| COLUMNS  On
Appeal
Lawrence E. Sellers, Jr.
& Susan L. Stephens
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Note: Status of cases is as of June 13, 2000. Readers are encouraged to advise the authors of pending appeals that should be included.
FLORIDA SUPREME COURT
Kirk v. U. S. Sugar Corp., et al., Case No. 95,044. Petition to review a Fourth DCA opinion overturning the dismissal of a lawsuit filed by former Governor Claude Kirk against various sugar growers that claimed the growers created a public nuisance by burning sugar cane fields, causing air pollution and a health hazard. 726 So.2d 822 (Fla. 4th DCA 1999). Status: Petition granted January 10. Oral argument held June 6.
Supreme
Court Site
Las Olas Tower Co. v. City of Ft. Lauderdale, Case No. 95, 674. Petition to review a Fourth DCA decision affirming the circuit court's determination that the City's Board of Adjustment properly interpreted the setback requirements of its zoning ordinance in denying site plan approval, but vacating the portion of the lower court's decision granting certiorari on the denial for the City's failure to advise the developer of changes that would make the plan acceptable. 742 So.2d 308 (Fla. 4th DCA 1999). Status: Petition granted March 20.
No oral argument will be held.
Walberg v. Miami-Dade County, Case No. 96,739. Petition to review a Third DCA case holding that the circuit court improperly reversed the county commission's resolution denying a request for rezoning. 739 So. 2d 115 (Fla. 3rd DCA 1999). Status: Petition granted March 6. No oral argument will be held.
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, 1998. Oral argument held on June 9, 1999.
Supreme
Court Site
Tampa Electric Company, et al. v. Florida Public Service Commission, et
al., Case Nos. SC 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 Smyrna Beach. Status: The court quashed the PSC order on April 20, holding that Florida law does not authorize so-called "merchant power plants" like the one proposed. 2000 WL 422871. A petition for rehearing has 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: Review granted October 19, 1999, 744 So. 2d 453 (Fla. 1999). Oral argument set for October 6, 2000. Editor's note: See related Minnaugh case recently certified by the Third DCA.
Minnaugh v. County Commission of Brevard
County, Case No. 00-875. In denying certiorari review of the county commission's denial of an application for small-scale amendments to the County's land use plan, the Fourth DCA certified the following question to the Supreme Court as one of great public importance: Are decisions regarding small-scale 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 scruitiny? 2000 WL 276027 (Fla. 4th DCA March 5, 2000). Status: Petition for review filed April 24.
FIRST DCA
Department of Environmental Protection v.
Burgess, Case No. 99-1764. Appeal of a circuit court's final judgment of taking, based on DEP's denial of Burgess' permit to build a camping shelter on his riverfront property. The trial court held that Burgess' proposed use was not restricted when he bought the land in 1956 and did not constitute a nuisance, so a regulatory taking occurred when the permit was denied. Status: DEP appealed on May 13, 1999. Oral argument was held on March 21, 2000.
Save the Manatee Club, Inc. v. SWFWMD, Case No. 99-4819. Appeal of DOAH final order invalidating the SWFWMD rule exempting development projects with approvals as of October 1, 1984, from the requirements of the Environmental Resource Permit rules. DOAH Case No. 99-3885RX (Dec. 8, 1999). Status: Notice of appeal filed December 27, 1999.
Board of Trustees of the Internal Improvement Trust Fund v. Day Cruise
Association, Case No. 1D00-1058. Appeal of a DOAH final order holding that a proposed Trustees' rule prohibiting gambling "cruises to nowhere" from docking at sovereign submerged lands was an invalid exercise of delegated legislative authority. DOAH Case No. 99-4437RU. Status: Notice of appeal filed March 20; initial brief filed May 25.
Friends of Nassau County, Inc. v. Nassau
County, Case No. 1D97-4285. Appeal of a DOAH final order imposing sanctions under the APA against Friends on the ground that the environmental entity's petitions opposing certain development permits were "objectively unreasonable," where the environmental entity consisted of one member and was apparently created for the sole purpose of filing the petitions. Status: The court reversed and remanded on February 2, holding that, while the petitions were not "objectively unreasonable," Friends and its sole member were still subject to sanctions for failing to read the petitions before signing them. 752 So. 2d 42. Rehearing denied March 7.
1000 Friends of Florida, Inc., et al., v. Department of Community
Affairs, Case No. 1D98-3876. Appeal from a final order of the Department of Community Affairs (DCA) dismissing the appellants' petition for declaratory statement that, under the Growth Management Act, the installation of public facilities must be included in a county's comprehensive plan. Status: The court reversed on January 25. The opinion was clarified on April 20. 25 Fla. L. Weekly D283.
In re: Friends of the Aquifer, Inc., Case Nos. 00-30 and 00-39. Appeals from a final order of the DCA denying a petition to initiate rulemaking to require local government to enact land use measures that promote pipeline safety. Final Order No. DCA 99-GM-369 (DCA Dec. 21, 1999). Status: Both cases have been voluntarily dismissed.
SECOND DCA
SWFWMD 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: All briefs have been filed and oral argument was held January 11.
THIRD DCA
Florida Bay Initiative, Inc. v. Department of Transportation and SFWMD, Case Nos. 97-2071 and 97-2222. 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 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. Status reports were submitted August 17, 1999.
FOURTH DCA
Pinecrest Lakes, Inc. v. Brooks, et al. (Case No. 99-2641) and Pinecrest Lakes v. Martin County (Case No. 99-2725). Appeal of a final judgment in a s. 163.3215 consistency challenge by adjacent homeowners to a development order, which held that the development order was inconsistent with the Martin County Comprehensive Plan and granting an injunction compelling removal of apartment buildings built pursuant to the order and prohibiting any further construction. Status: Notice of appeal filed August 4, 1999, in Case No. 99-2641; initial brief filed December 20, 1999. Notice of appeal filed August 5, 1999, in Case No. 99-2725. Oral argument held on June 13.
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 reports submitted August 17, 1999. No new status reports have been ordered. Several parties have withdrawn from the case, including Florida Bay Initiative, Inc., and the Florida Keys Fishing Guides Association. Editor's Note: Contemporaneous appeal to Third DCA has been stayed pending conclusion of the FLWAC proceedings.
U.S. SUPREME COURT
Browner v. American Trucking Ass'n, Case Nos. 99-1257 and 99-1426. Petition to review a D.C. Circuit opinion which struck down EPA's new ozone and particulate matter air quality standards. 195 F.3d 4 (D.C. Cir. 1999). Status: Petition granted May 22. On May 30, the court also granted certiorari to review a petition filed by the American Trucking Association (Case No. 99-1426).
Power Engineering Co. v. U.S., Case No. 99-1179. Petition to review a Tenth Circuit opinion upholding a district court's preliminary injunction ruling that metal refineries are subject to RCRA and ordering petitioners to secure financial assurances for hazardous waste site closure and remediation. 191 F.3d 1224 (10th Cir. 1999). Status: Petition denied April 24.
Good v. U.S., Case No. 99-881. Petition to review a federal circuit decision holding that Good could not recover takings damages from the federal government for denial of a Clean Water Act permit to develop property in the Florida Keys, on the ground that he had no reasonable investment-backed expectations to develop the property. 189 F. 3d 1355 (Fed. Cir. 1999). Status: Petition denied April 3.
Public Lands Council v. Babbitt, Case No. 98-1991. Petition to review a Tenth Circuit opinion holding that Department of Interior regulations governing grazing on public lands were valid in part and invalid in part. The court upheld regulations regarding grazing preferences, permitted use, title to improvements, and parties entitled to grazing permits, but struck down a regulation allowing issuance of permits to use lands for conservation purposes to the exclusion of grazing. 167 F.3d 1287 (10th Cir. 1999). Status: The court affirmed on May 15. 120 S. Ct. 1815.
Hanousek v. U.
S., Case No. 99-323. Petition to review a Ninth Circuit decision affirming the criminal conviction under the Clean Water Act of a backhoe operator for negligently discharging oil into waters of the United States when he struck a pipeline with the backhoe. 176 F.3d 1116 (9th Cir. 1999). Status: Petition denied January 10. Justices Thomas and O'Conner filed a dissenting opinion. 120 S. Ct. 860.
U. S. v.
Locke, Case No. 98-1701. Petition to review a Ninth Circuit decision holding that the Oil Pollution Act limited the preemptive effect of the Ports Waterways Safety Act on state regulations governing oil tankers. 148 F.3d 1053 (9th Cir. 1998). Status: On March 6, the court reversed, holding that the state regulations were preempted by the PWSA. 120 S. Ct. 1135.
Solid Waste Agency of Northern Cook County v. U. S. Army Corps of
Engineers, Case No. 99-1178. Petition to review a Seventh Circuit decision affirming the denial of a Corps § 404 dredge and fill permit to construct a landfill on isolated wetlands, where jurisdiction was claimed due to the presence of migratory birds. 191 F.3d 845 (7th Cir. 1999). Status: Petition granted May 22.
Ter Maat v. Browning-Ferris Industries of
Illinois, Case No. 99-1418. Petition to review a Seventh Circuit decision affirming that a corporate officer was personally liable for contribution under CERCLA. 195 F.3d 953 (7th Cir. 1999). Status: Petition denied May 1.
FOURTH CIRCUIT
U. S. v. Deaton, Case Nos. 98-2256 and 98-2370. Appeal of a district court decision holding that the practice of "sidecasting" of dredged material while digging a wetland drainage ditch does not constitute the discharge of pollutants under the Clean Water Act. Status: The court reversed on April 7. 209 F.3d 331.
FIFTH CIRCUIT
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 August 7, 1998. Appellee/Respondent supplemental brief was due January 24, 2000.
EIGHTH CIRCUIT
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: The Court affirmed on September 16, 1999. 191 F. 3d 894. Rehearing denied January 24.
ELEVENTH CIRCUIT
St. Johns River Water Management District v. Saboff, 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: On January 18, the court reversed. 200 F.2d 1356. Rehearing and suggestion for rehearing en banc denied on March 20. 211 F.3d 596.
Boyes v. Shell Oil Products Co., Case No. 98-3692. Appeal of a district court opinion dismissing the Boyes' RCRA claims against Shell. The Boyes had sought an injunction requiring cleanup of petroleum contamination on the Boyes' property from service stations previously operated on the property by Shell. The district court held that Florida's State Underground Petroleum Response Act prohibited the Boyes' suit for remediation because the site was eligible for funding for cleanup under Florida's Early Detection Incentive program. Section 376.308 of the Act prohibits any person from pursuing administrative or judicial action to require remediation of an eligible site before the state has committed funding for remediation. Status: On January 4, the court reversed, holding that Section 376.308 conflicts with the RCRA citizen suit provision and is thus preempted under the Supremacy Clause of the federal Constitution. 199 F.3d 1260. Rehearing and suggestion for rehearing en banc denied March 24. 206 F.3d 1397.
D.C. CIRCUIT
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 Browner v. American Trucking Association, U.S. Case No. 99-1257.
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: On April 14, the court held that the guidance document broadened EPA's existing monitoring rules and was thus improper without rulemaking. The guidance was vacated. 208 F.2d 1015.
Michigan v. EPA, Case No. 98-1497. Challenge to EPA's new ozone transport rule, finalized September 24, 1998. Status: On March 3, the court vacated the rule as applied to Michigan, Missouri and Georgia for failure to provide adequate notice of the change in definition of an electric generating unit and in certain control levels. 2000 WL 180650.
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 requested 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, 1999. EPA has filed rule amendments with the court. Parties were directed to file a statement of the issues by May 15.
American Corn Growers Assoc. v. EPA, Case No. 99-1348. Challenge to EPA's final regional haze rule, on the ground that EPA failed to consider adverse impacts of the rule on farmers. Status: Challenge filed on August 30, 1999. On September 29, 1999, the state of New Hampshire announced that it will intervene on behalf of EPA.
Chlorine Chemistry Council v. EPA, Case No. 98-1627. Challenge to EPA's maximum contaminant level goal of zero for chloroform, issued in 1998. Status: Oral argument held February 11.
FEDERAL CIRCUIT
Palm Beach Isles Assocs. v. United States, Case No. 98-5030. Appeal of a claims 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: The court vacated the lower court's decision on March 31. 208 F.3d 1374.
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Lawrence E. Sellers, Jr., received his J.D. 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. 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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