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DOG ISLAND COMPANY vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 78-000105 (1978)
Division of Administrative Hearings, Florida Number: 78-000105 Latest Update: Jul. 27, 1978

The Issue Whether or not the Petitioner, Dog Island Company, is entitled to the grant of a default permit from the State of Florida, Department of Environmental Regulation, premised upon a violation on the part of the Respondent of the conditions of Section 120.60(2), Florida Statutes, for the alleged failure on the part of the Respondent to respond to the application within the prescribed period of time in the above referenced section, thereby entitling the Petitioner to the grant of the requested permit without further justification on its part. Whether or not on the facts and evidence in this cause, the Petitioner, Dog Island Company, is entitled to the requested permit, which is the subject of this controversy.

Findings Of Fact This case concerns the application of Dog Island Company, Petitioner, to excavate a canal on Dog Island, a barrier island off the coast of Florida. This canal would be approximately 825 feet long, 85 feet wide, and 4 feet deep. At present the canal is partially completed. The initial application permit filed with the State of Florida, Department of Environmental Regulation, was made on December 10, 1976, and the terms and conditions of that application may be found in the Petitioner's Exhibit No. 1 admitted into evidence. This application is by the "short-form" method; however, it was later determined that the application needed to be filed on the "long form," in view of the amount of material to be dredged and filled. Consequently, on June 6, 1977, the Petitioner filed its reapplication and that reapplication may be found as Petitioner's Exhibit No. 9 admitted into evidence. The Petitioner by its action raises two points. The first point considers the Petitioner's contention that the Respondent must issue a default permit to the Petitioner in view of the Respondent's alleged violation of the conditions of Section 120.60(2) Florida Statutes. More particularly, the Petitioner asserts that the Respondent violated the conditions of Section 120.60(2), Florida Statutes, when it, the Respondent, stated to the Petitioner that the Petitioner must fulfill the requirements of Section 253.77, Florida Statutes, as a necessary prerequisite to the granting of an application for a dredge and fill permit. The second point of the petition is a prayer that the permit he granted on the merits of the request, if it is determined that the Petitioner is not entitled to a default permit. Turning to a consideration of the initial point raised by the petition, it may be further categorized as one, a general attack on the Respondent's treatment of the Petitioner's application and reapplication permit, in the context of the requirements of Section 120.60(2), Florida Statutes; and, two, the Respondent's alleged disallowance of the permit premised upon the belief that Section 253.77, Florida Statutes, would not allow the permit to be granted until the conditions of that portion of Chapter 253, Florida Statutes, had been complied with. The questioned provision of Chapter 120, i.e., Section 120.60(2), Florida Statutes, states in pertinent part: 120.60 Licensing.- * * * (2) When an application for a license is made as required by law, the agency shall conduct the proceedings required with reason- able dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the appli- cation, notify the applicant of any apparent errors or omissions, and request any addi- tional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period. The agency shall notify the applicant if the activity for which he seeks a license is exempt from the licensing requirement and return any tendered application fee within 30 days after receipt of the original appli- cation or within 10 days after receipt of the timely requested additional information or correction of errors or omissions. Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions. . . . By its argument herein, the Petitioner is convinced that the Respondent failed to notify the Petitioner within thirty (30) days after receipt of the initial application, of any apparent errors or omissions or to request any additional information the agency is permitted by law to require, again within the thirty (30) day period. This has a direct bearing in the mind of the Petitioner on the effective date of the license permit approval or denial, in relationship to the requirement that the license/permit be granted within ninety (90) days after the receipt of the original permit or receipt of the timely requested additional information or correction of errors or omissions. Factually, we have the initial application of the Petitioner which was filed on December 10, 1976, and received that same date. This was responded to by two items of correspondence. One, dated January 6, 1976, from the Panama City District Office of the Respondent, that being reflected in Petitioner's Exhibit No. 3 admitted into evidence; and a second exhibit, which is a January 10, 1977, correspondence from the central office of the Respondent, this item being found as Petitioner's Exhibit No. 5 admitted into evidence. Petitioner's Exhibit No. 3 notifies the Petitioner that his application is on the wrong form. The proper form should have been the "long form." (The initial application had been submitted on the "short form.") Therefore, on that basis alone, the ninety day requirement for issuance of the application was tolled. Subsequent to being informed by the Respondent that the application must be filed on the "long form," the Petitioner hired the firm of Barrett, Daffin and Figg, Architects, Engineers, Planners, Inc., to assist in the formulation of a reapplication. This document was filed June 6, 1977, and in the body of the document it is represented that this matter is a reapplication. A copy of this reapplication started the thirty-day clock for the Respondent to notify the applicant of apparent errors or omissions and request additional information permitted by the law, and it ran from June 6, 1977. The additional effect of the reapplication was to start a new ninety-day clock for approving or denying the permit and this clock was running from June 6, 1977, or from receipt of the timely requested additional information or correction of errors or omissions. On July 11, 1977, an employee of the Respondent filed what purports to be additional requests for information addressed to the Petitioner. The contents of this request may be found as Petitioner's Exhibit No. 10 and Respondent's Exhibit No. 7 admitted into evidence. This request is clearly outside the thirty day limitation set forth in Section 120.60(2), Florida Statutes, pertaining to the right of an agency to request additional information founded upon any apparent errors or omissions on behalf of the Petitioner, or any additional information the Respondent is permitted by law to require. Nonetheless, the Petitioner met with the Respondent to address the questions raised by the July 11, 1977, correspondence. This meeting was held on July 21, 1977, and out of this meeting the Petitioner, through its agent, responded in writing to the completeness summary of July 11, 1977. This response was dated July 25, 1977, and may be found as Petitioner's Exhibit No. 14 admitted into evidence. These responses were acknowledged by the Respondent on a copy of its July 11, 1977, completeness summary, this being Respondent's Exhibit No. 7. These acknowledgments show the date, July 26, 1977, and create the requirement on the part of the Respondent that it approve or deny the application within ninety days of the date of July 26, 1977. Within ninety days of that date, specifically on October 14, 1977, the Respondent issued the letter of intent to deny the permit; a copy of this letter of intent to deny may be found as Respondent's Exhibit No. 11 admitted into evidence. By its actions of responding to the July 11, 1977, completeness summary, the Petitioner has acquiesced in the right of the Respondent to make such request, notwithstanding the fact that the request had been made thirty days after the June 6, 1977, reapplication had been filed. The October 14, 1977, letter of intent to deny the permit application was timely and no default permit should be issued under the terms and conditions of Section 120.60(2), Florida Statutes. The Petitioner raises the additional point that Respondent was denying the permit application solely on the basis of the Respondent's contention that Section 253.77, Florida Statutes, had not been complied with. This impression on the part of the Petitioner came about after it had requested issuance of a default permit on November 17, 1977, under the belief that Section 120.60(2), Florida Statutes, required the permit to be issued. The Respondent, in the person of its secretary, issued a letter of November 29, 1977, in which document the secretary states that the permit cannot be granted because Section 253.77, Florida Statutes, has not been complied with in that proof of payment for state- owned dredge material is not reflected. Section 253.77, Florida Statutes, has the following language: 253.77 State lands; state agency authoriza- tion for use prohibited without consent of agency in which title vested.- No department, including any division, bureau, section, or other subdivision thereof, or any other agency of the state possessing regulatory powers involving the issuance of permits shall issue any permit, license, or other evidence of authority involving the use of sovereignty or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under chapter 253, until the applicant for such permit, license, or other evidence of permission shall have received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, ease- ment, or other form of consent authorizing the proposed use and exhibited it to such agency or department or subdivision thereof having regulatory power to permit such use. This act shall not apply to any permit, license, or other form of consent to take the regulated action which gas issued and outstanding on June 23, 1976. It can be seen by an examination of that section that it does not require payment for state-owned dredge material. It simply requires that the applicant have permission of the Board of Trustees of the Internal Improvement Trust Fund, in the person of the Department of Natural Resources. Moreover, there are no regulations existing which require that proof of payment be a precondition to any issuance of a dredge and fill permit by the Respondent. Nevertheless, the October 14, 1977, letter of intent to deny was sufficient compliance with the requirements of Section 120.60(2), Florida Statutes, and obviated the necessity to Issue a dredge and fill permit on a default basis. The issue in this cause should therefore be considered on its merits, and if the Petitioner prevails on the merits, then the permit should be granted conditioned upon the necessary approval of the State of Florida, Department of Natural Resources, on the question of payment for the fill material. This opinion is held because an examination of all the testimony and other items of evidence in this case leads to the conclusion that the land waterward of the mean high water line, at the mouth of the proposed canal, belongs to the State of Florida. (The land above the mean high water line at the site of the proposed canal is land which is owned by the Petitioner.) What then is the determination to be reached on the merits? The initial question that should be addressed on the issue of the merits of the case, is the question of what class of waters is found in the St. George Sound, which is the body of water that is fronted by the mouth of the proposed canal. The argument between the parties is on the issue of whether the waters are Class II or Class III waters. The significance of the difference between the classification is the fact that Class II waters require a more careful consideration of the environmental issues, as stated in Rule 17-4.28(8), Florida Administrative Code. The parties offered certain maps for consideration on the question of whether the waters were in fact Class II or Class III. These maps may be found as Petitioner's Exhibit No. 23, and Respondent's Exhibits Nos. 13 and 15 admitted into evidence. The real question, however, is whether or not the area in dispute meets the criteria for classification as a Class II body of water. That criteria pertains to the inquiry whether the site, either actually or potentially, has the capability of supporting recreational commercial shellfish propagation and harvesting. From the testimony offered in the course of the hearing, it is evident that the eventuality and potential does exist as outlined in Rule 17-3.08, Florida Administrative Code. It exists because of the existence of fish, oysters and shrimp in the immediate vicinity of the proposed canal. As a consequence, the Petitioner must have a plan of procedure which adequately protects the project area and areas in the vicinity of the project from significant damage of the site as a source of commercial or recreational shellfish harvesting and as a nursery area for fish and shellfish. This particular requirement for dealing with Class II waters only has importance because it creates a responsibility on the part of the applicant to adequately address the question of the marine life for the reasons stated above. In fact, the Petitioner has offered its explanation of how it intends to protect the marine life in these Class II waters at a time when the project is being constructed and subsequent to the construction. However, this effort at explanation of its protection of the shellfish and other related marine life found in the Class II waters is not convincing. If the canal is completed, certain forms of marsh grasses and attendant habitat will be removed, thus interfering with the function of the detrital food chain and associated food webs which are found near the proposed open end of the canal. This would result in the diminution of the marine resources. This can be seen by an examination of the Petitioner's Composite Exhibit No. 16, which is a series of photographs of the area and part of the Respondent's Exhibit No. 1, which contain further photographs of the area. Both of these sets of photographs have been admitted into evidence. Effectively, what exists at the site is a marsh area at the end of the canal nearest the sound, and a type of pond at the closed end of the canal. Furthermore, the removal of this marsh area will have no positive benefit to the public at large. This can be seen by a comparison of the proposed canal and an existing canal which is located in the immediate vicinity. There is a marked similarity between the length, width and depth of the proposed canal and the existing canal. In addition, the existing canal is a dead-end canal. In the existing canal, there is a substantial buildup of anaerobic muck at the closed end of the canal due to poor circulation and flushing by action of the tides. The water quality in the existing canal is also very poor in the measure of the dissolved oxygen count and this condition is not conducive to the survival of marine live. Although there is a worse condition, when speaking of anaerobic muck, that has built up in the proposed canal due to less circulation, there is no reason to believe that there will be any positive flushing effect to the proposed canal by completing the proposed canal and removing the marsh area. There is also a legitimate concern of possible salt water intrusion into the fresh water lens which serves as a potable water supply for residents of the island. Additionally, the experience in the existing canal has shown a development of shoaling at the open end of the existing canal and it is reasonable to expect the same type of effect in the proposed canal. This would further diminish the flushing of the waters in the canal and cause an unsatisfactory concentration of dissolved oxygen, bringing about problems such as the anaerobic muck and resulting difficulty for marine life. For the reasons stated above, the Respondent is justified in denying the reapplication for permit made by the Petitioner to excavate a dead-end canal of 825 feet long and 85 to 90 feet wide by 4 feet deep at the mean low water mark. The Proposed Findings of Fact and Conclusions of Law submitted by the parties have been examined, and where appropriate have been incorporated in this order. Those that do not comport with the Findings of Fact and Conclusions of Law of the undersigned are rejected.

