Trial over citrus canker eradication program begins in Fort Lauderdale
Lawyers argue over compensation for residents whose trees were cut down


By David Fleshler | South Florida Sun-Sentinel
December 4, 2007

A trial over compensating about 70,000 Broward County homeowners for their citrus trees opened Monday in Fort Lauderdale, as lawyers painted starkly different portraits of Florida's citrus canker eradication program.

The class-action lawsuit, filed on behalf of homeowners, seeks to obtain additional compensation beyond the $100 Wal-Mart voucher and subsequent $55 cash payments offered by the Florida Department of Agriculture for trees cut down because they were within 1,900 feet of infected trees.

"This case is about the deprivation of private property rights in violation of the state constitution," said Robert Gilbert, lead attorney for the homeowners, in his opening statement before Broward Circuit Judge Ronald Rothschild.

The overwhelming number of trees were healthy, he said, and even those that would eventually get the disease would continue to yield good fruit. The state settled on a policy of destroying hundreds of thousands of residential citrus trees in South Florida without proper compensation, he said, because it was cheaper than inspecting them regularly or undertaking eminent domain proceedings to pay a fair price.

Wes Parsons, attorney for the Florida Department of Agriculture, said the vast majority of trees would have contracted the disease and passed it on to other citrus trees.

"Our primary defense in this case is that these citrus trees constituted a public nuisance," he said. "Not only are they of little value to the homeowner, but they will actually spread citrus canker during the period they are declining."

Much of the Agriculture Department's case will rest on the testimony of Timothy Schubert, head of the department's Plant Pathology Section, he said. He will testify that citrus trees within 1,900 feet of visibly infected trees "already harbor the bacteria or will soon harbor the bacteria," Parsons said.

The case is one of five class-action suits filed around the state on behalf of tree owners. The case in Palm Beach County, the first to go to trial, wrapped up last month. A decision is pending.

The eradication campaign, which lasted from the late 1990s through 2005, was intended to wipe out a bacterial disease that blemishes fruit (although leaving it edible) and damages trees, causing the premature drop of leaves and fruit.

Presenting their case first, the homeowners opened with the testimony of Claudette Abrams, of Monroe Street in Hollywood, who described how she lovingly tended her five citrus trees, using them to send Northern friends gifts of ruby red grapefruit, Valencia oranges and other fruits. One day in March 2000, the canker eradication crews arrived.

"Crews came through the backyard using chain saws and cut the trees down," she said. "They stripped the fruit from the trees and put it in brown paper bags and put the bags in the trucks."

Abrams received the Wal-Mart voucher and $220 in cash, compensation she described as "ludicrous."

"I feel certain that each tree would have been worth several hundred dollars each," she said.

Next, John Harris, a certified arborist and tree appraiser, described his appraisals of citrus trees in Deerfield Beach. At one house, he appraised a 15-foot grapefruit tree at $1,060, a 12-foot orange tree at $643 and a 7-foot lemon tree at $454. Under cross-examination, he acknowledged also noting that if they had citrus canker they would have no value.

Toward the end of the day, Gilbert called to the stand Deputy Agriculture Commissioner Craig Meyer, whom he described as the "master architect" of the 1,900-foot destruction policy.

Meyer said had the eradication campaign not been tied up in legal challenges, the disease would have been wiped out of Florida.

"We believe we could have eradicated it," he said. "And Mrs. Abrams could plant citrus trees and not worry about them coming down with citrus canker."

David Fleshler can be reached at dfleshler@sun-sentinel.com or 954-356-4535.

Source: http://www.sun-sentinel.com/news/local/broward/sfl-flbcanker1204sbdec04,0,5343160.story

A battle begins to prove the worth of citrus trees
Homeowners who lost their cankerous yard trees as part of a statewide eradication program began the first phase of legal action to collect more restitution for their losses.
Posted on Tue, Dec. 04, 2007

BY PHIL LONG
plong@MiamiHerald.com

The state decision to chain-saw thousands of backyard citrus trees was fueled by economic concerns, not health and safety reasons, according to a lawyer for thousands of Broward County homeowners who lost their trees.

''This was not a case where the state rushed to a supermarket and destroyed diseased hamburger meat, which presented an imminent threat to the health and safety of the public,'' said Robert Gilbert, representing the plaintiffs.

