The Issue As provided in the notice of hearing, the issues for disposition in this proceeding are whether agency statements within a memorandum and notice of Final Executive Order issued by the Department of Environmental Protection on July 5, 1996 are rules subject to sections 120.535 and 120.54, Florida Statutes, and if so whether the statements violate those sections. 1/ Petitioners pled only a violation of section 120.54, Florida Statutes, and contend that the remedy they seek, a determination of the invalidity of the agency statements, is available without recourse to section 120.535, Florida Statutes. At hearing, the parties, including Petitioners, availed themselves of the opportunity to elicit evidence related to section 120.535, Florida Statutes.
Findings Of Fact Petitioners are shellfishers who harvest and relay in the affected areas in Brevard County, Florida. Intervenor is a resident of Indian River County who utilizes the areas affected by the Department of Environmental Protection (agency, or DEP) statements at issue in this proceeding. The standing of these parties is uncontroverted. Respondent, DEP, is the state agency charged with the administration, supervision, development and conservation of the natural resources of the state, as provided in section 370.013, Florida Statutes. "Saltwater fish" includes shellfish, among others. Section 370.01(2), Florida Statutes. DEP is given the authority in section 370.021, Florida Statutes, to make, adopt, promulgate, amend and repeal all [rules and regulations] necessary or convenient for the carrying out of the duties, obligations, powers, and responsi- bilities conferred on the department or any of its divisions. [Emphasis added] Persons violating any of the rules and regulations adopted under the agency's authority are guilty of a misdemeanor. Section 370.021(2), Florida Statutes, describes penalties for various violations of Chapter 370 or the rules of the agency or any rule of the Marine Fisheries Commission. Section 370.021(3), Florida Statutes, provides that [[r] ules and regulations] shall be admitted as evidence in the courts of the state when accompanied by an affidavit from the secretary of the department certifying that the [rule or regulation has been law- fully adopted, promulgated, and published]; and such affidavit shall be prima facie evidence of proper adoption, promulgation and publication of the rule or regulation. [Emphasis added] Section 370.071(l), Florida Statutes, provides, in pertinent part, that DEP ... is authorized to adopt by rule regulations, specifications, and codes relating to sanitary practices for catching, handling, processing, packaging, preserving, canning, smoking, and storing of oysters, clams, mussels, and crabs. Consistent with its specific authority in sections 370.021 and 370.071, DEP has adopted Chapter 62R-7, Florida Administrative Code, "The Comprehensive Shellfish Control Code." Included in the comprehensive code is rule 62R-7.004, Florida Administrative Code, which defines various classifications of harvesting areas, adopts by reference Shellfish Harvesting Area Atlas maps, and describes circumstances for opening or temporarily closing harvesting areas in the event of red tide outbreak or other emergencies or when other criteria are met. Rule 62R-7.005, Florida Administrative Code, also adopts by reference specific maps of growing areas and harvesting areas in the Shellfish Harvesting Area Atlas published by the agency. Rule 62R-7.005, Florida Administrative Code, describes boundaries of classified areas throughout Florida, county by county, and establishes operating procedures. Rule 62R-7.005(29) (j), (k), and (l), Florida Administrative Code, establishes conditionally approved, conditionally restricted and prohibited areas of Body D waters in Brevard County, Florida. The boundaries of each are described in explicit detail; further, temporary closing to shellfishing is provided for when ... five day cumulative rainfall as measured in the immediate vicinity meets or exceeds 2.68 inches. The area will be reopened when bacteriological levels meet standards as described in Rule 62R-7.004 and fecal coliform levels in shellfish return to normal background levels so that consumption of shellfish will not be a hazard to the public health. The history note to Rule 62R-7.005, Florida Administrative Code, reflects that the rule was new on January 4, 1987 and was amended May 21, 1987, August 26, 1987, August 10, 1988, August 31, 1988, October 27, 1977, July 18, 1989, August 30, 1989, November 11, 1990, January 9, 1991, November 5, 1992, May 6, 1993, May 31, 1994 and May l, 1995. Body D is a shellfish harvesting area located in the Indian River, south of the State Road 528 bridge and north of the State Road 518 bridge, in Brevard County. DEP conducted a sanitary survey of Body D pursuant to the National Shellfish Sanitation Program Manual and released its findings in a document dated June 13, 1996. The first sentence of the document, in a narrative introducing the detailed survey procedures and results, states: Reclassification of the Body D Shellfish Harvesting Area in Brevard County is proposed for the harvest of oysters, clams and mussels [through amendment to 62R-7.005 (29)], the Comprehensive Shellfish Control Code. [Respondent's exhibit no. 5, emphasis added] The narrative summarizes the proposed classification changes, by total acreage, and projects an adverse economic impact due to increased closures. The narrative further states that the current classification of Body D is based on a comprehensive survey conducted in 1988. The National Shellfish Sanitation Program, of which Florida is a voluntary member, requires that a complete survey be conducted at least every twelve years, with updates annually and triennially (every three years). On July 5, 1996, DEP issued a Notice of Final Executive Order with an attached detailed description of the boundaries of conditionally approved, conditionally restricted and prohibited areas within Body D, "Effective August l, 1996." The attachment to the notice describes the management procedures governing temporary closings. Also attached to the notice was a map of the new classifications boundaries. The notice states that "[t]he order will remain in effect until administrative procedures are completed to amend rule 62R-7.005, Florida Administrative Code." DEP also issued on July 5, 1996 a memorandum to "Interested Parties," describing the reclassification of Body D for harvest of shellfish as follows: Effective August l, 1996, the Department of Environmental Protection reclassified Body D for the harvest of oysters, clams, and mussels. Body D is located in the Indian River, south of State Road 528 Bridge and north of the State Road 518 Bridge. A public workshop was conducted March 22, 1996 in Melbourne to get input on the proposed reclassification. The reclassification will increase the Conditionally Approved area by 404 acres, increase the Conditionally Restricted area by 6,075 acres, and increase the Prohibited area by 1,979 acres. Also, 9,116 acres were classified that were Unclassified; portions of this area were used for relay activities. Currently, the Conditionally Approved and Conditionally Restricted areas close when five-day cumulative rainfall measured at the DEP Rockledge Gauge exceeds 2.68 inches. Beginning August 1, 1996, the Conditionally Approved management plan will temporarily close when two-day cumulative rainfall measured at the Rockledge Waste Water Treat- ment Plant exceeds 0.44 inches, and the Conditionally Restricted management plan will temporarily close when two-day cumulative rainfall measured at the Rock- ledge Waste Water Treatment Plant exceeds 1.29 inches. The estimated number of days per month that the Conditionally Approved area will be closed will increase from a range 0 to 8 days and an average of 0.8 days per month to a range of 0 to 21 days and an average 8.2 days per month. The estimated number of days per month that the Conditionally Restricted area will be closed will increase from a range 0 to 8 days and an average of 0.8 days per month to a range of 0 to 15 days and an average 2.9 days per month. Maps are available that illustrate the shellfish harvesting area classifications at the DEP shellfish office in Palm Bay. The mailing address of this office is 250 Grassland Road, SE, Room 149, Palm Bay, Florida 32909. You may call your local DEP Marine Patrol Office or the DEP Shellfish Office at 407/984-4890 to the open/closed status of the area for shellfishing. (Petitioners' exhibit no. 2) As described in the Notice of Final Executive Order and the memorandum, the reclassification substantially altered the classification descriptions and the management practices found in rule 62R-7.005(29), Florida Administrative Code. The reclassifications were not adopted as a rule amendment pursuant to section 120.54, Florida Statutes. Instead, on September 20, 1996 DEP published notice in the Florida Administrative Weekly, Volume 22, number 38, page 5397, that it proposed repealing rule 62R-7.005, Florida Administrative Code, in its entirety, and amending rules 62R-7.001 and 62-7.004, Florida Administrative Code: * * * PURPOSE, EFFECT AND SUMMARY: This amendment proposes to repeal a rule containing references to shellfish harvesting area maps, the detailed verbal descriptions of shellfish harvesting areas classification boundaries, and criteria for temporary closure, reopening, and monitoring of shellfish harvesting areas. The rule proposed for repeal is 62R-7.005 because it was identified as procedural. An address and telephone number were provided in 62R-7.004 where the information currently contained in 62R-7.005 will continue to be made available to the public. This approach provides for reclassifications through the Governor's delegation of authority to the Division of Marine Resources. Repeal of the rule is in accor- dance with Governor Chiles' rule reduction initiative. The Department will continue to conduct public workshops and hearings and incorporate pubic input that is consistent with maximizing the harvest of shellfish and protection