Recommendation It is recommended that the application for permit to excavate a dead-end canal as set forth in the reapplication of the Petitioner be denied. DONE and ENTERED this 7th day of June, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel S. Dearing, Esquire 424 North Calhoun Street Tallahassee, Florida 32302 Alfred W. Clark, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Florida Laws (2) 120.60253.77
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ROBERT W. HOYT vs. FLORIDA GAME AND FRESH WATER FISH COMMISSION, 87-001883 (1987)
Division of Administrative Hearings, Florida Number: 87-001883 Latest Update: Aug. 11, 1987

Findings Of Fact The following are the facts to which the parties have stipulated: Respondent is the holder of a pound net registration issued on November 30, 1983, by Dennis E. Holcomb, Director, Division of Fisheries, for the Executive Director of the Game and Fresh Water Fish Commission (Commission). The registration authorizes the Respondent to operate pound nets for Commercial purposes on certain areas of the St. Johns River, subject to law and Commission rules. On April 30, 1986, Petitioner pled guilty to illegal fishing with pound nets and was adjudged guilty and fined by the County Court of Putnam County, Florida. As a result of this Conviction, Respondent's pound net registration was temporarily revoked for a period of six (6) months dating from June 23, 1986 until December 23, 1986. On October 15, 1986, during the afore-mentioned revocation period, Respondent pled guilty to illegal fishing with unpermitted pound nets, and was adjudged guilty and fined by the County Court of Putnam County, Florida. Based on the Respondent's conviction of illegal fishing with pound nets during the revocation period, the Commission found just cause to permanently revoke Respondent's pound net registration and filed an Administrative Complaint on March 30, 1987 against Respondent to effectuate that revocation. Based on Respondent's unrebutted testimony which I found to be credible, the following relevant facts are found: That in addition to the fine imposed on the Respondent by the County Court of Putnam County, Florida on October 15, 1986, for illegal fishing, the Commission seized and Confiscated two (2) of Respondent's pound nets worth approximately $6,000.00. Respondent, subsequent to October 15, 1986, continues to fish pound nets as the designee of other parties holding pound net registrations, without incident and in compliance with the law and Commission rules. The Respondent is substantially dependent upon pound net fishing for his livelihood and has been prohibited from fishing his pound nets since June 23, 1986. Respondent's pound net registration was not reinstated at the end of the revocation period ending on December 23, 1986.

Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the conduct and demeanor of Use witness, it is, therefore, RECOMMENDED that the Commission enter a Final Order temporarily revoking Respondent's pound net registration for a period of twelve (12) months beginning December 23, 1986. Respectfully submitted and entered this 11th day of August, 1987, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1987.

Florida Laws (2) 120.57921.187
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ALVIN WEINBERG vs FLORIDA GAME AND FRESH WATER FISH COMMISSION, 92-005874 (1992)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Oct. 01, 1992 Number: 92-005874 Latest Update: Apr. 02, 1993

The Issue The issue is whether the Florida Game and Fresh Water Fish Commission (Commission) should renew Respondent's permit to possess captive wildlife.

Findings Of Fact Operating under the name of South Florida Reptile Exchange, Respondent, Alvin Weinberg, has been permitted since 1978 by the Commission to possess captive wildlife. On September 2, 1992, the Commission issued an Administrative Complaint seeking to deny renewal of Respondent's permit for violations of minimum pen specifications and unsanitary and inhumane conditions at his facility. Under Rule 39-5.004, Florida Administrative Code, the Commission may revoke or deny renewal of any license or permit if the licensee or permittee is convicted or found guilty, regardless of adjudication, of a violation of Chapter 372, Florida Statutes, or of the rules of the Commission. On June 16, 1992, Respondent's facility was inspected by Lt. Charles Dennis and Lt. John West. In the course of that inspection, they found a number of unsanitary and inhumane conditions. Specifically, most of the water bowls for the animals were empty. There were dead animals, maggots and an accumulation of fecal matter in many cages. Up to 150 turtles were kept in one pit that measured only 5' X 5'. Many reptiles had not been fed properly. For instance, one Monitor lizard was so emaciated that the inspectors were surprised it was still alive. The conditions found at Respondent's facility on June 16, 1992, were the worst seen in the 17 years experience of Lt. Dennis. Respondent was issued two criminal citations on the basis of these observations, for violations of a Commission rule relating to sanitation requirements and the humane treatment of captive wildlife, Rule 39-6.0023(5), Florida Administrative Code. These citations resulted in a criminal conviction of Respondent in St. Lucie County Court, Cases 92-1754MM and 92-1755MM. Respondent was previously issued a criminal citation in July of 1991 for violation of a Commission rule relating to sanitation requirements and humane treatment of wildlife at his facility. This citation also had resulted in a criminal conviction in St. Lucie County Court, Case 91-1345MM. Before these criminal proceedings, Respondent had received warning citations from inspectors for violations of Commission rules relating to sanitation and the humane treatment of animals. During the pendency of these proceedings, Respondent's facility was inspected again on January 6, 1993. Some conditions at the facility had improved, but there were still deficiencies related to sanitation and the humane treatment of the animals. Respondent has consistently been below the industry standard with respect to sanitary conditions and the humane treatment of wildlife kept at his facility.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's application to renew his permit to possess captive wildlife be DENIED by Final Order of the Commission. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of March 1993. WILLIAM R. DORSEY, JR. 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 8th day of March 1993. COPIES FURNISHED: James T. Knight III Assistant General Counsel Florida Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Mr. Alvin H. Weinberg South Florida Reptile Exchange 20510 Glades Cutoff Road Port St. Lucie, Florida 34987 Colonel Robert M. Brantly Executive Director Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 James Antista, General Counsel Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600

Florida Laws (2) 120.57395.004
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ORGANIZED FISHERMEN OF FLORIDA; SOUTHEASTERN FISHERIES ASSOCIATION, INC.; LEE COUNTY FISHERMEN`S COOPERATIVE, INC.; ST. JAMES FISH COMPANY; A. P. BELL FISH COMPANY, INC.; STEINHATCHEE FISH COMPANY; GOODRICH SEAFOOD; DUKES SEAFOOD MARKET; HAROLD FUTCH; vs. MARINE FISHERIES COMMISSION, 86-002761RP (1986)
Division of Administrative Hearings, Florida Number: 86-002761RP Latest Update: Oct. 11, 1986

The Issue Whether the amendments respondent proposes to Rules 46- 22.001, 46-22.002 and 46-22.003, Florida Administrative Code, and the new rules it proposes, 46- through 46-22.007, or any of them, constitute an invalid exercise of delegated legislative authority, within the meaning of Section 120.54(4), Florida Statutes, (1985)?

