June 1999 -- SeaWatch - The Newsletter of CCA Florida

June 1999 Issue #77

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Snook by Susan H. Young

With only one day remaining in the 1999 legislative session, Florida’s Senate gave final approval to Senate Bill 864 (SB 864), the merger legislation which implements the agency and staffing for the new Florida Fish and Wildlife Conservation Commission. The final legislation, which from a conservation perspective is a very good bill, provides the essential organizational structure to successfully manage all fish -saltwater and freshwater- and wildlife in a single agency.

Karl Wickstrom, editor/publisher of Florida Sportsman Magazine and a vice president of CCA Florida stated that the fish and wildlife legislation "wraps up a landmark period for resource management. The net ban amendment and the new unified fish and wildlife agency will usher in a new era of marine fish management and fisheries abundance."

The mandate creating the unified and constitutionally-independent commission was contained in constitutional Amendment 5 which passed with a huge 72 percent Yes vote on election day last November. CCA Florida, Florida Audubon Society, The Nature Conservancy, Florida Wildlife Federation and the many other conservation groups who supported the amendment had called for a comprehensive merger of the Florida Game and Fresh Water Fish Commission (GFC), the Florida Marine Fisheries Commission (MFC) and elements of the Department of Environmental Protection (DEP).

At the beginning of the session separate bills originated in the Senate and the House. Throughout the ensuing two months, the bills moved from one committee to another. At every step of the way CCA Florida representatives worked with supportive legislators to turn back inappropriate amendments while helping to craft the most conservation-oriented legislation possible.

For instance, several attempts were made during committee meetings in the Senate to derail the transfer of marine research staff and resources. Staff from the Florida Department of Environmental Protection initiated the attempts to prevent the transfer through various amendments to the legislation.

Many of the legislators didn’t approve of DEP’s last minute tactics to alter the long-considered legislation. By the time the bill came up for a vote, DEP had decided to withdraw their amendments.

The House bill took a similar route, moving from committee to committee, picking up amendments at each stop, but generally improving along the way. Eventually, the two bills passed their respective bodies and were combined in meetings between the Senate and the House.

The final product is a comprehensive merger which transfers the GFC, MFC, the entire Florida Marine Patrol, Florida Marine Research Institute and other related marine resource programs from the DEP to the new Commission. It embraces and implements the full intent of Amendment 5 and the wishes of Florida voters.

In addition to transferring the various programs, the final legislation also contains provisions which:

Key legislative leaders involved in shaping the final merger legislation were Senators Jack Latvala (R-Palm Harbor) and Charles Bronson (R-Indian Harbour Beach); and Representatives J. D. Alexander (R-Winter Haven), Charles Sembler (R-Vero Beach) and Ken Pruitt (R-Port St. Lucie). Governor Jeb Bush, Senate President Toni Jennings (R-Orlando) and House Speaker John Thrasher (R-Orange Park) also had a positive influence on the final outcome.

The long series of lawsuits filed by commercial netters against the net ban may finally be coming to an end. Recently, two more of these major suits, possibly the last two, were turned-back by the First District Court of Appeals (DCA) in Tallahassee.

The first of these latest victories for conservation occurred on March 31 when the DCA upheld an earlier ruling by a state administrative hearing officer that the Marine Fisheries Commission (MFC) had acted within its authority in passing laws implementing the constitutional netting restrictions. The rule being challenged had been passed in 1996 to eliminate confusion in the question of what actually constitutes a gill net. It stated that seine nets less than 500 square feet, which are allowed under the constitution, must have a mesh size of no more than two inches throughout the net.

Opposition to the rule was based on commercial netters attempts to legally use a 500-square-foot "seine" net with 15 or so square feet of 2-inch seine netting and 485 square feet of wings containing 3-inch mesh, a typical size mesh for pre-net ban gill nets.

Commercial interests filed an administrative law challenge to the MFC rule in December of 1996. Represented by the Earthjustice Legal Defense Fund, CCA Florida along with other conservation groups, intervened in the case on behalf of the state of Florida.

In addition to challenging the MFC’s authority, the netters tried to make the point that a 2-inch mesh seine net was not commercially viable, but if the wings were made of 3-inch mesh it would be. Their argument also included an assertion that the 2-inch mesh gilled juvenile fish while mature fish got away.

The administrative law judge, in upholding the MFC rule, actually recognized that the 2-inch mesh seine might not be commercially viable, but according to the appeals court ruling, "The [administrative] judge found...that the commercial viability of the Pringle-Crum net was attributable solely to the fact that the Pringle-Crum net 'gilled' mullet..." and that "A net disallowed by the Net Ban Amendment cannot lawfully be used, whatever its commercial viability."

A second ruling by the First District Court of Appeals six days later quashed another lawsuit brought by the commercial industry against the amendment. In that case, a Panhandle circuit court judge, Charles D. McClure, had ruled that a 500-square-foot net with a small pocket of 2-inch mesh with wings of 3-inch mesh met the historic definition of a seine and was legal to use under the constitution.

