STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONCERNED SHRIMPERS OF AMERICA, ) INC., FLORIDA CHAPTER, )

)

Petitioner, )

)

vs. ) CASE No. 89-4220RP

)

FLORIDA MARINE FISHERIES )

COMMISSION, )

)

Respondent, )

) and CENTER FOR MARINE CONVERSATION, ) FLORIDA LEAGUE OF ANGLERS; )

FLORIDA AUDUBON SOCIETY; and )

GREENPEACE-U.S.A., )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by it duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on September 25 and 26, 1989, in Tallahassee, Florida.

APPEARANCES

For Petitioner: John D. C. Newton, II, Esquire

Lu Ann Snider, Esquire Carson & Linn, P.A.

1711-D Mahan Drive Tallahassee, Florida 32308

For Respondent: Jonathan A. Glogau, Esquire

David G. Guest, Esquire Ronald G. Stowers, Esquire Assistant Attorneys General 111-36 South Magnolia Drive Tallahassee, Florida 32301

For Intervenors: David Gluckman, Esquire

Gluckman & Gluckman Route 5, Box 3965

Tallahassee, Florida 32301 STATEMENT OF THE ISSUES

At issue in this proceeding is whether the respondent's, Florida Marine Fisheries Commission's, proposed rule 46-31.002 is an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

This is a rule challenge brought under the provisions of Section 120.54(4), Florida Statutes, to challenge the validity of respondent's proposed rule 46-

31.002. As proposed, the rule would prohibit the use of any trawl (net) in state waters that does not have a qualified turtle excluder device (TED) installed therein, as well as the possession aboard any vessel in state waters of a trawl rigged for fishing that does not have a qualified TED installed in it. Excepted from the rule, under specified conditions, are test nets, roller frame trawls, trawls used for experimentation purposes authorized by the National Marine Fisheries Service, and trawls operated on the inside waters of the state.

The gravamen of petitioner's challenge to the proposed rule is its contention that respondent materially failed to follow the applicable rulemaking procedures set forth in Section 120.54, Florida Statutes; that respondent exceeded its grant of rulemaking authority; and that the proposed rule contravenes the specific provisions of law implemented.

At hearing, the petitioner called as witnesses: Marvin Hickman, accepted as an expert in shrimp fishing; Marion Jones, Jr., accepted as an expert in shrimp fishing; Billy Burbank, accepted as an expert in net making; Robert Lee Maril, Ph.D., accepted as an expert in maritime sociology; Steve Thomas, Ph.D., accepted as an expert in maritime anthropology; and, Frederick W. Bell, Ph.D., accepted as an expert in natural resource economics, with emphasis on fishery economics. Respondent called as witnesses: Marvin Hickman; Barbara Schroeder, accepted as an expert in sea turtle recovery and conservation; Robert M. Palmer, accepted as an expert in economics; and, Russell S. Nelson, Ph.D., accepted as an expert in fisheries biology and management. Intervenors called Jan Johnson as a witness

At hearing, the parties had marked for identification joint exhibits 1, 3, 6-8, 10-16, 18, 20-37, 40-76, and 78-101. Of these exhibits, joint exhibits 25,

1. , 41, 79, 83, 84, and 91-101, were received into evidence; joint exhibits

   6-8, 10-16, 18, 20-24, 26-28, 32, 34-37, 40, 43-67, 69-78, 80-82, 85, 89, and 90

   were offered and received into evidence to demonstrate what respondent or its staff considered in the promulgation of the proposed rule and not for their truth; and joint exhibits 1, 3, 12, 33, 42, 68, and 86-88 were not moved into evidence.

   
   

   The transcript of hearing was filed October 23, 1989, and the parties were granted leave until November 20, 1989, to file proposed findings of fact.

   Accordingly, the parties waived the requirement that a final order be rendered within thirty days of the date the transcript was filed. Rule 221-6.031(2), Florida Administrative Code. The parties' proposed findings are addressed in the appendix to this final order.

