CLEANING THE INDIAN RIVER WITH COMMON LAW

346JOURNAL OF LAND USE[Vol. 34:2types of nuisances: public and private.37 A private nuisance is #anontrespassory invasion of another's interest in the private use andenjoyment of land."38 Alternatively, a public nuisance is somethingthat either causes any annoyance to the community or harms publichealth.39 This paper focuses on the doctrine of public nuisance,because the Indian River Lagoon is a public waterway.40Historically, the common law doctrine of nuisance has focused onthe relationships between property owners.41 The old Englishcommon law applied a harm-based test which considered any actthat caused harm to the productive usefulness of the land anuisance.42 In America the doctrine evolved towards areasonableness standard. For something to be deemed a publicnuisance, not only does it have to be considered an annoyance orhealth risk to the community, but there are additional elements thatmust be met. In modern times, a public nuisance is an#unreasonable interference with a right common to the generalpublic" that either significantly interferes with public health, safety,peace, or convenience; or an interference that is condemned bystatute or other regulation; or an interference that is continuous or#has produced a permanent or long-lasting effect," which the actorknows or should have known would have a significant effect uponthe public.43The Florida Supreme Court has defined a public nuisance as an#activity that violates public rights; undermines public order,decency, or morals; or causes harm or inconvenience to the public ingeneral."44 Public nuisances typically involve issues of public healthand safety, and because of this, are considered offenses against thestate.45 Typically, suits enjoining public nuisances are brought bypublic authorities such as the state, counties, cities, or towns.4637. See id.38. See id. § 821D.39. 38 FLA. JUR. 2D Nuisances § 5 (2018).40. See Robin K. Craig, A Comparative Guide to the Eastern Public Trust Doctrines:Classifications of States, Property Rights, and State Summaries, 16 PENN ST. ENVTL. L. REV.1, 4 (2007) (discussing eastern waterbeds and banks subject to state ownership and publicuse rights).41. J.B. Ruhl, The "Background Principles" of Natural Capital and EcosystemServicesûDid Lucas Open Pandora's Box? 22 J. LAND USE & ENTVL. LAW 525, 531 (2007).42. Id.43. RESTATEMENT (SECOND) OF TORTS § 821B (AM. LAW. INST. 1979).44. 3-93 FLA. TORTS § 93.05 (2018) (citing Orlando Sports Stadium, Inc. v. State ex rel.Powell, 262 So. 2d 881 (Fla. 1972).45. Id. § 93.05.46. James D. Lawlor, Annotation, Right to Maintain Action to Enjoin Public Nuisanceas Affected by Existence of Pollution Control Agency, 60 A.L.R. 3d 665 at *2b.

Spring, 2019]INDIAN RIVER LAGOON347B. Statutory LawThere has been a shift in nuisance law from common law tostatutory law. Many states have their own statute defining what anuisance is and what the penalties are for creating one. Florida’sstatute is rather broad. It defines public nuisance as anything thattends to #annoy the community, injure the health of the citizens ingeneral, or corrupt the public morals."47 Florida classifies a publicnuisance as a crime instead of a tort; violating the public nuisancestatute is a second-degree misdemeanor.48Florida law includes a subsection of nuisances called sanitarynuisances.49 A sanitary nuisance is any act or the existence ofanything that may threaten the health of individuals or that maydirectly or indirectly cause disease.50 The Department of Health isauthorized to investigate and take action against any condition thatconstitutes a sanitary nuisance.51 Florida law also specifies thatnuisances injurious to the public health, fall under the purview ofsanitary nuisance.52 According to the statute, septic tanks that areimproperly built or maintained by #any individual, municipalorganization, or corporation, governmental or private," are primafacie evidence of a nuisance that is injurious to public health.53Under Florida law, the Attorney General, the state, city, countyattorney, or any citizen can sue in the name of the State of Floridato abate or enjoin a public nuisance.54 This is only possible for publicnuisances that are defined as, in pertinent part, taking an action#which tends to annoy the community or injure the health of thecommunity."55 When suing in the name of the state, the plaintiff isnot required to show they suffered a special injury that differs indegree or kind from what the general public suffers.56 However, sucha showing is required of those who make public nuisance claims intheir individual capacity.57Pollution can arguably annoy the community or be injurious topublic health. If septic tank sewage fits under the definition of47.48.49.50.51.52.53.54.55.56.57.FLA. STAT. § 823.01 (2018).Id.FLA. STAT. § 386.01 (2018).Id.FLA. STAT. § 386.02 (2018).FLA. STAT. § 386.041 (2018).Id. § 386.041(1)(b) (2018).FLA. STAT. § 60.05(1) (2018).FLA. STAT. § 823.05(1) (2018).3 FLA. TORTS § 93.05(3) (2018).Id. § 93.05(4).