Lawyers for thousands of Broward residents who lost their backyard citrus trees during the controversial citrus canker eradication program were in court for the first phase of a legal action to collect from the state what they think their trees were worth.

The evidence will show that citrus canker had only an economic impact, Gilbert said Monday in Broward Circuit Court. The fruit's blemishes and lesions affected its commercial marketability, not its use by homeowners, he said.

Not so, said the state department of agriculture's top executive on canker. The eradication program was driven by science, said Craig Meyer, deputy commissioner. Meyer said eradication of canker, which is harmless to humans but blemishes fruit and causes trees' fruit production to decline, would have benefited residential owners as well as commercial growers.

To prevail at this first phase, a nonjury trial, the plaintiffs must convince Judge Ronald Rothschild that their trees had value.

After that, about 69,000 Broward residents who had at least 138,222 citrus trees removed by state-hired crews would have to ask a jury to determine late this year just what the fair value is. Homeowners received a $100 Wal-Mart voucher from the state for the first tree and $55 for each additional tree.

The state is contending that the backyard citrus trees were valueless because they were within 1,900 feet of an infected tree and thus would likely get canker.

Residents will say that makes no difference; the trees had value.

The state argues that Broward caused some of its own problems by dragging the eradication program into court, slowing down the battle to contain the disease, said Wes Parsons, lawyer for the Department of Agricultural and Consumer Services.

While canker almosts never kills a tree, it would almost be better if it did, Parsons said.

The canker bacteria attacks the green tissue of the tree, debilitating it. The tree goes into decline, but still puts out canker bacteria.

''It's a miserable sight,'' Parsons said.

The latest outbreak of canker was discovered in Miami-Dade in 1995 and has spread into the prime citrus belt in Central Florida.

The most controversial element of the state's canker eradication program called for the destruction of not only infected citrus trees but all citrus trees within 1,900 feet of an infected one, after early 2000. The previous guideline held that only those trees within 125 feet of an infected one had to go.

Statewide, more than 850,000 residential trees were removed under the eradication program. It ended in January 2006, when federal and state officials agreed that the disease had become so widespread that it could not be eradicated.

Lawsuits such as the one in the Broward courtroom are under way in Palm Beach, Miami-Dade, Lee and Orange counties as well.

The hearing on the class-action suit is expected to last two weeks.

Source: http://www.miamiherald.com/news/florida/story/330966.html

I'm sure the Florida mass media will make as big a deal as they can possibly make. The winners in this whole campaign will be (once again) the trial lawyers. The loss of a back yard citrus tree, is not life or death. For the governmental officials that were trying to save a 1.5 billion dollar industry, that gives jobs to 90,000 people in Florida, are damned if they do and damned if they don't. The Floridians should just go out a purchase themselves another tree for $20.00 and get on with life.

When Oglethorp founded the original colony in what is now Georgia, he forbid all lawyers-- too bad the ban failed!

Here are some quotes from a website (http://www.uoworks.com/articles/city.savannah.html )

The last of the 13 original colonies, Georgia, unlike the others, began as a commercial enterprise where everyone would be welcome—except Catholics, slaves, and lawyers. The 21 sponsoring “trustees” back in England were also wary of Jews.

The ban against “that pest and scourge of mankind called lawyers” lasted until 1755, when proliferating land disputes and crimes made it obvious that their profession was badly needed. Today the city has some 500 attorneys.

Monday, December 10, 2007 - 4:00 PM EST
Judge: State must pay for destroyed trees

Source: http://www.bizjournals.com/southflorida/stories/2007/12/10/daily12.html
South Florida Business Journal

Palm Beach County Circuit Court Judge Robin Rosenberg ruled that the state must compensate the county homeowners whose trees were destroyed in an attempt to eradicate citrus canker.

The ruling came after a two-week, non-jury trial in Palm Beach County Circuit Court. The case will now move onto a second trial, set for March 31, where a jury will determine the amount of compensation owed to the homeowners. A similar trial on behalf of Broward County residents is currently going on in Broward Circuit Court.

Florida Agriculture and Consumer Services Commissioner Charles H. Bronson said the state will appeal the ruling. A scientist with the U.S. Department of Agriculture was unable to testify during the hearing, and his studies were not introduced, which Bronson said resulted in the ruling against the state.

