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Land grab bills are back

Bills in the House and Senate would let state lawmakers determine which wetlands belong in the public trust and which are open to private claims.

Picture this as a classified ad: "WATERFRONT PROPERTY! 500,000 acres FREE to eligible claimants. Submerged seasonally but ideal for cattle ranching, timber production, etc. Apply to Florida Legislature."

It describes fact, not fiction. The land grab bills are back at the state Capitol. At stake: As many as 500,000 priceless acres of wetlands that the people of Florida own and which belong in the public trust forever.

The threat - or opportunity, as the timber, cattle and development lobbies would call it - consists of legislation purporting to tell the courts how to define the ordinary high water mark along the shores of every Florida lake and stream.

The significance is that history and constitutional law place everything below the line in the public trust. All the rest is subject to private claims. Because freshwater levels vary with the rains and seasons, courts have had to decide on a case-by-case basis who owns what.

That process can be inconvenient, but the public interest is immeasurably safer in the courts where judges rule than in a legislature where lobbyists prevail.

As Attorney General Charlie Crist puts it, "The body of law has been pretty clear for 100 years, and I don't know that it's necessary or appropriate to alter it." Yet the lobbies came within a day of winning five years ago. The House passed their land grab bill 70-45 and Gov. Jeb Bush was poised to sign it, but opponents engineered a fatal stall with the help of Senate President Toni Jennings, now the lieutenant governor.

The senator who fought the bill, Jack Latvala, is no longer in the Legislature. The senator who wanted to pass it, Walter G. "Skip" Campbell, D-Fort Lauderdale, is trying again.

Campbell's new version, SB 2104, is superficially less dangerous but potentially just as troublesome. It would define the public-private boundary of a lake as "the point up to where the presence and action of the water is so continuous as to destroy the value of the land for agricultural purposes by preventing the growth of vegetation that constitutes an ordinary agricultural crop ... " A river boundary would not be where it normally floods but at the point where water covers it "for sufficient periods to deprive it of vegetation and to destroy its value for agriculture."

The perils lurk in the definitions of agriculture and crops. The timber industry regards cypress trees, which are common to wetlands, as a renewable crop. Cattle ranchers consider water grasses to be inherently agricultural. There are navigable rivers that canoeists and kayakers share with cows contentedly munching the submerged vegetation. Under Campbell's bill (or HB 1369, its House companion) those rivers could be fenced, just as the Lykes barons fenced Fisheating Creek in south central Florida before settling a lawsuit with the state.

Even worse is SB 2005 by Sen. Bill Posey, R-Rockledge, which would give away all but where water covers the land "for most of the year and wrests the bed of vegetation." That would be the timber and cattle lobbies' fondest dreams come true.

Campbell, whose bill is the greater threat to become law, rationalizes that his language tracks the proposed finding of a judge in a pending dispute. However, that actually underscores why the fact-finding role should remain with the courts and not be pre-empted by the Legislature.

The senator maintains that he is simply "trying to stop a lot of litigation." But with so much in jeopardy, litigation is far safer than legislation as the venue for protecting the public interest.

[Last modified March 14, 2005, 01:28:20]