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Note: Status of cases is as of
June 8, 2005 Readers
are encouraged to advise the authors of pending appeals that should
be included.
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FLORIDA SUPREME COURT
Quietwater Entertainment, Inc. et al. v. Escambia County,
Case No. SC05-215. Petition to review a First DCA decision affirming
a circuit court order granting summary judgment in favor of Escambia
County. The County created the Municipal Services Benefit Unit (MSBU),
which included all real property on Santa Rosa Island that is owned
by the County, and then levied special assessments for law
enforcement and mosquito control on properties within that MSBU,
including the property leased by the Petitioners. Petitioners sought
a declaratory judgment that the MSBU (and the accompanying
assessments) was invalid because it did not confer any direct,
special benefit to the real property it burdened. The Petitioners
asserted conflict jurisdiction, claiming the First DCA's affirmance
conflicted with three decisions of the Florida Supreme Court and one
by the Fifth DCA on the same question of law. 890 So. 2d 525 (Fla.
1st DCA 2005). Status: Review denied June 1.
Bay Point Club, Inc. v. Bay County, et al, Case No.
SC05-260. Petition to review a First DCA opinion affirming 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. 890
So. 2d 256 (Fla. 1st DCA 2004). Status: Review denied on May 11.
Daniels v. Department of Health, Case No. SC04-230.
Petition to review a per curiam affirmance by the Third DCA 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: The
court affirmed on March 10. 898 So.2d 61 (Fla. 2005). Note: The
Legislature passed
CS/CS/CS/SB 1010; it addresses this issue.)
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, as a means of
showing its support for 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, 2004.
FIRST DCA
Miccosukee Tribe of Indians v. DEP, Case No.
1D04-3157. Appeal of a DOAH final order on the Everglades Phosphorus
Criterion rule, 62-302.540, approving the rule as a valid exercise
of the Department's delegated legislative authority. DOAH Case No.
03-2872RP (Final Order entered June 17, 2004). Status: Notice of
appeal filed July 15, 2004; all briefs have been filed; request for
oral argument denied.
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 adoption, review, and approval
of manatee protection plans; the criteria that FWCC will use to
designate "substantial risk counties for manatee mortality;” 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:
Affirmed per curiam on May 31.
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: Affirmed per curiam on May 31.
Butler Chain Concerned Citizens, Inc. v. DEP, Case No.
1D04-3941. Appeal of a DEP final order holding that the petitioner
failed to prove standing to challenge a consent agreement between
DEP and a developer that allowed dredging and filling of sovereign
submerged lands in Lake Butler, since the developer's removal of
muck and a tussock in the cove would improve water quality in the
lake. Status: Oral argument is scheduled for July 12.
SECOND DCA
Behrens v. Southwest Florida Water Management District,
Case No. 2D04-1250. Appeal of a DOAH final order assessing
attorney's fees against Behrens pursuant to section 120.569(2)(3),
F.S., for his petition challenging issuance of a water use general
permit to Has-Ben Groves in Hardee County, where Behrens had not
inquired of the water management district prior to filing his
petition nor reviewed the file concerning the permit, and there was
no reasonable factual basis to believe that withdrawals of 31,100
gallons per day at groves would adversely affect Behrens own well,
located approximately 16 miles away. DOAH found that Behrens did not
make a reasonable inquiry regarding the facts and applicable law
before filing his petition and therefore did not have a "reasonably
clear legal justification" to proceed. Status: Affirmed per curiam
on March 11; rehearing denied April 25.
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: Oral argument held May 10.
U.S. SUPREME COURT
Honeywell International Inc. v. Interfaith Community
Organization, Case No. 04-1560. Petition to review a Third
Circuit decision upholding a district court decision that the
community group had proven an "imminent and substantial
endangerment" to health and the environment under the RCRA citizen
suit provision, affirming the district court's finding that the
hexavalent chromium found in the soil at the Honeywell site exceeded
New Jersey standards by an average of more than 7,500 ppm and that
excavation and removal of the contamination was necessary to
eliminate the threat of exposure. Significantly, the appellate court
held that citizens were not required to exhaust administrative
remedies before filing suit under RCRA's citizen suit provision.
Status: Petition filed May 19.
Milwaukee Metropolitan Sewerage District v. Friends of
Milwaukee's Rivers, Case No. 04-889. Petition to review a
Seventh Circuit decision allowing a Clean Water Act suit for
sanitary sewer overflows filed by an environmental group to proceed
because the state had not diligently prosecuted the violations
alleged in the complaint. 382 F.3d 743. Status: Review denied March
7.
DLX, Inc. v. Commonwealth of Kentucky, Case No.
04-1018. Petition to review a 6th Circuit affirmance of a district
court decision barring DLX from bringing suit alleging a regulatory
taking against Kentucky in federal court based on the principle of
sovereign immunity. 381 F.3d 1511 (6th Cir. 2004). Status:
Certiorari denied April 4.
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: Oral
argument was held February 22.
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,
2003. On November 17, 2003, the Court appointed a special master to
mediate the suit.
FOURTH CIRCUIT
United States v. Duke Energy Corp., Case No. 04-1763.
Appeal of district court decision that EPA's definition of
"modification" in the new source review (NSR) program must be
consistent with the definition in the new source performance
standard (NSPS) program, holding that an "emissions increase" means
an increase in the hourly rate of emissions, as it is defined under
NSPS, not an increase of actual emissions measured on an annual
basis, as EPA contended. As a result, the company could increase
actual emissions by expanding its operating hours, as long as the
hourly emission rate did not increase. 278 F. Supp. 2d 619 (M.D.
N.C. 2003). Status: Supplemental briefs submitted May 9.
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, 2004 WL 1576726 (S.D.W.Va. July 8,
2004), modified in part, 2004 WL 2384841 (Aug. 13, 2004),
reconsideration denied (Aug. 31, 2004). Status: Notice of appeal
filed September 13, 2004.
D.C. CIRCUIT
Natural Resources Defense Council v. EPA, Case No.
04-1323. Challenge by makers of plywood and composite wood products
to emission limits issued on July 30 for hazardous air pollutants,
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, 2004; on February 23, the
court granted EPA's motion to hold the case in abeyance and directed
the parties to file motions to govern future proceedings.
New York v. EPA, Case No. 03-1380. Challenge to EPA's
New Source Review rule amendments published on October 27, 2003,
which expand 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 has convened proceedings to reconsider the rule and is
required to file status reports. The latest status report was filed
April 19.
New York v. EPA, Case No. 02-1387. Challenge to EPA
rule amendments granting additional exemptions from NSR/PSD
requirements. Status: Oral argument was held 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: The matter has been held in
abeyance pending EPA proceedings; EPA is required to file status
reports. EPA filed a status report and a motion for leave to file a
revised statement of the issues on May 19.
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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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