Florida Phoenix
There’s a lot of talk these days about teachers “indoctrinating” children. Way back in 19-mumblety-mumble, when I was a kid in school, my teachers indoctrinated me about voting. My main job as a citizen, they told me repeatedly, was to cast a ballot.
I have followed my indoctrination as faithfully as Raymond Shaw from “The Manchurian Candidate” playing solitaire. Ever since I became eligible at age 18, I have voted in all but one election. I missed that one because I was a trifle busy with a hurricane.
But Florida officials these days don’t seem to be big fans of us voters.
The Legislature has repeatedly subverted the voters’ wishes on constitutional amendments on class size, environmental land-buying, and medical marijuana. Lawmakers even tossed out the results of three Key West referendums limiting cruise ships. Meanwhile, Gov. Ron “I’m the Presidential Candidate Who Hasn’t Been Criminally Charged Yet” DeSantis suspended a prosecutor who’d been elected twice and hadn’t violated any law.
And now one Florida city is actively fighting its own voters.
Last fall, the electorate in Titusville approved making a right to clean water a part of their city’s charter. “Approved” is too mild a term for how much they liked it. The measure passed by a margin of 82.57% to 17.43%, meaning it was nearly as popular as free ice cream and cake would be in a kindergarten.
But that’s no surprise. I mean, who doesn’t love clean water?
Well, the Titusville City Council, apparently.
The Council has steadfastly refused to certify the election results, to the point where you wonder: Where’s Certifier-in-Chief Mike Pence when you need him? Maybe instead of running for President, he could roam the country like Kwai Chang Caine in “Kung Fu,” certifying elections wherever he goes.
Instead of doing what their voters wanted, the city has been fighting in court to stop the measure from ever taking effect. Even after a judge ruled for the citizens, the city chose to keep fighting.
“I’ve lived here 40 years and I’ve seen how this place has been degraded,” said Michael Myjak, president of Speak Up Titusville, which put the clean-water measure on the ballot. “I never dreamed that by doing my civic duty, I’d be sued for it.”
Tanking the ecology
Titusville sits on Florida’s east coast on the Indian River Lagoon. That 156-mile long waterway was once known as “North America’s most diverse estuary,” because it held more than 2,100 species of plants and 2,200 kinds of animals.
Not anymore.
“I remember when we had clams and fish and sea turtles out there,” Myjak told me. “The ecology around here has tanked.”
The trouble started in 2011 with a pollution-fueled “super-bloom” of toxic algae that, as one 2014 Florida Today story put it, succeeded in “blocking sunlight from seagrass and leaving death in its path.” It wiped out 60% of Indian River Lagoon’s seagrass, which has since declined even further.
The loss of seagrass has led to dire consequences. The past two years has seen the death of 2,000 manatees, many of them starving to death in the lagoon because they had no seagrass to eat.
Rather than working to clean up the flow of pollution into the lagoon, it’s as if Titusville has been working to make it worse.
In 2018, the city spilled 870,000 gallons of sewage into the estuary. That was followed in 2020 by one that spilled 7.2 million gallons of sewage, and another in 2021 that added a 3,000-gallon spill.
The fouling of the waters has human consequences. A boy who came into contact with the 2020 spill while paddleboarding became paralyzed by a bacterial infection. Earlier this year, his mother filed suit against the city.
“In recent years Titusville has run afoul of the Department of Environmental Protection (DEP) dozens of times, racking up expensive fees. Its aging sewer infrastructure has led to costly spills that harm the health of the already fraught Indian River Lagoon,” Florida Today reported earlier this month.
The city’s repeated pollution-gone-wild events led to the creation of the Speak Up Titusville group, its vice president, Thomas Perez, told me. They started collecting signatures on a petition to put the right to clean water on the ballot, hoping to prod city officials to clean up their act.
“The city has been very negligent about doing anything,” Perez said. “We have a lagoon here that’s just dying.”
Myjak contended that’s because the city has been run by a good old boy network intent on approving as much development as possible, regardless of whether the city’s creaking infrastructure can handle it. That’s why the voters had to take charge.
The referendum language they came up with specifies that residents of Titusville “possess the right to clean water, which shall include the right to waters of Titusville which flow, exist in their natural form, are free of pollution, and which maintain a healthy ecosystem.”
The measure also grants residents the ability to sue government or corporate entities that pollute area waters as a way of holding the polluters accountable.
The Speak Up Titusville volunteers were excited to see the measure pass by such an overwhelming margin. They have been flummoxed to find city officials doing everything in their power to block the implementation.
“I can’t believe these people have the audacity to think they can get away with this,” Perez told me.
So far, he said, the effort has cost the group $20,000. Just imagine how much tax money the city is spending to battle its own taxpayers.
Richard Grosso, one of the attorneys representing the Speak Up Titusville folks, told me he has no idea why the city keeps fighting this wildly popular measure.
“We hope the city will drop its legal challenge and join the overwhelming majority of city voters who want the city to take a lead role in protecting its waters from pollution,” he told me.
So far, it has not.
Reasons for resistance
A lot of Florida cities have a history that’s as shady as that Indian River Lagoon algae super-bloom. The founder of Safety Harbor, for instance, claimed to be a French count but was more of a no-account. Titusville definitely falls into that category.
The town was nearly named “Riceville,” except a soldier of fortune called Col. Henry Titus won a game of dominoes against Capt. Clark Rice. I am not going to suggest that the town’s namesake cheated but will merely note that a historical profile for the town’s centennial said of him, “Much has been written about Col. Titus and many of the tales are uncomplimentary.”
