STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAYMOND S. PRINGLE, JR.; )

RONALD FRED CRUM; and )

WILLY ARNOLD, )

)

Petitioners, )

)

vs. ) Case No. 96-5868RP

) MARINE FISHERIES COMMISSION, )

)

Respondent, )

)

and )

) FLORIDA WILDLIFE FEDERATION, ) FLORIDA LEAGUE OF ANGLERS )

and COASTAL CONSERVATION )

ASSOCIATION, )

)

Intervenors. )

)

FINAL ORDER

Upon due notice, this cause came on for formal hearing in Tallahassee, Florida, on November 6 and 7, 1997, before Ella Jane

1. Davis, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

   APPEARANCES

   
   

   For Petitioners: Ronald A. Mowrey, Esquire

   David K. Minacci, Esquire

   L. William Porter, III, Esquire MOWREY, BARNETT & MINACCI, P.A.

   515 North Adams Street Tallahassee, Florida 32301

   
   

   For Respondent: Jonathan A. Glogau, Esquire

   Assistant Attorney General Plaza Level 01, The Capitol

   Tallahassee, Florida 32399-1050

   For Intervenors: Michael A. McIntosh, Jr., Esquire

   Sierra Club Legal Defense Fund, Inc. Post Office Box 1329

   Tallahassee, Florida 32302 STATEMENT OF THE ISSUE

   Whether Proposed Rule 46-4.0081(2)(d), Florida Administrative Code, providing that, beginning January 1, 1998, no person shall fish with, set, or place in the water any seine with a mesh size larger than two inches stretched mesh, is a valid exercise of the delegated legislative authority of Respondent, Marine Fisheries Commission, and whether said rule was proposed in accordance with the statutory standards Respondent must follow pursuant to Section 375.025, Florida Statutes.

   PRELIMINARY STATEMENT

   
   

   On or about December 13, 1996, Dewey E. Destin, Jr., initiated Division of Administrative Hearings Case No. 96-5869RP and Raymond S. Pringle, Jr.; Ronald Fred Crum; and Willy Arnold initiated Case No. 96-5868RP. Petitioners sought a formal administrative hearing to challenge the validity of all or parts of the Marine Fisheries Commission's ("MFC's") Proposed Rules

   46-4.002, 46-4.0025(2), and 46-4.0081(2)(d) and (e).

   
   

   On December 31, 1996, the cases were consolidated.

   
   

   On January 22, 1997, Florida Wildlife Federation, Florida League of Anglers, and Coastal Conservation Association moved to intervene on behalf of Respondent MFC, asserting that the proposed rules were a valid exercise of delegated legislative authority.

   On July 29, 1997, Case No. 96-5869RP was severed from Case No. 96-5868RP and dismissed pursuant to the parties' stipulation withdrawing their petition in DOAH Case No. 96-5869RP. After severance, the instant case, DOAH Case No. 96-5869RP, addressed only limited issues, as more fully explained in the August 15, 1997, Order herein. The MFC withdrew Proposed Rule 46-4.0025(2). At formal hearing, the administrative rule challenge was limited to a repeal of Rule 46-4.0081(1)(g)1 and the addition of its replacement, Rule 46-4.0081(2)(d), Florida Administrative Code.2

   At formal hearing on November 6-7, 1997, the Joint Prehearing Stipulation was admitted as ALJ Exhibit A.

   Petitioners presented 10 witnesses: Russell Nelson, Director of the MFC, who was accepted as an expert in marine biology and fisheries management; Jack Rudloe, who was accepted as an expert in fish resources in North Florida; Paul Johnson, who was accepted as an expert in marine biology and marine resources of the Florida coast; Cecil Spears; Leo V. Lovell; Willy Arnold; James Taylor, Jr.; Angelo Petrandis; and Ronald F. Crum; and Raymond S. Pringle, Jr. Petitioners' Exhibits 3-8 were admitted in evidence. The depositions of Michael Murphy (P-1) and Behzad Mahmoudi (P-2) were admitted in lieu of live testimony and subject to internal objections (TR-67).

   Respondent MFC presented two witnesses: Brent Winner, who was accepted as an expert in design and testing of fish gear and marine biology; and Russell Nelson. MFC had two exhibits admitted in evidence.

   Intervenors called no witnesses and offered no exhibits. A transcript was filed on December 23, 1997.

   Petitioners and the MFC filed their respective proposed orders and memoranda of law on January 7, 1998. Intervenors' proposed order was filed January 9, 1998. There having been no objection to late-filing, or use of memoranda, all submittals have been considered in preparation of this final order.

   FINDINGS OF FACT

   
   

   1. Existing rules of the MFC require that the main body of a seine net be constructed of two-inch mesh or smaller. Wings with larger mesh may be used. [Rule 46-4.0081(1)(g), Florida Administrative Code] The challenged rule amendment [Proposed Rule 46-4.0081(2)(d)] deletes the provision that allows a wing with larger mesh to be attached to a two-inch mesh seine.

