Livingston. (The deposition of Dr. Robert J. Livingston is the transcript of the testimony presented by the Petitioners.) The Respondents presented 38 exhibits which were admitted into evidence, and the testimony of J. J. Brown and Russell Steven Nelson. Public comment was received from Franklin County
Commissioner Willard M. Vinson, Representative Al Lawson, Dennis Lee Varnes, Jimmy Nichols (Mayor of the City of Apalachicola), Freddie Cramer, Wayne Neil Braswell, Kevin Martina, Coy Shiver, Leroy Langley, Bobby Thompson, Margaret Holton, Richard Scarabin, Jimmy Shore, Donald Wilson, and Barbara Johnson.
There is a transcript.
The parties filed proposed recommended orders. An appendix is included in this order adopting certain proposed findings of fact by reference, and explaining the reason that other proposed findings of fact were rejected.
Apalachicola Bay, located in Franklin County, is an exceptionally important Florida natural resource: 90 percent of the oysters landed in Florida in recent years have been landed from these productive waters. Oysters from Apalachicola Bay are highly prized by many people, and many people have a substantial and abiding interest in the continued health of oyster production in Apalachicola Bay. In particular, a viable and productive oyster industry is extremely important to the citizens of Franklin County.
At the present time, approximately 50,000 acres of the more than 100,000 acres of Apalachicola Bay have the potential of serving as habitat for oysters. Only 6,000 to 7,000 acres of bay bottom, however, now have productive oyster bars, and these bars are managed by the state as public oyster beds. T. 82.
There are an additional 600 to 700 acres of Apalachicola Bay bottom that have been leased to eight private lessees, and some of these also produce oysters, but to a much smaller degree than the public areas. It is estimated that only 15 percent of the 600 to 700 acres of leased bottom land is in oyster production now.
Oysters are harvested in Apalachicola Bay by means of hand-operated tongs. See P. Ex. 35. Harvest by means of tongs has been the traditional and usual manner of harvest in Apalachicola Bay for all of this century, with the exception of a period of a few years in the 1930's when dredges pulled by motor power boats were used.
The proposed rule would allow the Department of Natural Resources to grant permits to allow the use of dredges of the type shown by R. Ex. 37 on leased bottom lands in Apalachicola Bay, but not on public oyster bars.
The dredge allowed by the rule would be dragged behind a motor powered boat, scooping oysters from the bed below. When used in this manner, the dredge is significantly more efficient than the tong method. One or two men operating from a motor powered dredge boat can harvest great quantities of oysters in a relatively short period of time compared to the tong method.
Relationship to prior rulemaking
Prior to December, 1985, leaseholders of bottom land on Apalachicola Bay could have, under then existing rules, applied for permits to use oyster dredges on their leases.
Following the damage caused to Apalachicola Bay by hurricane Elena in September, 1985, rules were adopted prohibiting the harvest of oysters on Apalachicola Bay. This revision eliminated the provision that allowed the grant of permits to use dredges on leases in Apalachicola Bay.
The proposed rule would restore the status quo prior to December, 1985.
Permits for use of oyster dredges may now be granted for use on leased beds in all Florida counties except Franklin County and Apalachicola Bay.
The proposed rule
The statutory authority cited for the proposed rule in this case is sections 370.027 and 370.025, Florida Statutes, and chapter 83-134, Laws of Florida, as amended by chapter 84-121, Laws of Florida. R. Ex. 22.
The text of the proposed rule is in R. Exs. 22 and 29, which is incorporated herein by reference.
The proposed rule would:
Prohibit the use of dredges on the public oyster bars of Apalachicola Bay.
Prohibit possession of a dredge in or on the waters above any public oyster bar of Apalachicola Bay, or on the waters of the Bay from 5:00
P.M. until sunrise.
Allow, until January 1, 1991, the use of dredges and scrapes to remove oysters from leased parcels in Apalachicola Bay. The rule automatically expires on that date.
Require a permit for use of such dredges.
Require telephonic notification of receipt of the permit and 24 hour prior notice by telephone of intended use of the dredge, except telephonic notice of the use on Sunday or Monday must be given by 12 noon the preceding Friday.
