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Despite rulings, canker payments in limbo

Bradenton Herald – September 26, 2011

FORT LAUDERDALE — 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.

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