   
   

   FINDINGS OF FACT

   
   

   Background

   
   

   1. On July 7, 1989, respondent, Florida Marine Fisheries Commission (Commission), duly noticed proposed rule 46-31.002 in volume 15, number 27, of the Florida Administrative Weekly. The notice also advised all interested persons that a public hearing would be held on August 3, 1989, before the Commission on the proposed rule.

   2. On August 3-4, 1989, the Commission held a public hearing at which time it considered the proposed rule. During the course of this hearing, the Commission approved the proposed rule with certain changes. These changes, as well as the complete rule text, were duly noticed in volume 15, number 35, of the Florida Administrative Weekly on September 1, 1989.

      
      

   3. Petitioner, Concerned Shrimpers of America, Inc., Florida Chapter, by petition filed with the Division of Administrative Hearings on July 28, 1989, timely challenged the proposed rule pursuant to Section 120.54, Florida Statutes, as an invalid exercise of delegated legislative authority. Petitioner and Intervenors

      
      

   4. Petitioner has, pursuant to stipulation of the parties, standing to contest the validity of the proposed rule.

      
      

   5. Intervenor, Center for Marine Conservation, Inc., is, pursuant to stipulation of the parties:

      
      

      ... a non profit environmental protection and education organization

      incorporated under the laws of the District of Columbia and authorized to do business in Florida. It has in excess of 7,000 members throughout the state. Its major purpose is the protection of marine wildlife for this and future generations, including sea turtles, for the benefit of the species, the corporation and its members... Members of the organization observe, study and photograph sea turtles for educational and recreational purposes and their demise or decline from the failure to require the use of TED's will severely hamper and diminish these activities to their detriment. The organization and its members are further concerned with the total marine ecosystem that could be severely damaged should top order predators such as the sea turtle become extinct or their populations be severely diminished....

      
      

   6. Intervenor, Florida Audubon Society, is, pursuant to stipulation of the parties:

      
      

      ... a non profit Florida corporation

      with over 35,000 members within the state whose main purpose is to protect Florida's natural outdoor environment and wildlife, including the marine environment and sea turtles, for the benefit of the organization and its members. The members of the organization observe, study and photograph sea turtles for educational and recreational purposes and their demise or decline from the failure to require the use of TED's will severely hamper and diminish these activities

      to their detriment. The organization and its members are further concerned with the total marine ecosystem that could be severely damaged should top order predators such as the sea turtle become extinct or their populations be severely diminished....

      
      

   7. Intervenor, Greenpeace-U.S.A., is, pursuant to stipulation of the parties:

      
      

      ...headquartered in Washington, D.C., [and] is the United States office of Greenpeace, an international environmental organization with offices in over twenty

      countries and approximately two and one-half million supporters worldwide. Greenpeace-

      U.S.A has more than one million supporters in this country, including over 60,000 who live in the State of Florida. Greenpeace-

      U.S.A. has two offices in Florida, located in Ft. Lauderdale and Jacksonville Beach....

      On behalf of its members and threatened and endangered species, Greenpeace-U.S.A.

      places special emphasis on the preservation of marine species and the marine environment and has worked extensively for the protection of threatened and endangered marine animals. The sea turtle campaign is one of the principal campaigns of the organization....

      For the past five years, Greenpeace-U.S.A. has operated the Beach Patrol Project.

      The Project seeks to maintain protected nesting areas for threatened and endangered sea turtles in the coastal areas of the southern United States. Based in the Jacksonville Beach office, the Project places approximately 250 Greenpeace-U.S.A. volunteers on Florida beaches every year.

      The Beach Patrol Project has also

      contributed to the conservation effort in its documentation and identification of species of sea turtles which have been stranded and washed ashore....

      
      

   8. Intervenor, Florida League of Anglers, Inc., is a party of unknown capacity, origin, or interest. No evidence was presented on its behalf to demonstrate that its substantial interests would be affected by the proposed rule.