of public health. Additionally, this amendment proposes to update a 1993 version with a 1995 version of the National Shellfish Sanitation Program Manual of Operations, Part I and Part II, that is incorporated by reference. SPECIFIC AUTHORITY: 370.021(l), 370.071(l) FS. LAW IMPLEMENTED: 370.071 FS. DEP has closed harvesting areas in the past without following the section 120.54, Florida Statutes, amendment procedures. The record in this proceeding does not reflect whether those changes or closures were on a temporary or emergency basis as provided within rules 62R-7.004 and 7.005, Florida Administrative Code. DEP has never opened up new, previously unclassified, areas for harvesting without a formal rule amendment and has not been challenged in the past. DEP concedes that the regulatory content of the Final Executive Order supersedes rule 62R-7.005(29) (j), (k), and (l), Florida Administrative Code: Q. I want to clarify one aspect of your testimony, Mr. Heil, because I think you suggested that if a hypothetical individual were to go into Body D today and to harvest shellfish pursuant to a classification contained in Rule 67R-7.005, that is to say his conduct would have been lawful under the standard contained in that administrative rule, but his conduct is in discord or isn't in compliance with the standard for Body Water D contained in the final executive order which is the subject of this dispute today. Am I correct that it was your view that that person would be subject to present criminal prosecution for that act? A. If the area in question from harvest was previously allowed in the classification effective August 1st by the July 5th memorandum was not now allowed for harvest, then that person would be subject to arrest by the Florida Marine Patrol. Q. And prosecution and conviction? A. Correct. (Transcript, pp. 131-2) The National Shellfish Sanitation Program (NSSP), of which Florida is a voluntary member, is a consortium of federal officials (including the Food and Drug Administration, Environmental Protection Agency and National Marine Fisheries), state officials from state shellfish control agencies, and members of the shellfish industry. DEP contends that its participation in the NSSP and obligation to comply with the National Shellfish Sanitation Program Manual of Operations (the manual) precludes compliance with section 120.54, Florida Statutes, rulemaking requirements. Florida has been criticized for moving too slowly in reclassifying areas, but the record in this proceeding does not establish that delay is because of rulemaking requirements. The manual is adopted as a rule by reference in rule 62R-7.001(5), Florida Administrative Code. The manual provides, in pertinent part: (Both the 1993 version currently adopted and the 1995 version proposed for adoption are precisely the same in this regard.) Public Health Explanation The NSSP gone [sic] beyond the original objective set forth in the 1925 Conference of insuring that shellfish shipped interstate would not be the cause of communicable disease. In the 1940's paralytic shellfish poison became a matter of public health concern and steps were taken to protect the public against this hazard. In 1957 it was recognized that shell- fish might concentrate certain radionuclides and that a radiation surveillance activity might become a necessary addition to the established procedures. In the 1960's and 1970's it became apparent that shellfish have the ability to concentrate poisons and deleterious substances such as metals, pesticides, hydrocarbons, etc. to potentially unsafe levels. To ensure the safety of shellfish, the State must supervise the growing, harvesting, relaying and transportation of shellfish. It is also important that shellfish be protected against contamination. [If State supervision is to be effective, the activity must be supported by legal authority. This authority may be either a specific law or a regulation]. The success with which the State is able to regulate the several components of the shellfish industry provides a measure of the adequacy of the statutory authority. [The unique nature of shellfish as a food also makes it necessary for the State shell- fish control agency to have authority to take immediate emergency action without recourse to lengthy administrative procedures, to halt harvesting and processing of shell- fish]. This authority should include placing restrictions on harvesting on the basis of a potential as well as an actual public health hazard. As examples, a State may find it necessary to close a shellfish growing area following a breakdown of a wastewater treat- ment plant or the unexpected finding of marine toxin(s), or when a growing area is implicated in confirmed illness. [Periodic revisions of State shellfish laws or regulations may be necessary to cope with new public health hazards and to reflect new knowledge]. Examples of changes or develop- ments which have called for revision of State laws include: (1) the increased used of pleasure boats with the resulting probability of contamination of shellfish