Florida Bar Journal

Protecting Florida’s Natural Resources

For the past 30 years, environmental policy has
been part of constitutional discourse in Florida. Since 1968, the state constitution has declared it “the policy of the state to conserve and protect its natural resources and scenic beauty” and has required that “adequate provision.. . be made by law for the abatement of air and water pollution and of excessive and unnecessary noise.”¹ T his language has been the conceptual peg supporting a body of environmental laws that have evolved along with Florida’s phenomenal population growth and development.² P ublic support for further constitutional protection of the environment has been tested in recent elections. In 1994, the net ban amendment received overwhelming voter approval.³ I n 1996, two amendments sponsored by the Save Our Everglades Committee were adopted despite formidable opposition that resulted in the most expensive political campaign in the history of the state.⁴

Even with the constitutional attention now given to the state’s natural resources, environmental issues were on the minds of many who participated in 15 public hearings held over the last year by the 1997–98 Constitution Revision Commission. Dozens of speakers used the hearings as an opportunity to re-debate the merits of the net ban amendment. Others supported measures commonly referred to as an environmental bill of rights, extension of Preservation 2000, unification of fish and wildlife, and Forever Wild. These and other environmental proposals received serious attention from the commission. Four ultimately received the necessary votes to appear on the November ballot as Revision 5, entitled “Conservation of Natural Resources and Creation of Fish and Wildlife Conservation Commission.”⁵ T he revision strengthens existing environmental language in the constitution and equips policymakers with tools to protect the state’s natural resources. The commission intentionally placed Revision 5 first on the ballot among the revisions because the proposals in it consistently received the strongest support of the commission and the public.

Conservation and Protection
of Natural Resources

Revision 5 contains a directive that “adequate provision shall be made by law.. . for the conservation and protection of natural resources.” The original language of the proposal as filed appeared to create a self-executing provision which did not require implementing legislation and which granted a broad right of standing.⁶ T hus it was coined “an environmental bill of rights.” After the committee charged with considering the proposal expressed concern about the effect of such a far-reaching provision on property rights and litigation, the proposal underwent drastic changes that rendered the early title a misnomer. Yet while this proposal seems watered down in contrast to its original form, it remains a step up from the policy statement that presently exists in the constitution.⁷

The addition of this directive language into the state constitution will not require the legislature to do anything because it has in effect already satisfied this duty through existing comprehensive legislation. For that reason, it has been argued that the proposed language is unnecessary and would serve only to provoke litigation over its meaning. This fear is not likely to be borne out any time soon, particularly in light of the Florida Supreme Court’s recent decision in Advisory Opinion to the Governor—1996 Amendment 5 (Everglades), 706 So. 2d 278 (Fla. 1997). There, the court concluded that the newly adopted Article II, §7(b) is not self-executing “because it fails to lay down a sufficient rule for accomplishing its purpose.”⁸ T he commission’s proposal requiring adequate provision for conservation and protection of natural resources is not any more specific in how the provision’s purpose should be accomplished. Moreover, it carefully parallels the existing language in Article II, §7(a) requiring adequate provision for abatement of air and water pollution and excessive and unnecessary noise. This language has not been interpreted to create a broad right of standing. Making environmental protection a mandatory rather than simply an authorized legislative endeavor will ensure the issue remains high on the legislative agenda even as pressure from competing interests mounts.

Bonding

Over the last 20 years, Florida has instituted a number of successful environmental land acquisition programs, including Environmental and Endangered Lands, Conservation and Recreation Lands (CARL), Save Our Coasts, Save Our Rivers, and perhaps most notably, Preservation 2000 (P-2000), the state’s premier conservation program, which thus far has resulted in the purchase of nearly one million acres of land with $1.7 billion in bond funds.⁹ T hese programs greatly contributed to the growth of Florida’s state park system. They were funded through a bonding provision in the 1885 Constitution that also created the Land Acquisition Trust Fund.¹⁰ T hat provision was carried over to the current constitution and now appears by way of Article XII, §9(e), footnote 17. It authorizes revenue bonds “to acquire lands, water areas and related resources and to construct, improve, enlarge and extend capital improvements and facilities thereon in furtherance of outdoor recreation, natural resources conservation and related facilities.” its express language, that bonding authority will expire in 2013. Thus all bonds issued pursuant to the existing provision must be retired in 2013.

