COLUMNS
 On Appeal
Note: Status of cases is as of September15, 1998. Readers are encouraged to
advise the authors of pending appeals that should be included.
Florida Supreme Court
Avatar
Development Corporation v. State of Florida, Case No. 91,424. Petition to review a
Fourth DCA decision reversing a trial court's dismissal of criminal charges against Avatar
for violating a Department of Environmental Protection (DEP) permit issued to stabilize
the banks of a man-made canal. 697 So.2d 561 (Fla. 4th DCA 1997). Status:
Oral argument was held May4.
Florida Wildlife Federation v. Smith, Case No. 92,689. Petition to review a
Fifth DCA decision denying two motions to intervene filed by environmental groups in a
suit concerning title to lands separated from Lake Poinsett by dikes. 707 So.2d 841 (Fla.
5th DCA 1998). Status: Petition denied on June19 for lack of jurisdiction.
Metropolitan Dade County v. Chase Federal Housing Co., Case No. 93,833. Petition
to review a Third DCA decision holding that Florida's drycleaning contamination cleanup
program is retroactive and precludes local government enforcement actions and cost
recovery claims. 705 So.2d 674 (Fla. 3d DCA 1998). Status: The lower court
certified the question to the Supreme Court on January28; jurisdictional brief due
September28.
Lee v. Williams, Case No. 93,124. Petition to review a Fifth DCA decision
rejecting an attempt to extend state sovereignty ownership and public rights of use to
tidals underlying non-navigable inlets and canals. 711 So.2d 57 (Fla. 5th DCA 1998). Status:
Petition denied on September15.
First DCA
Environmental Trust v. DEP, Case Nos. 96-4341, 97-0255, 97-0770 and 97-3909.
Appeal from DOAH final orders holding that DEP's policies regarding factoring and general
contractor markup under the petroleum contamination cleanup reimbursement program were
unpromulgated rules and that DEP's proposed rule on this subject was invalid, as it
retroactively affected vested reimbursement rights and assessing attorney's fees and costs
against DEP. Status: The court reversed on June3. 23 Fla. L. Weekly D1344
(June3, 1998). Rehearing denied July24.
Marine Fisheries Commission v. Crum & Pringle, Case No. 98-1500. Appeal of a
circuit court decision holding that larger-mesh nets, comprised of both two-inch and
three-inch mesh, used by two Wakulla County fishermen do not violate the state
constitution's net ban. Status: All briefs have been filed. Editor's Note:
The appellees have also filed a contemporaneous motion of suggestion of Supreme Court
jurisdiction with the Florida Supreme Court. The Supreme Court has not yet ruled on the
motion.
Crum, Pringle & Arnold v. Marine Fisheries Commission, Case No. 98-979.
Appeal of a DOAH final order upholding changes in the Commission's rules establishing a
two-inch maximum mesh size for seine nets, to clarify the difference between seine nets
and gill nets. DOAH Case No. 96-5868RP (Feb.20, 1998). Status: Amended
initial brief filed August17.
Environmental Confederation of Southwest Florida v. Department of Community Affairs,
Case No. 98-206. Appeal from a DCA final order concluding that agriculture is exempt from
the definition of development for purposes of Chapter 163, Part II. The final order
rejected the administrative law judge's (ALJ) finding that agricultural uses within the
Big Cypress area of critical state concern would have unacceptable impacts on wildlife and
that the plan amendments adopted by Collier County were not "in compliance with
Chapter 163, Part II," as that term is defined in Section 163.3184(1)(b), Florida
Statutes. Status: All briefs have been filed; oral argument scheduled for
October1.
Department of Environmental Protection v. Allied Scrap Processors, Case No.
97-4905. Appeal of a trial court order granting the defendants' motion for summary
judgment on the ground that Florida statutes creating liability for contamination of
property did not apply retroactively. Status: All briefs have been filed.
Friends of Nassau County v. Fisher Management Co., Case No. 97-4285. Appeal of a
St. Johns River Water Management District (SJRWMD) order requiring two attorneys and their
client to pay over $50,000 in fees and costs in connection with filing three petitions
challenging the District's intent to issue permits to construct a shopping center and
associated improvements. The ALJ concluded the petitions were improperly filed solely to
delay the project. ER FALR 97:197 (SJRWMD Oct.8, 1997). Status: Oral
argument was held on July29; a motion to relinquish jurisdiction is pending.
Grand Dunes, Ltd. v. Walton County, Case No. 97-1590. Appeal from a final order
of the Florida Land and Water Adjudicatory Commission (FLWAC) upholding the right of the
Edgewater Beach Owners Association to challenge a Development of Regional Impact (DRI)
development order issued by the county. Status: On May12, the court vacated
and remanded for dismissal of the Association's petition for review. 23 Fla.L.Weekly D1228
(May12, 1998).
