BARLEY v. S. FLORIDA W. MGT. DIST., 5D98-3178 (Fla.App. 5 Dist. 8-25-2000)

THOMPSON, C.J.

The issue in this case is whether allegedly non-polluting property owners may be taxed pursuant to the Everglades Forever Act in light of a constitutional amendment (Amendment 5) which requires that polluters pay for the abatement of pollution they cause.

The 1994 Everglades Forever Act authorized the South Florida Water Management District (district) to levy up to 0.1 mill on property within its district for pollution abatement. Appellants own property within the district and contest the district's authority to tax them for this purpose in light of the 1996 adoption of Amendment 5. Amendment 5 provides that "those who cause water pollution within the [district] shall be primarily responsible for paying the costs of abatement of that pollution." In our view, the trial court correctly ruled that: there is no constitutional impediment to levying a tax upon these taxpayers to clean the Everglades; and, Florida courts cannot force the legislature to pass the legislation which would implement Amendment 5, the "polluters pay" amendment.

In Advisory Opinion to the Governor — 1996 Amendment 5 (Everglades), 706 So.2d 278, 283 n. 12 (Fla. 1997), the supreme court determined that Amendment 5 requires those responsible for pollution to pay for its abatement. The court held, however, that (1) Amendment 5 was not self-executing and (2) the Everglades Forever Act was still valid law. The court stated:

[W]e conclude that Amendment 5 is not self-executing and cannot be implemented without aid of legislative enactment because it fails to lay down a sufficient rule for accomplishing its purpose.

706 So.2d at 281. Further, the court went on to state: "We find no inconsistency between the Everglades Forever Act and Amendment 5." 706 So.2d at 282.

Moreover, the court also opined that while Amendment 5 and the Everglades Forever Act serve a similar purpose, "we do not construe the Everglades Forever Act to be the enabling legislation for Amendment 5." Id, at 282. Citing In re Advisory Opinion to the Governor, 132 So.2d 163, 169 (Fla. 1961), the court stated that because Amendment 5 was not self-executing, the Everglades Forever Act remained in effect until repealed by the legislature.Id. Thus, until the legislature repeals or amends the Everglades Forever Act there is a statutory basis to levy taxes against non-polluting land owners to abate pollution.

The dissent recognizes that the District "can continue to tax for non-abatement purposes and even for abatement of pre-amendment pollution," but contends that the district cannot continue to tax non-polluters. A court, however, cannot tell the legislature when it must enact legislation, or dictate the content of its legislation. Similarly, a court cannot override the will of the people, as expressed in the constitution, which was to adopt an amendment that requires legislative execution. See Advisory Opinion to the Governor, 706 So.2d at 281 ("[I]n adopting Amendment 5, the voters expected the legislature to enact supplementary legislation to make it effective, to carry out its intended purposes, and to define any rights intended to be determined, enjoyed, or protected").

AFFIRMED.

PETERSON, J., concurs.

HARRIS, J., dissents with opinion.