Findings Of Fact Respondent, Norman Padgett, holds a haul seine permit, issued by the Commission, which authorizes Respondent to operate a haul seine net on Lake Okeechobee. The permit is renewable annually and is one of ten such permits issued by the Commission. The Lake Okeechobee Haul Seine Permits authorize their holders to fish by haul seine and to harvest game fish in commercial quantities, activities not legal absent such a permit. To minimize conflicts between sport fishermen and commercial haul seine permittees on Lake Okeechobee, the Commission has, by rule, prohibited seining activities in certain areas. Among the areas closed by rule to haul seining is the area south of a line that connects the northernmost point of Kreamer Island to the northernmost point of Ritta Island. That line is approximately five miles long and can be readily determined since the northernmost point of either island is visible from the other island. Also closed by rule to haul seining are those areas shoreward of a line delineated by the Commission's commercial fishing boundary buoys. The boundary line is approximately one mile lakeward of emergent aquatic vegetation. The Commission, by rule, has prohibited the use of "short" haul seines as an aid to its enforcement against haul seining in closed areas. "Sport" nets are prohibited because of the ease with which they can be deployed and retrieved. During the time period pertinent to these proceedings, the Commission's rules prohibited use of haul seine nets of less than 350 yards in length. On June 18, 1984, a crew was conducting haul seining operations under the authority of Respondent's haul seine permit. The crew was operating in the closed area south of the line established by the northernmost points of Kreamer and Ritta Islands and was warned by a Commission employee that use of a haul seine in that area was prohibited. On June 19, 1984, a crew was again conducting haul seining operations under the authority of Respondent's haul seine permit in the closed area south of the line established by the northernmost points of Kreamer and Ritta Islands. The seining operations were being conducted from one-half to one mile within the closed area. On June 20, 1984, a crew was again conducting haul seining operations under the authority of Respondent's haul seine permit. On this occasion the crew was operating in a closed area shoreward of a line delineated by the Commission's commercial fishing boundary buoys. The haul seine net being used measured 277 yards in length. Respondent was not on board the fishing vessels during the foregoing events. However, consistent with the Commission's rule, the crews were in possession of his permit. At hearing Respondent offered no evidence of what, if any, efforts he took to supervise or maintain control of the haul seine crews. His testimony established, however, that he was aware the haul seine net was less than 350 yards in length. By letter dated March 28, 1985, the Commission informed Respondent of its intent to revoke his Lake Okeechobee Haul Seine Permit. Respondent timely requested a formal hearing. The case was forwarded to the Division of Administrative Hearings and assigned Case No. 85-1312. By letter dated July 23, 1985, the Commission informed Respondent of its intent to deny his application for renewal of his haul seine permit, predicated on their prior decision to revoke his permit. Respondent timely requested a formal hearing. The case was forwarded to the Division of Administrative Hearings, assigned Case No 85-2612, and consolidated with Case No. 85-1312.
Findings Of Fact Respondent David Halfen applied for a permit from the Department of Environmental Regulation authorizing construction of a footbridge across Little Red Fish Lake in Section 7, Township 3 South, Range 19 West in Walton County, Florida. The footbridge would be 490 feet long and four feet wide with a raised area five feet high in the middle permitting small boat traffic underneath. The bridge would be constructed from treated pilings, timbers and planks and the pilings would be jetted down into the sub-strate or bottom of Little Red Fish Lake. Mr. Cliff Rohlke was accepted as an expert witness in water quality. He is employed by the Department as an Environmental Specialist with the specific duties of dredge and fill inspector. In this capacity he conducts field appraisals, reviews and makes reports of biological impacts of dredge and fill projects in conjunction with applications filed with the Department for dredge and fill permits. In this regard, Mr. Rohlke went to the site of the project and made an assessment of both the long and short-term impacts of the project on water quality in Little Red Fish Lake. Mr. Rohlke made a biological appraisal of the subject project in evidence in this proceeding as Exhibit 1. It was thus established that the short-term impacts of the project would be limited to minor turbidity and sub-strate disturbance related to the placement of the pilings. Long-term impacts will be insignificant. Based upon his long experience as a dredge and fill inspector and biologist, Mr. Rohlke established that no significant problems or impairment of water quality are associated with the construction of such a pier or footbridge by using treated pilings and timbers. Mr. Richard Fancher was accepted as an expert witness in water quality. He is the Environmental Supervisor of the Department's northwest district, supervising the Department's permitting and enforcement program in the area of dredge and fill permitting. In his years of experience with the Department, he has reviewed some 3,000 dredge and fill applications. He evaluated Mr. Halfen's application for the proposed footbridge. His review of the proposed project was conducted with a view toward whether it complied with the standards of Chapters 253 and 403, Florida Statutes and Chapter 17-3 and 17-4, Florida Administrative Code. He established that the water quality standards that the Department is charged with enforcing by these legal provisions would be complied with, with construction of the proposed project, in that the pilings for the pier or footbridge would be jetted into the sub-strate of the lake and turbidity curtains would be used to minimize the short-term deleterious effects of turbidity or sediment disturbance on the lake as a whole by confining such turbidity to the immediate area of the project. The project will not significantly affect fish and wildlife in the water body involved, nor impair water flow so as to be contrary to the public interest. Neither will any significant loss of fish or wildlife or fish or wildlife habitat be occasioned by installation of the subject bridge. Mr. Fancher was of the opinion that the bridge would impede and interfere with navigation to some extent, but not, in his opinion, so as to be contrary to public interest. Mr. Fancher, however, has not visited the site himself and has no direct knowledge as to how the lake is used in terms of navigation, fishing, water skiing and the like. Mr. Rohlke opined that navigation in terms of "normal boat traffic" would not be interfered with since on his brief inspection he saw no boats using the lake, and the bridge would have a single span raised to a five-foot elevation over the lake's surface for the purpose of permitting boats to pass under the bridge. Mr. Rohlke, however, spent only a period of less than an hour visiting the lake site and did not confer with any adjacent landowners to ascertain what uses they made of the lake. He did not measure the lake bottom depth but did acknowledge that it was of sufficient size to be used for both sailing and water skiing. He admitted that a portion of the lake would be cut off by the bridge, consisting of approximately two acres on the western side. The Petitioners, the Bannermans, as well as witnesses Klep and Hughes own property and homes on the western side of the lake and their access to the remainder of the approximately 50-acres of the lake would be partially cut off by the bridge. They would be denied some use and enjoyment of the majority of the lake. Mr. and Mrs. Bannerman have a home which fronts on the western edge of the lake. Mr. Bannerman has measured the lake and established that it is five to seven feet deep near the water's edge and approximately 12 to 15 feel deep in the center of the lake. He has a dock and a small boat on the lake and uses the boat for fishing and navigation of the lake. Fishermen frequently utilize the lake from a public access point. The lake is large enough to be used for normal recreational pursuits such as water skiing, sailing, and fishing. Mr. John Klep owns property bordering on the western edge of the lake. Access to the lake was an important consideration in his purchase of the property, and in his continuing use of it. The lake is in excess of six feet deep at his property and physically navigable. He does not wish his access to the entire lake to be restricted. Mr. Lyle Hughes has legal access to the lake conveyed to him by deed although his own property does not actually border the lake. Sailing has been his lifetime recreational pursuit and he desires to use the lake for sailing for himself and members of his family, especially the children in his family. The small sailboats for which the lake is suited generally have a mast of approximately 14 feet in height. Such a boat could not pass under the bridge if constructed as proposed, since the five-foot raised center span would only barely permit small power boats and their occupants to safely pass under it. In short, the subject bridge, while it permits small fishing and pleasure boats to pass under with their occupants, would preclude the adjacent landowners in the western end of the lake cut off by the bridge, from sailing beneath the bridge or water skiing on the lake, since their point of access for water skiing and other purposes is at their own property and it would be impossible to water ski in the lake since the bridge would not be navigable for water skiing boats and skiers. The only way sail boats could navigate under the bridge would be to use a motor, oars or paddles until the sailboat negotiates the bridge span, with attendant stepping and unstepping of the mast every time the boat passes under the bridge. This arrangement is totally impractical for those adjacent landowners to do in order to use the lake for sailing. Water skiers could not pass under a five-foot span for obvious reasons of safety. In short, it has been established that the proposed project comports with Department permitting requirements in terms of water quality impacts and impacts on fish and wildlife and fish and wildlife habitats. The project, however, has not been established to be in the public interest and not contrary to the public interest in terms of its impact on the rights of adjacent landowners to navigate the entire 52-acre lake which they presently have access to for the above-mentioned reasons. Any approval of the permit applied for must be in conjunction with a condition that the bridge be so constructed that sailboats can pass through without having to unstep their masts and water ski boats and skiers can pass through it, possibly through use of a movable span. An additional and more basic problem exists in approving this project as proposed. Department's Rule 17-1.203, Florida Administrative Code requires that a permit applicant execute and submit, with his application, an affidavit of ownership of the property involved in a dredge and fill project. The affidavit and rule requires that a permittee be either the record owner, lessee, record easement holder or an applicant to the record owner of the property for an easement to the property described in the application, and in the affidavit. Mr. Halfen submitted this affidavit with his application certifying that he was the record owner, lessee, or record easement holder of the property upon which the bridge was to be constructed and of the property landward of the construction site, and either had or would have the permission of all other persons with a legal interest in the property prior to undertaking the project. It is the policy of the Department to require the applicant to be the record owner of the submerged land, his lessee or easement holder and to submit the necessary affidavit of ownership or control. The rationale for this policy is so that the Department "will not knowingly issue a permit for dredging and filling or other activities which would constitute a trespass." 1/ The property involved at the project site is subject to an active title dispute being litigated in the Circuit Court. In dispute is the question of whether the title to the lake bottom is held by the Petitioners, the Bannermans or FDIC, Mr. Halfen or the State of Florida. The property was initially conveyed into private ownership by the President of the United States, Woodrow Wilson, in 1918 as shown by stipulated Exhibit 2 in evidence. The federal government thus conveyed the pertinent property, Lots 1 and 2 of Section 7 in Township 3 South of Range 19 West together with other unrelated land to one Carl Froholm. That conveyance transferred all of the land in Lots 1 and 2 without making reference to Little Red Fish Lake. It does not indicate any reservations of public rights in and to the waters located on that property. It does not indicate any reservation of title to the bottom of the lake to be held by the State or Federal governments. Thus, the legitimate title question now being litigated in the court, is whether the Petitioners, Mr. Halfen or the State of Florida own the lake bottom upon which the bridge will be constructed and not simply whether DNR approval for its use has been obtained. Resolution of that quiet title action is still pending and argument and legal authority has been extensively briefed and provided to the Hearing Officer in the form of the various parties' proposed findings of fact and conclusions of law and memoranda. 2/
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the application by David Halfen for a dredge and fill permit, as described above, be granted, provided the plans and construction of the proposed bridge are sufficiently altered so as to permit water skiers and sailboats to safely and simply navigate and pass under or through the area of the proposed bridge and provided that Mr. Halfen, at the conclusion of the pending quiet title action, can establish that he has ownership or other right of control of the property on which the project will be built. DONE and ENTERED this 14th day of February, 1985, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1985.
The Issue The issue is whether proposed amendments to Rule 46-39.005 adopted by the Marine Fisheries Commission, setting maximum lengths for nets used for the commercial harvesting of mullet, establishing one week alternating closure periods for mullet harvests during the late fall/ early winter roe season, setting a 500 pound per vessel per day harvest limit during the pre-roe season and a one thousand pound limit if two licensed commercial fishermen fish together during the roe season, constitute invalid exercises of delegated legislative authority. The Petitioners assert that the economic impact statement which accompanied the notice of rulemaking is inadequate.