Findings Of Fact Comprised largely of commercial fishermen, the petitioners are organizations which represent commercial fishing interests, including not only commercial fishermen, but also fish houses, fish processors, and at least one restaurateur. The parties have stipulated that petitioners have standing to bring this rule challenge. The intervenor, Florida Conservation Association (FCA), is an organization to which recreational fishermen and "a number of people ... involved in the sports fishing industry" (T VIII. 7), including fishing guides, marina owners, bait and tackle dealers, tackle manufacturers, and "motels that ... cater to a fishing clientele," (T.VIII. 8) belong. According to the intervenor's executive director, "one of the primary goals of the organization ... has been to work towards gamefish status for redfish, which would be basically what we have been trying to do with the rule, for game fish status." (T.VIII 6.) Respondent Marine Fisheries Commission (MFC) is charged by statute with regulating fishing in the salt waters of the state, which extend nine nautical miles from shore. (T.I.29) The rules and rule amendments the MFC has proposed for redfish were published on July 11, 1986, in Volume 12, No. 28 of the Florida Administrative Weekly on pages 2595, 2596 and 2597. They read, as follows: * 46-22.001 Purpose, Intent and Repeal of Other Laws. The purpose and intent of this chapter are to protect, manage, conserve and replenish Florida's depleted red drum (redfish) resource, species <<Sciaenops ocellata,>> which has suffered extreme declines in abundance in recent years and which is now overfished throughout the state. This chapter will <<implement measures designed to reduce fishing pressure on this species; including>> [[initially impose]] minimum and maximum size limits, <<bag limits, closed season, and prohibition of sale,>> for [[harvestable]] redfish <<harvested from state waters,>> [[to provide interim protection for the resource while a comprehensive management scheme is being formulated for later promulgation in this chapter.]] Accordingly, it is the intent of this chapter to repeal and replace those portions of section 370.11(2)(a)4., Florida Statutes dealing with redfish. This chapter is not intended, and shall not be construed, to repeal any other portion of section 370.11(2)(a)4., Florida Statutes; any other subdivision of section 370.11, Florida Statutes; or any other general or local law directly or indirectly relating to or providing protection for the redfish resource. * * * 46-22.002 Definitions "Harvest" means the catching or taking of a fish by any means whatsoever, followed by a reduction of such fish to possession. <<"Harvest" also includes the intentional killing of a fish, whether or not it is subsequently reduced to possession.>> Fish that are caught but immediately returned to the water free, alive and unharmed are not harvested. In addition, temporary possession of a fish for the purpose of measuring it to determine compliance with the minimum or maximum size requirements of this chapter shall not constitute harvesting such fish, provided that it is measured immediately after taking, and immediately returned to the water free, alive and unharmed if undersize or oversize. <<"Land," when used in connection with the harvest of a fish, means the physical act of bringing the harvested fish ashore.>> (3)(2) "Person" means any natural person, firm, entity or corporation. (4)(3) "Red drum" or "redfish" means any fish of the species <<Sciaenops Ocellata,>> or any part thereof. <<"Native redfish" means any redfish harvested from the territorial waters of the State of Florida.>> (5)(4) "Total length" means the length of a fish as measured from the tip of the snout to the tip of the tail. (6) <<"Vessel" means and includes every description of water craft used or capable of being used as a means of transportation on water, including nondisplacement craft and any aircraft designed to maneuver on water.>> 46-22.003 Size Limits. No person shall harvest in or from the [[following designated]] waters of the State of Florida at any time, or unnecessarily destroy, any redfish of total length less than <<18 inches.>> [[that set forth as follows:]] [[(a) In the Northwest region as hereinafter defined, redfish of total length less than 16 inches. In the remainder of the state, redfish of total length less than 18 inches.]] [[For purposes of this subsection, the tern "Northwest region" shall mean and include all state waters along the Gulf of Mexico north and west of a straight line drawn from Bowlegs Point in Dixie County, southwesterly through marker 16, and continuing to the outer limit of state waters.]] [[No person shall harvest in or from the waters of the state of Florida at any time, or unnecessarily destroy, any redfish of total length greater than 32 inches, except that one (1) redfish larger than this maximum size limit may be harvested per person per day. No person shall possess at any time more than one redfish larger than 32 inches in total length, harvested from state waters.]] <<(2)(a) No person shall harvest in or from the waters of the State of Florida at any time, or unnecessarily destroy, more than one (1) redfish per day of total length greater than 32 inches.>> (b) <<No person shall possess more than one (1) redfish of total length greater than 32 inches, harvested from waters of the State of Florida.>> [[(3) It is unlawful for any person to possess, transport, buy, sell, exchange or attempt to buy, sell or exchange any redfish harvested in violation of this chapter.]] * * * <<46-22.004 Prohibition on Sale and Commercial Harvest of Native Redfish. It is unlawful for any person to: Buy, sell exchange or attempt to buy, sell or exchange any native redfish. Harvest, possess or transport, for purposes of sale or with intent to sell, any native redfish. The prohibitions contained in subsection (1) of this section do not apply to non-native redfish that have entered the State of Florida in interstate commerce. However, the burden shall be upon the person possessing such redfish for sale or exchange to show, by appropriate receipt(s), bill(s) of sale, or bill(s) of lading, that such redfish originated from a point outside the waters of the State of Florida, and entered the state in interstate commerce. It is unlawful for any wholesale or retail seafood dealer or restaurant to possess, buy, sell, or store any native redfish, or permit any native redfish to be possessed, bought, sold or stored on, in, or about the premises or vehicles where such wholesale or retail seafood business or restaurant is carried on or conducted; provided, however, that native red fish which have been lawfully harvested may be kept on the premises of a restaurant for the limited purpose of preparing such red fish for consumption by the person who harvested them, so long as such redfish are packaged or on strings with tags bearing the name and address of the owner clearly written thereon. When any person buys, sells, possesses or transports non-native redfish under circumstances requiring documentation under this section, failure to maintain such documentation, or to promptly produce same at the request of any duly authorized law enforcement or conservation officer, shall constitute a separate offense under this chapter and shall also constitute prima facie evidence that such red fish were harvested from Florida waters and are being transported and/or possessed for purposes of sale.>> <<46-22.005 Season, Bag and Possession Limits. (1) During the months of March and April, the harvest of redfish in or from state waters or possession of native redfish is prohibited. Possession of redfish by any person aboard a vessel fishing in state waters during such months constitutes prima facie evidence that such redfish were harvested out-of-season in state waters. (2)(a) Except as provided in subsection (1), all persons are subject to a bag limit of five (5) native redfish per person, per day, and a possession limit of five (5) native redfish per person. Only one (1) native red fish larger than 32 inches total length may be harvested per person, per day, and no more than one (1) such redfish may be possessed by any person at any time. Possession of redfish in excess of the applicable bag or possession limit by any person aboard a vessel fishing in state waters constitutes prima facie evidence that such red fish were harvested from state waters. (3) Nothing in this section shall be construed to permit the harvest of native red fish from any area during any time, or the use of any gear where same is otherwise prohibited by law.>> * * * <<46-22.006 Other Prohibitions. The harvest of any redfish in or from state waters by or with the use of any treble hook in conjunction with live or dead natural bait is prohibited. Gigging, spearing or snagging (snatch hooking) of redfish in or from state waters is prohibited. It is unlawful for any person to possess, transport, buy, sell, exchange or attempt to buy, sell or exchange any redfish harvested in violation of this chapter. When any provision of this chapter is violated by a person aboard a vessel, the operator of that vessel, if different from such person, shall be deemed to have assisted and participated in the violation and such assistance and participation shall constitute a separate offense under this chapter. All redfish harvested from Florida waters shall be landed in a whole condition. The possession, while on state waters, of redfish that have been deheaded, sliced, divided, filleted, ground, skinned, scaled or deboned is prohibited. Mere evisceration or "gutting" of redfish, or mere removal of gills from redfish, before landing is not prohibited. Preparation of red fish for immediate consumption on board the vessel from which the fish were caught is not prohibited.>> <<46-22.007 Severability. If any provision of this rule chapter, or its application to any person or circumstances is held invalid; the invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this rule chapter are declared severable.>> Petitioners' Exhibit No. 1 (Added language underscored, de- leted language struck through) * Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. The proposed rules and rule amendments under challenge are designed to replace the initial redfish rules, which took effect September 12, 1985, and remain in force. Since before the current rules' adoption, statutory provisions have imposed a statewide 12-inch minimum size limit for redfish, Section 370.11(2)(a)4, Florida Statutes (1985), and forbidden the use of purse seines. Section 370.08(3), Florida Statutes (1985). Youth and Age The redfish, also known as red drum and, to ichthyologists, as Sciaenops ocellatus, has a life span of 25 to 35 years. The adult redfish or "bull reds" swim offshore in deep water ordinarily, but not always, in schools. They are commonly found with schools of blue runner and little tunny. Respondent's Exhibit No. 29, 2-1. Schools of adult redfish are not found in inshore waters. But adults do approach the mouths of estuaries to spawn in the fall, mostly in September. Eggs borne by incoming tides and newly hatched, microscopic redfish larvae swimming inland make their way through the passes and well up into the bays and bayous along Florida's coasts, often all the way into fresh water, where rivers empty into the estuaries. By April of the following year, some redfish spawned in September have attained a length of 12 inches. By the following September, all redfish spawned a year earlier have reached 12 inches in length. A redfish gains one to five pounds a year. (T.I.31) When they are 18 to 26 inches long, they weigh from 3 to 6 pounds. On average, an 18 inch redfish is about a year and a half old. Juvenile redfish also swim in schools, often with sea trout, mullet and catfish. Once a redfish reaches three or four pounds, man is one of the few creatures in the estuaries big enough to eat it. (T. I. 45) But scientists put the mortality rate for juvenile redfish at 30 percent. (T.58) Only when they are about 4 1/2 years old do redfish leave the juvenile population's estuarine habitat for the blue waters the adult population inhabits. On average they then weigh 12 to 14 pounds and have obtained a length of 29 to 30 inches. Tagging studies and age frequency data suggest that as few as two percent of redfish recruits, or perhaps only a tenth of that number, survive long enough to escape the estuary. (T.I.63) For at least the last ten years, the escapement rate has been on this order of magnitude, and the escapement rate may have been dropping during this period. (T.I.67) The size distribution of redfish taken offshore reflects significantly lower numbers of spawners escaping during the last 20-some years than previously. Spawning redfish tend to return to the point on the coast where they themselves were spawned, but this is by no means a hard and fast rule: "Drift", also called diffusion or filtration, is known to occur. Redfish range throughout the Gulf of Mexico and are found in the Atlantic Ocean as far north as New Jersey. Because redfish caught offshore are taken with purse seines, they cannot legally be landed in Florida. They are mostly brought ashore in Louisiana and mostly caught in that part of the Gulf. Juvenile redfish in the Florida Keys are not believed to swim back and forth between the Gulf and the Atlantic, but adult redfish may. Blackened Redfish Commercial fishing offshore requires a six-figure investment in boat and equipment and a crew of several men. Until relatively recently, the big offshore operations largely ignored redfish, in favor of fish that could be sold at higher prices. But a dramatic increase in the demand for redfish has provided the economic incentive to make redfish an important target of the offshore fishery since 1982 or 1983. (The redfish's new-found popularity has been attributed to a New Orleans chef, who made famous a dish called "blackened redfish.") For whatever reason, massive catches of red fish offshore have depleted the adult stock of redfish in the last four or five years by as much as half, by some estimates. Before 1983, catches averaged less than 100,000 pounds a year. In the first half of 1986, some 7,000,000 pounds of redfish were taken in federal waters in the Gulf of Mexico. In other species, declines in the number of spawners have precipitated collapses of fisheries. The pattern has been, however, that declines in spawning populations have initially caused increases, rather than decreases, in juvenile populations. In the case of the yellow croaker, for example, the juvenile population initially increased ashe adult population dwindled. Only after 80 percent or more of the spawning stock was wiped out did a dramatic drop in the juvenile population ensue, spelling the end of the fishery. Whether the juvenile redfish stock has diminished in consequence of the decline of the spawner population is not clear. According to anecdotal evidence from Steinhatchee, the redfish catch there has increased over the last five years. The evidence did not establish whether fishermen's efforts to catch juvenile redfish at Steinhatchee or elsewhere in shallow state waters have changed significantly in recent years. Steinhatchee fishermen report large schools of two to four pound redfish beginning in October. Such reports are often unreliable evidence of general conditions, however. Trends in catch data are evidence of population trends, but they require careful interpretation. For one thing, experts generally believe the commercial catch to be under-reported and the recreational catch to be overestimated. (T.I.48-9) Constant catches in response to increasing effort may reflect a decline in population. Even increasing catches are not incompatible with population decline, considered in conjunction with other factors. The most recent catch data from Charlotte Harbor suggest smaller catches last year and the year before than in immediately prior years, during which the trend was generally up. But last year's statistics particularly are subject to revision and should be treated as preliminary only. To some extent, moreover, last year's change from a 12-inch to an 18-inch minimum size limit in Charlotte Harbor would account for any