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Note:
Status of cases is as of December 8, 2006. Readers are encouraged
to advise the authors of pending appeals that should be included.
FLORIDA SUPREME COURT
Best Diversified, Inc., and Peter L. Huff, et al. v. Osceola
County, et al. v., Case Nos. SC06-1823. Petition to review
decision of Fifth DCA reversing award of damages for inverse
condemnation under the Bert J. Harris Jr. Private Property Rights
Protection Act to owner and operator of a construction and
demolition debris landfill that was denied permits to continue
operating the landfill due to residents’ complaints and DEP’s
finding that the operation constituted a public nuisance. 31 Fla. L.
Weekly D2143. Status: Petition denied on December 4.
Brevard County v. Stack, Case No. SC06-1616. Petition
to review decision of the Fifth DCA rejecting County's arguments
that the Bert J. Harris, Jr., Act is unconstitutional. 932 So.2d
1258. Status: Jurisdictional briefs have been filed.
Florida Department of Environmental Protection, et al. v. Save
Our Beaches, Inc, et al., Case No. SC06-1447 and 1449.
Petition to review decision of First DCA relating to DEP's final
order allowing the renourishment of 6.9 miles of beaches and dunes
within the City of Destin and Walton County. 31 Fla. L. Weekly
D1173. The First DCA certified as question of great public
importance whether the Beach and Shore Preservation Act (Part I of
Chapter 161) has been applied unconstitutionally so as to deprive
the members of Stop the Beach Renourishment, Inc. of their riparian
rights without just compensation for the property taken, so that the
exception provided in Rule 18-21.004(3), exempting satisfactory
evidence of sufficient upland interest if the activities do not
unreasonably infringe on riparian rights, does not apply. Status:
Petition granted; reply brief due December 19.
FIRST DCA
Florida Hometown Democracy, Inc., et al. v. Sue M. Cobb, in
her official capacity as Florida Secretary of State, Case
No. 1D06-5059. Appeal of summary judgment entered in favor of the
defendant. Plaintiff sought to invalidate constitutional amendment,
based on Senate Joint Resolution 2394, which limits summaries
imposed on citizen initiatives. Status: Notice of appeal filed
September 29.
Association of Florida Community Developers v. DEP, Case
No. 1D06-1425. Appeal of final order rejecting challenge to DEP's
so-called Water Reservation Rule. Status: Affirmed on December 12.
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: Affirmed per
curiam on October 30.
SECOND DCA
Peninsular Properties Braden River, et al. v. City of
Bradenton, Florida, Case No. 2D06-5302. Appeal of the lower
court's dismissal of petition as untimely. The petition for review
of the City of Bradenton's denial of petitioners' Mira Isles project
was filed fifty-one days later, rather than the jurisdictional
thirty-day timeframe for seeking judicial review of local government
action. The trial court determined it was without jurisdiction to
rule on the merits of the petition. Status: Notice of Appeal filed
November 20.
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 Administrative 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:
Affirmed per opinion on November 15; motion for clarification,
rehearing, rehearing en banc filed November 30.
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; jurisdiction relinquished to the Department of Community
Affairs on July 12 (for 120 days); joint status report filed
November 27 (recommending case remain with the DCA through October
15, 2007).
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: Oral argument held November 7.
Volusia County School Board v. Volusia Home Builders
Association, Inc., Case No. 5D05-3535. Appeal of an
administrative ruling that the School Board's recommendation to the
Volusia County Council to increase the school impact fee constituted
either the enactment of a rule or the amendment of a pre-existing
rule. Status: Held that the recommendation to increase the impact
fee was neither a rule nor an amendment and that the Volusia Home
Builders Association lacked standing to challenge the
recommendation; motion for rehearing or clarification/motion for
rehearing en banc filed December 4.
U.S. SUPREME COURT
Baccarat Fremont Developers LLC v. U.S. Army Corps of
Engineers, Case No. 06-619. Petition for review of Ninth
Circuit ruling that the Corps does not need “significant
hydrological and ecological connection” between wetlands and
adjoining streams to exert authority (425 F.3d 1150), in light of
Justice Kennedy’s concurring opinion in the Rapanos case, which also
addressed the issue of wetlands jurisdiction. [Author’s Note: The
Rapanos case (126 S.Ct. 2208) was decided on June 19, 2006, and is
summarized in this column in the October 2006 issue of the
Reporter.] Status: Petition filed November 1.
