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Articles From May, 1996

S.O.S. Lawsuit Ruling - The Amendment Stands!

by Rick Farren

"Having considered the arguments of counsel for the parties and the intervenors, the court concludes that the defendants are entitled to a judgement as a matter of law. Therefore, summary judgement is granted in favor of the defendants." -- Judge Philip Padovano

On May 28, 1996, over a year and a half after passage of the Save Our Sealife Amendment, Circuit Court Judge Philip Padovano, sitting in the Second Judicial Circuit in and for Leon County, Florida, has ruled in favor of the defendants in the major lawsuit brought against the Save Our Sealife Amendment. The suit challenging the constitutionality of the Amendment was initially filed in June 1995, just ten days before the July 1 scheduled implementation of the netting restrictions.

It was brought by five commercial fishermen against the State of Florida and named Governor Lawton Chiles, Attorney General Robert Butterworth, and the Florida Department of Environmental Protection as defendants.

At that time the commercial industry attempted to acquire an injunction preventing implementation of the netting restrictions until after the suit was settled. A hearing on the injunction took place on June 27. Two days later, Judge Padovano issued a ruling denying the injunction on a number of points. The strongly-worded ruling spoke volumes on the "lack of merit" of the commercial industry's lawsuit. Nevertheless, a few months ago, attorneys representing the commercial fishermen filed for a summary judgement on the suit.

Attorneys representing the state in turn filed for a summary judgement and the final hearing was held on April 9. Basically, the same arguments were made by the commercial industry that were discounted during the initial request for an injunction. The state of Florida was represented by Attorney John Glogau of the State Attorney Generals Office, Attorney M. B. Adelson of the Department of Environmental Protection. Attorney Terry McCollough, representing FCA, intervened on behalf of the state, as did attorney Dean Aldridge from the Sierra Club Legal Defense Fund, representing the Florida Wildlife Federation (FWF). The 15-page ruling by Judge Padovano consistently refutes each of the arguments presented by the commercial industry. Following are excerpts from the document.

Standard of Review The suit attempted to have the court apply a higher standard of review to the amendment because it was adopted as a result of a constitutional initiative and not as a part of the deliberative process of enacting laws in the Florida legislature. The court ruled, "There is no precedent for this argument and the court concludes that it does not pass the test of common sense. It is illogical to conclude that the people of Florida have greater protection in the legislative process where they participate indirectly through their representatives, than they do in the constitutional initiative process where they can participate directly by their casting their own votes."

Due Process of Law The suit contended that the amendment violates commercial fishermens' constitutionally protected right to due process of law. The court ruled that, "The amendment satisfies the rational basis test in that it serves to accomplish a legitimate governmental objective. The amendment is designed to conserve marine resources and it attempts to meet that objective by a reasonable regulation on commercial fishing"

Property rights A second due process argument was that the amendment deprives the plaintiffs of due process of law by depriving them of a property right. The court ruled that, "The state clearly has an interest in preserving and protecting the resources of the State, which are commonly owned by the people, and restrictions on the harvest of marine fish does not constitute a taking of property from particular individuals."

Constitutionally Vague A third due process argument was that the amendment is unconstitutionally vague. The court ruled that, "This argument does not require a great deal of discussion. The geographic boundaries are defined in the amendment itself so that they can be understood by persons of common intelligence."

Equal Protection Under the Law The lawsuit argued that the amendment discriminates against commercial fishermen by making an irrational distinction between them and sports fishermen. The court ruled that, "The amendment does not seek to punish anyone nor does it seek to single out particular kinds of fishermen. Rather, the restriction established by the amendment relates only to particular kinds of fishing equipment."

Republican Form of Government The lawsuit also contended that the amendment deprives commercial fishermen of their guarantees of a republican form of government in which the amendment should have been presented in the legislature so they could have had a voice in the debate. The court ruled that, "There is no precedent for this argument and the court rejects it as unfounded...Moreover, it appears that the constitutional amendment process offers an even greater degree of protection for citizens. In the legislative process, the citizens elect representatives who enact laws, while in the amendment process the citizens adopt new laws themselves.

