City of Dania v. Florida Power & Light Co., Case No. 93,940. Petition to review a Fourth DCA opinion holding that the trial court departed from the essential requirements of law by reversing the city's decision to deny FP&L's petition for a special zoning exception. The circuit court improperly substituted its own judgment for that of the city. 718 So. 2d 813 (Fla. 4th DCA 1998). Status: Petition granted December 29. Oral argument held on June 9.

City of West Palm Beach v. Board of Trustees of the Internal Improvement Trust Fund, Case No. 93,821. Petition to review a Fourth DCA decision holding that dredging submerged lands around piers did not constitute a "permanent improvement" under the Butler Act and therefore title to those lands had not passed to the City. 714 So. 2d 1064 (Fla. 4th DCA 1998). Status: Affirmed on September 9.

Tampa Electric Company, et al. v. Florida Public Service Commission, et al., Case Nos. 95,444 - 95,446. Petition to review a final order of the PSC granting a joint petition for determination of need for an electrical power plant filed by Duke Energy and the City of New Smyma Beach. Status: Petition filed April 26. Initial and answer briefs have been filed.

Coastal Development of N. Florida, Inc. v. City of Jacksonville Beach, Case No. 95,686. Petition to review a First DCA opinion holding that small-scale development amendments to a comprehensive plan are subject to de novo review in circuit court and certifying the following question of great public important to the Florida Supreme Court: Are decisions regarding small scale development amendments pursuant to Section 163.3187(1 )(c), Florida Statutes, legislative in nature and, therefore, subject to the fairly debatable standard of review; or quasi-judicial and subject to strict scrutiny? 730 So. 2d 792 (Fla. 1st DCA 1999).

Status: Petition filed May 27. Editors note: See related case recently certified by the Third DCA.

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: The court reversed on April 6. 24 Fla. L. Weekly D1071. Rehearing denied May 17. 24 Fla. L. Weekly D8 85. 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 Division of Administrative Hearings (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: The court affirmed per curiam on March 31. 732 So. 2d 395. Rehearing denied May 17.

Support Terminals Operating Partnership, L.P. v. Board of Trustees of the Internal Improvement Trust Fund, Case Nos. 98-3299 and 3523. Appeal of a DOAH final order holding that a portion of proposed Trustees' Rule 18-21.019(1 )(a) I 0 is an invalid exercise of delegated legislative authority and upholding the remainder of the proposed amendments to Rule 18-21.019(1), which describes the application process by which owners of formerly filled sovereignty lands may confirm title to those lands. DOAH Case Nos. 98-1764RP, 98-1 866RP, 98-2045RP and 98-2046RP (DOAH Aug. 11,1998). Status: All briefs have been filed. Oral argument held on June 8.

Florida Wildlife Federation, Inc., et al. v. Department of Environmental Protection and Coastal Petroleum Co., Case No. 98-1500. Consolidated appeals regarding Coastal Petroleum's application to the Department of Environmental Protection (DEP) for an offshore drilling permit to drill approximately nine miles off St. George Island. Coastal Petroleum appealed DEP's final order denying its permit application and filed a petition for writ of prohibition and review of non-final agency action of the Administration Commission's remand to DOAH regarding calculation of the surety amount Coastal Petroleum must pay in connection with the permit; the various environmental petitioners and the Attorney General's Office counter-petitioned for writ of prohibition and review of the surety remand, on the ground that the permit denial rendered the remand moot. Status: The court denied Coastal Petroleum's petition in September 1998, but granted the Attorney General's petition. All briefs have been filed. Oral argument was held May 12.

CR&D Developers v. DEP, Case No. 99-598. Appeal of DEP's declaratory statement issued on behalf of the Board of Trustees that Hat Island was a "coastal island" under Board rules.

Status: Initial and answer briefs have been filed.

DEP v. Walker, et al., Case No. 98-2260. DEP appealed a trial court ruling that the listing of certain fish species in the "bait fish purse seine" law made the statutory prohibition against the use of purse seines for food fish inapplicable to the listed species. Status: Oral argument was held May 13.

