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Florida property owners have lost a protracted battle to force sugar companies to pick up the whole tab for cleaning up pollution of the Everglades. On Thursday, the Florida Supreme Court in a 5-2 decision upheld a ruling by the 5th District Court of Appeal in Daytona Beach. The 5th DCA ruling essentially required everyone, not just polluters, to pay for cleanup of contaminants pumped into the River of Grass by sugar growers and smaller farmers. The ruling is likely the end of the line for property owners who have argued for years that they should not have to foot part of the bill, as mandated by the South Florida Water Management District. The question of who pays for the cleanup initially was addressed by the Everglades Forever Act in 1994. It sought to divide the projected $800 million cleanup cost by requiring property owners in the Okeechobee Basin, from Orlando to Key West, to be taxed to help finance the project. The law imposes a 0.1 mill ad valorem tax on property owners. But in 1996, nearly two-thirds of Florida’s voters approved a constitutional amendment that would force polluters to pay the entire tab. Proponents argued that the constitutional amendment was self-executing and could be implemented without the need for legislation that would spell out who the polluters were and just how much they should pay. But opponents argued that legislation was necessary, and that until lawmakers came up with a plan on how to implement the so-called Polluter Pays amendment, the Everglades Forever Act remained in full effect. In 1997, Gov. Lawton Chiles asked the Florida Supreme Court to weigh in on the issue. Justices issued an advisory opinion agreeing that in order for the amendment to be implemented, the Legislature needed to act because the amendment raised too many questions, such as, what constitutes water pollution? Who is a polluter? And how will costs be assessed? Following the ruling, Thom Rumberger, a partner at Rumberger Kirk & Caldwell in Orlando, filed suit in Orange Circuit Court against the South Florida Water Management District on behalf of Mary Barley, chair of Save Our Everglades, and other landowners. The suit challenged the tax’s constitutionality. In 1998, the circuit court dismissed the complaint and Rumberger appealed to the 5th DCA, which in a split decision affirmed the lower court’s ruling. The appellate court ruled that despite the edict of the constitutional amendment that polluters must pay, “until the Legislature repeals or amends the Everglades Forever Act, there is no statutory basis to levy [taxes] against nonpolluting land owners.” Rumberger appealed to the state supreme court, which heard arguments last August. On Thursday, the high court held that even though the language in the amendment required those who are “primarily responsible” for the pollution to bear the cost of the cleanup, the court also found that the words “primarily responsible” would include a recognition that individual polluters would not bear the total burden. The fact that the constitutional amendment passed by Florida voters does not spell out who pays for what “is precisely why we held that legislative action was needed,” the court wrote. But in a dissenting opinion, Justice Barbara Pariente said she favored overturning the 5th DCA’s ruling because the amendment “represents a clear mandate from citizens of our state protecting nonpolluters … from paying polluters’ cleanup costs.” Pariente added that she doesn’t believe additional legislation is needed “to effectuate nonpolluters’ rights to be free from the cleanup costs associated with polluters — as opposed to the necessity for legislation to ensure that polluters pay the cost of the abatement of water pollution that they cause.” The constitutional amendment, wrote Pariente “vests certain rights that can be enforced instead by a declaratory judgment action” rather than legislation. Justice Peggy Quince also dissented, concurring with Pariente. Neither Rumberger nor attorneys for the South Florida Water Management District returned calls for comment by deadline.

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