      
      

      The proposed rule

      
      

   9. The proposed rule at issue in this case prohibits the use of any trawl (net) in state waters that does not have a qualified turtle excluder device (TED) installed therein, as well as the possession aboard any vessel in state waters of a trawl rigged for fishing that does not have a qualified TED installed in it. Excepted from the rule, under specified conditions, are test

      nets, roller frame trawls, trawls used for experimentation purposes authorized by the National Marine Fisheries Service (NMFS), and trawls operated on the inside waters of the state.

      
      

   10. The purpose of the proposed rule is to protect sea turtles from extinction, primarily the endangered Kemp's ridley turtle, by reducing the incidental catch and mortality of sea turtles in shrimp trawls. 1/

       
       

   11. Currently, five species of sea turtles occur in state waters. These species are the Atlantic green turtle (Chelonia mydas mydas); Atlantic hawksbill turtle (Erelmochelys imbricata imbricata); Atlanta ridley turtle (Lepidochelys kempi), also known as the Kemp's ridley; Leatherback turtle (Dermochelys coriacea); and Loggerhead sea turtle (Caretta caretta).

       
       

   12. Persuasive proof demonstrates that the incidental catch and drowning of sea turtles by shrimp trawls is a significant source of mortality for the species, and that absent the elimination of that mortality factor the green turtle, hawksbill turtle, Kemp's ridley turtle, leatherback turtle, and loggerhead turtle are threatened with extinction. 2/

       
       

   13. Use of the TEDs mandated by the proposed rule will substantially reduce the incidental capture of sea turtles by shrimp trawls, and thereby eliminate shrimp trawls as a significant source of mortality for the species. Currently, the proposed rule permits the use of any one of six TEDs approved by the NMFS, which have demonstrated a turtle exclusion rate of at least 97 percent. The rule also permits the use of any TED that may subsequently be approved by the NMFS as demonstrating a turtle exclusion rate of at least 97 percent. 3/

       
       

       The rule challenge

       
       

   14. In challenging the proposed rule, petitioner does not question the need for the rule to protect the sea turtles from extinction, nor the effectiveness of the TED to eliminate a significant threat to the survival of the species. Rather, petitioner contends that: (1) the Commission exceeded its grant of rulemaking authority, which will be discussed in the conclusions of law, infra; (2) that the Commission materially failed to follow the applicable rulemaking procedures set forth in section 120.54 by failing to notify the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office, and the Division of Economic Development of the Department of Commerce at least 21 days prior to the public hearing on the proposed rule, as well as by failing to prepare an adequate economic impact statement; and, (3) that the proposed rule contravenes the specific provisions of law implemented because the Commission failed to consider the "best information available" concerning the sociological implications of the proposed rule on shrimp fisherman, and because the proposed rule is inconsistent with the federal regulations regarding the mandatory use of TEDs.

       
       

       Notice regrading the impact of the proposed rule on small business

       
       

   15. Section 120.54(3)(b), Florida Statutes, mandates that where, as here, the proposed rule will affect small business, that "the agency shall send written notice of such rule to the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office, and the Division of Economic Development of the Department of Commerce not less than 21 days prior to the intended action." Here, the proof demonstrates that the Commission held its

       public hearing on the proposed rule, and approved it, on August 3-4, 1989, but that it did not provide written notice to the previously mentioned agencies until July 21, 1989, a date less than 21 days before the public hearing.

       
       

   16. While the Commission failed to accord the named agencies with the minimum 21-day notice mandated by section 120.54(3)(b), the proof fails to demonstrate that such failure constituted a material failure to follow the applicable rule making procedures. Here, the agencies never objected to the inadequacy of the notice; the agencies have never requested an opportunity to present evidence and argument or to offer alternatives regarding the impact of the proposed rule on small business; and there was no showing that the Commission's failure to accord the agencies the full 21-day notice impaired their ability to, or influenced their decision not to, participate in the rule making process. In sum, petitioner failed to demonstrate that the Commission's failure to accord 21 days notice to the named agencies resulted in any incorrectness or unfairness in the proposed adoption of the rule.