Findings Of Fact The Parties Sigma International, Inc., owns and operates a mullet processing, wholesaling and exporting business in Florida. The restrictions embodied in the proposed rules will substantially affect its interests. Seafood Consumers and Producers Association is a non-profit association of businesses and consumers interested in fishery resources and fish harvesting in Florida and elsewhere. The rules would substantially affect interests of the association and the interests of individual members of the association. Bob Combs Fish Co. are fishermen, a first receiver of fish caught by others, and a fish wholesaler doing business in Florida. The proposed rules would substantially affect its interests. Everglades Fish Corporation are fishermen, are first receivers of fish caught by others, and fish wholesalers doing business in Florida. The proposed rules would substantially affect their interests. Houston Brown is a fisherman who does business in the State of Florida. The proposed rules would substantially affect his interests. Triad Seafood is a first receiver of fish caught by others, and a fish wholesaler which does business in Florida. The proposed rules would substantially affect its interests. Horse Weeks Fish Co. is a first receiver of fish caught by others, and a fish wholesaler which does business in Florida. The proposed rules would substantially affect its interest. A.P. Bell Fish Co. are fishermen, a first receiver of fish caught by others, a wholesaler, retailer, and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interests. SaltWater Enterprises, Inc., are fishermen, a first receiver of fish caught by others, a wholesaler, retailer and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interest. The Fisherman's Market, Inc., is a first receiver of fish caught by others, a wholesaler, retailer and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interest. The Marine Fisheries Commission (Commission) is legislatively created and assigned to the Department of Natural Resources. It has authority to adopt rules. Sections 370.025, 370.026 and 370.027(1), Florida Statutes (1991). It adopts fishery conservation and management measures which promote the continued health and abundance of marine fisheries resources in Florida. Section 370.025(2)(a) and (c), Florida Statutes (1991). The Fish Black or striped mullet is a popular food sought for the flesh of the fish and especially for its roe, which is available annually during the autumn spawning season beginning in October. Mullet roe is highly valued by the Japanese, and much of the roe is exported to Japan. Mullet is the most intensively harvested finfish in Florida; in 1989 mullet accounted for 19.3 percent of the state's total finfish catch. Florida is the source for 85 percent of the nation's black mullet catch. Since 1976 the demand for the export of black mullet roe has increased, which has increased fishing pressure on the species' egg bearing females. Roe-bearing fish caught during roe season are about four times as valuable as the fish would be if caught in the pre-roe season. Mullet has a shelf life as a fresh fish of no more than four days due to the oil in its flesh. Although it can be frozen, in the Florida retail market frozen mullet is not considered a desirable food. There is a California market for frozen mullet, however, where it is popular with Asians. Since the closures during the roe season proposed in the Commission's rules will be for periods of one week, there could be days when no fresh mullet would be available to Florida consumers. Earlier Regulation of the Black Mullet Fishery - 1989-1992 Black or striped mullet (mulgi cephalus) are regulated by the Commission as a restricted species. Section 370.01 (20), Florida Statutes (1991), and Rule 46-39.001(4), Florida Administrative Code. Size and bag limits are imposed on recreational takings of mullet. Commercial fishermen taking mullet must hold a saltwater products license with a restricted species endorsement. When they sell their catch they must provide a trip ticket to the purchaser of the fish which includes the fisherman's name and license number, the gear used in the catch, the place of the catch, the species caught and the number of pounds of fish caught. This information is then sent by the purchaser to the Department of Natural Resources, and is an important part of the Department's data base used in regulating the fishery. The Marine Fisheries Commission began a study of black mullet in 1987, and adopted rules restricting commercial black mullet fishing in 1989. Those rules established gear restrictions, amended certain qualifications for licensure to catch mullet in commercial quantities, and set roe season closure periods for mullet fishing. During 15 weekends of the year, the fishery was closed for 36-hour periods. The minimum net size for mesh was set at three inches. Amendments to the rules in 1990 closed new areas to fishing, set minimum net mesh size which could be used during the roe season at four inches, and prohibited commercial fishermen from using spotter aircraft to locate schools of fish. The weekend closures were extended from 36 to 54 hours, and two more weekends were closed for fishing. In drafting all its management measures, the Commission attempted to make it possible for fishermen to fish year round for mullet, and thus make fresh mullet available to consumers throughout most of the year; See the Purpose and Effect Statement of the rule published at 18 Florida Administrative Weekly at 4931, which reflects this Commission policy. In 1991 the Commission debated whether additional regulation was necessary for the mullet stock and proposed new rules and amendments to existing rules which were published in Volume 17, No. 32, of the Florida Administrative Weekly on August 9, 1991, at pages 3593 et seq. but, as noted above, the validity of these rules was challenged. In a final order that was issued on December 9, 1991, provisions of those rules were found to be invalid exercises of delegated legislative authority (DOAH Case Nos. 91-5408R and 91-5422R). The District Court of Appeal affirmed that determination in the opinion entered in Florida Marine Fisheries Commission v. Organized Fishermen of Florida, 610 So.2d 92 (Fla. 1st DCA 1992). Those invalidated rules had their genesis in a decision made by the Commission in February 1991 which set a statewide spawning potential ratio (SPR) for black mullet. The SPR is a measurement tool used by the Commission and by other regulatory groups, such as the Federal Fishery Management Councils, in the regulation of fish stocks. It is a measure of the biomass (essentially the total weight) of those fish capable of reproducing, divided by an estimate of what would have been the total biomass of fish of reproductive age if there were no fishing at all in the fishery. The goal the Commission set of maintaining a 35 percent SPR for black mullet was chosen using the best information available. The goal is a reasonable tool for the Commission to use in assessing the effectiveness of any of its efforts to manage the black mullet population to produce maximum stock abundance. The 35 percent target is the minimum level which could be set to provide adequate management of the stock and avoid the risk of a dramatic reduction in the number of fish available. The Commission was disappointed that its August 1991 efforts to increase regulation (and in its view, protection) of the mullet population had been turned back through litigation. It credited data on mullet landings showing a continuing decline in the mullet population. This led the Commission to believe that the spawning potential ratio for mullet in the 1991-1992 fishing year had declined to 18-25 percent, well below the target of 35 percent. Review of nine management options and debate at its August 1992 meeting led the Commission to advertise proposed new rules and amendments to existing rules published in Volume 18, No. 35 of the Florida Administrative Weekly at pages 4931 et seq. on August 28, 1992. According to the Purpose and Effect Statement and Summary for these rules the changes proposed to the regulatory regime for black mullet would do six things: proposed rule 46-39.0036 would prohibit the recreational harvesting of mullet from October 1 through October 15, from November 1 through November 15, and from December 15 through January 15 each year; an exception to the closures would be recognized for possessing cut mullet to be used on boats as bait; an amendment was proposed to existing rule 46-39.005 to prohibit the use of gill or trammel nets or beach or haul seine nets longer than 600 yards; subsection (4) of existing rule 46-39.005 was deleted, it had closed the fishery to commercial operation during weekends in the roe season; a new subsection (5) was proposed to rule 46-39.005, which would close the fishery to commercial harvests for the same periods specified for recreational closures; a new subsection (6) was also proposed for rule 46-39.005, which set a limit on commercial harvesting of mullet to 500 pounds of mullet per vessel per day from July 1 through September 30, which is the pre-roe season. At its meeting of September 25-26, 1992, the Commission conducted a legislative-type hearing under Section 120.54(3), Florida Statutes (1991), for the rules it had noticed for adoption. More than 60 people commented on the proposed new rules and amendments to existing rules. On September 26, 1992, the staff of the Commission made a presentation of options it believed were available to the Commission to achieve increased SPR for black mullet and the Commission deliberated using all the information placed before it. Based upon the rule making record compiled, the Commission voted to make changes to the text of the rules as they had been published for comment on August 28, 1992. The Commission decided that instead of two week alternating closures of the mullet fishery for 61 days during the roe season (from October 1-15, November 1-15 and December 15-January 15), it would close the fishery for 56 days using alternating one week periods (from the first through the seventh and fifteen through the twenty-first days of the months of October, November, December and January). The proposed 600-yard maximum net length and 500-pound per fisherman trip limit during the pre-roe season remained, but an increased limit of 1,000 pounds per vessel during the roe season was added if two licensed commercial fishermen used a single vessel. These changes were published in Volume 18, No. 42, of the Florida Administrative Weekly, pages 6221 et seq., on October 16, 1992, as a notice of changes to the Commission's proposed rules. DSPOPS Model for Estimating Spawning Potential Ratio Authorities which manage stocks of pelagic fishes commonly assess the condition of the stock with biological models. Models attempt to account for dynamics of a fishery represented by variables, in an effort to mimic the behavior of the population in its natural state. The models' results provide managers with as accurate an estimate of future fish populations as current science can provide. The choice of a particular model is significantly affected by the data available to be loaded into the model equation. How well any model mimics the natural population necessarily is affected by the accuracy of each of the values used in running the model. The federal National Marine Fisheries Service uses models to assess the condition of stocks of king mackerel, Spanish mackerel and dolphin. The Florida Marine Fisheries Commission has used similar a model known as GXPOPS 1/ to manage the red drum population, with good results, and another for management of Spanish mackerel, which has been brought back from the point of collapse (i.e., a dramatic change in population from an insufficient number of juveniles reaching adulthood). Commission staff chose the biological model known by the acronym DSPOPS 2/ to analyze the current spawning potential ratio of the black mullet fishery. The DSPOPS model is rather sophisticated and contains a significant number of input parameters or variables, such as growth rates, age at sexual maturity, observed harvest levels, recruitment and mortality. The value for some of these parameters are relatively well known through biological sampling, such as age, size, sex and maturity. Values for others, such as mortality of black mullet due to fishing, are subject to some debate. There is sufficient data available to use the DSPOPS model. The model can be run using the high and low estimates for input variables, which yields a range for the SPR, based on those runs. Data the Commission staff used to run the model came from the southwest Florida area. About 75 percent of all mullet landings are made there (especially in the Tampa area), and there is no reason to believe that the dynamics of the black mullet population operate differently there than in the panhandle area or in eastern Florida waters. Catch and effort data for all areas of the state are sufficiently similar to show the fishery is a single unit. Analysis of mullet show Gulf and Atlantic mullet are part of a single gene pool. Moreover, the statute encourages the Commission to manage species populations as a single biological unit. Section 370.025(2)(d), Florida Statutes (1991). The Commission used data only for female mullet, which is appropriate when calculating the spawning potential for a fish where eggs are a limiting factor for the number of fish in a population. Recruitment is a term that refers to those fish that survive the egg and larval stages and eventually mature into adults which can be harvested with fishing effort. There is a relationship between the number of fish able to spawn and the number of fish that are added or "recruited" into a fishery as the result of the spawning, which is known as the spawner recruit relationship. Unfortunately, the spawner recruit relationship cannot be estimated for mullet with enough precision to incorporate it into the model. To account for this, Commission staff ran the model assuming constant recruitment, that is, the assumption was made that there is no relationship between spawning stock and recruitment. This produces an estimate of spawning potential ratio that may be accurate or may be higher than it would be had a spawning recruitment relationship been determined (or assumed). Thus, use of a constant recruitment assumption tends to produce an optimistic assessment of the spawning potential ratio. The most basic variables used in a biological model designed to predict future fish stock are those for mortality rates. In fisheries science, total mortality is universally represented as the variable "Z." It is equal to the rate of fishing mortality, represented as "F," plus the rate of natural mortality "M." 3/ Thus, the equation is that Z = F + M. This is as basic to fishery science as the equation "debits = credits" is to accounting. It is also significant that under this equation, if any two of the three variables are known, the third can be calculated. Non-Parametric Statistics and Independent Review Many of the parameters used in the DSPOPS model have threshold values, they are not parameters which would be expected to have a normal or bell-curved type distribution (such as the average age of fish in a population). Threshold values are non-parametric statistics, and there are no confidence intervals or other measures of variation, such as coefficients of variation, associated with them. This does not mean that the expected SPR levels produced by the model lack utility, are unscientific, or are inherently untrustworthy. Other efforts are made to test the correctness of the parameters values used in the model, or in using the model's output. Using the model to estimate a range of SPR for various regulatory regimes is the best way to manage a fishery. It is for this reason that the Department convened an independent review panel to evaluate the values which its staff had loaded into runs of the DSPOPS model, to represent what would happen in the fishery if various management measures were imposed. This group of outside scientists met with the Commission staff on July 9-10, 1992, to review the data and reach a consensus on the appropriate values to be used for all parameters introduced into the model equation. They cross checked data, and evaluated its consistency with published studies. Although Petitioners complain that scientists who testified for them at the Section 120.54(4) final hearing on the 1991 rules were not invited to this meeting, the Commission's explanation for this is persuasive. The scientists invited were independent, had no association with the Commission, DNR or the Petitioners, and had no other prior associations or biases militating against reaching a consensus. The panel concluded that data available showed female SPR was in the range of from 15 percent to 26 percent, with the most likely value being 21 percent or less. F Value Determined by Tag/Recapture Data and Z Using Time Series of this Data Dr. Behzad Mahmoudi, of the Florida Marine Research Institute, performed a tag/recapture experiment on mullet in southwest Florida in an attempt to determine the F value (fishing mortality) to be used in the DSPOPS biological model. The determination of F can be a problem; for some fish species it is not available. In a few fisheries researchers are assigned to observe and record activity on commercial fishing vessels; there F (fishing mortality) may be calculated by analyzing catch per unit of fishing effort, i.e., the number of pounds of fish landed per hour or per day of fishing. Florida's data gathering through trip tickets does not permit this, since it provides no means to account for the common situation of a fishing trip which yielded no mullet catch. Dr. Mahmoudi's experiment for determining fishing mortality was a good one, which carefully accounted for the biases normally associated with studies designed to estimate F. In a tagging experiment mullet are handled, a smooth plastic filament streamer or tag inserted in a small slit, and then the fish is reintroduced into the waters of the Gulf. These streamers are thin enough to be pulled through the mesh of the crown of fishing caps, where they are sometimes worn by fishermen disinclined to return them to the Commission's researchers, although they are paid $5.00 per tag returned. These tags are then returned to the Florida Marine Research Institute by fishermen or fish processors when tagged fish are caught. When used in conjunction with data on landings of mullet, the proportion of tags returned from among those landed gives an indication of the fishing mortality for the species. The fish were tagged at the beginning of the '89-'90 and '90-'91 seasons, and captured over the following two seasons. Fish tagged in the first year may not be caught until the second year or later. Dr. Mahmoudi also performed ancillary experiments. He put a sample of tagged fish in pools, and evaluated mortality over time caused by the tagging process itself. He also evaluated tag rejection by monitoring tagged fish placed in pools to determine the proportion of spontaneous tag loss. Lastly, he and associates evaluated the non-return rate for tagged fish commercially caught by going to fish processors, and examining commercial catches made by licensed fishermen. After the fishermen and processors had finished with the fish, and returned all tags that were going to be returned, researchers examined those fish to see how many tags yet remained and had not been removed or returned to the Commission. This permitted calculation of the rate at which tags on fish caught are returned. Through these three ancillary experiments, Dr. Mahmoudi accounted for the major variability likely to be introduced into estimations of F (fishing mortality) based on tag recovery. He did not add a specific adjustment to his F value for any increased predation on tagged fish, for there was no reason to believe that it would be anything other than de minimis. Due to the nature of the tag and the placement of the tags on the fish, it is unlikely that tagged fish were ensnared in nets at any higher rate than untagged fish. It is also significant to remember that the recovery rate for tags is not affected by fishing effort. It is based on the percentage of tags which are returned from among fish caught, and is a proportion of fish caught. The more fishermen fish, the larger the absolute number of tags returned, but if the price of fish falls, and fishermen make fewer fishing trips, the proportion of tags returned does not change, although fewer tags may be returned. The range of values which Dr. Mahmoudi estimated for F based on his tag return data of .88 through 1.13 are quite accurate. Moreover, the numbers are consistent with published studies and confirmed by separate calculations discussed below which are consistent with these F values. By treating tagged fish as if they were the whole fish population, Dr. Mahmoudi was also able to determine how many tags were returned at different time intervals, and by using this time series data, was able to calculate a value for Z (total mortality) of 1.5. Since he then had values for both F and Z, he was able to calculate the value of M (natural mortality) as .3. Independent Calculation of Z Through Catch Curve Analysis A commercial catch of fish contains individual fish of different ages. When gear such as gill nets are used, small fish escape, but after the fish reach a certain size, all but the biggest fish are caught (big fish may bounce off or swim around gill nets). The range of ages of the fish caught in gill nets mirrors the age distribution in the fish population, after an adjustment for the smallest and largest fish which escape gill net capture. It is possible then to calculate the slope of a line by plotting the age of fish versus the percent of fish of that age in the catch, and by this method to derive a value for Z (total mortality). Dr. Mahmoudi did this. He then went through an additional verification step. He made a catch of fish using a purse seine net which, unlike a gill net, catches all fish regardless of size. He was able to superimpose the catch curve analysis from this purse seine catch over that generated by the catch curve for fish caught with gill nets, and they matched. This gave him two additional independent and consistent estimates of Z, which also were consistent with his Z estimate of 1.5 from the tag/recapture data. Corroboration of Z value by Otolith Size Mullet have bones in their ear which lay down layers of clear and opaque material creating rings. Counting the number of rings yields a determination of the fish's age. Dr. Mahmoudi counted otolith rings using a large sample of mullet, and he determined the average age of mullet in the fishery was 3.5 to 4 years. This is consistent with the estimates of Z as being 1.5, because use of 1.5 in the equation Z = F + M means that the average age of mullet in the fishery is 3.5 to 4 years old. Independent Calculations of M Natural mortality, or M, is a significant parameter in the DSPOPS biological model, and it is important to have a good estimate for it. Dr. Mahmoudi used three independent methods to calculate a value for M. The first he used, Pauly's method 4/, is one which can be done with little data, but provides a somewhat weak estimate. It was developed for use in estimating sardine populations, and is based on water temperature readings, and the rate of the growth of fish. It yields an estimate of mortality which is accurate within a range of from one half to two times the actual mortality rate for the fish. The independent review panel determined that it was likely that the estimate for mullet of .58 using Pauly's method would be on the high side, i.e., closer to the twice than to one-half of the actual mortality rate. Dr. Mahmoudi then calculated an M value with a different method, Alagaraja's method 5/, which provides a stronger estimate, but requires knowing the maximum age of the fish attained in an unfished environment. This is somewhat difficult because black mullet have been fished in Florida waters for more than 50 years. Other experiments in the scholarly literature showed mullet have been found that were at least ten old, so an age of at least ten years was appropriate and when used in Alagaraja's method yielded a value for M of .4. The consensus of scientists on the independent review panel was that the maximum age of mullet in an unfished population was probably closer to 15 years of age, and using that value, the Alagaraja's method yielded a M value of .3, which was consistent with the M value generated in the tag/recapture study, and reasonably close to the .4 value computed for M under Alagaraja's method using a maximum age of ten years for mullet. The third method was to calculate M based on the values of F and Z determined from the tag/recapture study. Summary of Biological Data For Z there were two independent estimates derived from catch curve analyses (one using gill nets and the other purse seine net catches) and the determination from otolith rings. There were two separate calculations of M using Pauly's and Alagaraja's methods. F was calculated from the tag/recapture study. Independent estimates for Z and M were derived from Dr. Mahmoudi's tag/recapture data, and all were consistent. There are number of reasons, therefore, to have great confidence in the values for the significant variables Z, F and M used by Dr. Mahmoudi in running the DSPOPS model. As with the values for other parameters loaded into the DSPOPS model, which have no statistical confidence intervals associated with them, it is not possible to say that the value of 1.5 for Z is correct within plus or minus X thousandths of a point, at the .05 level of confidence, as is commonly done with parametric statistics, such as reports of opinion polling data. For this reason, separate computer runs were done using high and low estimates of significant variables such as Z (total mortality), F (fishing mortality), and M (natural mortality), paying special attention to the estimates likely to produce the highest SPR value. Effects of Cold Fronts on Catchability and the Effect of Effort-shifting by Fishermen. The more cold fronts which occur during the closure season, the more likely it is that a higher proportion of fish will escape, and conversely if many cold fronts occurred during the open weeks, a larger proportion of fish ready to spawn would be caught. Dr. Mahmoudi ran simulations using data from 17 years on the occurrence of cold fronts, and using what is similar to a random number generator, performed a Monte Carlo simulation for likely occurrences of cold fronts based on the 17 years of data. This data was incorporated into the projections of likely SPRs for different regimes. Net Limitations The Petitioners attack the 600-yard net limitation found in the rule as arbitrary. At the time the rule was being considered, the average net length used in the fishery was about 1,000 yards. The reduction in the maximum net length would have an effect on the catch, but while catch may vary inversely with maximum net length, it does not vary directly with a reduction in net length. Consequently, Dr. Mahmoudi estimated that the 40 percent reduction in the maximum net length would result in an approximately 15 percent reduction in catchability. While this assessment of the effect of the reduction in gear is judgmental rather than statistical, it is reasonable, and not arbitrary, i.e., a judgment unsupported by fact or logic. Regulatory Options For the option proposed of two-week closures during the roe season of October through January of each year, coupled with the 600-yard net limitation and a 500-pound catch limit per vessel, the estimation of SPR mullet would achieve would be from 30 percent to 39 percent. This was the management option discussed at the Commission's August 1992 meeting which led it to the publication of the first iteration of the rule in the August 28, 1992 edition of the Florida Administrative Weekly. After that publication and before the legislative-type public hearing on the rule which had been noticed for adoption, Dr. Mahmoudi ran the DSPOPS biological model to consider four more management options, three of which were suggested by commercial fishermen or their representatives. The option which suggested the highest SPR range was not necessarily the best option, however, because the Commission also had to consider what the escapement rate would be for roe-bearing mullet during the roe season for that option, and how enforceable that option was likely to be. The commercial fishermen made it clear at the pubic hearing that they would prefer a one week open/one week closed regime, as opposed to the published text of the rule which would have closed the fishery for alternating two week periods. In addition, the rule was amended to allow two licensed fishermen on a single vessel to catch 1,000 pounds of mullet per boat trip during roe season. Fishermen believed that by fishing together when fish were more valuable they could lower their expenses and thus achieve a higher profit margin during the open weeks. The Petitioners argue that had the Commission chosen option 1, a 72- hour-per-week closure during roe season, with one 10 day closure, the predicted SPR would be approximately 32.3 percent (with a range of 27.9 to 36.7 percent), while option 4, the proposal for week one/week off closures, would produce an average SPR of 34.2 percent (having a range of 29.8 to 34.2 percent). They see the options as essentially identical in the SPR but would find option 1 much easier to live with, since it would be easier for fish processors to maintain their labor forces with shorter closures. Option 1 would also make it less likely that there would be many periods when no mullet would be available to retail consumers of fresh mullet since with a four-day shelf life, week long closures could produce periods when fresh mullet could not be found and 72-hour closures do not. The longer the closure period, the more likely closures will coincide with cold fronts; it is closures during these frontal periods which permit the escapement of the most fish. The significant differences between option 1 and option 4 are that under option 1, approximately 20 percent more spawning females would survive the roe season, but under option 4 (which is essentially the option the Commission adopted), the increase in the number of spawning females surviving through the roe season would be 48 percent. Option 4 intuitively is a better management option if