Note: Status of cases is as of June 28, 2002. Readers are
encouraged to advise the authors of pending appeals that should be
included.
FLORIDA SUPREME COURT
Bradfordville Phipps Ltd Partnership v. Leon County, Case No.
SC02-283. Petition to review a First DCA decision affirming a circuit
court decision denying the Partnership's motion for summary judgment
and granting summary judgment in favor of the County in the
Partnership's inverse condemnation action. The action was filed
following imposition of a temporary injunction against certain
development permits within an area known as the Bradfordville Study
Area, and the Partnership owns property within that area. 804 So. 2d
464 (Fla. 1st DCA 2001, rehearing denied Jan. 7, 2002). Status:
Petition filed February 7.
Miami-Dade County v. Omnipoint Holdings, Case No. SC02-815.
Petition to review a Third DCA opinion upholding a lower court
decision allowing Omnipoint to build a communications tower in a local
community despite the refusal of the community council to grant a
zoning exception. The Third DCA declared that the entire zoning code
was "legally deficient because it lacks objective criteria for the
County's zoning boards to use in their decision-making process" and
was overly vague. 811 So. 2d 767 (Fla. 3d DCA 2002). Status: Petition
filed April 8.
U.S. Sugar v. Henson, Case No. SC01-1127. Petition to review a
First DCA decision in a workers' compensation case admitting
scientific evidence concerning the effect of chronic exposure to
pesticides. 787 So. 2d 3 (Fla. 1st DCA 2001). Status: The court
affirmed on June 6, holding that the Frye general acceptance standard
for admissibility of novel scientific evidence applied.
Costco Wholesale Corp. v. Orange County, Case No. SC01-382.
Petition to review a Fifth DCA case holding that an ordinance which
required a 5,000 foot minimum setback between liquor package stores
was arbitrary and capricious and therefore unconstitutional, as it
lacked a reasonable relationship to public health, morals and welfare.
780 So. 2d 198 (Fla. 5th DCA 2001). Status: The court reversed on June
27.
Panda Energy International v. Jacobs, et al.,
Case No. SC01-284. Appeal of a determination of need issued to the
Florida Power Corporation by the Public Service Commission for
construction of a new 530 megawatt power plant in Polk County. The
issues are whether FPC's self-build option was properly selected over
that of Panda Energy and whether the FPC need determination was valid.
Status: On February 21, the court approved the determination of need.
813 So. 2d 46.
Barley v. South Florida Water Management District, Case No.
SC00-1998. Petition to review a Fifth DCA decision holding that the
"Polluter Pays" amendment to the constitution did not bar the water
management district from levying a tax to clean up the Everglades on
all property owners within the district, instead of just those
primarily responsible for the pollution, because the amendment is not
self-executing. 766 So. 2d 433 (Fla. 5th DCA 2000). Status: The court
affirmed on April 11. 27 FLW S308. On April 26, the Attorney General
and the Everglades Foundation filed a motion for clarification.
Sarnoff v. Department of Highway Safety & Motor Vehicles, Case
No. SC01-351. Petition to review the constitutionality of the $10 fee
motorists in six counties were required to pay up until July 2000
under the mandatory auto emissions inspection program. The First DCA
reversed an order granting class certification on the ground that the
plaintiffs had failed to exhaust their administrative remedies by
first seeking a refund of the fee from the state comptroller. 776 So.
2d 976 (Fla. 1st DCA 2001). Status: Oral argument held November 7,
2001.
Pinecrest Lakes, Inc. v. Shidel, Case No. SC01-2429. Petition
to review a Fourth DCA decision holding that because section 163.3194
of the Florida Statutes provides for injunctive relief to prevent a
local government from taking action on a development order that is
inconsistent with its comprehensive plan, courts are required to grant
an injunction whenever an aggrieved party shows that a project is
inconsistent with the comprehensive plan, notwithstanding the fact
that the County Commission had earlier determined that the development
order was consistent with the comprehensive plan and that issuance of
the injunction would require the builder to remove five apartment
buildings. 795 So. 2d 191 (Fla. 4th DCA 2001). Status: Review denied
May 31.
City of Jacksonville v. Dixon, Case No. SC01-103. Petition to
review a First DCA decision reversing a circuit court order which
denied the Dixons' motion to enjoin the City from implementing an
ordinance (development order) which would rezone certain property to
allow construction of a hotel. Applying the strict scrutiny test, the
court held that the development order was inconsistent with the City's
comprehensive plan and that the City was not entitled to deference in
its interpretation of its own comprehensive plan. 774 So. 2d 763 (Fla.