Attorneys from the state requested a dismissal of the case because a previous suit concerning the same issue (see above) was still ongoing. Judge McClure refused, and after injunctions flew back and forth a couple times, issued a declaratory judgement in favor of the netters.

On April 6, 1999, the DCA ruled that Judge McClure should have granted the commission’s request to dismiss. The court also chose not to send the case back to the circuit court to revise.

In overturning the McClure decision the DCA criticized both the judge and the commercial representatives for seeking a declaratory judgement despite the rule challenge that was going on in administrative court.

According to the appeals court order, "The circuit court erred in reaching the merits of the claims Messrs. Pringle and Crum brought in circuit court without having exhausted their administrative remedies."

The DCA also pointed out the confusion that could result if there were separate rulings from 35 coastal counties situated within 18 judicial districts and five appellate districts. Adding also that by "Litigating in two separate forums, Messrs. Pringle and Crum took 'two bites at the apple.’ The diametrically opposed results they obtained have engendered confusion and occasioned expense while, it is now clear, gaining the litigants nothing."

In upholding the administrative ruling in the first case and overturning the lower court ruling in the second case, the DCA pre-empted any attempt to take either suit to the Florida Supreme Court.

At the request of Florida Senator Charles Clary of Destin, the Senate placed $400,000 of Marine Resources Conservation Trust Fund monies (the trust fund which contains all the saltwater recreational fishing license monies) in their budget to fund an environmental study of the "baitfish pilot program." The $400,000 was not requested in any state agency or Governor’s budget recommendations.

Although the House budget did not originally fund the study it was included in the final budget passed by the full Legislature, and was not vetoed by Governor Bush as were some other saltwater license fee expenditures. (See separate story titled "Governor Bush Protects Saltwater License Fee Revenues.")

The "baitfish pilot program" was created by the Legislature in 1997 as an exception to a statewide ban on the use of huge plastic tarpaulin "scam" nets. The special exception has allowed four Panhandle commercial fishing companies to take millions of pounds of "baitfish" with these huge nets. These tarp "scam" nets are nearly a third of a mile long. A state observer on board one of the vessels recorded 18,000 pounds of fish taken in just one set of one net!

When the huge plastic nets first appeared, they were immediately denounced as a "scam" by conservation groups and major statewide newspaper editorials. The nets are seen as a way to circumvent the will of the voting public that made it plain in November 1993 that all large nets should be removed from state waters.

The statutory exemption passed by the 1997 Legislature allowing the nets is only for three years and ends on July 1, 2000. The commercial tarp netters know that they will need an environmental assessment when they attempt to perpetuate their special exemption. However, the four companies who have made all the money taking millions of pounds of fish with the tarp "scam" nets, do not want to pay for it.

Instead many of the citizens of Florida who voted to rid the state of the large nets are now paying for a study that may aid in the program being extended. It’s also conceivable that other commercial fishing operations in Florida will petition for their right to use plastic nets as allowed in the six Panhandle counties.

The state’s newspapers have again spoken out against the use of the tarp nets and against the use of saltwater recreational fishing license money for a study created to pursue extending the program beyond it’s original three-year period.

In addition to the constitution question, shortly after the nets were put into use, it became apparent that they were being used for more than catching baitfish. The nets are also being used to catch ladyfish for sale as a food which is in defiance of a previous state law that prohibited the harvesting of foodfish with purse seines (which the tarp nets used by commercial interests essentially are).

When that activity became apparent it spawned two lawsuits in 1997, one by a commercial wholesaler who imports ladyfish for the west coast markets, challenging the sale of purse-seine caught fish for food. That suit is still in the courts but has not progressed since last summer.

A second suit, which was brought by a Panhandle commercial wholesaler, seeks to block a DEP investigation into the sale of baitfish as food fish, and to get the court to determine that it is legal to sell ladyfish and blue runners as "baitfish" to a food fish market.

A Franklin County judge found in favor of the commercial netters and state attorneys appealed. On May 13, 1999, oral arguments were presented to the District of Appeals in Tallahassee. A ruling could take anywhere from a few weeks to a few months.

Exercising his line item veto on the state budget, Governor Bush has eliminated about one-and-a-half million dollars worth of special projects that would have used money from the Marine Resources Conservation Trust Fund (which contains the money collected from the sale of saltwater fishing licenses). The governor felt the projects were a diversion of saltwater license revenues which are designated for certain uses beneficial to Florida’s marine resources.

Unfortunately, the $400,000 designated for a study of the experimental baitfish pilot program (ie. tarp nets - see Tarp Net Study Funded. . .) was aggregated with about six million dollars in critical marine research funding for the new Fish and Wildlife Conservation Commission. To eliminate the tarp net study Governor Bush would have had to veto the entire package of research funding, which he chose not to do. By lumping it together with other research needs, the tarp study became insulated from a line item veto.

The Florida Senate has confirmed two appointments by Governor Jeb Bush to the Marine Fisheries Commission (MFC) and one to the Game and Fresh Water Fish Commission (GFC). In making the appointments earlier this year, Governor Bush lived up to a pre-election commitment to CCA Florida to not appoint anyone to the Marine Fisheries Commission or the new Florida Fish and Wildlife Commission who had financial conflicts of interests.