decrease in catch. The Charlotte Harbor redfish catch reported for 1984 is comparable to catches reported in the mid 1950s, 1964, and 1969, and exceeds the redfish catches reported in 1967, 1966, and certain earlier years. In short, the Charlotte Harbor data since 1983 neither confirm the previous upward trend nor establish any change in trend. Catch statistics with regard to the state as a whole are similarly inconclusive. In 1979, fishermen caught 3,177,590 pounds of redfish in Florida waiters. The total catch fell by more than a third to 1,917,005 pounds in 1980, and climbed to 3,160,122 pounds in 1981, about the level of two years before, even excluding recreational catches in January and February. In 1982, the total catch increased some two and a half times to 8,977,274 pounds, although MFC's executive director suspects that the recreational catch estimates, and, therefore, the totals for 1982 are inflated. The total redfish catch fell to 5,738,260 pounds in 1983, then rose to 6,375,250 pounds in 1984. Table 5, Petitioner's Exhibit No. 4. These catches do not include adult redfish in any significant numbers. (T. I.33) Fish Scaling MFC staff used a computer model developed by one of the commissioners, William W. Fox, Jr., to predict the effects regulatory changes would have on the escapement rate. This computer model, the generalized exploited population simulator (GXPOPS), has been used to predict the population dynamics of such diverse species as pandalic shrimp, with its "protandric hermaphroditic life history strategy," Petitioner's Exhibit No. 8, p. 38, and grouper, a "protogynic hermaphroditic population." Id. Redfish have distinct genders and differ from grouper and shrimp in other important attributes. Computer models are the only tools available for predicting population changes in response to regulatory changes, however; and, as far as the evidence showed, no other computer model has been more closely tailored to redfish or would be any more likely to predict the effects of regulatory changes on redfish populations more accurately than GXPOPS. Various GXPOPS generated tables are in evidence displaying data stated in millions of pounds of redfish, or in millions of fish, but nobody knows how many redfish are in the sea, so that a principal use of the numbers is as ratios; more than one scale has been used, and not all the tables are directly comparable. The MFC considered what biological or resource objective to set in terms of a proportional increase in the rate of escapement. The greater the fraction of juvenile recruits that survive long enough to escape the estuaries, the more rapidly the diminished spawning stock could be replenished offshore. Although there is some confusion on the point, it is not an unfair characterization to say that the MFC adopted a 50-fold increase in the escapement rate as its biological goal for redfish. If, as may be the case, the present escapement rate is only 0.2 percent, a 50-fold increase would only bring the escapement rate to half the level advocated by the Gulf of Mexico Fisheries Management Council. If, as may also be the case, a dramatic decrease in the number of recruits is either imminent or already in progress, even a 50-fold increase in the rate of escapement may not increase the number of spawners leaving the estuaries to the levels needed to preserve the redfishery. The evidence falls far short of showing that the MFC has set the escapement rate goal too high. On the contrary, the evidence established that the MFC set the escapement rate goal so low that attaining the goal will not guarantee the continued viability of the redfish fishery. If, as respondent's executive director testified, it is like driving toward a cliff in the fog, the wisest thing might be to stop the car till the fog clears. Means To An End Once a biological or resource goal has been set, the question becomes how to reach the goal. The MFC considered two options that the GXPOPS model predicted would meet its resource goal without closing down the commercial fishery: a five-month closed season together with a 17 inch minimum size limit; and a six-month closed season together with a 16-inch minimum size limit, There are numerous other approaches that would not involve conferring gamefish status on the redfish. Exhibit 1 to Dr. Fox's deposition; Dr. Austin's testimony. It may be that prohibiting redfishing for three, instead of only for two months would have permitted continuation of the commercial fishery. (T.XI. 52-4) In regulated fisheries throughout the world "there is a fairly clear hierarchy," (T.X. 72), among types of regulations. Minimum-size limits, then closed seasons, then catch restrictions (bag limits for recreational fishermen and quotas for commercial fishermen) are preferred, in that order, both because within each category the magnitude of change necessary to accomplish the same result increases in descending order; and because the complexity of assumptions that must be made to predict the effect of the regulation increases for each category in descending order. In the present case, for example, an increase of three inches in the minimum size limit applicable in peninsular territorial waters, from 18 to 21 inches, would be a less drastic change than leaving the minimum size limit at 18 inches and closing state waters to the taking of redfish for five months, although either change would accomplish approximately the same increase in the escapement rate. The only assumptions that underlie minimum size restrictions concern age size correlations and the "mortality that occurs when fish have to be released [because they are too small], which is relatively well known in this fishery." (T.X. 74) Predicting the effect of closed seasons requires more complex assumptions about seasonal abundance of the fish, the likelihood that fishermen's efforts A to catch the species will drift into the open season, and the chances that scofflaws will shorten the closed season de facto. In general, a prohibition against possession is more readily enforcible than a prohibition against disposition. It is a simple matter to count the number or to measure the size of fish a person has in his possession. Proving an intent to sell is more difficult. Other Management Plans On July 20, 1986, the United States Secretary of Commerce closed the federal conservation zone, which is the area more than nine and less than 200 nautical miles out from shore, to the taking of redfish. The Gulf of Mexico Fisheries Management Council (GMFMC) has recommended that the original ban, which was to have been effective only through September 23, 1986, be extended for another 90 days pending adoption of regulations prescribing a permanent ban. The GMFMC has also recommended that the Gulf states adopt regulations that would allow at least a fifth of redfish recruits to escape the estuaries. As of January 1984, Alabama prohibited the taking of red fish smaller than 14 inches and the taking of more than two redfish larger than 36 inches, placed geographic and temporal restrictions on the use of nets, limited recreational catch to 25 fish per day and imposed a possession limit of 50 on recreational fishermen. Respondent's Exhibit No. 29, 7-16 and 17. Alabama forbids the sale of native redfish. Alabama Administrative Code Section 220-3- 12. As of January 1984, Mississippi placed gear restrictions on fishermen taking redfish, prohibited the taking of redfish in certain places (including Redfish Bayou!) and of a size less than 14 inches, limited to two per day the number of redfish exceeding 30 inches in length, limited recreational catch to 10 redfish per day, imposed a possession limit of 30 redfish, closed state waters to commercial fishing from September 15th to November 15th, and authorized closing of the commercial fishery for the remainder of any year in which landing reports indicate 200,000 pounds have been taken. Respondent's Exhibit 29,7-14,15. As of January 1984, Louisiana closed certain areas to commercial fishing, disallowed the use of certain gear by commercial fishermen in certain other areas, and imposed gear restrictions on all fishermen. Recreational fishermen were limited to two redfish per day more than 36 inches in length but were subject to no minimum size limit. Recreational fishermen were entitled to take no more than 50 spotted sea trout and redfish combined per day, and subject to a 100-fish possession limit. Commercial fishermen were subject to a 16-inch minimum size limit but to no maximum size limit. Effective August 30, 1986, counsel advise, recreational fishermen are permitted to keep no more than two red fish greater than 30 inches in length and possession of redfish on board a vessel carrying a purse seine is illegal, citing Act. No. 613, 387, 611, 660. As of July 1984, commercial fishing for redfish had been outlawed in Texas, although licensed fish importers may, and do, sell redfish from Mexico and other states. No redfish less than 16 inches long or greater than 30 inches in length could be taken. The weekend use (1:00 p.m. Friday to 1:00 p.m. Sunday) of nets and trot lines was forbidden. As of September 4, 1986, the minimum size limit was 18 inches, and hook and line was the only lawful way to take redfish. Respondent's Exhibit No. 2, pp. 78A. At the time Texas dilettantized its redfishery, commercial fishermen were taking most of the catch. Fishermen must use either fishing poles or a single "sail line" which is a "special trotline[] with one end on shore, pier or jetty, and with the other end attached to a wind-powered device or sail and attended at all times." Respondent's Exhibit No. 29, 7-7. Florida Fisheries Fishing gear and methods in Charlotte Harbor, the principal site for commercial redfishing in Florida, have been constant for some time. Since the 1950s fishermen have used synthetic, instead of natural, fibers for their nets. In December, January and February, cold fronts in Charlotte Harbor seem to "concentrate the fish" into schools that experienced fishermen can spot. There is also a "night fishery" in the summer months, when redfish are taken at first light or "dawn pink." Petitioner's Exhibit No. 9, p 31. Ninety percent of the red fish commercial fishermen catch in Charlotte Harbor are taken with trammel nets, deployed from flat-bottomed shallow draft boats 19 to 24 feet long, with beams of five to eight feet. Although "pole skiffs" are sometimes used in very shallow water (four inches or less), the boats are mostly powered by outboard motors, mounted forward in wells. In Steinhatchee, the fishermen call these boats "bird dogs." Even the largest of them can be handled by a single fisherman, and can be built with materials that cost less than $3,000. None could be safely taken very far off shore. Undersize or other undesirable fish taken in trammel nets can be returned to the water alive. Ordinarily trammel nets consist of two outer "walls" of larger mesh flanking a central, finer mesh curtain or "bunt." When the fishermen encircle the fish, the three components of the net stand vertically in the water; the lines along the upper edges of each bunt are kept on the surface by floats, while the weighted lines along the bottom edges fall to the bottom. Fish swimming through an opening in one wall and into the small- mesh bunt push the finer netting through openings in the other wall, which creates a pouch or pocket in which the fish remains ensnared, when the fisherman hauls in the trammel net. Gill nets, which are also sometimes used, consist of a single swatch with mesh calibrated to stop fish of a certain size. Smaller fish swim through while larger fish are repelled. Fish taken by gill nets die from injuries they sustain when they become lodged in an opening in the net. In Steinhatchee almost half the red fish sold to the fish houses are caught by hook and line fishermen who have salt water products licenses, which can be bought for $25 and authorize the holder to sell his catch. In Charlotte Harbor, the "bucket brigade" as they are there called makes a contribution, although a less significant one, to the commercial catch. Hook and line fishermen have the advantage, an important one in the Steinhatchee fishery, of being able to take their boats up the river into fresh water. Eighty percent of redfish are caught from boats. Making a Payday Commercial fishermen take only an eighth to a quarter of the redfish caught in Florida state waters. As far as the evidence showed, not a single commercial fisherman in Florida depends exclusively on the sale of juvenile redfish for his income. Redfish comprise less than one percent of the food fin fish commercial fishermen catch in Florida waters. Almost all of the approximately 1800 commercial fishermen in Florida who catch redfish in state waters depend on the sale of other fish for most of their income. At a given time, certain species are available and certain species are not; and the prices they fetch vary. Mullet may bring as little as $.25 a pound while pompano can go for as much as $3.10 per pound. Commercial fishermen in Charlotte Harbor, whose annual income averages $11,334 after expenses, take mullet, sea trout, pompano, mackerel, jacks and sand bream as well as redfish. Not every fisherman targets each of these fish, but the overwhelming majority do seek mullet, which they call their "bread and butter" fish. Even for those fishermen whose equipment and skills enable them to pursue several species, the different species are not readily interchangeable. Rather than offering each load of fish they catch to the highest bidder, commercial fishermen like the individual petitioners who testified in the present case, ordinarily sell their catch to a single fish house, year after year. This practice offers some protection against seasonal market fluctuations. When roe mullet begin to run in the fall, demand for these and other fish exceeds the supply. But, during the summer months, the fish house operators will not buy mullet from fishermen with whom they have not already established a relationship. Because supply greatly exceeds demand in summertime and because freezer space is limited, fish house operators impose quotas even on fishermen with whom they have longstanding relationships. The fish houses do not sell all of the catch locally. About half leaves Florida. Exporters drive refrigerated semi-trailers to the fish houses where they buy fish by the 100-pound box for resale out of state. Georgia, their nearest destination, is several hundred miles from Charlotte Harbor, the principal site of redfishing in Florida waters. Except during the roe mullet run, these drivers call ahead to inquire of the fish houses how many "fancy fish" they have, "fancy fish" meaning redfish or sea trout. If a fish house has no redfish or sea trout on hand, the drivers may pass it by altogether or, at best, buy only a few boxes of mullet. Explicitly or otherwise, fish houses with redfish to sell may condition their sale on the buyer's taking, along with each box of redfish, four to ten boxes of mullet, depending on market conditions. Fishing For Fun According to those who have studied the question most carefully, including Dr. Holland, who testified at hearing, the attractiveness of recreational fishing trips depends less than might be expected on the hope of catching any fish at all, much less one of a particular species, when several are available. Very few recreational fishermen "limit the goals of their fishing experience to catching fish. The majority are more interested in perceiving freedom, escaping from responsibilities, and enjoying an outdoor natural environment." Petitioner's Exhibit No. 17, p. 137. Things like "being exposed to polluted surroundings... ruin[] a fishing trip more than not catching a fish. These conclusions are based on answers given by a sample of fishing association members who actively fish (an average of 31 days a year)." Petitioner's Exhibit No. 17, p. 136. As Mr. Raulerson explained with reference to tourists who fish in Florida's salt waters, the prospect of catching a fish may be less significant than the prospect of being out on the water in weather much warmer than what the tourist has left behind; and sighting a porpoise can be the principal benefit tourists derive from a fishing trip. For