Note: Status of cases is as of January 17, 2001. Readers are encouraged to advise the authors of pending appeals that should be included.
FLORIDA SUPREME COURT
Barley v. South Florida Water Management District, Case No. SC001998. 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, because the amendment is not self-executing. 766 So. 2d 433 (Fla. 5th DCA 2000). Status: Notice of appeal filed September 25.
Board of County Commissioners of Clay County v. Qualls, Case No. SC0125. Petition to review a First DCA opinion holding that the trial court applied the incorrect standard of review in quashing the Board's decision not to approve Quall's small-scale comprehensive plan amendment and rezoning application. On December 6, the First DCA certified the following question to the 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?" 25 F.L.W. D2094 (Fla. 1st DCA Aug. 30, 2000), as amended (Dec. 6, 2000). Status: Petition for review filed January 4, 2001.
Flo-Sun, Inc. v. Kirk, Case Nos. SC95044 and SC95045. 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. Kirk v. U.S. Sugar Corp., 726 So. 2d 822 (Fla. 4th DCA 1999). Status: Oral argument held June 6.
Las Olas Tower Co. v. City of Ft. Lauderdale, Case No. SC95674. 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, 2000. No oral argument will be held.
Tampa Electric Company, et al. v.
Garcia, et al., Case Nos. SC95444 - 95446. 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. Petition for rehearing denied September 28. 767 So. 2d 428. Editor's Note: A petition for review has been filed in the U.S. Supreme Court. See cases listed under that heading.
Coastal Development of N. Florida, Inc. v. City of Jacksonville Beach, Case No. SC95686. 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: Oral argument held October 6. Editor's note: See related cases before the Florida Supreme Court (Qualls, Minnaugh).
Minnaugh v. County Commission of Brevard County, Case No. SC00875. 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 scrutiny? 752 So. 2d 1263 (Fla. 4th DCA 2000). Status: Petition granted October 13. No oral argument will be held.
FIRST DCA
Veal et al. v. Escambia County, Case No. 1D99-3359. Appeal of a DOAH final order dismissing a petition challenging a portion of the County's land development code as inconsistent with its comprehensive plan, on the ground that the petitioners failed to first petition the county, as required by section 163.3213(3), Florida Statutes. Status: The court affirmed on December 12. 25 F.L.W. D2863.
Florida Chapter of the Sierra Club, et al. v. Suwannee American Cement Company, Inc., et
al., Case No. 1D00-2355. Appeal of a DEP final order granting air pollution permit authorizing the construction of a proposed cement plant approximately four miles west of the Ichetucknee River. 2000 WL 1185499 (DEP00-0514). Appellants argue that the air permit should be denied solely based on a failure to comply with certain water quality criteria. Status: Notice of Appeal filed June 16.
Woodhouse, et al. v. Suwannee American Cement Company, Inc., et
al., Case No. 1D00-2342. Appeal of a DEP final order dismissing request for administrative hearing to contest DEP intent to issue air permit for proposed cement plant. The final order adopted the ALJ's recommendation to dismiss the amended petition. 2000 WL 1185503 (DEP00-0216). Status: Notice of Appeal filed June 20. Motion to dismiss deferred to panel.
City of Tallahassee, et al. v. Taoist Tai Chi Society, Case Nos. 1D00-2098 and -2099. Appeal of a circuit court order granting petition for writ of certiorari and quashing the final order of the Tallahassee-Leon County Planning Commission rejecting application for a site plan for a religious facility to be located at a residential site. Status: Oral argument scheduled for February 14.
Fish & Wildlife Conservation Commission v. Caribbean Conservation
Corp., Case Nos. 1D00-1389 and -1804. Appeal of a circuit court decision holding that the Fish & Wildlife Conservation Commission (FWCC) has the constitutional authority to promulgate rules related to endangered or threatened species, that the FWCC is not an administrative agency subject to the APA, and that Chapter 99-245, Laws of Florida, is unconstitutional to the extent that it seeks to require the FWCC to comply with the APA. Status: Oral argument scheduled for March 20.
Department of Environmental Protection v. Burgess, Case No. 1D99-1764. 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: The court reversed on July 6. Motion for rehearing denied December 20. 25 F.L.W. D1615.