the goal is to reach spawning potential ratio of 35 percent, the minimum ratio to sustain stock abundance over time. The Commission did adjust the closure period to help the commercial fishermen by switching the closures periods from a two-week on/two-week off regime to a one-week on/one- week off regime. The Economic and Small Business Impact Statement As is often the case with legislation, the goals stated in Section 370.025(2), Florida Statutes (1991), can be harmonized, but only with some difficulty. Section 370.025(2)(b) requires the Commission to base its conservation and management measures upon "the best information available, including biological, sociological, economic and other information deemed relevant by the Commission." Section 370.025(2)(c), Florida Statutes, requires that those measures "shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis." The Petitioners interpret this to require the Commission to achieve its biological goals with the least possible negative impacts on the economics or social conditions in the fishery. This is simply not what the statute says. No doubt those regulated would hope that the Legislature would require the least possible impact on them. But what was enacted was the mandate that the Commission's primary goal is to insure the continuing health and abundance of the species, and after doing so, then to permit reasonable quantities of annual harvest which can be sustained over time. The economic impact statement (EIS) was prepared by an economist, using data from a variety of sources. The statement itself is 16 pages long, it contains three pages of references, five figures to illustrate points, and six pages of tables of data to support its conclusions. Much of the important information was derived from a 1989 study published by the Institute of Food and Agriculture Science at the University of Florida by Robert Degner and others entitled "An Analysis of Potential Regulatory Changes on the Economic Structure of the Eastern Gulf of Mexico Finfish Industry Centered in Florida" (Reference 11). Section 3 of the EIS estimates the economic benefits and costs to persons directly affected by the proposed amendments. It analyzes who are the persons directly affected (Section 3.20); the costs and benefits of having no regulation, of maintaining current regulations, or of imposing the new regulations published in the August 28, 1992 edition of the Florida Administrative Weekly (Section 3.30); the result of changes in net lengths (Section 3.40); the result of the seasonal closures (Section 3.50), and of trip limits (Section 3.60). It contains as well an analysis of the impact of the proposed rules on competition in the open market for employment in Section 4.00, a small business impact statement in Section 5.00, and an analysis of alternatives in Section 6.00. Section 7.00 evaluates costs to the agency and to local governments. Section 8.00 describes the data and methods used by the Commission in making its estimates. The Petitioners presented testimony at final hearing of an economist that many of the views expressed in the economic impact statement are misinterpretations of economic data or are in error. It is essential to remember that the purpose of rulemaking is not to produce assessments of potential economic impact which can withstand the intense scrutiny of a Ph.D. dissertation. Rather, the EIS is required to insure that the agency considers each of the topics required in the statutory economic impact analysis before settling on a policy which will be embodied in its rule, and to give affected persons the opportunity to bring to the attention of the Commission information which could lead to other regulatory choices, if the Commission is persuaded by that economic evidence or argument. Basically, Mr. Murray's testimony at final hearing argued that the Commission's economic impact analysis focused on macro-economic results of the proposed regulations, but not enough on micro-economic results, that is, impacts on individual households and business (Tr. 458). The EIS concentrated on such things as estimates of total dollar losses caused by the regulation proposed. In Section 3.20 the EIS defines the persons directly affected by the rules as "those engaged in the directed harvest of mullet for commercial purposes;" and commercial harvesters (fishermen) were estimated to be between 455 and 3,150 persons, based on estimates in two sources (EIS at 5). The fishermen generally work alone, as two-man crews, and in a few instances in six to eight fishermen groups. These estimates of those directly affected appear to have an adequate basis. While a broader number of people will feel the pinch of the rule (for instance consumers wishing to buy fresh mullet at retail) they are indirectly rather than directly affected, since there is no prohibition against possession of mullet purchased at retail for home consumption during closure periods. The statute requires the analysis of the effect on those persons who will be prevented from harvesting mullet during closure periods and the EIS is not deficient for limiting its analysis to those whose actions would be directly regulated by the Commission. The section of the EIS dealing with the impact on competition and the open market for employment acknowledged that the rule would have seasonal affects on employment and the incomes of persons in roe mullet fishing and processing businesses (EIS Section 4.00 at 9). Most all of the fishermen are small businesses, so there is no effective way to tier the rules to impose lesser restrictions on small businessmen and ultimately achieve the impact the Commission intends to achieve. If small businesses were exempted, no regulation could be effective. EIS has an analysis of the effect on the standing stock of fish and the dollar value of that stock under four scenarios, (1) under equilibrium conditions with no regulation, (2) the then current weekend closure and net size regulations, (3) under the proposed rule as published and (4) under the assumption that the rule would result in an increased recruitment to the fishing stock of an additional 10 percent. The dollar value for the fish used in the these evaluations is probably inappropriate (the value is $6.70 for each fish, which is the ecological value the Department of Environmental Regulation was considering establishing for fish killed through violations of ecologic regulations). What is significant is the comparison of the increase in standing stock in each scenario, as well as the dollar value ascribed to that stock. Commissioners, legislators, or anyone else could interpret the dollar value by making different dollar assumptions for the stocks levels projected. Mr. Murray's written comments pointed out to the Commission that a better value might be 60 per pound. The EIS does provide a means of comparing the benefits of not adopting the rule to the benefits of adopting the rule, at least as far as an increase in the size of the fish stock is concerned. Proper notice of the proposed rule was sent to the Director of Economic Development, the Bureau Chief of Minority Business, and the Small and Minority Business Advocate, as well as to the Joint Administrative Procedure Committee. The Marine Fisheries Commission received neither a response nor an objection from any of these agencies. The Commission amended the proposed rules in significant ways in an attempt to relieve the burdens which the fishermen argued they would suffer if the rules were adopted with no changes. The one week on/one week off closure periods were substituted for the two week closure periods originally proposed, and the trip limit was amended to permit two licensed fishermen to fish in a single boat and bring in 1,000 pounds of fish during the roe season. The agency thus seriously considered alternatives to achieve their management goals while ameliorating the economic impact on those regulated. This shows that the economic information contained in the economic impact statement was seriously considered by the Commissioners. The only economic objection actually voiced to the Commission on September 25, 1992, during public testimony by Mr. Murray was that the EIS did not ascribe sufficient value to mullet flesh taken during roe season, but concentrated on the value of the roe. He informed the Commission that for some sellers, fresh mullet flesh was 80 percent of their sales, and that two week closures could put them out of business. (Ex. 12, at 57-58). This error in the EIS was remedied by Mr. Murray's testimony.
The Issue As provided in the notice of hearing, the issues for disposition in this proceeding are whether agency statements within a memorandum and notice of Final Executive Order issued by the Department of Environmental Protection on July 5, 1996 are rules subject to sections 120.535 and 120.54, Florida Statutes, and if so whether the statements violate those sections. 1/ Petitioners pled only a violation of section 120.54, Florida Statutes, and contend that the remedy they seek, a determination of the invalidity of the agency statements, is available without recourse to section 120.535, Florida Statutes. At hearing, the parties, including Petitioners, availed themselves of the opportunity to elicit evidence related to section 120.535, Florida Statutes.
Findings Of Fact Petitioners are shellfishers who harvest and relay in the affected areas in Brevard County, Florida. Intervenor is a resident of Indian River County who utilizes the areas affected by the Department of Environmental Protection (agency, or DEP) statements at issue in this proceeding. The standing of these parties is uncontroverted. Respondent, DEP, is the state agency charged with the administration, supervision, development and conservation of the natural resources of the state, as provided in section 370.013, Florida Statutes. "Saltwater fish" includes shellfish, among others. Section 370.01(2), Florida Statutes. DEP is given the authority in section 370.021, Florida Statutes, to make, adopt, promulgate, amend and repeal all [rules and regulations] necessary or convenient for the carrying out of the duties, obligations, powers, and responsi- bilities conferred on the department or any of its divisions. [Emphasis added] Persons violating any of the rules and regulations adopted under the agency's authority are guilty of a misdemeanor. Section 370.021(2), Florida Statutes, describes penalties for various violations of Chapter 370 or the rules of the agency or any rule of the Marine Fisheries Commission. Section 370.021(3), Florida Statutes, provides that [[r] ules and regulations] shall be admitted as evidence in the courts of the state when accompanied by an affidavit from the secretary of the department certifying that the [rule or regulation has been law- fully adopted, promulgated, and published]; and such affidavit shall be prima facie evidence of proper adoption, promulgation and publication of the rule or regulation. [Emphasis added] Section 370.071(l), Florida Statutes, provides, in pertinent part, that DEP ... is authorized to adopt by rule regulations, specifications, and codes relating to sanitary practices for catching, handling, processing, packaging, preserving, canning, smoking, and storing of oysters, clams, mussels, and crabs. Consistent with its specific authority in sections 370.021 and 370.071, DEP has adopted Chapter 62R-7, Florida Administrative Code, "The Comprehensive Shellfish Control Code." Included in the comprehensive code is rule 62R-7.004, Florida Administrative Code, which defines various classifications of harvesting areas, adopts by reference Shellfish Harvesting Area Atlas maps, and describes circumstances for opening or temporarily closing harvesting areas in the event of red tide outbreak or other emergencies or when other criteria are met. Rule 62R-7.005, Florida Administrative Code, also adopts by reference specific maps of growing areas and harvesting areas in the Shellfish Harvesting Area Atlas published by the agency. Rule 62R-7.005, Florida Administrative Code, describes boundaries of classified areas throughout Florida, county by county, and establishes operating procedures. Rule 62R-7.005(29) (j), (k), and (l), Florida Administrative Code, establishes conditionally approved, conditionally restricted and prohibited areas of Body D waters in Brevard County, Florida. The boundaries of each are described in explicit detail; further, temporary closing to shellfishing is provided for when ... five day cumulative rainfall as measured in the immediate vicinity meets or exceeds 2.68 inches. The area will be reopened when bacteriological levels meet standards as described in Rule 62R-7.004 and fecal coliform levels in shellfish return to normal background levels so that consumption of shellfish will not be a hazard to the public health. The history note to Rule 62R-7.005, Florida Administrative Code, reflects that the rule was new on January 4, 1987 and was amended May 21, 1987, August 26, 1987, August 10, 1988, August 31, 1988, October 27, 1977, July 18, 1989, August 30, 1989, November 11, 1990, January 9, 1991, November 5, 1992, May 6, 1993, May 31, 1994 and May l, 1995. Body D is a shellfish harvesting area located in the Indian River, south of the State Road 528 bridge and north of the State Road 518 bridge, in Brevard County. DEP conducted a sanitary survey of Body D pursuant to the National Shellfish Sanitation Program Manual and released its findings in a document dated June 13, 1996. The first sentence of the document, in a narrative introducing the detailed survey procedures and results, states: Reclassification of the Body D Shellfish Harvesting Area in Brevard County is proposed for the harvest of oysters, clams and mussels [through amendment to 62R-7.005 (29)], the Comprehensive Shellfish Control Code. [Respondent's exhibit no. 5, emphasis added] The narrative summarizes the proposed classification changes, by total acreage, and projects an adverse economic impact due to increased closures. The narrative further states that the current classification of Body D is based on a comprehensive survey conducted in 1988. The National Shellfish Sanitation Program, of which Florida is a voluntary member, requires that a complete survey be conducted at least every twelve years, with updates annually and triennially (every three years). On July 5, 1996, DEP issued a Notice of Final Executive Order with an attached detailed description of the boundaries of conditionally approved, conditionally restricted and prohibited areas within Body D, "Effective August l, 1996." The attachment to the notice describes the management procedures governing temporary closings. Also attached to the notice was a map of the new classifications boundaries. The notice states that "[t]he order will remain in effect until administrative procedures are completed to amend rule 62R-7.005, Florida Administrative Code." DEP also issued on July 5, 1996 a memorandum to "Interested Parties," describing the reclassification of Body D for harvest of shellfish as follows: Effective August l, 1996, the Department of Environmental Protection reclassified Body D for the harvest of oysters, clams, and mussels. Body D is located in the Indian River, south of State Road 528 Bridge and north of the State Road 518 Bridge. A public workshop was conducted March 22, 1996 in Melbourne to get input on the proposed reclassification. The reclassification will increase the Conditionally Approved area by 404 acres, increase the Conditionally Restricted area by 6,075 acres, and increase the Prohibited area by 1,979 acres. Also, 9,116 acres were classified that were Unclassified; portions of this area were used for relay activities. Currently, the Conditionally Approved and Conditionally Restricted areas close when five-day cumulative rainfall measured at the DEP Rockledge Gauge exceeds 2.68 inches. Beginning August 1, 1996, the Conditionally Approved management plan will temporarily close when two-day cumulative rainfall measured at the Rockledge Waste Water Treat- ment Plant exceeds 0.44 inches, and the Conditionally Restricted management plan will temporarily close when two-day cumulative rainfall measured at the Rock- ledge Waste Water Treatment Plant exceeds 1.29 inches. The estimated number of days per month that the Conditionally Approved area will be closed will increase from a range 0 to 8 days and an average of 0.8 days per month to a range of 0 to 21 days and an average 8.2 days per month. The estimated number of days per month that the Conditionally Restricted area will be closed will increase from a range 0 to 8 days and an average of 0.8 days per month to a range of 0 to 15 days and an average 2.9 days per month. Maps are available that illustrate the shellfish harvesting area classifications at the DEP shellfish office in Palm Bay. The mailing address of this office is 250 Grassland Road, SE, Room 149, Palm Bay, Florida 32909. You may call your local DEP Marine Patrol Office or the DEP Shellfish Office at 407/984-4890 to the open/closed status of the area for shellfishing. (Petitioners' exhibit no. 2) As described in the Notice of Final Executive Order and the memorandum, the reclassification substantially altered the classification descriptions and the management practices found in rule 62R-7.005(29), Florida Administrative Code. The reclassifications were not adopted as a rule amendment pursuant to section 120.54, Florida Statutes. Instead, on September 20, 1996 DEP published notice in the Florida Administrative Weekly, Volume 22, number 38, page 5397, that it proposed repealing rule 62R-7.005, Florida Administrative Code, in its entirety, and amending rules 62R-7.001 and 62-7.004, Florida Administrative Code: * * * PURPOSE, EFFECT AND SUMMARY: This amendment proposes to repeal a rule containing references to shellfish harvesting area maps, the detailed verbal descriptions of shellfish harvesting areas classification boundaries, and criteria for temporary closure, reopening, and monitoring of shellfish harvesting areas. The rule proposed for repeal is 62R-7.005 because it was identified as procedural. An address and telephone number were provided in 62R-7.004 where the information currently contained in 62R-7.005 will continue to be made available to the public. This approach provides for reclassifications through the Governor's delegation of authority to the Division of Marine Resources. Repeal of the rule is in accor- dance with Governor Chiles' rule reduction initiative. The Department will continue to conduct public workshops and hearings and incorporate pubic input that is consistent with maximizing the harvest of shellfish and protection of public health. Additionally, this amendment proposes to update a 1993 version with a 1995 version of the National Shellfish Sanitation Program Manual of Operations, Part I and Part II, that is incorporated by reference. SPECIFIC AUTHORITY: 370.021(l), 370.071(l) FS. LAW IMPLEMENTED: 370.071 FS. DEP has closed harvesting areas in the past without following the section 120.54, Florida Statutes, amendment procedures. The record in this proceeding does not reflect whether those changes or closures were on a temporary or emergency basis as provided within rules 62R-7.004 and 7.005, Florida Administrative Code. DEP has never opened up new, previously unclassified, areas for harvesting without a formal rule amendment and has not been challenged in the past. DEP concedes that the regulatory content of the Final Executive Order supersedes rule 62R-7.005(29) (j), (k), and (l), Florida Administrative Code: Q. I want to clarify one aspect of your testimony, Mr. Heil, because I think you suggested that if a hypothetical individual were to go into Body D today and to harvest shellfish pursuant to a classification contained in Rule 67R-7.005, that is to say his conduct would have been lawful under the standard contained in that administrative rule, but his conduct is in discord or isn't in compliance with the standard for Body Water D contained in the final executive order which is the subject of this dispute today. Am I correct that it was your view that that person would be subject to present criminal prosecution for that act? A. If the area in question from harvest was previously allowed in the classification effective August 1st by the July 5th memorandum was not now allowed for harvest, then that person would be subject to arrest by the Florida Marine Patrol. Q. And prosecution and conviction? A. Correct. (Transcript, pp. 131-2) The National Shellfish Sanitation Program (NSSP), of which Florida is a voluntary member, is a consortium of federal officials (including the Food and Drug Administration, Environmental Protection Agency and National Marine Fisheries), state officials from state shellfish control agencies, and members of the shellfish industry. DEP contends that its participation in the NSSP and obligation to comply with the National Shellfish Sanitation Program Manual of Operations (the manual) precludes compliance with section 120.54, Florida Statutes, rulemaking requirements. Florida has been criticized for moving too slowly in reclassifying areas, but the record in this proceeding does not establish that delay is because of rulemaking requirements. The manual is adopted as a rule by reference in rule 62R-7.001(5), Florida Administrative Code. The manual provides, in pertinent part: (Both the 1993 version currently adopted and the 1995 version proposed for adoption are precisely the same in this regard.) Public Health Explanation The NSSP gone [sic] beyond the original objective set forth in the 1925 Conference of insuring that shellfish shipped interstate would not be the cause of communicable disease. In the 1940's paralytic shellfish poison became a matter of public health concern and steps were taken to protect the public against this hazard. In 1957 it was recognized that shell- fish might concentrate certain radionuclides and that a radiation surveillance activity might become a necessary addition to the established procedures. In the 1960's and 1970's it became apparent that shellfish have the ability to concentrate poisons and deleterious substances such as metals, pesticides, hydrocarbons, etc. to potentially unsafe levels. To ensure the safety of shellfish, the State must supervise the growing, harvesting, relaying and transportation of shellfish. It is also important that shellfish be protected against contamination. [If State supervision is to be effective, the activity must be supported by legal authority. This authority may be either a specific law or a regulation]. The success with which the State is able to regulate the several components of the shellfish industry provides a measure of the adequacy of the statutory authority. [The unique nature of shellfish as a food also makes it necessary for the State shell- fish control agency to have authority to take immediate emergency action without recourse to lengthy administrative procedures, to halt harvesting and processing of shell- fish]. This authority should include placing restrictions on harvesting on the basis of a potential as well as an actual public health hazard. As examples, a State may find it necessary to close a shellfish growing area following a breakdown of a wastewater treat- ment plant or the unexpected finding of marine toxin(s), or when a growing area is implicated in confirmed illness. [Periodic revisions of State shellfish laws or regulations may be necessary to cope with new public health hazards and to reflect new knowledge]. Examples of changes or develop- ments which have called for revision of State laws include: (1) the increased used of pleasure boats with the resulting probability of contamination of shellfish growing areas with fresh untreated fecal material, (2) the conditionally approved area concept resulting from the construction of wastewater treatment facilities, (3) the effect of non-point source pollution, and (4) the ability of shellfish to concentrate certain radionuclides and hazardous chemicals. Experience has demonstrated that all actual and potential shellfish growing waters of the State must be classified by their sanitary suitability for shellfish harvesting. Harvesting should be permitted only from those areas which have been found by sanitary survey to meet the criteria of this Manual. Harvesting should accordingly be specifically prohibited from areas which do not meet the criteria, or which have not been surveyed, or which have outdated survey information. [Respondent's exhibit no. 4, pp. A2 and A3, emphasis added] CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction in this matter pursuant to section 120.535, Florida Statutes. Standing of all parties has been established by stipulation. Petitioners allege that the Final Executive Order issued by the agency on July 5, 1996 is a rule that has not been promulgated by the procedures in section 120.54, Florida Statutes, and is therefore invalid. At the time that the Petitioners filed their challenge, the agency action was proposed to take effect on August 1st; thus, Petitioners invoked section 120.54(4), Florida Statutes, which 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. Pursuant to section 120.52(8), Florida Statutes, a proposed rule is an invalid exercise of delegated legislative authority when the agency has materially failed to follow applicable rulemaking procedures set forth in section 120.54, Florida Statutes. The agency readily admits that it has not promulgated the material styled Final Executive Order as a rule. Nor has it commenced rulemaking proceedings to adopt the material. On the contrary, it has commenced proceedings to repeal all of rule 62R-7.005, Florida Administrative Code, including the portion which conflicts with the Final Executive Order. The agency claims foremost that the material in the Final Executive Order is not a rule; but that if it is a rule, the agency is entitled to the section 120.535, Florida Statutes, defense that rulemaking is simply not practicable. This latter argument is based, at least partially, on the insistence by federal members of the Interstate Shellfish Sanitation Conference that the agency improve its procedures. It is appropriate to consider this case under section 120.535, Florida Statutes. In Christo v. State Department of Banking and Finance, 649 So.2d 318 (Fla. 1st DCA 1995), the court determined that section 120.535, Florida Statutes, was the exclusive mechanism for challenging an agency's failure to promulgate rules. The case cited by Petitioners, Matthews v. Weinberg, 645 So.2d 487 (Fla. 2nd DCA 1994) Rev. denied (654 So.2d 919 (Fla. 1995), arose under substantially different procedural circumstances (an appeal from a circuit court decision in an injunctive proceeding) and does not establish authority for section 120.54 or 120.56 challenges to agency statements based on their non- promulgation as rules. Without citing section 120.535, Florida Statutes, Petitioners' petition still included the three allegations required by subsection 120.535(2)(a), Florida Statutes: that Petitioners are substantially affected by the statement; that the statement constitutes a rule under section 120.52(16); and that the agency has not adopted the statement by the rulemaking procedure provided in section 120.54. The parties had ample notice that the hearing was to be conducted pursuant to section 120.535, and testimony and evidence was presented with regard to the defenses available to an agency. Because section 120.535, Florida Statutes, in general, and more specifically in this proceeding, permits the consideration of factual matters presented by the agency, Petitioners' motion for summary final order is DENIED. Petitioners, however, still prevail in their challenge to the Final Executive Order. Section 120.535(1), Florida Statutes, provides: 120.535 Rulemaking required.- Rulemaking is not a matter of agency discretion. Each agency statement defined as a rule under s. 120.52(16) shall be adopted by the rulemaking procedure provided by s. 120.54 as soon as feasible and practicable. Rulemaking shall be presumed feasible and practicable to the extent provided by this subsection unless one of the factors provided by this subsection is applicable. Rulemaking shall be presumed feasible unless the agency proves that: The agency has not had sufficient time to acquire the knowledge and experience reasonably necessary to address a statement by rulemaking; or Related matters are not sufficiently resolved to enable the agency to address a statement by rulemaking; or The agency is currently using the rule- making procedure expeditiously and in good faith to adopt rules which address the statement. Rulemaking shall be presumed practi- cable to the extent necessary to provide fair notice to affected persons of relevant agency procedures and applicable principles, criteria, or standards for agency decisions unless the agency proves that: Detail or precision in the establishment of principles, criteria, or standards for agency decisions is not reasonable under the circumstances; or The particular questions addressed are of such a narrow scope that more specific resolution of the matter is impractical out- side of an adjudication to determine the substantial interests of a party based on individual circumstances. The material contained in the Final Executive Order is a rule, defined in section 120.52(16), Florida Statutes, as follows: (16) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any require- ment or solicits any information not specifi- cally required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. It does not matter how the agency seeks to characterize its statement. Amos v. Department of HRS, 444 So.2d 43 (Fla. 1st DCA 1983). Proper characterization of a statement depends on the effect of the statement, not on the agency's appellation. Thus, the fact that DEP adopted similar statements as rules, then disavowed the necessity for such procedural refinements is immaterial. In twenty-plus years of experience under the Administrative Procedures Act, Chapter 120, Florida Statutes, the distinction between rule and order has been immutable. An agency statement is a rule if it purports in and of itself to create certain rights and adversely affect others, or serves by its own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law. Balsam v. Dept. of HRS, 452 So.2d 976, 977-78 (Fla. 1st DCA 1984) The agency statement contained in the Final Executive Order is generally applicable. Anyone intending to harvest shellfish within the many thousands of acres of water described in Body D is subject to the classifications. Anyone failing to comply is subject to criminal prosecution. The statement implements, interprets or prescribes law or policy: it establishes where, and under what conditions, shellfish may be taken; it establishes rainfall standards which affect temporary closings; it plainly, as stated in its counterpart rule 62R-7.005, implements section 370.071, Florida Statutes; it also implements rule 62R-7.004, Florida Administrative Code, and the National Shellfish Sanitation Program Manual of Operations, which is, itself, a rule. Significantly, the statement does not fall within one of the exceptions described in section 120.52(16)(a)-(g), Florida Statutes. It most closely resembles the specific exception provided in section 120.52(16)(d), Florida Statutes, for agency action which alters established annual harvest limits for saltwater fishing. This latter statutory exception underscores the notion that the legislature intended to otherwise include such statements within the definition of a rule. Since the statement at issue is found to be a rule, the agency is entitled to prove that rulemaking was not feasible and practicable. The circumstances surrounding the issuance of the Final Executive Order and the testimony of the agency's witness establish that rulemaking is both feasible and practicable. As provided in the document describing the comprehensive survey of Body D, Brevard County, Florida, the survey was conducted over many months and culminated in the survey report and in the reclassifications and changes in procedure described in the Final Executive Order. Prior to issuance of the Final Executive Order, the agency conducted a workshop. The agency had ample time to acquire knowledge and experience reasonably necessary to address its statement by rulemaking. The specificity of the text reflects that related matters have been sufficiently resolved to enable the agency to address the statement by rulemaking. Indeed, the agency has, in the past, addressed such statements by rulemaking and, for the present, still has such rules in effect. At the time of hearing, the agency had not proceeded with rulemaking procedures addressing the statement, although the text of the Final Executive Order disclosed an intention to so proceed. In the material filed post-hearing and officially recognized upon the request of the Intervenor and agency, the agency "addressed the statement" by announcing its intent to repeal the whole of rule 62R-7.005, Florida Administrative Code, including, of course, the subsection which is substantially amended in the Final Executive Order. The principles, criteria or standards for agency decision based on the Final Executive Order are detailed and precise and are established by agency fiat, rather than through an adjudicative process in which the substantial interests of a party are determined based on individual circumstances. Evidence in this proceeding establishes that the agency plainly intends to rely on the Final Executive Order as its basis for enforcement and prosecution and does not intend to develop on a case by case basis the standards it has already created. Nothing in the record of this proceeding supports the argument by the agency that its Final Executive Order is legally compelled by a higher federal authority or that the shellfish industry in Florida is jeopardized by rulemaking requirements. The National Shellfish Sanitation Program Manual of Operations supports, rather than discourages, the adoption of regulations. (See paragraph 17, above). Throughout Chapter 370, Florida Statutes, are references to regulations. (See, paragraphs 3 and 4, above.) Section 370.103, Florida Statutes, authorizes the agency to enter into cooperative agreements with the Federal Government, but also includes this manifest intent: When differences between state and federal laws occur, state laws shall take precedence. None contests the need for the agency to act promptly under certain circumstances to meet the exigencies of a reasonable enforcement program. According to the record in this proceeding, the Final Executive Order was not developed under such compulsion. Existing rules, the manual and even the Administrative Procedures Act provide for emergency responses to threats to public health, safety and welfare. Those are the procedures which the agency must employ. The "impressive arsenal" of remedies in the Administrative Procedures Act, acknowledged in State, ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977) exists for the benefit of agencies as well as citizens at large.
The Issue The issue for resolution in this proceeding is whether the Department of Environmental Regulation (DER) should approve Petitioner's construction of a dock on Lake Kissimmee in Polk County, Florida. Such approval would require the grant of an after-the-fact permit.
Findings Of Fact Earl W. Thomas, the Petitioner, owns approximately 15.5 acres on the western shore of Lake Kissimmee near Lake Wales, in Polk County, Florida. On March 15, 1984, Petitioner filed an application with the Department of Environmental Regulation (DER) to construct a 3,160 square foot dock at his property on Lake Kissimmee. The dock is described in drawings attached to the application as 550 feet long with a 60 foot "T" segment at the end. The application form is styled, "Joint Application, Department of the Army/Florida Department of Environmental Regulation for Activities in Waters of the State of Florida". The activity described in the application is "proposed pier for mooring private boat -- no fuel pumps or toilet facilities to be constructed on pier". (Petitioner's exhibit #5) Thomas received a letter dated March 28, 1984 from the Army Corps of Engineers acknowledging the application and granting General Permit SAJ-20. The letter authorized construction but provided that it did not obviate the need for any other required federal, state or local permits. A form letter from the Florida Department of Natural Resources (DNR) dated April 26, 1984, informed Thomas that a letter of consent from the Board of Trustees of the Internal Improvement Trust Fund would be required. A form letter from DER dated May 10, 1984 acknowledged receipt of the application and stated that evaluation of the project would be delayed until receipt of DNR consent. The DNR letter of consent was issued on June 28, 1984, signed by Ted Forsgren, Chief, Bureau of State Lands Management, and referencing the use of approximately 2,366 square feet of state-owned submerged land for a private docking facility. The letter states, "Please consider this the authority sought under Section 253.77, Florida Statutes, to pursue this project." (Petitioner's exhibit #9) Thomas commenced construction, and the dock was completed by July 28, 1984. As completed, the dock is approximately 480 feet long, with a 24 foot "T" cross at the end. During construction, in a letter dated July 24, 1984, to the DER Tampa office, Ed Moyer, then Fishery Biologist with the Florida Game and Fresh Water Fish Commission stated, "Our office is opposed to the issuance of a permit to construct a 600' [sic] dock on the west shore of Lake Kissimmee. " (Respondent's exhibit #2) Basis for the opposition was that the structure would obstruct boat traffic along a navigable path parallel to Mr. Thomas' shoreline. In a letter dated September 17, 1984, signed by James W. MacFarland, Director, Division of State Lands, DNR informed Thomas that it was rescinding its prior consent due to receipt of additional information from DER and conversations with the Game and Fresh Water Fish Commission. The letter also states "...It appears that the information represented to us did not actually represent your proposed activity or address the severe navigational problems caused by your construction of a facility approximately 600 feet [sic] in length. ..." (Petitioner's exhibit #10) On September 18, 1984, DER issued its Intent to Deny Thomas' application. This document provides, in pertinent part: * * * On October 14, 1984 [sic] Bill Ackerman, Field Inspector for Polk County, inspected the proposed pier site and the adjacent lake. Approximately 200' waterward from the west shore of the lake is a 20' wide approximately 4' deep navigation channel which is used by area boaters during sudden winds from the east as a safe haven path which protects them from the chop of the open lake. Based on his personal experiences and site inspection on this lake and the opinion and the recommenda- tion of the Florida Game and Fresh Water Fish Commission, the agency has come to the conclu- sion that the proposed dock will both obstruct and hinder navigation in this natural lake channel, contrary to the provision of Chapter 253.123, F.S. In addition, the proposed dock's obstruction of the existing channel will cause boaters to prop dredge a new access channel around the dock, causing substantial wetland losses, resuspension of nutrient laden bottom sedi- ments and turbidity. * * * [Petitioner's exhibit #11] In response to this notice, Petitioner requested a formal hearing. Nothing in the record of this proceeding explains the inconsistency in the dates in the notice of intent to deny. The notice itself was issued on September 18, 1984 and the October 14, 1984, reference is clearly in error. The permit file of the DER includes a form dated 6/11/84, styled "Permit Application Appraisal", referencing an on-site inspection by Bill Ackerman on 10/14/82. [Respondent's exhibit #3] This form appraisal describes the project as a 600' long private dock, with a 48 square foot "T" at the end, and 2400 square feet of over-water surface area. The appraisal references a fence that Thomas built allegedly on state submerged lands in the lake, and a dispute with DNR over that fence. The appraisal also describes a boat path about 200' from shore and parallel to the shore within the grassy weeds, providing a safe passage for small boats caught in the lake in sudden storms or high waves. The appraisal recommends denial of the permit for navigation reasons, but recommends that the permit could be approved if the fence were removed and the length of the dock were reduced. The inspector and apparent author of the appraisal report, Bill Ackerman, died several years ago. No witness could explain the source of the various references to a 600' dock, since the application was for a 550' long dock, including the width of the "T" cross, and the dock that was built was 480' long. The appraisal report is the only evidence from DER's file of that agency's review of the project, and it is evident that the site visit was conducted approximately 1 1/2 years prior to the application in issue, perhaps related to the fence, which is not at issue in this proceeding. However, Edwin Moyer, the Florida Game and Fresh Water Fish Commission staff person who wrote the July 1984 opposition letter, testified and confirmed that the boat trail described in the appraisal did exist in 1984. This trail, called a "kicker trail", was not a dredged path, but rather was created like many others by the operation of boat propellors through the weeds and grasses along the shore of the lake. If unused, these trails disappear, and new ones are created. At the Thomas site, Lake Kissimmee is approximately 5 miles wide. Small boats need the trails as the vegetation protects them from high waves. Thomas' dock intersected the kicker trail described in the DER appraisal report and by Edwin Moyer. New trails, however, now exist beyond the end of Thomas' dock and still within the dense vegetation which extends some 360 feet waterward from the end of the dock. An "outside" trail runs parallel to the shoreline, approximately 350 feet beyond the dock, and is used by small to medium motorboats. An "inside" trail is located about 60 feet beyond the end of the dock and is used exclusively by airboaters, who can run in just inches of water and who experience severe handling problems in deep water or heavy waves. Airboats don't require trails, as they can travel on top of the vegetation. Regular motorboats, such as bass boats and jon-boats, require more water. The water depth at the end of Thomas' dock fluctuates from about one to five feet deep; not including the approximate 1.5 feet of muck on top of the sand at the lake bottom at the Thomas site. The water elevation in Lake Kissimmee is controlled by the South Florida Water Management District, with a regulated high of 52.5 ft. NGVD to a regulated low of 49.0 ft. NGVD, with an even lower 48.5 ft. NGVD every three years. At the time of hearing, the water level was 50.3 ft. NGVD, or approximately 2.4 ft. deep at the end of Thomas' dock, not including the depth of the muck. Even if the Thomas dock did not exist, regular motor boats would have trouble navigating closer to shore, due to the shallowness of the water. Moreover, there are stumps and posts closer to shore, which present a greater danger to boaters, including seasoned airboaters, than Thomas' dock which is fully visible and which includes a light at the end which remains lit, with reflectors along the edges. Airboats running close to the shore have to veer out into deeper water as they approach the Thomas site, to avoid the dock. This is a nuisance, according to Garrett Whatley, an airboat operator who races on Saturday evenings. But the greater nuisance, as he concedes, are the posts and steel pipes in the water near the shore which are not marked and which can crack up a boat. In bypassing the dock, these obstructions are also avoided. Some Lake Kissimmee boaters consider Thomas' dock a navigational aid. The west side of the lake is not developed and the dock provides a prominent landmark, particularly for snail fishermen and other night boaters. The Gleasons and the Gilberts are neighbors of Earl Thomas. They each have 200 ft. docks which have been permitted by DER. The Gleasons have a 24 ft. pontoon boat which they moor at the end of a 70 ft. catwalk extending from the end of their dock. Even then, the water is only about 12 inches deep and they have to pole the boat out to avoid plowing into the muck on the lake bottom. The vegetation line at Thomas' site is thicker and farther out than at the Gleason's. George Gilbert also has a pontoon boat which he has to pole to access his dock. He has a kicker trail at the end of his dock, but the water is too shallow to use it. DER has granted him a permit to extend his dock another 100 feet. DER considers 300 feet a reasonable length for docks in the area and the agency tries to keep them a uniform length for navigational purposes. Removal of all or a portion of Thomas' dock can be accomplished without water quality damage so long as the removal is closely controlled. The pilings would have to be enclosed with a screen to limit turbidity during the removal process. Even if the act of removal could be controlled, the turbidity caused by boats interacting with the sediment closer to shore would be a recurring problem without the dock as it now exists. A shorter dock would necessitate the use of catwalks or other temporary access to boats unable to navigate the shallow water. Those boats moored away from the dock would still be an obstruction, and if unlit, would be less visible to night fishermen than the existing structure. The Thomas dock, as it now exists, is not a navigational hazard. Its removal would be more damaging than to permit it to remain.
