Why I Will Vote Against Amendment 5

               Wade L. Hopping

     Around our house we have a saying: "When all else fails, read the instructions." While this is good advice when programming your VCR or clock radio, it's even more critical when preparing to vote on permanent changes to Florida's Constitution.

     Conventional wisdom is that Amendment 5 must be good because the Constitution Revision Commission, the newspapers and environmentalists support it! Let's look at Amendment 5's four parts and see if this "wisdom" is valid.

Part 1

     Part 1 adds the following mandatory requirement to Article II, Section 7:

"Adequate provision shall be made by law . . . for the conservation and protection of natural resources."

     This overly broad language places a direct mandatory requirement on the Legislature to enact additional laws to protect the state's natural resources even though Florida's statute books currently contain at least 16 chapters of law (598 pages plus) which are implemented by in excess of 4000 pages of administrative rules designed to protect these same natural resources. At best, the Part 1 addition is surplusage and aspirational. At worst, it will generate litigation, unnecessary new laws, and additional regulations.

Part 2

     Part 2 involves merger of the existing constitutional Florida Game and Fresh Water Fish Commission with the statutorily created Marine Fisheries Commission.

     The new constitutionally independent agency, the Fish and Wildlife Conservation Commission, is empowered to "exercise the regulatory and executive powers of the state with respect to. . ." wild animal life, fresh water aquatic life, and "marine life." The push for this powerful new agency is principally the result of frustration by sports fishing and environmental special interests who are disappointed that the Governor and Cabinet will not approve the catch limits applicable to commercial fishing they advocate. Even assuming the justice of their cause, is it wise to create an all powerful constitutional agency, which is beyond the effective control of the Legislature, to address these issues? Will we look back at this decisions ten years from now and regret that we have created an additional environmental regulatory agency competing for resources and regulatory supremacy with the Water Management Districts, the Department of Environmental Protection and the Department of Community Affairs?

     To their credit the Constitution Revision Commission added several safeguards to this provision, including:

• A requirement that the Commission insure citizens receive "adequate due process" when it is exercising its authority;

• A prohibition against the Commission regulating matters relating to air and water pollution; and

• Initially limiting the new Commission's "marine life" jurisdiction to that currently exercised by the Marine Fisheries Commission.

     Nevertheless, if you read the "instructions", the jurisdiction and powers of an existing extremely powerful independent regulatory agency are being greatly expanded.

Part 3

     Part 3 grants authority to the Legislature to issue bonds to acquire and improve land ". . . for the purposes of conservation, outdoor recreation, water resource development, restoration of natural systems, and historic preservation."

     Standing alone I would vote for this provision, which will allow the creation of a bonded revenue stream to purchase land, create water supplies and restore the Everglades if the Legislature so chooses. Unlike Parts 1, 2 and 4, use of the state's bonding authority is not a matter that can be handled by legislative enactment. We must have a constitutional authorization for the exercise of this type of bonding authority. The good news is that even if Amendment 5 fails this year, it is almost a certainty that our Legislature will submit the same or an improved version of the Part 3 language to the voters at the next available opportunity.

Part 4

     Part 4 requires a 2/3 vote of any governing board of "an entity of the state" holding title to land "designated for natural resource conservation purposes" before the lands maybe "disposed of".

     The language of this provision is confusing, but it's intent is clear: let's make it extremely difficult to sell or otherwise convey a "fee interest" in any conservation land owned by "an entity of the state".

     With regard to Part 4, I have more questions than answers!

• Which of the millions of acres of lands "held by an entity of the state" have been or will be "designated for natural resource conservation purposes?"

• Does this limitation apply to conservation land owned by cities and counties?

• Does the restriction apply to the granting of utility and road easements; consents of use; "less than fee" interests; agricultural and mineral leases; submerged land leases, etc.?

     Part 4 is confusing and overly broad, to say the least. Furthermore, it clearly is an issue the Legislature could handle without Constitution guidance.

     So where does that leave us, since we can only vote once - up or down on all four Parts of Amendment 5? I don't know about you, but here is where I come out:

I strongly oppose Part 1 (the so-called "Environmental Bill of Rights") and Part 4 (2/3 vote requirement).

I have long term reservations about Part 2 (the new Fish and Wildlife Conservation Commission).

I support Part 3 (bonds), but think the language could be improved and updated to better address funding of the Everglades Restudy and the water supply needs of the state.

On balance, after reading the "instructions", I'll vote no on Amendment 5, because once this language is in our Constitution, it will be almost impossible to correct its several defects.

     I suggest that you read all of Amendment 5, apply your common sense to the language, and cast an informed vote on the issue. In other words, "When all else fails, read the instructions. . ." before you vote on this important issue.

Wade L. Hopping is a Senior Shareholder at Hopping Green Sams and Smith, P.A. He has worked extensively in the area of land use regulation, the successful licensure of controversial projects, and the handling of complex legislative issues. A former Justice of the Florida Supreme Court, Mr. Hopping served as a top aide to Governor Claude Kirk, as an adjunct law professor at Florida State University, and as President of the Florida Chamber of Commerce.