   2. The unrefuted evidence is that the proposed rule amendment will reduce the "catchability rate" of a single such seine net for many types of fish and not be commercially feasible for mullet, except possibly in "roe season,"3 and that a seine net as currently permitted with larger mesh in the wings only is commercially feasible for mullet as well as other fish.

   3. "Catchability rate" is defined as "that fraction of a fish stock which is caught by a unit of fishing effort."

   4. "Roe season" is that part of the year in which there is greater schooling and movement of adult mullet, approximately two years old and eleven or more inches in length, which hopefully

      have already reproduced. However, legal size is not a guarantee that a fish has reproduced. See below, Finding of Fact 49.

   5. The term "stretched mesh" means that the mesh is measured by pulling it to its maximum length. A two-inch stretched mesh forms approximately a one inch square when fully open.

   6. Generally, there are two types of nets used to catch fish: those that corral the fish by concentrating them into any area small enough that they can be easily landed; and those that catch the fish by entangling them in net material. Gill nets fall into the latter category.

   7. Gill nets catch fish when a fish enters a mesh opening, finds that it is too large to pass through the mesh opening, and entangles its gills in the mesh when it attempts to back out of the net. The fish then dies due to lack of water or lack of undissolved oxygen, or it can be pulled through the net manually and released. Fish mortality from gill nets is higher in warm months.

   8. From a fish's or an environmentalist's viewpoint, pulling the fish through a net is an exercise in futility because pulling the fish through a net removes its natural slime, and without its natural slime, a fish will die soon after release.

   9. The size of fish entangled in a gill net is a function of the size of the mesh. Larger mesh nets gill larger fish, while smaller mesh nets gill smaller fish.

   10. Which small fish are gilled varies from time to time and place to place, dependent upon many factors, including but not limited to how and where the net is deployed, how rapidly it is hauled in, and which fish are targeted.

   11. To some extent, it is fair to say that all nets are gill nets, because all nets entangle some fish of some size, but this is an oversimplification.

   12. Mesh size has long been used by Florida's MFC and even by other states as a management tool for limiting the harvest of a variety of fish.

   13. "By-catch" is marine life which is not targeted by the fisher deploying the net, but which nonetheless is captured in some manner by the net. For instance, in shrimp nets, the "by- catch" of fin fish typically outnumbers the catch of shrimp (the targeted specie) by four to one. Juvenile (pre-reproductive age) fish of the targeted specie can also be "by-catch" when netted with their elders. All nets capture by-catch to some degree.

   14. Depending upon net deployment methodology, any net will also pick up "gumbo," a term employed here to delineate by- catch, undissolved algae, plant debris, and other items which do not contribute to a commercial fish crop.

   15. On November 8, 1994, Florida voters approved the adoption of Article X, Section 16, of the Florida Constitution. That amendment, which took effect July 1, 1995, prohibited the use of gill or entangling nets anywhere in state waters, and

       placed a 500 square foot limitation on "other nets" in nearshore and inshore Florida waters.4

   16. Seine nets constitute "other nets" under the net ban amendment.

   17. Landings for mullet are significantly down since the amendment, from more than 16 million pounds per year to five million pounds. This has had a direct and favorable impact on the increase of the "spawning potential ratio" for mullet.

   18. "Spawning potential ratio" ("SPR") means egg production per year that is available from a fish stock. It is the ratio of a single specie's eggs available in stock that has been fished, over the eggs that would be available in unfished stock. SPRs are scientifically established for each fish specie by the MFC. The Commission considers that if the stock falls below those levels there is a real risk that the stock specie will decline abruptly to some much lower level and not be able to recover. Once the SPR rises to the targeted level, there is greater assurance of specie recovery and preservation, but there are still many reasons to manage the fishery in an optimal use of that resource. The maximum practicable stock abundance mandated by law might be at a level higher than MFC's threshold. The SPR is basically a minimum reproductive goal for fish, per specie.

   19. Some species continue to be in an overfished condition since the net ban amendment took effect.

   20. However, without taking into account the proposed two- inch mesh limitation, the SPR for mullet would reach the MFC's

       minimum goal of 35 percent within one to two years, even though it was originally thought such numbers might only be reached within nine years after the effective date of the constitutional amendment.

   21. Although it is important to understand that MFC's SPR goals are thresholds only, it is clear that the so-called "net ban" is beginning to have the desired environmental effect.5

   22. Petitioners maintain that the only feasible place to fish with the proposed 500 square foot, two-inch mesh nets would be inshore where smaller mullet feed, which sets up a situation in which more juvenile fish, particularly juvenile mullet, will die before they have a chance to reproduce, and therefore more non-targeted by-catch will be wasted than would be wasted if the rule is not amended. On this theory, they also contend that the proposed rule would not permit reasonable means and quantities of harvesting of fish, particularly mullet, and is otherwise inadequate for reasons related in Sections 370.025(2)(a), (b), (c), and (g), Florida Statutes.