       
       

       The economic impact statement

       
       

   17. Pursuant to the provisions of Section 120.54(2)(b), Florida Statutes, the Commission prepared an economic impact statement for the proposed rule. The economic impact statement was prepared by Robert Palmer, the Commission's economic analyst, an expert in economics.

       
       

   18. Petitioner challenges the adequacy of the economic impact statement (EIS) prepared for the proposed rule by contesting its accuracy in some respects, its failure in other respects to address the costs to the agency for implementation of the proposed rule, and its failure to address the cost and economic benefit to persons directly affected by the proposed rule.

       
       

   19. Here, while it is arguable that the Commission's EIS could have been more thorough in some respects, the proof fails to demonstrate any material error that impaired the fairness of the rule making proceeding or the correctness of the Commission's decision to approve the proposed rule. Rather, the proof demonstrates that where errors or omissions occurred in the EIS that the Commission was supplied with the correct information at the public hearing, their impact was of de minimis import, or the costs and benefits were speculative or incapable of estimation.

       
       

       Compliance with statutory standards

       
       

   20. Pertinent to this case, Section 370.027(1), Florida Statutes, contemplates that the Commission will, in exercising its rule making authority, apply the policy and standards set forth in Section 370.025, Florida Statutes. In this regard, section 370.025 provides:

       
       

       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 head of the department 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. (Emphasis added).

          
          

   21. Petitioner's final challenge to the validity of the proposed rule is its contention that the Commission's action in approving the proposed rule contravenes the provisions of section 370.025 because the Commission failed to consider the "best information available" concerning the sociological implications of the proposed rule on shrimp fishermen, and because the proposed rule is inconsistent with the federal regulations regarding the mandatory use of TEDs. Petitioner's contentions are not persuasive.

       
       

   22. First, with regard to petitioner's contention that the proposed rule contravenes section 370.025(2)(h) because it is inconsistent with the federal regulation regarding the mandatory use of TEDs, the proof demonstrates that, due

       to the presence of sea turtles in state waters all year round, mandating the use of TEDs at only particular times of the year along certain areas of the coast, as the federal regulations do, would not achieve the Commission's preservation goal, and therefore would not be in the best interest of the sea turtles or residents of the state. Therefore, the Commission's action was not inconsistent with section 370.025(2)(h)

       
       

   23. Second, with regard to petitioner's contention that the proposed rule contravenes section 370.025(2)(b) because it failed to consider the best sociological information available, section 370.025(2)(a) is informative since it mandates that any rule of the Commission be consistent, before all else, with the following standard:

       
       

       The paramount concern of conservation and management measures shall be the continuing health and abundance of the marine fisheries resources of this state.

       
       

   24. Faced with persuasive proof that the incidental catch and drowning of sea turtles by shrimp trawls was a significant source of mortality for the species, and that absent the elimination of that mortality factor the species inhabiting state waters were threatened with extinction, the Commission reasonably concluded that it had two options to protect the sea turtles: to prohibit shrimp trawling in state waters or mandate the use of TEDs and permit shrimp trawling to continue. 4/ Such being the options, very little, if any, sociological information was necessary to support the Commission's conclusions that the mandatory use of TEDs, as opposed to a prohibition on shrimp trawling in state waters, would be the least disruptive management measure to the sociological structure of the shrimp fishing community.

       
       

   25. While almost irrelevant to the instant case, the proof does, however, demonstrate that the Commission had before it the pertinent sociological information it needed to appreciate the impact of the proposed rule on the shrimp fishery community. Such information included an appreciation of the fact that the shrimping community constitutes a societal segment, or self-contained entity, that is in large measure divorced from society in general; that unique familial relationships exist within the shrimp fishing community; that the mandatory use of TEDs had led to a feeling of uncertainty among shrimp fishermen concerning the continued survival of the industry; and that should shrimp fishermen experience significant losses as a consequence of the mandated use of TEDs that they may be forced from the shrimp fishing business, and their community and family relationships disrupted.

