In a big win for Right to Clean Water (RTCW) in Florida, a judge sided with the voters who passed a Titusville charter amendment. Addressing every point of a Motion for Summary Judgement for Declaratory Judgment filed by the City of Titusville, the judge denied that motion and granted the request by Speak Up Titusville, Inc. to require the City to certify the Amendment.
Registered Florida voters, please sign the statewide petition to put a state constitutional amendment on the ballot:
Finch Walker and Tyler Vazquez, Florida Today, November 8, 2022, What charter amendments and referenda passed in Brevard County? Here’s what you need to know,
Titusville residents overwhelmingly passed a charter amendment on the ballot after activists led a petition drive to put a right to clean water on the November ballot.
After passing 82.57% to 17.43%, the amendment will give residents the ability to sue governmental or corporate entities that pollute area waters, including the Indian River Lagoon.
Opponents of the amendment have said it is too broadly written and likely will be struck down in the courts, as it may violate a state law.
A similar measure was overturned by a court in Orange County.
The Titusville amendment is different.
The Orange County amendment included rights of waterbodies,
which is what a court overturned.
The Titusville amendment is purely for human rights to clean water.
So is the proposed Florida constitutional amendment.
This is the most relevant Florida state law, which was passed in 2020 as part of the so-called Clean Waterways Act:
(9)(a) A local government regulation, ordinance, code, rule, comprehensive plan, charter, or any other provision of law may not recognize or grant any legal rights to a plant, an animal, a body of water, or any other part of the natural environment that is not a person or political subdivision as defined in s. 1.01(8) or grant such person or political subdivision any specific rights relating to the natural environment not otherwise authorized in general law or specifically granted in the State Constitution.
The City tried to claim the Titusville amendment runs afoul of that paragraph. The judge summarized that claim and and slapped it down.
Another issue is that the Amendment gives a right to a citizen of Titusville to bring a legal action in the name of the Waters of Titusville. The Amendment provides that the action would have to be brought by a citizen of Titusville in the name of the Waters of Titusville, a nominal action which has been allowed by Courts in the past. See Palila v. Hawaii Department of Land and Natural Resources, 852 F.2d 1106, 1107 (9th Cir. 1988) in which suit was brought by a natural person on behalf of an animal, the Palila. In any event, the Charter Amendment has a severability clause which could be applied if determined to be improper. The principle that the Courts may only prevent the electors from voting on a proposed Initiative if it is clearly invalid in its entirety was upheld in Gaines v. City of Orlando, 450 So. 2d 1174 (Fla. 5thDCA 1984).
The judge cited several other state laws that require protection of waters from pollution or other damage. Then, in response to the City’s claim of vagueness in the RTCW amendment and petition, he noted that the state did not find it necessary to define ordinary dictionary words, plus Section 403.412(9)(a) itself says it does not apply to amendments such as the Titusville one:
The City maintains that Section 403.412(9)(a) pre-empts the Amendment and certification of the Charter Amendment. The Florida Constitution refers to the “natural resources and scenic beauty” of Florida as being protected. “Waters” and “pollution” and other terminology has been defined by both Florida and Federal Statutes. The term “natural environment” in the statute is not unconstitutionally vague. “Natural” is derived from foreign language words meaning “as it relates to the earth” (not human senses, attributes or relationships) “existing in or produced by nature ; not artificial” or in the Biblical sense, the earth and its resources as originally made by God. See Merriam-Webster Dictionary and several definitions occurring in a Google search for “natural”. Merriam-Webster defines “environment” as “the complex of physical, chemical, and biotic factors (as climate, soil and living things) that act upon an organism or ecological community and ultimately determines its form and survival”. “Environmental” basically means the circumstances, objects or conditions by which one is surrounded. The term “natural environment” defines itself and is not likely to confuse or deceive anyone of voting age who have their faculties intact. It is very close in meaning to “natural resources and scenic beauty” used in the Florida Constitution. The Florida Legislature did not see the need to define the term in Florida Statute 403.031 even though it titled the Statute “Environmental Control” and did define “person”, “plant”, “waters”, “pollution” and several others. Further, the Statute itself, Section 403.412(9)(a) states what it means by the terminology. It states that no plant, animal, body of water or any other part of the natural environment that is not a person or political subdivision can be granted any specific legal rights to the natural environment not otherwise authorized in general law or specifically granted in the State Constitution. The laws now allow private citizens to file suit to enforce the environmental laws of the State. The argument relative to the exclusive right to approve environmental laws by the Florida Department of Environmental Protection applies to all local pollution control programs, not enforcement of those programs.