To allow these successful bond-financed programs to continue in the future, Revision 5 extends indefinitely the legislature’s authority to issue revenue bonds for conservation and outdoor recreation. Bonds issued under this new authorization also could be used for park improvements, water resource development, historic preservation, and restoration of natural ecosystems like the Everglades, Florida Keys, and Ocklawaha River. There is little if any opposition to this particular proposal because it merely authorizes the legislature to issue bonds as a means to further environmental protection. It would remain the prerogative of the legislature whether to do so.

Disposition of Lands

Revision 5 also addresses the management and disposition of publicly owned conservation property. Title to much of this property is held in trust by the Governor and Cabinet sitting as the Board of Trustees of the Internal Improvement Trust Fund. statute, the Board of Trustees cannot dispose of land it holds in trust except by a vote of at least five of the seven trustees.¹¹ H owever, this supermajority requirement is subject to future statutory modification, and it does not apply to disposition of conservation property whose title is held by other entities, such as the water management districts, Game and Fresh Water Fish Commission, and Department of Agriculture and Consumer Affairs.¹² B efore disposition of lands acquired under the P-2000 program, there first must be a determination by the entity holding title that the property in question “no longer needs to be preserved in furtherance of the intent of.”¹³ C onservation lands not purchased with P-2000 funds fall outside the purview of this statute.

This patchwork treatment demonstrates the need for a uniform constitutional standard to guide the management and disposition of conservation lands and to protect past achievements from unraveling.¹⁴ T o that end, the commission’s proposal states that “the fee interest in real property held by an entity of the state and designated for natural resources conservation as provided by general law shall be managed for the benefit of the citizens of this state.” This creates a general category for property “designated for natural resources conservation purposes,” allowing the legislature to deem the circumstances of acquisition irrelevant. The requirement that these properties be managed for the benefit of the citizens of the state is similar to the public trust doctrine that applies to sovereign lands, codified in Article X, §11.¹⁵ A s for disposition, the property in question may be disposed only upon a determination that the property is no longer needed for conservation purposes and a minimum two-thirds vote of the governing board of the entity holding title.¹⁶

The strongest criticism of this proposal is that the legislative branch should be left free to define the terms and conditions of any land acquisition programs that it creates. On the other hand, the proposal does not completely restrict the sale of conservation lands. Rather, it assures the public that land acquired for conservation will not be easily sacrificed in the future, which would defeat the purpose for buying these lands in the first place and undermine confidence in these programs. Moreover, the legislature will remain completely free at the front end to determine whether and to what extent the state should acquire conservation properties.

Fish and Wildlife
Conservation Commission

Finally, as its title suggests, Revision 5 creates the Fish and Wildlife Conservation Commission, which in essence grafts the statutory Marine Fisheries Commission onto the constitutional Game and Fresh Water Fish Commission. The original proposal before the Constitution Revision Commission was identical to the “unification” citizen initiative amendment that was supported by a broad-based coalition of wildlife, conservation, environmental, hunting, and sport fishing groups and pending before the Florida Supreme Court for mandatory review.¹⁷ T he court ultimately struck that amendment from the ballot, concluding that the ballot summary did not sufficiently explain that the legislature would lose its exclusive authority to regulate marine life.¹⁸ A lthough the general merger concept was widely supported by the Constitution Revision Commission, the details occupied a considerable amount of the com-mission’s time.

The Game and Fresh Water Fish Commission (or GFC) was created in 1943 as an independent constitutional agency. In present language, the GFC is vested with “the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life.”¹⁹ R egulation of “marine life,” on the other hand, rests with the legislature. For years it formally adopted local saltwater fishing regulations, but the current statutory scheme creates the Marine Fisheries Commission (MFC) and delegates it “full rulemaking authority over marine life, with the exception of endangered species.”²⁰ T hese rules govern saltwater fishing matters such as bag and size limits, seasons, protected species, and species that may not be sold.²¹

Unlike rules of the Game and Fresh Water Fish Commission, the MFC’s rules are subject to both the Administrative Procedures Act and final approval by the Governor and Cabinet sitting as the Board of Trustees of the Internal Improvement Trust Fund.²² T he Department of Environmental Protection (DEP) implements regulation of marine endangered species like sea turtles.²³ T he Florida Marine Patrol, housed within the DEP, handles enforcement for both the DEP and the MFC, while the Game and Fresh Water Fish Commission has its own wildlife officers.

