The state, however, defends the penalties it hands out, noting punishments often go well beyond fines.
“We take illegal mangrove cutting very seriously,” said Tim Rach, an environmental administrator in the state’s Office of Submerged Lands and Environmental Resource Permitting. “Mangroves are a dwindling resource. We do what we can.”
The question is whether the state is doing enough to enforce the Mangrove Trimming and Preservation Act of 1996.
From Jan. 1, 1997, to April 4, the Department of Environmental Protection documented 304 cases of illegal mangrove cutting; fines have been assessed in 208 of those cases.
During that period, one case of illegal mangrove trimming was brought in Lee County; a second was brought after April.
Here's What's In Store For You...
- $2,488.10: Average fine handed out by the state for illegal mangrove cutting.
- 208: Number of fines assessed in the 304 documented cases of illegal mangrove cutting from Jan. 1, 1997, to April 4.
Are Fines too small?
Anyone violating the state’s Mangrove Trimming and Preservation Act can be assessed a civil penalty of up to $10,000 for each violation or a criminal penalty of up to $50,000 and five years in prison for each violation.
Every day during which a violation occurs is considered a separate offense.
But of the 208 cases in which fines were assessed, only nine (4.3 percent) were $10,000 or more; 94 (45 percent) were $1,000 or less — the two Lee County cases are still under investigation.
In all, the state handed out $517,525.80 in fines, for an average fine of $2,488.10.
“Some of the low fines might be for very minor infractions,” Rach said. “Maybe they cut off a couple of extra branches when they were installing a dock. A lot of this is ignorance. If we feel a homeowner didn’t know better, maybe there will be a low penalty.”
Mangrove expert Terry Tattar, professor emeritus of microbiology at the University of Massachusetts, said fines for illegal mangrove cutting are too low to be a deterrent.
“We need to re-evaluate the whole process,” he said. “Obviously, we need tougher laws. The fines are so minimal that they really don’t send a message. The worst-case for the offender is, ‘OK, you get caught, and you get a fine and find out it’s not much more than a New York City parking ticket.'”
In fact, 19 of the fines assessed since April 1997 were $250 or less — $250 is the maximum fine the state allows for illegally parking in a handicapped space.
“The mangrove statute specifies what penalties we can exact,” said Aliki Moncrief, Deputy General Counsel for the DEP’s Civil Enforcement Section. “Those amounts are set by the Legislature. We at the department have to operate within the confines of the statutes.”
Other kinds of mangrove penalties are restoration (planting mangroves at the site where they were destroyed) and mitigation (planting mangroves at a suitable location off-site).
If restoration or mitigation is not practical, the violator can donate money to be used for the restoration of mangrove wetlands within a project approved by DEP or a local government.
Finally, a violator can buy credits in a mitigation bank (degraded wetlands that are restored by someone else).
Tattar doesn’t like the idea of off-site mitigation or mitigation banks.
“When my ox is gored, I want a new ox,” he said. “If mangroves are cut in my neighborhood, I want to see them restored. If the environment is damaged, that environment should be restored as much as possible.”
Making a civil mangrove-violation case can be a slow process. Although many cases in the last decade have been resolved in a few weeks or months, others have taken as long as seven years.
Mangrove violation cases are often reported to a local DEP office by the violator’s neighbors.
“This is a huge state, and we have very few people in the field,” DEP spokesman Eli Fleishauer said. “We need the public’s input to do our job. That said, sometimes people report their neighbors because they have a vendetta against them or because they don’t know the difference between mangroves and Brazilian pepper.”
When the DEP receives a complaint about mangrove violations, a compliance enforcement officer goes to the site to investigate.
“If we determine, yes, they are doing something contrary to the statute, we determine why they’re doing it, see if it’s ignorance or specific intent,” Rach said. “Then we go back and draft a warning letter saying there’s a possible violation and asking them to contact us. Then we set up a meeting to discuss what occurred and why. We also discuss possible penalties and the type of restoration that needs to be done.”
From there, the DEP and the violator negotiate until they reach an agreement — the DEP also can go after the professional tree trimmer who did the work.
Rach offered other reasons why a mangrove case can take a long time to resolve.
“Is the violator cooperative? Cases done quickly have cooperative violators. If not, that can drag out the case,” he said. “Maybe the department doesn’t have sufficient proof as to what happened or who did it.
“Also, there’s staffing, turnover. Somebody working on a case will leave, and when we hire somebody, that person has to get up to speed. In the meantime, we’ve logged new cases.”
