FLORIDA SUPREME COURT

Avatar Development Corporation v. State of Florida, Case No. 91,424. Petition to review a Fourth District Court of Appeal (DCA) decision reversing dismissal of criminal charges against Avatar for violating a Department of Environmental Protection (DEP) permit issued to stabilize the banks of a man-made canal. 697 So. 2d 561 (Fla. 4th DCA 1997). Status: The court affirmed the appellate decision on October 22, 1998. 23 Fla. L. Weekly S552.

Barley v. South Florida Water Management District, Case No. _____. Petition to review a circuit court's dismissal of a lawsuit seeking to block property tax collections used to pay for Everglades cleanup. Fla. Cir. Ct. No. 97-10228-DIV. 34 (October 22, 1998). Status: On December 22, 1998, the Fifth DCA certified the case to the Supreme Court as a matter of great public importance.

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 for review filed September 28, 1998.

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 set for June 9, 1999.

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 granted on certified question. Oral argument held December 2, 1998.

FIRST DCA

Florida Rock Industries v. Alachua County, Case No. 98-3104. Appeal of a circuit court decision upholding the county's Clean Air Ordinance, which set air quality standards that are stricter than those required by state or federal law. ER FALR 98:219 (Cir. Ct. No. 97-3902-CA). Status: The court affirmed on October 3, 1998.

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: Oral argument held on December 3, 1998. 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: Oral argument held December 3, 1998.

State of Florida v. Conner, Case No. 97-3283. Appeal of a county court order dismissing charges against Conner for illegally using a net greater than 500 square feet within Florida waters in violation of the constitutional net ban, on the ground that Marine Fisheries Commission Rule 46-31.0035, which defines Florida's territorial seas, exceeds the agency's rulemaking authority because it is unconstitutionally vague. Status: The court reversed and remanded on September 17, 1998, upholding the validity of the rule. 717 So. 2d 179.

State of Florida v. Kirvin, Case No. 97-3266. Appeal of a trial court order dismissing charges against two men for violation of the constitutional net ban by using nets greater than 500 square feet within Florida's waters, on the ground that the constitutional ban, Article X, Section 16, is unconstitutionally vague. Status: The court reversed and remanded on September 17, 1998, upholding the constitutionality of Article X, Section 16. 718 So. 2d 893.

Environmental Confederation of Southwest Florida v. Department of Community Affairs, Case No. 98-206. Appeal from a DCA final order concluding that agriculture is exempt from the definition of "development" for purposes of Chapter 163, Part II, Florida Statutes. The final order rejected the administrative law judge's (ALJ) finding that agricultural uses within the Big Cypress area of critical state concern would have unacceptable impacts on wildlife and that the plan amendments adopted by Collier County were not "in compliance with Chapter 163, Part II," as that term is defined in Section 163.3184(1)(b), Florida Statutes. Status: The court affirmed December 2, 1998.

DEP v. Allied Scrap Processors, Case No. 97-4905. 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: The court reversed and remanded on December 11, 1998. 23 Fla. L. Weekly D2730.

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 is pending.

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.

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: Notice of appeal filed September 3, 1998; answer brief due January 31, 1999.

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 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. A status report was filed May 20, 1998.

Miccosukee Tribe of Indians of Florida v. SFWMD, Case Nos. 98-1254 and 98-1851. Appeal of a DEP order granting a Non-Everglades Construction Project Permit that would allow continued operation of 37 flood control structures near or in the Everglades Protection Area. Status: The court affirmed on November 12, 1998. 721 So. 2d 389.

Miami Sierra Club v. Administration Commission, Case No. 98-1251. Appeal of an Administration Commission order approving a Miami-Dade County Military Base Reuse Plan for the former Homestead Air Force Base. Status: The court reversed the order and remanded on December 17, 1998. 721 So. 2d 829.

JI 441, Inc. v. Dade County, Case No. 97-01754. Appeal of a preliminary injunction determining that the Petroleum Cleanup Program litigation bar did not preclude Dade County's enforcement action against a program-eligible location. Status: Stipulation for dismissal filed November 3, 1998.

FOURTH DCA

Golf Club of Plantation, Inc. v. City of Plantation, Case No. 97-0218. Appeal of a trial court's dismissal of Golf Club's takings claims premised on the denial of its building permit applications, on the ground that Golf Club had not been denied all or substantially all beneficial use of the property. Status: On September 16, 1998, the court reversed and remanded to allow Golf Club to bring its takings claims. 717 So. 2d 166.

Town of Jupiter v. Alexander, Case No. 96-1693. Appeal of a non-final order of the circuit court in an inverse condemnation case holding that a temporary taking had occurred based on a prohibition in developing Alexander's island property, when she was not precluded from developing her mainland parcel. Status: On September 16, 1998, the court reversed, holding that the two parcels should be considered together for takings purposes. 23 Fla. L. Weekly D2139. Opinion amended on denial of rehearing, clarifying that the cause of action for violation of civil rights remained and remanding accordingly. 1998 WL 813415 (Fla. 4th DCA Nov. 12, 1998).

FIFTH DCA

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: The court reversed and remanded on September 4, 1998. Rehearing denied on October 14, 1998. 718 So. 2d 873.

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: Oral argument held November 10, 1998.

