STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTHEASTERN FISHERIES ASSOCIATION, ) INC.; OSCAR THOMPSON; RICHARD ) RITTENHOUSE; RON BALL and FABIAN ) BOTHWELL, )

)

Petitioners, )

)

vs. )

)

MARINE FISHERIES COMMISSION, )

) Case No. 97-4418RP

Respondent, )

)

and )

)

CENTER FOR MARINE CONSERVATION, )

)

Intervenor. )

)

FINAL ORDER

On March 3, 1998, a formal administrative hearing was held in Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sharon A. DiMuro, Esquire

Granger, Santry, Mitchell and Heath, P.A. Post Office Box 14129

Tallahassee, Florida 32317-4129

For Respondent: Jonathan A. Glogau

Assistant Attorney General The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Intervenor: David Guest, Esquire

Post Office Box 1329 Tallahassee, Florida 32302-1329

STATEMENT OF THE ISSUE

Whether proposed rules promulgated by the Florida Marine Fisheries Commission are an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

The Florida Marine Fisheries Commission has proposed rules related to the use of bycatch reduction devices (BRD) in otter trawls, a type of net used in shrimp fishing.

The Petitioners have challenged language in the rule that allegedly makes illegal the possession of a shrimp net without an installed bycatch reduction device. The Petitioners assert that the rules prohibit the possession of non-BRD-equipped otter trawl nets, and that such prohibition is an invalid exercise of delegated legislative authority.

In a prehearing statement filed one day prior to the formal hearing in this case, the Petitioners sought to raise issues in addition to those which had been cited in the original, first amended or second amended petitions filed in this case. The Respondents objected to the late addition of the new grounds.

The objection is sustained. As set forth in the Order Granting Motion to Amend dated February 17, 1998, the Second Amended Petition for Hearing filed in this case sets forth the matters to be addressed.

At the hearing, the Petitioners presented the testimony of two witnesses and had exhibits numbered 1-2 and 4-9 admitted.

The Respondent presented the testimony of two witnesses and had exhibits numbered 1-5 admitted into evidence. The Intervenor presented no additional testimony or exhibits. Two documents were admitted as Administrative Law Judge exhibits.

A hearing transcript was filed. The parties filed proposed orders.

FINDINGS OF FACT

1. The Florida Marine Fisheries Commission (MFC) has proposed rules requiring use of bycatch reduction devices (BRD.) The proposed rules are applicable where trawling for shrimp is permitted in specified Florida waters within the Gulf of Mexico. The notice of proposed rulemaking was published in Volume 23, Number 30, Florida Administrative Weekly, July 25, 1997.

2. The Petitioners have challenged the proposed rules, specifically the provisions prohibiting possession of an otter trawl (a type of trawling net) that is rigged for fishing aboard any vessel without having a required BRD installed.

3. All parties have standing to participate in this proceeding.

4. The federal government requires BRDs in the Florida waters not impacted by the proposed rules at issue in this proceeding. The federal rules are intended to protect red snapper in the Gulf and weakfish and Spanish mackerel in the Atlantic Ocean.

5. The MFC rules are intended to offer broader protection than federal rules, and are intended to protect the Gulf ecosystem rather than specific species of organisms.

6. Shrimp trawls operating in the Gulf of Mexico harvest approximately 2.4 pounds of non-shrimp species for every pound of shrimp harvested. The MFC goal is to reduce the level of bycatch harvested by 50 percent.

7. The proposed rules do not cover the “Big Bend grass beds” where trawling for shrimp is already prohibited. The proposed rules do not cover Florida’s northeast coast where other BRD rules are in effect.