Anyway, to find out why a city would sue its own citizens, I put in a call to Titusville’s Mayor, a former high school football coach named Dan Diesel. As far as I can tell, he is no relation to the villainous Nurse Diesel from the Mel Brooks film “High Anxiety.”
Alas, I didn’t get to talk to him. When it comes to answering questions, the ex-coach took a knee. The mayor’s assistant, Virginia Blaylock, explained, “We do not comment on legal matters.”
Then an attorney for the city called me and said he could answer my questions — as long as I didn’t quote him on any of it. Guess he couldn’t comment on legal matters either.
Instead, I had to turn to the city’s legal filings to seek out its reasons for resistance.
In its lawsuit, the city argued that the referendum measure was vaguely worded: “The ballot language submitted to voters is nothing more than a platitude.” And it contended that “this measure is preempted by general state law and is therefore unconstitutional and is a nullity.”
My favorite part of the city’s argument was that only the DEP — you know, the agency that has repeatedly wagged a finger at the city for its sewage spills — is allowed to regulate water pollution in Florida.
When those arguments went to Brevard County Circuit Judge Charles Holcomb, the judge said, in effect, “Noooope.”
Stop, in the name of law!
In his May 22 ruling, Judge Holcomb said that the ordinance language was crystal clear — the way the waterways should be. He waved away those arguments the way you’d wave away a cloud of annoying flies.
As for deferring to the DEP, the judge said that’s not what the law says. Citing a 1980 decision, he said the Florida Supreme Court “confirmed that the citizens of Florida have been given the capacity to protect the right to a clean environment.”
That means any citizen, not just in Titusville but anywhere in the state, can go to court to combat pollution.
The city’s only job, he wrote, is to certify the results of the referendum, period. If the voters approve a change, then that’s their right, “without the approval of and even in the face of vehement objection from the governing body.”
Instead of saying, “Yes, judge, we’ll get right on that,” the City Council filed a motion last week asking for a rehearing of the case.
Why? Because “the Speak Up Titusville Charter Amendment would permit new causes of action against parties who discharge pollutants into water even if such discharges are within state and federal clean water guidelines.”
Gee, I wonder who that “parties” word could be referring to?
So far, the judge has not ruled on the rehearing request, probably because he hasn’t quite finished rolling his eyes. Having read his initial decision, I don’t think he’s going to be suddenly plagued with doubt and overturn himself.
That means we’ll probably see Titusville take this case up to an appeals court. Maybe they’ll appeal it all the way to the Florida Supreme Court, asking the Supremes to say to Speak Up Titusville, “Stop! In the name of law.”
And in the meantime, while the city spends thousands on attorney bills, the water stays dirty and the voters get more and more frustrated.
The right to clean water
The fight over Titusville’s water reminded me of a similar battle in Orange County.
Three years ago, nearly nine out of 10 voters in Orange County approved a change to their county’s charter that added a section declaring that humans have a right to clean water, and that natural features like rivers and lakes have the same legal rights as people.
“This amendment gives the power to every resident of Orange County to enforce it — it’s not up to the state or the county to do it,” one of the authors of the charter change told me back then.
Before the voters even passed the measure, though, Rep. Blaise Ingoglia, R-Gasbag, a homebuilder from Spring Hill, had slipped some language into a bill dealing with “clean” waterways that would kill it. The bill offered little help to cleaning up the environment before his addition, but afterward it was downright hostile.
Ingoglia’s language would ban local governments from granting any legal rights to a plant, an animal, a body of water, or any other part of the natural environment.
Ingoglia, recently elected to a seat in the Senate, is one of those smirking legislative pranksters who finds it amusing to waste time with bills such as “The Ultimate Cancel Act” that would cancel the Democratic Party. But he was dead serious about protecting his precious livelihood from tree-hugging voters.
He explained to his fellow lawmakers that shutting down the rights-of-nature measures was necessary because “we are stopping local cities and counties from doing something that will hurt business, the taxpayers, the tax base.”
He made no mention of how rampant water pollution hurts Florida business, the taxpayers and the tax base. No one else brought it up either as they passed the bill and the Governor signed it.
It had the desired effect: Last year a judge struck down the Orange County measure, ruling that the Legislature had preempted what the voters wanted.
But the fact that people in different counties are pursuing similar measures to protect their waterways from pollution should tell you a lot about what people think of the DEP’s performance of its duties. Just last year, Florida was named the state with the most polluted lakes in the nation — a dubious distinction indeed.
In the meantime, another group has been pursuing a different strategy. Like Speak Up Titusville, they’re pushing a measure that doesn’t call for giving rights to nature, but instead calls for granting them to us humans.
Florida Right to Clean Water, a group headquartered in Fort Myers, has been rounding up petition signatures for a spot on the 2024 Florida ballot. They’re backing a measure that says all of us — the 22 million humans squeezed into the Sunshine State — have a right to clean waterways. If something threatens to pollute our waters, we can sue.
They need 900,000 verified signatures by November to get on next year’s ballot. So far, petition drive chairman Joe Bonasia told me this week, they have collected 58,000, “the vast majority of which have been gathered in the past few months.”
If you ask me, that’s something worth voting for, and I’m not just saying that as a civic-minded, fully indoctrinated Florida boy.
And if — excuse me, when — some developer-loving, nature-hating elected official like the Titusville council or Sen. Ingoglia tries to block these clean water efforts, maybe their office is where we should deposit the carcasses of all the dead manatees that keep turning up in our once-vibrant Indian River Lagoon.
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Craig Pittman reporting. Florida Phoenix is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Florida Phoenix maintains editorial independence. Contact Editor Diane Rado for questions: [email protected]. Follow Florida Phoenix on Facebook and Twitter.
