Florida citrus canker payments in limbo

- FORT LAUDERDALE, Fla. (AP) -- Like thousands of other Floridians, Tim Farley was dismayed when the state chopped down his backyard orange, lemon and grapefruit trees in a failed effort to stop a citrus disease from spreading to commercial groves. But at least he figured he'd get paid after judges ordered Florida years ago to compensate him and others.

Yet despite rulings in favor of tree owners in two counties, the state Department of Agriculture and Consumer Services is so far refusing to pay Farley and many others so much as a nickel.

"I just think it's a new low," Farley said in a recent interview. "They did an injustice to the people and they have to pay us. They are spending millions of dollars of taxpayer money to fight us. They are slapping the people like they always have."

The state's position is that the Legislature would have to approve a special bill - known as a claims bill - before any money can be paid. So far, the decisions in Broward and Palm Beach counties have the state on the hook for about $30 million in combined compensation. There are still cases pending in Miami-Dade, Orange and Lee counties that could account for millions more.

"All the money comes from taxpayers," said Wes Parsons, an attorney representing the Agriculture Department. "If they are paid, the Legislature must appropriate the money to do so. There has not been a claims bill filed."

To the chagrined former tree owners and their attorney, Robert Gilbert, it shouldn't come to that. Gilbert said judges have ruled that the destruction of the trees amounted to a government "taking" that requires more immediate fair compensation - similar to when the government condemns private property to put a road through.

The state made payments to some homeowners, but many others turned down the offer and said it wasn't enough for mature healthy trees.

"Under the Constitution, they took property and they have to pay for it," Gilbert said. "They should take Civics 101."

Legal battles over control of agricultural diseases and pests go back many decades nationally. The landmark U.S. Supreme Court ruling on the subject came in 1928, when the justices upheld Virginia's right to cut down a grove of red cedar trees to protect nearby apple orchards from rust disease.

The justices found that the Constitution allows states to carry out "the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public." But that ruling did not address the subject of fair compensation.

In Florida, the healthy backyard trees were cut down and burned during the state's decade-long, $623 million attempt to eradicate citrus canker. The fight was ultimately abandoned in 2006 after a series of hurricanes, particularly Hurricane Wilma in 2005, spread the wind-borne disease widely across the state.

All told, more than 16.5 million trees were destroyed, including more than 865,000 residential trees. The rest were at commercial groves and nurseries.

Canker causes blemishes and can make fruit drop prematurely, but the disease does not kill infected trees and ripe fruit can still be eaten or made into juice. Still, the disease is considered a major threat to Florida's $9 billion citrus industry, the largest in the U.S. The canker bacteria doesn't affect humans.

It was first identified in Florida in 1910, declared eradicated in 1933, but then appeared again in 1986. The latest war on canker started in 1994. Beginning in 2000, the state destroyed any residential tree within a 1,900-foot radius of an infected tree - even if there was no evidence of infection on the trees earmarked for destruction.

"They were not sick trees," Farley said of those that once stood behind his house.

The 4th District Court of Appeal, in upholding the Broward County decision in favor of tree owners, rejected the state's argument that the trees were a "public nuisance" that had no value because of the potential they could spread the disease. Instead, the judges said, the trees had value and were chopped down mainly to benefit Florida's citrus industry.

"If trees are destroyed not to prevent harm but instead to benefit an industry, it is difficult to understand how (the Agriculture Department) can argue on appeal that the trees legally constituted a nuisance without any value," the judges ruled in May 2010. "If government cuts down and burns private property having value, then government has taken it. And if government has taken it, government must pay for it."

The state did give homeowners a $100 debit card good at Wal-Mart garden centers for the first tree that was removed and $55 cash for each tree after that. The tree replacement programs, which cost the state $44 million, ended in 2009. But Farley and thousands of other tree owners considered that too little for healthy trees that in some cases were 30 feet tall, so they filed lawsuits representing classes of all affected tree owners.

In Broward County, a jury authorized

an additional $34 per tree and the Palm Beach case would pay $210 more for each tree. The state continues to appeal both rulings, and ultimately the overall issue of additional compensation is likely to land at the state Supreme Court.

"What we're hoping and expecting is that the Florida Supreme Court steps in and gives us some guidance on this issue," said Parsons, the Agriculture Department attorney. "Otherwise it would be taxpayers' money that might be wrongly paid out."

Gilbert contends the time has long passed for payments to be made and said he will return to court in an effort to force the state to compensate those who lost trees, rather than relying on the whims of the Legislature.

"The state is legally obligated to pay private property owners the amount of compensation determined by the courts, not the arbitrary amounts set by politicians and bureaucrats in Tallahassee," Gilbert said.

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