Florida Constitution Revision Commission Sends   
            Environmental Proposals to November Ballot

     Clay Henderson

     The Florida Constitution Revision Commission (CRC, Commission) completed its once-every-twenty-year duty and has proposed nine separate revisions to the voters. Several issues of conservation interest have been bundled into two revisions that will be ultimately decided at the General Election. These proposals significantly improve the state's ability to conserve and protect Florida's natural resources.

     Constitution Revision Commission Background. Florida is the only state that has a system of regular review of its constitution by a body with direct access to the ballot. Florida's CRC meets every 20 years and its actions are not reviewed by the Supreme Court or Legislature, or bound by the single subject rule. The Commission held fourteen public hearings and received nearly 1000 ideas for changing the constitution. Ultimately, thirty-three proposals received 3/5 vote and were approved by the Commission and bundled into nine revisions.

     Environmental Provisions of Florida's Constitution. For the last thirty years, environmental policy has been a part of constitutional discourse in Florida. The 1968 Constitution contains a Natural Resources Clause found at Art. II, Sec. 7, which declares the policy of the state of Florida to "conserve and protect our natural resources and scenic beauty." This clause has been the conceptual peg upon which a body of environmental statutes and regulations has developed during a time when the state has experienced phenomenal population growth.

     The popularity of environmental measures in the constitution has been tested in the last two election cycles. In 1994, the Net Ban Amendment (Art. X, Sec. 16) was overwhelmingly approved by the voters. In 1996, two out of three Everglades protection measures were approved.

     Environmental measures were on the minds of many who participated in the pubic hearings held in 1997-98 by the Constitution Revision Commission. Dozens of speakers used the hearings to re-debate the merits of the Net Ban Amendment. Other citizens proposed measures generally referred to as an Environmental Bill of Rights, extension of Preservation 2000, unification of fish and wildlife, and Forever Wild. Several measures received the serious attention of the commission and four of them received a 3/5th vote and were bundled into Revision 5. Yet another was placed in Revision 10.

     Revision 5. The Conservation Amendment. Revision 5 is entitled "Conservation of Natural Resources and Creation of Fish and Wildlife Conservation Commission." It was placed first on the ballot among the revisions because it consistently received the strongest votes among commissioners and was strongly supported at the public hearings.

     A considerable amount of time was spent by the CRC debating the concept of an environmental bill of rights. While most commissioners expressed concerns that the proposal might affect property rights, it provided them the opportunity to see how Florida's constitutional language compares to other states.

     The various environmental clauses which appear in the other states' constitutions fall into several categories. Some language is aspirational and is designed to set a goal of protection of the environment. Some language is a statement of public policy, meaning that it is a basis for the legislature to enact a law relating to environmental protection. Some language is directive, meaning that the legislature is required to take some specific action to protect the environment. Other language is self-executing, meaning that it has independent legal significance and is enforceable through the courts.

     Florida's Natural Resources Clause contains both aspirational and directive language. No part of the clause has been found by the courts to be self executing. The revision is intended to be more contemporary aspirational language. It would require that "adequate provision shall be made by law for the conservation and protection of natural resources." This language was designed by the Committee on Style and Drafting to unite the other sections under the heading of conservation.

     Some have argued that this aspirational language would open floodgates of litigation. This issue was specifically discussed by the Commission, with the intent to avoid this possibility. Notes of the drafters filed at the adoption of the amendment make clear that the provision is not self executing.

     Land Acquisition Bonding Authority. Revision 5 also extends bond authority for acquisition of environmentally sensitive lands. Florida's premier land acquisition program, Preservation 2000, will end next year after funding purchase of a million acres of land. Over the last twenty years, Florida has developed a number of environmental land acquisition programs such as Environmental and Endangered Lands, Save Our Coasts, Save Our Rivers, Florida Communities Trust, and Preservation 2000. These programs were built upon bond authority carried over from the 1885 Constitution and used primarily to build Florida's state park system. Art. XII, Sec. 9 (e) footnote 17, carried over the authorization for conservation and outdoor recreation bonds issued in 1963 for an extra fifty years. Since that authorization ends in 2013, all bonds must be retired by that date. As a result, Preservation 2000 will expire next year.

