Note:  Status of cases is as of September 14, 2001.  Readers are encouraged to advise the authors of pending appeals that should be included.

FLORIDA SUPREME COURT

     Broward County v. G.B.V. International, Ltd., Case No. SC93115.  Petition to review a Fourth DCA opinion based on conflict with City of Deerfield Beach v. Vaillant (Florida 1982).  G.B.V. sought to amend the Broward County Land Use Plan to change designation of its parcel from "industrial" to "residential" to allow construction of garden-style apartments.  The County Commission adopted the amendment, but at a compromise reduced density of six units per acre.  G.B.V. later sought approval of a perimeter plat for the development at a density of ten units per acre, which the Commission approved, but again at the reduced density.  G.B.V. sought certiorari in circuit court of the density determination, which petition was denied.  G.B.V. then sought certiorari in the district court, which granted the petition and remanded for entry of an order approving the plat at ten units per acre.  709 So. 2d 155 (Fla. 4^th DCA 1998).  Status: On June 7, the Court approved in part and quashed in part, holding that the district court improperly evaluated the merits of the Commission's decision and remanding the case to the circuit court to grant the initial petition and apply the three-pronged standard of review for "first tier" review set forth in Vaillant.  787 So. 2d 838.

     Costco Wholesale Corp. v. Orange County, Case No. SC0382.  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. 5^th DCA 2001).  Status:  Oral argument set for January 7, 2002.

     Panda Energy International v. Jacobs, et al., Case No. SC01284.  Appeal of a determination of need issued by the Public Service Commission for construction of a new 530 megawatt power plant in Polk County.  Status:  Notice of appeal filed February 2, 2001.

     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. 5^th DCA 2000).  Status:  Oral argument held August 28, 2001.

     Qualls v. Board of County Commissioners of Clay County, 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, 2000, 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?"  772 So. 2d 544 (Fla. 1^st DCA 2000).  Status:  Review denied July 2, 2001.

FIRST DCA

     Parlato v. Secret Oaks Owners Association, Case No. 1D99-1303.  Appeal of a DEP final order denying a consent of use, but granting a wetland resource permit, for construction of a dock adjacent to petitioners' riparian property, ruling that DEP's concurrent review rules, adopted after DEP published its notice of intent to issue the permit, could not be applied at the hearing to impose additional conditions for issuance of the wetland resource permit.  DEP Case Nos. 00-0269, 00-0306.  Status:  The court reversed with orders to grant the application on September 13, 2001.

     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 an 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:  Motion to dismiss granted September 10, 2001.

     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 a proposed cement plant.  The final order adopted the ALJ's recommendation to dismiss the amended petition.  2000 WL 1185503 (DEP00-0216).  Status:  Oral argument scheduled for October 17, 2001.

     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 an application for a site plan for a religious facility to be located at a residential site.  Status: The parties have now entered into a settlement agreement that would allow the facility.

     Florida 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:  The court reversed on June 12, 2001, holding that the statutory delegation over endangered marine life in Chapter 99-245 was constitutional, and subject to APA rulemaking requirements.  Rehearing denied on July 27, 2001.  789 So. 2d 1053.

     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:  The court affirmed on September 13, 2001.

FOURTH DCA

     Board of Trustees of the Internal Improvement Trust Fund v. Lost Tree Village, Case No. 4D00-3405.  Appeal of a circuit court decision holding that Lost Tree Village holds the title to submerged lands surrounding certain barrier islands in an aquatic preserve north of Vero Beach.  Status:  Oral argument was held on June 13, 2001.

     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 was held on June 13, 2000.

U.S. SUPREME COURT

     Wetlands Action Network v. Army Corps of Engineers, Case No. 00-1692.  Petition to review a Ninth Circuit opinion holding that the National Environmental Policy Act (NEPA) does not require the Corps to assess the cumulative environmental impacts of the entire first phase of a 1,000-acre development on the California coast in order to grant a permit to dredge and fill in the wetland portion of the parcel and does not require the Corps to consider all three phases of the development in a single NEPA analysis, and upholding the Corps' Finding of No Significant Impact.  222 F.2d. 1105 (9^th Cir. 2000).  Status:  Petition filed May 10, 2001.  Application for stay denied June 29, 2001.

     Dixie Distributing Co. v. Carter-Jones Lumber Co., Case No. 00-1615.  Petition to review a Sixth Circuit decision holding a corporate officer liable under CERCLA based on his own actions in directing the disposal of PCB wastes, holding that state, not federal, common law should apply in CERCLA veil-piercing claims.  237 F.3d 745 (6^th Cir. 2001).  Status: Petition denied June 11, 2001.