Recommendation Based on the foregoing, it is hereby recommended that the Department issue its final order granting Petitioner's application for the dock as it now exists. That is, the application for a 550 foot dock should be deemed amended to provide for a 480 foot dock, as built. RECOMMENDED this 7th day of January, 1991, in Tallahassee, Leon County, Florida. MARY CLARK 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 7th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4164 The following constitute specific rulings on findings of fact proposed by the parties. Findings of Fact Proposed by Petitioner Adopted in paragraph 2. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Addressed in Preliminary Statement. Adopted in paragraph 7. 10.-14. Adopted in paragraph 17. 15.-18. Adopted in substance in paragraphs 16 and 20. Findings of Fact Proposed by Respondent Adopted in paragraph 2, except that the dock was to be 550 feet long. Adopted in paragraph 7. Adopted in paragraph 5. Adopted in paragraph 10. Adopted in substance in paragraphs 16 and 20. 6.-9. Adopted in summary in paragraph 17. Adopted in paragraph 12. Adopted in paragraph 15. Adopted in paragraph 16, by implication. Adopted in paragraph 18. 14. Rejected as unnecessary. 15.-16. Adopted in substance in paragraph 20. 17. Rejected as unnecessary. 18. Adopted in paragraph 16. 19. Adopted in paragraph 18. 20. Rejected as unnecessary. 21. Adopted in paragraph 22. COPIES FURNISHED: Carlyn Harper, Esquire P.O. Box 2807 Orlando, FL 32802 Douglas H. MacLaughlin Asst. General Counsel DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Dale H. Twachtmann, Secretary DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Rd. Tallahassee, FL 32399-2400
Findings Of Fact Stipulation The parties have stipulated to the following: There was no necessity for taking of live testimony on the scheduled hearing date of January 13, 1987. The Petitioners are substantially affected by the pending rule and are proper parties to this proceeding. The Division of Administrative Hearings has no jurisdiction to determine either Florida or federal constitutional questions which may be pending in this matter. The constitutionality of the proposed or pending rule is a matter that may be raised in Court for the first time should either party appeal the decision made herein or institute a separate proceeding concerning the constitutionality of the proposed rule. The Commission currently issues permits to out-of-State individuals or businesses for the purpose of bringing jack rabbits or hares into the State. According to the records and best estimates of the Commission, there are five importers who import into the State approximately 50,000 jack rabbits or hares per year. These, in turn, are delivered to approximately 5,000 greyhound trainers, breeders and ranches. None are released into the wild. Prior to the passage of 86-179, Laws of Florida, which provides that it is an unlawful cruelty to animals, called "baiting," to train racing greyhounds with live animals, the majority of racing greyhounds were trained with live jack rabbits. This involves the chasing of the jack rabbit by the greyhound, which usually catches it and kills it. The Commission passed the rule described herein, but continues to issue importation permits pending a determination of the validity of the rule. If determined valid, issuance will cease. The Commission possesses, and there shale be entered into evidence, its biologist's report on jack rabbits in the State of Florida. Each party may fairly comment on the report. The Petitioners and all those similarly situated will suffer substantial economic impact if they are unable to utilize jack rabbits in the training of racing greyhounds. This is true whether the jack rabbit is living or dead at the time of training. It is the Commission's position that this impact is as a result of the enactment of 86-179, Laws of Florida, and not its rule. (End of Stipulation.) Effective October 1, 1986, Florida Statutes 828.122 was amended by 86- 179, Laws of Florida. That amendment changed the definitions of "animal" and "baiting" to prohibit the use of live animals in the training of racing greyhounds. On August 18, 1986, the Commission published its proposed Rule 39- 12.011 to "supplement legislative prohibitions enacted in 86-179, Laws of Florida." The proposed rule read as follows: "39-12.011 Importation of undesirable mam- mals. No person shall import or possess any live hare or jack rabbit (lepus sp.) to train racing greyhounds. The Executive Director may issue permits authorizing the importation, possession or use of such live hares or jack rabbits for scientific or educational purposes." After publication of the proposed rule and the filing of the subject petition, the Commission promulgated an amended version of the rule, duly noticed, which is now pending. That proposed rule reads as follows: "39-12.011 Importation of undesirable mam- mals. No person shall import or possess any live hare or jack rabbit (lepus sp.), except as authorized by permit issued in accordance with Rule 39-9.002, Florida Administrative Code." The proposed rules challenged in this proceeding were, as indicated by the publication in the Florida Administrative Weekly, proposed under specific authority of Article IV, Section 9 of the Florida Constitution, Sections 372.265 and 372.021, Florida Statutes. Thus, the Commission is apparently, at the outset at least, proposing the rule under both its Constitutional authority as well as the supposed legislative authority to enact the subject rule. The Constitutional provision cited above, as well as Section 372.265, Florida Statutes, and Chapter 86-179, Laws of Florida, is cited in the Notice of the Proposed Rule Enactment as being the "law implemented" by the proposed rule. The Commission has thus elected to promulgate rules in accordance with the procedures contained in Chapter 120, Florida Statutes, the Administrative Procedure Act. The jack rabbit, and more specifically the black-tailed jack rabbit, imported into Florida for the purposes of greyhound training in the past, is a species of wild animal life indigenous to arid or semi-arid areas lying west of the Mississippi River. It has historically been imported into Florida for the above-mentioned purpose and some small numbers have escaped captivity and there is a population of an unknown size existing in the wild in the south-central or southern portion of the State. There is no question that she jack rabbit, the subject of the proposed rule, is a species of "wild animal life."
The Issue The issues in this case are the validity of Florida Administrative Code Rules 18-14.003(4) and 18-21.004(1)(g)-(h) and (7)(i),1 and an alleged unadopted rule prohibiting fish cleaning stations over sovereign submerged land (SSL); and Petitioner's claim to an award of attorney's fees and costs under Section 120.595(3)-(4), Florida Statutes.2
Findings Of Fact Petitioner owns land on Lake Talquin. In 2003, he obtained a joint permit and SSL consent of use to build a seawall, a boat dock and a covered but not walled boathouse there. In 2005 he obtained another joint permit and SSL consent of use to build another boat dock and another covered boathouse at another location on his property there. Both joint permit/authorizations had general and special conditions. Both had a general condition that limited the permit/authorization to "the specific processes and operations applied for and indicated in the approved drawings or exhibits" and required Petitioner to operate and maintain the facilities "to achieve compliance with the conditions of this permit." Both have a specific condition prohibiting "fish cleaning stations . . . on any structure that is located over the water." The 2003 joint permit/authorization has a specific condition prohibiting any walls and doors on the boathouse and another specific condition prohibiting the installation of water and electric lines. The 2005 joint permit/authorization omits those specific conditions. DEP has issued a Notice of Violation (NOV) against Petitioner for violating the 2005 joint permit/authorization's specific condition prohibiting water and electric lines, for exceeding the dimensions of the boathouse authorized by the joint permit/authorization, for adding a second story structure of livable space (with a kitchen, bathroom, shower, furnished seating area, flat-panel television, and window air conditioning unit) above the boathouse in the space between the roof rafters and the top of the authorized first story structure. DEP has not issued an NOV as to the 2003 joint permit/authorization although it also has electric and water lines. DEP has not issued an NOV as to either joint permit/authorization for having a fish cleaning station over the water. An inspector told Petitioner that the fish cleaning station on the newer facility was a violation of the 2005 permit but that it was not an issue anymore after a change in the law. Petitioner attempted but failed to prove that DEP or BOT prohibits fish cleaning stations over water as a general rule. It is not clear what change in the law has occurred with respect to fish cleaning stations. In any event, the evidence was that these facilities are prohibited when appropriate for protection of water quality, not as a general rule. Rule 18-14.003 states in pertinent part: It shall be a violation of this rule for any person or the agent of any person to knowingly refuse to comply with any provision of Chapter 253, F.S., willfully violate any provision of Chapter 253, F.S., or to willfully damage state land (the ownership or boundaries of which have been established by the state) or products thereof, by doing any of the following: * * * (4) Maintain, place or build permanent or temporary structures, including, but not limited to, additions to existing structures; all structures whose use is not water- dependent; sanitary septic systems; fences, docks and pilings; houses; oil rigs; and utility installations on or over state land without consent or authority from the Board or Department. Petitioner's rule challenge focuses on the part of the rule specifying: "structures whose use is not water-dependent; sanitary septic systems; . . . houses; . . . and utility installations on or over state land without consent or authority from the Board or Department." Rule 18-21.004 states in pertinent part: The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands. General Proprietary. * * * Activities on sovereignty lands shall be limited to water dependent activities only unless the board determines that it is in the public interest to allow an exception as determined by a case by case evaluation. Public projects which are primarily intended to provide access to and use of the waterfront may be permitted to contain minor uses which are not water dependent if: Located in areas along seawalls or other nonnatural shorelines; Located outside of aquatic preserves or class II waters; and The nonwater dependent uses are incidental to the basic purpose of the project, and constitute only minor nearshore encroachments on sovereign lands. Stilt house, boathouses with living quarters, or other such residential structures shall be prohibited on sovereignty lands. * * * General Conditions for Authorizations. All authorizations granted by rule or in writing under Rule 18-21.005, F.A.C., except those for aquaculture activities and geophysical testing, shall be subject to the general conditions as set forth in paragraphs through (i) below. The general conditions shall be part of all authorizations under this chapter, shall be binding upon the grantee, and shall be enforceable under Chapter 253 or 258, Part II, F.S. * * * (i) Structures or activities shall be constructed, operated, and maintained solely for water dependent purposes, or for non- water dependent activities authorized under paragraph 18-21.004(1)(g), F.A.C., or any other applicable law. Petitioner's rule challenge focuses on the parts of this rule prohibiting non-water dependent uses over SSLs, unless in the public interest as determined by a case-by-case evaluation and prohibiting stilt houses, boathouses with living quarters, and other residential structures. Petitioner contends that these rules: exceed their legislative authority; enlarge, modify, or contravene the laws they implement; are vague, lack adequate standards for BOT decisions, and vest unbridled discretion in the BOT (particularly by use of the terms "structure whose use is not water dependent," "utility installations," and "public interest by a case by case evaluation"); and are arbitrary and capricious (for essentially the same reasons they allegedly are vague). See § 120.52(8)(b)- (e), Fla. Stat. The term "structure whose use is not water dependent" is not defined by rule, but Rule 18-21.003(68) states: "'Water dependent activity' means an activity which can only be conducted on, in, over, or adjacent to water areas because the activity requires direct access to the water body or sovereign submerged lands for transportation, recreation, energy production or transmission, or source of water, and where the use of the water or sovereign submerged lands is an integral part of the activity." DEP makes determinations of water-dependency on a case- by-case review of the facts and circumstances presented in each case. DEP does not have a list of factors used in making this determination in any rule, non-rule policy, or other document. According to the evidence, DEP considers docks and boathouses to be water-dependent structures. A roof over a dock may be considered water-dependent depending on the facts and circumstances and whether the roof is an integral and required part of the water-dependent activity. The same is true with respect to benches that are part of a dock structure. Boating- related paraphernalia such as boat paddles, life vests, and similar items can be stored in empty rafters under the roof of a permitted docking facility, but not rakes and shovels cannot, because boating-related paraphernalia are associated with transportation across water, while rakes and shovels are not. Cans of gasoline are related to transportation on water, but their storage on the rafters of a boathouse is not necessarily a water-dependent activity because this is not considered to be safe. Depending on the circumstances, DEP has authorized the installation of electrical and water lines and sewage pump-out systems on boat docking facilities. The installation of electrical and water lines and sewage pump-out systems can be an integral or required part of a public or private commercial marina or docking facility, but generally not a noncommercial dock. DEP once authorized the use of golf carts in connection with a long private pier. The evidence proved that reasonable people of common intelligence can disagree on the interpretation and application of the "not water-dependent" definition. Even experienced consultants are required to check with DEP to be sure they are interpreting and applying the definition correctly. DEP employees sometimes are required to check with DEP headquarters in Tallahassee to be sure they are interpreting and applying the definition correctly. But the evidence did not prove that the definition is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The term "utility installations" is reasonably clear and is generally understood to mean the installation of water, sewer, and electricity. The evidence did not prove that the term is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The evidence did not prove that the term "public interest by a case by case evaluation" is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The evidence was that DEP interprets the definition in the sentence that immediately follows in Rule 18-21.004(1)(g) to limit the "public interest" exception to certain "public projects" (which BOT then broadly interprets to include privately-owned marinas that are open to the public). The evidence did not prove that the challenged parts of Rules 18-14.003 and 18-21.004 are unsupported by logic or the necessary facts, or were adopted without thought or reason or are irrational.