Obligation of Contracts The lawsuit argued that the amendment interfered with their obligations of contract as prohibited by Article I, Section 10 of the Florida Constitution. The court ruled that, "Generally, the personal freedom of contract and freedom in the use of property does not rise above the power of the public to regulate in the interest of the common welfare...The plaintiffs have failed to show that regulation imposed by the amendment was not justified by the public interest in the resources in the waters of the state.

Improper Subject Matter The lawsuit argued that the amendment deals with a subject that should not be included in the constitution. The court ruled that, "...the citizens have a right to amend the constitution on any subject. A provision of the Constitution must not violate other basic constitutional rights but there is otherwise no legal restriction on the subject matter of the amendment.

Ballot Summary The plaintiffs argued that the ballot summary did not properly inform the citizens of the effect of the amendment. The court ruled that, "This argument must be rejected because the time has passed for challenging the working of the ballot summary...This challenge comes at least eight months after the amendment was adopted by a vote of the people and at least two years after the issue was first presented for consideration as a constitutional amendment...Furthermore, the court is not persuaded that there was any deficiency in the ballot summary."

The positive outcome of the lawsuit is the result of excellent work by attorneys defending the suit on behalf of the state, FCA and FWF. FCA also owes a special debt of gratitude to the members and supporters who donated to the FCA legal defense fund. At press time attorneys for the netting industry had indicated that they will most likely appeal Judge Padovano's decision to a higher court.

Legislature Passes Laws to Get Tough on Poachers

by Ted Forsgren

The efforts of FCA members and the grassroots network have resulted in a number of positive results in Florida's 1996 legislative session.

During the waning hours of this year's legislative session, Net Ban Enforcement Amendments were finally tacked onto other legislative bills and passed by both houses. The amendments had been sought by FCA, the Department of Environmental Protection (DEP), and the Florida Marine Patrol to help curb illegal gill netting abuses occurring throughout the state following implementation of the constitutional netting restrictions on July 1, 1995.Many of the problems associated with enforcing the netting restrictions have dealt with loopholes in the current net transit law that has made it very difficult for officers of the Florida Marine Patrol to make a case against even blatant poaching violations. In addition, some county judges have been routinely withholding adjudication and issuing little or no fines or penalties.

FCA detailed the statewide poaching and enforcement problem in a special report, Illegal Gill Netting in Florida Waters, released to the legislature and the public in February. Additionally, reports and actual photos from around the state revealed gill nets piled high in boats incapable of safely fishing outside of state waters. It was touch and go for awhile. In fact, just eight days before the end of the session the Senate Natural Resources Committee rejected the Net Ban Enforcement Amendments, sponsored by Senators Crist and Latvala. From there it took an extraordinary effort by a unique coalition of legislators to get the amendments added to existing legislation. FCA's grassroots network also went to work, contacting legislators in the House and Senate asking for their support to stop the netting abuses.

In the final outcome, the Net Ban Enforcement Amendments were tacked onto one of the Game and Fish Commission's (GFC) license bills and passed. (The GFC bills allow for the establishment of an 800-number for purchasing of fishing and hunting licenses.) The enforcement amendments were developed and endorsed by Representatives R. Z. "Sandy" Safley and Charlie Sembler, and Senators Rick Dantzler, Jack Latvala and Charlie Crist. Representatives Jim Davis and Ken Pruitt also provided important influence and impetus to pass the measures. Unfortunately, the implementation date of the new laws is January 1, 1997 -- the implementation date of the original legislation.However, FCA is exploring possible alternatives that will provide the intended enforcement prior to this fall's mullet roe season.

The Net Ban Enforcement Amendments make the following changes in Florida laws. Beginning with the implementation of the new laws, it will become a major violation "for any person, firm or corporation to be simultaneously in possession of any species of mullet in excess of the recreational daily bag limit and any gill or other entangling net as defined in subsection C of Art. X, s. 16 of the Florida Constitution. Simultaneous possession under this provision shall include possession of mullet and gill or other entangling nets on separate vessels where such vessels or vehicles are operated in coordination with one another including vessels towed behind a main vessel."