The other claims of vagueness in the argument of Defendant are without merit and will not be discussed.
There is more in the judge’s decision. This bit is my favorite, as it says the City can’t blame somebody else for its failure to do its own duty:
In Shulmister v. City of Pompano Beach, 798 So. 2d 799 (Fla. 4th DCA 2001) the Court held that because Section 101.161(1), requires the governing body to place the proposed amendment on the ballot, it is that body’s responsibility to provide a ballot summary in compliance with Section 101.161(1). See also City of Riviera Beach v. Riviera Beach Citizens Task Force, 87 So. 3d 18 (Fla.4th DCA 2012) in which the City had the ministerial duty to provide a ballot summary and did not do so. The Court said that the city cannot complain that its own failure to perform it’s duty can prevent the citizens from voting on the charter amendment proposal.
Here is the judge’s decision, which ends:
IT IS ORDERED AND ADJUDGED as follows:
- The Motion For Summary Judgment for Declaratory Judgment filed by the City of Titusville be and hereby is DENIED.
- The Motion For Summary Judgment for Declaratory Judgment filed by Speak Up Titusville, Inc. be and hereby is GRANTED in part to the extent of granting the request that the City be required to certify the Amendment. The request to declare any violation of the Federal Constitution or that any section of the Florida Statutes is unconstitutional is DENIED.
DONE AND ORDERED at the Moore Justice Center, Viera, Florida, on the 22%
Charles M. Holcomb
Senior Circuit Judge
Tyler Vazquez, Florida Today, May 24, 2023, Titusville fails to certify right to clean water despite judge’s ruling in favor of voters,
The ballot initiative came after years of sewage spills into the Indian River Lagoon and city ponds as a result of the city’s aging infrastructure. Titusville has racked up hefty fines from the Florida Department of Environmental Protection as a result.
City Council members voiced concerns that the measure could open the city up to costly and frivolous lawsuits that would detract from its ability to pay for cleanup and repairs. City officials also had expressed concern that a right to clean water could be illegal under the Clean Waterways Act, signed into law by Gov. Ron DeSantis in 2020, which prevents local governments from protecting the “rights” of nature — a law that has frustrated many local environmental activists.
William Klein, a member of Speak Up Titusville who was instrumental in placing the referendum on the ballot, likened the city’s behavior to Don Quixote tilting at windmills. “The City of Titusville thinks that they are a knight in armor alongside with Staff using the Courts like a lance to attack Speak Up Titusville instead of a windmill. They have nothing to gain no matter who wins,” Klein wrote in an email. Judge Holcomb declared the city’s claims of vagueness in the statute were without merit to the point of not discussing them in his final judgment. He also ruled against the city’s primary claim that the measure gives natural bodies of water their own rights, running afoul of the state statute. “The adoption of the proposed amendment approved by a majority vote of the voters in Titusville, leaves only a ministerial duty to certify the amendment,” Holcomb wrote. The city on Wednesday still had not certified the amendment.
According to one of several state statutes cited by the judge, citizens can already sue the City:
G. 403.412 Environmental Protection Act.—
(1) This section shall be known and may be cited as the “Environmental Protection Act of 1971.”
(2)(a) The Department of Legal Affairs, any political subdivision or municipality of the state, or a citizen of the state may maintain an action for injunctive relief against:
- Any governmental agency or authority charged by law with the duty of enforcing laws, rules, and regulations for the protection of the air, water, and other natural resources of the state to compel such governmental authority to enforce such laws, rules, and regulations; et.Seq.
But this RTCW charter change will give citizens a stronger leg to stand on to get Titusville to clean up its act.
Don’t forget to sign the statewide petition to get RTCW on the ballot:
-jsq, John S. Quarterman, Suwannee RIVERKEEPER®