The Issue The issue is whether Petitioner is entitled to additional compensation for fishing nets that he sold to the State of Florida under the Net Buy-Back Program.
Findings Of Fact Petitioner is a commercial fishers who is an affected person under the Florida Net Ban, which is set forth in the Florida Constitution, Article X, Section 16. Section 370.0805(5), Florida Statutes, which became effective on July 1, 1995, establishes the Net Buy-Back Program. The program enables eligible persons previously engaged in the commercial fishing industry to sell fishing nets to the State of Florida. The Legislature appropriated $20 million to the Seafood Workers Economic Assistance Account (the Account) to fund the payments authorized in Section 370.0805, as well as agency expenses in administering the program. Section 370.0805(3)(b) directs Respondent to purchase nets "according to the availability of funds on a first-come, first-served basis determined by the date of receipt of each completed application." By Net Buy-Back Application signed on July 5, 1995, and filed with Respondent on the same day, Petitioner applied to sell nets to the State of Florida. His application form is completely filled out and shows two saltwater-product license numbers, one for an individual and one for a vessel. The application form calls for the applicant to list the "TOTAL NUMBER OF YARDS OF EACH NET TYPE THAT YOU INTEND TO SELL." The form lists five categories of nets: gill (49 meshes or less); gill (50 meshes or more); beach, purse, seine; trawl; and trammel. The former gill net is a shallow-water gill net. The latter gill net is a deepwater gill net. Petitioner listed on his application 800 yards of shallow-water gill nets, 4600 yards of deepwater gill nets, two trawls, and 600 yards of trammel nets. After checking a data base maintained by the Department of Environmental Protection, Respondent found only one of Petitioner's two listed saltwater-product licenses. Respondent thus processed Petitioner's application as though he had only one license. By letter dated August 8, 1995, Respondent advised Petitioner that he was eligible "to receive compensation for 8 nets" and set an appointment for him to turn in the nets on September 6, 1995. On September 6, 1995, Petitioner appeared at the appointed site with nets to sell to the State of Florida. He delivered 4800 yards of seine nets, for which he received a voucher for $27,998.40. Prior to paying the voucher, Respondent discovered that the Account might be exhausted before Respondent had paid for all of the nets that fishers might lawfully seek to sell to the State. Respondent thus dishonored Petitioner's voucher, as well as the vouchers held by numerous other fishers, while Respondent considered changes in its administration of the program. The purpose of the Net Buy-Back Program, as provided by Section 370.0805(5)(a), Florida Statutes, was to allow, "[a]ll commercial saltwater products licensees and persons holding a resident commercial fishing license" to apply to Respondent "to receive economic assistance to compensate them for nets rendered illegal or useless by the constitutional limitation on marine net fishing." The emphasis was on economic assistance. Section 370.0805(5)(a) authorizes Respondent to make payments only "in nonnegotiable amounts not intended to reflect the actual value of the nets." Section 370.0805(5)(a) assigns payment amounts of $3500 for beach, purse, or seine nets of at least 600 yards in length; $500 for trawls and shallow-water gill nets of at least 600 yards in length; and $1000 for trammel nets of at least 600 yards in length and deepwater gill nets of at least 600 yards in length. Section 370.0805(5)(a) states that, except for trawls, nets of less than 600 yards in length shall be "valued proportionately." Section 370.0805(5)(c) limits the number of nets that a commercial fishers could sell, based on his annual earnings from the sale of eligible saltwater products. The limits range from four nets, for licensees whose annual earnings average from $2500 to $4999 in earnings, to ten nets, for licensees whose annual earnings average more than $30,000. Respondent relied on another data base from the Department of Environmental Protection to determine the average yearly earnings of applicants. The Department of Environmental Protection maintains records of each licensee's trip tickets, which disclose earnings. The only other limit in the statute as to the type and number of nets to be purchased is that, under Section 370.0805(5)(d), "[n]o licensee may be paid for more than two. . . trawls." Respondent reviewed the applications that it received from the initial 951 fishers who filed applications. This was a large majority of the 1104 fishers who would eventually sell their nets to the State under the Net Buy-Back Program. The purpose of the review was to determine whether the funds in the Account would be sufficient to cover the nets that the State was to be purchasing. Respondent found from the applications that seine nets represented only about five percent of the nets that fishers intended to sell to the State. Relying on this information, Respondent calculated the potential encumbrance of $6.5 million on the Account, based on an average payment of $1000 per net. Applications contained few seine nets because commercial fishers initially resisted selling their best nets to the State of Florida. The Net Buy-Back Program provided for payment of only $3500 per seine net, even though many seine nets were worth $10,000. And commercial fishers were optimistic at first that their legal challenges to the constitutional amendment would succeed. Applying liberal eligibility criteria, such as calculating the number of nets that each applicant could sell based on the number of licenses that he held, Respondent raised its estimate of the potential encumbrance to $8.775 million. But in recalculating the potential encumbrance on the Account, Respondent still assumed that the average payment per net would be $1000. Respondent began receiving nets on August 3, 1995. Through the first three weeks of August, Respondent purchased seine nets in roughly the same five-percent mix that it had used in calculating the potential encumbrances on the Account. After this point, however, fishers started turning in much larger numbers of seine nets than they had listed in their applications. During this first phase of the program, Respondent paid fishers for whatever types of nets they presented at their net buy-back appointment. Respondent would pay a fishers entitled to sell eight nets for seine nets if he turned in seine nets, even though he had listed only gill nets on his application. This policy jeopardized the solvency of the Account because the payments to fishers turning in all seine nets were 3.5 times greater than the figures that Respondent had used in calculating the potential encumbrance on the Account. From the fishers's perspective, the program acquired an element of chance, as applicants with earlier appointment times-which did not necessarily correspond with earlier-filed applications-netted fine catches of economic assistance at the expense of their counterparts, upon whom destiny had bestowed later appointment times. By late August, the applicants, less sanguine about their litigation prospects (as the fishers suggest) and more inventive in recasting old gill nets as seine nets (as Respondent suggests), began turning in seine nets in large numbers, so that Respondent was purchasing nearly all seine nets. Eventually, the cumulative effect of this trend raised the total mix of seines purchased from five percent, during the first three weeks, to sixty percent. After a brief period of trying to stay the course, Respondent decided on September 6, 1995, that it had to take action or else the Account would be exhausted before the State had purchased all of the nets listed on the applications. Respondent immediately suspended further payments on issued vouchers and applied new criteria to persons holding unpaid vouchers, as well as to applicants who had not yet received vouchers. This action stopped payment on all vouchers issued from around August 28 through September 6. At the time that it stopped payment on outstanding vouchers, Respondent had approved the purchase of nets from about 750 fishers. About 450 of these applicants received their money prior to the suspension of payments, leaving about 300 applicants, including Petitioner, holding worthless vouchers. However, a large number of the 450 applicants who were actually paid for their nets prior to September 6 sold a relatively large percentage of gill nets rather than seine nets. As of September 6 (retroactive to August 28), Respondent began the second phase of the Net Buy-Back Program. In this phase, Respondent paid for seine nets, but only up to the greater of the number of seines shown on the application or the number of seines based on past use of seines. Respondent determined the latter figure from the trip tickets, which also contained information as to types of catch, from which Respondent could infer the type of net used. As in the first phase, Respondent continued to insist the fishers turn in seines if they were being paid for seines. The 300 fishers holding dishonored vouchers filed a class action suit. Petitioner's voucher for his first eight nets was covered in this legal action and is not the subject of this case. Petitioner received slightly more than $10,000 on his claim for about $28,000. In the meantime, Respondent discovered that Petitioner in fact held two licenses, as he had represented on his application. By letter dated October 5, 1995, Respondent advised Petitioner that it had reconsidered his application and determined that he had the right to sell 16 nets, not eight nets, but none could be a seine net. Respondent issued Petitioner a new voucher for these additional eight nets. This voucher is in the amount of $7996.80 for 4800 yards of deepwater gill net. On October 13, 1995, Petitioner turned in eight nets and received his money. Petitioner's application lists no seine nets. His application, as noted above, lists one and one-third shallow- water gill nets (i.e., 800 yards), eight deepwater gill nets, two trawls, and one trammel net. Petitioner claimed that he turned in seine nets. If turned in during the first or second phase of the program, Respondent would have treated these nets as seine nets. But it is Petitioner's unique fortune to have been intimately involved with all three phases of the Net Buy-Back Program. Evidently dissatisfied with the effects of the restrictions introduced by the second phase of the program, Respondent added a third phase by promulgating an emergency rule defining "seine nets," effective October 2, 1995. This third phase, which did not change Respondent's policy of paying for the greater number of seines as shown on the application or the trip tickets, restricted the kinds of nets that fishers could turn in as seine nets. Rule 38BER95-1 provides that, for the purpose of "the implementation of the Net Buy-Back Program" described in Section 370.0805(5): "Gill net" means a wall of netting suspended vertically in the water, with floats across the upper margin and weights along the bottom margin which captures fish by entangling them in the meshes, usually by the gills. Any net offered for the net buy- back program that consists of at least fifty- one percent (51 percent) gill net, shall be considered a gill net. "Seine" means a small-meshed net suspended vertically in the water, with floats along the top margin and weights along the bottom margin, which encloses and concentrates fish, and does not entangle them in the meshes. No net offered for the net buy-back program shall be considered a seine if the wings are composed of entangling mesh. * * * THIS RULE SHALL TAKE EFFECT IMMEDIATELY UPON BEING FILED WITH THE DEPARTMENT OF STATE. Effective Date: October 2, 1995 Under the emergency rule, Respondent's nets were not seines, but were gill nets because they were at least 51 percent, by area, gill net. At the time of the final hearing, Respondent estimates that the Account balance is about $300,000 with about 160 contested claims remaining to be resolved.
Recommendation It is RECOMMENDED that the Department of Labor and Employment Security enter a final order dismissing the petition for additional payment from the Account. ENTERED on October 3rd, 1996, in Tallahassee, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this October 3rd, 1996. COPIES FURNISHED: Secretary Douglas L. Jamerson Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Edward A. Dion General Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 John Wayde Campbell 1103 67th Street Northwest Bradenton, Florida 34209 Louise T. Sadler Senior Attorney Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