       
       

   26. Under the circumstances of this case, the Commission's action was consistent with section 370.025(2) (b).

       
       

       CONCLUSIONS OF LAW

       
       

   27. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.54(4), Florida Statutes.

       Standing

       
       

   28. Section 120.54(4)(a), Florida Statutes, provides:

       
       

       Any substantially affected person may

       seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority.

       
       

   29. To demonstrate that it is substantially affected by a proposed rule, a party must establish that, as a consequence of the proposed rule, it will suffer injury in fact, and that the injury is one that is subject to protection in the proceeding by virtue of rule, statute or constitutional provision. Florida Medical Association, Inc. v. Department of Professional Regulation, 426 So.2d 1112 (Fla. 1st DCA 1983). Further, the injury must not be speculative, nonspecific and hypothetical, and lacking in immediacy and reality. Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978).

       
       

   30. Applying the foregoing standards to the facts of this case demonstrates that, in addition to petitioner which the parties stipulate has standing, the following intervenors have demonstrated the requisite standing to support the proposed rule: Center for Marine Conservation, Inc.; Florida Audubon Society; and Greenpeace-U.S.A. The Florida League of Anglers has failed to demonstrate standing for the reasons set forth in the findings of fact.

       
       

       The rule challenge

       
       

   31. To prevail in this case, the burden is upon the petitioner to demonstrate that the proposed rule is an invalid exercise of delegated legislative authority. An invalid exercise of delegated legislative authority is, pertinent to this case, defined by Section 120.52(8), Florida Statutes, as follows:

       
       

       "Invalid exercise of delegated legislative authority" means action which

       goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

       1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s.124.54;

       2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s.120.54(7);

       3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s.120.54(7). 5/

       The Commission exceeded its grant of rulemaking authority

       
       

   32. Proposed rule 46-31.002 was promulgated under the Commission's rulemaking authority found in Section 370.027, Florida Statutes. That section provides:

       
       

       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....

       2. Exclusive rulemaking authority in the following subject matter areas relating to marine life, with the exception of endangered species, is vested in the Commission....

          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, claims, mussels, and crabs;

          9. Seasons; and

          10. Special considerations relating to egg bearing females.

          
          

   33. The Commission's exercise of its rulemaking authority, as set forth in section 370.027, is governed by the declaration of policy and standards set forth in Section 370.025, Florida Statutes. Marine Fisheries Commission v. Organized Fishermen of Florida, 503 So.2d 935 (Fla. 1st DCA 1987). That section provides:

       
       

       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 head of the department 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. (Emphasis added)

             
             

   34. The proposed rule at issue in this case is not a "gear specification" intended to manage or preserve a marine fishery resource within the Commission's grant of rulemaking authority. Rather, the proposed rule was adopted to preserve the endangered sea turtles, a topic of concern expressly excepted from the Commission's grant of rulemaking authority. 6/

       
       

   35. In further support of its contention that the Commission exceeded its grant of rulemaking authority, petitioner suggests that, even if sea turtles were not endangered, the Commission had no authority to pass any rule to protect their existence. To this end, petitioner argues that under section 370.025(1), the Commission's responsibility is the "management and preservation of [Florida's] marine fishery resources," and that sea turtles, a reptile, are not a "marine fishery resource." Applying the plain and ordinary meaning to the words "marine fishery resource" renders, however, petitioner's contention unpersuasive.

       
       

   36. The American Heritage Dictionary of the English Language defines "marine" as "native to or formed by the sea: marine life," "fishery" as "the industry or occupation of catching, processing or selling fish, shell fish, or similar aquatic products," and "resource" as an "asset." Applying such common usage to the phase "marine fishery resource" compels the conclusion that, but for their endangered status, the regulation of sea turtles would fall within the

       Commission's jurisdiction. Notably, there was a sea turtle fishery in the State of Florida prior to 1973.

