----- Original Message -----

From: pjflorida

To: pjflorida@...

Sent: Friday, February 22, 2008 2:58 AM

Subject: Citrus Class Action-Broward CO Ruling

Palm Beach Post – Friday – 2-22-08

State loses another canker lawsuit

By SUSAN SALISBURY-Palm Beach Post Staff Writer

Florida homeowners whose healthy citrus trees were destroyed in the state's failed citrus canker eradication program have won a second victory against the state Agriculture Department.

Broward County Circuit Judge Ronald Rothschild ruled Thursday in Fort Lauderdale that the department's destruction of 133,720 residential citrus trees in Broward that were labeled as "exposed" to canker constituted a "taking." That requires the state to pay "full and just" compensation to about 70,000 homeowners.

During the program, the state offered a $100 Wal-Mart voucher for the first tree it removed and $55 for each subsequent tree. The lawsuit argued that wasn't enough.

In December, Palm Beach County Circuit Judge Robin Rosenberg issued a similar ruling in a case brought on behalf of more than 40,000 Palm Beach County homeowners for the loss of 66,468 trees. Rosenberg's ruling was the first to be issued in five class-action lawsuits filed against the state for homeowners whose symptomless trees were destroyed in the state-federal program.

Affected homeowners such as David Mendez of Boca Raton, who was the lead plaintiff in the Palm Beach County case, lamented the loss of their trees for their fruit, shade, beauty and sentimental value.

During the state's battle against the bacterial fruit-blemishing disease from 1995 to 2006, the state and federal governments spent $1.6 billion destroying 16.5 million commercial and residential citrus trees.

The war was waged for Florida's citrus industry, with an economic impact then estimated at $9 billion. The federal government halted the program in January 2006, saying canker was so widespread that eradication was impossible.

Robert Gilbert of Coral Gables, lead attorney for the homeowners in both cases, said Thursday that Rothschild found no rational basis for the department's adoption of its 1,900-foot policy. The rule required the removal of every healthy citrus tree within 1,900 feet of a tree that tested positive for canker.

"It's the just result for the homeowner, and it's about time our elected representatives, including Gov. (Charlie) Crist, take this matter over from the Department of Agriculture, which has mishandled it for the last 10 years," he said.

Gilbert said a trial to decide how much the Broward homeowners should be paid for the trees is scheduled to begin April 14. A compensation trial for the Palm Beach County homeowners was to begin in March, but has been moved to September.

Florida Agriculture Commissioner Charles Bronson said in a statement Thursday that he is disappointed with the Broward ruling but believes the department will prevail on appeal.

It was "truly unfortunate" that residential and commercial trees had to be destroyed, but officials had to remove exposed trees that scientists maintained would eventually become infected, Bronson said.  "The facts are bearing out what we feared would happen without the eradication effort," Bronson said.

"Citrus canker has now spread to all 30 citrus-producing counties in Florida and regulators have placed restrictions on citrus exports to many areas."

In his ruling, Rothschild scolded the department for adopting the 1,900-foot rule in January 2000 and not backing off.

"The department adopted and continued to doggedly pursue this policy for six years when it knew or should have known it could not successfully eradicate citrus canker," he wrote.

Rothschild found it "undisputed" that department personnel never observed any visible symptoms of citrus canker on the exposed trees owned by the homeowners and never tested the trees in the field or lab to determine whether they were infected.

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Miami Herald – Friday – 2-22-08

A win for homeowners in citrus canker legal fight

BY PHIL LONG - plong@...

In another major legal victory for thousands of South Florida residents, a Broward circuit judge ruled Thursday that a jury -- not the state -- will determine how much the government will have to pay for citrus trees ripped from their back yards during the failed canker eradication program.

Broward Circuit Judge Ron Rothschild rejected the Florida Department of Agriculture and Consumer Service's insistence that the trees were a valueless public nuisance because they had been exposed to citrus canker and might spread the disease.

The ruling means there will be a jury trial on the value of more than 133,000 trees owned by more than 72,000 Broward residents.

'The court finds that the Department decided to sacrifice homeowners' trees to accomplish its stated goal of canker eradication,'' Rothschild wrote in his 54-page decision. ``Thus the overwhelming evidence demonstrates that the [eradication program] was designed to accomplish its principal public purpose of protecting Florida's commercial citrus industry.''

