STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLARK W. HODGES, individually ) and as president of UNITED ) SPORTSMAN OF FLORIDA, INC., a )

Florida non-profit corporation, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1588RX

)

GAME AND FRESH WATER FISH ) COMMISSION, STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

This action commenced upon the filing by the Petitioner, Clark W. Hodges, of a petition to determine the invalidity of a rule. The petition was originally filed pursuant to Section 120.54, Florida Statutes (1977).

Petitioner is seeking a determination that rule 16E-76.01 of the Florida Game and Fresh Water Fish Commission constitutes an invalid exercise of delegated legislative authority. The case was assigned to the undersigned hearing officer by order entered September 7, 1978. The final bearing was scheduled to be conducted on October 6, 1978, by notice dated September 11. At the hearing the Petitioner moved to amend its petition to reflect that the subject rule had been adopted by the Respondent, and that the petition is maintained under the provisions of Section 120.56 rather than 120.54. The Respondent did not object, and Use motion was granted.

APPEARANCES

For Petitioner: Dean Bunch

Earvin, Varn, Jacobs, Odom & Kitchen Tallahassee, Florida

For Respondent: Kenneth Gilleland

Tallahassee, Florida FINDINGS OF FACT

1. The Florida Game and Fresh Water Fish Commission has the regulatory and executive powers of the State with respect to wild animal life and fresh water aquatic life. The Commission has adopted "Regulations on Type 1 Wildlife Management Areas for 1978-79 Season" as a rule. The rule has been codified into Chapter 16E-76.01, Florida Administrative Code. The rule sets quotas for permits for hunting in wildlife management areas, provides what wildlife can be hunted, sets game quotas, and hunting seasons. Seasons and specific regulations are provided for each of the various wildlife management areas. In paragraph (15)(g) the rule contains regulations specifically relating to the Ocala Wildlife

   Management Area. Paragraph 6 of the general regulations respecting the Ocala Wildlife Management Area provides the following proscription:

   
   

   Dogs prohibited in designated still hunt areas (November 11 - January 7): beginning at the intersection of SR 40 and Forest Road 88, proceeding north on the east side of Forest Road 88 to SR 314, thence proceeding easterly and southerly along the east management area boundary to its intersection with Forest Road 86, thence west on the south side of Forest Road 86, to its intersection with Forest Road 65, thence south on the east side of Forest Road 65 to its intersection with SR 40 thence west along the north side of SR 40 to its intersection with Forest

   Road 88.

   
   

   The effect of this provision is to prohibit hunting with dogs in approximately 20,000 acres of the 366,700 acre Ocala Wildlife Management Area. "Still hunting", which is hunting done by persons who find themselves a suitable place and wait for game to approach them, would be permitted within the designated area.

   
   

2. The Petitioner is an individual who has hunted within the Ocala Wildlife Management Area for many years. He enjoys hunting with dogs, and he hunts with dogs annually in the area in which dog hunting would be prohibited under the Commission's rule. The proscription would make it more difficult for him to hunt in the area. He will have difficulty controlling his dogs, and keeping them out of the protected area. Also, prohibiting dog hunting within a portion of the management area will cause dog hunters to be more concentrated in other parts of the forest, and is likely to make dog hunting more crowded and difficult in the remaining part of the management area. The Petitioner is also the President of United Sportsmen of Florida, Inc. This is an association which has 104 members. Its purpose is to encourage hunting and fishing in Florida. The association is interested in keeping hunting areas open to all kind of hunting, including dog hunting.

   
   

3. The Commission's purpose in setting aside a portion of the Ocala Wildlife Management Area for still hunting was to satisfy still hunters, who need a specific hunting area, and to provide the Commission with a basis for making comparisons as to the impact of different kinds of hunting on deer populations within the forest. There has been an almost annual reduction of the deer herd within the Ocala Wildlife Management Area during the past ten years. The Commission has isolated no particular biological or habitat change to show the reason for the reduction. The Commission desires to ascertain precisely the effect upon the herd of hunting pressure. In attempting to determine what portion of the management area could be appropriately set aside for still hunting, the Commission considered various criteria. First, a central location was desirable. If an area were set aside on the perimeter of the forest, persons who hunt in areas remote from that set aside, would not be satisfied. Secondly, it was necessary that the location be accessible, but with a relative lack of human activity surrounding it. Thirdly, it was desirable that there be a buffer zone surrounding the designated area. Fourthly, large definable boundaries were desired. Finally, for the purposes of gathering biological data, proximity to a wildlife refuge was desirable. The site selected by the Commission satisfies these criteria. It is located near to the center of the

   management area. It is accessible, but is not surrounded by residences. At least half of the designated area is surrounded by areas where hunting is not permitted. There are roads which define the area, and will place dog hunters in the position of knowing precisely when their dogs have entered the designated area. The area is adjacent to a wildlife refuge.

   
   

4. Before rule 16E-76.01 was adopted, the Commission scheduled numerous public hearings. These hearings were not of the sort specifically required by the Administrative Procedure Act, but rather followed the practice that the Commission has utilized for many years to inform its constituency of proposed hunting regulations for upcoming seasons. One such meeting was scheduled in the Ocala area. The meetings were advertised by news releases which were published in local newspapers and on radio stations. Nothing in the news releases was such as to confuse the public as to additional rights that they may have had to public hearings under the provisions of the Administrative Procedure Act. No evidence was offered from which it could be concluded that anything in the hearing itself was such as to cause such confusion. The hearings themselves actually facilitated adoption of the rule by providing the Commission with input from the hunting public.

