Florida Supreme Court 
 

Cecil Lane v. Chiles, Case No. 88,609.  Suit challenging the net ban 
amendment of the Florida Constitution as discriminatory against commercial fishermen and violative of due process.  Status:  The constitutionality of the amendment was upheld August 21.  698 So. 2d 260. 

Advisory Opinion re:  Fish & Wildlife Conservation Commission 
Amendment, Case No. 91,193.  Review of the sufficiency of the ballot title and summary and compliance with the single subject requirement of a proposed amendment to unify the Marine Fisheries and Game and Fresh Water Fish Commissions.  Status:  Oral argument held November 3. 

Department of Environmental Protection v. Harbor Utilities, Case No. 89,723.  Petition to review a Second DCA decision reversing the dismissal of DEP's complaint against Harbor's president for the discharge of untreated domestic wastewater.  684 So. 2d 301 (1996).  Status:  The court accepted review on May 28.  On August 13, the court dismissed on stipulation of the parties.  698 So. 2d 543. 

In re:  Everglades Pollution Responsibility Amendment, Case No. 90,042. Advisory opinion regarding the interpretation of last year's constitutional amendment stating that those polluting the Everglades should be primarily responsible for cleaning it up.  Status:  On November 26, the court held that the amendment is not self-executing, but requires implementing legislation.

 Haile Community Association v. DEP and Florida Rock, Case No. 97-47.  Appeal of a DEP final order issuing an air pollution permit for construction of a cement plant in Alachua County.  ER FALR 96:133 (DEP Dec. 12, 1996).  Status:  Initial brief filed April 28; answer briefs filed August 11.  On August 14, the court denied a motion to remand the case to DEP for reconsideration. 

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 administrative law judge concluded the petitions were improperly filed solely to delay the project.  ER FALR 97:197 (SJRWMD Oct. 8, 1997). Status:  Notice of appeal filed November 5. 

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:  Notice of appeal filed June 13. 

Consolidated Tomoka Land Co. v. St. Johns River Water Management District, 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 APA.  ER FALR 97:132 (DOAH June 27, 1997).  Status: Initial briefs filed October 31, 1997. 
 

 Save Anna Maria v. Department of Transportation, Case No. 96-02258.  Appeal of a DEP final order denying DOT a dredge and fill permit to build a bridge over Sarasota Pass from Bradenton to Anna Maria Island, on the ground that DEP's decision did not adequately consider the public interest criteria.  ER FALR 96:78 (DEP May 14, 1996).  Status: The Court affirmed on October 8.  1997 Fla.App.LEXIS; 22 Fla.L.Weekly D2382. 

Southwest Florida Water Management District v. Charlotte County, Case No. 97-1626.  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:  Notice of appeal filed April 22. 

Southwest Land Developers v. Edwards and DEP, Case No. 96-00936. Appeal of a DEP final order denying an application for renewal of a general permit to operate a construction and demolition debris disposal facility.  ER FALR 96:043 (DEP Feb. 12, 1996).  Status:  Notice of appeal filed.  DEP final order has been stayed pending appeal.  Appeal held in abeyance during negotiations.

Florida Bay Initiative, Inc. v. DOT and South Florida Water Management District, Case No. 97-02071.  Appeal of an 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.  Motion has been filed to stay the appeal until conclusion of a contemporaneous appeal to the Florida Land and Water Adjudicatory Commission. 

Dade County v. Redd's Cleaners, Case No. 97-02126.  Appeal of a DEP final order determining that untimely compliance with an order to remediate does not preclude participation in the drycleaning cleanup program.  ER FALR 97:127 (DEP June 27, 1997).  Status:  Notice of appeal filed July 22. 

 JI 441, Inc. v. Dade County, Case No. 97-01754.  Appeal of preliminary injunction determining that the Petroleum Cleanup Program litigation bar did not preclude Dade County's enforcement action against a program-eligible location.  Status:  Initial brief filed August 18. 

Department of Environmental Protection v. Eastman Chemical Company, Case No. 96-02969.  Appeal from a circuit court summary judgment that a chemical manufacturer was not liable for cleanup of contamination.  Circuit Court Case No. 92-4789.  Status:  The court affirmed October 8.  699 So. 2d 1051. 

Department of Environmental Protection v. CTL Distribution, Inc., Case No. 96-02768.  Appeal from a circuit court summary judgment that transporters were not liable for cleanup of contamination.  Circuit Court Case No. 92-4789-CA09.  Status:  Notice of appeal filed. 
 