growing areas with fresh untreated fecal material, (2) the conditionally approved area concept resulting from the construction of wastewater treatment facilities, (3) the effect of non-point source pollution, and (4) the ability of shellfish to concentrate certain radionuclides and hazardous chemicals. Experience has demonstrated that all actual and potential shellfish growing waters of the State must be classified by their sanitary suitability for shellfish harvesting. Harvesting should be permitted only from those areas which have been found by sanitary survey to meet the criteria of this Manual. Harvesting should accordingly be specifically prohibited from areas which do not meet the criteria, or which have not been surveyed, or which have outdated survey information. [Respondent's exhibit no. 4, pp. A2 and A3, emphasis added] CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction in this matter pursuant to section 120.535, Florida Statutes. Standing of all parties has been established by stipulation. Petitioners allege that the Final Executive Order issued by the agency on July 5, 1996 is a rule that has not been promulgated by the procedures in section 120.54, Florida Statutes, and is therefore invalid. At the time that the Petitioners filed their challenge, the agency action was proposed to take effect on August 1st; thus, Petitioners invoked section 120.54(4), Florida Statutes, which provides: Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority. Pursuant to section 120.52(8), Florida Statutes, a proposed rule is an invalid exercise of delegated legislative authority when the agency has materially failed to follow applicable rulemaking procedures set forth in section 120.54, Florida Statutes. The agency readily admits that it has not promulgated the material styled Final Executive Order as a rule. Nor has it commenced rulemaking proceedings to adopt the material. On the contrary, it has commenced proceedings to repeal all of rule 62R-7.005, Florida Administrative Code, including the portion which conflicts with the Final Executive Order. The agency claims foremost that the material in the Final Executive Order is not a rule; but that if it is a rule, the agency is entitled to the section 120.535, Florida Statutes, defense that rulemaking is simply not practicable. This latter argument is based, at least partially, on the insistence by federal members of the Interstate Shellfish Sanitation Conference that the agency improve its procedures. It is appropriate to consider this case under section 120.535, Florida Statutes. In Christo v. State Department of Banking and Finance, 649 So.2d 318 (Fla. 1st DCA 1995), the court determined that section 120.535, Florida Statutes, was the exclusive mechanism for challenging an agency's failure to promulgate rules. The case cited by Petitioners, Matthews v. Weinberg, 645 So.2d 487 (Fla. 2nd DCA 1994) Rev. denied (654 So.2d 919 (Fla. 1995), arose under substantially different procedural circumstances (an appeal from a circuit court decision in an injunctive proceeding) and does not establish authority for section 120.54 or 120.56 challenges to agency statements based on their non- promulgation as rules. Without citing section 120.535, Florida Statutes, Petitioners' petition still included the three allegations required by subsection 120.535(2)(a), Florida Statutes: that Petitioners are substantially affected by the statement; that the statement constitutes a rule under section 120.52(16); and that the agency has not adopted the statement by the rulemaking procedure provided in section 120.54. The parties had ample notice that the hearing was to be conducted pursuant to section 120.535, and testimony and evidence was presented with regard to the defenses available to an agency. Because section 120.535, Florida Statutes, in general, and more specifically in this proceeding, permits the consideration of factual matters presented by the agency, Petitioners' motion for summary final order is DENIED. Petitioners, however, still prevail in their challenge to the Final Executive Order. Section 120.535(1), Florida Statutes, provides: 120.535 Rulemaking required.- Rulemaking is not a matter of agency discretion. Each agency statement defined as a rule under s. 120.52(16) shall be adopted by the rulemaking procedure provided by s. 120.54 as soon as feasible and practicable. Rulemaking shall be presumed feasible and practicable to the extent provided by this subsection unless one of the factors provided by this subsection is applicable. Rulemaking shall be presumed feasible unless the agency proves that: The agency has not had sufficient time to acquire the knowledge and experience reasonably necessary to address a statement by rulemaking; or Related matters are not sufficiently resolved to enable the agency to address a statement by rulemaking; or The agency is currently using the rule- making procedure expeditiously and in good faith to adopt rules which address the statement. Rulemaking shall be presumed practi- cable to the extent necessary to provide fair