The land-grab bill gets even worse

By BOB BUTTERWORTH

© St. Petersburg Times, published April 19, 2000

Thwarted by the tremendous public outcry against their original plan to give away massive acreage of public waterways, the House sponsors of the so-called Florida Land Title Protection Act are now reducing their giveaway to the most environmentally important lands in Florida -- the margins of every public lake and river in the entire state.

Their new legislation accomplishes this by changing the legal boundary between private uplands and publicly owned water bodies from the high-water line to the low-water line. The result of this seemingly minor change is that the entire area between the normal reach of water in the rainy season and the low mark where the water stands in the dry season would become the private property of the nearest private land owner. Like a bad virus, the House bill has mutated again to make it even worse. It now also states that if rivers and lakes can be leveed, diked or drained, they are private property.

With this much land at stake, it comes as no surprise that the legislation is backed by big timber companies, land barons, cattle ranchers and developers -- in short, the special interests who stand to economically profit from being handed publicly owned land. The bill is opposed by every major environmental organization in the state, the Attorney General's Office and elected Cabinet members of both parties who have stewardship over this priceless state asset.

Things are no better in the Senate, where the bill substantially misstates Florida boundary law. If adopted, the Senate bill could be used by private land owners to grab up lands that now belong to the public. It also guarantees decades of litigation over issues that were fully resolved by the Florida courts more than 70 years ago.

The bill's sponsors and supporters suggest the legislation is necessary to "clear land titles" and to "clarify" the issue of the boundary between private uplands along the waterfront and publicly owned navigable rivers and lakes. They also assert that their legislation draws this boundary line "where history has drawn it" and where "common sense" would support it. These claims cynically gloss over a complete rewrite of Florida boundary law and a massive giveaway of public property.

Under Florida law dating back to 1859, the boundary between private waterfront uplands and publicly owned navigable waters is the "ordinary high-water boundary." This boundary is exactly what the words say it is -- the ordinary or normal reach of water during the high-water season. Of course, this "ordinary" reach is not where the water rises to during floods or as a result of extraordinary rainfalls. A clear and simple definition of this boundary has been available from Florida Supreme Court opinions for the past 75 years.

Sponsors claim this legislation is needed for "clarification" purposes, but in more than three generations there have been only five boundary disputes, and there is only one pending court case involving a dispute over the ordinary high-water boundary. That case, commonly known as the David Smith case, is often cited by proponents of this legislation. It involves his claim that he has the right to build a golf course in the bed of Lake Poinsette in Brevard County. The land Mr. Smith claims he owns lies behind illegally constructed dikes, and Mr. Smith has to continuously operate enormous pumps in a desperate attempt to keep the lake from flowing back into the illegally diked land.

This is hardly the kind of groundswell of public complaints that would justify legislative action to give away the public's land.

So why should the public care that the Legislature wants to give this public land away?

Because the shallow margins of lakes and rivers are home to stands of cypress trees that are the very symbol of the Florida's waterways. If this legislation passes, these magnificent aquatic forests could be chain-sawed into oblivion.

Because the shallow marshes in the margins of lakes and rivers are favorite spots for fishermen. If this legislation passes, these citizens could be banned from these areas by fences and "no trespassing signs" posted at the low-water line.

Because these marshes and aquatic forests are the nurseries of the entire freshwater ecosystem and are the habitat of herons, egrets and ibis, wading birds for which Florida is famous throughout the world. If this legislation passes, these marshes and cypress forests could be drained, filled and developed.

Because local governments that attempt to regulate the development of rivers and lakes will be slapped with lawsuits and forced to choose between spending taxpayers' dollars to buy back what are currently public lands or approving environmentally devastating development plans.

Because Florida will no longer be graced by cypress-lined rivers and lakes but will instead be marred by ditches lined by dikes and development.

These lands have belonged to the public since Florida became a state in 1845. Since that time, Florida courts have repeatedly beaten back attempts to convert rivers and lakes into private property. In 1968, the public spoke with one voice and gave these lands constitutional protection. The Legislature should continue to listen to the voice of the people, not the special interests, and refuse to give away the priceless heritage of all Floridians.

Bob Butterworth is attorney general of Florida.

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