8. The Petitioners challenge the same provision in three separate rules. Proposed Rule 46-31.010(4), Florida Administrative Code, provides:

   In the Northwest Region, no person harvesting shrimp as a food shrimp producer shall operate or fish any otter trawl, or possess any otter trawl that is rigged for fishing aboard any vessel, which otter trawl does not have a bycatch reduction device (BRD) installed therein meeting the requirements of Rule 46-31.045. (emphasis supplied)

9. Proposed Rule 46-31.012(4), Florida Administrative Code, provides:

   In the Southwest Region, no person harvesting shrimp as a food shrimp producer shall operate or fish any otter trawl, or possess any otter trawl that is rigged for fishing aboard any vessel, which otter trawl does not have a bycatch reduction device (BRD) installed therein meeting the requirements of Rule 46-31.045. (emphasis supplied)

10. Proposed Rule 46-31.013(2), Florida Administrative Code, provides:

    In all waters of the Southeast Region outside nearshore and inshore Florida waters, no person harvesting shrimp as a food shrimp producer shall operate or fish any otter trawl, or possess any otter trawl that is rigged for fishing aboard any vessel, which otter trawl does not have a bycatch reduction device (BRD) installed therein meeting the requirements of Rule 46-31.045. (emphasis supplied)

11. On a shrimping boat, “otter trawl” nets are suspended from the ends of “outriggers” attached to the sides of the boat. When in use, the nets are dropped from the outriggers into the water. Once in the water, the nets are dragged along behind the boat, collecting shrimp and other marine species. The non-shrimp marine species collected are referred to as the “bycatch.”

12. The phrase “rigged for fishing” means that the nets are shackled to the outriggers and are in a condition ready to fish, but are not yet in the water or being dragged along the bottom of the water.

13. Nets attached to the outriggers of a shrimping boat and ready to be dropped into the water are rigged for fishing.

14. Nets lying on the deck of the boat which are not attached to the outriggers are not rigged for fishing.

15. It takes no more than a few minutes to attach the nets to the outriggers.

16. The phrase being challenged in the proposed rules essentially prohibits a shrimp boat operator from suspending the nets above the water prior to dropping the nets into the water without having the BRD installed in the nets.

17. Although there is no credible evidence indicating the reason shrimp boats leave the docks with nets in a position rigged for fishing, many apparently do so.

18. There is no credible evidence suggesting any reason nets would be suspended from the outriggers other than in anticipation of initiation of shrimp harvest activity.

19. There is no credible evidence that any impact would result from requiring that non-BRD equipped nets remain unrigged for fishing until outside of waters affected by the proposed rule.

20. Use of the BRDs results in a substantial reduction of bycatch. There is no evidence that use of the BRDs results in any reduction in shrimp harvest.

21. The evidence establishes that the reduction in bycatch will contribute towards the preservation of renewable marine fishery resources and will benefit the continuing health of the resources.

22. There is no evidence that the proposed rules are unfair or inequitable to any persons including shrimp boat operators.

23. The Petitioners assert that because the penalty for violations of the rules may eventually result in incarceration,

    the cited phrase creates a criminal presumption that a shrimp boat operator with non-BRD equipped nets is presumed to be fishing without a BRD. The evidence fails to support the assertion.

24. There is no presumption being created by the proposed rule. The challenged rules are gear specifications for shrimp trawls, and are clearly within the realm of the MFC's rulemaking authority.

25. The cited phrase does not prohibit the mere possession of a net without a BRD installed. The cited phrase prohibits suspension of a net from an outrigger without having a BRD installed in the net. There is no reason, other than in anticipation of immediately dropping the net into the water, that a trawl net must be suspended from an outrigger.

26. The Petitioners assert that the rule would impact shrimp boat operators who are passing through Florida waters traveling to waters outside the areas impacted by the proposed rules.

27. There is no evidence that the proposed rules would interfere with fishing operations. In the example of boat operators fishing outside Florida waters and using non-BRD equipped nets, compliance with the rule requires only that the nets remain unrigged for fishing while passing through Florida waters.

28. The Petitioners assert that there are instances due to emergency, weather or otherwise, that may result in a shrimp boat operator working waters outside those covered by the proposed rules, raising non-BRD equipped nets and moving through into Florida jurisdictional waters. In such an event, the Petitioners assert that an operator could be subject to application of the rule even though the non-BRD equipped nets, still rigged for fishing, were not used in Florida waters.

29. The Florida Marine Patrol will be responsible for enforcement of the proposed rules. Obviously, a Marine Patrol officer’s judgment will be required to determine the existence of an emergency and whether any official action is appropriate. A shrimp boat officer cited for violation of the proposed rules is entitled to challenge the application of the rule.

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.56(2), Florida Statutes.

31. The burden is on the agency to prove that as to the objections raised by the challenger, the proposed rule is not an invalid exercise of delegated legislative authority. Section 120.56(2)(a), Florida Statutes. In this case the burden has been met.

32. In relevant part, Section 120.52(8), Florida Statutes, provides as follows:

    (8) "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 of the following applies:

    * * *

    1. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;

    2. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;

    
    

    * * *

    
    

    (e) The rule is arbitrary or capricious;

    
    

    A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement, interpret, or make specific the particular powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than the particular powers and duties conferred by the same statute.

33. As set forth in the prehearing statement filed by the parties, the Petitioners assert that the proposed rules are an invalid exercise of delegated legislative authority because:

    1. it exceeds the agency’s grant of delegated legislative authority contained in

       s. 370.027(2), F. S., the law cited as the specific authority, by creating a criminal

       evidentiary presumption for purposes of ease of enforcement without a grant of specific authority delegated by the legislature, thereby also exceeding, modifying, or contravening the specific laws cited as implemented in s. 370.025 and s.370.027, F.

       S.; and

       
       

       b. it is arbitrary and capricious, i.e. lacking in logic or supporting fact.

       
       

34. The evidence establishes that the proposed rules do not exceed, modify, or contravene the legal authority cited by the agency. The proposed rules are within the authority delegated to the MFC by the Legislature. The evidence fails to establish that a criminal evidentiary presumption is being created.

35. Section 370.027, Florida Statutes, clearly provides the MFC with the authority to implement, by gear specifications and prohibitions, policy specifically adopted by the Legislature in Section 370.025, Florida Statutes.

    Section 370.027, Florida Statutes, provides:

    
    

    Rulemaking authority with respect to marine life.--

    1. Pursuant to the policy and standards in

       s. 370.025, the Marine Fisheries Commission is delegated full rulemaking authority over marine life, with the exception of endangered species, subject to final approval by the Governor and Cabinet sitting as the Board of Trustees of the Internal Improvement Trust Fund, in the areas of concern herein specified. . . .

    2. Exclusive rulemaking authority in the following areas relating to marine life, with the exception of endangered species, is vested in the commission; any conflicting authority of any division or bureau of the department or any other agency of state government is withdrawn as of the effective date of the rule proposed by the commission

       and approved by the Governor and Cabinet, and the inconsistent rule, or the inconsistent part thereof, is superseded to the extent of the inconsistency:

       
       

       1. Gear specifications;

       2. Prohibited gear;

       3. Bag limits;

       4. Size limits;

       5. Species that may not be sold;

       6. Protected species;

       7. Closed areas, except for public health purposes;

       8. Quality control, except for oysters, clams, mussels, and crabs;

       9. Seasons; and

       10. Special considerations relating to eggbearing females. (emphasis supplied.)

    
    

36. Section 370.027, Florida Statutes, requires that the rules adopted by the agency reflect the policy and standards set forth in Section 370.025, Florida Statutes. Section 370.025 provides:

    
    

    Marine fisheries; policy and standards.—

    1. The Legislature hereby declares the policy of the state to be management and preservation of its renewable marine fishery resources, based upon the best available information, emphasizing protection and enhancement of the marine and estuarine environment in such a manner as to provide for optimum sustained benefits and use to all the people of this state for present and future generations.

    2. All rules relating to saltwater fisheries adopted by the department pursuant to this chapter or adopted by the Marine Fisheries Commission and approved by the Governor and Cabinet as the Board of Trustees of the Internal Improvement Trust Fund shall be consistent with the following standards:

       1. The paramount concern of conservation and management measures shall be the

          continuing health and abundance of the marine fisheries resources of this state.

       2. Conservation and management measures shall be based upon the best information available, including biological, sociological, economic, and other information deemed relevant by the commission.

       3. Conservation and management measures shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis.

       4. When possible and practicable, stocks of fish shall be managed as a biological unit.

       5. Conservation and management measures shall assure proper quality control of marine resources that enter commerce.

       6. State marine fishery management plans shall be developed to implement management of important marine fishery resources.

       7. 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.

       8. Federal fishery management plans and fishery management plans of other states or interstate commissions should be considered when developing state marine fishery management plans. Inconsistencies should be avoided unless it is determined that it is in the best interest of the fisheries or residents of this state to be inconsistent.

37. The Petitioners argue that the prohibiting possession of non-BRD equipped nets creates a presumption that such nets will be used to take shrimp in restricted waters in violation of the rule. The rule creates no presumption. The rule does not prohibit possession of non-BRD equipped otter trawls. The rule prohibits the possession of such nets in a rigged condition. There is no credible reason otter trawls nets must be transported

    in a condition rigged for fishing.

    
    

38. The Petitioners correctly argue that nets which are not in the water create no bycatch. The MFC acknowledges that prohibiting possession of non-BRD equipped otter trawls rigged for fishing will assist in enforcement of the restriction against fishing with such trawl nets.

39. The Petitioners assert that the agency has no authority to adopt rules which simply aid in enforcement, and in support, cite the Final Order in Organized Fishermen of Florida v. Marine Fisheries Commission, DOAH Case No. 95-0269RP, 675 So. 2d 933 (Fla. 1st DCA 1996) as requiring that these rules be determined to be invalid.

40. Organized Fishermen addressed issues raised by the implementation by the MFC of Florida Constitution Article X, Section 16, known as the "Net Ban Constitutional Amendment." In that case, the proposed rules of the MFC intended to prohibit mere possession of certain types of fishing nets were invalidated.

41. In the instant case, the issue is not mere possession. There is no prohibition against the mere possession of an otter trawl net. The rule requires simply that any otter trawl net which is rigged for fishing be equipped with a BRD when in Florida waters.

42. In this case, the proposed rules relate specifically to gear specifications and require the installation of a bycatch

    reduction device in any otter trawl net rigged for fishing in specific waters. The proposed rules prohibit a shrimp boat operator in affected waters from rigging nets for fishing which are not equipped with the devices. There is no credible evidence as to any reason a shrimp boat operator would have nets rigged for fishing other than to harvest shrimp.

43. Since no bycatch is taken when a net is not in the water, the Petitioners assert that the prohibition on non-BRD equipped nets which are rigged for fishing is arbitrary and capricious.

44. An arbitrary or capricious action is one that is not supported by facts or logic or that is despotic. Agrico v. DER,

    365 So. 2d 759 (Fla. 1st DCA 1978). In this case, the proposed rule requirement is not arbitrary or capricious. It is, in fact, logical to assume that otter trawl nets which are rigged for fishing can be immediately used to harvest shrimp. There is no other reason to rig a net for fishing other than in anticipation of fishing.

45. As to shrimp boat operators harvesting from outside Florida waters and outside the applicable area of this rule, the effect of the rule is merely to require that nets be kept in an unrigged condition until the operator reaches the harvesting ground.

46. Rigging an otter trawl for fishing takes no more than five minutes. The requirement that nets which do not contain a

BRD remain unrigged in applicable waters is not arbitrary or capricious.

FINAL ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, the Second Amended Petition to Invalidate Proposed Agency Rules is DISMISSED.

DONE AND ORDERED this 8th day of May, 1998, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEMBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1998.

COPIES FURNISHED:

Sharon A. DiMuro, Esquire

Granger, Santry, Mitchell & Heath, P.A. Post Office Box 14129

Tallahassee, Florida 32317-4129

Jonathan A. Glogau Assistant General Counsel Office of Attorney General The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

David Guest, Esquire Earthjustice Legal Defense Fund Post Office Box 1329 Tallahassee, Florida 32302-1329

Russell S. Nelson, Executive Director Marine Fisheries Commission

Suite 106

2540 Executive Center Circle, West Tallahassee, Florida 32301

Charles Shelfer, General Counsel Marine Fisheries Commission

2540 Executive Center Circle, West Tallahassee, Florida 32301

Carroll Webb, Executive Director

Joint Administrative Procedures Committee Holland Building, Room 120

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code The Elliott Building Tallahassee, Florida 32399-0250

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 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.

Docket for Case No: 97-004418RP

Orders for Case No: 97-004418RP