http://www.forbes.com/feeds/ap/2007/10/29/ap4275355.html

Citrus Canker Case Goes to Judge
By BRIAN SKOLOFF 10.29.07, 6:16 PM ET

WEST PALM BEACH, Fla. -

The state's failed decade-long effort to eradicate a harmful bacteria by destroying citrus trees was based on flawed science and too few studies, an attorney said Monday during closing arguments in a class-action lawsuit.

The state, however, argues the science was sound and the actions were necessary to prevent potential catastrophic losses to the commercial citrus industry.

David and Lillian Mendez, of Boca Raton, are joined in their lawsuit against the state Department of Agriculture by nearly 41,000 other Palm (nasdaq: PALM - news - people ) Beach County residents who had their citrus trees cut down as the state tried to stop the spread of canker.

The disease can be transferred by birds, humans and wind, makes fruit blemish and prompts it to drop prematurely. It does not harm people.

The tree removal program began in 1995, and ended last year after state officials and the U.S. Department of Agriculture, which helped pay for the program, determined that hurricanes had spread the disease beyond containment.

Plaintiffs now claim the state owes them fair compensation for their lost trees.

The state argues the more than 66,000 trees were worthless because of their mere exposure to canker, but the plaintiffs claim there weren't enough studies to prove every tree would become infected.

The trees "had value because they had not been determined to be infected with citrus canker," said plaintiffs' attorney Robert Gilbert. "It's time to hold the Department of Agriculture accountable."

Gilbert said residents should be compensated "at least the reasonable cost of replacing the trees."

Under the program, all citrus trees within a 1,900 foot radius of one infected with canker were ordered destroyed - even those in yards that appeared to be healthy. About 16.5 million residential, nursery and commercial trees were destroyed statewide, including more than 800,000 from the yards of homeowners.

The program compensated residents with $100 vouchers for the first tree cut down and $55 for each tree after, but has spawned lawsuits from angry homeowners who feel that wasn't enough.

The state deemed even exposed trees within the 1,900 foot radius to be public nuisances, meaning they had no value under state law.

"The exposed trees are a public nuisance because they will spread canker," argued Wesley Parsons, an attorney representing the state Agriculture Department.

"We have a billion dollar (citrus) industry in Florida," Parsons said, adding that canker threatened fruit exports to foreign countries and its existence hurt "the social welfare of Florida."

The Florida Supreme Court ruled in 2005 that the state's eradication program and compensation was valid. However, the court said then the current compensation only met the low end of the threshold. The high court left it up to judges and juries to determine if the trees were of higher value.

Circuit Judge Robin Rosenberg must now determine whether the uninfected trees removed in Palm Beach County had value. If so, a jury during a separate trial will determine that value.

The Palm Beach County case is the first of five pending canker lawsuits against the state to go to trial. Similar lawsuits are pending in Lee, Miami-Dade, Orange and Broward counties.