The now-defunct Citrus Canker Eradication Program destroyed 66,000 residential tress in Palm Beach County and 133,000 in Broward between 1995 and 2006. The crux of the case was whether the removal of the trees was considered a "taking" under the Florida constitution, which requires "full and just" compensation.

The state did reimburse tree owners between $55 and $100 for each tree destroyed, a measure that was upheld by the Florida Supreme Court in 2005 but with the caveat that compensation for trees might be too low.

"We are extremely grateful for the court's important decision issued in this case," homeowners' attorney Robert Gilbert, of Gilbert P.A., said in a news release. "This is another critical step in the long journey we began seven years ago to obtain justice for Florida homeowners whose residential citrus trees were destroyed by the state. The time is long past due for our state leaders to recognize their obligation to fulfill a constitutional guarantee of full compensation to these Florida homeowners."

However, Bronson said he was afraid the ruling may have a chilling effect on state agencies trying to stop pest or disease outbreaks.

"What state agency won't think twice about carrying out its constitutionally mandated responsibility of protecting the food supply, public and economy when faced with the possibility of multimillion-dollar lawsuits?" he said in a news release.

The Department of Agriculture has maintained the trees were a public nuisance because they were exposed to the canker and would likely become infected, based on scientific research on the spread of the disease. The infection causes leaves, stems and fruit of citrus trees to develop lesions. It can cause fruit such as lime, oranges and grapefruit to drop prematurely. While such fruit is considered safe to eat, growers don't feel that consumers would want to buy it on the market because of its appearance.

Ag commissioner bemoans canker ruling; promises appeal
(Last updated: December 10, 2007 3:11 PM)

Source: http://www.sun-herald.com/floridanews.cfm?id=1566

The following release is verbatim from the Florida Comissioner of Agriculture and Consumer Services:

TALLAHASSEE -- Florida Agriculture and Consumer Services Commissioner Charles H. Bronson today said that he is concerned about the ramifications of a citrus canker compensation lawsuit on the state's economy and food supply.

Today, a Palm Beach County circuit judge ruled the department is liable for paying homeowners for citrus trees removed as part of the citrus canker eradication effort. The department had maintained the trees were a public nuisance because they were exposed to the serious bacterial disease and would likely become infected based on scientific research on the spread of the disease. Trees that were already diagnosed as infected are not included in the lawsuit.

Bronson says the ruling may have a chilling effect on state agencies trying to do their job of stopping pest or disease outbreaks that would wreak havoc on the state's economy and food supply.

"What state agency won't think twice about carrying out its constitutionally mandated responsibility of protecting the food supply, public and economy when faced with the possibility of multimillion-dollar lawsuits?" Bronson said.

Bronson defended the program saying state and local officials sometimes have to take serious actions for the greater good of all the citizens. He added that many measures were put in place to respond to citizen concerns about the eradication effort.

"We were responding to the scientific research that indicated trees within 1,900 feet of an infected tree would likely become infected and the only way to eradicate the disease was to remove the infected and exposed trees. Much testing and research was done before the 1,900- foot cutting zone was put into effect."

Citrus canker causes severe blemishing of the citrus fruit, leaves and stems, and causes premature fruit and leaf drop resulting in lower yields. Without an eradication program under way, citrus growers would have faced severe limitations on exporting their product to other states and countries. In fact, that has become the reality. Since the program was abandoned in 2006 when the United States Department of Agriculture (USDA) determined that the unprecedented 2004 and 2005 hurricanes had spread the disease beyond the ability to eradicate, regulators have placed restrictions on citrus exports to many areas.

Bronson expressed disappointment that the lead USDA scientist of the canker study would not agree to testify at the trial in Palm Beach. Because he was not available to testify, the facts of the study which proved the 1,900-foot cutting zone was necessary were not introduced at the trial -- a situation Bronson believes led to the ruling.

Bronson indicated that too much is at stake and the department will appeal the ruling.

Editor's Note: The scientist whose word was taken to destroy all citrus trees within 1,900 feet would never speak with or answer questions from the press.

The agricultural department does not have any money of it's own. All that the judge's ruling does, is make all the tax payers, once again pay the bill.