   23. MFC is not a constitutional agency, but Florida's Legislature has mandated its mission, in pertinent part, as:

       Section 370.027, Florida Statutes. 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, . . .

          
          

          ***

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

          
          

          1. Gear specifications;

          2. Prohibited gear;

       
       

       ***

       
       

   24. In 1997, the Florida Legislature further provided a net ban statute, implementing the constitutional amendment, and clearly authorized its legislatively-created agency, the MFC, to promulgate rules to implement that statute and the constitutional amendment, as follows:

       1. Illegal use of nets. --

          
          

          1. It is unlawful to take or harvest, or to attempt to take or harvest, any marine life in Florida waters with any net that is not consistent with the provisions of s. 16, Article X of the State Constitution.

       (2)(a) Beginning July 1, 1998, it is also unlawful to take or harvest, or to attempt to take or harvest, any marine life in Florida waters with any net, as defined in subsection (3) and all attachments to such nets, that combined are larger than 500 square feet and have not been expressly authorized for such use by rule of the Marine Fisheries Commission under s. 370.027.

       The use of currently legal shrimp trawls and purse seines outside nearshore and inshore Florida waters

       
       

       shall continue to be legal until the commission implements rules regulating those types of gear.

       
       

       1. The use of gill or entangling nets of any size is prohibited, as such nets are defined in s. 16, Article X of the State Constitution. Any net constructed wholly or partially of monofilament or multifilament material, other than a hand thrown cast net, or a handheld landing or dip net, shall be considered to be an entangling net within the prohibition of s. 16, Article X of the State Constitution unless specifically authorized by rule of the commission. Multifilament material shall not be defined to include nets constructed or braided or twisted nylon, cotton, linen twine, or polypropylene twine.

       2. This subsection shall not be construed to apply to aquaculture activities licenses issued pursuant to s. 370.26.

       1. As used in s. 16, Article X of the State Constitution and this subsection, the term "net" or "netting" must be broadly construed to include all manner or combination of mesh or webbing or any other solid or semisolid fabric or other material used to comprise a device that is used to take or harvest marine life.

       2. Upon the arrest of any person for violation of this subsection, the arresting officer shall seize the nets illegally used. Upon conviction of the offender, the arresting authority shall destroy the nets.

       3. Any person who violates this section shall be punished as provided in s. 370.092(4).

       4. The Marine Fisheries Commission is granted authority to adopt rules pursuant to ss. 370.025 and

       370.027 implementing the prohibitions and restrictions of s. 16, Article X of the State Constitution.

   25. To these ends, the Legislature has also established purpose and standards for the MFC to follow in proposing/enacting rules:

       Section 370.025 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.

             
             

   26. The MFC was well aware of the post amendment reduced landings, increased SPRs, and fish recovery rates when it proposed the rule herein.

   27. In promulgating the rule herein, the MFC did not conduct or commission any formal economic or sociological studies on the constitutional amendment's impact on wholesale and retail seafood markets, restaurants and consumers to date or on the proposed rule's potential further impact on these elements. It did, however, consider testimony at rule hearings and written presentations on those issues by the Petitioners and others.

   28. At the formal hearing herein, Petitioners showed the same information that had been presented to the MFC, that Florida Panhandle coastal restaurant revenues typically have dropped nearly 30 percent since the constitutional amendment, and that revenues in Panhandle wholesale fish houses have typically dropped 75 percent. There is anecdotal, but statistically imprecise, evidence that the retail market for mullet has been drastically depressed and consumer prices therefor drastically increased in the Panhandle and Jacksonville areas since the amendment, that this situation creates a greater burden on low- income consumers, particularly those low-income consumers who have, for economic or ethnic reasons, traditionally made mullet a staple of their diets, and that this situation may worsen with implementation of the proposed rule if the proposed rule further drastically reduces the availability of mullet. For the reasons set out infra., further drastic reduction in the availability of mullet is not anticipated by the MFC.

   29. MFC prepared a statement of regulatory impact or estimated regulatory costs for the proposed rule as part of its 1997 rule amendment package, based on all the evidence it had gathered.

   30. Even seine nets produce some by-catch, and some of the by-catch produced by seine nets results from small fish being gilled in the mesh of the net. Admittedly, small mesh sizes result in gilled by-catch that is pre-reproductive and smaller in size. However, seine nets, other than "purse seines," which were

       banned before the constitutional amendment, operate by "corralling" fish with a net that functions as a wall that captures the fish by confining them inside the net without entangling any more of them than absolutely necessary. For that reason, beach seine nets and haul seine nets, for instance, have not historically been considered to be gill or entangling nets.

   31. The MFC has historically managed seine nets differently than gill nets because of the better possibility of releasing by-catch from seine nets.

   32. The MFC's Executive Director, and expert, Dr. Russell Nelson, testified that the Agency believes the constitutional amendment does not require that there be no legitimate by-catch and further, that a complete absence of by-catch would be impossible. (TR-346).

