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It’s the last legal stop for Florida property owners who have argued for years that they should not have to pay for the cleanup of pollutants pumped into the Everglades by sugar growers and smaller farmers. The Florida Supreme Court today is to take up the case of Mary Barley v. South Florida Water Management District. Barley, chair of Save Our Everglades, on behalf of herself and other property owners, is asking the state’s high court to overturn a decision by the 5th District Court of Appeal that essentially requires everyone, not just polluters, to pay for the damage. The water district’s mandate, argues Barley, is unconstitutional. The question of who pays for the cleanup initially was addressed by the Everglades Forever Act in 1994, which was created to divide the burden of the costs of cleaning up the Everglades by requiring property owners from Orlando to Key West to be taxed to help finance the $800 million cleanup project. Then, in 1996, Florida voters overwhelmingly approved a constitutional amendment that said sugar growers and other farmers should be primarily responsible for any cleanup. Despite Floridians’ overwhelming approval of Amendment 5, Florida lawmakers did nothing to implement the so-called “polluters pay” mandate. In 1997, at the request of then-Gov. Lawton Chiles, the Florida Supreme Court was asked to weigh in on the issue. The high court said the amendment’s mandate could not be carried out until the Legislature moved to enact it, which it so far has not done. Environmentalists have argued that lawmakers have failed to act because of pressures imposed on them by the sugar industry’s effective lobbying efforts. Following that ruling, Thom Rumberger of Rumberger Kirk & Caldwell in Orlando filed suit in Orange Circuit Court on behalf of Barley and other landowners against the water district, once again challenging the tax’s constitutionality. In October 1998, the court dismissed the complaint. Rumberger appealed to the 5th District Court of Appeal, which in a split decision affirmed the lower court’s ruling. The panel ruled that despite the amendment’s edict that polluters pay, it said that “until the Legislature repeals or amends the Everglades Forever Act, there is a statutory basis to levy [taxes] against nonpolluting land owners.” Barley and the other plaintiffs then appealed to Florida’s high court, which in February agreed to hear the case. In his brief to the Florida Supreme Court, Rumberger argues that the tax levied against nonpolluters contradicts the intent of Amendment 5. He argues that the water district, by continuing to tax nonpolluters, has nullified the amendment and “frustrated the will of the people.” But attorneys for the South Florida Water Management District argue that because lawmakers have not enacted enabling legislation, the plaintiffs have no rights or interests in this case and, therefore, their suit should be dismissed. “Until the Legislature defines the rights to be protected, there can be no present and existing controversy giving rise to standing in anyone to assert claims under Amendment 5,” writes Paul Nettleton of the Miami office of Carlton Fields, who represents the water district. Others worry that a ruling against the water district would be tantamount to sanctioning judicial interference with the Legislature’s ability to implement policy decisions. “The relief requested by the petitions presents a political question that cannot be resolved by the judiciary without violating the separation of powers” provided in Florida’s Constitution, writes attorneys for the Florida Chamber of Commerce, which filed a friend of the court brief on behalf of the water district. Others who have filed amicus briefs include the United States Sugar Corp. and the International Association of Machinists and Aerospace Workers, AFL-CIO, on behalf of its members who, its attorneys say, “fully realize and appreciate the importance of a project designed to improve water quality.” Writing on behalf of the AFL-CIO, attorney Mary Jill Hanson of Hanson Perry & Jensen in West Palm Beach calls Barley’s claim “a short-sighted attack on [the Everglades Restoration Program],” which “threatens the very future of Florida agriculture.” In June, Monroe County, Fla., which also filed an amicus brief on behalf of the water district, quietly rescinded it.

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