''The department acted in good faith under a mistaken belief that eradication would save the commercial citrus industry. Time proved the department's contention as untrue,'' Rothschild wrote. The taking of the trees ''constituted a compensable taking'' under Florida's laws, Rothschild wrote.

The evidence conclusively established that citrus canker has never presented a threat to public health or safety, the judge wrote. The only potential impact is economic, affecting the commercial citrus industry, he continued.

The state had argued that the trees had been exposed to canker and would have become infected with the disease

''The relevant inquiry is whether the property had value at the time it was taken,'' Rothschild wrote.

''While the department had the legal right and authority to destroy the trees owned by plaintiffs,'' Rothschild wrote, ``based on the lack of evidence demonstrating that the trees were a public nuisance, the court finds that the department is liable to provide full and just compensation to the plaintiffs for the destruction of their private property.''

Rothschild's ruling doesn't automatically mean more money for homeowners.  It means the state must pay whatever a jury decides the trees are worth, not necessarily the $100 for the first tree taken and $55 for each additional citrus tree chain sawed.

It is possible that residents could get considerably more. Or, jurors might decide what the state has already paid is sufficient under the state's legal requirement of ``just and fair compensation.''

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Sun-Sentinel – Friday – 2-22-08

Residents win in citrus decision

Judge rules that state should pay more for trees cut to prevent canker spread

"I think it's an awesome victory," said Tim Farley, of Oakland Park, one of the named plaintiffs, whose orange, grapefruit and lemon trees were destroyed. "They should have paid us just and fair compensation They should have used eminent domain and paid us. We wouldn't have had to take them to court if they had done their job and not trampled on our constitutional rights."

The eradication campaign, from the late 1990s through 2005, was intended to wipe out a bacterial disease that blemishes fruit, though leaving it edible, and damages trees, causing the premature drop of leaves and fruit.

After the disease was discovered in 1995 near Miami International Airport, the Florida Department of Agriculture instituted increasingly severe methods of controlling it, climaxing with the decree in early 2000 that all citrus trees within 1,900 feet of infected ones be cut down. Homeowners were offered $100 Wal-Mart vouchers for the first tree destroyed and $55 for subsequent ones, but many considered that token compensation.

 

The program ended early in 2006, when the U.S. Department of Agricultural withdrew its financial support, saying the hurricanes of 2004 and 2005 had spread the disease beyond the possibility of eradicating it.

The Florida Department of Agriculture has now lost two cases in a row on this issue, having previously been beaten in a class-action case in Palm Beach County. In that case, a jury is scheduled to hear arguments on damages in September. Similar cases have yet to go to trial in Miami-Dade, Lee and Orange counties.

Robert Gilbert, lead attorney for the plaintiffs, called on Gov. Charlie Crist and the Legislature to force the Department of Agriculture to settle rather than continue a costly legal struggle. If the cases go to juries, he said, the damages could amount to hundreds of millions of dollars. The Broward case alone could cost the state $75 million, he said.

"This travesty has gone on far too long," Gilbert said. "And now two separate judges have found the state liable."

Beth Garcia, a Hollywood resident who is another named plaintiff, said the state should concede it's holding a losing hand and try to reach a fair settlement.

But the state shows no signs of backing down. Bronson, who presided over the eradication program, issued a statement expressing appreciation for the sacrifices of homeowners and saying "the eradication policies were based on significant testing and research into the spread of this serious bacterial disease by scientific experts on citrus plant pathology."

"The facts are bearing out what we feared would happen without the eradication effort," Bronson said. "Citrus canker has now spread to all 30 citrus producing counties in Florida and regulators have placed restrictions on citrus exports to many areas"

David Fleshler can be reached at dfleshler@... or 954-356-4535.

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I have a copy of the order but it is an Adobe Acrobat Document and the file is quite large.  When I find the Broward County Court site that contains the order I will forward the link.  The case number is 00-18394 (08).

And the ripples continue to travel across the pond from the stone we threw way back in the year 2000.  The pond is proving to be of grand scale indeed.   Patty

 

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