Lost Tree Village Corp. v. Board of Trustees of the Internal Improvement Trust Fund, Case No. 92-1985.  Appeal from a DOAH final order upholding certain BOT rule amendments that would prevent construction of bridges and utility poles over submerged lands owned by the BOT.  ER FALR 92:119 (DOAH June 4, 1992).  Status:  The court affirmed on September 3.  698 So. 2d 634. 

City of West Palm Beach v. BOT, Case No. 95-3813.  Appeal of a circuit court decision on summary judgment holding that the Butler Act entitled the city only to title to the submerged lands immediately beneath the four piers of the city marina and not to dredged areas beneath open waters.  Case No. CL-94-9509 AB. Status:  Court reversed and remanded August 27.  1997 Fla.App.LEXIS 9682; 22 Fla.L.Weekly D2028. 

Freijomel v. City of Stuart, 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:  Notice of appeal filed.  The appellants have requested a stay of the proceedings pending settlement. 
 

Secret Oaks Owners Association v. DEP, Case No. 96-3230.  Appeal of a DEP final order denying the Association the right to apply for a permit to construct a dock, based on a lack of sufficient title interest in the adjacent uplands.  ER FALR 96:164 (DEP Oct. 21, 1996). Status:  The court reversed September 5.  1997 Fla.App.LEXIS 10190; 22 Fla.L.Weekly D2114. 

Board of Trustees v. David Smith, Case No. 97-980.  Status:  Appeal of a circuit court decision holding that Smith, not the State, held title to lands separated from Lake Poinsett by dikes.  Status:  Notice of appeal filed July 5.  All briefs have been filed.  Oral argument is scheduled for February 4, 1998. 

Lee v. Williams, Case No. 96-2560.  Appeal of a trial court decision holding that the Lees did not have the right to build a boat lift on the Williams' side of the property boundary, on the ground that the land is a tideland subject to sovereignty ownership.  Status:  Oral argument held April 21. 
 
U.S. Supreme Court 

U.S. v. Cordova Chemical Co., Aerojet & CPC International, Case No. 97-464.  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 Superfund unless they would be liable under state veil-piercing principles.  113 F. 3e 572 (6th Cir. 1997).  Status:  Petitions filed August 8, September 10 and September 12. 

Hudson v. U.S., Case No. 96-976.  Petition to review a Tenth Circuit case 
holding the defendant could be criminally prosecuted for the same crime for which he had previously been fined, without double jeopardy concerns.  92 F. 3d 1026 (10th Cir. 1996).  Status:  Petition granted April 14.  Oral argument held October 8. 

Stroh Die Casting v. Atlantic States Legal Foundation, Case No. 97-479. Petition to review a Seventh Circuit decision holding that the Foundation gave adequate notice under the Clean Water Act (CWA) of its intent to file a citizen suit even though Stroh's alleged ongoing permit violations were not mentioned in the notice.  116 F.3d 814 (7th Cir. 1997).  Status:  Petition denied November 17. 

Rapanos v. U.S., Case No. 97-460.  Petition to review a Sixth Circuit 
decision holding that state inspectors did not need a search warrant to enter the site of a planned commercial development to look for wetlands.  115 F.3d 367 (6th Cir. 1997).  Status:  Petition denied October 14. 

Essex County Utilities Authority v. Atlantic Coast Demolition Recycling, Inc., Case No. 97-0400.  Petition to review a Third Circuit decision holding that New Jersey's flow control system violated the commerce clause.  112 F.3d 652 (3rd Cir. 1997).  Status:  Petition denied November 10. 

 Shinn v. Atlantic Coast Demolition & Recycling, Inc., Case No. 97-430. Petition to review a Third Circuit opinion holding that New Jersey's flow control system unconstitutionally discriminates against out-of-state solid waste management companies.  112 F. 3d 652 (3d Cir. 1997).  Status:  Petition denied November 10. 

United States v. Banks, Case No. 97-602.  Petition to review an Eleventh Circuit decision holding that the wetlands Banks disturbed were subject to the Clean Water Act even though the primary connection with navigable waters was via groundwater.  115 F.3d 916 (11th Cir. 1997).  Status:  Petition filed October 2. 

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 and that the environmental groups' challenge to the plan was a sufficiently ripe controversy.  105 F. 3d 248 (6th Cir. 1997).  Status:  Petition granted October 20. 

Ben Oehrleins & Sons & Daughter, Inc. v. Hennepin County, Case No. 97-605.  Petition to review an Eighth Circuit decision holding that solid waste generators in a Minnesota county lacked standing to challenge the county's flow control ordinance.  1997 U.S.App.LEXIS 17867.  Status:  Petition filed October 6. 

