MICCOSUKEE TRIBE OF INDIAN AND THE FRIENDS OF THE EVERGLADES v. NEW HOPE SUGAR et al, 906 So.2d 1064 (Fla. 1st DCA 2005) - Petitioners challenged an Administrative Law Judge’s (ALJ) final order upholding the Everglades phosphorus rule (62-302.540, F.A.C.) as a valid exercise of DEP’s delegated legislative authority. On July 19, 2005, the First DCA issued a per curiam affirmance without opinion (PCA) in the consolidated appeals brought by the Miccosukee Tribe and the Friends of the Everglades to challenge ALJ Maloney’s June 2004 final order. The rule establishes a phosphorus standard of 10 parts per billion for the entire freshwater area of the Everglades Protection Area and requires the use of best available phosphorus reduction technology to ultimately achieve the water quality standard. As part of its intensive schedule designed to improve water quality in America’s Everglades, the State is operating more than 36,000 acres of constructed wetlands that use plants to remove nutrients naturally from water flowing into the 2.4 million-acre marsh. Florida is on schedule to construct an additional 5,000 acres of treatment marsh by 2006 and another 15,000 acres by 2009. The appellants did not file a motion for rehearing nor did they seek further review with the Florida Supreme Court.

DEPARTMENT OF ENVIRONMENTAL PROTECTION v. HENRY HARDY, JR. and MARY HARDY, 907 So.2d 655 (Fla. 5th DCA 2005) - On July 29, 2005, the Fifth DCA reversed a judgment and jury verdict of over $1.5 million against DEP for an alleged loss of property and other profits. The suit began as a mortgage foreclosure action brought by AVCO Financial Services of Florida, Inc. against the Hardys and DEP, which held a lien on the Hardys' property. The Hardys then filed cross-claims against DEP for negligence, negligent supervision and trespass. In 1991, DEP conducted an inspection of the Hardy’s business, AAA Tree Service, after receiving complaints that they were filling their wetlands and despoiling Lake Griffin, in Longwood, Florida. When the Hardys failed to restore the wetlands, DEP initiated formal wetlands and solid waste proceedings. Although the Court noted that the Hardys failed to identify a basis for the claims until day four of the six-day trial, the “negligent enforcement” claims were based on DEP’s alleged wrongful assertion of wetlands jurisdiction. The Fifth DCA concluded that no statutory or common law duty arose with respect to the negligence claim and that the Hardy’s failed to prove any of the elements of negligent supervision or trespass. In ordering the lower court to enter a judgment for DEP, the DCA went on to explain that the state’s obligation to investigate complaints and enforce environmental regulations are discretionary functions and therefore are immune from suit pursuant to Trianon Park Condo Ass’n v. City of Hialeah, 468 So.2d 912 (Fla. 1985).

BUTLER CHAIN OF CONCERNED CITIZENS, INC. v. DEP, 907 So. 2d 1257 (Fla. 1st DCA 2005) - On July 29, 2005, the First DCA per curiam affirmed a DEP final order issued by the Department on August 2, 2004, after an administrative hearing conducted in December 2003. The final order held that Butler Chain of Concerned Citizens (BCCC) lacked standing to challenge a May 2003 consent order between Windermere Botanical Garden (WBG) and the Department. The May 2003 consent order addressed dredge and fill violations committed by WBG in wetlands and surface waters of Lake Butler, in Orange County, by requiring WBG to pay a civil penalty. The ALJ concluded that BCCC did not have standing to challenge the consent order because BCCC did not meet the first prong of the three-pronged test established in Agrico Chemical Co. v. Dept. of Environmental Regulation, 406 So.2d 351 (Fla. 1982); the ALJ found that petitioner’s substantial interests were not adversely affected by the proposed agency action.

BEVERLY PENZELL, et al., vs. M & M CONSTRUCTION GROUP CORP., et al., 30 Fla. L. Weekly D2110a – On September 7, 2005, the Third DCA held that a DEP lien took priority over an assigned mortgage when distributing the excess proceeds of a tax sale. DEP had obtained a final judgment against of the property owner, Dana Investments, Inc.(Dana) on February 12, 2003 and properly recorded it in April 2003. In finding Dana and its co-defendants liable for RCRA and CERCLA violations, the judgment granted injunctive relief ordering an immediate site assessment and any necessary cleanup, and retained jurisdiction to determine civil penalties. Due to Dana's failure to pay property taxes, the property was sold at a tax sale on December 3, 2004 to M & M Construction Group Corp.(M&M), which resulted in excess proceeds of $122,600. On January 20, 2004, Bank of America assigned its mortgage on the property to Beverly Penzell. M&M filed an action to quiet title on its tax deed and both Penzell and DEP sought distribution of the excess proceeds. The DCA recognized that §197.582(2), Fla. Stat., requires that governmental liens be satisfied before other claims and therefore DEP’s lien took priority over Penzell's mortgage. Additionally, the Court noted that Penzell had actual or constructive notice of DEP's April 2003 recorded judgment. The Court also found that the judgment, which established liability but did not fix a monetary award amount, constituted a valid lien because it ordered the parties to comply with clear and definite tasks, and thus created a duty to obey, not a mere expectancy, thereby distinguishing Perez v. Pearl, 411 So.2d 972 (Fla. 3d DCA 1982).

OSCEOLA COUNTY, FLORIDA, ET AL. v. BEST DIVERSIFIED, INC., AND PETER L. HUFF, ET AL., 30 Fla. L. Weekly D1831 - On July 29, 2005, the Fifth DCA reversed a judgment and jury verdict against DEP in an inverse condemnation case where the plaintiffs failed to seek appropriate administrative and judicial review of DEP’s and Osceola County’s actions. Not only did plaintiffs dismiss their administrative appeal of DEP’s permit renewal denial, but they also filed a notice specifically “accepting” DEP’s and the County’s actions and waving any further right to challenge those actions. Plaintiffs alleged that defendants had made it impossible for plaintiffs to operate a landfill on their property as a result of DEP's permit denial and the County's denial of a request for a conditional use. Plaintiffs further alleged that the defendants' actions made it impossible for the plaintiff to close the construction and demolition debris landfill. In 1996, after investigating odor complaints, DEP found that the plaintiffs’ operation constituted a public nuisance. Prior caselaw has held that a regulation controlling a public nuisance cannot effect a taking, see Keshbro, Inc. v. City of Miami, 801 So.2d 864 (Fla. 2001). Therefore, the Court found that there had been no taking as a result of the operation of the landfill. However, the Court did find that when the County prohibited Huff from bringing in clean fill to grade, slope and prepare the site for closure in accordance with DEP’s rules, that act denied Huff all reasonable economic use of the land, thereby preserving that portion of the judgment against Osceola County. This case also includes an interesting 5 page concurrence/dissent by Judge Griffin in which she concludes that the $1.5 verdict is the largest verdict based on the least evidence she has ever seen and the verdict should be reversed in its entirety.