348JOURNAL OF LAND USE[Vol. 34:2pollution, it will easier for a court to find that septic tank sewageseeping into the Indian River Lagoon is a public nuisance. The stateof Florida defines pollution as:the presence in the outdoor atmosphere or waters of the stateof any substances, contaminants, noise, or manmade orhuman-induced impairment of air or waters or alteration ofthe chemical, physical, biological, or radiological integrity ofair or water in quantities or at levels which are or may bepotentially harmful or injurious to human health or welfare,animal or plant life, or property or which unreasonablyinterfere with the enjoyment of life or property, includingoutdoor recreation unless authorized by applicable law.58Florida has also made a legislative declaration on pollutioncontrol and the environment. The first part of which states #[t]hepollution of the air and waters of this state constitutes a menace topublic health and welfare; creates public nuisances; is harmful towildlife and fish and other aquatic life; and impairs domestic,agricultural, industrial, recreational, and other beneficial uses of airand water."59 The statute further specifies that water pollutioncontrol programs are to be supported to in order to provide waterpollution #prevention, abatement, and control" in order to maintainsuitable levels of water quality.60 The purpose for the declarationwas to protect the #health, peace, safety, and general welfare" of thecitizens of Florida.61A public nuisance claim is not the only way to rid waterways ofpollution. In 1972 Congress passed the Clean Water Act.62 The twomain goals of the Clean Water Act are to eliminate the discharge ofpollutants into navigable waters and to attain a level of waterquality sufficient for the protection and promotion of fish, shellfish,wildlife, and recreation in and on the water.63 Congress establishedthree mechanisms to obtain these goals: #effluent limitations, waterquality standards, and a national enforcement permit program." 64While the Clean Water Act has an extensive reach, this does notnecessarily mean it provides the best approach to controlling septictank pollution. Public nuisance actions can offer plaintiffs a remedy58. FLA. STAT. § 403.031(7) (2018).59. FLA. STAT. § 403.021(1) (2018).60. FLA. STAT. § 403.021(4) (2018).61. FLA. STAT. § 403.021(5) (2018).62. Maria V. Maurrasse, Oklahoma v. EPA: Does the Clean Water Act Provide anEffective Remedy to Downstream States or Is There Still Room Left for Federal Common Law?,45 U. MIAMI L. REV. 1137, 1148 (1991).63. Id. at 1149.64. Id.