       
       

       Compliance with applicable rulemaking procedures

       
       

   37. Petitioner further contests the validity of the proposed rule predicated on its contention that the Commission materially failed to follow the applicable rulemaking procedures set forth in section 120.54 by failing to notify the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office, and the Division of Economic Development of the Department of Commerce at least 21 days prior to the public hearing on the proposed rule, and by failing to prepare an adequate economic impact statement.

       
       

   38. While the proof demonstrates that the Commission only accorded the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office, and the Division of Economic Development of the Department of Commerce 13 days notice of the public hearing on the proposed rule, as opposed to the 21 days mandated by section 120.54(3)(b), the proof fails, for the reasons set forth in the findings of fact, to demonstrate that such failure constituted a material failure to follow the applicable rulemaking procedures.

       
       

   39. Likewise, while it is arguable that the Commission's EIS could have been more thorough in some respects, the proof failed to demonstrate any material error that impaired the fairness of the rulemaking proceeding or the correctness of the Commission's decision. Florida Waterworks Association v. Florida Public Service Commission, 473 So.2d 237 (Fla. 1st DCA 1985), Brewster Phosphates v. State, Department of Environmental Regulation, 444 So.2d 483 (Fla. 1st DCA 1984), State, Department of Insurance v. Insurance Service Office, 434 So.2d 908 (Fla. 1st DCA 1983), and Polk v. School Board of Polk County, 373 So.2d 960 (Fla. 2d DCA 1979).

       
       

       Compliance with statutory standards

       
       

   40. Petitioner's final basis for contesting the validity of the proposed rule is its contention that the proposed rule contravenes the specific provisions of law implemented, to wit: Section 370.025, Florida Statutes, because the Commission failed to consider the "best information available" concerning the sociological implications of the proposed rule on shrimp fishermen, and because the proposed rule is inconsistent with the federal regulations regarding the mandatory use of TEDs. For the reasons set forth in the findings of fact, petitioner's contentions in this regard are unpersuasive.

CONCLUSION

Based on the foregoing findings of fact and conclusions of law, it is ORDERED that proposed rule 46-31.002 is invalid.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of December 1989.

WILLIAM J. KENDRICK

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 21st day of December 1989.

ENDNOTES

1/ An additional benefit of the proposed rule to the marine environment is a reduction in the bycatch of finfish by shrimp trawls. Such benefit is, however, incidental to the purpose of the proposed rule, and was not a motivating force for adoption of the rule.

2/ Currently, Section 370.12(1)(b), Florida Statutes, prohibits the taking of any marine turtle, unless by accident in the course of normal fishing activities. Prior to 1973 there was an active turtle fishery in the State of Florida, but the taking of sea turtles since that time has been prohibited.

3/ The TED's currently approved by the NMFS are commonly known as the NMFS TED, Cameron TED, Matagorda TED, Georgia TED, Morrison TED, and Parrish TED. The NMFS Ted, Cameron TED, Matagorda TED, and Georgia TED are considered hard TEDs, with grates made of metal or PVC pipe. The Morrison TED and Parrish TED are considered soft TEDs, with grates made of net material.

All TEDs function in basically the same manner to exclude sea turtles from incidental capture in shrimp trawls. Essentially, a TED is a grate placed in the shrimp net just before it narrows into the cod end. The net is then cut at the top or bottom to create an opening or door just before the grate. As designed, shrimp pass through the grate into the cod end, while larger fish and sea turtles, which cannot pass through the grate, are forced out the opening cut in the net. Although similar in operation, the approved TEDs demonstrate different efficiencies in preventing the undesirable loss of shrimp from the trawl occasioned by the TED's installation. To this end, use of the variously approved TEDs may result in a loss of from zero to twenty-two percent of a shrimper's catch, on any given trip, depending on the TED used, the skill of the shrimper, and the conditions under which the TED is used. In calculating any shrimp loss it is, however, notable that only approximately 10 percent of the shrimp landed in Florida are caught in Florida waters. Accordingly, use of even the most inefficient TED does not result in a significant loss, over all, to the shrimp fishermen.