The amendments also directly address the problem of courts withholding adjudication by including language which states that fines, penalties, and suspensions will apply to all the net ban major violations even if adjudication is withheld. Only if the court ruling results in a dismissal or acquittal would they not apply. In addition, a $2,500 civil fine was added to the first violation and much stronger license suspension language was included. A process that establishes transit corridors was also included. However, the corridors, which are designated routes for netters to follow when carrying gill or entanglement nets through Florida waters for use offshore, will only be invoked on a netter who has already been caught violating the netting restrictions. Another section creates major penalties "for any person to be in possession of any species of trout, snook, or redfish which is three fish in excess of the recreational or commercial daily bag limit."

SALTWATER LICENSE SPENDING SAFEGUARDS - On the first day of the session, DEP trust fund legislation was passed by the House Appropriations Committee that eliminated the saltwater license revenue formula which ensured that certain percentages of the collected monies are applied to specific areas such as law enforcement, research, and habitat enhancement. FCA's grass roots network immediately swung into action, reminding legislators that the spending formula was part of the commitment made to conservationists who supported the creation of the license. Within a couple of weeks the legislation was re-amended to restore the spending safeguards and the DEP trust fund bill was approved during final days of the session. The major legislative supporters in the effort to retain all of the safeguards were Representatives R. Z. Safley, Ken Pruitt, and Randy Mackey and Senators Rick Dantzler and Jack Latvala.

MFC SENATE CONFIRMATIONS - Earlier this year several Wakulla County commercial fishermen filed a legal action to block the Senate confirmations of MFC Commissioners Dr. Robert Marston and Patrick Geraghty. The legal impediments were finally overridden but not until after the last Senate Executive Business Committee meeting had been held. Normally, that means that no further confirmations would be considered for approval in the 1996 Session. However, Senator Charlie Crist (chairman of that committee) gained the support of the Senate leadership and added the commissionersþ names by a floor amendment, and on the final day of the session their appointments were confirmed. For more detailed information on any of these issues, contact FCA at (904) 224-3474.

Thanks Again to the Grassroots Network. A special thanks to all of the grassroots supporters who wrote and called their legislators on behalf of marine conservation issues during this year's session.

Net Scam II - the sequel

by Rick Farren

They're Back! Nets that taxpayers paid inflated prices for could be headed back to the water.

Ever have one of those re-occurring nightmares where no mater how fast you run you can't seem to get anywhere? That's how it must feel sometimes to the citizens of Florida who voted to limit the use of nets in Florida waters.

After decades of abuse and the annual killing of millions of pounds of non-targeted fish, Floridians voted to remove the worst of the commercial fishing nets from our state waters. In turn, the Florida Legislature voted to buy the nets from commercial fishermen who would no longer be able to use them.

The original "Net Scam" occurred when netters discovered they could drastically inflate the value of their gill nets from $500 to $3,500 by sewing in small seine bags and calling them seine nets. A brief, but flourishing cottage industry quickly developed as net makers were hired to alter nets before purchase by the state. The taxpayers of Florida eventually paid out $20,000,000 to get over 3,000 miles of nets out of the water. The nets were then turned over to a Tampa company, Pollution Prevention Services (PPS), with the understanding that the nets would be broken down and recycled into other products such as plastic eating utensils and car batteries.

Unfortunately, the recycling project has apparently become a financial disaster for the company and as a result some two million pounds of nets are still sitting in ten-foot-high piles on the company's property in Tampa. But not all the nets are still there. Some have actually been resold to the very netters who received inflated values for their nets during last year's buy-out program.

According to an investigation by Florida Sportsman writer Robin Smillie, tons of nets have already been sold for as little as $150 apiece, and are headed back to the water. Apparently to insure the proper use of the repurchased nets, PPS has made every net-buyer sign an affidavit attesting that they would not use the nets illegally. (It begs the question, though, if these people intended to keep fishing, why did they sell their nets in the first place?)

At press time, Marine Fisheries Commissioner Don Hansen had begun investigating the reselling of the nets. His first action was to collect three pounds of PPS records and ship them to governor Chiles' office with a request that action be taken. In addition, the Department of Labor has requested the PPS supply them with complete documentation on who is buying the nets.