Mariner Properties Development Inc. v. Board of Trustees of the Internal Improvement Trust Fund, Case No. 98-3453. Appeal from order of the Board of Trustees of the Internal Improvement Trust Fund dismissing a petition requesting a variance from and waiver of certain administrative rules, because the variance and waiver process expressly pertains to regulatory rather than proprietary matters. Status: Affirmed on September 14.

DEP v. DeVincenzos, Case No. 98-3411. Appeal of a trial court judgment awarding the DeVincenzos more than $ 1.3 million as compensation for the taking of their riparian right to bulkhead and fill certain submerged lands that had been sold by the State to their predecessors, when DEP denied their permit application. Status: The court affirmed per curiam on June 25. DEP has filed a motion for rehearing.

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, I 997). Status: All briefs have been filed; oral argument has been requested.

Hanna v. Environmental Protection Commission of Hillsborough County,Case No. 98-03602. Appeal of trial court determination that an EPC scientist's field report on wetlands delineation was not a "development order" for purposes of establishing jurisdiction under dispute resolution provisions. Status: The court affirmed on May 26. 735 So. 2d 544.

Lykes Bros. v. Board of Trustees of the Internal Improvement Trust Fund, Case No. 98-1199. Appeal of trial court determination that Fisheating Creek is a navigable, state-owned water body. Status: All briefs have been filed and oral argument is scheduled for October I 9.

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 October 15,1997, the court issued an order granting a stay pending conclusion of a contemporaneous appeal to the Florida Land and Water Adjudicatory Commission (FLWAC). On March 12,1998, the court denied a writ of mandamus to compel FLWAC to review the case. A status report was due August 27.

Palm Springs General Hospital Inc. v. Ciry of Hialeah Gardens, Case No. 99-945. Petition for writ of certiorari to review a circuit court decision that denial or granting of a "smallscale development amendment" to a comprehensive land use plant pursuant to section 163.3187 is a legislative function not subject to certiorari review. Status: The court denied the petition, but on September 1, granted rehearing for purposes of certifying the following question of great public important to the Florida Supreme Court: Are decisions regarding small-scale development amendments pursuant to Section 163.3187(1 )(c), Florida Statutes, legislative in nature and, therefore, subject to the fairly debatable: standard of review; or quasi-judicial, and subject to strict scrutiny? 24 Fla. L. Weekly D2020.

Pinecrest Lakes, Inc. v. Brooks, et al., Case No. 99-2614 and Pinecrest Lakes v. Martin County (Case No. 99-2725). Appeal of a final judgment in a s. 1363.3215 consistency challenge by adjacent homeowners to a development order. Status: Notice of appeal filed August 4 in Case No. 99-2614. Notice of appeal filed August 5 in Case No. 99-2725.

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 reports filed in August. Editor's Note: Contemporaneous appeal to Third DCA has been stayed pending conclusion of the FLWAC proceedings.

Friends of the Earth v. Laidlaw Environmental Services (TOC), Inc., Case No. 98-822. Petition to review a Fourth Circuit decision dismissing a Clean Water Act (CWA) citizens suit seeking civil penalties, on the ground that the plaintiffs did not have standing to seek penalties for past violations of the Act. 149 F. 3d 303 (4th Cir. 1998). Status: Petition granted March 1.

Appalachian Power Co. v. Environmental Protection Agency, Case No. 98-1330. Various petitions to review a D.C. Circuit decision dismissing challenges to EPA's credible evidence rule, which allows any credible evidence to be used to establish Clean Air Act (CAA) violations. Clean Air Implementation Project v. EPA, 150 F. 3 d I 200 (D.C. Cir. 1998) Status: Petitions denied June 21,1999.

Oregon Natural Desert Association v. Dombeck, Case No. 99-153. Petition to review a Ninth Circuit opinion holding that Section 401(a) of the CWA, which requires state certification of federally permitted activities, applies only to point source pollution, not non-point sources. 172 F. 3d 1092 (9th Cir. 1998). Status: Petition filed July 21.

Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., Case No. 98-1938. Appeal of a trial court decision holding that the environmental group lacked representational standing to file a citizen suit under the CWA [see related Supreme Court case]. Status: The court affirmed on June 2. 179 F. 3d 107. Vacated on grant of rehearing en banc on August 3.

