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 criminalcharges against Avatar for violating a DEP permit issued to stabilize the banks of a man-made canal. 697 So. 2d 561 (4th DCA 1997). Status: Oral argument was held May 4, 1998.

Florida Wildlife Federation v. Smith, Case No. 92,689. Petition to reviewa 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. 1998 WL80451 (5th DCA Feb. 27, 1998). Status: Petition filed March 16, 1998.

Miami-Dade County v. Chase Federal Housing Corp., Case No. 92,536. Question of great public importance certified by Third DCA on whether drycleaning Contamination Cleanup Act retroactively eliminates Miami-Dade County’s power to bring an enforcement action. 705 So. 2d 674 (3d DCA 1998). Status: Answer briefs due June 1, 1998. No extensions will be granted.

First DCA

Marine Fisheries Commission v. Crum & Pringle, Case No. 98-1500. Appeal of a circuit court decision holding that larger-mesh, comprised of both two-inch and three-inch mesh, nets used by two Wakulla County fishermen do not violate the state constitution's net ban. Status: Notice of appeal filed April 16, 1998. No extensions to the briefing schedule will be granted. [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 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: Notice of appeal filed March 13, 1998.

Department of Environmental Protection v. Allied Scrap Processors, Case No. 97-04905. 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: Notice of appeal filed December 19, 1997. Initial brief filed March 2. The court granted an extension for filing answer briefs until April 27.

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: The court affirmed per curiam on February 18. 706 So. 2d 289.

Grand Dunes, Ltd. v. Walton County, Case No. 97-1590. Appeal from an order of the Florida Land & Water Adjudicatory Commission (FLWAC) upholding a challenge to a development of regional impact (DRI) development order brought by the Edgewater Beach Owners Association (EBOA). Status: The court vacated and remanded on May 12, holding that the EBOA lacked standing to challenge the development order. 1998 WL 233292.

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, 1997; initial and answer briefs have been filed.

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: Oral argument is scheduled for May 27.

State of Florida Department of Environmental Protection v. Pringle and Crum, Case No. 97-4787. Appeal of a trial court in order lifting a stay on a temporary injunction against enforcement of the fishing net ban in the state constitution. Status:  Stay reinstated January 6, 1998. On February 26, the court issued an opinion explaining its reasons for reinstating the stay. 707 So. 2d 387.

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 APA. ER FALR 97:132  (DOAH June 27, 1997). Status: Oral argument has been scheduled for May 27.

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: Notice of appeal filed April 22, 1997; initial brief filed January 20; cross-appeal dismissed February 5.

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: The court dismissed the appeal on November 11, 1997; cross-appeal dismissed February 5, 1998.

Third DCA

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, 1997. On October 15, 1997, the court issued an order granting stay pending conclusion of a contemporaneous appeal to the Florida Land and Water Adjudicatory Commission. The court recently denied a writ of mandamus to compel FLWAC to review the case.

Miami-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: Oral argument held March 27.

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 Miami-Dade County's enforcement action against a program-eligible location. Status:  Initial and Answer briefs filed. The court granted a stay until May 1, 1998. Motion to extend stay through June 15 filed. Department of Environmental Protection v. CTL Distribution, Inc., Case Nos. 96-2768 and 96-2394. Appeal from a circuit court summary judgment that transporters were not liable for cleanup of contamination. Circuit Court Case No. 92-4789-CA09. Status: On February 25, the court affirmed the order of summary judgment as to six of the trucking companies, but reversed as to CTL. 23 Fla. L. Weekly D576. Motion for reconsideration and certification of question of great public importance filed.

Fourth DCA

Freijomel v. City of Stuart, Case No. 97-0072. Appeal from a DOAH finalorder finding DEP's arsenic soil cleanup goals to be an illegal rule. ER FALR 97:004(DOAH Dec. 9, 1996). Status: All briefs have been filed.

Fifth DCA

Florida Wildlife Federation v. Board of Trustees, Case No. 97-980. Appeal of a circuit court order denying motions to intervene by two environmental groups in a case concerning whether the State holds title to lands separated from Lake Poinsett by dikes. Status: The court affirmed on February 27. 707 So. 2d 841. A petition for review has been filed in the Florida Supreme Court (see related case).

Florida Rock Properties v. Keyser, Case No. 96-3307. Appeal from a final declaratory judgment quashing the Putnam County Commission's decision to rezone a 509-acre parcel of Florida Rock's property from agricultural to mining. Status: The court reversed and remanded on April 3. 23 Fla. L. Weekly D874.

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: On March 30, the court reversed. 23 Fla. L. Weekly D881.