   33. One purpose of proposed Rule 46-4.0081(2)(d) is to clarify what is a "gill net" subject to the constitutional prohibition as contrasted to a "seine net," which is not prohibited. The proposed rule also should be easier to administer and enforce because the net mesh and square footage will be easily ascertainable without regard to what specie or size fish is caught.

   34. In formulating this proposed rule, the MFC decided that the allowance for small seine nets in Article X, Section 16 of the Florida Constitution implied a functional definition. Therefore, the proposed rule amendment was designed to effectively remove existing Rule 46-4.0081(1)(g)'s exception for

       a larger wing mesh size from the two-inch mesh size required of the seine panel, because that exception is obsolete in light of the constitutional amendment.

   35. The functional definition of "seine nets" utilized by the MFC was nets that functioned to guide, herd, gather, or corral fish, rather than gill or entangle them. This definition had been previously codified in an existing rule.6

   36. Based upon its interpretation of the constitutional amendment, statute, and existing rule, and based upon common historical net usage, the MFC concluded that nets designed to function primarily to gill or entangle fish could not be considered to be seine nets.

   37. Petitioners are correct that between the date of the constitutional net ban and the date of formal hearing on this rule challenge, the MFC did not conduct or cause to be conducted any tests with a 500 square foot two-inch mesh seine net. However, in formulating the proposed rule, the Commission was presented with extensive comments, technical information, and post-amendment updates of earlier surveys.

   38. Prior to first publishing its proposed rule and since, the MFC has examined the historical functions of seine and gill nets. The competent, substantial, credible evidence adduced at formal hearing is substantially the same as MFC's collected data. Historically, seine nets were very large and some were even thousands of yards in area. Prior to the passage of the constitutional amendment, commercially licensed fishermen used

       seine nets of many sizes and meshes. Most were approximately 600 yards long. Historically, seine nets had wings on one or both sides of the main body, which was sometimes called a "panel," "bag," "pouch," or "pocket." The "wings" were the portion of the net used to herd the fish into the main body. The wings contained larger mesh size than the main body. The fish were actually captured in the main body, not the wing portion.

   39. Historically, in Florida, the mesh size of gill nets was significantly larger than the mesh size of seine nets. Gill nets historically used to catch mullet employed stretch mesh three inches or greater.

   40. Currently, the constitutional amendment, the statute, and existing rules limit seine nets to a total of 500 square feet.

   41. Existing Rule 46-4.0081(1)(g), Florida Administrative Code, sought to be repealed, permits seines of a two-inch stretch mesh or less in the main body of the seine, and up to three-inch mesh in its wings.

   42. Due to the 500 square foot restriction, the MFC believes that a mesh size exception permitting three-inch mesh in seine wings is obsolete.

   43. Three-inch mesh in the wings of seine nets would gill larger, commercially viable mullet. There is no practical way to construct a seine with wings and a workable pocket since the entire seine net is now limited to a total of 500 square feet, but if the three-inch mesh continues to be permitted for the

       wings, fishermen will be able to construct 500 square foot seine nets that are 90 percent wing and 10 percent panel, thus converting what is technically a seine net into one which actually gills or entangles fish over 90 percent of the net's surface. Such a result would be contrary to any common historical understanding of what constitutes a "seine net," and contrary to the intent of the constitutional amendment and subsequent legislation.

   44. Agency staff advocated drafting the proposed rule more stringently so as to reduce the permissible stretched mesh size to a one- and one-half-inch size, but in formulating the proposed rule under challenge, the MFC ultimately proposed the two-inch stretched mesh rule based on its review of historical mesh sizes which were already in legal use. This decision was reasonable and may serve to lessen the impact of the rule change on commercial fishermen.

   45. Different species of fish behave differently, and the credible, competent evidence herein permits no blanket pronouncement on running patterns of juveniles and adult (reproductive) fish in every fish specie.

   46. There is direct conflict between Petitioners' and MFC's experts, most notably Messrs. Rudloe and Winner, on whether or not juvenile mullet, or fish generally, run with schools of adults. After consideration, Mr. Winner's opinion that juvenile mullet typically do not run with their elders, at least in roe season, is accepted.7

   47. Also, the greater weight of the credible evidence is that all types of fish small enough to be entangled in a two-inch mesh would not generally be found with adult mullet.

   48. Petitioners contend they cannot determine what other types of fish are running with the adult mullet they target and cannot guarantee that some juvenile mullet and other fish would

       
       

       not be among the inadvertent by-catch netted when they target adult mullet.

   49. Only fifty percent of 11-inch (legal size) mullet are sexually mature, anyway.

   50. Upon the testimony of MFC's experts, Mr. Winner and Dr. Nelson, and upon testimony by various commercial fishermen, it is found that fishermen can target adult mullet based on the way adult mullet move, jump, and make wakes.