notice to affected persons of relevant agency procedures and applicable principles, criteria, or standards for agency decisions unless the agency proves that: Detail or precision in the establishment of principles, criteria, or standards for agency decisions is not reasonable under the circumstances; or The particular questions addressed are of such a narrow scope that more specific resolution of the matter is impractical out- side of an adjudication to determine the substantial interests of a party based on individual circumstances. The material contained in the Final Executive Order is a rule, defined in section 120.52(16), Florida Statutes, as follows: (16) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any require- ment or solicits any information not specifi- cally required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. It does not matter how the agency seeks to characterize its statement. Amos v. Department of HRS, 444 So.2d 43 (Fla. 1st DCA 1983). Proper characterization of a statement depends on the effect of the statement, not on the agency's appellation. Thus, the fact that DEP adopted similar statements as rules, then disavowed the necessity for such procedural refinements is immaterial. In twenty-plus years of experience under the Administrative Procedures Act, Chapter 120, Florida Statutes, the distinction between rule and order has been immutable. An agency statement is a rule if it purports in and of itself to create certain rights and adversely affect others, or serves by its own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law. Balsam v. Dept. of HRS, 452 So.2d 976, 977-78 (Fla. 1st DCA 1984) The agency statement contained in the Final Executive Order is generally applicable. Anyone intending to harvest shellfish within the many thousands of acres of water described in Body D is subject to the classifications. Anyone failing to comply is subject to criminal prosecution. The statement implements, interprets or prescribes law or policy: it establishes where, and under what conditions, shellfish may be taken; it establishes rainfall standards which affect temporary closings; it plainly, as stated in its counterpart rule 62R-7.005, implements section 370.071, Florida Statutes; it also implements rule 62R-7.004, Florida Administrative Code, and the National Shellfish Sanitation Program Manual of Operations, which is, itself, a rule. Significantly, the statement does not fall within one of the exceptions described in section 120.52(16)(a)-(g), Florida Statutes. It most closely resembles the specific exception provided in section 120.52(16)(d), Florida Statutes, for agency action which alters established annual harvest limits for saltwater fishing. This latter statutory exception underscores the notion that the legislature intended to otherwise include such statements within the definition of a rule. Since the statement at issue is found to be a rule, the agency is entitled to prove that rulemaking was not feasible and practicable. The circumstances surrounding the issuance of the Final Executive Order and the testimony of the agency's witness establish that rulemaking is both feasible and practicable. As provided in the document describing the comprehensive survey of Body D, Brevard County, Florida, the survey was conducted over many months and culminated in the survey report and in the reclassifications and changes in procedure described in the Final Executive Order. Prior to issuance of the Final Executive Order, the agency conducted a workshop. The agency had ample time to acquire knowledge and experience reasonably necessary to address its statement by rulemaking. The specificity of the text reflects that related matters have been sufficiently resolved to enable the agency to address the statement by rulemaking. Indeed, the agency has, in the past, addressed such statements by rulemaking and, for the present, still has such rules in effect. At the time of hearing, the agency had not proceeded with rulemaking procedures addressing the statement, although the text of the Final Executive Order disclosed an intention to so proceed. In the material filed post-hearing and officially recognized upon the request of the Intervenor and agency, the agency "addressed the statement" by announcing its intent to repeal the whole of rule 62R-7.005, Florida Administrative Code, including, of course, the subsection which is substantially amended in the Final Executive Order. The principles, criteria or standards for agency decision based on the Final Executive Order are detailed and precise and are established by agency fiat, rather than through an adjudicative process in which the substantial interests of a party are determined based on individual circumstances. Evidence in this proceeding establishes that the agency plainly intends to rely on the Final Executive Order as its basis for enforcement and prosecution and does not intend to develop on a case by case basis the standards it has already created. Nothing in the record of this proceeding supports the argument by the agency that its