TEXT :: Florida’s citrus canker law (the Canker Law) requires the State to destroy healthy-appearing citrus trees that are within a 1900-foot radius of an infected tree. The Florida Legislature enacted this eradication program to thwart the spread of canker and to protect Florida’s second largest industry, which generates an estimated annual revenue of nine billion dollars. Petitioner challenged the statute, alleging that it violated the Fifth Amendment’s prohibition against taking private property without just compensation. The trial court held that the Canker Law was unconstitutional. Respondent appealed the decision, and the Fourth District Court of Appeal reversed, holding that the Canker Law was constitutional and violated neither substantive nor procedural due process. The Florida Supreme Court accepted jurisdiction and affirmed the decision of the appellate court. Refraining from a detailed discussion of the common law doctrine of nuisance, the court HELD, that the Florida Legislature could prevent the spread of citrus canker by requiring the State to destroy both diseased and seemingly healthy citrus trees.
The Fifth Amendment’s Compensation Clause provides that “private property [shall not] be taken for public use, without just compensation.” Florida’s Compensation Clause is similar. It states that “[n]o private property shall be taken except for a public purpose and with full compensation.” However, courts historically have not offered compensation for those cases involving actual necessity.
Corneal v. State Plant Board was the first case to consider whether Florida was constitutionally required to provide compensation for destroying healthy trees within a certain radius of an infected and contagious tree. The disease at issue in Corneal was “spreading decline,” a slow moving disease carried by a burrowing nematode. The court held that while the Plant Board validly exercised its police power in destroying the owners’ healthy trees to prevent the spread of disease, the owners were entitled to compensation.
Thirty-one years after Corneal, the Florida Supreme Court considered a different disease, citrus canker, in Department of Agriculture & Consumer Services v. Mid- Florida Growers, Inc. The respondents, two nursery operators, had purchased budwood and budeyes from a supplier on whose premises citrus canker was later detected. Even though the respondents’ entire stock tested negative for citrus canker, the Department destroyed nearly 300,000 of their trees and budwood. The respondents filed an inverse condemnation suit, arguing that the State could not destroy healthy citrus trees or budwood to slow the spread of citrus canker without providing compensation.
At trial, the court found that the Department’s actions constituted a taking requiring just compensation. The district court and the Florida Supreme Court affirmed. Casting the Department’s actions as an attempt to confer a public benefit, the Florida Supreme Court concluded that a taking occurred when the Department, properly acting under its police power, destroyed healthy trees. Thus, the owners were entitled to compensation.
The Florida Supreme Court’s protection of healthy trees did not last long. Less than three years after Mid-Florida Growers, the Florida Supreme Court considered Department of Agriculture & Consumer Services v. Polk, a case again involving citrus canker. There, the Department destroyed over half a million of Richard Polk’s citrus trees to prevent the spread of canker. Polk sued, alleging that the State had taken his property and that he was entitled to compensation.
Viewing the suit as an inverse condemnation claim, the trial court held that the Department’s eradication of healthy trees outside the 125-foot radius exposure area constituted a taking; however, the trial court determined that destroying both the infected trees and also those within 125 feet of infected trees did not equate to a taking requiring compensation. In upholding the trial court’s decision, the Florida Supreme Court held that the State’s destruction of diseased trees and those trees within 125 feet of the diseased trees was not a taking. As a result, the only trees for which Polk could receive compensation were those outside of the 125-foot radius.
The instant court considered essentially the same issue as that in Polk, but it analyzed the substantive due process grounds for challenging the Canker Law. While Corneal and Mid-Florida Growers considered whether the State could constitutionally exercise its police power to destroy both diseased trees and those within a legislatively determined exposure zone, Haire established the necessary threshold that the State must meet in exercising that power. When offering compensation under a statute for the destruction of trees, the State need only show that the legislation is reasonably related to a legitimate public purpose. Conversely, if the State offers no compensation, it must prove that the statute was narrowly tailored and that the threat being addressed was “imminently dangerous.” Recognizing the compensable destruction of trees as properly within the State’s police power, the instant court determined that the appropriate standard of review for upholding the Canker Law is a reasonable relationship test. It found that the Canker Law merited this relaxed standard because it provided for compensation.
Yet, determining whether the Canker Law is rationally related to a legitimate public purpose that compels compensation is premature and ultimately unnecessary. Instead, the court could resolve the issue more cleanly by first examining whether the trees infected with citrus canker and those within the legislatively mandated 1900-foot radius are a nuisance. If the court were to rule in the affirmative, the analysis essentially would end with this answer because purging a nuisance requires no compensation.
Identifying a nuisance requires a court to consider the “circumstances and the locality” because a “nuisance may be merely a right thing in the wrong place,-like a pig in the parlor instead of the barnyard.” This theory, under which no compensation is required, is based on the notion that an individual ought not be able to use his property in a fashion that is harmful to others. In the preceding century, courts and legislatures have found, and not offered compensation for, numerous examples of nuisances, including cedar trees infected with cedar rust, brothels, and fire hazards. However, no Florida court has definitively characterized healthy-appearing citrus trees that are in proximity to trees actually infected with canker as a nuisance.
Nevertheless, one should not hastily conclude that the healthy trees could not be described as a nuisance. Indeed, the Florida Legislature authorized the Department of Agriculture to declare citrus canker and “any other regulated article capable of transporting or harboring citrus canker” a nuisance. The United States Supreme Court in Lucas v. South Carolina Coastal Council warned, however, that simply because a legislature announces that something is a nuisance does not automatically make it a nuisance. The Court remanded the case for South Carolina to determine whether the State’s nuisance and property law would support a nuisance designation.
Though not expressly stated, several reasons suggest that Florida’s common law would support a nuisance label for citrus canker itself and for those healthy- appearing trees within 1900 feet of an infected tree that are potential carriers of the “virulent” disease. Initially, while Corneal required compensation for destroying healthy trees, that case involved “spreading decline,” a slow moving subterranean disease. Citrus canker, however, is imminently dangerous because it proliferates by means of wind-driven rain, humans, and machinery. As no known cure exists, once a tree becomes infected, it will steadily decline and potentially succumb to the disease and die.
March 2015, Vol. 67, No. 2
Albert W. Alschuler, Limiting Political Contributions After McCutcheon, Citizens United, and SpeechNow
Alafair S. Burke, Consent Searches and Fourth Amendment Reasonableness
Jeffrey A. Lefstin, Inventive Application: A History
Onnig H. Dombalagian, Principles for Publicness
Kristen M. Blankley, Impact Preemption: A New Theory of Federal Arbitration Act Preemption
Alan Devlin, Antitrust Limits on Targeted Patent Aggregation