United States v. Atlantic Research Corp., Case No.
06-562. Petition to review an Eighth Circuit decision finding an
implied right to contribution under Section 107(a) of CERCLA. 459
F.3d 827 (8th Cir. 2006). Status: Petition filed October 24.
EPA v. Defenders of Wildlife, Case No. 06-549. Request
for review of a Ninth Circuit finding that EPA violated the
Endangered Species Act by not consulting with the U.S. Fish and
Wildlife Service when granting NPDES permitting authority to Arizona
under Section 402(b) of the Clean Water Act. 420 F.3d 946 (9th Cir.
2005). Status: Petition filed October 23; various amicus briefs
filed.
D. C. Water and Sewer Authority v. Friends of the Earth, Inc., Case
No. 06-119. Petition to review a D.C. Circuit ruling that the word
"daily" in the phrase "total maximum daily loads" (TMDL) in the CWA
means "every day" under the plain language of the statute. Status:
Petition filed July 21; response time extended to October 25.
W.R. Grace & Co., et al. v. United States, Case No.
05-1363. Petition to review a Ninth Circuit decision finding mine
owners liable under CERCLA for cleanup costs incurred responding to
contamination from mining operations. 429 F.3d 1224, 61 ERC 1865
(9th Cir., 2005). Status: Petition denied October 10.
United Haulers Association, Inc., et al. v. Oneida-Herkimer Solid
Waste Management Authority, et al., Case No. 05-1345. Petition to
review a Second Circuit decision holding that a local flow-control
ordinance did not violate the Commerce Clause and that any burden on
commerce imposed by the ordinance is “insubstantial” and not
excessive. 438 F.3d 150 (2nd Cir. 2006). Status: Oral argument
scheduled for January 8, 2007.
Massachusetts v. EPA, Case No. 05-1120. Review of a
D.C. Circuit decision that EPA did not violate the CAA in declining
to regulate carbon dioxide emissions (i.e., “greenhouse gases”) from
automobiles. 415 F.3d 50, 60 (D.C. Cir. 2005). Status: Oral argument
held November 29.
Environmental Defense v. Duke Energy Corp., Case No.
05-848. Review of Fourth Circuit decision narrowing the scope of the
New Source Review/Prevention of Significant Deterioration (NSR/PSD)
air pollution construction permitting program under the Clean Air
Act (CAA) to require EPA to interpret an emissions increase that
triggers NSR/PSD requirements as an increase in the maximum hourly
emissions rate of a plant rather than as an increase in actual
annual emissions. This effectively ended the enforcement action
brought against Duke Energy. 411 F.3d 539, 60 ERC 1577 (4th Cir.
2005). Status: Oral argument held November 1.
FIRST CIRCUIT
United States v. Johnson, Case No. 05-1444. Appeal of
a district court ruling that the Johnsons (Massachusetts cranberry
growers) had violated the Clean Water Act by discharging dredged and
fill material into wetlands without a permit. The First Circuit
originally upheld the district court’s summary judgment in favor of
the government (437 F.3d 157), but subsequently agreed to rehear the
case after the Supreme Court ruled in Rapanos, which also addressed
the issue of federal jurisdiction over wetlands. Status: On October
31, the court remanded to the district court, concluding that more
fact-finding must occur before the district court can establish CWA
jurisdiction over privately owned wetlands that a linked to
tributaries of navigable rivers, and that the court should consider
the Supreme Court’s dissenting opinion in Rapanos. [Author’s Note:
The Rapanos case (126 S.Ct. 2208) was decided on June 19, 2006, and
is summarized in this column in the
October
2006 issue of the Reporter.]