   51. It is not commercially feasible to target any illegal, juvenile fish.

   52. In 1993, MFC promulgated rules which varied mesh size for mullet and other species. These rules were intended to harvest targeted species of only appropriate age and size.

   53. Studies before the 1993 rule amendments showed that the vast preponderance of mullet taken in a two-to two-and-a- quarter-inch mesh seine were 13 inches and 95 to 98 percent were legal size.

   54. In 1993, the two-inch mesh for the seine panel/pouch was created by rule, and has remained in effect since then.8

   55. In 1997, in formulating the proposed rule here challenged, the MFC concluded, on the basis of updated studies and testimony and presentations before it, that although the proposed rule may result in more juvenile fish being caught in the smaller mesh, or even gilled therein, the proposed rule amendment will ultimately result in fewer total fish being gilled. The MFC is prepared to accept this result because only a small proportion of juvenile mullet or other fish encountered will actually be gilled, no dangerous level of unnecessary killing or waste will occur, and the rule will enhance the overall fish population recovery effects already in progress. Even with a small increase in the number of juveniles being gilled under the proposed rule, the MFC expects landings of

       legal-size mullet to increase due to the recovery of fish populations in progress and due to fishermen acquiring even more skill with the 500 square foot nets, which size is still relatively new.

   56. Some commercial fishermen testified that it is the existing reduced square footage (500 square feet) factor alone which causes adult mullet to jump the net, not the proposed mesh size reduction. However, the MFC has no authority to alter this constitutional requirement. Some commercial fishermen testified that they could fish mullet commercially with the existing five hundred square foot nets as long as the nets still had three inches or larger mesh in their wings. A video tape showing several sets (strikes) or parts of sets of a net was introduced

       in evidence. It showed some fish jumping the net and other fish gilled in the net. It purportedly showed use of a net which would be legal under the proposed rule, but testimony to that effect was contradicted by one of the same witnesses when he gave specific dimensions of the net showing it to actually be considerably larger than the 500 square foot requirement which the MFC has no authority to alter. (TR-270) The video tape was not made in roe season. Its net's deployment in some sets was arguably unusual for this type of fishing. The number of fish gilled was low. Accordingly, although the video tape might support the theory that size of mesh is one factor in causing legal-size mullet to jump a net, it does not present credible evidence that legal-size mullet cannot be caught with a 500 square foot net which would be legal under the proposed two-inch rule or even that legal mullet can now be caught with a larger net. It certainly does not establish that the proposed rule will waste more juvenile fish than are being wasted under the existing rules.

   57. However, upon the evidence of current landings, it is found that legal-size mullet can be caught with the nets now legal. It is further found, upon the evidence as a whole including that of Dr. Nelson and Mr. Winner, that use of a single seine net which would be legal under the proposed rule, that is, one which is made of only two-inch mesh throughout its total 500 square foot surface, is not commercially feasible for fishing mullet, except possibly in roe season. Nonetheless, there are at

       least two ways the new net could be used commercially. It is possible for two fishermen working together to deploy two separate 500 square foot, two-inch mesh seine nets to capture and corral legal size mullet. It is possible to use two legal seine nets in the same way with a third person manning a cast net. The seine nets would be channeling, or herding, the fish, and the cast net would be gathering or dipping them out of the water.

       Under this type of operation, neither type of net would entangle or gill fish. According to MFC's Director Nelson, the MFC considered these two methodologies of fishing for mullet with more than one net to be both legal and commercially feasible when it proposed the challenged rule.9

   58. Use of a single seine net which would be legal under the proposed rule is commercially feasible for catching fish other than mullet.

   59. This proposed gear rule applies equally to all unit stocks of fish and affects all fisheries, some of which are still overfished and some for which there is incomplete data to determine the status.

   60. The proposed rule compliments previously adopted fishery management plans and will help recovery of unmanaged species. The rule does not conflict with any federal management plan.

   61. The proposed rule has no relationship to quality control for fish coming to market.

   62. The proposed rule applies to everyone and provides no individual or corporation an excessive share of fishery resources.

       CONCLUSIONS OF LAW

       
       

   63. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.56(4), Florida Statutes.

   64. The MFC proposes to repeal Rule 46-4.0081(1)(g) and replace it with Rule 46-4.0081(2)(d), Florida Administrative Code. The effect of this proposed amendment is to repeal the reference to seine nets with wings of a larger mesh and to require that seine nets, already limited to 500 square feet, be constructed of two-inch mesh throughout.

   65. Petitioners challenged the proposed rule as an invalid exercise of delegated legislative authority because it allegedly will cause unnecessary killing, overfishing, and waste of juvenile fish and non-targeted by-catch in violation of Section 370.025(2)(a), Florida Statutes; is not based on the best biological, sociological, and economic information available in violation of Section 370.025(2)(b), Florida Statutes; will not permit reasonable means and quantities of annual harvesting of fish in violation of Section 370.025(2)(c); and is not fair and equitable to all people of this State in violation of Section 370.025(2)(g).