Central & Southwest Services, Inc. v. Environmental Protection Agency, Case No. 98-60495. Suit challenging an EPA rule substantially amending the disposal requirements for polychlorinated biphenyls (PCBs). The rule took effect August 28, 1998. Status: Petition for review filed August7,1998.

White Consolidated Industries, Inc. v. Westinghouse Electric Corp., Case No. 98-3524. Appeal of a summary judgment in favor of the seller of contaminated property, on the ground that the sale contract's indemnity provisions precluded CERCLA liability even though they pre-dated CERCLA. Status: The court affirmed on May 27. 179 F. 3d 403.

United States v. Tennessee Air Pollution Control Board, Case No. 97-5715. Appeal of a trial court decision holding that the U.S. Army is not immune from suit for violation of air pollution regulations. 967 F. Supp. 975 (M.D. Tenn. 1977). Status: On July 22, the court affirmed, holding that the CAA's state suit provisions authorize the states to bring administrative enforcement actions or obtain administrative remedies against the United States under state or local air pollution laws. 1999 WL 516267.

Harmon Industries, Inc. v. Browner, Case No. 98-3775. Appeal of a district court decision holding that EPA lacked authority under RCRA to "overfile" in state enforcement cases. 19 F. Supp. 2d 988 (W.D. Mo. 1998). Status: Oral argument held April 22. Case affirmed on September 16.

Aztec Minerals Corp. v. EPA, Case No. 98-1380. Appeal of a district court decision dismissing a challenge on due process grounds to an EPA Access Order issued under CERCLA that prevents the owners from transferring land and restricts access to the property. The trial court dismissed on the ground that CERCLA bars any review of removal or remediation actions prior to an EPA enforcement action. Status: All briefs have been filed.

Driscoll v. Adams, Case No. 98-8532. Appeal of a district court holding that the exception to liability for discharges when no NPDES permit was available applied to the defendant for discharges of stormwater into a stream running through his Georgia property. Status: The court reversed on July 23, holding that the defendant failed to make every good faith effort to comply with pollution control standards and reduce discharges. 1999 WL 528208.

SJRWMD v. Soboff, Case No. 98-3337. Appeal of a district court judgment awarding the Saboffs $ 114,100 as compensation for the habitat conservation regulations that restricted development of part of their residential lot. Status: All briefs have been filed. Oral argument was scheduled for July 13, but was postponed.

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 June 5, 1998, on the ground that EPA must first formally redesignate the counties as being in attainment with the standard. Status: Stay granted pending outcome of American Trucking Association v. EPA, Case No. 97-1440. Appalachian Power Co. v. EPA, Case No. 98-1512. Challenge to EPA's guidance on periodic monitoring of air pollution on the ground that the guidance should have gone through rulemaking. Status: Final briefs are due December 20. Oral argument scheduled for February 8.

Michigan v. EPA, Case No. 98-1497. Challenge to EPA's new ozone transport rule, finalized September 24, 1998. Status: Motion to transfer case to Seventh Circuit denied. All briefs have been filed. Submission of revised State Implementation Plans stayed pending further order of the court.

American Trucking Association v. EPA, Case No. 97-1440. Challenge to EPA's new ambient air quality standards for ozone and fine particulates, on the ground that the standards were not sufficiently justified and were an unconstitutional delegation of legislative authority. Status: On May 14, the court held the rules to be invalid and remanded to EPA for further justification. 175 F. 3 d 1027. On June 18, the court decided not to vacate either of the standards (although still remanded for rewriting/justification). EPA filed a petition for rehearing on June 28.

Midwest Ozone Group v. EPA, Case No. 99-1280. Challenge by electric utilities to EPA's approval of petitions filed under Section 126 of the Clean Air Act by eight Northeastern states which request EPA to regulate nitrogen oxide emissions from sources in the Midwest, on the ground that ozone transport from the Midwest prevented the eight states from attaining the ozone standard.

Status: Challenge filed on June 29. Court is considering a motion to stay pending the outcome of Michigan v. EPA, Case No. 98-1497.

Palm Beach Isles Assocs. v. United States, Case No. 98-5030. Appeal of a trial court decision holding that the Corps of Engineers' denial of a permit to fill portions of Lake Worth did not constitute a regulatory taking. 42 Fed. Cl. 340(1998). Status: All briefs have been filed.

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.