January 2007

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

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.