     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:  The court reversed and remanded on June 28, 2001, holding that the claims were ripe and there was no automatic bar to suit.  121 S. Ct. 2448.

     Rapanos v. United States, Case No. 00-1428.  Petition to review a Sixth Circuit decision upholding Rapanos' conviction under the Clean Water Act for filling a wetlands without a permit.  Rapanos is asserting that the Clean Water Act does not provide permitting jurisdiction over isolated intrastate wetlands and that his conviction violated due process.  235 F. 3d 256 (6^th Cir. 2000).  Status:  On June 18, 2001, the Court granted the petition, vacated the judgment and remanded for further consideration in light of the Solid Waste Agency of No. Cook County case.  121 S. Ct. 2518.

SECOND CIRCUIT

     United Haulers Assoc. v. Oneida-Herkimer Solid Waste Management Authority, Case No. 00-7593.  Appeal of a Northern District of New York court decision granting summary judgment in favor of the plaintiffs and holding that ordinances which required waste generated within the subject counties to be delivered to publicly owned facilities in the counties facially violated the Commerce Clause of the federal constitution.  Status:  On July 27, 2001, the court reversed and remanded, holding that the ordinances did not violate the Commerce Clause and ordering the lower court to determine whether the governmental interests protected by the ordinances were outweighed by the burdens on interstate commerce.  2001 WL 849204.

THIRD CIRCUIT

     South Camden Citizens in Action v. New Jersey Department of Environmental Protection, Case No. 01-2224, 01-2296.  Appeal of a district court decision granting 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.  145 F.Supp.2d 505 (D.N.J. 2001).  Status:  Notice of appeal filed May 15, 2001.

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:  The court affirmed on June 4, 2001.  252 F. 3d 318.

FIFTH CIRCUIT

     Rice v. Harken Exploration Co., Case No. 99-11229.  Appeal of a district court decision holding that intermittent streams or "ephemeral waters"  that flow only seasonally are not "navigable waters" and are therefore excluded from the jurisdiction of both the Clean Water Act and the Oil Pollution Act.  89 F. Supp. 2d 820 (1999).   Status: On April 25, 2001, the Court affirmed.  Rehearing en banc denied June 14.  250 F.3d 264.

NINTH CIRCUIT

     Borden Ranch Partnership v. Army Corps of Engineers, Case No. 00-15700.  Appeal of a district court decision assessing a $1.5 million fine against a real estate developer for destroying wetlands on a cattle ranch.  1999 WL 1797329 (E.D.Cal. 1999).  Status: The court upheld most of the fine on August 15, 2001, holding that the deep ripping the developer had done on the ranch to convert it to vineyards and orchards violated the Clean Water Act as discharges of pollutants from a point source to waters of the United States and holding that each individual pass of the ripper constituted a separate violation.  The court remanded for recalculation of some of the fine after the Corps withdrew a portion of the enforcement action that concerned isolated wetlands, pursuant to the Solid Waste Agency of No. Cook County case.  2001 WL 914217.

     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:  Notice of appeal filed May 24, 2000.

     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:  Oral argument scheduled for November 5, 2001.

ELEVENTH CIRCUIT

     U.S. v. Mountain Metal et al., Case No. _____.  Appeal of a district court opinion holding that various parties that shipped lead acid batteries to a recycler did not have an objectively reasonable basis to believe that the batteries would not be recycled or that the recycling facility was not in compliance with environmental laws and that the parties were therefore exempt from CERCLA pursuant to the Superfund Recycling Equity Act of 1999.  137 F.Supp.2d 1267 (N.D.Ala. 2001).  Status: Notice of appeal filed May 16, 2001.

D.C. CIRCUIT

     Cement Kiln Recycling Coalition v. EPA, Case No. 99-1457.  Challenge to EPA's emission standards for hazardous waste combustors.  Status:  On July 24, 2001, the court held that the MACT provision of the Clean Air Act required EPA to set maximum emission floors that reflect emission levels actually achieved by the best performing sources, not those achieved by all sources using MACT, and that EPA could properly use RCRA compliance test data for combustors to determine combustor emissions.  255 F.3d 855.

     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.

     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:  Oral argument scheduled for February 25, 2002.

     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:  Motion granted holding case in abeyance pending rulemaking.

     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, 2001, 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.

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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 LLP.