ARTICLES

   ON APPEAL
       Lawrence E. Sellers, Jr. and Susan L. Stephens
       (September, 1997)
   

Note: Status of cases is as of August 15, 1997. Readers are encouraged to advise the authors of pending appeals that should be included.

FLORIDA SUPREME COURT

Harris v. Wilson, Case No. 86,210. Petition to review a First DCA case upholding a special assessment for solid waste disposal. 656 So.2d 512 (1995). Status: The court affirmed on March 20. 693 So.2d 945.

Martin County v. Yusem, Case No. 87,078. Appeal of a Fourth DCA affirmation of a circuit court order holding that the county improperly denied Yusem's request for amendment of the county comprehensive plan, holding that the denial was quasi-judicial and applying a "strict scrutiny" standard of review. 664 So.2d 976 (Fla. 4th DCA 1995). Status: The court reversed on March 27, holding that all plan amendments are quasi-legislative. 690 So.2d 1288.

Cecil Lang v. State of Florida, Case No. 88,609. Suit challenging the net ban amendment of the Florida Constitution as discriminatory against commercial fishermen and violative of due process. Status: Oral argument held December 5, 1996.

Advisory Opinion re: People's Property Rights Amendments, Case Nos. 88,696-88, 698. Review of the sufficiency of the Tax Cap Committee's ballot language and summary of proposed constitutional amendments, one allowing landowners to sue if the value of any of their land is diminished by a growth or environmental regulation, one striking the single-subject requirement for future amendments dealing with property rights, and one seeking to eliminate the single subject requirement for initiative petitions. Status: The court struck down all three amendments on May 15. 22 Fla.L.Weekly S271. State Farm v. Deni Associates of Florida, Case No. 89,115. Petition to review a Fourth DCA opinion certifying the following question for immediate review: "Where an ambiguity is shown to exist in a [comprehensive general liability] policy, is the court limited to resolving ambiguity in favor of coverage, or may the court apply the doctrine of reasonable expectations of the insured to resolve ambiguities in CGL policies?" 678 So.2d 397. The court has been asked to decide what constitutes a "pollutant" in the context of a pollution exclusion clause. Status: Oral argument scheduled for September 11.

Department of Environmental Protection v. Harbor Utilities, Case No. 89,723. Petition to review a Second DCA decision reversing the dismissal of DEP's complaint against Harbor's president for the discharge of untreated domestic wastewater. 684 So.2d 301 (1996). Status: The court accepted review on May 28. Board of Trustees of the Internal Improvement Trust Fund v. Key West Conch Harbor, Inc., Case No. 89,745. Petition to review a Third DCA opinion holding that dredging of submerged land can in the appropriate case constitute an "improvement" under the now-repealed Butler Act such that title passed to the upland owners. 683 So.2d 144 (1996). Status: Review denied on May 16.

In re: Everglades Pollution Responsibility Amendment, Case No. 90,042. Advisory opinion regarding the interpretation of last year's constitutional amendment stating that those polluting the Everglades should be primarily responsible for cleaning it up. Status: Oral arguments were held May 5.

FIRST DCA

Belleau v. Department of Environmental Protection, Case No. 96--2470. Appeal from a DEP final order finding owners and operators of a dry cleaning facility liable for cleanup. Status: The court reversed on June 27. 22 Fla.L.Weekly D1576.

Florida Power & Light v. State of Florida Siting Board, Case No. 96-1799. Appeal from final order denying Florida Power & Light's request to burn orimulsion fuel at its power plant in Manatee County. DOAH Case No. 94-5675EPP, F.A.L.R 96:065; 1996 WL 271677. Status: The court remanded on May 14. 693 So.2d 1025.

Coastal Petroleum v. Chiles, Case No. 96-3035. Appeal from a trial court decision holding that Coastal was not entitled to takings damages for its lost royalties in oil reserves off the Florida coast, based on a statute prohibiting exploration and drilling in certain areas off the coast. Status: The court affirmed on August 5. 1997 WL 433951; 22 Fla.L.Weekly D1895.

City of Jacksonville v. American Environmental Services, Case No. 96-4222. Appeal of a circuit court decision ruling that the City Council improperly denied a zoning exemption for a proposed hazardous waste disposal facility in North Jacksonville. Status: The court affirmed on August 5. 22 Fla.L.Weekly D1897.

Haile Community Association v. DEP and Florida Rock, Case No. 97-47. Appeal of the proposed issuance of a DEP air pollution permit for construction of a cement plant in Alachua County. Status: Initial brief filed April 28; answer briefs filed August 11.

