Findings Of Fact Respondent, Norman Padgett, holds a haul seine permit, issued by the Commission, which authorizes Respondent to operate a haul seine net on Lake Okeechobee. The permit is renewable annually and is one of ten such permits issued by the Commission. The Lake Okeechobee Haul Seine Permits authorize their holders to fish by haul seine and to harvest game fish in commercial quantities, activities not legal absent such a permit. To minimize conflicts between sport fishermen and commercial haul seine permittees on Lake Okeechobee, the Commission has, by rule, prohibited seining activities in certain areas. Among the areas closed by rule to haul seining is the area south of a line that connects the northernmost point of Kreamer Island to the northernmost point of Ritta Island. That line is approximately five miles long and can be readily determined since the northernmost point of either island is visible from the other island. Also closed by rule to haul seining are those areas shoreward of a line delineated by the Commission's commercial fishing boundary buoys. The boundary line is approximately one mile lakeward of emergent aquatic vegetation. The Commission, by rule, has prohibited the use of "short" haul seines as an aid to its enforcement against haul seining in closed areas. "Sport" nets are prohibited because of the ease with which they can be deployed and retrieved. During the time period pertinent to these proceedings, the Commission's rules prohibited use of haul seine nets of less than 350 yards in length. On June 18, 1984, a crew was conducting haul seining operations under the authority of Respondent's haul seine permit. The crew was operating in the closed area south of the line established by the northernmost points of Kreamer and Ritta Islands and was warned by a Commission employee that use of a haul seine in that area was prohibited. On June 19, 1984, a crew was again conducting haul seining operations under the authority of Respondent's haul seine permit in the closed area south of the line established by the northernmost points of Kreamer and Ritta Islands. The seining operations were being conducted from one-half to one mile within the closed area. On June 20, 1984, a crew was again conducting haul seining operations under the authority of Respondent's haul seine permit. On this occasion the crew was operating in a closed area shoreward of a line delineated by the Commission's commercial fishing boundary buoys. The haul seine net being used measured 277 yards in length. Respondent was not on board the fishing vessels during the foregoing events. However, consistent with the Commission's rule, the crews were in possession of his permit. At hearing Respondent offered no evidence of what, if any, efforts he took to supervise or maintain control of the haul seine crews. His testimony established, however, that he was aware the haul seine net was less than 350 yards in length. By letter dated March 28, 1985, the Commission informed Respondent of its intent to revoke his Lake Okeechobee Haul Seine Permit. Respondent timely requested a formal hearing. The case was forwarded to the Division of Administrative Hearings and assigned Case No. 85-1312. By letter dated July 23, 1985, the Commission informed Respondent of its intent to deny his application for renewal of his haul seine permit, predicated on their prior decision to revoke his permit. Respondent timely requested a formal hearing. The case was forwarded to the Division of Administrative Hearings, assigned Case No 85-2612, and consolidated with Case No. 85-1312.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as those facts stipulated to by the parties, the following relevant facts are found: Petitioner, Southeastern Fisheries Association, Inc., is a not-for- profit incorporated association of commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants and retailers, employing approximately 14,000 employees, and including 450 corporate and individual members. The executive offices of Southeastern Fisheries Association, Inc. are located at 312 East Georgia Street, Tallahassee, Florida 32301-1791. The members of Southeastern Fisheries Association, Inc., either catch, process, transport or sell Spanish mackerel and Spanish mackerel constitutes a major part of their business and livelihood. Petitioner, Organized Fishermen of Florida, Inc., is a not-for-profit incorporated association of 2,000 commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants and retailers, with its headquarters at P. O. Box 740, Melbourne, Florida 32901. Petitioner, Harry H. Bell & Sons, Inc., is a fish processor and sales company employing about 210 employees, located at 756-28th Street South, St. Petersburg, Florida 33712. A large percentage of the fish processed by Harry H. Bell & Sons, Inc., are Spanish mackerel. Petitioner, Bayside Shellfish, Inc., is a fish processor and fish seller, located at P.O. Box 176, Apalachicola, Florida 32320. This petitioner also obtains a substantial amount of its business through the processing and sale of Spanish mackerel. Petitioner, Inlet Fisheries, Inc., is a corporation with its headquarters at P. O. Box 3604, Ft. Pierce, Florida 33450, which unloads and ships fish, and, in particular, Spanish mackerel. Petitioner, J. O. Guthrie, Inc., is a fish processor located at P.O. Box 895, Ruskin, Florida 33570. This petitioner processes fish, including Spanish mackerel, which makes up a high percentage of its fish processing. Petitioner, C. & W. Fish Co., Inc., is a company which unloads and ships fresh fish, located at P.O. Box 1356, Port Salerno, Florida 33492. This petitioner earns its living from the loading and shipping of fresh fish including Spanish mackerel. Petitioner, City Fish Company, Inc., also unloads and ships fish and is located at 3880 Gulf View Avenue, Marathon, Florida 33050. Intervenor, Florida Conservation Association, located at 402 West College