     The revision extends the authority and also enlarges it. It creates bond authority for acquisition and improvement of land, water areas, and related property interests for the purposes of conservation, outdoor recreation, water resource development, restoration of natural systems, and historic preservation. While Preservation 2000 bonds could only be used for acquisition of lands for outdoor recreation and conservation, the new bonds could be used for park improvements, water resource development, and environmental restoration of ecosystems like the Everglades, the Florida Keys and the Ocklawaha River.

     Disposition of Conservation Lands. The revision also addresses management and disposition of conservation lands. The proposal requires that when real property is held by the state and designated for natural resource conservation that it shall be managed for the benefit of the citizens of the state and may be disposed of only by 2/3 vote of the governing board of the agency holding title, after a determination that the property is no longer needed for conservation purposes.

     This section is similar to, but different from, Art. X, Sec. 11, relating to sovereign lands, which creates the Public Trust doctrine for public lands. The new standard would place into the Constitution the requirement of the Preservation 2000 bond program that lands acquired with such funds may only be disposed of when they are no longer required for the purposes for which they were acquired or that it "no longer needs to be preserved." Currently, statutory law also requires a vote of 5 of 7 members of the Board of Trustees of the Internal Improvement Trust Fund to dispose of state-owned property. This proposal would extend to other owners of public lands this procedural requirement and finding of fact prior to disposition. This section was designed to address issues which have arisen in the last few years as policy makers tried to develop a standard and procedure for disposition of conservation lands for schools, prisons, and private development. The 1998 Legislature went so far as to specifically authorize disposition of part of Point Washington State Forest for a public/private development venture.

     Unification of Fish and Wildlife. The largest component of Revision 5, and the issue which took a considerable amount of the CRC's time, is the change to the Florida Game and Fresh Water Fish Commission (FGFWFC). The FGFWFC was placed in the constitution in 1947, and is an independent constitutional agency with regulatory and executive authority relating to "fresh water aquatic life." Regulation of "marine life," however, vests with the Legislature, which for years formally adopted local saltwater fishing regulations. The current statutory scheme gives authority over "marine life" to the Marine Fisheries Commission (MFC), which adopts salt water fishing regulations subject to final approval by the Cabinet. The Legislature has also assigned authority for "marine endangered species" to the Department of Environmental Protection (DEP) for rulemaking authority for manatees and sea turtles. Different procedures and substantive bodies of law have developed because of the various ways Florida currently regulates fisheries.

     The revision merges the jurisdiction of the Florida Game and Fresh Water Fish Commission and the Marine Fisheries Commission, to create a Fish and Wildlife Conservation Commission, which would be a constitutional agency with regulatory and executive authority for the protection of fish and wildlife.

     The original proposal before the commission was a "unification" initiative sponsored by various sport fishing interests. During the CRC's deliberations, the Florida Supreme Court declined pre-ballot clearance of the proposal because of ambiguities in the ballot summary. As various committees of the CRC reviewed the proposal, it was substantially rewritten to be as narrowly drafted as possible, to clarify that no change in the authority or jurisdiction of the Florida Game and Fresh Water Fish Commission was contemplated. Business interests were very concerned that the proposal would create authority for a new regulatory program.

     The proposal enlarges the jurisdiction of the Fish and Wildlife Conservation Commission to include "marine life." The sponsors made statements before the CRC, expressing their intent that this term narrowly relate to Chapter 370, Fla. Stat., as the authority of the Board of Trustees as delegated to the Marine Fisheries Commission. As used in Section 370.027, Fla. Stat., the term "marine life" excludes "marine endangered species" such as manatees and marine sea turtles. These animals are currently regulated by the DEP pursuant to Section 372.12, Fla. Stat.

     The proposal also enlarges a requirement to "assure adequate due process in the exercise of its regulatory and executive functions." Currently, the provisions of the Administrative Procedure Act (APA) have limited application to the Florida Game and Fresh Water Fish Commission. Section 120.52, Fla. Stat., provides that the APA is applicable to agency action of the FGFWFC when acting on jurisdiction based upon legislative authority. However, the APA is not applicable when the FGFWFC is acting pursuant to its constitutional authority. The new provision would require the Fish and Wildlife Conservation Commission to adopt procedures to provide notice and opportunity to be heard. In addition, any new authority given to the Fish and Wildlife Conservation Commission by the Legislature would also be subject to the APA. This provision greatly increases citizen access to the new commission.

     The proposal limits legislative power by providing "there shall be no special law or general law of local application pertaining to hunting or fishing." This is a one-word change from Art. III, Sec. 11(19), which states there shall be no special law pertaining to "fresh water" fishing. The Legislature will no longer have the authority to adopt local bills relating to salt water fishing.