Calder Race Course, Inc. v. Department of Business and Professional Regulation,
Case No. 97-2704. Appeal of a DOAH final order invalidating a proposed DBPR rule
authorizing routine searches by Division of Pari-Mutuel Wagering personnel, on the grounds
that there was no specific authority for the rule. DOAH Case No. 96-0343RP (June 13,
1997). Status: The court affirmed on July29. 1998 WL 422515.
St. Johns River Water Management District v. Consolidated Tomoka Land Co., Case
No. 97-2996. Appeal of a DOAH final order invalidating portions of a proposed SJRWMD rule
creating the Tomoka River and Spruce Creek Hydrological Basins and setting standards
therein, on the ground that the rules were not authorized by a specific law, as required
by the 1996 amendments to the Administrative Procedure Act (APA). ER FALR 97:132 (DOAH
June27, 1997). Status: The court reversed on July29. 1998 WL 422566.
Second DCA
Southwest Florida Water Management District v. Charlotte County, Case No.
97-01626. Appeal of a DOAH final order invalidating portions of proposed SWFWMD rules for
the Southern Water Use Caution Area. ER FALR 97:104 (DOAH March 26, 1997). Status:
All briefs have been filed; oral argument has been requested.
Third DCA
Florida Bay Initiative, Inc. v. Department of Transportation and South Florida Water
Management District, Case Nos. 97-02071 and 97-2222. Appeal of a SFWMD order issuing
three permits to DOT associated with the widening of U.S. 1. ER FALR 97:121 (SFWMD June
20, 1997). Status: Notice of appeal filed July 18, 1997. On October15, 1997,
the court issued an order granting a stay pending conclusion of a contemporaneous appeal
to FLWAC. On March12, the court denied a writ of mandamus to compel FLWAC to review the
case. A status report was filed May20.
Metropolitan Dade County v. DEP, Case No. 97-2126. Appeal of a DEP final order
determining that untimely compliance with an order to remediate does not preclude
participation in the drycleaning cleanup program and finding a landlord eligible to
participate in the drycleaning cleanup program, over the objection of county officials
that the landlord had committed gross negligence by failing to comply with county cleanup
requests. ER FALR 97:127 (DEP June 27, 1997). Status: The court affirmed on
June10. Motions for rehearing and for certification to the Supreme Court were denied on
July29. 32 Fla.L.Weekly D1393 (June10, 1998).
JI 441, Inc. v. Dade County, Case No. 97-01754. Appeal of preliminary injunction
determining that Petroleum Cleanup Program litigation bar did not preclude Dade County's
enforcement action against a program-eligible location. Status: The court
granted a stay until October15, 1998; a status report is due on that date.
Fourth DCA
Nelo Freijomel v. City of Stuart and Albert Kruger, Case No. 97-0072. Appeal
from a DOAH final order finding DEP's arsenic soil cleanup goals to be an illegal rule. ER
FALR 97:004 (DOAH Dec.9, 1996). Status: The court affirmed on July1. Motion
for rehearing denied August10.
Fifth DCA
Board of Commissioners of Pinellas County v. Gilliam Clarke, et al., Case No.
97-767. Appeal of a trial judge's order dismissing with prejudice the County's suit
against eight water activists, seeking a determination that the County cannot be held
liable for the low water levels in lakes and wetlands near its wellfields. Status:
Oral argument was held March11.
Florida Power Corporation v. DEP, Case No. 98-858. Appeal of a DEP final order
denying Florida Power an air construction permit on the ground that Florida Power's
proposal to burn a blend of petroleum coke and coal was not exempt from Prevention of
Significant Deterioration (PSD) review. Status: On June2, the court granted
an extension until July6 to file the record and index of the proceeding below.
FLWAC
Florida Bay Initiative, Inc. v. DOT and SFWMD, Case No. RFR 97001. Appeal of a
SFWMD order issuing three permits to DOT associated with the widening of U.S. 1. ER FALR
97:121 (SFWMD June 20, 1997). Status: Status report filed on July6. Editor's
Note: Contemporaneous appeal to Third DCA has been stayed pending conclusion of the FLWAC
proceedings.
Florida Audubon Society v. SFWMD, Case No. RFR 98-001. Appeal of a SFWMD order
issuing a permit for development of over 300 acres within Water Protection Area (WPA) Cell
19 in Broward County. Status: Hearing held on September23.
U.S. Supreme Court
Seif v. Chester Residents Concerned for Quality Living, Case No. 97-1620.
Petition to review a Third Circuit decision holding that the plaintiffs could pursue their
claims that the State of Pennsylvania discriminated against residents of the predominantly
black town of Chester in its waste siting decisions. 132 F.3d 925 (3d Cir. 1997). Status:
Certiorari granted June8. The petition was dismissed as moot on August17, because the
permit for the proposed hazardous waste treatment facility at issue was revoked. The court
also vacated the Third Circuit's decision as moot, and remanded for dismissal. 1998 WL
477242 (Aug.17, 1998).
