A shore point for the public

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Imagine a Florida with lakes, rivers and creeks whose shores are as bald as a desert. No stately cypress trees with roots clawing at the land. No perch from which egrets can eye their next fish dinner. No shade for the fisherman.

If a proposed piece of legislation is passed, you might not have to imagine it. Spin doctors are already at work touting a bill before the Florida Legislature that would privatize at least 500,000 acres of state's navigable waterways. If passed, the attorney general's office and environmental groups say the measure would open the door for clear-cutting along Florida's waterways and make it easier for property owners to dig mines, fill lowlands for development and limit access to creeks, lakes and rivers.

"It would be the biggest land grab in Florida's history," says Diana Sawaya-Crane, with the Florida attorney general's office.

Current state law says that navigable waters belong to the public. For example, if you own a lake lot, you can't prevent someone from coming ashore up to the point to which the water rises. Since Florida became a state in 1845, waterways have been used much like highways; they provide a means of travel. And because waterways in Florida grow during the wet seasons, an average high-water mark is used to determine the width of public domain.

Basically, the proposed legislation would give property owners ownership to that land, submerged or not, if the body of water isn't mentioned on their deed. Otherwise, the deed specifies that the land owner does not own the body of water. More than two-thirds of land deeds containing navigable waters do not note the water's existence in part because the land was originally sold in huge bulk tracts.

Backing the bill curiously called "Florida Land Title Protection Act" is Florida's timber industry, a property owners' rights group and the Florida Farm Bureau. The spin is spun by a pro, April Herrle, once a spokesperson for former Gov. Lawton Chiles, who said she's lobbying on behalf of friends at the Florida Forestry Association, a nicer name for the timber industry.

Herrle says the environmental concerns are erroneous. The bill will preserve public access to the waters and won't affect "tree harvesting," because that's already controlled by the state Division of Forestry, the Department of Agriculture and Consumer Services.

The same goes for filling in the wetlands, she says. There's already a regulatory permitting process for dredging and filling that would have to be followed.

But Susie Caplowe, who lobbies for the Sierra Club, says such assurances are weak at best. Once private ownership rights of the waterways have been awarded, it will be difficult to prevent owners from doing whatever they want to do. "The DEP [Department of Environmental Protection] is already looking to not do permitting regulations. It's up to the water-management district to issue permits. If they don't issue a permit, the developer is going to yell property-rights violation. Local governments could go bankrupt trying to fight them."

Herrle also says that owners of land with navigable waters whose deeds fail to note it are unfairly taxed. They pay property taxes on the waterways, but have no ownership rights.

The attorney general's office and environmental groups say that's not so. Most property appraisers either don't charge the property tax or charge a nominal fee for record keeping, about a $1 a year, according to the Sierra Club.

Another reason Herrle gives for the legislation is that the state arbitrarily changes the high-water mark. "The battle, they [environmental groups] say, is over the waterways. It's really over the uplands," Herrle says.

Herrle complains that the attorney general's office has been moving the high-water mark, thereby taking more land for public domain. The attorney general's office denies it. The legislation, however, is intended to stop that. For example, Herrle says: "They can't draw a line a mile up from the water and tell farmers their cows can no longer graze."

But Sawaya-Crane of the attorney general's office says the implication that cattle farmers can't use the adjoining public-domain property is not true. Cattle can graze on the adjoining marshlands now. It's not the farmers the legislation would help, she says. "This is not about the little guy with a double wide. It's about major landowners who want to take the public's property away from them."

Herrle, naturally, disagrees. She says the legislation is about the little guy. "If you're a big, wealthy landowner you could fight it and have a fair shot. If you're a small property owner, you might win, but you'd be bankrupt by the time you get there." When pressed for names of some of the "little guys" affected negatively by the current law, Herrle can't name one. "A lot of people are at risk [of losing land to public domain] and probably don't even know it," she said.

For years, the timber industry and big farmers have tried to get their hands on Florida's numerous waterways. Four state court rulings in the past century prohibited it.

There was a 1989 attempt in the Legislature to privatize many navigable waters in response to a bitter legal dispute. One of Florida's wealthiest families, the Lykes brothers of Tampa, attempted to block public access to the 50-mile-long Fisheating Creek. The citrus, sugar and ranching company owned land alongside it. They said they wanted the land closed to the public for fear of cattle rustlers, poachers and vandals. A circuit court jury ruled in 1997 that the creek belonged to the state. Lykes appealed but ultimately agreed to a $46 million settlement that gave 18,272 acres along the creek to the state and prevents development on another 41,532 acres.

The first court ruling preserving public domain goes back to 1908. But Caplowe says there's a good chance the proposed legislation will pass. Gov. Jeb Bush has generally been pro-development, and "the House [of Representa-tives] loves to be outrageous," she says. The Sierra Club doesn't plan to negotiate on this bill. "We don't have any desire to try to make a bad bill better."

But if it passes, "It would be disastrous," she says. "They could then own and mine the land, cut the cypress trees, do whatever they want with land that abuts the water."

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