Broward citrus canker case now up to judge

By David Fleshler | Sun-Sentinel.com
5:53 PM EST, December 14, 2007


FORT LAUDERDALE - About 70,000 Broward County households are now awaiting a judge's decision on whether they will be paid for citrus trees lost to Florida's citrus canker eradication program.

Attorneys made closing statements Friday in a class-action lawsuit filed on behalf of homeowners whose trees were cut down because they stood within 1,900 feet of infected trees.

Robert Gilbert, lead attorney for the homeowners, said the Florida Department of Agriculture tried to make them bear the cost of its campaign against the disease.

Rather than squarely facing its responsibility to pay people for the trees cut down to protect the commercial citrus industry, he said, the department tried to get by cheaply with the flimsy argument that the trees were worthless.

"For the past 12 years, it has asserted virtually unbridled power with respect to its pursuit of the canker eradication program," he said. "Today, now, it's time to hold the department accountable."

Wes Parsons, attorney for the Department of Agriculture, said the case was about the science of citrus canker and the fact that these trees either already harbored the canker bacteria or would soon harbor it, allowing the disease to hop from tree to tree.

All the homeowners have done is criticize peripheral aspects of the program, he said.

"They don't find fault with what's really stake," Parsons said. "That's the underlying science."

A decision won't come until early next year.

The judge asked attorneys for each side to submit proposed orders the first week of January and said he would draft his decision after studying them.

The judge's decision will not establish an amount of money to be paid for each tree. He will only decide whether or not the homeowners have established that the state took something of value without paying full compensation.

If he makes that decision, he will empanel a jury to hear evidence and decide how much should be paid.

The case is one of five virtually identical class-action suits filed in different counties over the canker eradication program.

The first suit to go to trial, in Palm Beach County, ended with the judge deciding in favor of the homeowners. A jury is scheduled to hear the case in April, although the state is deciding whether to appeal the judge's decision.

About 130,000 trees were cut down in Broward. Homeowners were offered $100 Wal-Mart vouchers for the first tree and $55 for subsequent ones, but many considered that token compensation.

Outside the courtroom, Kathy Cox, one of the original plaintiffs, said she went to court not because of the two citrus trees she lost, but because of constitutional principles and the need to rein in abusive government agencies.

"The Department of Agriculture is the 'public nuisance,'" she said, using language the state had used to describe her trees.

"Their heavy-handed approach to the program, their violation of people's rights, their lack of a real plan, makes them more of a nuisance than the disease," Cox said.

David Fleshler can be reached at dfleshler@sun-sentinel.com or 954-356-4535.

Source: http://www.sun-sentinel.com/news/local/broward/sfl-1214browcanker,0,5800869.story

BROWARD COUNTY
A win for homeowners in citrus canker lawsuit
A jury will decide in April how much compensation the state should give 72,000 Broward residents whose citrus trees it felled, a judge ruled.
Posted on Fri, Feb. 22, 2008
BY PHIL LONG
plong@MiamiHerald.com

In a major legal victory for thousands of South Florida residents, a Broward circuit judge ruled Thursday that a jury -- not the state -- will determine how much the government will have to pay for citrus trees ripped from their backyards during the failed canker eradication program.

Broward Circuit Judge Ronald Rothschild rejected the Florida Department of Agriculture and Consumer Services' insistence that the trees were a valueless public nuisance because they had been exposed to citrus canker and might spread the disease.

Rothschild's ruling means the state must pay whatever a jury decides the trees are worth -- and not necessarily the $100 for the first tree taken and $55 for each additional citrus tree lost, which were the sums given to people who lost trees.

A jury trial is tentatively scheduled for April.

''We're elated with the ruling,'' said Miami attorney Bobby Gilbert, who represents tree owners in class-action suits in five counties.

It is not up to state agricultural officials, he said, ``to arbitrarily tell these people what they can or cannot have.''

The ruling, similar to one that was reached in Palm Beach County in December, came as part of a larger class-action lawsuit that affects about 72,000 Broward residents who had more than 133,000 trees felled by the state between 2000 and 2006.