Representative Mangrove Violations and Fines
Case 10769: DEP vs. Del and Margaret Wilson • Location: 756 N. Manasota Key Road, Englewood • Case opened: May 7, 2001 • Penalty assessed: June 17, 2001, • Impact: 540 square feet of 10-foot red mangroves cut to 6 to 7 feet • Mortality: None • Violation: Did not have permit to do the work • Mitigation: None • Fine: $100
Case 10537: DEP vs. Edward G. and Elsa B. Martinez • Location: 775 N. Manasota Key Road, Englewood • Case opened: March 30, 2001 • Penalty assessed: Aug. 10, 2001 • Impact: 1,065 square feet of 10-foot red mangroves trimmed to 6 to 8 feet • Mortality: Five red mangroves • Violation: No permit • Mitigation: Plant three 3-gallon mangroves • Fine: $1,000
Case 20495: DEP vs. St. Lucie County Fire District • Location: St. Lucie County Fire District #8, 7583 S. Ocean Drive, Jensen Beach • Case opened: April 12, 2002 • Penalty assessed: Jan. 27, 2003 • Impact: Between 3,000 and 4,999-square feet (about 58 mangroves); 16-foot mangroves were cut to ground level (removed). • Mortality: Red, black and white mangroves died • Violation: No permit • Mitigation: Planting mangroves on site and off site • Fine: $10,000
Case 10983: DEP vs. Anthony Squadrito • Location: Florida Inland Navigation District property behind the Squadrito Property at 330 River Edge Road, Jupiter • Case opened: June 14, 2001 • Penalty assessed: July 22, 2002 • Impact: About 15,000 square feet of 16- to 20-foot red, black and white mangroves were cut to ground level • Mortality: All mangroves were killed • Violation: No permit • Mitigation: Property owner had to plant 317 red, white and black mangroves • Fine: $11,500
Case 972000: DEP vs. Yacht Club at Highland Beach Partnership • Location: 3600 South Ocean Blvd., Highland Beach • Case opened: Nov. 13, 1997 • Penalty assessed: Feb. 4, 1998 • Impact: 100 mangroves, mostly white mangroves, cut in an area 500 to 1,500 square feet; some were cut to just below 6 feet, others to ground level • Mortality: Mortality was not identified on report, but because most of the trees where white mangroves, high mortality is unlikely. • Violation: No permit • Mitigation: Planting of 135 mangroves and monitoring for 3 years. Also, bring 700 square foot restoration area under conservation easement. • Fine: $23,500
Case 21033: DEP vs. OR Golf Partners • Location: Three lots on Coral Lane and five lots on Cinnamon Bark Lane, Ocean Reef Club, Key Largo • Case opened: July 17, 2002 • Penalty assessed: April 4, 2003 • Impact: 3.04 acres (132,422.4 square feet) of red, black and white mangroves were clear cut, including 2.27 acres (98,881 square feet) in John Pennekamp State Park. Before cutting, the trees were 26 to 28 feet tall, with some taller than 50 feet, and the largest estimated at 64 feet. • Mortality: All mangroves died. • Violation: The violators had a general permit that allowed trimming (not removal) of mangroves only on property owned by OR Golf Partners, but the cutting went beyond the permit. The case also involved fill violations (filling without a permit). • Mitigation: OR Golf Partners had to donate $225,000 to the Florida Keys Environmental Trust Fund for restoration of mangrove wetlands at a site managed by the state park. OR Golf also had to donate a 26-acre parcel containing wetlands and native hardwood hammocks to the park. • Fine: $50,000
Case 71151: DEP vs. Daniel S. Loren and Gulf to Bay Tree & Landscape Service Inc. • Location: 3381 Diamond Key Court, Punta Gorda • Case opened: June 22, 2007 • Penalty assessed: Case still open. • Impact: 47,480 square feet of red, black and white mangroves up to 25 feet tall cut; 6,778 square feet were cut to the ground; the rest were cut to 6 feet. • Mortality: 2,848 trees of all three species • Violation: The violators had a general permit, but under state law, mangroves may not be cut shorter than 6 feet and may not be removed, defoliated or destroyed. In addition, violators left trimmed debris on 38,892 square feet of the mangrove area and 330 square feet of shell path. • Mitigation: Case still open. • Fine: Case still open.
Criminal and civil cases
So, why not just charge the violator with a criminal offense and take him to court?
Part of it, Moncrief said, is that, to make a criminal case, the state must prove the defendant willfully committed the violation.
“In the criminal world, we have to deal with things like the element of intent,” Moncrief said. “That’s not the case in the civil world. When we pursue criminal action, the
DEP doesn’t handle it. It goes to the state attorney’s office.
“In general, if we think we can’t really prove willful intent or the state attorney’s office isn’t interested in pursuing an environmental crime, we take it. Sometimes we get higher civil penalties in civil cases.”
More than money. The largest fine in the past 10 years was $50,000, but the fine was the smallest part of the penalty.
In that case, OR Golf Partners of Ocean Reef on Key Largo clear-cut 3.04 acres of red, black, and white mangroves, including 2.27 acres in John Pennekamp State Park.
Before the violation, most of the trees were 26 to 28 feet tall, with some taller than 50 feet and the tallest estimated at 64 feet.
In addition to paying the fine, OR Golf had to donate 26 acres of wetlands and native hardwood hammocks to Pennekamp and $250,000 to the Florida Keys Environmental Trust Fund for restoration of mangrove wetlands at a site managed by the park.
Sometimes civil penalties are designed to match the offense, as in the case of Anthony Squadrito of Jupiter.
In 2002, Squadrito illegally cut to ground level about 15,000 square feet of 16- to 20-foot red, black, and white mangroves on Florida Inland Navigation District property behind his home.
Squadrito was fined $11,500 and had to plant 317 mangroves on the site but the state had something else in mind.
“This was an example of trimming for a view,” Rach said. “He had a very deep wetland parcel to the water, and suddenly there was this football-field-sized view to the water where everybody else had a forest.
“He would benefit from the view until the mangroves grew, so he had to plant upland vegetation to block the view he so desperately wanted until the mangroves had a chance to recover.
It was a way to discourage the benefit of the violation, hoping others don’t do the same thing.”
Although Tattar believes fines in mangrove cases are often too low, he said extra penalties, such as those in the cases of Squadrito and OR Golf Partners are appropriate and send the right message.
“A fine isn’t as important as efforts to restore the mangrove community,” Tattar said. “If they can restore it with a small amount of money, that’s fine. If it costs a lot of money, that’s their problem.”
Reprinted with permission
Kevin Lollar, Times News-Press