STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARINE INDUSTRIES ASSOCIATION ) OF SOUTH FLORIDA, INC., a )
corporation not-for-profit, ) organized to do business in the ) State of Florida, )
)
Petitioner, )
)
vs. ) CASE NO. 93-5932RX
)
FLORIDA DEPARTMENT OF )
ENVIRONMENTAL PROTECTION, )
)
Respondent, )
and )
) SAVE THE MANATEE CLUB, INC., )
)
Intervenor. )
)
FINAL ORDER
Pursuant to written notice, a final hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings, on December 7-10 and 22, 1993, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Barbara C. Fromm, Esquire
David D. Eastman, Esquire
Parker, Skelding, Labasky & Corry Post Office Box 669
Tallahassee, Florida 32302
For Respondent: Jonathan A. Glogau
Assistant Attorney General PL-01, The Capitol
Tallahassee, Florida 32399-1050
For Intervenor: David Gluckman, Esquire
Gluckman & Gluckman Route 5 Box 3965
Tallahassee, Florida 32301 STATEMENT OF THE ISSUE
The issue for determination at final hearing was whether the Florida Department of Environmental Protection's Rules 16N-22.001(2), 16N-22.002(20) and (21), and 16N-22.010(1)(e) and (g), Florida Administrative Code, constitute an invalid exercise of delegated legislative authority.
PRELIMINARY STATEMENT
On October 15, 1993, Marine Industries Association of South Florida, Inc. (Petitioner), filed its petition challenging the validity of Rules 16N- 22.001(2), 16N-22.002(20) and (21), and 16N-22.010(1)(e) promulgated by the Florida Department of Environmental Protection (Respondent), which set forth criteria for determining state waters in which motorboat speed would be regulated for the protection of manatees in the areas where they are known or assumed to migrate, and which establish a seasonal slow speed zone on weekends for a certain area in the Intracoastal Waterway within Broward County also for the protection of manatees in the areas where they are known or assumed to migrate. On November 16, 1993, Petitioner amended its petition to include a challenge to Respondent's Rule 16N-22.010(1)(g), which establishes a year-round slow speed zone and buffer zone in a certain area in the Atlantic Intracoastal Waterway within Broward County for the protection of manatees in the areas where they are known or assumed to migrate. On November 16, 1993, Save The Manatee Club, Inc. (Intervenor), intervened in this case in support of Respondent.
At the hearing, Petitioner presented the testimony of four witnesses, three of whom as experts, and its exhibits 1-15 and 17 were admitted into evidence.
Respondent presented the testimony of three witnesses, all experts, and its exhibits 1-3 and 5-18 were admitted into evidence. Intervenor presented the testimony of one witness, as an expert, and its exhibits 1 and 2 were admitted into evidence.
A transcript of the formal proceeding was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The parties submitted proposed findings of fact and conclusions of law. All proposed findings of fact have been addressed in the appendix to this final order.
FINDINGS OF FACT
It is stipulated that Marine Industries Association of South Florida, Inc. (Petitioner), has standing to bring this rule challenge.
It is also stipulated that Save The Manatee Club, Inc. (Intervenor), has standing to intervene in this rule challenge.
The Department of Environmental Protection (Respondent) has the responsibility of implementing the Florida Manatee Sanctuary Act, Section 370.12(2), Florida Statutes, which involves interpreting the terms thereof. Respondent's responsibility includes promulgating rules to regulate motorboat speeds and their operation incident to the protection of manatees, pursuant to the Act.
4. Respondent's Rules 16N-22.001(2), 16N-22.002(20) and (21), Florida Administrative Code, set forth criteria for determining the state waters in which motorboat speed would be regulated for the protection of manatees. Also, Respondent's Rules 16N-22.010(1)(e) and (g), Florida Administrative Code, establish a seasonal slow speed zone on weekends for a certain area in the Intracoastal Waterway within Broward County and a year-round slow speed and buffer zone in a certain area in the Atlantic Intracoastal Waterway within Broward County for the protection of manatees.
The manatee is an endangered marine mammal residing in the southern United States, principally in Florida, and has been declared by the State of Florida as its state marine mammal. Only 900 manatees are considered to be on the east coast of Florida.
Respondent uses all available information on the presence of manatees, which includes actual visual sightings as well as any other method to identify their presence. Respondent refers to this information as "sightings." Respondent's information gathering procedure is consistent with established and accepted procedures for the gathering of information on manatees.
Aerial surveys are part of the information relied upon by Respondent for its determinations regarding manatees. It is possible, and not uncommon, that aerial surveys may include sightings of the same mammal on different days. Whether a manatee is sighted frequently involves more than just numbers. It also includes a reasonable expectation that manatees will be seen. Aerial survey data is a minimum count to ascertain where the manatees are, not to determine how many exist or their population.
Sixty-one aerial surveys were conducted in the waters of Broward County, excluding the Hillsboro Inlet, by Respondent and Broward County for Respondent. During the aerial surveys from 1988 to 1993, sixty-seven to sixty- nine sightings were made in the northern Intracoastal Waterway (NICW) in Broward County. Also, the aerial survey data showed sightings in seven out of twelve, five out of fifteen, and eleven out of eighteen flights.