Calder Race Course, Inc. v. Department of Business and Professional Regulation, Case No. 97-2704. Appeal of a DOAH final order invalidating proposed DBPR rule authorizing routine searches by Division of Pari-Mutuel Wagering personnel, on the grounds that there was no specific authority for the rule. DOAH Case No. 96-0343RP (June 13, 1997). Status: Notice of appeal filed June 13.

Consolidated Tomoka Land Co. v. St. John River Water Management District, Case No. 97-2996. Appeal of DOAH final order invalidating 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 were not authorized by a specific law. DOAH Case No. 97-0870RP (June 27, 1997). Status: Notice of appeal filed July 25.

SECOND DCA

Southwest Florida Water Management District v. Heard, Case No. 96- 2761. Appeal of a circuit court decision holding that the Heards did not need wetlands and surface water management permits from SWFWMD for various activities on their property because the property ceased to be wetlands after they were drained in the 1950s and because an agricultural use exemption applied. Case No. GC 95-28. Status: The court affirmed per curiam on March 26. 692 So.2d 196.

Southwest Land Developers v. Edwards and DEP, Case No. 96-936. Appeal of a DEP final order denying an application for renewal of a general permit to operate a construction and demolition debris disposal facility. DOAH Case Nos. 95-3712-3714, F.A.L.R. 96:043; 1996 WL 405234. Status: DEP final order has been stayed pending appeal. Appeal held in abeyance during negotiations.

THIRD DCA

Dade County v. Redd's Cleaners, Case No. 97-2126. Appeal of a DEP final order determining that untimely compliance with an order to remediate does not preclude participation in the dry-cleaning cleanup program. DOAH Case No. 96-3571 (DEP Final Order June 27, 1997). Notice of appeal filed July 22, 1997.

JI 441, Inc. v. Dade County, Case No. 97-01754. Appeal of preliminary injunction determining that Petroleum Cleanup Program litigation bar did not preclude Dade County's enforcement action against a program-eligible location. Status: Initial brief filed August 18, 1997.

Dade County v. Chase Federal Housing Corp., Case No. 97-0857. Appeal of final summary judgments determining that Dade County's cleanup damages and injunctive relief claims were barred by the litigation bar of the Drycleaning Cleanup Program. Case No. 94-23486 CA 11. Status: Oral argument scheduled for September 29, 1997.

Department of Environmental Protection v. Eastman Chemical Company, Case No. 96-02969. Appeal from a summary judgment that a chemical manufacturer was not liable for cleanup of contamination. Case No. 92-4789-CA09. Status: Oral argument scheduled for September 29, 1997.

Department of Environmental Protection v. CTL Distribution, Inc., Case No. 96-02768. Appeal from a summary judgment that transporters were not liable for cleanup of contamination. Case No. 92-4789-CA09. Status: Last answer brief filed July 3, 1997. No responsive brief filed.

FOURTH DCA

State v. Avatar Development Corp., Case No. 96-1639. Appeal from trial court decision dismissing a criminal misdemeanor charge against the company for violating its dredge and fill permit, on the ground that § 403.161(1)(b) and (5) were unconstitutional as applied. Case No. 95-28814MM10A&B. Status: The court reversed on July 16. 22 Fla.L.Weekly D1740.

DEP v. Fleet Credit Corporation, Case No. 96-455. Appeal of a circuit court case granting summary judgment on statute of limitations grounds for remediation of a site contaminated with hazardous substances. Case No. 93-02073(08). Status: The court reversed on March 12. 691 So.2d 512. The court refused to certify the question to the Florida Supreme Court on April 23.

City of West Palm Beach v. Board of Trustees, Case No. 95-3813. Appeal of a circuit court decision on summary judgment holding that the Butler Act entitled the city only to title to the submerged lands immediately beneath the four piers of the city marina and not to dredged areas beneath open waters. Case No. CL-94-9509 AB. Status: Oral argument held November 21, 1996.

U.S. Fire Insurance Company v. Chemairspray, Inc., Case No. 96-00578. Appeal from a final declaratory judgment that pollution was covered by insurance. Case No. CL85-5527 AD. Status: Order relinquishing jurisdiction entered April 2. Circuit court Order of Reconsideration and Vacatur of final declaratory judgment entered April 10.

Freijomel v. City of Stuart. Appeal from a DOAH final order finding DEP's arsenic soil cleanup goals to be an illegal rule. DOAH Case NO. 96-1112RU, 19 F.A.L.R. (Dec. 9, 1996). Status: Appellants moved for an extension of time to file their initial brief on August 11. Court entered order giving appellee 10 days to respond to appellant's request for stay pending settlement.