   66. The competent substantial evidence herein supports the proposed rule and does not support Petitioners' position, nor

       does it establish that the MFC exceeded its authority, that the requirements of the rule are inappropriate to the ends specified in the legislation or constitutional amendment, that the rule is not reasonably related to the purpose of the enabling legislation, or that the rule is arbitrary and capricious, as charged in the Petition.

   67. Pursuant to Section 120.52, Florida Statutes, a rule is an invalid exercise of delegated legislative authority if

       1. "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 of the following applies:

          1. The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter;

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

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

             
             

          4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency;

          5. The rule is arbitrary or capricious;

          6. The rule is not supported by competent substantial evidence; or

          7. The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.

       
       

   68. The MFC issued Proposed Rule 46-4.0081(2)(d) to implement what is commonly known as the "net ban amendment," Article X, Section 16, of the Florida Constitution, which was added to the Florida Constitution in November 1994. Effective

       July 1, 1995, the amendment banned the use of gill and entangling nets in all Florida waters and limited the size of all other nets to 500 square feet in the nearshore and inshore waters of the State.

   69. The Florida Legislature delegated to the MFC, in existence since 1983, exclusive authority to adopt rules regulating gear specifications and prohibited gear for marine fishing in Florida. See Section 370.027(2), Florida Statutes (1997).

   70. Pursuant to Section 370.093(6), Florida Statutes, the MFC has the authority to implement the prohibitions and restrictions of Article X, Section 16 of the Florida Constitution.

   71. The MFC has statutory authority to adopt the kinds of gear restrictions involved here. See Sections 370.025, 370.027,and 370.093(6), Florida Statutes.

       
       

   72. Pursuant to the net ban amendment and the statutory authority listed above, the MFC has sought to conform current rules to the net ban amendment by proposing new rules.

   73. Testimony presented by both Petitioners and the MFC established that all nets gill to some degree. Because the net ban amendment was not intended to preclude the use of all nets in

       inshore and nearshore Florida waters, the term "gill net" as used therein has been interpreted by the MFC to require something short of a complete ban on net fishing.

   74. To this end, the MFC held public hearings, collected studies, and applied its expertise. With regard to the specific rule under challenge here, it gave considerable weight to historical functions of nets so as to draw a distinction between gill and seine nets and to preclude seine nets from being modified or adapted to become entangling or gill nets.

   75. Evidence presented herein by the MFC, and not controverted by Petitioners, demonstrated that historically nets were distinguished largely on the basis of function. Certain nets (gill nets) captured fish by entangling them. Other nets (seine nets) captured fish by encircling them. This historical distinction comports with the definition of "gill net" contained in the Florida Constitution: "'gill net' means one or more walls of netting which captures saltwater finfish by ensnaring or entangling them in meshes of the nets by the gills. . . ." See Article X, Section 16(c)(1), Florida Constitution.

   76. Selection of the most commonly used mesh size and one which already was provided for in the panel portion of the

       
       

       existing legal seine nets was historically based, rational, and practical for application of the proposed rule.

   77. Moreover, although conflicting evidence was presented, the greater weight of the evidence supports the proposition that

       seine nets comprised of two-inch stretch mesh, when used properly, do not gill significant numbers of adult or juvenile fish.

   78. The MFC's determination that nets comprised of greater than two-inch stretched mesh constitute "gill nets," illegal under the Florida Constitution, and that nets constructed of two- inch stretched mesh or less constitute "seine nets," legal under the Florida Constitution, is not arbitrary and capricious.

   79. The greater weight of the credible evidence does not support a determination that less costly rule alternatives would accomplish the constitutional or statutory goals.

   80. The proposed rule is not vague, and does not vest unbridled discretion in the MFC. Rather, it reduces agency discretion in enforcement decisions and renders such enforcement easier. For instance, based on the Agency Director's pronouncements in this proceeding that the Agency does not read the constitutional amendment as requiring that there be no legitimate by-catch (TR-346), and that cooperative fishing by several licensees is feasible and encouraged (TR-343-344, 349- 350), new methods of seine fishing will be sanctioned and encouraged. It further may be anticipated that even where there is significant juvenile by-catch or inadvertent killing of juvenile fish by nets legal under the new rule, the Marine Patrol need not cite fishermen who are able to demonstrate legal use of a legal (500 square foot, two-inch mesh throughout) net.

   81. Section 373.025(2) specifies:

       
       

       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 continuing health and abundance of the marine fishery 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.

       ***

       
       

       (g) Conservation and management measures shall be fair and equitable to all people of this state and carried out in such a manner that no individual, corporation, or entity acquires an excessive share of such privileges.