1st DCA 2000). Status: Petition granted January 22. No oral argument
will be heard.
Board of Trustees of the Internal Improvement Trust Fund v. Day
Cruise Association, Case No. SC01-2656. Petition to review a First
DCA decision holding that a proposed Trustees rule prohibiting
gambling "cruises to nowhere" from docking over sovereign submerged
lands was an invalid exercise of delegated legislative authority. 798
So. 2d 847 (Fla. 1st DCA 2001). Status: On November 2, 2001, on motion
for clarification, rehearing, certification or rehearing en banc, the
First DCA denied rehearing, but certified the following question: "Is
proposed rule 18-21.004(1)(i) an invalid exercise of delegated
authority within the meaning of section 120.52(8)(b)?" Petition filed
December 3, 2001.
Caribbean Conservation Corp. v. Florida Fish & Wildlife Conservation
Commission, Case No. SC01-1885. Petition to review a First DCA case
holding that Chapter 99-245, Laws of Florida, is a constitutional
statutory delegation of authority over endangered marine life to the
Fish and Wildlife Conservation Commission (FWCC) and holding that the
FWCC is subject to the rulemaking requirements of the APA in
promulgation of rules related to such species. 789 So. 2d 1053 (Fla.
1st DCA 2001). Status: Petition granted April 12. Oral argument
scheduled for August 27.
FIRST DCA
Jacqueline Lane v. DEP, Case No. 1D02-2043, and Apalachicola
Bay and River Keeper, Inc. et al. v. DEP, Case No. 1D02-2319. Appeal
of a DOAH final order upholding DEP's rule establishing the criteria
for determining whether a state water body is "impaired", thereby
requiring development of a Total Maximum Discharge Limit (TMDL).
Status: Notice of appeal in Case No. 1D02-2043 filed on May 22; notice
of appeal in Case No. 1D02-2319 filed June 7.
Florida Wildlife Federation et al. v. Collier County, Case No.
1D01-1299. Appeal from a final order of the Department of Community
Affairs finding interim amendments to the Collier County comprehensive
plan that designated specified areas within the county as "Natural
Resource Protection Areas" to protect indigenous species and
authorized only agricultural and directly-related uses and one
single-family dwelling per parcel within such designated areas.
Status: The court affirmed on May 28. 2002 WL 1049732
Save the Manatee v. Whitley, Case No. 1D01-2359. Appeal of a DEP final
order dismissing Petitioner's challenge to a proposed consolidated ERP
and submerged land lease to build a marina, concluding that the
doctrine of equitable tolling did not apply to extent the time for
filing a petition under section 373.427(2)(c). Status: The court
affirmed per curiam on March 27. 812 So. 2d 412.
Wilkinson v. Florida Fish & Wildlife Conservation Commission, Case No.
1D02-1841. Appeal of a summary judgment in favor of the Commission on
a boater's action for declaratory judgment challenging the
Commission's administrative rule establishing a manatee protection
zone in Leon County. Status: Notice of appeal filed May 9.
SECOND DCA
The Florida Electric Power Coordinating Group v. DEP, Case No.
2D02-1788. Appeal of a DOAH final order denying petitioner's attorneys
fees and dismissing its petition challenging DEP's attempt to insert
an additional general condition into the wastewater permits of its
members as an unpromulgated rule. Dismissal was granted after DEP
initiated rulemaking, and the FCG contends that DOAH was still
required to award fees. Status: Notice of appeal filed May 1; appeal
dismissed May 30.
FOURTH DCA
Tuten v. DEP, Case No. 4D01-513. Appeal of a DEP final order
denying an application for ERP based on the applicant's failure to
provide additional information needed to process the permit, on the
ground that DEP's delay in processing the permit warranted issuance of
a default permit. Status: On May 15, the court reversed and ordered
DEP to issue the permit after a hearing to determine permit conditions
necessary to protect the environment. 27 FLW 1150.
FIFTH DCA
Marion County v. DCA, Case No. 5D01-1891. Appeal of a summary
final judgment holding that the County's ordinance that allowed
manufactured buildings to be installed "in all zoning classifications
which allow residential structures, except R-1 properties located in
subdivisions" conflicted with state statute section 553.38 and was an
invalid attempt "to restrict manufactured housing within a
residentially zoned area that otherwise permits on-site construction."
Status: The court affirmed on June 7.
Mann v. Orange County, Case No. 5D01-1741. Petition for
certiorari review of a circuit court decision upholding the County's
action in denying a proposed rezoning request based on a lack of
adequate school facilities to support the planned residences. Status:
Petition denied February 11. Motion for rehearing is pending.
U.S. SUPREME COURT
Elias v. U.S., Case No. 01-1502. Petition to review a 9th
Circuit decision upholding Elias' conviction and 17-year sentence
under RCRA's hazardous waste laws for knowingly exposing a worker to
cyanide poisoning. Elias, the owner of Evergreen Resources, a
fertilizer company in Idaho, was convicted in 1990 for ordering an
employee to clean a storage tank without protective equipment, even
though the tank was contaminated with cyanide. The employee suffered
severe and permanent brain damage. 269 F.3d 1003. Status: Petition
filed April 8.
Borden Ranch Partnership v. U.S. Army Corps of Engineers, Case
No. 01-1243. Petition to review a 9th Circuit decision holding that a
permit is required under Section 404 of the Clean Water Act for a
farming technique called "deep ripping" because it causes discharge of
soil into waters of the United States. 261 F.3d 810. Status: Petition
granted June 10.
Hansen v. United States, Case No. 01-1104. Petition to review
an Eleventh Circuit opinion upholding the 1999 criminal convictions of
three officials of a manufacturing company for RCRA, CERCLA and Clean
Water Act violations. 262 F. 3d 1217 (11th Cir. 2001). Status:
Petition denied June 3.
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning
Agency, Case No. 00-1167. Petition to review a Ninth Circuit
opinion holding that a temporary moratorium on development in the Lake
Tahoe region did not constitute a categorical regulatory taking. 216
F. 3d 764 (9th Cir. 2000). Status: On April 23, the court affirmed,
holding that the moratorium was not a per se taking requiring
compensation. 122 S. Ct. 1465.
Hamm v. Waste Management Holdings, Case No. 01-808. Petition to
review a Fourth Circuit opinion holding that the Virginia statute that
capped the amount of out-of-state waste landfills in the state could
accept and restricting the use of barges to transport waste violated
the federal Commerce Clause. Waste Management Holdings v. Gilmore, 252
F. 3d 316 (4th Cir. 2001). Status: Petition denied March 4.
United States v. Knott and Riverdale Mills Corp., Case No. 01-717.
Petition to review a Fifth Circuit opinion holding that Riverdale and
its principal owner, Knott, are not entitled to attorneys fees from
EPA under the Hyde Test for criminal enforcement charges brought for
alleged wastewater discharge violations, where the lower court ruled
that EPA and DOT had obtained the evidence for the charges illegally.
The Fifth Circuit reversed the lower court award of fees on the ground
that the government's conduct was not sufficiently "vexatious." 256 F.
3d 20 (5th Cir. 2001). Status: Petition denied February 19.
Carson Harbor Village, Ltd. v. Braley, Case No. 01-1091.
Petition to review a Ninth Circuit ruling holding that a former
property owner could not be held liable for passive migration of
hazardous substances onto his property unless the substance originated
in a container or vessel. 270 F. 3d 863 (9th Cir. 2001). Status:
Petition denied April 1.
Piney Run Preservation Association v. Carroll, Case No.
01-1172. Petition to review a Fourth Circuit decision holding that the
operator of a municipal sewage treatment plant could assert the permit
shield defense to a Clean Water Act citizen suit alleging violation of
a State of Maryland water quality standard. 268 F. 3d 255 (4th Cir.
2001) Status: Petition denied May 20.
South Camden Citizens in Action v. New Jersey Department of
Environmental Protection, Case No. 01-1547. Petition to review a
Third Circuit decision overturning a preliminary injunction
prohibiting the NJDEP from issuing an air permit for a cement
processing facility, on the grounds that the disparate impacts from
granting the permit violated Title VI of the Civil Rights Act. 274 F.
3d 771 (3d Cir. 2001). Status: Petition filed April 15.
FIFTH CIRCUIT
Aviall Services, Inc. v. Cooper Industries, Inc., Case No.