Require the number of the permit to be permanently engraved on each dredge.
Limit the dredge to no more than 48 inches in width.
Limit the permit holder to two dredges, and possession of only one active dredge at a time.
Require a copy of the permit to be posted on the vessel transporting the dredge.
Require at all times the presence of the leaseholder or his designee on board the vessel transporting the dredge.
Require designation of the designee in writing, and posting of a copy of the designation on board the vessel at all times.
Require telephonic notice when a dredge is removed from service, and the rendition of the dredge physically unuseable, followed by visual inspection by the Marine Patrol.
Require the prominent display on the vessel transporting the dredge of the lease number in numerals at least 12 inches in height and 6 inches in width, visible both from the air and the water.
Limit to two the number of vessels displaying the permit number.
Basis for the challenge to the proposed rule
The testimony and evidence presented during the hearing in opposition to the proposed rule addressed the following general questions:
That the existing productive public oyster bars would be greatly harmed by the failure of the State of Florida to enforce the rule.
That people in Franklin County who have devoted their lives to the harvest of oysters using the tong method would be greatly harmed by injury to the public oyster beds and by loss of jobs due to lower oyster prices from the leased beds harvested by more efficient dredges.
That little scientific data exists on whether dredges will cause injury to oyster production, as well as injury to water quality and marine life in the Bay, and that the daily experience of those who now harvest oysters in the Bay predicts that the dredges will have substantial adverse affects upon the oyster beds upon which they are used.
Beneficial uses of oyster dredges
Oyster beds, both natural and man-made, are composed of oyster shell and culch. T. 63, 73.
Much of Apalachicola Bay bottom is mud or sand without shell and culch, which is necessary for oyster habitat. T. 73.
Most of the currently leased bay bottom is not productive because of lack of oyster habitat.
Annually, Apalachicola Bay is filled with oyster spawn (spat). The spat would naturally attach to oyster beds of oyster shell and culch if such beds were created where the bottom is now only mud.
The owners of leases have the right to create oyster habitat on their leases and to harvest the oysters that may grow thereon.
The cost of depositing oyster shell and culch material on the mud bottom in adequate quantities to create a suitable habitat for spat is about
$5,000 per acre.
Many of the leaseholders are also in the business of shucking oysters for canning.
In recent years, approximately 90 percent of the oysters processed in Franklin County by shucking and canning have come from outside Florida, and only about 10 percent from Florida.
The supply of oysters from outside of Florida is unstable largely due to water quality degradation in other states, as well as the loss of oyster habitat to development.
Oyster processors who own leases of Apalachicola Bay bottom land want to make those leases productive to supplement and stabilize their supply of oysters for processing.
Leaseholders want to create oyster beds by the deposit of shell and culch in a manner that is profitable to them.
The dredges that would be permitted by the proposed rule are substantially more efficient than tonging as a method of harvest. A dredge can harvest about the same amount of oysters as 18 to 20 people with tongs.
Thus, use of dredges would allow the holders of leases to harvest oysters from the leaseholds more quickly and less expensively. The savings in money could then be used to create more oyster habitat.
Thus, use of dredges on leased land could increase the supply of Apalachicola Bay oysters. Conceivably, many more thousands of acres of the Bay could in this manner produce oysters.
Other collateral advantages may accrue if the leased lands in Apalachicola Bay become more productive. Leaseholders can time the harvest so that more select oysters are available, and can harvest more quickly with dredges to supply the market when demand and prices are more favorable. Moreover, by controlling the timing of harvest, leaseholders could stabilize their supply throughout the year.
If a greater supply of oysters is provided from the leases, job opportunities for people who shuck oysters will be increased and stabilized. Other business opportunities in processing and distribution will be enhanced as well.
Illegal dredging: the consequences to Apalachicola Bay
Persons who depend upon harvest of oysters by the tong method from the public beds fear that those who obtain permits to dredge oysters on leases will illegally use the dredges, primarily at night, to convey oysters, shell, and culch, from the public beds to the leased bottom land.
