| ARTICLES
 On Appeal
Lawrence E. Sellers, Jr.
Susan L. Stephens
Holland & Knight
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Note: Status of cases is as of June 3, 1999. Readers are encouraged to
advise the authors of pending appeals that should be included.
FLORIDA SUPREME COURT
St. Johns River Water Management District v. Consolidated-Tomoka Land Co., Case
No. 94,015. Petition to review a First DCA decision upholding the validity of 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 fell within the class of powers
delegated to the district. 717 So. 2d 72 (Fla. 1st DCA 1998).
Status: Petition denied on February 5.
St. Johns River Water Management District v. Koontz, Case No. 94,650. Petition
to review a Fifth DCA decision holding that a landowner is not required to continue
submitting amendments to his development plan to make it permittable in order for a
regulatory takings claim to be ripe. 720 So. 2d 560 (Fla. 5th DCA 1998).
Status: Petition denied March 24.
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 set for June 9.
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: Petition denied on November 25, 1998.
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: Petition granted March 5. Oral argument to be held on June 9.
David Fleeman v. City of St. Augustine Beach. The Fifth DCA granted Fleeman's
motion for certification of a question as to whether, in all cases, the denial or granting
of a small-parcel amendment to a comprehensive plan is a legislative function not subject
to certiorari review. 728 So. 2d 1178 (Fla. 5th DCA 1998).
Status: Question certified on April 19. 24 Fla. L. Weekly D 575.
FIRST 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. 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.
Friends of Nassau County v. Fisher Management Co., Case No. 97-4285. Appeal of a
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 July 29, 1998; a motion to relinquish jurisdiction
was granted on September 25, 1998.
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) 10 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, 98-1866RP, 98-2045RP and 98-2046RP (DOAH Aug. 11, 1998).
Status: All briefs have been filed. Oral argument is scheduled for June 8.
SECOND DCA
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: All briefs have been filed.
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 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 is due August 27.
FIFTH DCA
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 review.
Status: Voluntarily dismissed on February 16.
Friends of Matanzas, Inc. v. DEP, Case No. 98-1504. Appeal of a DEP order
dismissing petition for hearing on two construction permits issued to the Florida
Department of Transportation to extend a water main and sewer line.
Status: The court affirmed on March 5. 1999 WL 110806.
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 due August 15. Editor's Note: Contemporaneous appeal to Third DCA
has been stayed pending conclusion of the FLWAC proceedings.
U.S. SUPREME COURT
Bouchard Transportation Co. v. United States, Case No. 98-682. Petition to
review an Eleventh Circuit decision holding that Oil Pollution Act claims stemming from a
1993 collision in Tampa Bay did not need to be brought in a limitation of liability
proceeding under federal maritime law, but could be brought separately. Bouchard
Transportation Co. v. Updegraff, 147 F. 3d 1344 (11th Cir. 1998).
Status: Petition denied February 22.
Florida DEP v. Bouchard Transportation Co., Case No. 98-752. Petition to review
an Eleventh Circuit decision holding that the Eleventh Amendment to the U.S. Constitution
does not shield a state seeking recovery of response costs and natural resource damages
caused by an oil spill from having to share equally in the distribution of assets among
parties in a limitation of liability proceeding under federal maritime law. Bouchard
Transportation Co. v. Updegraff, 147 F. 3d 1344 (11th Cir. 1998).
Status: Petition denied February 22.
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.
Status: Petition granted March 1.
Hecla Mining Co. v. Washington Wilderness Coalition, Case No. 98-751. Petition
to review a Ninth Circuit decision holding that a successful defendant in an environmental
citizen suit must prove that the suit was "frivilous, unreasonable, or without
foundation" in order to recover attorneys fees. 156 F. 3d 1241 (9th Cir. 1998).
Status: Petition denied on March 8.
City of Monterey, CA v. Del Monte Dunes of Monterey, Ltd., Case No. 97-1235.
Petition to review a Ninth Circuit jury verdict holding that repeated denials of a
permit application for development, each time with new restrictions and requirements for
approval, constituted a regulatory taking under the federal constitution on the ground
that the liability issue was for the judge. 95 F. 3d 1422 (9th Cir. 1996).
Status: On May 24, the court ruled in a 5-4 decision that landowners who sue local
governments for regulatory takings under 42 USC § 1983 are entitled to a jury trial.
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; answer brief due June 2.
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: Oral argument held April 22.
TENTH CIRCUIT
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.
ELEVENTH CIRCUIT
SJRWMD 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: All briefs have been filed. Oral argument to be held July 13.
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: Initial brief filed March 8.
EDF v. EPA, Case No. 97-1637. Challenge to EPA's "grandfather clause"
allowing certain transportation projects to receive federal funding even if the applicable
regional transportation plan does not conform to the CAA.
Status: The court struck down the "grandfather clause" on March 2. 167 F. 3d
641.
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: Petition filed November 4, 1998. Motion to dismiss for lack of jurisdiction
pending.
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. Initial briefs filed April
5. Submission of revised SIPs stayed pending further order of the court.
Louisiana Environmental Action Network v. EPA, Case No. 98-1082. Challenge to
EPA's criteria for allowing variances from its hazardous waste treatment standards.
Status: Petition dismissed in part and denied on March 26. 172 F. 3d 65.
Sierra Club v. EPA, Case No. 97-1686. Challenge to EPA's medical waste
incineration rule on the grounds that the rule's emission limits were not adequately
justified.
Status: The court remanded the rule to EPA on March 2. 167 F. 3d 658.
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. 1999 WL 300618.
FEDERAL CIRCUIT
Palm Beach Isles Assocs. v. United States, Case No. 9-5030. 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.
Status: All briefs have been filed. Reply brief due June 11.
_________________
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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