The Steel Co. v. Citizens for a Better Environment, Case No. 96-643. Petition to review a Seventh Circuit decision holding that the Emergency Planning & Community Right-to-Know Act (EPCRA) allows citizen suits based on wholly past violations of reporting requirements.  90 F. 3d 1237 (7th Cir. 1996).  Status:  Oral argument held October 6.

Chester Residents Concerned for Quality Living v. Seif, Case No. 97-1125.  Appeal of a district court decision dismissing the plaintiffs' claims that the State of Pennsylvania discriminated against the predominantly black town of Chester in its waste siting decisions.  944 F. Supp. 413.  (E.D. Pa. 1996).  Status:  Oral argument held September 25.

United States v. Hoechst Celanese, Case Nos. 96-2003 and 96-2051.  
Appeal of a district court decision holding that the company had misinterpreted the exemption provision under EPA's air toxics rules, but holding the company not liable for its violation of the Clean Air Act because it was following state guidance that had been endorsed by EPA staff.  964 F. Supp. 967 (D. S.C. 1996).  Status:  The court affirmed in part and reversed in part on October 27, upholding EPA's interpretation of the rules, but holding that the company had fair notice of the rules.  1997 U.S.App.LEXIS 29362.

Waste Management, Inc. of Tennessee v. Nashville, Case No. 95-5863. Appeal of a district court decision upholding the constitutionality of Davidson County's flow control system.  Case No. 94-00411 (M.D. Tenn. 1995).  Status: The court reversed and remanded on November 5.  1997 U.S.App.LEXIS 30306.

Umatilla v. Smith Frozen Foods, Case No. 97-80175.  Appeal of a district court decision holding that the CWA does not regulate groundwater even if hydrologically connected to surface waters.  962 F. Supp. 1312 (D. Ore. 1997).  Status:  Notice of appeal filed April 21.

Villas of Lake Jackson, Ltd. v. Leon County, Case No. 95-3698.  Appeal of a district court decision holding that the rezoning of the plaintiffs' land to single family housing did not amount to an unconstitutional "taking" of property and did not violate the due process and equal protection clauses of the constitution.  906 F.Supp. 1509 (N.D. Fla. 1995).  Status:  The court affirmed September 8.  121 F. 3d 610.  525442.

Sierra Club & Natural Resource Defense Council v. EPA.  Petition 
challenging EPA's MACT standards for toxic emissions from medical waste 
incinerators.  Status:  Petition filed November 14. 

U.S. Corps of Engineers v. American Mining Congress.  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:  All briefs have been filed.  In the meantime, the court granted a stay of the lower court decision on June 23. 

Clean Air Implementation Project v. EPA, Case No. 97-1117.  Petition challenging EPA's "credible evidence rule," which allows introduction of any credible evidence to show a violation of the Clean Air Act (CAA).  Status: Petition filed November 12. 

Sierra Club v. Browner, Case No. 96-1680.  Petition to enforce certain portions of the CAA, requiring EPA to set emissions standards and controls by November 15, 1995, to protect large water bodies from pollution deposition.  Status:  Petition filed July 18. 

Texas Natural Resource Conservation Commission v. Browner, Case No. 96-1203.  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 August 16, 1996.  Note:  Identical suit also filed in Fifth Circuit, Case No. 96-60544. 

American Lung Association v. Browner, Case No. 96-1251.  Petition to force EPA to adopt a nationwide five-minute sulfur dioxide air emissions standard.  Status:  Oral argument held September 26. 

 Try Corp. v. Browner, Case Nos. 96-5188, -5203 and -5204.  Appeal of a district court decision upholding EPA's 1994 rule adding 286 chemicals to the Toxic Release Inventory, National Oilseed Processors Ass'n v. Browner, 924 F. Supp. 1193 (D. D.C. 1996).  Status:  Affirmed on August 1.  120 F. 3d 277.  Petition for rehearing denied September 25. 

Appalachian Power Co. v. EPA, Case No. 96-1497.  Petition to vacate an EPA rule setting tighter limits on emissions of nitrogen oxides from certain types of utility boilers.  Status:  Petition filed October 6. 

National Wildlife Federation v. Browner, Case No. 96-5366.  Appeal of district court dismissal of suit to force EPA to review a state's decision to maintain a water quality standard under the CWA.  1996 U.S.App.LEXIS 15321 (D. D.C. Oct. 11, 1996).  Status:  On November 4, the court held that EPA is only required to review revisions to the standards.  1997 U.S.App.LEXIS 30282. 

Sierra Club v. EPA, Case No. 96-1007.  Petition to review an EPA rule providing a one-year "grace" period to regions that are redesignated as non-attainment areas for federally funded transportation projects.  Status:  The court struck down the rule on November 4.  1997 U.S.App.LEXIS 30293.

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.