Save the Manatee Club, Inc. v. SWFWMD, Case No. 1D99-4819. 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: The court affirmed December 1. 25 F.L.W. D2747.
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: Oral argument was held November 7.
Caribbean Conservation Corp., Inc., et al. v. Department of Environmental
Protection, Case No. 1D00-1037. Appeal from final summary judgment dismissing challenge to Section 4 of 1999 Florida Forever legislation, Ch. 99-247, due to alleged violation of single subject requirement. Case No. 99-4871 (2d Cir., Feb. 14, 2000). Status: The court affirmed per curiam on November 14.
SECOND DCA
Southwest Florida Water Management District v. Charlotte County, Case Nos. 2D97-1626, -2204 and -2206. 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: On September 1, the court held that the challenged rules and policies were valid. 25 F.L.W. D2113. On January 5, 2001, the court issued a revised opinion on consolidated rehearing holding that challenges to certain of the proposed rules were moot because the rules had been withdrawn, reversing the administrative law judge's conclusions declaring the other proposed rules invalid, and affirming the administrative law judge's conclusions declaring certain existing rules valid. 2001 WL 10391.
Citizens for Sanity v. Pasco County, Case No. 2D00-2250. Appeal of a circuit court order granting summary judgment to the County in an action by environmentalists seeking a county-wide development moratorium until certain wildlife protection ordinances are adopted by the County. Status: Appeal dismissed on November 27.
THIRD DCA
Florida Bay Initiative, Inc. v. Department of Transportation and South Florida Water Management
District, Case Nos. 3D97-2071 and -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: Appeal dismissed sua sponte on September 12. 768 So. 2d 1085.
FOURTH DCA
Pinecrest Lakes, Inc. v. Brooks, et al. (Case No. 4D99-2641) and Pinecrest Lakes v. Martin County (Case No. 4D99-2725). 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: Oral argument held on June 13.
U.S. SUPREME COURT
City of New Smyrna Beach v. Tampa Electric Company, Case No. 00-1052. Petition to review a Florida Supreme Court decision quashing an order of the Public Service Commission that granted a joint petition for determination of need for an electrical power plant filed by Duke Energy and the City of New Smyrna Beach, on the ground that Florida law does not authorize so-called "merchant power plants" like the one proposed. 767 So. 2d 428 (Fla. 2000). Status: Petition for review filed December 27.
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 on whether EPA must consider economic costs when setting air standards (Case No. 99-1426). Oral argument held November 7. 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: The court reversed on January 9, 2001, holding that the Corps lacked jurisdiction to require a permit. 2001 WL 15333.
Palazzolo v. Rhode Island ex rel Tavares, Case No. 99-2047. Petition to review a ruling by the Rhode Island Supreme Court holding that a coastal wetlands property owner lacked reasonable investment-backed expectations to develop the property and thus upholding dismissal of his inverse condemnation suit because the regulations barring development predated his acquisition of the property, and also holding that his claim was not ripe because he had not first filed a lesser-use application for development. 746 A.2d 707 (R.I. 2000). Status: Oral argument is scheduled for February 26.
Commander Oil Corp. v. Barlo Equipment Corp., Case No. 00-373. Petition to review a Second Circuit decision holding that the lessee of contaminated property is not liable as an owner under CERCLA unless it is shown that the lessee held all the rights of property ownership as to the property, reversing the lower court. 215 F.3d 321 (2d Cir. 2000). Status: Petition denied November 6.
Saboff v. St Johns River Water Management District, Case No. 99-2011. Petition to review an Eleventh Circuit decision reversing an award of $114,100 to the Saboffs as compensation for the habitat conservation regulations that restricted development of more than half of their residential lot. 200 F.3d 1356 (11th Cir. 2000) Status: Petition denied October 2.