Avenue, Tallahassee, Florida 32301, is an affiliate of the Coastal Conservation Association, a non-profit corporation incorporated under the laws of Texas. Effective November 28, 1985, the Marine Fisheries Commission (MFC) adopted rules relating to the commercial harvesting of Spanish mackerel on the East Coast of Florida. As pertinent to this proceeding, those rules prohibited the harvesting of Spanish mackerel by power-assisted gill netting in Dade and Palm Beach Counties, and imposed a 3 and one half-inch mesh size minimum for the monofilament portion of gill nets used to take Spanish mackerel from the remainder of the East Coast of Florida until March 15, 1990. After that date, the entire net was to have a minimum mesh size of 3 and one half inch stretched mesh. These net size requirements were applicable to all gill nets used on the East Coast to harvest Spanish mackerel during the period from November 15th to March 15th. The existing rule allows the harvest of Spanish mackerel as an incidental by-catch of other lawfully targeted species, so long as the combined weight does not exceed 15 percent of the total weight of the lawfully harvested species. The challenged proposed amendments to the MFC's Spanish mackerel rules continue the Palm Beach and Dade Counties gill net closures; establish gill net minimum sizes for three different regions of Florida; closes the weekend harvesting of Spanish mackerel by use of any nets; establishes set seasons for operators of vessels greater than 40 feet in length using power- assisted gill nets, said seasons subject to being shortened if the total regional commercial catch is projected to reach a specified poundage; and imposes a limit on the number of Spanish mackerel which recreational fishermen may possess per day. More specifically, the challenged proposed rules impose the following net size requirements on the harvesting of Spanish mackerel for the three regions of Florida. For the East Coast, defined as those state waters north of the Dade-Monroe County line, the period of the 3 and one half inch mesh size for the monofilament portion of gill nets is shortened to October 1, 1988, with the required minimum size being increased to 3 5/8- inches thereafter until October 1, 1990, whereupon all portions of gill nets are to be 3 5/5 inches stretched mesh. For the Southwest Coast, defined as state waters between the Taylor-Dixie County line and the Dade-Monroe County line, the minimum monofilament portion mesh size is 3 3/8 inches until October 1, 1988, increasing to 3 5/8 thereafter until October 1, 1990, whereupon the entire net is to have a minimum mesh size of 3 5/8 inches stretched mesh. The corresponding requirement for the Northwest Coast, defined as state waters west of the Taylor-Dixie County line, is 3 inches until October 1, 1988, increasing to 3 5/8 inches thereafter. Except for the 15 percent by-catch allowance provided in the existing rule, harvesting Spanish mackerel by use of any net is prohibited in all three regions on weekends, defined as commencing at sunset on Friday and ending at sunset on the following Sunday. Identical commercial fishing seasons for the use of power-assisted gill net gear by vessels greater than 40 feet in length are set for all three regions of Florida. That season opens on December 15 of each year and closes on November 1 of the following year. For other forms of commercial harvesting of Spanish mackerel, the season is year-round, or defined as from December 15 through December 14 of the following year. However, the proposed rule, Rule 46- 23.004, provides a mechanism for shortening the seasons in each region for all forms of commercial fishing (except for the various by-catch allowances) when the total harvest for each region reaches a specified number of pounds. For the larger vessels using power-assisted gill nets, the seasons for the East Coast, Southwest Coast and Northwest Coast close prior to November 1st if the total regional commercial harvest is projected to reach, respectively, 1,670,400 pounds, 1,350,900 pounds and 354,600 pounds. For commercial fishermen using other types of gear, the year-round season will close when the total regional commercial harvest in the season reaches, before December 14, 1,856,000 pounds (East Coast), 1,501,000 pounds (Southwest Coast) and 394,000 pounds (Northwest Coast). In addition to the 15 percent by-catch allowance previously mentioned, the proposed rule also excepts from the required season closures Spanish mackerel harvested as an incidental by-catch of other lawfully targeted species so long as the total weight of mackerel does not exceed 500 pounds, as well as those harvested with a net size greater than 4 inches stretched mesh used to lawfully harvest another target species. When the specified poundages which trigger the closing of the seasons are projected to be reached, the proposed rule provides for the giving of notice by the Executive Director of the Department of Natural Resources in the manner provided in Section 120.52(15)(d), Florida Statutes. Proposed Rule 46-23.005 sets forth a bag limit for recreational fishermen which applies during all times of the year. That limit is four Spanish mackerel per person per day. Because of evidence indicating that the abundance of Spanish mackerel in Florida is declining, the MFC began considering that fishery as a subject of possible regulation in March of 1984. Stock assessments were performed and updated, federal studies and mackerel fishery management plans were considered, various workshops and meetings were held, and numerous management option papers and alternatives were considered. Many of the witnesses in the instant rule- challenge proceeding appeared before, testified or otherwise provided input to the MFC during the rule promulgation process. In considering the proposed regulations, the MFC had before it evidence that commercial and recreational landings of Spanish mackerel had substantially