   
   

5. The Commission adopted an economic impact statement to support the rule. The statement reflects that designating the still hunt areas will not cause any additional cost to the Commission. It also reflects that the areas will provide a hunting area for a growing segment of Florida sportsmen who prefer to hunt without dogs. The statement does not contain any detailed explanation of the cost setting aside a still hunt area will impose upon dog hunters. No evidence was offered at the hearing to establish that the economic impacts of setting aside the still hunt area are other than reflected in the Commission's statement. In fact, it appears that the area will not cause any additional expense to the Commission. It further appears that the only cost that the setting aside of a still hunt area will impose upon dog hunters is potential aggravation.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to this proceeding and over the subject matter. Section 120.56, Florida Statutes (1977).

   
   

7. The Florida Game and Fresh Water Fish Commission has broad rulemaking authority to establish and enforce regulations pertaining to hunting, fishing, and other outdoor recreational use by the public of wildlife management areas. Article IV, Section 9, Constitution of the State of Florida; Chapter 372, Florida Statutes (1977). Setting aside a location in which dog hunting is prohibited within a wildlife management area is clearly within the Commission's broad range of discretion.

   
   

8. The Petitioner has argued that the rule is not supported by an adequate economic impact statement as required by the provisions of Section 120.54(2)(a), Florida Statutes (1977). This contention is not supported by the evidence. The Commission has adequately assessed the economic impacts of setting aside an area for still hunting within the Ocala Wildlife Management Area, and has addressed it in its statement. No evidence was offered to establish that the statement is other than accurate, or that it was prepared in other than an appropriate manner.

9. Petitioner has contended that the rule is invalid because it was promulgated as a portion of a rule which contains more than one subject matter in violation of Section 120.54(a) Florida Statutes (1977). While it may have been desirable to establish hunting regulations by separate rules respecting each management area, the Respondent's rule does relate solely to hunting within wildlife management areas for the 1978-79 hunting season. This is a single, albeit broad, subject matter. Petitioner's contention is without merit.

   
   

10. Petitioner has contended that the Commission's practice in holding public hearings for the purpose of obtaining public input on the proposed rule confused the public as to hearing rights that existed under Section 120.54, Florida Statutes (1977). The Commission's news release does not, on its face, contain any information which would confuse the public, and no evidence was offered to establish that anyone was actually confused. This contention is without merit.

    
    

11. Petitioner contends that the rule is invalid because it is arbitrary and without any basis in fact. This contention is without merit. The Commission has a broad range of discretion in setting hunting seasons, and establishing hunting boundaries. Its designation of the specific portion of the Ocala Wildlife Management Area for still hunting could be argued. There is also room for argument respecting the need for any still hunt area whatever. The Commission does have, however, good and valid reasons for establishing a still hunt area, and the selection of the location was done on the basis of reasonable criteria.

FINAL ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby,

ORDERED:

The relief requested by the Petitioner is hereby denied, and the petition to determine the invalidity of a rule is hereby dismissed.

DONE and ORDERED this 25th day of October, 1978, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Dean Bunch, Esquire

P. O. Box 1170 Tallahassee, Florida 32302

Kenneth Gilleland, General Counsel

Florida Game & Fresh Water Fish Commission 620 South Meridian Street

Tallahassee, Florida 32304

Ms. Liz Cloud Department of State Room 1802

The Capitol

Tallahassee, Florida 32304

Carroll Webb, Executive Director Administrative Procedures Committee Room 120 Holland Building Tallahassee, Florida 32304

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLARK W. HODGES, individually ) and as president of UNITED ) SPORTSMAN OF FLORIDA, INC., a )

Florida non-profit corporation, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1588RX

)

GAME AND FRESH WATER FISH ) COMMISSION, STATE OF FLORIDA, )

)

Respondent. )

)

APPENDIX TO FINAL ORDER, RULINGS

IN ACCORDANCE WITH FLORIDA STATUTES SECTION 120.59(2)

The Petitioner has submitted Proposed Findings of Fact and Conclusions of Law. Rulings upon the proposed findings and conclusions are set out herein in accordance with Section 120.59(2) Florida Statutes (1977). Petitioner's Proposed Findings of Fact numbered 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, and

14 have been substantially adopted in the Findings of Fact set out in the Final Order to the extent that they are relevant. Competent substantial evidence would support each of the proposed findings, and they are hereby adopted. Paragraph 7 is adopted, except that Major King was also concerned with gathering data respecting the effect on the deer herd within the Ocala Wildlife Management Area of different kinds of hunting. Paragraphs 15 and 16 of the Petitioner's

Proposed Conclusions of Law are hereby adopted. Paragraphs 17, 18, 19, and 20 of the Proposed Conclusions of Law are hereby rejected for the reasons set out in the Final Order.

ENTERED this 25th day of October, 1978, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Dean Bunch, Esquire Post Office Box 1170

Tallahassee, Florida 32302

Kenneth Gilleland General Counsel

Florida Game & Fresh Water Fish Commission

620 South Meridian Street Tallahassee, Florida 32304

Carroll Webb, Executive Director Administrative Procedures Committee Room 120 Holland Building Tallahassee, Florida 32304

Ms. Liz Cloud Department of State The Capitol, Room 1802

Tallahassee, Florida 32304

Docket for Case No: 78-001588RX

Orders for Case No: 78-001588RX