2015

October 2015 — Partner Tony Gorski successfully defended against a contempt action brought against a rural property owner by the state in an environmental remediation and wetland matter.

October 2015 — In the Circuit Court for Anne Arundel County, Partner Tony Gorski and Associate Peter Hershey, in conjunction with Anne Arundel County, successfully obtained dismissal of a complaint seeking to prohibit the construction and operation of a rubble landfill.

October 2015 — Partner Tony Gorski successfully appealed to the Maryland Court of Special Appeals an adverse decision of the Maryland Underground Facilities Damage Prevention Authority against a utility company and its marking contractor. In reversing the agency's decision, the appellate court agreed with Rich & Henderson, P.C., that the agency's determinations resulted from an unlawful procedure, deprived the respondents of due process, and were not supported by competent, material and substantial evidence as required by Maryland law.

September 2015 – Partner Mark Gabler successfully assisted the applicant in obtaining an Aquaculture Permit from the Corps of Engineers covering 18.7 acres in Chincoteague Bay authorizing up to 54,483 oyster cages.

In environmental news, on October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a stay on the Clean Water Rule adopted by the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency. The Clean Water Rule was published on August 28, 2015, and attempted to clarify the definition of "waters of the United States" as used in the Clean Water Act. Eighteen states petitioned the Final Rule, contending that the Final Rule dramatically altered the "existing balance of federal-state collaboration in restoring and maintaining the integrity of the nation's waters," was not consistent with rulings of the Supreme Court in Rapanos, and was not a logical outgrowth from the Draft Rule. The Court agreed with the Petitioners and issued a stay on the Clean Water Rule, allowing for more time before the Rule becomes effective to determine whether it is proper under federal law.

August 2015 – Partner Mark Gabler successfully argued for the Court of Special Appeals to uphold a dismissal of appeal of an administrative decision by Queen Anne's County Board of Appeals for lack of standing. The case involved a question of whether the Appellants had standing under the Queen Anne's County Code to appeal the approval of a subdivision plat and/or site plan where they lived more than one-half mile from the proposed development and could show no aggrievement other than alleged traffic increases. The Court found that the appellants were not "aggrieved" as required by the Queen Anne's County Code or as defined in applicable case law.

July 2015 — Partner Mark Gabler and Associate Peter Hershey successfully petitioned the Circuit Court for Anne Arundel County to vacate and remand a decision by the County Board of Appeals denying a variance application to construct a roofed deck in the critical area.

July 2015 — In the Circuit Court for Anne Arundel County, Partner Tony Gorski and Associate Peter Hershey, in conjunction with the Maryland Department of the Environment, successfully defended against a challenge to MDE's issuance of a Refuse Disposal System Permit for construction and operation of a rubble landfill.

July 2015 — In the United States Court of Appeals for the Fourth Circuit, Partner Tim Henderson and Associates, Aminah Famili and Peter Hershey successfully appealed a decision by the District Court of Maryland dismissing a citizen-suit brought under the Resource Conservation and Recovery Act by citizens of Baltimore City. The appeal resulted in a decision reported at: Goldfarb v. Mayor and City Council of Baltimore, 791 F.3d 500 (4th Cir. 2015).

July 2015 – Partner Mark Gabler and the Department of Natural Resources successfully opposed a Petition for Writ of Certiorari to the Maryland Court of Appeals in Tunis, et al. v. Dept. of Natural Resources, Petition Docket No. 155, September Term, 2015. The case involved the issuance of an aquaculture lease that was denied by an Administrative Law Judge and then reversed and affirmed by the Circuit Court and Court of Special Appeals. Petitioners filed for a Writ of Certiorari to challenge this reversal, but the Court of Appeals found that there was no legal basis to review this lease again. Click HERE to see what's happening now.

April 2015 — Partner Tony Gorski and Associate Peter Hershey assisted a client in securing a temporal variance to finish construction of a landfill project in a proceeding held before the Anne Arundel County Office of Administrative Hearings. They were successful in obtaining the solid waste and other permits for this landfill after several years and multiple legal challenges seeking to stop the project. In May, they prevented opponents from obtaining injunctive relief, allowing the construction to proceed on schedule.

April 2015 — Partner Tony Gorski successfully defended a defendant in an environmental criminal jury trial in Wicomico County involving alleged violations of certain statutory and regulatory laws governing waste disposal. The state sought incarceration and in excess of $60,000 in penalties. At the trial, the defendant was acquitted of 12 out of the 14 charges against him, and received probation before judgment and a $500 penalty on each of the remaining two counts.

April 2015 — Rich & Henderson, P.C., and Anne Arundel County successfully secured dismissal of a challenge to the county's recent comprehensive rezoning legislation in the case of Anne Arundel County v. Bell, Case No. 29, September Term, 2104, before the Maryland Court of Appeals. Petitioners argued that they had standing to bring the challenge based on the proximity of their properties to the rezoned parcels in combination with the noise being generated on those parcels — in other words, that they enjoyed property owner standing. In a sweeping decision, the Court of Appeals determined that property owner standing principles were inapplicable to challenges involving comprehensive rezoning legislation, and that, instead, taxpayer standing was the proper standard to be applied.