decreased since the 1970's and that seasonal and areal compression had occurred in this fishery. While it could not be concluded with certainty whether the resource was experiencing recruitment overfishing or growth overfishing, the MFC determined that the resource was being overfished to the extent that a reduction in effort and an increase in the size of the fish caught was necessary to protect, conserve and recover the resource. While single year or seasonal commercial and recreational landing statistics may not be entirely accurate due to under-reporting, they are reliable indicators of trends and can be utilized to indicate abundance. Likewise, declining commercial landing statistics can be indicative of a decline in the effort directed toward harvesting and/or market conditions. In approximately 1977, there were over 120 large roller rig boats in the Spanish mackerel fishery. At the present time, there are approximately 41 large roller rig vessels utilized to commercially harvest Spanish mackerel. The size of fish desired in the market has changed somewhat, with a declining demand for the smaller fish. While the price of Spanish mackerel per pound has remained relatively stable over the past ten or more years, its price in relationship to other species of fish and shellfish has declined. The above factors, as well as the voluntary use of larger mesh size nets and the recent closure of Palm Beach and Dade Counties, may provide some rationale for the decline in commercial landing statistics since the 1970's. However, given the evidence concerning a decline in recreational landings, seasonal and areal compressions, and the increased capacity of large power-assisted gill netting vessels, it was not unreasonable for the MFC to conclude that the decline in commercial landings is indicative of a decline in abundance resulting from overfishing. The conceptual goal of the proposed rules is to return the Spanish mackerel fishery to the condition in which it was in the early 1970's. In order to accomplish this goal, the MFC determined to effect an approximate 45 percent reduction in efforts devoted to harvesting and to effect an increase in the size of the fish harvested for commercial purposes. The minimum gear size proposed is directed toward the desired fish size, and the reduction in effort goal is to be accomplished through continued closures of certain areas, weekend closures, and the establishment of commercial seasons, commercial season catch limits and recreational bag limits. Gill mesh nets are highly selective for a specific size of fish. A 1/8 inch difference in gill net mesh size makes a significant amount of difference in the size of the fish caught. The large nets utilized for Spanish mackerel harvesting can cost up to $20,000.00, with the monofilament portion of the net costing between $3,000.00 and $4,000.00. Due to destruction by sharks and normal wear and tear, the life expectancy of the monofilament portion of a gill net is between 1/2 to 3 seasons. The initial minimum mesh sizes proposed in the challenged rules for the monofilament portion of gill nets are reflective of the sizes currently being utilized in the industry in each of the three regions specified in the rule. No conclusive scientific data exists on a statewide basis as to the size of fish that will be captured using a 3 5/8 inch gill net mesh size. The MFC does intend to gather more data concerning gill net mesh size selectivity, and that is one of the reasons the proposed rule delays imposition of the 3 5/8 inch requirement until October of 1988. The evidence does demonstrate that Spanish mackerel in the Northwest Coast region or Panhandle area tend to be longer and thinner with less yield per fish than those found in the East Coast or Southwest Coast areas. There is insufficient evidence to conclude, however, that the Gulf Spanish mackerel stock and the Atlantic Spanish mackerel stock constitute two separate populations. Due to the seasonal migration of the Spanish mackerel in a southerly and northerly direction along the East Coast of Florida, it is impossible to determine the precise impact on effort reduction of the closure of Palm Beach and Dade Counties. The MFC heard evidence from commercial fishermen that the impact from closing those areas could result in a reduction in catch of at least 30 percent. The MFC's calculation of a lower percentage was not unreasonable given the large capacity of the power-assisted gill net industry and the potential for harvesting Spanish mackerel while en route to or from these closed counties. The proposed season catch limits for commercial fishermen are intended to provide a backup to the other effort reduction measures in the proposed rules. It is intended that if the commercial seasons for larger power-assisted rigs, the weekend closures, the increased net sizes, and the areal closures do not significantly reduce the actual landings of Spanish mackerel in Florida, then the season for all commercial fishing can be shortened to effectuate such a result. The quota for each region constitutes a fixed cap on commercial landings per season. Consequently, if abundance does increase, there is no automatic mechanism in the proposed rule for increasing season catch limits. This, of course, will result in the unreliability of landing statistics alone as an indicator of stock abundance. Because the proposed rule contains no restrictions upon the number of recreational fishermen who may enter the fishery, no season for recreational fishing and no limit upon the number of fish caught, as opposed to possessed, by recreational fishermen, the rule could cause some reallocation of the Spanish mackerel fishery from the commercial sector to the recreational sector. In recent years, the commercial sector has maintained at least a 75 percent share of the Spanish mackerel resource. Within the commercial sector, there is no domestic substitute for Spanish mackerel.
