EPA, Case No. 02-1294. Challenge
to a 2002 EPA rule approving additional acceptable substitutes for
ozone-depleting hydrochlorofluorocarbon, on the grounds that EPA
erroneously considered economic factors in deciding whether the
substitutes are acceptable. Status: On July 23, the Court vacated
the rule. 374 F.3d 1363.
Natural Resources Defense Council v. EPA, Case No.
04-1323. Challenge to emission limits issued on July 30 for
hazardous air pollutants from makers of plywood and composite wood
products, particularly focusing on provisions exempting facilities
found to present a low risk to human health; the challengers have
also filed a petition with EPA requesting reconsideration of the
rulemaking. Status: Challenge filed September 28.
New York v. EPA, Case No. 03-1380. Challenge to EPA's
New Source Review rule amendments published on October 27, 2003,
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
due March 17, 2005.
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. Oral argument scheduled for January 25,
2005.
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. Status report due January 4, 2005.
__________
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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