Koontz v. SJRWMD, Case No. 97-3285. Appeal from a circuit court decision upholding the SJRWMD's statutory authority to establish the Econlockhatchee River Hydrologic Basin and determining that Koontz' claim of regulatory taking based on denial of his dredge and fill application was not ripe. Status: On September 18, 1998, the court affirmed as to the validity of the statutes, but reversed and remanded the ripeness determination. 720 So. 2d 560.

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 February 15, 1999. Editor's Note: Contemporaneous appeal to Third DCA has been stayed pending conclusion of the FLWAC proceedings.

Florida Audubon Society v. SFWMD, Case No. RFR 98-001. Appeal of a SFWMD order issuing a permit for development of over 300 acres within Water Protection Area (WPA) Cell 19 in Broward County. Status: Hearing held on September 23, 1998; FLWAC's final order issued November 30, 1998, upholding the permit.

U.S. SUPREME COURT

Mt. Hope Asphalt Corp. v. Zagata, Case No. 98-595. Petition to review New York court rulings that a state regulation barring import of petroleum-contaminated soil to be recycled into asphalt did not violate the Commerce Clause of the federal constitution. 248 A.D. 2d 540; 669 N.Y.S. 2d 874 (N.Y. 1998). Status: Petition denied December 7, 1998.

PMC, Inc. v. Sherwin-Williams Co., Case No. 98-784. Petition to review a Seventh Circuit decision holding that the Comprehensive Environmental Remediation, Compensation & Liability Act (CERCLA) preempts state contribution law relating to environmental contribution. 151 F.3d 610 (7th Cir. 1998). Status: Petition denied January 19, 1999.

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 filed October 26, 1998.

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 filed October 28, 1998.

Davis v. Sun Oil Co., Case No. 98-514. Petition to review a Sixth Circuit decision holding that state courts have concurrent jurisdiction over citizen suits under the Resource Conservation & Recovery Act (RCRA). 148 F. 3d 606 (6th Cir. 1998). Status: Petition denied November 30, 1998.

Pneumo Apex Corp. v. Highpoint, Thomasville & Denton RR Co., Case No. 98-337. Petition to review a Fourth Circuit decision holding that materials sent for recycling are not "discarded" under CERCLA and RCRA and denying the petitioners the right to seek contribution for cleanup of a metals foundry where the railroad companies sent used bearings for recycling. 142 F. 3d 769 (4th Cir. 1998). Status: Petition denied November 2, 1998.

City of Monterey, CA v. Del Monte Dunes of Monterey, Ltd., Case No. 97-1235. Petition to review a Ninth Circuit decision 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. 95 F. 3d 1422 (9th Cir. 1996). Status: Oral argument held October 7, 1998.

Vokema v. Michigan, Case No. 98-388. Petition to review a Michigan court decision holding that the entire parcel available for development would be considered in a takings analysis, not just the portion designated as wetlands, and that, under the circumstances, no taking occurred. 542 N.W. 2d 282 (Mich. App. 1995). Status: Petition denied December 7, 1998.

National Solid Waste Management Association v. Williams, Case No. 98-424. Petition to review an Eighth Circuit decision upholding Minnesota's requirement of in-state processing of local governmental waste under the "market participant" exception to the Commerce Clause. NSWMA v. Minnesota Pollution Control Agency, 146 F. 3d 595 (8th Cir. 1998). Status: Petition denied November 16, 1998.

FIFTH CIRCUIT

Uniroyal Chemical Co. v. Deltech Corp., Case No. 96-31226. Appeal of a trial court decision holding that a truck is not a "facility" under CERCLA because it is a "consumer product in consumer use." Status: The court reversed on November 10, 1998. 160 F. 2d 238. On motion for rehearing, the court clarified that the case was being remanded for proceedings consistent with the opinion. 1999 WL 7912 (5th Cir. Jan. 8, 1999).

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.

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: Notice of appeal filed October 21, 1998; Appellant's brief filed December 28, 1998.

TENTH CIRCUIT

Amigos Bravos v. Molycorp, Inc., Case No. 97-2327. Appeal of a trial court decision holding that two citizen groups' claims against the operator of a molybdenum mine amounted to a challenge to the mine's federal discharge permit and should have been brought when the permit was renewed. Status: On November 13, 1998, the court affirmed in an unpublished opinion. 1998 WL 792159.

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: Appellants' brief filed November 25, 1998; Appellee's brief due February 3, 1999.

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: Notice of appeal filed September 18, 1998.

Bennett Electric Co. v. Village of Miami Shores, Case No. 98-4919. Appeal of a district court decision upholding the Village's requirement that all commercial and residential units must use the Village's waste collection services unless authorized to use a private collector. 11 F. Supp. 1349 (S.D. Fla. 1998). Status: Voluntarily dismissed on November 16, 1998.

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: Petition filed on August 3, 1998.

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: Petition filed October 30, 1998. Motion to transfer case to Seventh Circuit pending. Parties to file proposed briefing schedules by January 28.

George E. Warren Corp. v. EPA, Case No. 97-1651. Challenge to EPA's rule implementing the anti-dumping provisions of the Clean Air Act's reformulated gasoline program. Status: The court upheld the rule on November 3, 1998.

Clean Air Implementation Project v. EPA, Case No. 97-1117. Challenge to EPA's credible evidence rule under the Clean Air Act. Status: The court dismissed the challenge on August 14, 1998. 150 F. 3d 1200.

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: 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.

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.