Final Executive Order is legally compelled by a higher federal authority or that the shellfish industry in Florida is jeopardized by rulemaking requirements. The National Shellfish Sanitation Program Manual of Operations supports, rather than discourages, the adoption of regulations. (See paragraph 17, above). Throughout Chapter 370, Florida Statutes, are references to regulations. (See, paragraphs 3 and 4, above.) Section 370.103, Florida Statutes, authorizes the agency to enter into cooperative agreements with the Federal Government, but also includes this manifest intent: When differences between state and federal laws occur, state laws shall take precedence. None contests the need for the agency to act promptly under certain circumstances to meet the exigencies of a reasonable enforcement program. According to the record in this proceeding, the Final Executive Order was not developed under such compulsion. Existing rules, the manual and even the Administrative Procedures Act provide for emergency responses to threats to public health, safety and welfare. Those are the procedures which the agency must employ. The "impressive arsenal" of remedies in the Administrative Procedures Act, acknowledged in State, ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977) exists for the benefit of agencies as well as citizens at large.
Conclusions The Florida Fish and Wildlife Conservation Commission (“FWC” or ‘““Commission’) hereby enters the following Final Order. ISSUE AND SUMMARY The Commission issued a permit to Chris Johnson to conduct leatherback turtle research through the Loggerhead Marinelife Center, Inc. (hereinafter “LMC’”) in 2001 and has continuously reissued this permit. However, Chris Johnson’s employment with LMC was recently terminated. On January 22, 2014, the Commission issued Marine Turtle Permit #14-157A to Chris Johnson, Filed October 2, 2014 3:57 PM Division of Administrative Hearings authorizing him to conduct leatherback turtle research on Palm Beach County beaches, effective January 1, 2014. On December 20, 2013, the Commission issued a permit to Sarah Hirsch, Data Manager for LMC, to conduct marine turtle research on Palm Beach County beaches, effective January 1, 2014. On May 27, 2014, the Commission issued Marine Turtle Permit #14-211 to Dr. Charles Manire, who works for LCM, to conduct a subset of the same activities that Chris Johnson’s permit authorizes Chris Johnson to perform with leatherback turtles. On February 12, 2014, LMC filed a Request for Enlargement of Time to File Petition. On February 28, 2014, LMC filed a Petition for a Formal Administrative Hearing, and on April 25, 2014, LMC filed an Amended Petition for Formal Administrative Proceeding (hereinafter “LMC Petition”), challenging the issuance of Marine Turtle Permit #14-157A to Chris Johnson. The LMC Petition states that the activities Chris Johnson proposes to conduct under his permit are not in the public interest as his activities would interfere with the research LMC conducts under contract with Palm Beach County, and would duplicate research that LMC employees have conducted for more than 20 years on the same beaches. The LMC Petition states that Chris Johnson has demonstrated no need for his research. The LMC Petition disputes that Chris Johnson has the necessary permits or concurrence from the appropriate park management units to conduct the research and claims that Chris Johnson submitted materially false information in his application for a permit. The LMC Petition states that following his termination by LMC, Chris Johnson misappropriated LMC’s leatherback sea turtle data set to start his own organization, and that Section 379.2431, Florida Statutes, Chapter 68E-1, and Rule 68-1.010, Florida Administrative Code, require denial of the permit. LMC has filed a separate civil action against Chris Johnson alleging, among other things, the misappropriation of turtle data from LMC. The Commission transferred the case to the Florida Division of Administrative Hearings (DOAH) on April 17, 2014, which was assigned DOAH Case No. 14-001651. The permittee, Chris Johnson, filed a Motion to Intervene in the case on April 29, 2014, and was granted party status on April 30, 2014. On June 3, 2014, Chris Johnson filed a Petition for Formal Administrative Proceeding (hereinafter “Johnson Petition’’) challenging the issuance of Marine Turtle Permit #14-211 to Dr. Manire at LMC, The Johnson Petition primarily states that the application for this permit was an attempt to keep Chris Johnson from being able to conduct his research, that Dr. Manire’s permit interferes with Chris Johnson’s permit, that Dr. Manire does not have the requisite knowledge and skill to conduct the permitted activities, that the public’s interest is best served by having Chris Johnson conduct the research and that Section 379.2431, Florida Statutes, and Rules 68E- 1002(2), 68E-1.004(6) and (17), and Rule 68-1.010, Florida Administrative Code, require denial of the permit. On June 12, 2014, the permittees, Dr. Charles Manire and LMC, filed a Petition to