4/ Petitioner does not contest the propriety of the Commission's decision to mandate the use of TEDs, as opposed to some other means to protect the sea turtle population, in this proceeding.

5/ Section 120.52(8), Florida Statutes, also defines an invalid exercise of delegated legislative authority as:

1. The rule is vague, fails to establish adequate standards for agency

   decisions, or vests unbridled discretion in the agency; or

2. The rule is arbitrary or capricious.

Petitioner has not, however, challenged the proposed rule as being violative of such provisions of law.

6/ It is a fundamental tenet of statutory construction that words of common usage are accorded their plain and ordinary meaning. Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So.2d 1351 (Fla.

1984). The term "endangered species," as used in section 370.027, was not shown to be a technical term requiring the Commission's expertise to interpret it, and, indeed, no proof was offered regarding its interpretation. Accordingly, the term must be accorded its plain and ordinary meaning. The American Heritage Dictionary of the English Language, defines "endangered species" as "a species in danger of extinction." Here, the proof demonstrated that the Atlantic green turtle, Atlantic hawksbill turtle, Kemp's ridley turtle, Leatherback turtle, and Loggerhead sea turtle are endangered species as that term is commonly defined.

In its post hearing submittal, respondent suggests that, rather than according "endangered species" its common usage, that such term as it appears in section 370.027 be read in pari materia with Section 372.072, Florida Statutes; the "Florida Endangered and Threatened Species Act of 1977." Under such act, all species of sea turtle existent in state waters are listed as endangered, with the exception of the Loggerhead sea turtle which is listed as threatened.

Respondent's suggestion that such statutes be read in pari materia is, however, unpersuasive. There is no suggestion in section 370.027 that the term "endangered species" is restricted to those species which the Game and Freshwater Fish Commission, Department of Natural Resources, or U.S. Department of the Interior may ultimately elect to define as endangered, or that such term be accorded the rather artificial distinction that exists between endangered and threatened species that may appear on any such list. Notably, species that are listed as endangered by the state are not always accorded a similar designation by the federal government, or vice versa, and there is not consistency between such agencies as to how species are to be listed.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1, 3-7, 9-12: Supported by competent proof, but not necessary to the result reached.

2 & 8. Not supported by competent proof.

1. First sentenced rejected as contrary to the greater weight of the evidence. Remaining sentences supported by competent proof but not necessary to the result reached.

2. First sentence rejected as contrary to the greater weight of the evidence. Remaining sentences adopted in substance in footnote 3.

3. Rejected as misleading. TED's cab accord a risk to the fisherman, as do other gear aboard the vessel, but with proper attention are not inherently unsafe.

4. Supported by competent proof, but not necessary to the result reached. 17-20. Adopted in substance in footnote 3.

21 & 22. Rejected as not supported by competent or persuasive proof.

1. First two sentences supported by competent proof but not necessary to the result reached. Third sentence rejected as not supported by competent or persuasive proof; there was no persuasive proof of the frequency, if any, that the installation of TEDs contributes to the nets ripping away.

2. Rejected as not supported by competent or persuasive proof.

25 & 26. There being no competent or persuasive proof of the frequency, if any, that nets are lost as a consequence of a clogged TED, these findings are not relevant.

27. Supported by competent proof, but not shown to be significant. Rather, the proof only shows that the nets suffer a little increased bottom wear" and that they must be repaired "a little bit more often." [TR. P. 84] Such proof is not compelling or significant.

28 & 29. Rejected as not persuasive. The mandatory use of TED's may or may not result in a reduction in catch on any given trip. Globally, however, there should be no significant reduction in shrimp catch through the use of TEDs.

30. Adopted in paragraph 10.

31-33. To the extent necessary, addressed in footnote 1.

1. Supported by competent proof, but not necessary to result reached.

2. Adopted in footnote 2.

3. Addressed in footnote 6.

37 & 38. Adopted in paragraph 13.