FIFTH DCA

DEP v. Frank Gibbins, Case No. 96-531. Appeal of a circuit court award of attorneys fees against DEP in a petroleum contamination remediation case. Case No. 94-32764-CICI. Status: The court reversed on June 13. 22 Fla.L.Weekly D1446. Rehearing denied July 18.

DEP v. Vatalaro, Case No. 95-3189. Appeal from a circuit court decision awarding compensation to the Vatalaros for a regulatory taking based on denial of a dredge and fill permit. Status: The court affirmed on April 8. 693 So.2d 41.

Lee v. Williams, Case No. 96-2560. Appeal of a trial court decision holding that the Lees did not have the right to build a boatlift on the Williams' side of the property boundary on the ground that the land is a tideland subject to sovereignty ownership. Status: Oral argument held April 21.

U.S. SUPREME COURT

Suitum v. Tahoe Regional Planning Agency, Case No. 96-243. Petition to review a Ninth Circuit decision holding that a property owner's takings claim was not ripe for review, because the agency had granted the owner transferable development rights in exchange for not developing her property, and those rights had not yet been sold. 80 F.3d 359 (1996). Status: The court vacated and remanded on May 27. 117 S. Ct. 1659.

United States v. Alaska, Case No. 84 Original. Original jurisdiction to determine whether the United States or Alaska owns the land underlying Alaska's North Slope. Status: On June 19, the court held that the United States held title.

Alcan Aluminum Corp. v. United States, Case No. 96-1494. Petition to review a Third Circuit opinion holding that emulsion resulting from the manufacture of aluminum can be regulated under CERCLA. 96 F.3d 1434 (1996). Status: Petition denied June 23.

Flanagan v. Ahearn, Case No. 96-1379. Petition to review a Fifth Circuit decision upholding class certification of an asbestos case. 90 F.3d 963 (1996). Status: Petition granted and judgment vacated and remanded on June 27. 117 S. Ct. 2503.

South Carolina v. Environmental Technology Council, Case No. 96-881. Petition to review a Fourth Circuit decision upholding the grant of summary judgment in favor of the Council (a trade association), holding that various South Carolina provisions restricting in-state treatment and disposal of hazardous waste from other states were unconstitutional. 98 F.3d 774 (1996). Status: Petition denied June 23.

Metro North Commuter Railway v. Buckley, Case No. 96-320. Petition to review a Second Circuit decision vacating judgment for the employer in a suit alleging negligent infliction of emotional distress in connection with asbestos exposure. 79 F.3d 1337 (1996). Status: The court reversed on June 23. 117 S. Ct. 2113.

Amchem Products v. Windsor, Case No. 96-270. Petition to review a Third Circuit decision vacating class certification in an asbestos case. 83 F.2d 610 (1996). Status: The court affirmed on June 25. 117 S. Ct. 2231.

ACORN v. Foster, Case No. 96-174. Petition to review a Fifth Circuit decision holding that the Lead Contamination Control Act's requirement that states establish remedial programs to remove lead from school and day care drinking water violated the 10th Amendment. 81 F.3d 1387 (1996). Status: Petition denied June 27.

Idaho v. Coeur d'Alene Tribe of Idaho, Case No. 94-1474. Petition to review a Ninth Circuit decision reversing the dismissal of a suit by an American Indian tribe against the state alleging ownership in submerged lands on its reservation. 42 F.3d 1244 (1994). Status: On June 23, the court held that the suit was barred by the 11th Amendment. 117 S. Ct. 2028.

The Steel Co. v. Citizens for a Better Environment, Case No. 96-643. Petition to review a Seventh Circuit decision holding that EPCRA allows citizen suits based on wholly past violations of reporting requirements. 90 F.3d 1237 (1996). Status: Petition granted February 24.

Bennett v. Spear, Case No. 95-813. Petition to review a Ninth Circuit decision holding that plaintiffs who assert no interest in preserving endangered species have no standing to sue the government for violating procedures established by the Endangered Species Act. 63 F.3d 915 (1995). Status: The court reversed on March 19. 117 S. Ct. 1154. THIRD CIRCUIT

Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, and C&A Carbone, Inc. v. Shinn, Case Nos. 96-5567-5570. Appeal of a district court ruling that New Jersey's flow control rules are unconstitutional. 931 F.Supp. 941 (D.N.J. 1996). Status: The court affirmed May 1. Rehearing denied June 5. 112 F.3d 652.