       
       

   82. As described above, the greater weight of the credible evidence supports the MFC's conclusion that the proposed rule comports with the requirements of Sections 370.025(2)(a) and (2)(c). The Adherence to Commission Standards document entered into evidence states the MFC's belief, based in part upon extensive public hearings, that fewer fish will be gilled under the proposed rule. Because current spawning ratios are still below the ecological "bottom line," the Commission deems it necessary to promulgate rules which increase fish populations so as to guard against fisheries collapses, which collapses may occur at any time while fish populations remain below reasonably

       and scientifically targeted spawning ratios. The evidence in this formal proceeding is in accord.

   83. The thrust of Petitioner's concerns with 373.025(2)(b) are that the MFC did not attach the same significance to reduced landings of mullet and the concommit rise in spawning potential ratio for that particular specie as did Petitioners. Petitioners also faulted the MFC for not performing tests with a proposed legal net after the effective date of the constitutional amendment, and they wished to substitute their own flawed video tape "test." Petitioners also pointed out that the MFC commissioned no economic or sociological studies of the effect the proposed rule would have on commercial mullet fishermen, retail and wholesale fish sales, and coastline restaurant and domestic consumers of fish. However, the facts show that the MFC was aware of each of these factors as a result of its own records, research, and public hearings. The evidence in this formal proceeding shows that testimony and written material on each of these elements were considered by the MFC prior to proposing this rule, and the greater weight of the credible evidence adduced at formal hearing also supports the proposed rule. As to the Petitioners' video tape, it may be more recent than the MFC's surveys concerning two-inch mesh nets, but it was not necessarily more valid. The idea that new tests and surveys must always be performed by the MFC for every new rule proposed subsequent to a change in the law is not persuasive. That determination must remain subject to case by case situations.

       Here, the fish do not know anything about constitutional amendments and statutory enactments, and these legal changes do not convince fish to react in new ways to a historically utilized mesh size. Further, even if mullet sales continue to decrease and cost to consumers continue to increase as a result of supply and demand, the MFC expects no significant change as a result of the new rules due to the projected increase in availability of legal size mullet.

   84. The proposed rule will apply to all persons in the State of Florida and to all fish, not just mullet. There has been no showing that any individual, corporation, or entity will acquire an excessive share of such privileges. See Section 370.025(2)(g), Florida Statutes.

   85. Petitioners' showing that this proposed rule will make it more difficult to earn a living fishing exclusively for mullet does not rise to an MFC violation of the statutory standards for promulgating the rule.

   86. Central to the Petitioners' claims is the assertion that mullet fishing with a single two-inch mesh, 500 square foot seine is not commercially feasible and that commercial feasibility is required under the Florida Supreme Court's decision in Department of Environmental Protection v. Millender, 666 So. 2d 882 (Fla. 1996). Petitioners' reliance on Millender is misplaced. There, the Supreme Court was faced with a choice among three ways to measure a shrimp net for compliance with the

       500 square foot limitation in Article X, Section 16(b)(2),

       Florida Constitution. In determining the proper interpretation of the constitution, the court stated that commercial viability was relevant evidence. The fishermen in that case had asserted that only their interpretation of the constitution would have allowed the shrimp industry to survive. Since the constitution sought to limit, rather than ban, shrimp trawling, the court found it relevant to consider the commercial viability of the industry under each interpretation.

   87. The holding in Millender does not stand for the proposition that all nets defined by the MFC must be commercially viable for all fisheries, but it does mean that commercial viability must be considered.

   88. The proposed rule does not ban net fishing of any fish specie, including mullet. In fact, two-inch mesh seines are commercially feasible for most fishing, just not as efficient or lucrative because two-inch mesh will gill or entangle far fewer fish of all species.

   89. Even mullet can be caught commercially with two 500 square foot, two-inch mesh seine nets used simultaneously and/or with a cast net, but licensees may have to work cooperatively.

   90. This proposed rule, which reduces and renders uniform the mesh size throughout seine nets, removes an obsolete rule, conforms to other existing rules, maintains the integrity of the ban on entangling nets, and renders the ban on entangling nets to be more easily enforced.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Marine Fisheries Commission repeal of Rule 46-4.0081(1)(g) and substitution of Proposed Rule

46-4.0081(2)(d) constitutes a valid exercise of delegated legislative authority.

DONE AND ORDERED this 20th day of February, 1998, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 20th day of February, 1998.

ENDNOTES

1/ Rule 46-4.0081(1)(g), Florida Administrative Code, currently provides:

1. No person shall fish with, set, or place in water any seine with a mesh size larger than 2 inches stretched mesh, excluding the wing portions of the seine.

   2/ Rule 46-4.0081(2)(d), Florida Administrative Code, as proposed, reads:

   . . . Beginning January 1, 1998, no person shall fish with, set, or place in the water any seine with a mesh size larger than 2 inches stretched mesh.

   3/ Cf - Findings of Fact 57-58, that fishing with a single proposed seine net is commercially feasible for other species of fish and that two such seines can be commercially feasible for fishing mullet alone or when combined with other gear.