     The section requires that the new Fish and Wildlife Conservation Commission will continue to be a separate independent agency. The proposal provides, "[t]he commission shall not be a sub unit of any other state agency and shall have its own staff which includes management, research, and enforcement." While this is new language, it is not a change in the current reality of the Florida Game and Fresh Water Fish Commission. An amendment to the Schedule in Article XII provides for the orderly transition from the Florida Game and Fresh Water Commission and the Marine Fisheries Commission to the new Fish and Wildlife Conservation Commission. The Schedule makes clear the limited intention of the proposal to combine the responsibilities of the two entities into a single independent agency.

     A question was raised by DEP concerning the scope of this proposal, since DEP administers a number of marine-related programs, including the Florida Marine Patrol, research facilities and programs, and the manatee and marine sea turtle protection programs. These programs are not addressed by the proposal. It is contemplated that the existing language in Art. IV, Sec. 9 will allow the Legislature to address these issues in later years. The current language provides, "[t]he legislature may enact laws in aid of the commission, not inconsistent with this section."

     This revision consistently received a unanimous vote by the CRC. It also was reviewed by more committees than any other proposal. The CRC heard more public testimony on fishing issues and many concluded that the proposal was designed to fix the political and agency gridlock that led to the Net Ban Amendment, which most people argued should never have been in the Constitution. The underlying purpose behind an independent constitutional agency relating to all fish and wildlife regulation is to use research, science, and management techniques to conserve wildlife, free from political considerations.

     Revision 10. Local Government Tax Exemptions. Revision 10 is a catch-all proposal containing four matters relating to local government.

     Repeal of the Jennings case. The first section is intended to address concerns about ex parte communications with local government officials in light of Jennings v. Dade County, 589 So. 2d 1337 (Fla. 3d DCA 1991), rev. denied, 598 So. 2d 75 (Fla. 1992). The court concluded that ex parte communications are violative of even the most basic due process requirements, and that there is a presumption of prejudice that results from such ex parte contacts in a quasi-judicial matter. The decision created difficulties for both citizens and elected officials. The difficulty was expanded when the Florida Supreme Court handed down Board of County Commissioners of Brevard County v. Snyder , 627 So. 2d 469 (Fla. 1993), which resulted in most local zoning cases now being considered quasi-judicial in nature. Specifically, there was concern that Jennings and Snyder would limit citizens' access to local elected officials. The Legislature sought to address this by enacting Chapter 95-352, Laws of Florida (1995). This legislation authorizes a county or municipality to adopt an ordinance or resolution removing the presumption of prejudice from ex parte communications with local public officials by establishing a process to disclose ex parte communications with such officials. Nevertheless, most legal scholars doubt this statute overcomes Jennings and urged adoption of a constitutional amendment. The proposal would allow citizens to speak with their local officials, but still requires decisions of zoning officials to be made on the basis of competent substantial evidence in the official record before them.

     Conservation Tax Exemption. The second section relates to tax exemptions for conservation purposes. It would allow local governments to grant ad valorem tax exemptions to owners of private property when such property is held for conservation purposes. This exemption would be like the Greenbelt exemption used by agriculture and the Blue Belt exemption that has not been fully implemented. In the last few years, zealous county property appraisers have been rejecting Greenbelt exemptions from forestry owners who do not cut their trees. This proposal would provide a tax incentive for good stewardship.

     A Greener Constitution. The measures presented by the Constitution Revision Commission were consensus proposals developed with bipartisan support and through consensus building with interest groups. Most received a unanimous vote at each step in the process. Poll after poll suggests that Floridians value the protection of their unique environment containing beaches, rivers, lakes, springs, forests, and coral reefs. Years ago, it was important to place measures in our constitution to attract growth and help us build the dynamic state that we have now. Now, the Constitution Revision Commission has concluded that it is just as important to place measures in our constitution to protect our unique environment which supports our quality of life.

Clay Henderson is the President of the Florida Audubon Society. He currently serves on the Florida Constitution Revision Commission. He also chairs the Florida Greenways Coordinating Council and has held numerous other public service positions relating to state environmental policy, including serving on the Florida Communities Trust governing board, chairing the Pollution Prevention Council, and serving on the Administrative Procedure Act Review Commission and the Property Rights Study Commission. He received his BA from Stetson University and JD from Cumberland Law School.