July 2006

Note: Status of cases is as of June 8, 2006. Readers are encouraged to advise the authors of pending appeals that should be included.

• FLORIDA SUPREME COURT
• FIRST DCA
• SECOND DCA
• THIRD DCA
• FOURTH DCA
• FIFTH DCA
• U.S. SUPREME COURT
• SEVENTH CIRCUIT
• NINTH CIRCUIT
• D.C. CIRCUIT

FLORIDA SUPREME COURT

Advisory Opinion to the Attorney General re: Referenda Required for Adoption and Amendment of Local Government Comprehensive Plans, Case No. SC06-161. Request for advisory opinion regarding proposed constitutional amendment requiring referenda for adoption and amendment of local comprehensive plans. Status: Oral argument held April 3.

FIRST DCA

Association of Florida Community Developers v. DEP, Case No. 1D06-1425. Appeal of final order determining DEP's so-called Water Reservation Rule is not an invalid exercise of delegated legislative authority. Status: Initial Brief filed June 2.

Florida Petroleum Marketers and Convenience Store Association v. DEP, Case No. 1D06-817. Appeal of final order granting attorneys fees on the basis that DEP was not "substantially justified" in promulgating the contamination notification requirements in Rule 62-770(3)(b) and (4). Status: Initial Brief filed by DEP April 28.

Save Our Beaches, Inc, et al. v. Florida Department of Environmental Protection, et al., Case No. 1D05-4086. Appeal of final order entered by DEP which determined that a Joint Coastal Permit and an Authorization to Use Sovereign Submerged Lands that allowed the renourishment of 6.9 miles of beaches and dunes within the City of Destin and Walton County was issued properly. Status: On April 28, the court reversed, 31 Fla. L. Weekly D1173; Motion for Rehearing and Response filed May 26.

Jonesville Properties, Inc., et al. vs. Florida Dept. of Community Affairs and Alachua Co., Case No. 1D05-2432. Appeal of final order determining that proposed amendments to Alachua County comprehensive plan are in compliance. Status: Notice of appeal filed May 23, 2005; motion to dismiss pending; all briefs have been filed.

SECOND DCA

Citizens for Responsible Growth, et al. v. City of St. Pete Beach, Case No. 2D06-550. Appeal of a state court ruling that three of four proposed revisions to the City Charter of St. Pete Beach would not appear on the ballot in a March general election. The proposed revisions would provide for voter input into the process for the adoption of the City's comprehensive plan or amendments thereto. Status: Initial Brief filed May 31.

THIRD DCA

Florida Keys Citizens Coalition, Inc., et al., vs. Florida Administration Commission, et al., Case No. 3D05-1800. Appeal from final order of Division of Administration Hearings finding that proposed Florida Administrative Code rules regarding the comprehensive plans of Monroe County and the City of Marathon are not invalid exercises of delegated legislative authority. Status: Notice of appeal filed July 29, 2005; motion to dismiss pending; Answer Brief filed May 17.

FOURTH DCA

1000 Friends of Florida, et al. v. DCA, Case No. 4D05-2068. Appeal of final order determining that proposed amendments to Palm Beach County comprehensive plan to accommodate the proposed Scripps biomedical campus are in compliance. Status: Response to Court's Order requesting status of Ordinances 2004-34 to 2004-39 and 2004-63 to 2004-64 and whether appeal is moot, filed June 5.

FIFTH DCA

Alfred J. Trepanier, Successor Trustee, et al. v. County of Volusia, Florida, Case No. 5D05-3892. Appeal by owners of oceanfront property from a summary judgment in favor of the County. The owners had sued the County for allowing (and directing) the public to park on property they claim they own. Status: Answer Brief filed March 30.

Osceola County, et al. v. Best Diversified, Inc., and Peter L. Huff, et al., Case Nos. 5D04-216, 5D04-217. Appeal by Osceola County and DEP from a final judgment awarding damages for inverse condemnation under the Bert J. Harris Jr. Private Property Rights Protection Act. Damages were awarded to the owner and operator of a construction and demolition debris landfill that were denied permits to continue operating the landfill due to residents’ complaints and DEP’s finding that the operation constituted a public nuisance. Status: Affirmed in part and reversed in part on July 29, 2005, 30 Fla. L. Weekly D 1831; motion for rehearing en banc pending.

U.S. SUPREME COURT

United Haulers Association, Inc., et al. v. Oneida-Herkimer Solid Waste Management Authority, et al., Case No. 05-1345. Petition for review of a Second Circuit decision which held that the local flow-control ordinance did not violate the Commerce Clause and any burden imposed by the ordinances is "insubstantial" and is not excessive. 438 F.3d 150 (2nd Cir. 2006). Status: Petition filed April 21.

Massachusetts, et al., v. Environmental Protection Agency, et al., Case No. 05-1120. Petition for review of a District of Columbia Circuit decision which upheld EPA's decision in 2003 not to regulate greenhouse gas emissions from automobiles. 433 F.3d 66 (D.C. Cir. 2005). Status: Petition filed March 2; all briefs filed as of May 24.