State and federal officials believed it was necessary to cut down every uninfected citrus tree in Broward -- and also in Miami-Dade, Orange, Lee and Palm Beach counties -- that were within 1,900 feet of an infected tree. The theory was that the trees would become ill themselves, a concept that Rothschild said the state failed to prove.

''It was a great victory, and I think it was a well-deserved victory,'' said Tim Farley of Oakland Park about the judge's ruling Thursday.

''The judge made the right decision,'' said Farley, who lost two grapefruit trees, three orange trees and a lemon tree in 2000. ''They trampled all over our constitutional rights,'' he said of the state.

In his 54-page decision, Rothschild wrote:

'The court finds that the department decided to sacrifice homeowners' trees to accomplish its stated goal of canker eradication.''

``Thus the overwhelming evidence demonstrates that the [eradication program] was designed to accomplish its principal public purpose of protecting Florida's commercial citrus industry.''

''The department acted in good faith under a mistaken belief that eradication would save the commercial citrus industry. Time proved the department's contention as untrue,'' Rothschild wrote.

The taking of the trees constituted a ''compensable taking'' under Florida's laws, Rothschild wrote. ''The relevant inquiry is whether the property had value at the time it was taken,'' Rothschild wrote.

''While the department had the legal right and authority to destroy the trees owned by plaintiffs, based on the lack of evidence demonstrating that the trees were a public nuisance, the court finds that the department is liable to provide full and just compensation . . .'' Rothschild wrote

In a statement, Agriculture Commissioner Charles Bronson expressed disappointment over the ruling and said he believed the state would prevail on appeal.

''It was truly unfortunate that residential and commercial citrus trees had to be destroyed,'' the statement said, adding that Bronson ``appreciated the sacrifices residents made throughout the program.''

''The facts are bearing out what we feared would happen without the eradication effort,'' Bronson said in the statement.

Canker has spread to 30 citrus-producing counties.

Source:
http://www.miamiherald.com/news/broward/story/428785.html

JUDGEMENT DAY: $34/Tree

http://www.miamiherald.com/news/broward/story/523905.html

Citrus owners get slim award: $34 a tree
A Broward jury ruled in favor of tens of thousands of Broward homeowners whose trees were chopped down during the state's canker eradication program.
Posted on Wed, May. 07, 2008

ALEX GERVAIS

Tens of thousands of Broward homeowners should be given more money for many of the trees destroyed by the state during the controversial citrus canker eradication program, a Broward jury decided late Tuesday.

But homeowners should not expect a windfall.

In reaching their verdict, jurors awarded only about $4.4 million more than the state had already paid out to homeowners as compensation for the lost trees. The award must also be shared with an expanded pool of eligible homeowners.

If spread evenly, the reimbursement would be about $34 per lost tree, said Richard Gaskalla, director of the state division of plant industries.

In the end, the 12 jurors, who deliberated just two days, agreed the state shortchanged homeowners but decided the trees just weren't that valuable.

''Personally, I felt the verdict should have been zero, and some others felt that way,'' said juror Kevin Edwards. ``The state clearly won this case, and I wasn't going to leave that room until I was sure that was reflected.''

During much of the eradication program, the state gave affected homeowners a $100 Wal-Mart gift card for the first tree lost and $55 each for the rest.

Attorneys for the homeowners had suggested the trees were worth in the neighborhood of $50 million -- or as much as $400 apiece.

But jurors sided with the state, which alleged the removed trees would inevitably have been infected with canker or some other disease, making them worthless.

''We felt that the fact that they were exposed makes those trees significantly less in value,'' Edwards said.

The trees at issue in the Broward lawsuit were not infected with canker, but crews contracted by the state were ordered to cut those within 1,900 feet of a canker-infected tree. Orange, lemon, lime, grapefruit and other citrus trees disappeared from properties.

Jury Foreman Jonathan Cowan said the bulk of deliberations was taken up by determining the trees' value.

FLAWED SCIENCE?

After the verdict was read, several jurors told homeowners' attorney Robert Gilbert that state scientists' assertion that the trees were subject to future infections was credible. Gilbert had fought to bar that testimony from trial.

''The judge allowed them to hear flawed science, and that was the determining factor in the jury's decision,'' Gilbert said. ``I wouldn't use the word insult, but the award was far less than full compensation, and we're not satisfied.''