00-10197. Appeal of a district court decision holding that the
plaintiff was not entitled to recover cleanup costs from a third party
under Superfund if EPA has not issued a cleanup order. 2000 WL 31730
(N.D. Tx 2000). Status: On August 14, 2001, the Fifth Circuit held
that the plaintiff was not entitled to recover the cleanup costs. 263
F. 3d 134. On December 19, 2001, the court agreed to re-hear the
matter en banc. 278 F. 3d 416.
NINTH CIRCUIT
California v. Norton, et al., Case No. 01-16637. Appeal of a
district court decision holding that the U.S. Minerals Management
Service illegally extended 36 oil and gas development leases along
California's central coast because it failed to comply with the
Coastal Zone Management Act and the National Environmental Policy Act.
California v. Norton, Case No. 99-4964 (N.D.Cal. June 21, 2001).
Status: Notice of appeal filed August 22, 2001.
Pronsolino v. United States, Case No. 00-16026. Appeal of a
district court decision upholding EPA's authority to require TMDLs
(cleanup plans) for waters impaired only by non-point sources of
pollution. 91 F. Supp. 2d 1337 (N.D. Cal. 2000). Status: The court
affirmed on May 31.
TENTH CIRCUIT
Power Engineering v. United States, Case No. 01-1217.
Appeal of a district court opinion holding that, in an RCRA hazardous
waste case, if a state enforcement action did not address a particular
issue, EPA could initiate a separate enforcement action. 125 F. Supp.
2d 1050 (D. Colo. 2000). Status: Oral argument held March 20.
ELEVENTH CIRCUIT
Tennessee Valley Authority v. EPA, Case No. 00-12310. Challenge
to an EPA administrative compliance order holding that TVA violated
the Clean Air Act because various upgrades over the years were major
modifications requiring New Source Review, not routine maintenance.
Status: Oral argument held May 21.
Miccosukee Tribe of Indians v. South Florida Water Management
District, Case No. 00-15703. Appeal of a district court decision
finding that the operator of a pumping station violated the Clean
Water Act and granting an injunction prohibiting operation of the
station. 49 ERC 2065 (S.D. Fla. 2000). Status: On February 1, the
court affirmed the conviction, but vacated the injunction. 280 F. 3d
1364. Request for rehearing denied.
D.C. CIRCUIT
Environmental Defense Fund v. EPA, 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: In abeyance pending settlement discussions; motions to govern
future proceedings due July 1.
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: On
May 24, the court held that the rule violated the Clean Air Act by
requiring states to engage in regional rather than source-by-source
analysis in making Best Available Retrofit Technology (BART)
decisions, but that EPA did not exceed its authority by adopting a
goal of "natural visibility" and a "no degradation" standard. 2002 WL
1040579.
American Iron & Steel v. EPA, Case No. 00-1435. Petition to
review EPA's final air pollution monitoring rule and performance
standard published August 10, 2000, for requiring use of continuous
opacity monitors. Status: Oral argument held February 25.
American Farm Bureau Federation v. Whitman, Case No. 00-1320; The TMDL
Coalition v. EPA, Case No. 00-1468; and consolidated cases. Petitions
to review EPA's Total Maximum Daily Load (TMDL) rule. Status: On July
16, EPA filed a motion to stay to allow time to review the rule, and
proposing to extend the effective date of the TMDL rule by 18 months.
National Petrochemical & Refiners Association v. EPA, Case No.
01-1052. Petition to review a Clinton-era EPA rule that would cut by
90 to 95% allowable emissions of particulate matter and nitrogen
oxides from diesel trucks and buses by 2002, and would require diesel
fuel to have an average sulfur content of 15 ppm by 2006, a 97%
reduction. Status: On May 3, the court upheld the rules. 287 F. 3d
1130.
American Trucking Association v. EPA, Case No. 97-1440. On
remand from the U.S. Supreme Court, the court will decide whether
there was adequate scientific justification for the revised ozone and
particulate matter air standards EPA proposed in 1997. Status: On
March 26, the court upheld the revised standards. 283 F. 3d 355.
Natural Resources Defense Council v. Whitman, Case No. 01-1515.
Petition challenging EPA's primary drinking water standard for arsenic
as not sufficiently protective of public health. Status: Petition
filed December 14, 2001.
_________________
Lawrence E. Sellers, Jr.,
lsellers@hklaw.com, 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,
slstephe@hklaw.com, received her J.D. from the Florida State
University College of Law in 1993. She is a partner in the Tallahassee
office of Holland & Knight LLP.
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