The Issue Whether Respondent's wholesale and retail dealer's licenses should be revoked or otherwise disciplined for two convictions of Possession of Undersized Crawfish Tails, as alleged.
Findings Of Fact I. MGB Corporation, a corporation organized under the laws of Florida, owns and operates a seafood dealership known as Gulfstream Seafood at 5300 Georgia Avenue West Palm Beach, Florida. It holds Retail Seafood Dealer's License No. RC-W3246 and wholesale Seafood Dealer's License No. WD2239 issued by DNR for the 1985-86 license year. (DNR Ex. 1,2) George M. Michael is the president and chief executive officer of MGB. In connection with MGB's application for issuance or renewal of its current seafood dealer's licenses, Mr. Michael executed a required affidavit from the individual responsible for the day-to-day management of the business. By the terms of the affidavit, he pledged himself "to the faithful observance of all . . . laws . . . regulating the . . . possession of fish, seafood, and other saltwater products (DNR Ex.2) On October 21, 1985, following a plea of no contest, the County Court of Palm Beach County, Florida, adjudicated MGB d/b/a Gulfstream Seafood guilty of two counts of Possession of Undersized Crawfish Tails, a violation of Section 370.14, Florida Statutes. MGB was fined $500, in addition to a $20 surcharge and a $25 fine for contempt of court. (DNR Ex.3; Tr.21-22) II. One of these counts alleged that on March 29, 1985, MGB d/b/a Gulfstream Seafood, unlawfully possessed crawfish tails which measured less than five and a half inches lengthwise from the point of separation along the center of the entire tail until the rearmost extremity is reached, contrary to Section 370.14(2), Florida Statutes. Facts Underlying this Violation. On March 29, 1985, Officer Francis Crowley accompanied by another officer of the Florida Marine Patrol entered the premises of Gulfstream Seafood and observed undersized crawfish on pallets in the production area. They were not refrigerated and had not yet been processed. Mr. Michael, who was present, tried to divert Officer Crowley's attention while another individual attempted to wheel the crawfish out the back door. The two officers separated the legal-sized crawfish from the undersized crawfish and weighed each category. There were 254 pounds of undersized crawfish, i.e., crawfish with tails measuring less than five and a half inches lengthwise from the point of separation along the center of the entire tail to the foremost extremity. The number of undersized crawfish involved is unknown. Officer Crowley issued a citation to Mr. Micheal and donated the undersized crawfish to a children's home in Fort Pierce. III. The other count of which MGB was found guilty alleged that on May 17, 1985, MGB again unlawfully possessed 3undersized crawfish in violation of Section 370.14(2), Florida Statutes. The circumstances surrounding this violation including the weight or number of undersized crawfish involved, have not been shown. IV. MGB has 165 employees, a payroll of $127,000 a month, and processes between 10,000 and 15,000 crawfish per month. A suspension of its seafood dealers' license for a month or more would adversely impact its operations. Customers would most likely obtain seafood from other dealers and it would be difficult for MGB to recoup the lost business.
Recommendation Based on the foregoing; it is RECOMMENDED: That the charges, and administrative complaint filed against MGB; be DISMISSED. DONE and ORDERED this 12th day of August, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. 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 12th day of August, 1986.
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
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.