most recreational anglers, keeping a fish to eat is even less important than catching it. The only one of the intervenor's witnesses who testified on the point, Richard A. Shapley, a Tallahassee resident and an IBM employee who goes fishing every weekend, characterized himself as "more of a sports fisherman than a fish eater," (T.VII p. 16) and candidly admitted that he would not be particularly bothered by having to release all the redfish he caught. Currently, only 7.6 percent of sports fishermen catch more than five redfish per trip. Their catch amounts to eleven percent of the recreational catch, which has accounted for three quarters to seven eighths of all the redfish harvested in Florida waters. Almost five percent (4.975 percent) of marine sport fishermen in Florida caught (but did not necessarily seek) or sought (but did not necessarily catch) redfish, according to the most reliable statistics available for the period 1979 to 1984. An economist employed by the Sport Fishing Institute (SFI), whose "programs serve the long-term interests of the sport fishing industry, which provides the base of ... [SFI's] financial support," Respondent's Exhibit No. 1, p. 1, offered the opinion that up "to $121,416,000 in [1985] retail marine sport fishing expenditures can be attributed to redfish." Respondent's Exhibit No. 1, p. 11. Marine sport fishing is without doubt an important source of income for many Floridians, and retail marine sport fishing expenditures figure significantly in the state's economy, but the SFI estimate of retail expenditures attributable to redfish is a very substantial overstatement. To obtain the figure of $121,416,000, SFI's economist used a study that attributed to fishing not only all sums expended on fishing trips, but also all food and lodging expenditures for the whole of each day on which a tourist did any fishing; then assumed that catching or seeking redfish was the sole motivation for 4.975 percent of the fishing trips sportsmen made in Florida's salt waters. Neither of these assumptions bears up under scrutiny. Even on the assumption, which the evidence showed to be contrary to fact, that all fishing trips arise wholly from a desire to catch fish, the use of the 4.975 percent factor was not justified. At least for purposes of the present case, retail expenditures made by fishermen who had no desire or intention to catch redfish can hardly be said to be attributable to the availability of redfish. In addition, the number of recreational fishing trips taken by anglers in pursuit of redfish should, at the very least, be reduced to allow for trips on which the hope of taking other species was the dominant purpose. End of An Era If the proposed rule changes take effect, commercial fishing for redfish in Florida waters will come to an end. The effects on commercial fishermen would be overwhelmingly adverse. The one possible silver lining is that the loss of redfish as a commercial species would make mullet so much harder to sell that marginal commercial fishermen would look for other work, leaving more fish for the more skilled full-time commercial fishermen. Red fish sell for about eighty cents per pound ex-vessel. At least one fish house has had recent offers of $1.45 or $1.50 per pound for redfish. The economic impact statement puts the secondary wholesale value of redfish at 2.8 times the ex-vessel price. Grocery stores, seafood markets and restaurants sell redfish at retail. On the assumption that the retailers could substitute imported redfish for native redfish, if commercial fishing is banned by the proposed rule, the economic impact statement ignores retail losses and predicts a "total annual longterm commercial loss ... [of] approximately $4.733 million in income [which] could force some fishermen and fish houses that rely primarily on redfish out of business." Petitioners' Exhibit No. 5, p. 2. The economic impact statement's analysis assumed a loss of commercial catch of only 961,646 pounds, the 1982-1984 average. On the same assumption, an economist analyzing the problem from the perspective of sport fishermen, predicted the total economic impact of closing the commercial fishery would be $6,494,629 annually, taking retail sales into account and using certain multipliers. Respondent's Exhibit No. 1, pp.9 and 10. Neither of these calculations takes into account the economic value of redfish as leverage in mullet sales, although the economic impact statement does mention that "having no redfish to sell will hurt the mullet sales." Petitioners' Exhibit No. 5, p. 21 Fewer, Fatter Fish for Frying If the proposed rules take effect and the fishery does not collapse, the escapement rate will increase by a factor of 58.43 and, except for the fish that escape, the recreational fishermen will have available not only the fish now caught by commercial fishermen, but also all of the predicted increase in the weight of the redfish catch. The present recreational catch, estimated at 2.1 million pounds, before the new minimum size regulations took effect on September 12, 1985, would grow to 5.65 million pounds at equilibrium three or four years out. Petitioners' Exhibit No. 4, p. 10, All of this increase would be attributable to an increase in the average size of the fish caught, because, over the same period, the number of fish caught by recreational anglers would fall from 1,190,000 to 1,030,000. Id. The precise effects these changes would have on the recreational fishing industry are not clear. The two-month closed season would have an adverse affect, since some 7.4 percent of recreational fishing trips on which redfish are caught or sought now occur in March or April. On the other hand, there would be more redfish, they would weigh more on average, and they would be more likely to be caught not only during the ten months they could lawfully be taken, but also during the two months when the law would require fishermen to release them, if caught. The proposed rule would make it more likely that unskilled fishermen who would not otherwise have caught a redfish will catch redfish, and that those who would otherwise have caught less than five will be more likely to catch as many as five. T.X. Skilled fishermen might be discouraged by the proposed five fish bag limit. Increased abundance would presumably be irrelevant to the 7.6 percent of recreational anglers now catching more than the proposed bag limit of five. They may, indeed, be lured to Alabama where the bag limit is 25, or to some other site. The effects a change in the availability of redfish might have on recreational fishing were the subject of much testimony at the hearing. The economic impact statement assumed a response elasticity for non-residents" of 0.1203, i.e., that an increase of eight percent in pounds of redfish available would cause an increase of approximately one percent of the number of fishing trips on which redfish were caught or sought. The 0.1203 figure is "Green's coefficient," and was used by Green to correlate changes in numbers of fishing trips taken by non-residents already in Florida with changes in multi-species catch (in pounds) per trip, not with changes in the total number of pounds of a particular species available to be caught. As far as the evidence showed, moreover, the weight of fish in Green's study was a good proxy for numbers of fish. In the present case, the increase in weight would occur despite a reduction in the number of fish caught and kept. Despite all the problems, however, Green's coefficient is a much more satisfactory measure of elasticity than any other offered at hearing. The economic impact statement summed up the situation fairly by saying with respect to recreational fishing, "little is known of the effects of being able to harvest less of one species of fish, especially in saltwater where a multitude of species are available as substitutes." Petitioner's Exhibit No. 5, p. 3. The converse is also true, although fishermen "tend to go to the spot where... [they] think... [they] can catch the most fish." But the proposed rules would decrease, not increase, the numbers of redfish that recreational fishermen could take. (T.V. 148) Studies in evidence show that increased availability of fish attract fishermen to the site of the increase. Even if it is assumed that bigger fish attract fishermen just as greater numbers of fish do, it does not follow that the total number of fishing trips occurring everywhere increases, rather than that fishing has fallen off at alternate sites within the fisherman's geographical range. (T.V. 147-148) For many tourists the geographical range will be determined by factors unrelated to fishing. Tourists, including tourists who eventually go fishing in salt water here, come to Florida for many different reasons. Perhaps the children want to go to Disneyworld. Whether a fishing trip is among their recreational pursuits once they arrive depends on how attractive a fishing trip seems in relation to other recreational possibilities. This depends, in turn, on a host of other factors, including, for example, relative cost. The cost of a fishing trip is five times more important than the availability of fish, as a variable determining whether the fishing trip will be taken. Even anglers choosing a Florida vacation in order to go fishing will not necessarily take the availability of redfish into account. Enforcement Considerations Size restrictions are more easily enforced against commercial fishermen than against recreational fishermen, because almost the entire commercial catch moves through licensed, frequently inspected fish houses, while the low numbers of marine patrol officers make enforcement of such regulations against recreational fishermen a haphazard affair. The so-called night fishery for redfish during summer months occurs at first light. Even if fish are taken while it is dark, they must, with few exceptions, move through easily monitored channels if they are to be distributed commercially. Closed seasons create the possibility of erosion when they begin, by fishermen jumping the gun, and when they end, by fishermen persisting unlawfully. Redfish can be frozen, which makes it difficult to determine just when they were caught. Under the proposed rule, however, frozen redfish can be imported, so the possibility of passing off native red fish as imports would exist, just as, in a mixed fishery with a closed season, the possibility of passing off redfish taken out of season as having been taken lawfully would exist. There is also the possibility, if bag limits apply to recreational, but not to commercial, fishermen that recreational fishermen will buy salt water products licenses to escape the bag limits. Such a strategy would appeal to recreational anglers who successfully fish for redfish now. Data from other, similar fisheries suggest that successful anglers' catch goes up proportionally much less than marginal or unsuccessful fishermen's catch in response to increased abundance. Recreational vs. Commercial Economic analyses of intergroup reallocations assume that the marginal utility of income is the same in each group. Since this is unlikely to be the case, such analyses are of limited importance. The accepted way to compare economic benefits attributable to commercially caught redfish and those attributable to redfish caught recreationally is to sum the producer's surplus and the consumer's surplus for the commercial catch and to do the same calculation for the recreational catch, and then compare the two. But there was virtual unanimity that adequate data do not exist to make these calculations. This makes the expenditures approach to valuation of red fish taken recreationally one of the few possibilities for quantifying their economic importance. But in a very real way, this approach is all wrong. Attributing fishermen's food and lodging costs to redfish they catch is analogous to allocating to each redfish sold in a restaurant the entire price of the meal, the babysitter's wages, and costs incurred for transportation to the restaurant. An increase in the price of gasoline results in an increase in the value assigned to redfish taken by recreational fishermen, although higher gasoline prices actually make fishing trips and the fish they might yield less attractive. Dr. Austin offered the most interesting approach, an approach which it is instructive to apply to the numbers Mr. Davis supplied on the last day of hearing. Dr. Austin's technique requires identifying the increase in recreational catch attributable to closing the commercial fishery. A close approximation is possible. The proposed rules would close down the commercial fishery by two overlapping devices: the bag limit and the ban on sale. Mr. Davis supplied the GXPOPS predictions of equilibrium effects for the "18 inch option," which differs from the proposed rules in that it has no bag limits does not forbid the sale of native redfish, and has no closed season. According to Mr. Davis, respondent's executive director, recreational fishermen would take 3,950,000 pounds and commercial fishermen would take 1,112,000 pounds of redfish at equilibrium, with the 18 inch option, assuming the fishery did not collapse. At equilibrium under the proposed rules, again assuming the fishery did not collapse, the total annual catch (which would all be recreational) is predicted to amount to 5,650,000 pounds. At equilibrium, the recreational catch with the proposed rules in place would exceed the recreational catch under the 18 inch option by 1,700,000 pounds 1/ (5,650,000 minus 3,950,000 equals 1,700,000). There would be no commercial catch under the proposed rules, but the 18 inch option would result in annual commercial catches of 1,112,000 pounds, at equilibrium. With the methodology developed at page four of the economic impact statement, Petitioners' Exhibit No. 5, it is possible to predict a 5.2 percent increase in recreational trips, or an increase of 14,641 fishing trips annually attributable to choosing the proposed rule over the 18 inch option. (283,078)(.1203)(1,700,000 divided by 3,950,000). If the proposed rules are adopted, the commercial sector's loss, at equilibrium, of 1,112,000 pounds a year may be said to have made possible the increase in recreational trips. Dividing the number of pounds lost by the number of trips gained yields the number of pounds of catch commercial fishermen would have to forego, in order to induce each additional recreational trip. Dividing 1,112,000 by 14,641 yields 76 pounds of commercial catch foregone for each recreational trip induced. The economic impact statement values each recreational trip at $53, citing Bell's study. Petitioner's Exhibit No. 5, p. 7. This compares with the retail price of 76 pounds of redfish - at $2.70 per pound - of $205.20. Another way to view the economic consequences of reallocation from the commercial to the recreational sector is to compare the relative costs of production, and efficiencies of distribution. Commercial fishermen produce redfish at an approximate cost of $.50 per pound, then introduce them into marketing channels, where they become available to all segments of the population. In contrast, SFI's economist acknowledged that it costs recreational fishermen somewhere between $19.94 and $31.37 per pound to harvest redfish, which is then available only to the sportsman and his circle of acquaintance. In short, the evidence did not establish an economic justification for closing down the commercial fishery and reallocating most of the fish that would have been taken commercially to the recreational sector. Neither the economic impact statement nor its author, who testified at hearing, claimed a net economic benefit would flow from a reallocation of redfish from the commercial to the recreational fishery. The issue of reallocation is, at bottom, a political question. Let Them Eat Mullet Although some people, like Mr. Shapley, may not be particularly interested in eating redfish, redfish is believed by many to be desirable as food. This includes people who do not own boats or go fishing. If native redfish becomes unavailable to Florida consumers, who would otherwise have eaten it, they will have to substitute frozen, imported redfish, or another species of fish or some other source of protein.