Hoechst Celanese v. United States, Case No. 97-1578. Petition to review a Fourth
Circuit decision upholding the Environmental Protection Agency's (EPA) interpretation of
its fugitive benzene emissions rule and that the company was liable for violating the
rule, as it had fair notice of the rule, despite EPA's changing interpretation and despite
following state guidance that had been endorsed by EPA staff. 128 F.3d 216 (4th Cir.
1997). Status: Petition denied June26.
Kuiper v. American Cyanamid, Case No. 97-1453. Petition to review a Seventh
Circuit decision holding that the Federal Insecticide, Fungicide and Rodenticide Act
(FIFRA) preempts state common law damage claims brought by farmers against American
Cyanamid. 131 F.3d 656 (7th Cir. 1997). Status: Petition denied May26.
National Association of Home Builders v. Babbitt, Case No. 97-1451. Petition to
review a D.C. Circuit decision upholding the constitutionality of the Endangered Species
Act as applied to prohibit the "taking" of the Delhi Sands Flower-Loving fly
found only in California, on Commerce Clause grounds. 130 F.3d 1041 (D.C. Cir. 1997).
Status: Petition denied June22.
Zollo Dru, Inc. v. B. F. Goodrich, Case No. 97-241. Petition to review a Second
Circuit decision holding a successor corporation liable under the Comprehensive
Environmental Response Compensation and Liability Act (CERCLA) for the liability of the
business whose assets it purchased if there is "substantial continuity" between
the buyer and seller's business. B.F. Goodrich v. Betkoski, 112 F.3d 88 (2d Cir.
1997). Status: Petition denied June15.
United States v.
Bestfoods, Case No. 97-454. Petition to review a Sixth Circuit decision holding
that CPC and Aerojet, parent corporations of two prior owners of a Superfund site, could
not be held liable under CERCLA unless they would be liable under state veil-piercing
principles. United States v. Cordova Chemical Co. of Mich., 113 F.3d 572 (6th Cir.
1997). Status: The court vacated and remanded on June8. 118 S.Ct 1876.
Donahey v. Livingstone, Case No. 97-1163. Petition to review a Sixth Circuit
opinion holding that the sole shareholder and chairman of the board of a company that
burned and buried hazardous waste is not liable under CERCLA. 129 F.3d 838 (6th Cir.
1997). Status: Certiorari granted and judgment vacated on June15. Remanded
to lower court for further consideration in light of UnitedStates v. Bestfoods, supra,
188 S.Ct. 2317 (Mem).
Michigan Department of Environmental Quality v. Bestfoods, Case No. 97-296.
Petition to review a Sixth Circuit decision holding CPC and Aerojet, parents of two prior
owners of a Superfund site, could not be held liable under CERCLA unless liable under
state veil-piercing principles. United States v. Cordova Chemical Company of Mich.,
67 F.3d 586 (6th Cir. 1997). Status: Certiorari granted and judgment vacated
on June15. Remanded for further consideration in light of United States v. Bestfoods,
supra, 118 S.Ct. 2317 (Mem).
Ohio Forestry
Assoc., Inc. v. Sierra Club, Case No. 97-16. Petition to review a Sixth Circuit
case holding that the U.S. Forest Service's planning process was improperly predisposed
toward clearcutting, that the environmental groups had standing, and that the challenge to
the plan was sufficiently ripe, despite no site-specific action. Sierra Club v. Thomas,
105 F.3d 248 (6th Cir. 1997). Status: The court vacated and remanded for
dismissal on ripeness grounds on May18. 118 S.Ct. 1665.
Pinal Creek Group v. Newmont Mining Group, Case No. 97-795. Petition to review a
Ninth Circuit decision holding that only a party that is not itself liable may bring a
cost recovery action under CERCLA Section 107, rather than an action for contribution
under Section 113. 118 F.3d 1298 (9th Cir. 1997). Status: Petition denied
June22.
Second Circuit
American Automobile Manufacturing Association v. Cahill, Case No. 97-7972. Suit
challenging New York's mandate ordering the sale of zero emission vehicles between 1998
and 2002. Status: On August11, the court struck down the mandate, holding
that the Clean Air Act (CAA) preempted state motor vehicle emissions regulations, except
where identical to California's. 1998 WL 461923 (Aug.11, 1998).
Fifth Circuit
Central & Southwest Services, Inc. v. EPA, Case No. 98-60495. Suit
challenging an EPA rule substantially amending the disposal requirements for PCBs. The
rule took effect August28, 1998. Status: Petition for review filed August7.