The division of regulatory and enforcement responsibility has led to confusion, overlap, inefficiency, and competition for funds. It also is inconsistent with a unified ecosystem approach to wildlife management. Many species regularly ignore jurisdictional boundaries, occupying both salt water and fresh water. In the case of the brown pelican, the GFC regulates the bird while the fish it eats falls under the scope of the MFC. Revision 5 seeks to remedy the situation by merging the authority of the MFC into that of the GFC to create a Fish and Wildlife Conservation Commission, an independent constitutional agency with regulatory and executive authority over fish and wildlife.

In final form, the proposal makes clear that it does not contemplate a change in the nature of the new commission’s power, but rather an expansion of the species falling within its jurisdiction.²⁴ I n addition to retaining the powers of the existing Game and Fresh Water Fish Commission, the proposal grants the newly named commission regulatory and executive powers over all marine life that is regulated by the MFC, as described in F.S. §370.027. Both the accompanying schedule and sponsor statements make this clear. Under this scheme, endangered marine animals under DEP’s authority will remain under that authority unless the legislature delegates it to the new commission.

The proposal makes other changes as well. Presently, the Administrative Procedures Act (APA) has limited application to the Game and Fresh Water Fish Commission. F.S. §120.52(1)(b) (1997) provides that the APA applies to agency action of the Game and Fresh Water Fish Commission when it is acting on jurisdiction based upon a grant of legislative authority. However, the APA does not apply when the Game Commission acts pursuant to its constitutional authority.

Although the Revision 5 proposal would not change the applicability of the APA when the commission is acting pursuant to constitutional authority, it will require the commission in those cases to “establish procedures to ensure adequate due process in the exercise of its regulatory and executive functions.” Typically this means notice and opportunity to be heard. Consistent with the current scheme, any new authority delegated to the commission by the legislature would be subject to the APA. This provision greatly increases citizen access to the new commission, allaying concerns that the new commission would be too insulated.

One question raised by the DEP concerned the potential consequences of this proposal with respect to other marine-related programs that it administers, such as the Florida Marine Patrol, research facilities, and manatee and marine sea turtle programs. The fate of these programs is not determined by the proposal. Instead, it permits the legislature to address these issues by leaving intact the current language, which provides, “[t]he legislature may enact laws in aid of the commission, not inconsistent with this section.”

One criticism of this particular proposal is that the legislature, as an elected body responsive to the public rather than an independent commission, should decide how marine life is regulated. Yet many believe that it was political and agency gridlock that led the public to resort to the citizen-initiated constitutional net ban. Regardless of one’s position on the merits of having a net ban, few would argue that it is an appropriate subject for constitutional treatment.

Beyond the goal of streamlining government, the underlying premise of unifying the two commissions is that sound research, science, and management techniques should prevail over politics when it comes to wildlife conservation and management. The proposal also leaves much to legislative discretion.

Poll after poll suggests that Floridians value and desire protection of their beaches, rivers, lakes, springs, forests, and coral reefs, as well as the life they sustain. The Constitution Revision Commission’s Revision 5 grew directly out of those sentiments as a means of protecting the state’s unique environment.
q