Spring, 2019]INDIAN RIVER LAGOON349that legislation cannot court-ordered injunctions.65 Theseinjunctions force polluters to shut down, thereby immediatelyceasing the pollution. Another benefit of using public nuisance isthat it tends to focus more on the merits of the case than procedureor violations of standards.66 Additionally, national politics can makethe enforcement of federal statutes unpredictable. Administrationsthat do not view clean waterways as a priority may not enforcefederal statutes governing environmental pollution as strictly asadministrations that value clean waterways. For this reason, publicnuisance law can be refuge during times of political uncertainty.C. Case Law1. PalazzoloBecause statutory law does not specifically list septic tankpollution as a public nuisance, having case law finding that sewagecoming from septic tanks would constitute a public nuisance takeson added importance. The name #Palazzolo" has becomesynonymous with regulatory takings law, along with itspredecessors: Lucas, Penn Central, and Pennsylvania Coal.67 InPalazzolo v. State, the Supreme Court found that a claimant doesnot waive his right to challenge a regulation when title acquisitionoccurs after the effective date of the regulation.68 One claim that theSupreme Court did not address in its opinion which gets moreattention in both the prior and subsequent history of the case ispublic nuisance.The plaintiff, Palazzolo, was a shareholder in a company thatowned undeveloped land, portions of which were salt marshes.69 Thecompany made many attempts to get permitting from state agenciesto develop the land, but was continually denied.70 In 1971, the RhodeIsland legislature created the Coastal Resource ManagementCouncil (CRMC), which was tasked with protecting lands along thestate’s coast.71 The CRMC designated salt marshes as protectedcoastal wetlands.72 A few years later, Palazzolo’s company had its65. Karol Boudreaux & Bruce Yandle, Public Bads and Public Nuisance: Common LawRemedies for Environmental Decline, 14 FORDHAM ENVTL. L. REV. 55, 65 (2002).66. Denise E. Antolini, Modernizing Public Nuisance: Solving the Paradox of the SpecialInjury Rule, 28 ECOLOGY L.Q. 755, 774 (2001).67. See Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992); Penn Cent. Transp. Co. v.New York City, 438 U.S. 104 (1978); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).68. Palazzolo v. Rhode Island, 533 U.S. 606, 629-30 (2001).69. David M. Bae, Palazzolo's One-Two Punch to the Wetlands Takings Doctrine: AreMassachusetts Wetlands at Risk?, 37 NEW ENG. L. REV. 781, 794 (2003).70. Id.71. Id. at 795.72. Id.

350JOURNAL OF LAND USE[Vol. 34:2charter revoked and title to all of the property passed to him.73Seven years later, Palazzolo personally applied to the CRMC for apermit to fill eleven acres of the salt marshes on his property inorder to build a private beach club.74 The CRMC denied therequest,75 and litigation ensued.Palazzolo brought suit for inverse condemnation in the RhodeIsland Superior Court, alleging that the CRMC violated his Fifthand Fourteenth Amendment rights and that denying his applicationconstituted a regulatory taking.76 The Superior Court of RhodeIsland found that the Palazzolo’s proposed development wouldconstitute a public nuisance and that Palazzolo had no investmentbacked expectations.77 Therefore, the court barred him fromcompensation.78 Palazzolo appealed to the Rhode Island SupremeCourt, which decided that the issue of regulatory taking was not ripefor review.79 In 2000, the United States Supreme Court grantedcertiorari and reversed Rhode Island Supreme Court’s finding thatthe case was unripe for review and that Palazzolo's notice of thewetlands restrictions prior to his acquisition of the property barredhis regulatory takings claim, but affirmed that there was not a totaldeprivation of all economically beneficial use on the property.80 TheSupreme Court then remanded the case back down to the SuperiorCourt of Rhode Island.81On remand, the Superior Court of Rhode Island took intoaccount that the Winnapaug Pond is a fragile ecosystem and thatthe surrounding salt marshes are an important filtering system.82The salt marshes have the ability to filter runoff which typicallycontains pollutants such a nitrogen from adjacent properties.83Palazzolo’s proposed subdivision included individual sewagedisposal systems, septic tanks, which would significantly increasethe levels of nitrogen in the pond.84 The proposed plan also includedfilling in part of the salt marshes.85 This would have resulted in atwelve percent reduction in salt marsh and an overall reduction ofpollutant filtering which would have increased the levels of nitrogen73. Id.74. Id.75. Id.76. Id. at 795%96.77. Palazzolo v. State, No. WM 88-0297, 2005 R.I. Super. LEXIS 108, at *4 (R.I. Super.Ct. July 5, 2005).78. Id.79. Bae, supra note 69, at 796 (discussing the procedural history of the case).80. Id. at 797.81. Id.82. Palazzolo, 2005 R.I. Super. LEXIS 108, at *12.83. Id.84. Id.85. Id. at *13.