Manatees occasionally travel in the ocean. The aerial surveys included passes over the Atlantic Ocean.
The NICW has lowlight transmission and high turbidity. Manatees travel two to five feet below the surface of the water. Because of water clarity, surface conditions and the fact that manatees must be at or very near the surface to be spotted, manatees are difficult to see in the NICW. The aerial surveys revealed an average of one sighting per flight.
Lack of sightings in the aerial surveys reflect survey conditions as much as the absence of manatees.
Manatees regularly move in and out of the Hillsboro Inlet zone.
Manatees use the NICW in Broward County often and are frequently sighted there.
When determining whether manatees inhabit an area, all data bases available should be used.
The Intracoastal Waterway (ICW) is used by manatees for travel through Broward County. Aerial surveys of the NICW are performed at a lesser density than those performed of the power plants which are warm water refuges.
Regular travel corridors constitute essential habitat. The NICW is a major travel corridor for manatees. They migrate through the NICW. Migration means purposeful movement from one point to another, as well as seasonal movement of species in mass. Manatees use the waters of the NICW and the power plants when moving back and forth between Port Everglades and Riviera Beach, and
this exchange is documented. More than 200 manatees use both the Port Everglades and the Riviera Beach Power Plants (both warm water discharge areas) as warm water refuges, making repeated trips back and forth in single seasons.
Thirty-Eight to forty-seven percent of manatees on the east coast use the Port Everglades area.
Manatees inhabit areas where they are found. As to the waters of the ICW, they inhabit it on a regular basis. Moreover, manatees inhabit the NICW virtually continuously in winter and regularly or periodically in the off-winter months. Manatees inhabit Broward County year round, continuously in the winter months and regularly in the off-winter months.
Although to a lesser degree, Respondent considers radio telemetry data in its determinations regarding manatees. Radio telemetry is a data gathering technique which is not experimental, but is less revealing when used with manatees. Telemetry data is hard to acquire in the NICW because manatees' behavior of resting and traveling deploys the tag being used in a way which is not available to the satellite. As a result, every tagged manatee is not seen on every satellite pass. Data from telemetry studies show that manatees predominantly travel the ICW, and extremely infrequently in the ocean, and have a regular exchange between the Port Everglades and Riviera Beach plants.
Tagged manatees, when located visually, are found in association with others.
The behavior of radio-tagged manatees is representative of the population of manatees as a whole.
Manatees travel in groups in the NICW. A congregation of mammals means more than one mammal together, without assigning a reason for the congregation. Manatees congregate in areas where they are sighted in groups of two to three or more. All of the available information taken together indicates that manatees congregate in the NICW, using it on a regular and frequent basis.
Respondent considers the entire NICW, including the Hillsboro Inlet zone, as a single unit when interpreting manatee sightings because of the types of manatee behavior observed and the character of the NICW.
Respondent also considers anecdotal data in its determinations regarding manatees. Anecdotal data is useful for confirmation of, but not for providing new insights about manatees and their behavior. Anecdotal sighting data are consistent with and confirm what is known by Respondent from other sources about manatees.
Motorboats kill, maim and disturb manatees. Manatees have scars on their bodies, which are caused by collisions with watercraft. Virtually all manatees have propeller scars and approximately 900 are documented in what is known as the Scar Catalogue. Scar patterns on manatees indicate numerous collisions, some nine to ten times. The Scar Catalogue also indicates that manatees move back and forth between the Port Everglades and Riviera Beach plants.
Since 1974, when Respondent started compiling manatee mortality data, of the manatees recovered for which the cause of death could be determined, 522 were attributed to watercraft collision. Of the 522 watercraft collision deaths, twenty-seven manatees were recovered in Broward County, which represents
over one-half of the total manatee deaths in Broward County for which the cause of death could be determined. However, the recovery data fails, and is unable, to show where within the ICW or NICW the manatees were struck.
After a collision, manatees will seek out a quiet area. It is not unusual and is expected that injured manatees in Broward County will seek refuge at the Port Everglades.
Boat traffic poses a threat to manatees. Increased or higher boat traffic poses an elevated or even greater risk to manatees.
Broward County waters are utilized by large numbers of boaters. In addition to Broward boaters whose boat registrations have increased eighteen percent between 1986 and 1991, boaters from Dade and Palm Beach Counties and in winter from out-of-state use Broward waters.
Boating traffic in Broward County and the NICW is heavier on weekends than on weekdays. There is no change in the traffic for Broward County in the winter months from November through March.
More boating occurs during the day than at night on the NICW.
A survey of boaters in Broward County relied upon by Respondent indicated that over fifty percent of boaters leave between 8:00 a.m. and noon and return between 2:00 p.m. and 6:00 p.m.; that eighty-four percent of those surveyed were in favor of speed limits to protect manatees; and that fifty-nine percent of those surveyed were in favor of slow speed for the whole county on weekends and holidays from November to March.
Comparatively, Respondent's slow speed rule is substantially less stringent than that which was found acceptable by those surveyed and not as stringent as recommended by the federal Fish and Wildlife Service. Several local governments in the NICW adopted resolutions calling for more stringent regulations than Respondent's rule.
In an effort to lessen the interference with boaters while also providing an area of protection for manatees in the NICW, the 25 mph speed limit with the fifty-foot buffer zone was adopted.
A slow speed zone in the NICW will enhance boating safety.
At slow speed, only boats with propeller-on-shaft and a rudder will exhibit an unsafe condition referred to as wobbling. However, virtually no typical recreation boat which is under thirty feet is configured that way.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.56, Florida Statutes.
Petitioner has standing to challenge the validity of the promulgated rules. As challenger, the burden is upon Petitioner to demonstrate by a preponderance of the evidence that the rules are an invalid exercise of delegated legislative authority. Humana, Inc. v. Department of Health and
Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985); and Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. den. 376 So.2d 74 (Fla. 1979).
Subsection 120.52(8), Florida Statutes, provides in pertinent part that a rule is an "invalid exercise of delegated legislative authority" if:
The agency has 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.
Subsection 370.12(2), Florida Statutes, the "Florida Manatee Sanctuary Act," provides in pertinent part:
(f) In order to protect manatees or sea cows from harmful collisions with motorboats
or from harassment, the Department of Natural Resources shall adopt rules under Chapter 120
. . . regulating the operation and speed of motorboat traffic, only where manatee sightings are frequent and it can be generally assumed, based on available scientific information, that they inhabit these areas on a regular or continuous basis . . . .
* * *
(j) It is the intent of the Legislature through the adoption of this paragraph to allow the Department of Natural Resources to post and regulate boat speeds only where
manatee sightings are frequent and it can be generally assumed that they inhabit these areas on a regular or continuous basis.
* * *
(n) The department may designate by rule other portions of state waters where manatees are frequently sighted and it can be assumed that manatees inhabit waters periodically
or continuously. Upon designation of such waters, the department shall adopt rules to regulate motorboat speed and operation which are necessary to protect manatees from harmful collisions with motorboats and from harassment.
Subsection 370.12(2)(n) establishes the regulatory criteria for the designation of state waters for motorboat speed and operation for the protection of manatees.
The Florida Supreme Court described the standard for review in rule challenge cases in General Telephone Company of Florida v. Florida Public Service Commission, 446 So.2d 1063, 1067 (Fla. 1984) as follows:
We adopt as the proper standard of review one set forth by the First District Court of Appeal upon review of similar rulemaking:
Where the empowering provision of a statute states simply that an agency may "make such rules and regulations as may be necessary to carry out the provisions of this act," the validity of the regulations promulgated thereunder will be sustained as long as they are reasonably related to the purposes of the enabling legislation, and are not arbitrary and capricious. Agrico Chemical Co. v.
State, Department of Environmental Regulation,
365 So.2d 759 (Fla. 1st DCA 1978) cert. den.
376 So.2d 74 (Fla. 1979); Florida Beverage
Corp. v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975).
Additional standards applicable to the review of a rule challenge proceeding are articulated in Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515, 517 (Fla. 1st DCA 1984) as follows:
The well recognized general rule is that agencies are to be accorded wide discretion in the exercise of their lawful rulemaking authority, clearly conferred or fairly implied and consistent with the agencies' general statutory duties. Florida Commission on Human Relations v. Human Development Center, 413 So.2d 1251 (Fla. 1st DCA 1982).
An agency's construction of the statute it administers is entitled to great weight and is not to be overturned unless clearly erroneous. Pan American World Airways, Inc.
v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983); Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983). Where, as here, the agency's interpretation of a statute has been promulgated in rulemaking proceedings, the validity of such rules must be upheld if it is reasonably related to the purposes of the legislation interpreted and it is not arbitrary and capricious. The burden is upon petitioner in a rule challenge to show by a preponderance of the evidence that the rule or its requirements are arbitrary and capricious. Agrico Chemical Co. v. State, Dept. of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978); Florida Beverage
Corp. v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975). Moreover, the agency's interpretation of a statute need not be the sole possible interpretation or even the most desirable one; it need only be within the range of possible interpretations. Department of Health and Rehabilitative Services v. Wright,
439 So.2d 937 (Fla. 1st DCA 1983) (Ervin, C.
J. dissenting); Department of Administration
v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982); Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d
238 (Fla. 1st DCA 1981).
Rules 16N-22.001(2) and 16N-22.002(20) and (21) set forth criteria for determining the state waters in which motorboat speed would be regulated for the protection of manatees.
Rules 16N-22.010(1)(e) and (g) establish a seasonal slow speed zone on weekends for a certain area in the Intracoastal Waterway within Broward County and a year-round slow speed and buffer zone in a certain area in the Atlantic Intracoastal Waterway within Broward County; all for the protection of manatees from harmful collisions with motorboats and from harassment.
Respondent's existing Rule 16N-22.002(8), which is not being challenged by Petitioner, defines a slow speed zone as "a designated area within which it has been established that manatees are known to congregate."
Congregate is not defined by either statute or rule. Respondent advances that congregate means more than one mammal together, without assigning a reason for the congregation. Respondent's interpretation is reasonable, and it has shown that manatees congregate in the water areas designated as slow speed zones.
Respondent's interpretation of Subsection 370.12(2), Florida Statutes, through the promulgation of rules is entitled to great weight and cannot be overturned unless clearly erroneous, unreasonable, or in conflict with the state constitution or plain intent of the statute. Shell Harbor Group, Inc. v. Department of Business Regulation, 487 So.2d 1141 (Fla. 1st DCA 1986); ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981). Petitioner has failed to show that the Respondent's interpretation of Subsection 370.12(2)(n), Florida Statutes, through the promulgation of the subject rules, is erroneous, unreasonable, or in conflict with the state constitution or the plain intent of the statute. Respondent's interpretation of the statutory phrase "frequently sighted," as well as its interpretation of the statutory phrase "inhabit" to include migrate are within the range of possible interpretations. Florida League of Cities, Inc. v. Department of Insurance and Treasurer, 540 So.2d 850 (Fla. 1st DCA 1989); Durrani, supra.
Petitioner has also failed to show that the challenged rules are not reasonably related to the purpose of enabling legislation and that the rules are arbitrary or capricious. Furthermore, the rules do not unduly interfere with the rights of boaters. Accordingly, the rules are a valid exercise of delegated legislative authority.
CONCLUSION
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Marine Industries Association of South Florida, Inc.'s amended
petition to determine the invalidity of Rules 16N-22.001(2), 16N-22.002(20) and (21), and 16N-22.010(1)(e) and (g), Florida Administrative Code, is DISMISSED.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of August 1994.
ERROL H. POWELL
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August 1994.
APPENDIX
The following rulings are made on the parties' proposed findings of fact:
Petitioner's Proposed Findings of Fact
(Petitioner's proposed findings begin with paragraph numbered 9.)
9. Partially accepted in Finding of Fact 1.
10 & 13. Partially accepted in Finding of Fact 3.
Partially accepted in Finding of Fact 2.
Partially accepted in Finding of Fact 5.
14. Partially accepted in Finding of Fact 4.
15-17, 24, 25, 57 and 60. Rejected as constituting argument, or conclusions of law.
Partially accepted in Findings of Fact 6, 7, 19 and 24.
Partially accepted in Finding of Fact 24.
20-22. Partially accepted in Findings of Fact 6-8.
23. Partially accepted in Finding of Fact 16.
26,28-29,32,37,39,41,48-51,69 and 70: Rejected as subordinate.
27 & 30. Partially accepted in Finding of Fact 26.
31 & 27. Partially accepted in Finding of Fact 27. 33,38,53,54,59,62,66 and 68. Rejected as contrary to the weight of the
evidence, or not supported by the more credible evidence.
34 & 35. Rejected as subordinate, unnecessary, or irrelevant.
40. Partially accepted in Finding of Fact 26.
Partially accepted in Finding of Fact 5.
First sentence rejected as subordinate. Remainder partially accepted in Finding of Fact 32.
Partially accepted in Finding of Fact 32.
52. First sentence rejected as unnecessary, or irrelevant. Remainder rejected as contrary to the weight of the evidence, or not supported by the more credible evidence.
56. Partially accepted in Finding of Fact 33.
61. Partially accepted in Findings of Fact 17 and 22.
63 & 64. Partially accepted in Finding of Fact 22.
65. Partially accepted in Findings of Fact 16, 17 and 22.
67. Partially accepted in Findings of Fact 12, 22, and 23.
Respondent's Proposed Findings of Fact
1, 2, 18, 38, 45, 56, 58, 66-68, 72, 77, 79 and 85 and 86. Rejected as
subordinate.
3 & 23. Partially accepted in Finding of Fact 3.
4. Partially accepted in Finding of Fact 6.
5 & 6. Partially accepted in Finding of Fact 13.
7 & 8. Partially accepted in Findings of Fact 5 and 7.
9 & 10. Partially accepted in Finding of Fact 8.
11 and 31-33. Partially accepted in Finding of Fact 10.
Partially accepted in Findings of Fact 10 and 16.
Partially accepted in Finding of Fact 14.
14,15,21,22 and 29. Partially accepted in Finding of Fact 18. 16,17,19,25,26 and 28. Partially accepted in Finding of Fact 16.
24 & 35. Partially accepted in Finding of Fact 7.
27. Partially accepted in Findings of Fact 19 and 25.
30 & 51. Partially accepted in Finding of Fact 15.
34. Partially accepted in Finding of Fact 11.
Partially accepted in Finding of Fact 12.
Partially accepted in Finding of Fact 23.
39-43. Partially accepted in Finding of Fact 22.
44,46,47 and 70. Partially accepted in Finding of Fact 19.
Partially accepted in Finding of Fact 20.
Partially accepted in Finding of Fact 21.
Accepted in Finding of Fact 17.
& 55. Partially accepted in Finding of Fact 29.
& 54. Partially accepted in Finding of Fact 30.
57. Partially accepted in Finding of Fact 28.
59. Partially accepted in Finding of Fact 31.
60 & 61. Partially accepted in Finding of Fact 32. 62-64. Partially accepted in Finding of Fact 33.
65. Partially accepted in Finding of Fact 34.
69. Partially accepted in Finding of Fact 9.
71, 73 and 74. Partially accepted in Finding of Fact 25.
75 & 76. Partially accepted in Finding of Fact 27.
78. Partially accepted in Finding of Fact 26.
80-84. Partially accepted in Finding of Fact 24.
Partially accepted in Finding of Fact 35.
Partially accepted in Finding of Fact 36.
NOTE--Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, cumulative, contrary to the weight of the evidence, not supported by the more credible evidence, argument, or a conclusion of law.
COPIES FURNISHED:
Barbara C. Fromm, Esquire David D. Eastman, Esquire
Jack M. Skelding, Jr., Esquire PARKER, SKELDING, LABASKY & CORRY
Post Office Box 669 Tallahassee, Florida 32302
Kenneth J. Plante, Esquire General Counsel
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Jonathan A. Glogau, Esquire Assistant Attorney General PL-01, The Capitol Tallahassee, Florida 32399
David Gluckman, Esquire Route 5, Box 3965
Tallahassee, Florida 32301
Virginia B. Wetherell, Secretary Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
488-4805
Carroll Webb, Executive Director Administrative Procedures Committee
120 Holland Building Tallahassee, Florida 32399-1300
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules Of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk Of The Division Of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court Of Appeal, First District, or with the District Court Of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
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DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JANUARY TERM 1996
MARINE INDUSTRIES ASSOCIATION OF SOUTH FLORIDA, INC.
Appellant,
v. CASE NO. 94-2525
DOAH CASE NO. 93-5932RX
FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION AND SAVE THE MANATEE CLUB, INC.,
Appellees.
/ Opinion filed May 1, 1996
Appeal from the State of Florida, Division of Administrative Hearings.
L.T. Case No. 93-5932RX
Jennifer Parker La Via of the Parker Law Firm, Tallahassee, and Jack M. Skelding, Jr., David D. Eastman and Barbara C. From of Skelding, Labasky, Corry, Eastman & Hauser, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney Genera, and Jonathan A. Glogau, Assistant Attorney General, Tallahassee, for Appellee-Florida Department of Environmental Protection
David Gluckman of Gluckman and Gluckman, Tallahassee, for Appellee-Save the Manatee Club, Inc.
WARNER, J.
This appeal challenges the constitutionality of a section of the Florida Manatee Sanctuary Act as being an unauthorized delegation of legislative authority to an administrative agency. It also challenges the rule adopted by the Department of Environmental Protection providing for a slow speed boating zone in portions of the intracoastal waterway in Broward County on the grounds that is was an invalid exercise of delegated legislative authority and that the evidence did not support its enactment. We affirm in all respects.
Manatees are an endangered species both under federal and state law. Approximately 2,000 manatees live in Florida waters, and of those only 900 inhabit the east coast of Florida. The manatee has been designated as the state marine animal, section 15.038(1), Florida Statutes (1995), and a manatee license
plate has been authorized by the Legislature to raise funds for the protection of manatees. s 320.08056(4)(a), Fla. Stat. (1995). Radio and television spots highlight efforts to save the manatee, and organizations supporting manatees routinely lobby the Legislature for laws to protect the species.
As a result of this activity, the Legislature passed the Florida Manatee Sanctuary Act in 1978 and designated the entire state of Florida to be a refuge and sanctuary for the manatee. s 370.12(2)(b), Fla. Stat. (Supp. 1978).
Because one of the most pressing dangers to the slow-moving manatee is collisions with motorboats, the Legislature designated thirteen specific geographic regions over a period of several years and authorized the Department of Environmental Protection (Department) to regulate the expansion and construction of marine facilities and the operation and speed of motorboats in these areas "only where manatee sightings are frequent and it can be generally assumed, based on available scientific information, that they inhabit these areas on a regular or continuous basis." s 370.12(2)(f), Fla. Stat. In subsequent years, the Legislature added other areas where the Department was given the authority to regulate the operation and speed of motorboat traffic. s 370.12(2)(g),(h),(i), & (k), Fla. Stat. Finally, in 1983 the Legislature passed subsection 370.12(2)(n), which provides:
The department may designate by rule other portions of state waters where manatees are frequently sighted
and it can be assumed that manatees inhabit such waters periodically or continuously. Upon designation of such waters, the department shall adopt rules to regulate motorboat speed and operation which are necessary to protect manatees from harmful collisions with motorboats and from harassment.
s 370.12(2)(n), Fla. Stat. (1983). Pursuant to this delegation of authority, the Department proposed Administrative Rule 16N-22,919(1)(e) and (g) (1993) to the Administrative Code to regulate boat speed in Broward County. Fla. Admin. Code Ann. R. 16N-22.010(1)(e) & (g)(1993) (now 62N-22.010(l)(e) & (g).
Broward County contains two power plants, the Fort Lauderdale Power Plant and the Port Everglades Power Plant, where manatees exist in great numbers. The areas around these power plants are two of the thirteen legislatively designated geographical areas where the Department can regulate both marine facilities and motorboat operation and speed. s 370.12(2)(f)6. The proposed regulations would apply a wintertime weekend slow speed zone on the intracoastal Waterway (NICW). This is part of a travel corridor from the Riviera Beach Power Plant in Palm Beach County to the Broward plants. It would also apply a slow speed zone within 50 feet of the shoreline and a maximum 25 mile per hour speed buffer zone year round in all other parts of the intracoastal waterways throughout Broward County. The appellant challenges only the slow speed regulation in the northern Broward County intracoastal waterway as it provides the only ocean access for small boats through the Hillsboro Inlet and through Port Everglades.
Is section 370.12(2)(n) an unconstitutional delegation of legislative authority?
Relying primarily on Askew v. Cross Key Waterways, 372 So.2d 913 (Fla. 1978), the appellant argues that section 370.12(2)(n) is an unconstitutional delegation of legislative power in that it fails to specifically define the geographical limits within which the Department may act without sufficient guidelines ascertainable from the Act itself. In Askew, the court reviewed the
constitutionality of the Florida Environmental Land and Water Management Act in which the Legislature had delegated to the Division of State Planning the authority to recommend to the Governor and Cabinet, sitting as the Administrative Commission, "areas of critical state concern" within the state. Designation as an area of critical state concern required the enactment of a comprehensive set of development regulations by the local government to be monitored by the state. The Act prohibited the Administration Commission from designating more than five percent of land within the state as areas of critical state concern. Land could be designated as an area of critical state concern only if it had significant impact on environmental, historical, natural, or archaeological resources of regional or statewide importance, or if it significantly affected an existing or proposed major public facility or area of major public investment.
The Askew court looked at Article II, Section 3, Florida Constitution, which provides:
Branches of government.-The powers of the
state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.
Art. II, s3, Fla. Const. (Emphasis supplied). While some states and the federal government had adopted the theory of delegation of legislative power which stressed a shift from legislatively imposed standards for administrative action to procedural safeguards in the administrative process, the court viewed the second sentence of Article II, Section 3, Florida Constitution, as being an express limitation upon the exercise of legislative powers by a member of the executive branch:
Flexibility by an administrative agency to administer a legislatively articulated policy is essential to meet the complexities of our modern society, but flexibility in administration of a legislative program is essentially different from reposing in an adminis-
trative body the power to establish fundamental policy.
. . . .
Accordingly, until the provisions of Article II, Section 3 of the Florida Constitution are altered by the people we deem the doctrine of nondelegation of legislative power to be viable in this State.
Under this doctrine fundamental and primary policy decisions shall be made by members of the legislature who are elected to perform those tasks, and administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the entactment establishing the program.
Askew, 372 So.2d at 924-25. The court held that section 380.05(1)(a), Florida Statutes (1975), was unconstitutional because the Legislature did not provide minimum standards and guidelines to set priorities among competing areas and resources which could be classified as areas of critical state concern under the
Act. Id. at 919. Instead, the Act left this fundamentally legislative task of determining which geographic areas and resources were most in need of protection to the executive branch.
The appellant would have us read Askew as standing for the proposition that the failure to define specific geographical limitations within which an executive agency may act is always fatal to any delegation of administrative authority in any law. The geographical limitation was important in Askew because what was being regulated was land and the development to be allowed on it. The Act lacked criteria by which the Administrative Commission could determine which land should be so regulated:
When legislation is so lacking in guidelines that either the agency nor the courts can determine whether
the agency is carrying out the intent of the legislature in its conduct, then, in fact, the agency becomes the law giver rather that the administrator of the law.
Id. at 918-19.
In the case of the Florida Manatee Sanctuary Act, there is no doubt that the Legislature acted to protect the endangered manatee, as it designated the entire state a manatee sanctuary. A sanctuary is a place of protection, and in the statute specific protection, and in the statute specific provisions protecting the manatee have been included. Therefore, the entire state is a place of protection for the manatee.
Askew holds that the Legislature must set minimum standards by which an administrative agency shall be guided in establishing its rules to effectuate legislative intent. The sufficiency of the standards depends on "the subject matter dealt with and the degree of difficulty involved in articulating finite standards." Id. at 918. However, "[i]f the subject matter 'requires the expertise and flexibility of the agency to deal with "complex and fluid" draft more detailed or specific legislation." Apalachee Regional Planning Council v. Brown, 546 So. 2d 451, 453 (Fla. 1st DCA 1988), approved, 560 So. 2d 782 (Fla. 1990). In the instant case, the Department is charged with enacting rules to protect a migratory endangered species which inhabits waters also used by the public. By the very nature of the problem and the mobility of the manatee, articulating exact standards would be difficult at best and probably subject to change on a yearly basis as the manatees' habitat changes.
The Department points to the legislative directive that it may regulate motorboat operation and speed in areas "where manatees are frequently sighted and it can be assumed that manatees inhabit such waters periodically or continuously" as setting a minimum standard to which their rule-making must conform. Further, the Department may only adopt rules which are "necessary to protect manatees from harmful collisions or harassment." s 370.12(2)(n). The appellant claims that "frequently sighted" is too vague a standard to be any standard at all. We disagree. As "frequently" is not defined specially, we look first to the ordinary meaning of the word, which is what the Department relied on in its establishment of the speed zones in Broward County. The ordinary definition of "frequent" is "occurring often; happening repeatedly at brief intervals." Webster's New World Dictionary 579 (1966). This definition must, however, be placed in the context of what is being sighted "frequently." We are dealing here with an endangered species of very limited numbers.
Therefore, "frequent" must be interpreted with this scarcity in mind.
Whether the manatee is seen "frequently" is a quantifiable measurement which can be made by the Department by applying its expertise to its data collection. We do not think that it is beyond the ability of the Department or a court reviewing agency action to determine whether or not a rule comports which these guidelines. Thus, the Department is not the lawgiver but acting as the administrator of the law. We therefore hold that the statute is not an unconstitutional delegation of legislative power to an executive agency.
Is Administrative Rule 16N-22.010(1)(g) 15 an invalid exercise of delegated legislative authority?
Alternatively, the appellant claims that if the statute is constitutional, then the rule is an invalid exercise of delegated legislative authority because the evidence below did not establish "frequent sightings" of manatees in those areas regulated. The standard of review for an agency's action is as follows:
If the agency's action depends on any fact found by the agency in a proceeding meeting the requirements of s. 120.57, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside agency action or remand the case to the agency if it finds that the agency's action depends on any finding of fact that is not supported by competent substantial evidence in the record.
s 120.68(10), Fla. Stat. (1995).
The hearing officer made a specific finding that manatees use the NICW in Broward County often and are frequently sighted there. Through various tracking studies including aerial surveys, radio telemetry data, manatee sightings and observations by researchers, scar catalog data, and expert opinions, the appellees showed that the intracoastal waterway is a travel corridor for manatees which migrated between the Riviera Beach Power Plant in Palm Beach County and the Port Everglades Power Plant in Broward County, particularly in the winter months. About 200 manatees use this path.
Considering that only 900 manatees inhabit the east coast of Florida, this is a sizeable percentage of the entire endangered species population which traverses this sixteen mile stretch of waterway in Broward County. While the appellant has pointed to various individual surveys to show that an individual survey, taken by itself, does not show frequent sightings, the experts testified that the sum total of the available data as well as their knowledge of the habits of the animal resulted in their opinion that manatees frequented this area. The hearing officer's findings were supported by competent substantial evidence. Thus, we hold the rule is a valid exercise of delegated legislative authority.
Did the Department properly comply with its own rules in designating the NICW a slow speed zone where manatees congregate?
Finally, appellant argues that the Department did not follow its own rule which allows it to establish a "slow speed zone" only where manatees are known to congregate. The hearing officer noted that the term "congregate" was not defined either by statute or rule. The hearing officer accepted the
Department's definition that "congregate means more than one mammal together, without assigning a reason for the congregation." Finding the Department's interpretation to be reasonable and the evidence to have shown that under that definition manatees "congregated" in the NICW, the hearing officer upheld the rule. We affirm the hearing officer's conclusions as the validity of the regulations promulgated should be sustained as long as they are reasonably related to the purposes of the enabling legislation and are not arbitrary and capricious. Agrico Chem. Co. v. State, Dep't of Envtl. Regulation, 365 So. 2d 759 (Fla. 1st DCA 1978). In the context of the scarcity of manatees all over Florida, the definition of "congregate" applied by the Department is neither arbitrary nor capricious and reasonably related to the protection of this endangered species.
Given the Legislature's concerted efforts to protect the manatee, we conclude that the statute is constitutional, and that the rules promulgated are proper exercises of delegated authority. We recognize the imposition that there rules place on the rights of boaters to use the waters of the state in the manner which they have previously enjoyed. In the enactment of section 370.12(2)(n), the Legislature placed a priority on the protection of the endangered manatees. The appellant's concern that the proper balance between manatees and humans has not been struck is a policy decision properly addressed to the legislative branch of government.
Affirmed.
PARIENTE and SHAHOOD, JJ., concur
MANDATE
From
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
This cause having been brought to this Court by Appeal, and after due consideration the Court having issued its opinion;
YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the Opinion of this Court, and with the rules of procedure and laws of the State of Florida.
Witness the Honorable Bobby W. Gunther, Chief Judge of the District Court of Appeal of the State of Florida, Fourth District, and the Seal of the said court at West Palm Beach, Florida on this day.