The oyster dredge that would be permitted by the rule is an extremely fast and efficient method of oyster harvest. T. 129-30. The dredge scoops everything (oysters, shell, and culch, but not mud) off the bottom and brings it to the boat. R. Ex. 35; T. 130-31. A dredge can scoop up 120 to 200 pounds of such material per minute. T. 130.
A motor powered boat fitted with a dredge could substantially damage a public oyster bar in a few hours of illegal night time oyster dredging. T. 52;
P. Ex. 2, p. 6. The oysters, shell, and culch, without culling, could be dredged up in large quantities in a few hours, and quickly dumped on the leased land. T. 107, 130-31. Over a period of several nights of such illegal activity, an entire public oyster bar could be completely destroyed. T. 21, 122, 127-28.
Leased Apalachicola Bay bottom lands are adjacent to, and within relatively short boat motoring distance from public oyster bars. T. 128; R. Ex. 38
Once the illegally dredged oysters have been transported to the leaseholds, the public oyster bars will have been, to the extent of the dredging, irreparably damaged.
Moreover, once the illegally dredged oysters have been spread on the leaseholds, it will be very difficult to prove their illegal origin. T. 128.
A boat illegally using a dredge can have the dredge attached so that it may be quickly released and abandoned in the water if a law enforcement officer approaches. T. 24. It is not known, from the evidence in the record, whether such a boat could also quickly dump its illegal cargo of oysters, shell, and culch.
A boat illegally using a dredge can have advanced warning of the approach of a law enforcement officer by means of other boats with citizen band radios.
Likelihood of enforcement of the proposed rule
The Florida Marine Patrol is primarily responsible for enforcement of the proposed rule. Of course, any law enforcement officer is responsible to enforce all laws of Florida, but without boats and the special knowledge of marine laws, it is less likely that other law enforcement agencies (the county sheriff or the highway patrol) would have occasion to observe violations and enforce the law.
The proposed rule has incorporated nearly all of the enforcement recommendations of the Florida Marine Patrol. R. Ex. 18; T. 48.
Two recommendations, more visible marking of leased areas and colors assigned to mark permitted boats, were not adopted. Assignment of markings to leased areas is only within the authority of the Department of Natural Resources. T. 57, 90.
There is need for more adequate visible marking of leased areas. T.
15.
Color placards on boats would be of additional help to identify
permitted boats from a distance during the day. It would be of little help at night.
Notwithstanding the need for more adequate marking of the lease areas and the utility of colored placards on boats, the Florida Marine Patrol could effectively enforce the proposed rule if it had adequate numbers of enforcement officers assigned to Apalachicola Bay. T. 46.
The Florida Marine Patrol does not now have adequate staff to enforce existing law (statutes and rules) on Apalachicola Bay. T. 46, 49-50, 112-13. The Marine Patrol currently has four officers in the Apalachicola Bay area. Two work the day shift, and two work the night shift. Each can be worked only 160 hours in 28 days. T. 55-56. There are many hours, particularly at night, when there is no Marine Patrol officer on Apalachicola Bay, patrolling on the coastal road, or available in the area. T. 16, 30-34.
Illegal dredging and tonging for oysters on the public oyster bars of Apalachicola Bay has occurred in recent years.
There is nothing in the contents of the proposed rule that would increase illegal activity.
Environmental harm to oyster habitat and to Apalachicola Bay
There are no current, reliable professional studies of the effects of oyster dredges on oyster habitat. T. 65, 71; P. Ex. 2, p. 5, 7. Biologists in Texas and Louisiana had no data on adverse effects of dredging in their states. T. 66- 67.
A dredge may crack oyster shells, and probably will crack some of the scissor-bill oysters, which have a thin protruding shell. T. 69, 116-17, 127. Since no systematic studies have been done with respect to oyster dredging, particularly in Apalachicola Bay, it remains to be seen whether dredging will substantially harm oysters by cracking the shells.
Those who own leases and expend substantial sums of money to create suitable oyster habitat on leased land will then have a substantial economic incentive to operate oyster dredges in a manner that does not harm the oysters harvested or the leasehold oyster beds. It is inferred that leaseholders will have an incentive to carefully monitor the problem of cracking oyster shells during harvest with dredges.
A dredge is highly destructive of sea grass beds. However, oyster bars are primarily located on mud bottom and do not characteristically have large quantities of sea grass. T. 72-73. Thus, dredges on oyster bars should not be destructive of large quantities of sea grass. T. 72.
The Apalachicola Bay naturally has a high degree of turbidity, and dredging will not cause adverse turbidity in the Bay. T. 73-74.
Oyster dredges on leases will not cause a change in water chemistry or nutrient load. T. 74.
Thus, except for potential illegal use of dredges (on public bars), misuse of dredges on leaseholds (scooping of all oyster bar material, without redeposit of shell and culch), and fracture of thin shelled oysters on leaseholds, there is no evidence that oyster dredges will cause biological or water quality problems in Apalachicola Bay.
Economic harm to persons who make a living harvesting oysters with tongs
Although the production of oysters on the leases is small, some tongers are employed to harvest leasehold oysters. These jobs would be lost if dredges were allowed on the leases.
People who make their living by harvesting oysters with tongs will be seriously and substantially harmed economically if illegal dredging of oysters on the public bars occurs and is not stopped by law enforcement officials.
The evidence is not sufficient to make a finding that people who harvest with tongs will be hurt economically by lower oyster prices for the oysters that they harvest. It appears that most of the oysters gathered with tongs are sold in bags, and are not shucked and canned. The lease owners state an intention to use lease oysters for canning, not for sale in the shell. There is insufficient evidence in the record to show the relationship between the market for bag oysters and canned oysters.
The economic impact statement
The economic impact statement, R. Ex. 4, addresses the cost to the agency of implementation of the proposed rule, the economic benefits and detriments of the proposed rule to persons in Franklin County who rely upon the market for Apalachicola Bay and other oysters, the estimated impact of the proposed rule upon competition and the open market for employment, and the estimated impact upon small businesses. The economic impact statement also contains a detailed explanation of the data and method used in making these estimates.
Conclusions of Law
The Division of Administrative Hearings has jurisdiction of the subject and the parties to this proceeding.
Section 120.54(4)(a), Florida Statutes, provides that a proposed rule may be challenged only because it is "an invalid exercise of delegated legislative authority."
An "invalid exercise of delegated legislative authority" is then defined by section 120.52(8), Florida Statutes, as follows:
"Invalid exercise of delegated legislative authority" means action which
goes *beyond the powers, functions, and duties* delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:
The agency *materially failed* to follow the applicable rulemaking *procedures* set forth in s. 120.54;
The agency has *exceeded* its grant
of *rulemaking authority*, citation to which is required by s. 120.54(7);
The rule *enlarges, modifies, or contravenes* the specific provisions of *law implemented*, citation to which is required by s. 120.54(7);
The rule is *vague*, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or
The rule is arbitrary or capricious.
(E.S. between *)
To prevail in a challenge to a proposed rule, there must be proof:
that the agency adopting the rule has exceeded its authority, (2) that the requirements of the rule are inappropriate to the ends specified in the legislative act, and (3) that the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation but are arbitrary and capricious.
State, Marine Fisheries Commission, et al. v. Organized Fishermen of Florida, et al., 503 So.2d 935, 938 (Fla. 1st DCA 1987).
The authority of the Division of Administrative Hearings in a rule challenge case is limited by the statutes set forth above.
For this reason, the issue in this case is not whether the rule proposed is wise, or whether a better rule could be drafted, but whether the rule is invalid based upon the considerations established in the statute.
The statutory authority for the proposed rule in this case is sections
370.027 and 370.025, Florida Statutes, and chapter 83-134, Laws of Florida, as amended by chapter 84-121, Laws of Florida.
Pursuant to section 370.027(1), Florida Statutes, the Marine Fisheries Commission is delegated authority by the Legislature with respect to rulemaking "over marine life."
Pursuant to subparagraph (2) of that statute, the Commission has authority to adopt rules governing gear specifications, prohibited gear, bag limits, size limits, closed areas, and seasons, among other subjects listed in the statute.
Thus, the Marine Fisheries Commission clearly has authority in this case to establish gear specifications, prohibited gear, bag limits, size limits, closed areas, and seasons, for harvesting of oysters with dredges in leased areas of Apalachicola Bay.
The next issue is whether the specific manner in which these subjects are to be regulated by the rule contravenes any other statutory provision governing rulemaking by the Marine Fisheries Commission.
Section 370.025, Florida Statutes, provides standards for marine life rules adopted by the Marine Fisheries Commission. Pertinent to the rule challenged in this case are the following standards contained in subparagraph
of the statute:
The paramount concern of conservation and management measures shall be the continuing health and abundance of the marine fisheries resources of this state.
Conservation and management measures shall be based upon the best information available, including biological, sociological, economic, and other information deemed relevant by the commission.
Conservation and management measures shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis.
When possible and practicable, stocks of fish shall be managed as a biological unit.
* * *
State marine fishery management plans shall be developed to implement management of important marine fishery resources.
Conservation and management decisions shall be fair and equitable to all the people of this state and carried out in such a manner that no individual, corporation, or entity acquires an excessive share of such privileges.
* * *
The proposed rule is consistent with these standards. The rule manages oysters as a biological unit. The rule constitutes a plan for the management of an important marine fishery resource, Apalachicola Bay, and is based upon consideration of the best information available, including biological, sociological, and economic information.
The proposed rule permits a reasonable means and quantity of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis. Apalachicola Bay has the potential of producing much greater quantities of oysters. If successful, the proposed rule would make leasehold production of oysters economically feasible, thus substantially increasing the production of oysters in Apalachicola Bay.
The proposed rule has built in safeguards. By allowing dredging only on a relatively small acreage of leased lands, the rule provides a controlled means to obtain more scientific data. Moreover, those permitted to use dredges would have the economic incentive to use the dredges in a manner that does not destroy their financial investment in the leasehold. Finally, the proposed rule terminates on January 1, 1991, and thus automatically must be reviewed at that time for outcome by the Marine Fisheries Commission.
The proposed rule is fair and equitable to all the people of the State because it allows the granting of oyster dredge permits on leasehold lands in Apalachicola Bay in the same manner that such permits are currently possible in all other oyster habitats within the State.
The proposed rule is written in a way that makes enforcement easier for law enforcement officers. Thus, the proposed rule contains reasonable enforcement mechanisms.
The economic impact statement is legally adequate. The economic impact statement addresses each of the areas required to be addressed by section 120.54(2)(b), Fla. Stat. Florida Waterworks Association v. Public Service Commission, 473 So.2d 237, 247 (Fla. 1st DCA 1985). The economic impact statement does not consider economic impacts if the rule is not enforced and if illegal dredging occurs, but it need not do so. The economic impact statement is limited by section 120.54(2)(b), Fla. Stat., to "information on [the) proposed action . . ." The proposed action is the proposed regulatory operation
that is expected to occur based upon the substance of the rule as written, not as it may or may not be enforced. The Legislature might well amend section 120.54(2)(b) to require consideration of economic impacts that would result if the proposed rule is not enforced (for lack of funding for staff, or for exercise of enforcement discretion, or for a multitude of other reasons), but such a requirement should not be inferred from the statute. Here, there is nothing in the content of the rule that would cause illegal activity on Apalachicola Bay, and thereby cause economic impacts.
If the proposed rule is not enforced, and if illegal dredging occurs on public oyster beds, Apalachicola Bay will be severely harmed, and the oyster production in the Bay will thereafter be substantially curtailed. Loss of Apalachicola Bay oysters would be a grave loss to the citizens of Franklin County, and significant loss to all citizens of the State of Florida.
There is unrebutted evidence on this record that the Marine Patrol does not have adequate staff to enforce the proposed rule.
Nonetheless, the evidence concerning enforcement of the rule is not relevant to the question before the Division of Administrative Hearings. The only legally relevant issue in this case is, pursuant to the statutes set forth above which establish and limit the scope of a rule challenge case, whether the proposed rule is an invalid exercise of delegated legislative authority. Pursuant to those standards, the proposed rule is not invalid.