April 2015 — Partner Mark Gabler argued before the Maryland Court of Appeals on behalf of the Respondent in WSSC v. LaFarge North America, Case No. 69. The primary focus of the case concerned the proper interpretation of Public Utilities Article § 25-106's "deemed denial" provision, which provides that an application for a refund is deemed a final rejection of the claim if the Commission fails to act within 180 days after the claim is filed. After WSSC failed to act on its refund application within the 180-day period, the applicant, represented by Rich & Henderson, P.C., filed a Petition for Judicial Review in the Circuit Court for Montgomery County, challenging the effective denial of its requested refund. The Circuit Court reversed the agency's "deemed denial" of the refund, agreeing with the applicant that the denial was arbitrary and capricious and that the applicant was entitled to a refund. The Court remanded the case to the Commission for a determination of the amount due and owed. WSSC appealed to the Court of Special Appeals, which affirmed the decision of the Circuit Court in an unreported opinion. The primary issue before the Court of Appeals is whether, when the Commission fails to act on a refund application within the 180 period, the proper remedy is for the Circuit Court to vacate the "deemed denial" and remand the case back to the agency to begin anew, or whether the Circuit Court has the authority to reverse the agency decision and order that a refund be issued.

April 2015 — Rich & Henderson, P.C., recently secured the issuance of an aquaculture lease for the applicant in the case of Diffendal et al. v. Maryland Department of Natural Resources, __ Md. App. __ (2015), No. 512, September Term, 2014. Partner Mark Gabler argued the case on behalf of the aquaculture lease applicant. The case arose from the denial of the lease application by an administrative law judge (ALJ). The ALJ concluded after a contested case hearing that the application met all of the criteria in the aquaculture statute but denied the application on the basis that it would interfere with navigation and recreation on the waterway (i.e., violate the common law public trust doctrine). Rich & Henderson, P.C., and DNR successfully obtained a reversal of the ALJ's decision in the Circuit Court for Anne Arundel County by arguing that the ALJ had acted outside the scope of his authority by denying an application that satisfied the requisite statutory criteria. In a reported opinion, the Court of Special Appeals affirmed the Circuit Court's decision. The Court concluded that the ALJ committed erred by: 1) determining that the aquaculture lease application was for a water column lease, not a submerged land lease, and 2) "holding that the public trust doctrine imposed additional, extra-statutory restrictions on the grant of an aquaculture lease." The Court further concluded that the record otherwise lacked evidence of a reasonable cause to deny the application, including a lack of evidence "that would support a finding that the 'public health, safety and welfare' would be at risk" if the lease was granted.

March 2015 — Managing Partner Timothy Henderson argued before the United States Court of Appeals for the Fourth Circuit on behalf of the Appellants in the case of Goldfarb et al. v. Mayor and City Council of Baltimore, Case No. 14-1825. The appeal was noted after the District Court granted the defendants' motion to dismiss the Resource Conservation and Recovery Act (RCRA) claims filed against them related to soil, subsoil, and groundwater contamination at the Horseshoe Baltimore Casino site and nearby parcels and in the Patapsco River. The appeal raised several issues, including the scope and applicability of RCRA's anti-duplication provisions, the factual requirements for pleading claims under RCRA, and the procedural requirements for taking judicial notice.

February 2015 — Partner Mark Gabler argued before the Maryland Court of Special Appeals on behalf of an aquaculture lease applicant in the case Diffendal et al. v. Maryland Department of Natural Resources, No. 512, September Term, 2014. The case arose from the applicant's request to establish an oyster farm off the coast of the South Point peninsula in Worcester County, Maryland, which an administrative law judge denied after a contested case hearing on the grounds that the proposed lease violated the common law public trust doctrine. The main issue in the case on appeal is whether, in deciding a protest of DNR's decision to issue an aquaculture lease, an administrative law judge has the legal authority to deny a lease based on the public trust doctrine even though the lease satisfied all statutory criteria. Mr. Gabler represented the lease applicant before the Office of Administrative Hearings as well as in the Circuit Court for Anne Arundel County.

January 2015 – Managing Partner Tim Henderson will serve as a co-chair and presenter at the National CLE Conference: Environmental Law, Land Use, Energy and Litigation Program in Vail, Colorado from January 7-11, 2015. Mr. Henderson will present on Stormwater, TMDL, and a Little Bit of Wetlands: Changing Rules and Recent Cases.

If you are interested in attending the National CLE Conference, use the promo code FACULTYINSIDER during registration and will receive $100 off the program cost. Attendees receive 16-19 CLE credits.

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