We'll update the outcome of these investigations in the next issue of Seawatch. In the meantime we can only wonder if Net Scam III is on the horizon.

Finfish Excluders Introduced in Florida

An important historical precedent was also set on May 14, when the Governor and Cabinet approved an MFC proposed rule that requires the use of bycatch reduction devices (also known as finfish excluder devices) on all shrimp trawls in the Northeast Region (Nassau through Brevard counties, including all waters of the St. Johns' River). According to the new regional regulation, which took effect on June 3, 1996, a legal and functioning bycatch reduction device must "be installed and used in all otter trawls rigged for fishing and used by all food and live shrimp producers." The rule also increases the mesh size allowed for use by food shrimpers and eliminates the shrimp count regulations in the Northeast Region on July 1.

Coast Watchers Still Growing

by Rick Farren

I recently attended a Coast Watcher session in Tallahassee. The course was an enlightening and educational presentation on how marine law enforcement works and the role of the Coast Watcher as an aid to enhancing law enforcement.The program was widely informative and had a straightforward focus on marine resource violations without regard to commercial or recreational violators.

The participants in the course I took included both recreational and commercial fishermen. We were taught the role and jurisdiction of the Division of Law Enforcement, the information required for successful apprehension of violators, the basics of court appearance and testimony, basics of saltwater fishing laws and rules, fishing methods and operations, and identification of marine species.

We also had an opportunity to meet with, talk to, and ask questions of local marine patrol officers about local enforcement problems. Those who completed the program were given a Coast Watchers number to use when reporting a violation. To take part in a Coast Watchers program near you contact your local district and ask to be notified when a program comes to your area. If there isn't one planned, ask them if they could schedule one. District field office locations are as follows...

Baitfish, Finfish and Sardine Harvest Considered

by MFC

Last November, the Governor and Cabinet, at the urging of FCA members who traveled to Tallahassee, reversed their position and approved an MFC rule prohibiting the introduction of bottom- dragging finfish trawls in Florida waters. At the same time it was understood that the MFC did not see a problem with developing rules for the use of small surface trawls for true baitfish and jellyfish. In April, the Marine Fisheries Commission held a final public hearing to consider a rule that would allow very limited use of baitfish and jellyfish trawls in state waters within the limitations of the Save Our Sealife Amendment.

FCA made a number of recommendations which were incorporated into the rule to lessen its impact on the state's fisheries. Additionally, it was noted at the MFC meeting that only a couple of fishing operations in north Florida were seeking the use of surface trawls for baitfish and jellyfish. With that in mind the MFC permitted the use of the surface trawls only in Northwest Florida from Wakulla County to the Florida/Alabama state line. Trawls must be less than 500 square feet, and they may be used only outside of the Colregs Demarcation Line which keeps them out of all inside bays and estuaries. The rule was approved by the Governor and Cabinet on May 14.

Sardines
At the same meeting, the MFC considered a much needed provision that would cap statewide and regional harvests of Spanish sardines in order to prevent the kind of fishery collapse that occurred in the Tampa Bay region. Unfortunately, the rule as proposed would have eliminated the 500-pound trip limit which has been in place in the West Central Region of Florida since the fishery collapsed in Tampa Bay. Again, FCA submitted a strong argument against removing the trip limit in the West Central Region. Although the bay would have remained closed to harvest, and schools of sardines have been spotted offshore in the region, it's been FCA's position that the restrictions should remain in place until the bay's population has also been reestablished. Removing stocks from offshore will only reduce that opportunity. The Commission voted to withdraw the proposed rule and continue to monitor the sardine fishery under the current management rule.

Florida Sportsman Magazine Live Radio Network

The folks at Florida Sportsman Magazine have started the largest, live radio fishing network in the nation--Florida Sportsman Magazine Live.

Broadcasting from six stations throughout the state on Saturday mornings, the Florida Sportsman Radio Network features live call-in shows bringing up-to-the-minute fishing coverage to Florida's most devoted sportsmen. The show format is designed to provide helpful entertaining expertise, including live interactions with listeners and special sources who will tell the avid angler where the action is right now. The six shows will also provide the perfect format to rally conservationists to important causes. Look for Florida Sportsman Magazine Live on: