STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA AUDUBON SOCIETY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-225RE

) FLORIDA GAME AND FRESH WATER ) FISH COMMISSION, )

)

Respondent. )

)

FINAL ORDER

This matter came on for final hearing on February 28, 1978, in Tallahassee, Florida, pursuant to proper notice. This matter arose under a petition for the administrative determination of the validity of Emergency Rule No. 16EER-78-2 of the Florida Game and Fresh Water Fish Commission, pursuant to Section 120.56, Florida Statutes.

APPEARANCES

For Petitioner: David Gluckman, Esquire

5305 Isabelle Drive

Tallahassee, Florida 32301

For Respondent: G. Kenneth Gilleland, General Counsel

Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, Florida 32304

1. The parties have stipulated that the Petitioner, Florida Audubon Society, has standing to pursue this action. They have further stipulated that the emergency rule in question was filed with the Secretary of State and became effective on January 6, 1978, and that notice of the emergency rule was published in the Florida Administrative Weekly, Volume 4, No. 2 on January 13, 1978. The emergency rule was neither noticed for adoption in the Florida Administrative Weekly, nor placed on the agenda of the Florida Game and Fresh Water Fish Commission prior to its adoption. The only publication in writing by the Florida Game and Fresh Water Fish Commission of the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used in the adoption of the emergency rules was fair under the circumstances is found in the January 13, 1978, issue of the Florida Administrative Weekly.

   
   

2. Florida has no closed season on the trapping of bobcats. However, as a practical matter, all trapping is done during the cold winter months. The season in Florida for the trapping of river otter is from December 1 to March 1.

   
   

3. The emergency rule was promulgated in response to a requirement by the United States Endangered Species Scientific Authority. That Authority placed a

   quota on the number of bobcat pelts and river otter pelts taken in the State of Florida which would be approved for international export during the 1977-1978 season. To facilitate enforcement of this quota, the Endangered Species Scientific Authority required that Florida implement a tagging system to account for pelts. The emergency rule simply provides that identification tags provided by the Florida Game and Fresh Water Fish Commission must be affixed to each river otter and bobcat pelt and provides for the numbering, coding, and distribution of the tags.

   
   

4. By a letter dated November 23, 1977, the United States Endangered Species Scientific Authority notified the Florida Game and Fresh Water Fish Commission that the Authority would approve the international export of tagged bobcat and river otter pelts taken in the State of Florida during the 1977-1978 season. That letter set out in general detail the requirements for the placing of the identification tags on pelts falling within the export quotas. It is apparent from the evidence presented that the Florida Game and Fresh Water Fish Commission had some notice prior to the November 23, 1977, letter of the impending quota and tagging requirements. Whatever prior notice the Commission had, the November 23, 1977, letter put them on notice of the requirements.

   
   

5. The evidence indicated that trappers can get a higher price for their pelts in the international market than they can in the domestic market and, therefore, if they are not able to sell their pelts on the international market, they will suffer an economic loss. Testimony was presented to show that without a tagging program, pelts would be taken from Florida into other states and sold in the international market under those states' quota and tagging systems with a resulting economic loss to Florida. No evidence was presented to show the relative extent of any alleged economic loss to the trapping industry in Florida or to the economy of Florida as a whole. Therefore, it would be speculative for the Hearing Officer to find that any such economic loss would be serious.

   
   

6. Section 120.54(9), Florida Statutes, provides that "(i)f an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger by any procedure fair under the circumstances and necessary to protect the public interest Section 120.54(9)(a)3, Florida Statutes, further requires that in the adoption of an emergency rule, the agency must publish :... in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances." It is clear from the facts in this case that neither the public health or safety is addressed by the emergency rule which is the subject of this action. It may be argued that the public welfare is addressed by the subject matter of the emergency rule.

   
   

7. The language of the statute which is most critical in this cause is that which requires, for the adoption of an emergency rule, that an agency must find an immediate danger. While it is clear that the Florida Game and Fresh Water Fish Commission had a sincere and proper interest in adopting a program to conform to the requirements of the Federal export quota system, the evidence does not establish that adherence to the normal rule making procedures would have precluded the timely adoption of the tagging program. The evidence shows that the trapping for pelts is done during the cold months. The evidence does not show, however, when the pelts are marketed or when they must be tagged to fall within the export quota system. Therefore the possibility is not reasonably precluded that the timeliness of the normal rule making process would have been sufficient. It is noted that if that process had begun in late

   November or early December, that in the normal course of rule adoption the process could have been concluded in February. Thus, the evidence does not establish that degree of urgency or immediacy necessary to warrant implementation of the emergency rule process.

   
   

8. There is a second aspect to the application of the phrase "immediate danger" to the emergency rule. An emergency rule may be adopted only when an agency finds "an immediate danger" to the public health, safety, or welfare. Neither the public health or safety is involved here. While, arguably, the public welfare may be involved, the evidence does not show that there is any danger to that welfare of a sort requiring an emergency rule. In fact, there has been no showing that a true danger exists. It is clear from the evidence that failure of the trappers in the State of Florida to sell bobcat and otter pelts in the international market, could cause them some economic loss. That any such economic loss would be significant enough to pose a danger to the economic existence of those trappers is not supported by the evidence. Similarly, the evidence fails to support a finding that such economic loss would pose a danger to the economy of Florida or, in any significant way, adversely affect the economy of Florida.

   
   

9. Finally, it is noted that an agency is specifically required to publish in writing at the time of, or prior to, the adoption of emergency rules, the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare, and its reasons for concluding that the procedure used is fair under the circumstances. 120.54(9)(a)3, Florida Statutes. In this case, the only publication in writing of the Florida Game and Fresh Water Fish Commission of the specific facts and reasons for finding an immediate danger and concluding that the procedure used was fair was that set forth in the January 13, 1978, issue of the Florida Administrative Weekly. This publication was one week after the agency action adopting the emergency rule. Therefore, the Commission has failed to follow the statutory requirements for the promulgation of an emergency rule.

Therefore, based upon the foregoing findings of fact and conclusions of law, it is hereby

ORDERED that Emergency Rule 16EER-78-2 of the Florida Game and Fresh Water Fish Commission is an invalid exercise of delegated legislative authority.

DONE and ORDERED this 5 day of April, 1978, in Tallahassee, Florida.

CHRIS H. BENTLEY

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

David Gluckman, Esquire 5305 Isabelle Drive

Tallahassee, Florida 32301

G. Kenneth Gilleland General Counsel

Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, Florida 32304

Docket for Case No: 78-000225RE

Orders for Case No: 78-000225RE