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Note:
Status of cases is as of March 8, 2006. Readers are encouraged
to advise the authors of pending appeals that should be included.
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FIRST DCA
Victor Lambou, et al. v. Wakulla County, et al., Case
Nos. 1D05-1722 and -2990. Consolidated appeals of non-final agency
action by the Department of Community Affairs partially dismissing
petitions for hearing on consistency of Wakulla County comprehensive
plan amendment. The petitions were denied because partial dismissal
of a complaint is only reviewable when it is established that the
dismissed claims are not legally and factually interrelated with the
remaining claims. Status: Petitions denied January 31, 2006.
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.
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 Rule 62-770(3)(b) and (4). Status: Notice
of Appeal filed February 17, 2006.
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 are aimed at allowing
greater voter input into the process for adoption of the City's
comprehensive plan or its amendments. Status: Notice of appeal filed
February 8, 2006.
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; initial brief filed
October 27, 2005.
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:
Oral argument held October 5, 2005.
FIFTH DCA
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
Arkansas v. Oklahoma, Case No. 220133. Arkansas sought
relief, asking the Court to exercise its original jurisdiction to
hear a dispute between Arkansas and Oklahoma under CERCLA. Oklahoma
seeks to hold poultry growers in Arkansas liable for contamination
allegedly caused by concentrated animal feeding operation. Status:
Motion for leave to file a bill of complaint on November 7, 2005,
denied February 21, 2006.
S. D. Warren Co. v. Maine Board of Environmental Protection,
Case No. 04-1527. A coalition of 34 states filed an amicus brief in
this action to urge the Court to preserve the states' authority to
block federal agencies from issuing operating permits absent the
state's water quality certification as required by Section 401 of
the Clean Water Act. Status: Oral argument held February 21, 2006.
Environmental Defense v. Duke Energy Corp., Case No.
05-848. Appeal by citizen groups of Fourth Circuit decision which
rejected EPA's regulatory definition of emission as an increase in
actual emissions measured on an annual basis under the Clean Air
Act, effectively ending enforcement actions against Duke Energy. EPA
had alleged that Duke Energy failed to obtain a prevention of
significant deterioration permit before making modifications to its
plants. Status: Petition filed December 28, 2005.
Beazer East, Inc. v. Mead Corp., Case No. 05-524. Appeal of Third
Circuit decision that held magistrates may not make allocation
distribution decisions in a CERCLA contribution action because they
are beyond "additional duties" as defined by The Magistrate Act.
Status: Petition denied January 9, 2006.
Seven Up Pete Venture v. Montana, Case No. 05-588.
Appeal by mining company of Montana Supreme Court's determination
that even though the state's ban on open pit gold and silver mining
using cyanide leaching constituted a substantial impairment of a
contractual agreement with the state, it was not a taking of the
company's property rights and did not violate Montana’s or United
States’ constitution. Status: Petition denied February 21, 2006.
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. Status:
Petition filed November 11, 2005.
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 whether
the Clean Water Act requires permits for discharges into wetlands
not currently connected hyrdrologically to navigable waters. Status:
Oral argument held February 21, 2006.
SEVENTH CIRCUIT
In re Cinergy Corp., Case No. 05-8025. 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, 2006.
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: Affirmed on October 14, 2005. Motion for rehearing pending.
ELEVENTH CIRCUIT
Atlantic Green Sea Turtle, et al. v. County Council of Volusia
County, et al., Case No. 05-13683. Appeal of an order
dismissing counts of complaint filed under Endangered Species Act
and Administrative Procedure Act. Status: Motion to dismiss appeal
as moot granted; remanded to district court on January 18, 2006.
D.C. CIRCUIT
Association of Home Builders v. U.S. Army Corps of Engineers,
Case No. 04-5221. Appeal of dismissal of challenge to Corps rule
defining term "discharge of dredged materials" to include all
mechanized land clearing within regulated waters. Trade groups
alleged that permit requirement for activities such as bulldozers
clearing trees or digging of channels near lakes and rivers
oversteps the agency's authority, which is limited to activities
that result in "additions" of pollutants. Status: Reversed and
remanded February 3, 2006.
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 status report due
February 9, 2006.
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.
The CAIR implements an emissions trading system to reduce emissions
of sulfur dioxide and nitrogen oxides from power plants. Status: The
cases have been consolidated. EPA’s motion to hold the cases in
abeyance pending agency action is pending.
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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.
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.
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