H.A. "Herky" Huffman, president, Century 21 Huffman Realty, Inc., Deltona, and John D. Rood, chairman of Vestcor Equities, Inc., Jacksonville, were appointed to serve on the MFC. The new appointees will automatically become members of the Fish and Wildlife Conservation Commission upon its creation on July 1, 1999, and will serve until August 1, 2002. These appointments succeed commissioners George McElvy and Robert Woodward III.

The Senate also confirmed the appointment of Edwin Roberts, a Pensacola chiropractor, to a spot on the GFC. Roberts will also automatically become a member of the new commission.

An avid angler and hunter, Roberts was a member of the team that holds the Florida state record for blue marlin which was set in 1985.

"I’m excited about the new agency," said Roberts. "That’s one of the reasons I volunteered to be a commissioner. Over the next five years, the management decisions made by the new agency will be pivotal to protecting what remains of Florida’s natural wealth. We’ll have to make intelligent moves."

The Commerce Department's National Marine Fisheries Service has made final regulations that ban the sale and import of under-sized North Atlantic swordfish. Implementation of the ban will take place on June 17, 1999, to allow time to educate importers, exporters, and government officials of exporting nations about the new reporting requirements.

In March, the Florida Supreme Court put two, long-running net ban violation cases to rest by deciding not to interfere with the decisions of the First District Court of Appeals (DCA). Commercial fishermen had asked the highest court to review the two decisions by the DCA which had overturned rulings in favor of netters by two Panhandle county judges.

In Franklin County, Judge Van Russel, in one of the first net ban cases to be brought to his court, had found the net ban amendment unconstitutional because there was no clear definition of a gill or entangling net, or how it should be used, in the amendment. The netters on trial had been caught gilling mullet in a net they claimed was legal because they had sewn in a 56-inch wide piece of seine netting into a gill net.

In Wakulla County, Judge Jill Walker, also ruling on an early net ban case, had dismissed charges against a shrimp netter caught trawling inside the three-mile limit with a net larger than 500 square feet. The judge had ruled that there was no way to determine inshore and offshore waters as described in the constitution and that the MFC exceeded its authority by defining miles as written in the constitution as nautical miles.

The District Court of Appeals overturned both cases and combined with the Supreme Court’s decision not to review the appeals means that the county courts will have to continue the prosecution of both those two cases and other similar backlogged net ban arrests that were being held up awaiting a decision.

The first of those cases was heard by Judge Walker in Wakulla County during the week of May 10-14. On May 11, a jury found the shrimp netter, whose charges had been previously dismissed, guilty of using nets larger than 500 square feet inside state waters and of having more than two nets on board. The netter was fined $100 for each of two counts and forced to forfeit the $4,100 proceeds of his catch on that day.

The next day, a similar guilty verdict was returned against a shrimper who had been caught in state waters with a net larger than 500 square feet. Two days later a jury found two other commercial netters guilty of tying two 500 square foot nets together. They were fined $225 each and ordered to forfeit their gear and catch. In each of the three cases, violators are also liable for civil penalties for a major violation which include a three month suspension of a saltwater products license and a fine of $2,500.

The arrest and conviction of three Pine Island net violators in April was the result of a joint enforcement effort by the Florida Marine Patrol (FMP) and the U.S. Coast Guard. The three men were arrested in February 1998 with fish and gill nets on board.

It was the first time arrests had been made based on the use of radar on Coast Guard cutters to document vessels moving to and from state waters. In this case, according to a report in the Pine Island Eagle...

The Marine Patrol has said it will hold future joint operations with the Coast Guard radar-equipped vessels to verify locations where fish are caught with entangling nets.

Earlier this year, in another unusual court case, an Oak Hill commercial fisherman by the name of Billy Watson received the ultimate penalty from County Judge Mary Jane Henderson -a lifetime ban on commercial or recreational fishing in state or federal waters. Watson was a multiple violator who had been arrested in August 1998 for having gill nets on a 14-foot boat.

State law allows gill nets only on boats 22 feet or longer that are capable of being used in federal waters offshore. Watson had previously been arrested for illegal fishing practices and for fleeing and eluding an FMP officer.

One of the Marine Fisheries Commission’s most distinguished and visionary members, Robert Q. Marston, M.D., died on March 14, 1999, of cancer at the age of 76. Dr. Marston was world renowned as a physician, educator, medical researcher, civil rights champion, environmentalist. He served most notably as director of the National Institutes of Health and president of the University of Florida. An avid angler dedicated to preserving Florida’s precious saltwater fisheries resources, Dr. Marston spent the past eight years as a member and two-term chairman of the Marine Fisheries Commission. Perhaps his greatest legacy in this regard is the creation of the Fish and Wildlife Conservation Commission, which he tirelessly supported and encouraged over the past several years.

We are deeply appreciative of Mercury Marine for their continued support of CCA Florida conservation initiatives. Mercury donates two motors for every CCA Florida banquet.