Indiana Water Quality Coalition v. EPA, Case No. 05-1095. Petition for review of a Sixth Circuit decision which rejected a challenge to EPA's application of its whole effluent toxicity test standards. 411 F.3d 726 (6th Cir. 2005). Status: Petition filed February 21; all briefs filed as of June 5.

Environmental Defense v. Duke Energy Corp., Case No. 05-848. Petition by citizen groups to review a Fourth Circuit decision which rejected EPA's regulatory definition of emissions as an increase in actual emissions measured on an annual basis under the Clean Air Act, effectively ending enforcement actions against Duke Energy. 411 F.3d 539 (4th Cir. 2005). EPA had alleged that Duke Energy failed to obtain a prevention of significant deterioration permit before making modifications to its plants. Status: Petition granted May 15.

North Dakota, Through the North Dakota Department of Health, et al., Petitioners v. United States Army Corps of Engineers, et al., Case No. 05-628. Petition for review of the Eighth Circuit Court of Appeals decision which held that the Clean Water Act does not waive the federal government's sovereign immunity for actions taken for navigation purposes under the Flood Control Act of 1944 and that enforcement of North Dakota's state water quality standards would impair the U.S. Army Corps' authority to maintain navigation on the Missouri River. 421 F.3d 618 (8th Cir. 2005). Status: Petition denied March 20.

Gerke Excavating, Inc. v. United States, Case No. 05-623. On appeal from the Seventh Circuit. Petitioner has asked the Court to review whether the Clean Water Act prohibits discharges into wetlands that do not abut a navigable river. Here, the wetlands are drained by a ditch into a non-navigable creek that runs into a non-navigable river and then into a navigable river. The Seventh Circuit held that the U.S. Army Corp of Engineers did not exceed its authority under the Clean Water Act and that such authority did not exceed the congressional interstate commerce power. The court reasoned that wetlands are "waters of the United States" within the meaning of the Clean Water regardless of distance from a navigable waterway, if water from the wetlands enters a stream that flows into the navigable waterway, and that there is no basis to interpret the regulation as distinguishing between a stream and a ditch. 412 F.3d 804 (7th Cir. 2005). Status: Petition filed November 11, 2005. United States' Brief in Opposition filed January 26.

S. D. Warren Co. v. Maine Board of Environmental Protection, Case No. 04-1527. Petition for review of a decision of the Supreme Judicial Court of Maine which held that the Federal Energy Regulatory Commission may not issue operating permits to operate dams to produce hydroelectricity absent the state's water quality certification required by Section 401 of the Clean Water Act. Status: Affirmed, May 15, 126 S.Ct. 1843 (2006).

Rapanos v. United States, Case No. 04-1034; Carabell v. U.S. Army Corps of Engineers, Case No. 04-1384. A group of property developers has asked the court to review two Sixth Circuit decisions which held that the Clean Water Act requires permits for discharges into wetlands not currently connected hydrologically to navigable waters. 376 F.3d 629 (6th Cir. 2004); 391 F.3d 704 (6th Cir. 2004). Status: Oral argument held February 21.

SEVENTH CIRCUIT

United States v. Cinergy Corp., Case No. 06-1224. Appeal of Southern District of Indiana decision allowing EPA to proceed against Cinergy for alleged new source review violations. Cinergy is charged with increasing its emissions by modifying several electric generating units without upgrading pollution controls. Status: Appeal granted January 3. Oral argument held June 2.

NINTH CIRCUIT

Baccarat Fremont Developers v. U.S. Army Corps of Engineers, Case No. 03-16586. Developer's appeal of district court dismissal of challenge to Corps permit requiring the developer to create freshwater wetlands and maintain wetlands on the site. The court held that the Clean Water Act does not require the Corps to show a "significant hydrological or ecological connection" between the wetlands and adjoining lakes and streams to exercise its authority. Status: Petition filed October 14, 2005.

D.C. CIRCUIT

Minnesota Power v. EPA, Case No. 05-1246; North Carolina v. EPA, Case No. 05-1244. Various petitions challenging EPA’s Clean Air Interstate Rule (CAIR), which was issued March 10, 2005. The CAIR implements an emissions trading system designed to reduce emissions of sulfur dioxide and nitrogen oxides from power plants. Status: The cases have been consolidated. Motion to hold the cases in abeyance pending agency action denied January 20.

Environmental Defense v. EPA, Case No. 05-1159; Chesapeake Bay Foundation v. EPA, Case No. 05-1267. Various petitions challenging EPA’s March 15 rule allowing coal-fired power plants to avoid maximum achievable control technology (MACT) emissions controls for mercury. Status: Petitions filed in July. The cases were consolidated, and a motion by EPA to hold the cases in abeyance pending agency action is pending. EPA filed status report April 7; next status report due June 8.

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: Argued February 8. On March 17, the court vacated the equipment replacement rule. Petition for rehearing/rehearing en banc filed May 1.
 

Stacy Watson May, stacy.watsonmay@hklaw.com, received her J.D. from The John Marshall Law School in 1997. She is a senior attorney who practices in the Jacksonville and Orlando offices of Holland + Knight LLP.

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.