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 held March 11.

FLWAC

Florida Bay Initiative, Inc. v. DOT and SFWMD, Case No. RFR 97001.  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: FLWAC granted an extension of time for filing briefs until May 15; no hearing date has been set.

[Editor's Note: Contemporaneous appeal to Third DCA has been stayed pending conclusion of the FLWAC proceedings.]

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. Dec. 30, 1997). Status: Petition filed March 30.

Hoechst Celanese v. United States, Case No. 97-1578. Petition to review a Fourth Circuit decision upholding EPA's 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 filed March 23.

Kuiper v. American Cyanamid, Case No. 97-1453. Petition to review a Seventh Circuit decision holding that FIFRA preempts state common law damages claims brought by farmers against American Cyanamid. 131 F.3d 656 (7th Cir. 1997).  Status: Petition filed March 5.

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 a fly found only in California, on Commerce Clause grounds. 130 F.3d 1041 (D.C. Cir. 1997). Status:  Petition filed March 5.

Metropolitan Government of Nashville v. Waste Management, Inc. of Tennessee, Case No. 97-1259. Appeal of a Sixth Circuit opinion holding that the Davidson County flow control ordinance was unconstitutional. 130 F.3d 731 (6th Cir. 1997). Status: Petition denied April 27, 1997.

Donahey v. Bogle, 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: Petition filed January 9.

National Shipping Co. of Saudi Arabia v. Moran Trade Corp. of Delaware, Case No. 97-1149. Petition to review a Fourth Circuit opinion holding that the Oil Pollution Act bars National Shipping from recovering its oil spill cleanup costs under state law, even though the OPA's recovery cap is half of the company's cleanup costs.  122 F.3d 1062 (4th Cir. 1997). Status: Petition denied March 23.

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 Superfund unless they would be liable under state veil-piercing principles. United States v. Cardova Chemical Co. of Mich., 113 F.3d 572 (6th Cir. 1997). Status: Petition granted December 12, 1997. Oral argument was held March 24.

Hudson v. United States, 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: The court affirmed on December 10, 1997. 118 S. Ct. 488.

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, 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: Petition granted October 20, 1997.

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: On March 4, the court vacated the decision below and directed that the complaint be dismissed. 118 S. Ct. 1003.

Browning-Ferris Industries v. Sun Co., Case No. 97-995. Petition to review a Tenth Circuit decision establishing a six-year statute of limitations for filing a contribution action in connection with a CERCLA Section 106 administrative order requiring cleanup. 124 F.3d 1187 (10th Cir. 1997). Status: Petition denied February 23.

North Carolina v. Federal Energy Regulatory Commission, Case Nos. 97-836 and 97-837. Petition to review a D.C. Circuit decision holding that an amendment to a hydroelectric facility's license, which provides for 60 million gallons of water a day, is not a "discharge" under the Clean Water Act. 112 F.3d 1175. Status:  Petition denied February 23.

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 filed November 10, 1997.

Fourth Circuit

Wilson v. United States, Case No. 96-4498. Appeal of a district court conviction of two men under the Clean Water Act for engaging in filling of waters of the United States without a permit. Case No. CR-95390 (D. Md. 1997). Status: On December 23, 1997, the court reversed the conviction and remanded for a new trial.  133 F.3d 251. A motion for reconsideration was denied on January 30.

Fifth Circuit

American Forest Paper Association v. EPA, Case No. 96-60874. Petition to review an EPA rule providing that EPA would veto a permit issued by Louisiana under the Clean Water Act if the Fish & Wildlife Service or National Marine Fisheries Service found it would threaten endangered species and that EPA could deny the state's NPDES program for failure to follow the consultation procedures in the Endangered Species Act. Status: On March 30, the court vacated the portions of the rule that imposed the consultation requirement and providing that EPA will reject any permit to which FWS and NMFS objects. 137 F.3d 291.

Ninth Circuit

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 9, 1997.

D.C. Circuit

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, 1997.

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, 1997.

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: Oral argument held April 21, 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 August 16, 1996. [Editor's 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: On January 3, the court held that EPA did not adequately explain its conclusion that exposure to short-term, high-level SO2 emissions does not pose a public health problem and remanded for further explanation. 134 F.3d 388.

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 ofutility boilers. Status: On February 13, the court upheld most of the rule, but held that EPA had failed to justify its classification of retrofitted cellburner boilers as wall- fired boilers for purposes of designating NOx limits and remanded accordingly. 134 F.3d 791.

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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.

The authors gratefully acknowledge the assistance of Kay Skipper inpreparing this column.