NINTH CIRCUIT
Northern California River Watch v. City of Healdsburg,
Case No. 04-15442. Appeal to the Ninth Circuit of a district court
decision holding that the City violated the CWA by discharging
sewage into waters of the U.S. without obtaining a NPDES permit. The
body of water in question is known as "Basalt Pond," and is a rock
quarry pit that had filled with water from the surrounding aquifer
and was located next to the Russian River. Issue was whether Basalt
Pond qualifies as waters of the U.S. Basalt Pond is separated from
the Russian River by a levee which varies between fifty and several
hundred feet in width – there is no surface connection. Water from
Basalt Pond drains into the surrounding aquifer and much of it ends
up in the Russian River. Wetlands are considered "navigable waters"
if the wetlands have a "significant nexus" to navigable-in-fact
waterways. A significant nexus exists "if the wetlands, either alone
or in combination with similarly situated lands in the region,
significantly affect the chemical, physical, and biological
integrity of other covered waters more readily understood as
'navigable.' " Status: On August 10, the Ninth Circuit affirmed,
concluding that Basalt Pond and its wetlands does "possess such a
'significant nexus' to waters that are navigable in fact, because
the Pond waters seep directly into the navigable Russian River." The
court based its decision on Justice Kennedy's "significant nexus"
test in the Rapanos decision, which the Ninth Circuit concluded was
the narrowest grounds on which the most justices agreed. 457 F.3d
1023. [Author’s Note: The Rapanos case (126 S.Ct. 2208) was decided
on June 19, 2006, and is summarized in this column in the October
2006 issue of the Reporter. Also, a petition to review the Ninth
Circuit’s decision has been filed with the U.S. Supreme Court. See
supra.]
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 CWA 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: The
Court affirmed on October 14, 2006; motion for rehearing filed in
light of the Rapanos decision, then-pending in the Supreme Court.
[Author’s Note: The Rapanos case (126 S.Ct. 2208) was decided on
June 19, 2006, and is summarized in this column in the October 2006
issue of the Reporter.] Rehearing and rehearing en banc denied
August 3; petition for review has been filed in the U.S. Supreme
Court. See supra.
ELEVENTH CIRCUIT
United States v. Alabama Power Co., Case No. 06-15456.
Appeal of a decision that the federal government used the wrong
interpretation of what constituted an emissions increase in charging
that Alabama Power violated NSR by modifying power plants and
increasing emissions without installing the required modern
pollution controls. EPA interprets “emissions increase” as an
increase in actual emissions measured on an annual basis. The
company argued that “emissions increase” should be interpreted as an
increase in the maximum potential hourly emissions rate. 37 ER 2118
(10/20/06). See also, Duke Energy, supra. Status: The court issued a
memorandum on October 24 questioning its own jurisdiction in the
case. On November 14, the court granted a motion to stay this case
until the U.S. Supreme Court reaches a decision in Duke Energy,
supra.
State of Alabama v. U.S. Army Corp. of Engineers, Case
No. 06-14211. State of Florida appeal of a Northern District of
Alabama ruling denying the State’s request for more water to be
diverted to the Apalachicola River from Lake Lanier and other
Georgia reservoirs in order to protect shellfish and other natural
resources in Apalachicola Bay. Status: Motion to dismiss the appeal
as moot granted November 14.
D.C. CIRCUIT
Minnesota Power v. EPA, Case No. 05-1246, and 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 to reduce
emissions of sulfur dioxide and nitrogen oxides from power plants.
Status: Petition filed July 11; proposed briefing format and
schedule filed by EPA on September 11.
Environmental Defense v. EPA, Case No. 05-1159, and
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: Petition filed May 18,
proposed briefing format and schedule was filed by EPA on August 29.
Stacy
Watson May,
stacy.watsonmay@hklaw.com, received her J.D. from The John
Marshall Law School in 1997. She practices in the Jacksonville and
Orlando offices of Holland + Knight LLP.
Lawrence E. Sellers, Jr.,
larry.sellers@hklaw.com, received his J.D. from the University
of Florida College of Law in 1979. He practices in the Tallahassee
office of Holland + Knight LLP.
Susan L. Stephens,
susans@hgslaw.com, received her J.D. from the Florida State
University College of Law in 1993. She is of counsel at Hopping
Green & Sams in Tallahassee.
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