Spring, 2019]INDIAN RIVER LAGOON351in the pond.86 The court determined that the deterioration of theecosystem in and around the Winnapaug Pond due to the loss of thefiltering power of the salt marsh constituted a predictable publicnuisance.87 The court’s finding that the installation of these septictanks would eventually lead to a public nuisance is huge for areasthat are already facing the consequences of septic tank pollution. Ifa court can declare foreseeable events a public nuisance, then acourt should also be able to find that those same events when theyare already occurring are a public nuisance.2. Orlando Sports StadiumEven though Florida has a statute defining what a publicnuisance is, its judiciary has addressed the question. In 1972, theSupreme Court of Florida heard an interlocutory appeal fromOrange County alleging that the state’s public nuisance statute wasunconstitutionally vague.88 The state sought to abate or enjoin theOrlando Sports Stadium from maintaining a public nuisance.89 Thestate alleged that the defendants allowed the unlawful use of drugsat their establishment.90 According to the state, this activity was apublic nuisance under sections 60.05, 823.05, and 823.10 of FloridaStatutes.91 The defendants claimed that these statutes violated theDue Process Clause of the Constitution because they were not#sufficiently explicit" enough in their description of forbiddenconduct.92 Because of the insufficient descriptions, defendantsargued, one could not be reasonably certain that their activitieswere violating the statute.93The court disagreed with the defendants, finding that thelanguage in the statutes was #neither vague nor ambiguous andsufficiently puts [defendant] on notice of the nuisance use of theirpremises."94 The court went on to say that the legislature has #broaddiscretion" when it comes to designating activities as publicnuisances.95 The court recognized that it would be impossible tomake a comprehensive list of nuisances; it would be like trying tomake a list of all the ways in which you can annoy someone.9686.87.88.89.90.91.92.93.94.95.96.Id.Id. at *21.Orlando Sports Stadium, Inc. v. State, 262 So. 2d 881, 882-83 (1972).Id. at 882.Id. at 882%83.See id. at 883%84.Id. at 884.Id.Id.Id.Id.

352JOURNAL OF LAND USE[Vol. 34:2Because of the fact-specific nature of nuisances, they must bejudicially determined on a case-by-case basis.97 The court statedthat preventing and abating nuisances is part of the state’s policepowers.98 In exercising its police powers, the state has the right toenact laws for the protection of lives, health, morals, comfort, andthe general welfare.99 Because of this holding that publicnuisances in Florida are determined on a cases-by-case basis plaintiffs cannot rely solely on statutory law to win their case, butmust also have case law to back up their claim.3. National ContainerBecause the sewage from septic tanks could be pollution andFlorida’s statute broadly defines what a public nuisance is, it isessential to have case law finding that water pollution is a publicnuisance. In 1939, the Florida Supreme Court heard a case aboutwhether the National Container Company should be enjoined frombuilding and operating a wood pulp mill.100 Plaintiffs filed acomplaint in the name of the state against the National ContainerCorporation and the city of Jacksonville.101 They alleged that thewater and refuse that would have been discharged from the millwould be harmful to marine life in the St. Johns River, creating apublic nuisance.102 The defendants maintained that the privatecitizens had no right to bring suit in the name of the state, arguingthey could not name the state as a plaintiff because it was merely a#threatened nuisance."103 In interpreting the statutes, the SupremeCourt of Florida held that, so long as the Attorney General is willing,a citizen can act in the name of the state.104 The court also broadlyinterpreted the statute to apply to threatened nuisances, but statedthat if the statute were strictly applied the outcome would remainthe same.105 The defendants would still be enjoined from erecting awood pulp mill because the statute prohibits any building that willinjure the health of the community and become a nuisance.106

Brevard County to northern Palm Beach County.9 This paper will focus solely on the Indian River Lagoon. The name Indian River is a misnomer. According to Harbor Branch Oceanographic Institute, the Indian River Lagoon is not a river, but an estuary.10 An estuary is a semiconfined body of water