1. Rejected as misleading. Implementation of the rule would significantly reduce the probability of the incidental capture of sea turtles in shrimp trawls, but would not prohibit it.

2. Addressed in paragraph 24.

41-45. To the extent supported by competent proof, addressed in paragraph 22.

1. Rejected as contrary to the proof.

2. Rejected as not supported by competent or persuasive proof. 48-51. Addressed in paragraphs 15 and 16.

52-74. Addressed in paragraphs 23-25, otherwise rejected as not supported by competent or persuasive proof.

1. Rejected as argumentative and contrary to the proof.

2. First two sentences supported by competent proof. Third sentence rejected as a mischaracterization of the proof. The cost figures are predicated on the fact that the average vessel pulls two nets, not an assumption that all shrimp trawls pull two nets.

77-79. Rejected as not supported by competent or persuasive proof.

80. Rejected as not shown to be relevant or significant. Succinctly, it was not established by competent or persuasive proof the frequency of any loss or damage, nor was such loss quantified or shown to be quantifiable.

81, 82, 85-88, 101-111. Rejected as speculative and unpersuasive. The proof offered by petitioner to demonstrate the economic impact occasioned to shrimper's by the mandatory use of TEDs was at best speculative, and demonstrated that such impact could not be quantified. Reduction in catch due to the use of TEDs can range from zero to 22 percent depending on the TED selected, the conditions under which it is used, and the skill of the fisherman. Some TED's are efficient in retaining shrimp and others are not. Therefore, selection by the fisherman of an inefficient TED will result in reduced catch.

Some TEDs work better in various conditions than other TEDs. Therefore, selection of the appropriate TED will minimize loss Overall, considering the variables, economic impact cannot be quantified with any degree of certainty. Added to this uncertainty, the fact that only 10 percent of shrimp landed in Florida are caught in Florida waters, renders petitioner's proof of economic impact speculative at best.

83, 84 and 100. A multiplier effect is an indirect cost, as opposed to a direct cost, and is not relevant.

89 & 90. Not shown to be significant, therefore not relevant.

91 & 92. Rejected as not pertinent. The EIS did underestimate the number of individuals directly employed in shrimp harvesting by approximately 1,200 people. The Commission was, however, accorded the correct figure at the public hearing.

93 & 94. Rejected as contrary to the proof.

95-97. Not shown to be pertinent or significant.

98 & 99. Not shown to be pertinent or significant.

112. Redundant. See response to proposed finding of fact 28 & 29. 113-118. Not shown to be pertinent or significant.

119. Addressed in paragraphs 5-8.

Respondent's proposed findings of fact are addressed as follows:

1. Addressed in footnote 6.

2. Adopted in paragraph 12.

3. Adopted in paragraph 24.

4-16. To the extent supported by competent proof, adopted in paragraphs 17-19, and footnote 3.

17-19. To the extent supported by competent proof, addressed in paragraphs 23- 25.

20. Adopted in paragraphs 15 and 16. 21-23. Addressed in footnote 3.

24. Addressed in footnote 2.

The proposed findings of fact of Intervenor, Greenpeace-U.S.A., are addressed as follows:

1-8. Adopted in paragraph 7.

COPIES FURNISHED:

John D. C. Newton, II, Esquire Lu Ann Snider, Esquire

Carson & Linn, P.A.

1711-D Mahan Drive

Tallahassee, Florida 32308

Jonathan A. Glogau David G. Guest Ronald G. Stowers

Assistant Attorneys General 111-36 South Magnolia Drive Tallahassee, Florida 32301

David Gluckman, Esquire Gluckman & Gluckman Route 5, Box 3965

Tallahassee, Florida 32301

Russell Nelson, Executive Director Florida Marine Fisheries Commission Suite 106

2540 Executive Center Circle West Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code Room 1802, The Capitol 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 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.

Docket for Case No: 89-004220RP

Orders for Case No: 89-004220RP