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Note: Status of cases is as of
March 7, 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,
which includes 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 property leased by the Petitioners. The 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 burdens. The Petitioners
assert conflict jurisdiction, claiming the First DCA's affirmance
conflicts 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: The Petitioners filed their jurisdictional
brief on February 11; the County's amended brief is due March 24.
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: Petition filed February 10;
jurisdictional briefs have been filed.
Daniels v. Department of Health, Case No. SC04-230.
Petition to review a per curiam affirmance of 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:
Oral argument held November 5, 2004.
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: Review denied February 8.
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, 2004.
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, 2004. 29 Fla. Law Weekly S551, reh'g
denied (Feb. 5, 2005).
FIRST DCA
Asher G. Sullivan Jr. St. Augustine Trust dated May 16, 1996 v. DEP,
Case No. 1D04-0475. Appeal of a final order of the DEP denying the
Trust eligibility to participate in the Florida Petroleum Liability
and Restoration Insurance Program (FPLRIP) on the ground that the
Trust was not properly enrolled in FPLRIP because although coverage
was in effect when the discharge took place, the insurance policy
had expired by the time the discharge was reported, and the Trust
did not renew its policy. Status: The court reversed and remanded on
December 29, 2004. 890 So. 2d 417.
Mosley v. DEP, Case No. 1D04-1614. Appeal of a DEP
final order dismissing Mosley's petition for administrative hearing
as being untimely filed when it was 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: The court
affirmed per curiam December 28, 2004. 889 So. 2d 76.
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:
Notice of appeal filed September 1, 2004; 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: Oral argument has been scheduled for May 24.
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 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:
DEP's motion to dismiss was denied January 7; fully briefed; oral
argument has been requested.
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: The court affirmed per curiam on
December 27, 2004. 889 So. 2d 75.
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: The court affirmed per curiam on
February 22. 2005 WL 405485.
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: The court affirmed per curiam on March 2.
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: The
court affirmed per curiam on February 18.
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: Oral argument was
held February 22.
River Place Condominium Association at Ellenton, Inc. v. Benzing,
Case No. 2D04-1489. Appeal of an order from circuit court granting
final summary judgment in a quiet title action in favor of the
Benzings, holding that they are the proper owners of lands formerly
submerged beneath the Manatee River and subsequently exposed by
dredge and fill activities. River Place argued that it was the
proper owner pursuant to section 253.12(9) because it is the record
owner of the immediately adjacent upland property, while the
Benzings argued they are the proper owners because they are the
record owners of the filled lands. Status: The court affirmed on
December 22, 2004. 890 So. 2d 386.
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 contested the denial of
attorney's fees. Status: On January 14, the court reversed the
finding of liability and remanded for the imposition of attorney's
fees and costs against DEP. DEP's motion for rehearing was denied on
March 2. 30 Fla. L. Weekly D215.
Cole v. City of Deltona, Case No. 5D03-3289. Appeal of a
non-final circuit court order denying Cole's motion for an emergency
temporary injunction in a suit Cole filed challenging the procedural
due process the City used in approving the site plan of a Dollar
General Store proposed to be constructed near the entrance of Cole's
residential neighborhood. Cole argues on appeal that the trial court
erred in applying a "special damages" standard in determining
whether Cole adequately alleged and demonstrated the "likelihood of
irreparable harm" required for a party to be entitled to a
preliminary injunction. Status: The court reversed and remanded on
December 30, 2004. 890 So. 2d 480.
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: Fully briefed; oral argument has
been requested.
U.S. SUPREME COURT
DLX, Inc. v. Commonwealth of Kentucky, Case No.
04-1018. Petition to review a 6th Circuit decision affirming a
district court decision, based on the principle of sovereign
immunity, barring DLX from bringing suit alleging a regulatory
taking against Kentucky in federal court. 381 F.3d 1511 (6th Cir.
2004). Status: Petition filed January 25.
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.
Appolo Fuels v. U.S., Case No. 04-907. 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) reh'g and reh'g en
banc denied, (Fed. Cir. Oct. 7, 2004). Status: Petition denied
February 28.
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.
SECOND 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: On February 28, the court
upheld portions of the rule and vacated and remanded others to EPA
for reconsideration, holding that certain aspects of the rule
violate the CWA or are otherwise arbitrary and capricious under the
federal Administrative Procedures Act. 35 ER 20049.
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, 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.
SIXTH CIRCUIT
Ellis et al. v. Gallatin Steel Company et al.,
Case No. 02-6421. Appeal of a district court decision dismissing a
citizen's suit brought under the Clean Air Act against Gallatin
Steel based on the fact that the company had entered into a consent
decree with EPA to resolve the alleged air violations that was
lodged with the court on the eve of an injunction hearing on the
matter. The decision appears to conflict with appellate decisions in
the 2nd, 8th, and 7th Circuits. Status: The court affirmed on
October 26, 2004. 390 F.3d 461.
American Canoe Association, et al. v. City of Louisa Water & Sewer
Commission, et al., Case No. 02-6018. Appeal of a
district court dismissal of a citizen's suit brought under the Clean
Water Act alleging the water commission and its wastewater treatment
plant failed to file monitoring reports required under the plant's
NPDES permit. The lower court dismissed the suit on the grounds that
the American Canoe Association and Sierra Club lacked standing.
Status: In a precedential decision, the court held on November 1
that the environmental groups had standing to sue under the Clean
Water Act, both on their own behalf and on behalf of their members,
because the failure to file the reports amounted to an
"informational injury" to the plaintiffs. 389 F.3d 536.
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: The court dismissed the
appeal on February 8, holding that the agreement between Utah and
the Department was not a final appealable judgment. 396 F.3d 1281.
ELEVENTH CIRCUIT
Legal Envt'l Assistance
Foundation, Inc. v. EPA, Case No. 03-16439. Petitions
seeking review of EPA's decisions not to take any enforcement action
against Florida's Title V Clean Air Act permit program and Alabama's
Title V Clean Air Act permit program (consolidating two separate
petitions) for alleged program deficiencies or to otherwise declare
the Title V programs to be inconsistent with the Clean Air Act.
Status: On February 23, the court denied the petitions, holding that
the environmental groups lack standing to challenge EPA's
determinations because they have failed to demonstrate an injury in
fact; judicial review of any particular Title V permit decision
remains available. 2005 WL 419086.
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, 2004,
the Court vacated the rule. 374 F.3d 1363, opinion modified on
denial of reh'g, 393 F.3d 1315 (D.C.Cir. Jan. 7, 2005).
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, 2004.
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 has convened proceedings to reconsider the rule and is
required to file status reports. The latest status report was filed
February 22.
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's latest state report was filed January 6; the next
report is due March 7.
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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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