Appalachian Power Co. v. EPA, Case Nos. 00-445, -632, -633. Petition to review a DC Circuit Court opinion holding that EPA's NOx SIP call/ozone transport rule did not violate the constitutional non-delegation doctrine. Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000). Status: Petitions filed September 20 and October 20. Editor's Note: See related case under D.C. Circuit Court of Appeals heading. Michigan v. EPA, Case No. 00-746. Petition to review a D.C. Circuit case holding that Congress unlawfully delegated authority under the Clean Air Act to Native American tribes to redesignate areas and alter air quality standards within reservation boundaries. Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000). Status: Petition filed November 9.
Krilich v. U.S., Case No. 00-239. Petition to review a Seventh Circuit opinion upholding a penalty assessed against a developer for Clean Water Act wetlands violations, on the ground that the government exceeded its authority in asserting jurisdiction over isolated wetlands used by migratory birds. 209 F.3d 968 (D.C. Cir. 2000). Status: Petition denied November 13.
Fiore v. White, Case No. 98-942. Petition to review a Third Circuit decision denying Fiore federal habeas corpus relief from his state conviction for violation of a Pennsylvania statute prohibiting operation of a hazardous waste facility without a permit, despite a Pennsylvania Supreme Court decision holding that Fiore's conduct was not within the scope of the statute. 149 F.3d 221 (3d Cir. 2000) Status: The Court overturned Fiore's conviction on January 9 as inconsistent with the Due Process Clause of the federal constitution. 2001 WL 15674.
THIRD CIRCUIT
Gould, Inc. et al. v. A&M Battery & Tire Service, et al., Case No. 99-3294. Appeal of a district court ruling holding a battery recycler liable for contribution as a PRP under CERCLA. 987 F.Supp. 353 (M.D.Pa. 1997). Status: On October 31, the court reversed, holding that the recycling exemption from CERCLA liability effective on November 29, 1999, applied retroactively to pending private party actions against recyclers. 232 F.3d 162.
FOURTH CIRCUIT
Gilmore v. Waste Management Holdings, Case No. 00-1185. Appeal of a district court summary judgment holding that Virginia statutes that capped the amount of waste landfills in the state could accept and restricting the use of barges to transport waste violated the federal Commerce Clause. 87 F. Supp.2d 536 (E.D.Va. 2000). Status: Oral argument held December 7.
NINTH CIRCUIT
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning
Agency, Case Nos. 99-15641 and 99-15771. Appeal of a district court decision on remand from the U.S. Supreme Court holding that the Planning Agency unconstitutionally denied landowners use of their land by enacting a three-year moratorium on construction. 992 F.Supp. 1218 (D. Nev. 1998). Status: On June 15, the court reversed, holding that the temporary moratorium was not a categorical taking. 216 F.3d 764. Rehearing en banc denied October 20. 228 F.3d 998.
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: Notice of appeal filed May 24.
A.G.G. Enterprises, Inc, v. Washington County, Oregon, Case No. 00-35510. Appeal of a district court decision holding that recyclable materials are "property," not "waste," and therefore not subject to federal regulation under RCRA. 2000 WL 361892 (D. Ore. 2000). Status: Notice of appeal filed June 8.
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: In abeyance until January 28, pending publication of final rule.
Appalachian Power Co. et al. v. EPA, Case Nos. 99-1268, -1270, -1271, -1274-81, -1284, -1286-88, -00-1169, -1187, -1189-90. Challenge by electric utilities to EPA's approval of petitions filed under Section 126 of the Clean Air Act by eight Northeastern states which request 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: On October 13, the Court granted a motion for partial vacatur, vacating portions of EPA's NOx SIP call establishing NOx emission budgets for Georgia and Wisconsin and remanding in light of the D.C. Circuit Court case in Michigan v. EPA, 213 F.3d 663. Remainder of cases held in abeyance pending further court order; EPA is directed to file status reports every 180 days. The remaining cases remain scheduled for oral argument on March 23, 2001. 2000 WL 1683469. Editor's note: A petition to review the Michigan v. EPA case is currently before the U.S. Supreme Court.
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. Status reports due January 29. Specialty Steel Industries of North America 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: Petition filed October 10. The TMDL Coalition v. EPA, Case No. 00-1468. Petition to review EPA's Total Maximum Daily Load (TMDL) rule. Status: Petition filed November 7.
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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 an attorney in the Tallahassee office of Holland & Knight
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