The state embarked on its aggressive eradication program in 2000 to prevent the spread of canker -- a disease harmless to humans but one that blemishes fruit and debilitates trees. Despite a decade of work and about $1 billion in costs, the program failed. The state and the federal government abandoned the practice in 2006.

Attorneys for the state looked at the verdict as a partial victory, taking note of the praise jurors found in their evidence.

That could bode well for the state, which faces similar court challenges in Miami-Dade, Palm Beach, Lee and Orange counties. The state destroyed about 578,000 trees ''exposed'' to canker, including 133,700 in Broward and 249,000 in Miami-Dade.

''This was a defense verdict,'' said state attorney Wes Parsons. ``This was within the realm of what we thought might happen. We felt the trees lacked value of any kind.''

APPEALS LIKELY

Both sides are expected to appeal the decision -- the state wanting to pay less and attorneys for homeowners hoping a new jury will raise the value of the trees.

Several homeowners, present for the 7 p.m. reading of the verdict, expressed disappointment. ''This is a big defeat,'' said Tim Farley of Parkland, who lost eight trees to the program in 2000. ``The Department of Agriculture put on a smoke screen, and the jury didn't see through it. This is not just and fair compensation.''

Attorneys for homeowners had argued that the state destroyed their properties and provided paltry sums as compensation.

The Broward jury's task was clear from the start: determine the value of destroyed trees.

The jury's instructions were just as clear. ''The constitutional requirement of full compensation means that the property owner must be paid completely for the whole loss resulting from the taking,'' Judge Ronald Rothschild told jurors just before deliberations began Monday.

Jurors reached their decision after hearing two weeks of often mundane, technical testimony about the spread of canker and other diseases and various ways to come up with the replacement value of a citrus tree.

I wonder how many of the jurors were people who had a citrus tree chopped down, or had a friend or relative who lost a tree. In this case it is actually themselves paying themselves, in the form of tax payers paying off the trees. $34.00 is not worth all the trouble it will take to pay the ""victims"". - Millet

It is the lawyers that will get 1/3 of that-- I still think Oglethorp had the right idea wneh he founded GA--no Lawyers!

New trial sought in citrus canker compensation case
Attorneys say judge erred in canker ruling

By David Fleshler | South Florida Sun-Sentinel
May 20, 2008

Attorneys for thousands of Broward County homeowners have asked for a new trial to try to win more compensation for citrus trees destroyed in the fight against citrus canker.

Robert Gilbert, lead attorney for more than 58,000 homeowners, said Circuit Judge Ronald Rothschild made several mistakes in the trial involving the Florida Department of Agriculture, in which the homeowners filed a civil lawsuit seeking compensation for the destruction of 133,720 trees.

The trial ended May 6 with an $11.5 million jury award that amounted to $34 per tree, once previous payments are deducted. Although technically a win for the homeowners, the verdict was a disappointment to them and a relief to the Department of Agriculture, which had faced the possibility of an award many times higher.

In a motion filed with the court, Gilbert said the judge erred in allowing the jury to hear "highly prejudicial and inflammatory evidence" that the trees would likely get citrus canker and therefore constituted a public hazard. Since the judge previously had ruled that the state presented no convincing evidence that the trees would get canker, Gilbert said, he should not have allowed the Department of Agriculture to argue that point before the jury.

And Gilbert said the judge was wrong to allow the jury to award a lump sum rather than fill out a verdict form awarding amounts based on the size of the tree, its condition and the date it was cut down. This denied homeowners their constitutional right to full compensation, defined as the replacement value of their trees.

The trees destroyed varied enormously, from three-foot trees to one topping 25 feet, so a lump sum would give some homeowners too much, others too little, he wrote.

A hearing on the motion for a new trial has been scheduled for June 27.

Wes Parsons, attorney for the Department of Agriculture, said the judge made the right decision in allowing him to tell the jury about the trees' risk of disease, since that would have an impact on their value.

"I think he generally ruled correctly, and I don't see anything in the motion that would change his mind."

"Bobby has pressed very hard for a jury trial," Parsons said. "Now that the case has gone to a jury of the plaintiffs' peers, it is discouraging that they're now trying to upset the verdict."

David Fleshler can be reached at dfleshler@sun-sentinel.com or 954-356-4535.