Florida Laws (2) 120.54120.68
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THOMAS C. STILLER vs DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, 96-004366 (1996)
Division of Administrative Hearings, Florida Filed:Jacksonville Beach, Florida Sep. 16, 1996 Number: 96-004366 Latest Update: May 06, 1997

The Issue The issue for determination is whether Respondent should provide additional compensation to Petitioner for nets turned in by Petitioner pursuant to the State of Florida’s Net Buy-Back Program, a program operated by Respondent in accordance with Section 370.0805, Florida Statutes.

Findings Of Fact Petitioner is a commercial fisher who was affected by Florida’s net ban, a matter of amendment of the Florida Constitution, Article X., Section 16. Florida’s Net Buy-Back Program is established by Section 370.0805, Florida Statutes. The program enables eligible persons previously engaged in the commercial fishing industry to sell fishing nets to the State of Florida. On July 5, 1995, Petitioner signed and filed with Respondent a Net Buy-Back Application, in which he indicated that he intended to sell 6,000 yards of 50 mesh gill net and 6,000 yards of beach, purse or seine net. Under provisions of Section 370.0805(5), Florida Statutes, fishers are reimbursed for deepwater gill nets of at least 600 yards at a rate of $1,000 per net. Reimbursement to fishers for seine, beach or purse nets is made at a rate of $3,500 per net. Petitioner did not communicate any intention to Respondent to sell nets other than the types and amounts contained on his application, basically 50 percent gill nets and 50 percent seine nets. Respondent’s personnel reviewed data contained in the data base of the Department of Environmental Protection (DEP) to assist in the determination of Petitioner’s net reimbursement eligibility. Following that review, it was determined by Respondent that Petitioner was eligible to sell 24 nets. Petitioner did not contest the number of nets he was entitled to sell. On or about October 1, 1996, Petitioner was advised by letter from Respondent’s personnel that he was eligible to turn in a total of 24 nets, up to ten of which could be seine nets. Specifically, the letter stated: Based upon the application you signed and submitted and review of the trip tickets issued under your Saltwater Products License, you may turn in a total of 14,400 yards of net, up to 6,000 yards of which may be seine net. The remaining 8,400 yards must be any other type of net other than seine net. You will not be paid for any seine nets in excess of 6,000 yards. Respondent’s determination was based upon a review of the data base obtained from DEP which included trip tickets attributable to Petitioner for the years 1992, 1993, and 1994. As defined in Section 370.0805(4)(c), Florida Statutes, “trip ticket” means Marine Fisheries Trip Tickets, FDEP Form #33-610, submitted to DEP for editing, compilation and entry into the Marine Fisheries Information System. Trip tickets in the information system examined by Respondent’s personnel revealed that Petitioner utilized seine nets in approximately 60 percent of the total trips recorded during the years 1992, 1993, and 1994. Testimony presented by Petitioner at the final hearing that seine net utilization by him was closer to 95 percent is not credited in the presence of the statutorily authorized data provided by Respondent’s personnel at the final hearing which establishes the 60 percent figure. Communication between Petitioner and Respondent’s personnel just prior to the date when Petitioner was scheduled to turn in his nets resulted in a correction which permitted Petitioner to turn in 14 seine nets (8,400 yards) and 10 gill nets (6,000) yards. Thereafter Petitioner received and endorsed a State of Florida Warrant in the amount of $58,893.20

Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying the relief requested by Petitioner.DONE AND ENTERED this 17th day of March, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1997. COPIES FURNISHED: Edward A. Dion, Esquire Department of Labor and Employment Security The Hartman Building, Suite 307 2021 Capital Circle SE Tallahassee, FL 32399-2189 Albert S. C. Millar, Esquire 4627 Ocean Drive Mayport, FL 32233 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle SE Tallahassee, FL 32399-2152

Florida Laws (2) 120.57893.20
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GRACE L. WALDRON vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 87-001727 (1987)
Division of Administrative Hearings, Florida Number: 87-001727 Latest Update: Aug. 19, 1987

Findings Of Fact Grace L. Waldron owns the property in Osceola County where the proposed project is located. Carl Wagner leases a portion of the property and operates a fish camp/bait and tackle shop on the property. On August 22, 1986, the Petitioners submitted an application, designated DER File No. 49-124177-4, to dredge an access canal which would connect an existing elongated borrow pit with Lake Cypress, and to construct two commercial piers, 300 feet long by 4 feet wide, with sixty finger piers, 12 feet long by 2 feet wide. The borrow pit, also called the "existing canal" is approximately 50 feet wide by 800 feet long. The dredging would create a dead end finger canal approximately 1160 feet in length. Approximately 5,800 cubic yards of muck, hard pan and clay would be dredged to create the canal and channel into the waters of the lake.. Lake Cypress is located in the Kissimmee "chain of lakes" a series of lakes connected by man-made canals or by the Kissimmee River. The system is a popular fishing and recreational area. It also has been adversely affected by intense development and volumes of effluent flowing into the lakes. Cypress Lake has very poor water quality. Chlorophyll a consistently runs around 90-160 milligrams per liter (mg/1). DER has a policy of allowing no wasteload allocation if chlorophyll a is greater than 60 mg/1. Biochemical Oxygen Demand (BOD) is also extremely high. A BOD level of 2-3 mg/1 is deemed acceptable. Samples taken by Petitioner's consultants in December 1986, reflected a BOD level of 9.8 mg/l in the lake and 27 mg/1 in the borrow pit. Some violations, though not as serious, were found in the Dissolved Oxygen (DO) standard of 5 mg/1. The creation of a finger canal will create a more serious water quality problem than currently exists. This is evidenced by experiences with such canals throughout the state. Dead-end canals prohibit effective exchange of water and after a period of build-up within the basin, a winter storm event or unusually heavy summer thunder-shower will create a sloshing effect, the toxic plug will be released and the polluted water will flush into the lake, creating a potential fish kill. After a period of buildup, boaters are reluctant to use dead-end finger canals as it is impossible to keep the boats clean. The proposed channel dredging would eliminate approximately 0.25 acres of densely vegetated littoral zone habitat. Such zones provide spawning, nursery and feeding habitat for a wide variety of fish species. Lesser concerns, but nonetheless negative impacts from the project, are a short term increase in turbidity from the dredging of the channel, and the effect on endangered or threatened species of birds found on or near the site. The U.S. Department of the Interior, Fish and Wildlife Service and the U.S. Environmental Protection Agency have commented negatively on the proposed project. These agencies have cited the same concerns with water quality, effect on the littoral zone and effect on wildlife described above, and explained in depth in the testimony of DER's expert witnesses. The Florida Game and Fresh Water Fish Commission, also commenting on the project, has a policy of encouraging development and use of public access facilities and discouraging all private channel construction. On Lake Cypress there exists a public boat ramp and launching facility approximately 300 feet to the north of the proposed project. Other access to the lake is provided through facilities on other lakes in the chain, although these facilities are a considerable driving distance from the proposed site. The public boat ramp on Lake Cypress does not have lights nor restrooms. Parking is limited and Waldron provides parking for boaters at his commercial establishment for $7.00 a year. Carl Wagner presented six pages of signatures obtained from his posting a "Petition" in support of the project at his bait and tackle shop. The Petition cites deficiencies in the existing public facility. Carl Wagner has lived and worked on the Kissimmee chain of lakes for 37 years. He worked for the South Central Florida Flood Control District maintaining pumps and locks for eleven years, and has fished and served as a fishing guide for the remainder. He has an intimate familiarity with the wildlife, fish species, drift and flow of the lakes and weather patterns in the area. His knowledge is valid, though not so technical as that of the various agency experts. His position is that he is just trying to make a living, that if the public ramp and facilities were adequate, he could make a living with a tackle shop, but the public access is not adequate. He concedes that the water quality is bad, but argues that the impact of his project would be so minimal as to be a mere "drop in the bucket". While the applicant has not suggested alternatives, the Department has suggested that a boardwalk could be constructed with a dock extending into the lake, with finger piers. This would avoid the need to dredge a canal and channel, but the environmental impact of the pilings and any navigational hazards have not been fully studied. The applicant has not Suggested mitigation measures to improve water quality, nor is it likely that such measures would be effective.

Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered denying permit application number 49-1241774. DONE and RECOMMENDED this 19th day of August, 1987 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1987. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Grace L. Waldron Post Office Box 1341 St. Cloud, Florida 32769 Carl W. Wagner Post Office Box 975 KenanSville, Florida 32739 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Florida Laws (2) 120.57267.061
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GASPARILLA ISLAND CONSERVATION AND IMPROVEMENT ASSOCIATION, INC. vs. SUNSET REALTY CORPORATION AND DEPARTMENT OF ENVIRONMENTAL REGULATION, 80-001544 (1980)
Division of Administrative Hearings, Florida Number: 80-001544 Latest Update: Apr. 13, 1981

Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the Hearing Officer's view of the project site, the following relevant facts re found: Respondent Sunset Realty Corporation initially applied to the Department of Environmental Regulation on March 2, 1979, for a permit to place 54,600 cubic yards of fill adjacent to Three Sisters Island and waterward of the mean high water line in Charlotte Harbor in order to construct a causeway and a sixty-foot bridge from Boca Grande Isles to Three Sisters Island. The applicant Sunset was notified on May 3, 1979, that adverse comments on the project had been received due to its impact upon biological resources. DER suggested that the application be modified by bridging the entire submerged area to alleviate biological and hydrographic concerns. On June 21, 1979, the respondent Sunset filed a revised application which reduced the volume of fill from 54,600 cubic yards to 25,000 cubic yards and extended the bridge from sixty feet to ninety feet long. The Department of Environmental Regulation forwarded to Lee County a summary of the Department's biological and hydrographic report. Additional information was not requested by the County. On October 31, 1979, the Lee County Commission considered the information made available to them from the Department and passed a resolution giving their approval to the first revision of the project by respondent Sunset. Finding that the applicant had not provided reasonable assurance that immediate and long-term impacts of the project would not result in violation of state water quality standards for Class II waters, the Department of Environmental Regulation issued its Intent to Deny Sunset's permit application on March 24, 1980. After a biological and hydrographic study of the project area, Sunset filed a second revision to its project on June 30, 1980. This revised application requested a permit for 10,000 cubic yards of fill and a 120-foot long bridge. In addition, this revision contained plans to install groins at the south end of Three Sisters Island and on Boca Grande Isles, to place riprap along the face of the fill, to remove and relocate existing oyster bars, to maintain turbidity barriers around the project during construction, and to direct stormwater run-off from the concrete bridge to an upland retention area on Three Sisters Island. It was also stipulated by respondent Sunset at the hearing that it would agree, as a condition of the permit, to replant mangrove vegetation along the shoreline of Three Sisters Island. On July 18, 1980, the Department of Environmental Regulation issued a Letter of Intent to Issue the applicant a permit for the revised project. The Department of Environmental Regulation did not seek reapproval of the revised project from the Lee County Commission because the scope and impact of the revised project were substantially reduced. It is not the policy of DER to request a new local approval for reduced projects. All property within the project boundary including submerged lands to be filled is held in fee simple by respondent Sunset. The waters affected by the proposed project are Class II waters, but are unclassified by the Department of Natural Resources as to shellfish harvesting. The nearest Class II waters which thus far have been approved for commercial shellfish harvesting are located approximately one and a half miles north of the project site. The proposed project would involve the destruction and elimination of approximately one acre of productive marine bottoms. The area has an abundance of grass beds and organisms that constitute a viable marine nursery and habitat. The area is not considered a spawning ground for any significant commercial or sport fish species. While the project will eliminate one acre of shallow water and productive bottom resources, the project should have no permanent effect upon the quality of the remaining surrounding waters. Three different species of mangroves vegetate the shoreline and the project would entail the removal of approximately 2/10 acre of mangroves. As indicated above, the applicant has agreed to insert a condition in the permit to revegetate mangroves around the site. The project will also entail the removal of one or two oyster bars. Live oysters can be removed and relocated by the use of floating cages. Relocation of the oysters to the riprapping and bridge pilings should increase their productivity. While the proposed fill will eliminate a wading bird habitat, birds will not otherwise be affected except during the construction of the project. The area around Three Sisters Island is an excellent fishing ground for line and net fishing for trout, red fish, mullet and sheepshead. Concern was expressed by commercial fishermen at the hearing that the bridge would obstruct net fishing, that the construction of the bridge would drive the fish away temporarily and that the fish, being creatures of habit, would not come back. The 120-foot bridge itself would have a minor effect of approximately 2% upon the restriction of flow in the area. A flow resistance is presently caused by the channel itself, a sharp bend in the channel that occurs at a constriction or spit, and the spit itself. The spit severely restricts flow and the channel needs to be enlarged. The remedial measure proposed is to place groins on the spit and on Boca Grande Isles across the spit. This will gradually enlarge the opening and reduce constriction. The placement of groins could provide a 40% increase in flow through the channel, and the increased circulation will improve the overall system. The two groins proposed are 40 feet and 80 feet in length. The groins will intercept the transport of sand and the pass will thereby be enlarged. The groins will be visible to boaters in shallow water and will not be a significant hazard to navigation. Three Sisters Island is a fifteen acre island to be utilized by Sunset Realty Corp. for residential development. Employees of DER who testified at the hearing were not aware of DER ever permitting filling in Class II waters for the purpose of aiding a private development or use. Other regulatory agencies providing comments on the proposed project after its first revision recommended that all fill be deleted from the project plans and that the bridge be constructed so as to span the entire submerged lands and shoreline wetlands. These agencies included the United States Department of the Interior, the Department of the Army, the Florida Game and Fresh Water Fish Commission, the United States Department of Commerce and the United States Environmental Protection Agency. With the exception of Durbin Tabb and Richard Lotspeich, both of whom felt that the destruction of one acre of bottom resources would not be significant to the total system, all other experts in marine biology who testified at the hearing felt that spanning the entire area with a bridge and eliminating the fill would provide a viable alternative to the permanent elimination of wetlands and shorelands. The petitioner Gasparilla Island Conservation and Improvement Association, Inc. is a non-profit, tax exempt corporation which was incorporated in 1971. The qualification for membership is the ownership of real property on Gasparilla Island. Approximately 700 property owners on Gasparilla Island are eligible to be members of GICIA. The actual membership is approximately 446. Twenty-two members own property on Boca Grande Isles, the subdivision closest to Three Sisters Island. Among the purposes of the GICIA are the promotion of Land, water and wildlife conservation uses and purposes in the Gasparilla Island area in Lee County and Charlotte County, Florida, including the preservation of ecology of the area, the protection of fish and shellfish breeding areas, the preservation of wildlife, and the promotion of anti-pollution measures. Members of the association use the proposed project area for recreational boating, commercial fishing, shellfish gathering, swimming, fishing and enjoyment of the natural flora, fauna and wildlife. Association members will be adversely affected by the destruction of grasslands, mangroves and oyster beds. The Organized Fishermen of Florida, Inc. (O.F.F.) is a non-profit corporation with chapters throughout the State of Florida. Its purposes include the protection of the fishing industry of Florida and the promotion and sponsorship of conservation. Some members of O.F.F. regularly fish in the Three Sisters Island area that would be impacted by the proposed project. No evidence was presented at the hearing that the State Board of Directors of O.F.F. officially sanctioned witnesses to appear on behalf of the incorporated Organized Fishermen of Florida. No evidence was presented at the hearing as to the standing or substantial interest of the Florida Division of the Izaak Walton League or Eugene C. Enlow, both listed as Petitioners in the "Amendment of Petition for Formal Hearing." Petitioner Freemen Boynton is the owner of a residence located on Lot No. 98 on Boca Grande Isles. The proposed access bridge and groins are to be constructed on Lots No. 99 and 100 which are contiguous to Mr. Boynton's lot. The groin on Lot No. 99 could cause sand and other debris to accumulate upon Mr. Boynton's riparian property. Petitioner Boynton uses his home on Boca Grande Isles about two and one-half months per year and fishes along the shore, collects oysters, conch and shells and engages in bird watching. He is a member of the Gasparilla Island Conservation and Improvement Association, Inc., and he feels that the proposed project would remove some of the recreational aspects of his property and Three Sisters Island. Petitioner Ralph Cole is 71 years old and has been a commercial fisherman in the Charlotte Harbor area since the age of 12. He fishes the Three Sisters Island area every week. He feels that the area is an excellent fishing ground and that the proposed bridge would be in the way of striking a net.

Recommendation Based upon the findings and fact and conclusions of law recited herein, it is RECOMMENDED that the application of Sunset Realty Corporation for a permit be DENIED insofar as it includes the deposition of 10,000 cubic yards of fill in Class II waters. Respectfully submitted and entered this 24th day of February, 1981, in Tallahassee, Florida. DIANE D. TREMOR 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 24th day of February, 1981. COPIES FURNISHED: Joseph W. Landers, Jr. Ausley, McMullen, McGehee, Carothers and Proctor Post Office Box 391 Tallahassee, Florida 32302 Charles G. Batsel Wotitzky, Wotitzky, Johnson, Mandell and Batsel 201 W. Marion Drive Punta Gorda, Florida 33950 Robert M. Rhodes and Terry E. Lewis Messer, Rhodes, Vickers and Hart Post Office Box 1976 Tallahassee, Florida 32302 Lester E. Durst Farr, Farr, Haymans, Moseley and Emrick Post Office Box 635 Punta Gorda, Florida 33950 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 H. Ray Allen Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301

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CONCERNED SHRIMPERS OF AMERICA vs MARINE FISHERIES COMMISSION, 89-004220RP (1989)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Jul. 28, 1989 Number: 89-004220RP Latest Update: Dec. 21, 1989