   4/ For purposes of this case, the pertinent parts of that constitutional amendment are as follows:

   Section 16. Limiting Marine Net Fishing. --

   1. The marine resources of the State of Florida belong to all of the people of the state and should be conserved and managed for the benefit of the state, its people, and future generations. To this end the people hereby enact limitations on marine net fishing in Florida waters to protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, overfishing and waste.

   2. For the purpose of catching or taking any saltwater finfish, shellfish or other marine animals in Florida waters:

      1. No gill nets or other entangling nets shall be used in any Florida waters; and

      2. In addition to the prohibition set forth in (1), no other type of net containing more than 500 square feet of mesh area shall be used in nearshore and inshore Florida waters. Additionally, no more than two such nets, which shall not be connected, shall be used from any vessel, and no person not on a vessel shall use more than one such net in nearshore and inshore Florida waters.

   3. For purposes of this section:

1. "gill net" means one or more walls of netting which captures saltwater finfish by ensnaring or entangling them in the meshes of the net by the gills, and "entangling net" means a drift net, trammell net, stab net, or any other net which captures saltwater finfish, shellfish or other marine animals by causing all or part of heads, fins, legs, or other body parts to become entangled or ensnared in the meshes of the net, but a hand thrown cast net is not a gill net or an entangling net.

2. "mesh area" of a net means the total area of netting with the meshes open to comprise the maximum square footage. The square footage shall be calculated using standard mathematical formulas for geometric shapes. Seines and other rectangular nets shall be calculated using the maximum length and maximum width of the netting. Trawls and other bag type nets shall be calculated as a cone using the maximum circumference of the net mouth to derive the radius, and the maximum length from the net mouth to the tail end of the net to

derive the slant height. Calculations for any other nets or combination type nets shall be based on the shapes of the individual components:

***

(f) It is the intent of this section that implementing legislation is not required for enforcing any violations hereof, but nothing in this section prohibits the establishment by law or pursuant to law of more restrictions on the use of nets for the purpose of catching or taking any saltwater finfish, shellfish, or other marine animals.

***

5/ This record also contains evidence that other fish populations are recovering, although the statistics provided did not offer so clear a nexus between other species' recovery rates and the 1995 net ban. The spawning stock ratio for Spanish Mackerel on the Atlantic Coast has risen from 10 percent in 1985 to over 40 percent in 1994. The SPR for King Mackerel has increased from 10 percent in 1987-1988 to 20 percent in 1994-

1995.

6/ Rule 46-4.002(16), Florida Administrative Code, provides: "Wing", with reference to a seine, means a panel of netting on one or both ends of the seine, which panel has a larger mesh than the main body of the seine and is used to guide fish into the main body of the seine. (Emphasis supplied)

7/ I do not find Mr. Rudloe's testimony persuasive on this point because it vacillated, and due to the absence of courses and degrees in his background, his lack of statistical training and because his measurements are unsystematic, his "reliance on scientists but not absolute reliance," because of his books are mostly anecdotal or co-authored with degreed persons not testifying, and because he is not certified by any official organization.

8/ See Rule 46-4.0081(1)(g), above, n. 1.

9/ Commercial fishermen who testified at formal hearing expressed concern that either of these net deployment methodologies advocated by the MFC and based on rule hearing testimony before the MFC would expose them to citation by the Florida Marine Patrol for illegal use of legal gear, use of passive gear, or for "stop netting." (TR-363-366) MFC's Director conceded that in order to simultaneously fish two seine nets it could take two licensed individuals, and if a cast net were added, a third fisherman licensed for that type of net would have to participate, but that prosecution for these types of net

deployments would be inappropriate. (TR-343-344 and 349-350) See existing Rules 46-4.0081(1)(b) and (c) and (4), Florida Administrative Code, and Section 370.08(2), Florida Statutes.

COPIES FURNISHED:

Ronald A. Mowrey, Esquire David K. Minacci, Esquire

L. William Porter, III, Esquire MOWREY, BARNETT & MINACCI, P.A.

515 North Adams Street Tallahassee, Florida 32301

Jonathan A. Glogau, Esquire Assistant Attorney General The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Michael A. McIntosh, Jr., Esquire Sierra Club Legal Defense Fund, Inc. Post Office Box 1329

Tallahassee, Florida 32302

Russell S. Nelson, Executive Director Marine Fisheries Commission

Suite 106

2540 Executive Center, Circle West Tallahassee, Florida 32301

Charles Shelfer, Esquire Marine Fisheries Commission

2540 Executive Center Circle, West Tallahassee, Florida 32301

Carroll Webb, Executive Director

Justice Administrative Procedure Committee

120 Holland Building Tallahassee, Florida 32399-1300

Liz Cloud, Chief

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

b/c:

David Greenbaum, Legislative Research Director Commission on Government Rules and Regulations

218 House Office Building Tallahassee, Florida 32399

NOTICE OF RIGHT TO APPEAL

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 the 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: 96-005868RP

Orders for Case No: 96-005868RP