¹ Fla. Const. art. II, §7(a).
² E.g., Fla. Stat. Chs. 369, 370, 373, 380, 403 (1997).
³ Fla. Const. art. X, §16.
⁴ Fla. Const. art. II, §7(b); art. X, §17. Opponents of these and a third related amendment spent approximately $35 million while proponents spent about $11 million.
⁵ A fifth environmental proposal, authorizing the use of property tax exemptions for conservation purposes, was approved and will appear in Revision 11.
⁶ Proposal 38 as originally filed stated:
“Environmental Bill of Rights.—Every person has a right to live in an environment that is free from the toxic pollution of manufactured chemicals; to protect and preserve pristine natural communities as God made them; to ensure the existence of the scarce and fragile plants and animal species that live in the state; to outdoor recreation; and to sustained economic success within our natural resources capacity.”
Another filed proposal, number 36, stated: “The natural resources of the state are the heritage of present and future generations. The right of each person to clean and healthful air and water and to the protection of the other natural resources of the state shall not be infringed by any person.”
These two proposals were combined at the committee level into a substitute proposal, which became the vehicle for the current proposal.
⁷ The strength of constitutional language runs along a spectrum ranging from weak to strong. For example, some state constitutions (including Florida’s) contain a statement of public policy that provides a basis for the legislature to enact laws relating to environmental protection. Directive language, also contained in Florida’s Constitution, requires the legislature to take some specific action to protect the environment. At the top of the hierarchy is self-executing language that has independent legal significance and is directly enforceable through the courts. E.g., Pa. Const. art. I, §27.
⁸ Advisory Opinion to the Governor–1996 Amendment 5 (Everglades), 706 So. 2d 278, 281 (Fla. 1997).
⁹ A recent report issued by the Land Acquisition and Management Advisory Council estimated that at least 2.3 million acres will remain in need of protection when P-2000 ends. Florida Preservation 2000 Program: Remaining Needs and Priorities, October 1, 1997.
¹⁰ Fla. Const. art. 9, §17 (1885).
¹¹ Fla. Stat. §253.01(2) (1997).
¹² Compare, e.g., Fla. Stat. §373.089 (1997) (no supermajority requirement for disposition of lands held by water management district).
¹³ Fla. Stat. §259.101(6)(b) (1997).
¹⁴ Various commissioners, including Attorney General Robert Butterworth, who serves on the Cabinet, explained that in recent years there has been some doubt as to the standard and procedure for the Board of Trustees to sell lands acquired with P-2000 funds. Another concern expressed was that there may be no future protection for P-2000 lands once the bonds and their covenants expire in the year 2013.
¹⁵ For a historical analysis of the Public Trust Doctrine’s common law development in Florida, see State v. Black River Phosphate Co., 32 Fla. 82, 13 So. 640 (1893); Broward v. Mabry, 58 Fla. 398, 50 So. 826 (1909); Hayes v. Bowman, 91 So. 2d 795 (Fla. 1957).
¹⁶ The two-thirds figure was adopted in anticipation of Revision 8, “Restructuring the State Cabinet,” addressed elsewhere in this issue.
¹⁷ Proposed amendments by citizen initiative are subject to stricter constitutional requirements than amendments proposed by the Constitution Revision Commission. The former must comply with the “single subject rule” and are subject to mandatory review by the Florida Supreme Court. Fla. Const. art. IV, §10; art. XI, §3.
¹⁸ Advisory Opinion to the Attorney General Re: Fish and Wildlife Conservation Commission: Unifies Marine Fisheries and Game and Fresh Water Fish Commissions, 23 Fla. L. Weekly S20 (Fla. Jan. 8, 1998).
¹⁹ Fla. Const. art. IV, §9.
²⁰ Fla. Stat. §370.027(1) (1997).
²¹ Fla. Stat. §370.027(2) (1997).
²² Id.; Fla. Stat. §120.52(1)(b) (1997).
²³ Fla. Stat. §372.12 (1997).
²⁴ Business interests were concerned that the proposal would create authority for a new regulatory program for air and water pollution. The proposal now expressly excludes these matters from the Fish and Wildlife Conservation Commission’s authority unless delegated by the legislature.

Wm. Clay Henderson of New Smyrna Beach is President/CEO of the Florida Audubon Society. He serves on the Constitution Revision Commission and chairs the Florida Greenways Coordinating Council. Previous public service includes Volusia County Council, Florida Communities Trust, Property Rights Study Commission, and Administrative Procedure Act Review Commission. Mr. Henderson is a graduate of Stetson University and Cumberland School of Law.

Deborah Ben-David was an assistant general counsel for the Constitution Revision Commission and recently began working for the U. S. Department of Agriculture, Office of the General Counsel. Prior to that she served as law clerk to Justice Stephen H. Grimes of the Florida Supreme Court. Ms. Ben-David received her B.A. and her J.D. from the University of Florida.