Seventh Circuit
PMC, Inc. v. Sherwin-Williams Co., Case Nos. 97-2884 and 97-3773. Appeal of a
trial court decision holding that all cleanup costs at a CERCLA site should be allocated
to Sherwin-Williams pursuant to its sales agreement with PMC, but denying PMC relief for
costs already incurred because it did not comply with the National Contingency Plan (NCP).
1996 WL 546869 (N.D. Ill. 1996); 1997 WL 223060 (N.D. Ill. 1997). Status:
The court affirmed in part and reversed in part on July30, holding that PMC could not use
state law to recover remediation costs already incurred that were inconsistent with the
NCP. 1998 WL 430026 (Jul.30, 1998).
Eighth Circuit
National Solid Waste Management Association v. Williams, Case No. 97-2987.
Appeal of a trial court decision upholding Minnesota's solid waste scheme directing the
flow of wastes generated by public entities to certain disposal facilities. 966 F.Supp.
844 (D. Minn. 1997). Status: The court affirmed on June12, holding that the
state and its subdivisions were acting as market participants, not regulators. 146 F.3d
595.
Ninth Circuit
Umatilla v. Smith Frozen Foods, Case No. 97-80175. Appeal of a district court
decision holding that the Clean Water Act (CWA) does not regulate groundwater even if
hydrologically connected to surface waters. 962 F.Supp. 1312 (D. Ore. 1997). Status:
Petition denied July31.
United States v. Chapman, Case No. 97-15215. Appeal of a lower court's award of
$400,000 in attorney's fees to the government stemming from a $34,000 cleanup action under
CERCLA. Status: On July2, the court held that the government is entitled to
reasonable attorney's fees as part of its response costs under CERCLA, but remanded for a
determination of the reasonableness of the $400,000 in fees. 146 F.3d 1166.
Resource Investment v. Corps of Engineers, Case No. 97-35934. Appeal of a
district court decision upholding the Corps' decision to deny a permit to a municipal
solid waste landfill on wetlands. Status: On July27, the court reversed,
holding that EPA, not the Corps, has permitting authority over a solid waste landfill to
be located in a wetlands area. 1998 WL 416672 (July27, 1998).
Tenth Circuit
United States v. Telluride Co., Case No. 97-1236. Appeal of a district court
decision holding that the govern-ment's claim for civil penalties and injunctive relief
for filling of wetlands in the Telluride Ski Area between 1981 and 1989 was barred by the
statute of limitations. 884 F.Supp. 404 (D. Colo. 1995). Status: The court
reversed on June25, holding that the government's claim for injunctive relief and
restoration of wetlands was not barred. 146 F.3d 1241.
D.C. Circuit
National Mining Association v. U.S. Corps of Engineers, Case Nos. 97-5099 and
97-5112. Appeal of a district court decision invalidating the Corps rule regulating
incidental fall-back during dredging operations. 951 F.Supp. 267 (D. D.C. 1997). Status:
The court affirmed on June19. 145 F.3d 1399.
Clean Air Implementation Project v. EPA, Case No. 97-1117, et al. Petition
challenging EPA's "credible evidence rule," which allows introduction of any
credible evidence to show a violation of the CAA. Status: The court dismissed the case as
not ripe for review on August14. 1998 WL 471562 (Aug.14, 1998).
Texas Natural Resource Conservation Commission v. Browner. Challenge to EPA's
position that the state's established new source review permitting program must meet
additional requirements of the CAA's Title V operating permits program. Status:
Petition filed August16, 1996. Editor's Note: Identical suit also filed in the Fifth
Circuit, Case No. 96-60544 (voluntarily dismissed April 2, 1997).
Columbia Falls v. EPA, Case No. 96-1234. Challenge to EPA's 1996 rule for treating
spent potliner waste. Status: The court struck down the rule on April3
because the treatment standard did not accurately reflect disposal conditions for arsenic
and fluoride. On June17, the court approved EPA's plan for implementing an interim rule,
which must be finalized by September24. 139 F.3d 914.
Environmental Defense Fund v. Browner, Case No. 98-1363. Challenge to EPA's
revocation of the one-hour ozone standard for 2,901 counties on June5, on the ground that
EPA must first formally redesignate the counties as being in attainment with the standard.
Status: Petition filed on August3.
Florida Power & Light v. EPA, Case No. 95-1093. Challenge to EPA statements
in its preamble to proposed revisions to requirements a state must meet for authorization
to administer the RCRA corrective action program. Status: The court
dismissed the suit on June26 on jurisdictional and ripeness grounds. 145 F.3d 1414.
Lawrence E. Sellers, Jr., received his J.D., with honors, 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., with highest honors, from the Florida State
University College of Law in 1993. She is an attorney in the Tallahassee office of Holland
& Knight LLP.
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