Findings Of Fact Background On July 7, 1989, respondent, Florida Marine Fisheries Commission (Commission), duly noticed proposed rule 46-31.002 in volume 15, number 27, of the Florida Administrative Weekly. The notice also advised all interested persons that a public hearing would be held on August 3, 1989, before the Commission on the proposed rule. On August 3-4, 1989, the Commission held a public hearing at which time it considered the proposed rule. During the course of this hearing, the Commission approved the proposed rule with certain changes. These changes, as well as the complete rule text, were duly noticed in volume 15, number 35, of the Florida Administrative Weekly on September 1, 1989. Petitioner, Concerned Shrimpers of America, Inc., Florida Chapter, by petition filed with the Division of Administrative Hearings on July 28, 1989, timely challenged the proposed rule pursuant to Section 120.54, Florida Statutes, as an invalid exercise of delegated legislative authority. Petitioner and Intervenors Petitioner has, pursuant to stipulation of the parties, standing to contest the validity of the proposed rule. Intervenor, Center for Marine Conservation, Inc., is, pursuant to stipulation of the parties: ... a non profit environmental protection and education organization incorporated under the laws of the District of Columbia and authorized to do business in Florida. It has in excess of 7,000 members throughout the state. Its major purpose is the protection of marine wildlife for this and future generations, including sea turtles, for the benefit of the species, the corporation and its members... Members of the organization observe, study and photograph sea turtles for educational and recreational purposes and their demise or decline from the failure to require the use of TED's will severely hamper and diminish these activities to their detriment. The organization and its members are further concerned with the total marine ecosystem that could be severely damaged should top order predators such as the sea turtle become extinct or their populations be severely diminished.... Intervenor, Florida Audubon Society, is, pursuant to stipulation of the parties: ... a non profit Florida corporation with over 35,000 members within the state whose main purpose is to protect Florida's natural outdoor environment and wildlife, including the marine environment and sea turtles, for the benefit of the organization and its members. The members of the organization observe, study and photograph sea turtles for educational and recreational purposes and their demise or decline from the failure to require the use of TED's will severely hamper and diminish these activities to their detriment. The organization and its members are further concerned with the total marine ecosystem that could be severely damaged should top order predators such as the sea turtle become extinct or their populations be severely diminished.... Intervenor, Greenpeace-U.S.A., is, pursuant to stipulation of the parties: ...headquartered in Washington, D.C., [and] is the United States office of Greenpeace, an international environmental organization with offices in over twenty countries and approximately two and one-half million supporters worldwide. Greenpeace- U.S.A has more than one million supporters in this country, including over 60,000 who live in the State of Florida. Greenpeace- U.S.A. has two offices in Florida, located in Ft. Lauderdale and Jacksonville Beach.... On behalf of its members and threatened and endangered species, Greenpeace-U.S.A. places special emphasis on the preservation of marine species and the marine environment and has worked extensively for the protection of threatened and endangered marine animals. The sea turtle campaign is one of the principal campaigns of the organization.... For the past five years, Greenpeace-U.S.A. has operated the Beach Patrol Project. The Project seeks to maintain protected nesting areas for threatened and endangered sea turtles in the coastal areas of the southern United States. Based in the Jacksonville Beach office, the Project places approximately 250 Greenpeace-U.S.A. volunteers on Florida beaches every year. The Beach Patrol Project has also contributed to the conservation effort in its documentation and identification of species of sea turtles which have been stranded and washed ashore.... Intervenor, Florida League of Anglers, Inc., is a party of unknown capacity, origin, or interest. No evidence was presented on its behalf to demonstrate that its substantial interests would be affected by the proposed rule. The proposed rule The proposed rule at issue in this case prohibits the use of any trawl (net) in state waters that does not have a qualified turtle excluder device (TED) installed therein, as well as the possession aboard any vessel in state waters of a trawl rigged for fishing that does not have a qualified TED installed in it. Excepted from the rule, under specified conditions, are test nets, roller frame trawls, trawls used for experimentation purposes authorized by the National Marine Fisheries Service (NMFS), and trawls operated on the inside waters of the state. The purpose of the proposed rule is to protect sea turtles from extinction, primarily the endangered Kemp's ridley turtle, by reducing the incidental catch and mortality of sea turtles in shrimp trawls. 1/ Currently, five species of sea turtles occur in state waters. These species are the Atlantic green turtle (Chelonia mydas mydas); Atlantic hawksbill turtle (Erelmochelys imbricata imbricata); Atlanta ridley turtle (Lepidochelys kempi), also known as the Kemp's ridley; Leatherback turtle (Dermochelys coriacea); and Loggerhead sea turtle (Caretta caretta). Persuasive proof demonstrates that the incidental catch and drowning of sea turtles by shrimp trawls is a significant source of mortality for the species, and that absent the elimination of that mortality factor the green turtle, hawksbill turtle, Kemp's ridley turtle, leatherback turtle, and loggerhead turtle are threatened with extinction. 2/ Use of the TEDs mandated by the proposed rule will substantially reduce the incidental capture of sea turtles by shrimp trawls, and thereby eliminate shrimp trawls as a significant source of mortality for the species. Currently, the proposed rule permits the use of any one of six TEDs approved by the NMFS, which have demonstrated a turtle exclusion rate of at least 97 percent. The rule also permits the use of any TED that may subsequently be approved by the NMFS as demonstrating a turtle exclusion rate of at least 97 percent. 3/ The rule challenge In challenging the proposed rule, petitioner does not question the need for the rule to protect the sea turtles from extinction, nor the effectiveness of the TED to eliminate a significant threat to the survival of the species. Rather, petitioner contends that: (1) the Commission exceeded its grant of rulemaking authority, which will be discussed in the conclusions of law, infra; (2) that the Commission materially failed to follow the applicable rulemaking procedures set forth in section 120.54 by failing to notify the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office, and the Division of Economic Development of the Department of Commerce at least 21 days prior to the public hearing on the proposed rule, as well as by failing to prepare an adequate economic impact statement; and, (3) that the proposed rule contravenes the specific provisions of law implemented because the Commission failed to consider the "best information available" concerning the sociological implications of the proposed rule on shrimp fisherman, and because the proposed rule is inconsistent with the federal regulations regarding the mandatory use of TEDs. Notice regrading the impact of the proposed rule on small business Section 120.54(3)(b), Florida Statutes, mandates that where, as here, the proposed rule will affect small business, that "the agency shall send written notice of such rule to the Small and Minority Business Advocate, the Minority Business Enterprise Assistance Office, and the Division of Economic Development of the Department of Commerce not less than 21 days prior to the intended action." Here, the proof demonstrates that the Commission held its public hearing on the proposed rule, and approved it, on August 3-4, 1989, but that it did not provide written notice to the previously mentioned agencies until July 21, 1989, a date less than 21 days before the public hearing. While the Commission failed to accord the named agencies with the minimum 21-day notice mandated by section 120.54(3)(b), the proof fails to demonstrate that such failure constituted a material failure to follow the applicable rule making procedures. Here, the agencies never objected to the inadequacy of the notice; the agencies have never requested an opportunity to present evidence and argument or to offer alternatives regarding the impact of the proposed rule on small business; and there was no showing that the Commission's failure to accord the agencies the full 21-day notice impaired their ability to, or influenced their decision not to, participate in the rule making process. In sum, petitioner failed to demonstrate that the Commission's failure to accord 21 days notice to the named agencies resulted in any incorrectness or unfairness in the proposed adoption of the rule. The economic impact statement Pursuant to the provisions of Section 120.54(2)(b), Florida Statutes, the Commission prepared an economic impact statement for the proposed rule. The economic impact statement was prepared by Robert Palmer, the Commission's economic analyst, an expert in economics. Petitioner challenges the adequacy of the economic impact statement (EIS) prepared for the proposed rule by contesting its accuracy in some respects, its failure in other respects to address the costs to the agency for implementation of the proposed rule, and its failure to address the cost and economic benefit to persons directly affected by the proposed rule. Here, while it is arguable that the Commission's EIS could have been more thorough in some respects, the proof fails to demonstrate any material error that impaired the fairness of the rule making proceeding or the correctness of the Commission's decision to approve the proposed rule. Rather, the proof demonstrates that where errors or omissions occurred in the EIS that the Commission was supplied with the correct information at the public hearing, their impact was of de minimis import, or the costs and benefits were speculative or incapable of estimation. Compliance with statutory standards Pertinent to this case, Section 370.027(1), Florida Statutes, contemplates that the Commission will, in exercising its rule making authority, apply the policy and standards set forth in Section 370.025, Florida Statutes. In this regard, section 370.025 provides: The Legislature hereby declares the policy of the state to be management and preservation of its renewable marine fishery resources, based upon the best available information, emphasizing protection and enhancement of the marine and estuarine environment in such a manner as to provide for optimum sustained benefits and use to all the people of this state for present and future generations. All rules relating to saltwater fisheries adopted by the department pursuant to this chapter or adopted by the Marine Fisheries Commission and approved by the Governor and Cabinet as head of the department shall be consistent with the following standards: The paramount concern of conservation and management measures shall be the continuing health and abundance of the marine fisheries resources of this state. Conservation and management measures shall be based upon the best information available, including biological, sociological, economic, and other information deemed relevant by the commission. Conservation and management measures shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis. When possible and practicable, stocks of fish shall be managed as a biological unit. Conservation and management measures shall assure proper quality control of marine resources that enter commerce. State marine fishery management plans shall be developed to implement management of important marine fishery resources. Conservation and management decisions shall be fair and equitable to all the people of this state and carried out in such a manner that no individual, corporation, or entity acquires an excessive share of such privileges. Federal fishery management plans and fishery management plans of other states or interstate commissions should be considered when developing state marine fishery management plans. Inconsistencies should be avoided unless it is determined that it is in the best interest of the fisheries or residents of this state to be inconsistent. (Emphasis added). Petitioner's final challenge to the validity of the proposed rule is its contention that the Commission's action in approving the proposed rule contravenes the provisions of section 370.025 because the Commission failed to consider the "best information available" concerning the sociological implications of the proposed rule on shrimp fishermen, and because the proposed rule is inconsistent with the federal regulations regarding the mandatory use of TEDs. Petitioner's contentions are not persuasive. First, with regard to petitioner's contention that the proposed rule contravenes section 370.025(2)(h) because it is inconsistent with the federal regulation regarding the mandatory use of TEDs, the proof demonstrates that, due to the presence of sea turtles in state waters all year round, mandating the use of TEDs at only particular times of the year along certain areas of the coast, as the federal regulations do, would not achieve the Commission's preservation goal, and therefore would not be in the best interest of the sea turtles or residents of the state. Therefore, the Commission's action was not inconsistent with section 370.025(2)(h) Second, with regard to petitioner's contention that the proposed rule contravenes section 370.025(2)(b) because it failed to consider the best sociological information available, section 370.025(2)(a) is informative since it mandates that any rule of the Commission be consistent, before all else, with the following standard: The paramount concern of conservation and management measures shall be the continuing health and abundance of the marine fisheries resources of this state. Faced with persuasive proof that the incidental catch and drowning of sea turtles by shrimp trawls was a significant source of mortality for the species, and that absent the elimination of that mortality factor the species inhabiting state waters were threatened with extinction, the Commission reasonably concluded that it had two options to protect the sea turtles: to prohibit shrimp trawling in state waters or mandate the use of TEDs and permit shrimp trawling to continue. 4/ Such being the options, very little, if any, sociological information was necessary to support the Commission's conclusions that the mandatory use of TEDs, as opposed to a prohibition on shrimp trawling in state waters, would be the least disruptive management measure to the sociological structure of the shrimp fishing community. While almost irrelevant to the instant case, the proof does, however, demonstrate that the Commission had before it the pertinent sociological information it needed to appreciate the impact of the proposed rule on the shrimp fishery community. Such information included an appreciation of the fact that the shrimping community constitutes a societal segment, or self-contained entity, that is in large measure divorced from society in general; that unique familial relationships exist within the shrimp fishing community; that the mandatory use of TEDs had led to a feeling of uncertainty among shrimp fishermen concerning the continued survival of the industry; and that should shrimp fishermen experience significant losses as a consequence of the mandated use of TEDs that they may be forced from the shrimp fishing business, and their community and family relationships disrupted. Under the circumstances of this case, the Commission's action was consistent with section 370.025(2) (b).

Florida Laws (3) 120.52120.54120.68
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