DATE: May 17, 1996
CASE NO.: 94-2525
COUNTY OF ORIGIN: State of Florida, Division of Administrative
Hearings
T.C. CASE NO.: 93-5932RX
STYLE: Marine Industries Association v. Florida Dept. of Environmental Protection
Marilyn Beuttenmuller, CLERK District Court of Appeal Fourth District
ORIGINAL TO: State, Division of Administrative Hearings cc: Jennifer Parker La Via Barbara C. Fromm
Jack M. Skelding, Jr. Attorney General - Tallahassee David D. Eastman David Gluckman
Errol M. Powell
/CR
| Issue Date | Proceedings |
|---|---|
| May 20, 1996 | Opinion and Mandate from the Fourth DCA (Affirmed)filed. |
| May 03, 1996 | Fourth DCA Opinion (Affirmed) filed. |
| Dec. 21, 1994 | Index, Record, Certificate of Record sent out. |
| Dec. 06, 1994 | Payment in the amount of $134.00 for indexing filed. |
| Oct. 25, 1994 | Index & Statement of Service sent out. |
| Sep. 23, 1994 | Letter to EHP from Randall E. Hanson (re: unacceptable restrictions) filed. |
| Sep. 06, 1994 | Letter to DOAH from DCA filed. DCA Case No. 4-94-2525. |
| Sep. 02, 1994 | Certificate of Notice of Administrative Appeal sent out. |
| Sep. 01, 1994 | Notice of Administrative Appeal filed. |
| Aug. 02, 1994 | Final Order sent out. Hearing held December 7-10 & 22, 1994. CASE CLOSED. |
| Feb. 18, 1994 | Petitioner`s Amended Proposed Final Order w/cover ltr filed. |
| Feb. 17, 1994 | Respondent/Intervenor Proposed Final Order filed. |
| Feb. 17, 1994 | Petitioner`s Proposed Final Order filed. |
| Jan. 18, 1994 | Transcript (Volumes 1-8) filed. |
| Dec. 14, 1993 | Order Rescheduling Hearing sent out. (hearing set for 12/22/93; 8:30am; Tallahassee) |
| Dec. 07, 1993 | 2/Joint Prehearing Stipulation; Petitioner`s Request for Official Recognition; Motion In Limine; Petitioner`s Request for Prehearing Conference filed. |
| Dec. 07, 1993 | CASE STATUS: Hearing Held. |
| Nov. 24, 1993 | (Petitioner) Notice of Taking Deposition; Notice of Taking Deposition Duces Tecum filed. |
| Nov. 24, 1993 | Letter to EMH from Barbara C. Fromm (re: rescheduling of hearing) filed. |
| Nov. 23, 1993 | Petitioner`s Request for Production of Documents filed. |
| Nov. 17, 1993 | Order Granting Intervention sent out (Intervenor: Save the Manatee Club, Inc.) |
| Nov. 17, 1993 | Order Continuing and Rescheduling Formal Hearing sent out. (hearing rescheduled for 12/7-8/93; 10:00am; Tallahassee) |
| Nov. 16, 1993 | Order Granting Motion to Amend Petition sent out. |
| Nov. 15, 1993 | (The Manatee Club, Inc.) Amended Petition to Intervene filed. |
| Nov. 15, 1993 | Respondent`s Motion for Continuance filed. |
| Nov. 12, 1993 | (Save The Manatee Club, Inc.) Petition to Intervene filed. |
| Nov. 05, 1993 | (Petitioner) Amended Petition to Determine the Invalidity of An Adopted Rule; Motion to Amend Petition filed. |
| Nov. 02, 1993 | Notice of Hearing sent out. (hearing set for 11/22-23/93; 10:00am; Tallahassee) |
| Nov. 01, 1993 | Petitioner`s Response to Respondent`s First Request for Production of Documents; Notice of Serving Answers to Interrogatories; Amended Notice of Taking Deposition Duces Tecum filed. |
| Oct. 28, 1993 | Joint Stipulation filed. |
| Oct. 28, 1993 | (Petitioner) Notice of Taking Deposition filed. |
| Oct. 27, 1993 | Order Granting Motion to Expedite Discovery sent out. |
| Oct. 27, 1993 | Order Denying Motion to Bifurcate Hearing sent out. |
| Oct. 21, 1993 | Prehearing Order sent out. |
| Oct. 21, 1993 | (Respondent) Notice of Appearance; Respondent`s Notice of Service of Interrogatories; Respondent`s Request for Production of Documents filed. |
| Oct. 19, 1993 | Order of Assignment sent out. |
| Oct. 18, 1993 | Letter to Liz Cloud & Carroll Webb from Marguerite Lockard w/cc: Agency General Counsel sent out. |
| Oct. 15, 1993 | Petitioner`s Notice Of Serving First Set Of Interrogatories To Respondent; Motion To Bifurcate Hearing; Motion To Expedite Discovery; Petitioner`s Request for Production Of Documents filed. |
| Oct. 15, 1993 | Petition To Determine the Invalidity of An Adopted Rule filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 01, 1996 | Opinion | |
| Aug. 02, 1994 | DOAH Final Order | Rules challenged are not clearly erroneous/unreasonable or capricious within range of possible interpretations. Dismissed. |
