EAST NAPLES — East Naples landowner Jose Baltazar says the penalty doesn’t fit the environmental crime and he’s taking on Florida to prove it.
After the Florida Department of Environmental Protection cited him and landscaper Sergio Mejia in 2008 for a string of wetlands-related violations on his 15 acres off Auto Ranch Road, Baltazar paid a $6,000 fine. However, he has refused what he says would be a $20,000 job of removing non-native trees and plants from his land to make up for breaking the rules.
Now, the old enforcement case is a new lawsuit, with the DEP asking a judge to force Baltazar to comply and to fine him up to $10,000 a day until he does.
Baltazar, whom public records list with a Massachusetts address, wouldn’t comment on his regulatory odyssey and Mejia couldn’t be located. But Baltazar’s lawyer, Jim Fox, called the case “a nightmare scenario for anyone in a rural area.”
“I think any cool-headed person is going to say, ‘What is going on? How can this be?”
Fox has asked a judge to dismiss the DEP lawsuit on the grounds that it was filed too late to meet a four-year deadline.
If that fails, Fox said he will argue that the tree-removal penalty violates state and federal laws against excessive or inappropriate remedies.
Too few people stand up to overzealous government agencies, said Alan DeSerio, managing attorney for the Florida office of the Pacific Legal Foundation, a donor-supported law firm that represents conservative legal causes.
“A lot of people are very intimidated when they receive these official-looking letters in the mail and they don’t really know what to do or how to respond,” he said.
Pacific Legal Foundation represents an Orange County family that has fought the St. John’s River Water Management District for 19 years over mitigation requirements that came with a permit to develop commercial property.
The Koontz family says a requirement to spend between $150,000 and $200,000 to build roads and dig ditches on district land five miles from the commercial site amounts to a taking of their property. The U.S. Supreme Court heard the case in January, and a ruling could come this summer, DeSerio said.
That case hinges on different legal theories than the Baltazar case, but DeSerio said they both feature government overreach.
The DEP wants Baltazar to remove exotic vegetation and any new growth — such as melaleuca, Australian pine, Brazilian pepper — twice a year and keep his property exotic-free for three years.
Non-native trees are considered an environmental insult because they can crowd out native flora and fauna and alter the ecosystem.
The requirement is meant to make up for Baltazar and Mejia filling in about a half-acre of wetlands with mulched yard waste taken from Baltazar’s property, according to the DEP order.
The DEP also cited the two for running an unpermitted solid waste facility and disposing solid waste — in the form of unmulched tree trunks, Fox says — within 50 feet of a body of water.
Baltazar has removed the mulch from the wetlands, according to a follow-up DEP inspection report, but that doesn’t resolve Baltazar’s tree-removal requirement.
“It’s simply mitigation to offset the wetlands impacts,” DEP spokesman Patrick Gillespie wrote in an email.
Collier County Audubon Society policy advocate Brad Cornell said he defers to the DEP about whether the requirement is fitting and that Baltazar shouldn’t be let off the hook.
“It becomes a matter of principle at this point,” he said. “It should give anybody pause before they destroy wetlands.”