Chester Residents Concerned for Quality Living v. Seif, Case No. 97-1125. Appeal of a district court decision dismissing the plaintiffs' claims that the State of Pennsylvania discriminated against the predominantly black town of Chester in its waste siting decisions. 944 F.Supp. 413 (E.D. Pa. 1996). Status: Hearing scheduled for September 25.

FOURTH CIRCUIT

United States v. Hoechst Celanese, Case Nos. 96-2003 and 96-2051. Appeal of a district court decision holding that the company had misinterpreted the exemption provision under EPA's air toxic rules, but holding the company not liable for its violation of the Clean Air Act because it was following state guidance that had been endorsed by EPA staff. Case No. 0-92-1879-17 (D.S.C. May 10, 1996). Status: Oral argument held May 5. Several industry groups have filed an amicus brief.

SIXTH CIRCUIT

United States v. Cordova Chemical Co. of Michigan, Case No. 92-2288. Appeal of a district court decision holding that a parent corporation could be held liable as "operators" under CERCLA, regardless of actual control. 777 F.Supp. 549 (W.D. Mich. 1991). Status: The court affirmed in part on July 14, 1995. 59 F.3d 5848. Rehearing en banc granted, and the court affirmed in part and reversed in part on May 13, holding that the principles of corporate veil-piercing applied. 113 F.3d 572.

NINTH CIRCUIT

Umatilla v. Smith Frozen Foods, Case No. 97-80175. Appeal of a district court decision holding that the CWA does not regulate groundwater even if hydrologically connected to surface waters. 1997 WL 211346 (D. Ore. April 9, 1997). Status: Notice of appeal filed April 21.

Sierra Club v. EPA, Case No. 96-70223. Challenge to EPA rule allowing importation of PCBs for disposal. Status: The court overturned the rule on July 7. 1997 WL 367396. ELEVENTH CIRCUIT

United States v. Olin Corp., Case No. 96-6645. Appeal of a district court decision holding that a manufacturer of industrial chemicals was not liable for Superfund cleanup because Congress did not expressly state that property owners would be liable for dumping occurring prior to the enactment of Superfund in 1980. 927 F.Supp. 1502 (S.D. Ala. 1996). Status: The court reversed on March 25. 107 F.3d 1506.

United States v. Banks, Case No. 95-5167. Appeal of a district court decision holding that Banks violated the CWA for discharging dredged material. Case No. 91-10102-CIV-JLK (S.D. Fla. 1995). Status: The court affirmed on June 24. 115 F.3d 916.

D.C. CIRCUIT

U.S. Corps of Engineers v. American Mining Congress. Appeal of a district court decision invalidating the Corps rule regulating incidental fall- back during dredging operations. 951 F.Supp. 267 (D.D.C. 1997). Status: Notice of appeal has been filed. All briefs to be filed by November 19. In the meantime, the court granted a stay of the lower court decision on June 23. (Lower Case No. 93-1754 SSH).

Sierra Club v. Browner, Case No. 96-1680. Suit to enforce certain portions of the Clean Air Act, requiring EPA to set emissions standards and controls by November 15, 1995, to protect large water bodies from pollution deposition. Status: Suit filed July 18.

Texas Natural Resource Conservation Commission v. Browner, Case No. 96-1203. Challenge to EPA's position that the state's established new source review permitting program must meet additional requirements of the Clean Air Act's Title V operating permits program. Status: Petition filed August 16, 1996. Editor's Note: Identical suit also filed in Fifth Circuit, Case No. 96-60544.

Davis County Solid Waste Management and Energy Recovery Special District v. EPA, Case No. 95-1611. Challenge to EPA's municipal solid waste incineration emission standards. Status: The court vacated the standards on December 6, 1996. 101 F.3d 1395. On February 20, EPA requested rehearing to ask that the court vacate only those parts of the standards applicable to incinerators burning less than 250 tons of waste per day. On March 21, the court granted the request. 108 F.3d 1454. Modified opinion issued March 21.

Virginia v. EPA, Case Nos. 95-1163, 95-1177 and 95-1180. Challenge to EPA rule requiring states to implement California's motor vehicle emission standard. Status: The court vacated the rule on March 11. 108 F.3d 1397. Decision modified on rehearing, severing a portion of the rule from the invalid remainder. 116 F.3d 499.

American Lung Association v. Browner, Case No. 96-1251. Suit to force EPA to adopt a nationwide five minute SO2 air emissions standard. Status: Oral argument scheduled for September 26.

Chemical Manufacturers Association, et al. v. EPA, Case Nos. 96-5203, -5188 and -5204. Appeal of a district court decision upholding EPA's 1994 rule adding 286 chemicals to the Toxic Release Inventory. Status: Affirmed on August 1.

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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.

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.