Intervene, and were granted party status on June 19, 2014. This case was transferred to DOAH and assigned DOAH Case No. 14-002806. On June 23, 2014, this case was consolidated with LMC v. Chris Johnson and FWC, DOAH Case No. 14-001651, which was pending before DOAH. On July 22, 2014, Christopher Johnson filed a motion seeking sanctions, including attorney’s fees, On September 8, 2014, LMC, stating that the administrative action is negatively impacting LMC’s civil action and the turtle nesting season has passed, voluntarily dismissed its petition without prejudice, thereby withdrawing its challenge to the issuance of the permit to Chris Johnson. On September 8, 2014, Dr. Manire withdrew his application for a permit. As the substantive issues in the case were rendered moot by LMC’s dismissal of its petition and Dr. Manire’s withdrawal of his application, on September 11, 2014, DOAH relinquished jurisdiction over the permitting issues back to the Commission. However, DOAH retained jurisdiction over the issue of attorney’s fees. WHEREFORE, as LMC has voluntarily dismissed its Petition, thereby withdrawing its challenge to the issuance of Marine Turtle Permit #14-157 to Chris Johnson, the permit is hereby GRANTED. As LMC and Dr. Charles Manire have voluntarily withdrawn their application for the permit, the issuance of Marine Turtle Permit #14-211 to Dr. Charles Manire at LMC is hereby DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida this 30 day of September, 2014. t= Eric Sutton Assistant Executive Director Florida Fish and Wildlife Conservation Commission Filed with The Agency Clerk MULL, This 2 day of-September, 2014 LIFE Oe Sbtobe 7 enrol ATTEST: yy % ono Agency Clerk Cyriteeesanst CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above FINAL ORDER has been furnished by U.S. Mail to Rachael M. Bruce, 515 N. Flagler Dr Ste 1500, West Palm Beach, FL 33401-4327; Alfred Malefatto, Lewis Longman and Walker, P.A., 515 N. Flagler Dr Ste 1500, West Palm Beach, FL 33401-4327; Edwin A. Steinmeyer, Lewis Longman & Walker, 315 S. Calhoun St Ste 830, Tallahassee, FL 32301-1872; Frank Rainer, Broad and Cassel, PO Box 11300, Tallahassee, FL 32302-3300; and David ge Broad and Cassel, 2 S Biscayne Blvd Ste 21, Miami, FL 33131-1800, on this day “ane Copies furnished to: Ryan Smith Osborne (via email) Florida Fish and Wildlife Conservation Commission Legal Office 620 South Meridian St. Tallahassee, FL. 32399 Michael Yaun (via email) Florida Fish and Wildlife Conservation Commission Legal Office 620 South Meridian St. Tallahassee, FL. 32399 Florida Bar No. 956953 Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (850) 487-1764 NOTICE OF APPELLATE RIGHTS The foregoing constitutes final agency action in this matter. Any party adversely affected has the right to seek judicial review of this Final Order pursuant to section 120.68 Florida Statutes, and rule 9.030(b)(1)(c) and 9.110, Florida Rules of Appellate Procedure. To initiate an appeal, a Notice of Appeal must be filed with the Florida Fish and Wildlife Conservation Commission, Office of the General Counsel, and the appropriate District Court of Appeal within thirty (30) days of the date of that this Final Order is filed with the Agency Clerk. The Notice filed with the District Court of Appeal must be accompanied by the appropriate filing fee required by law.
The Issue The central issue in this case is whether Petitioner's wholesale dealer's license should be approved for renewal.
Findings Of Fact Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact: Henry's Seafood, Inc. was established and began doing business in 1978. From its inception Henry Torres has served as president of the company. Petitioner ceased doing business in May of 1986 when its application to renew its whole sale license to sell salt water products was denied by Respondent. On November 25, 1985, Henry Torres entered a negotiated plea of guilty to knowingly transporting with the intent to sell, offering for sale, and knowingly selling in interstate commerce approximately 120 pounds of undersized spiny lobster tails with a market value in excess of $350.00, knowing that said spiny lobster tails were possessed in violation of law. As a result of the plea, a conviction was entered and Mr. Torres was required to pay a fine in the amount of $10,000. On November 25, 1985, Petitioner, Henry's Seafood, Inc., entered a negotiated plea of guilty to the same charge described in Finding of Fact, paragraph 2. Petitioner was then found guilty and was placed on probation for two years. The negotiated pleas entered by Petitioner were done in the interests of minimizing costs relating to the defense of the criminal actions. Moreover, said pleas were entered with the express understanding that Petitioner would be allowed to continue in business. Additionally, it was the intention of the trial judge in imposing sentence that Petitioner be allowed to continue in business. There was never a factual determination that Petitioner did possess undersized lobster tails. In fact, Petitioner received payment for some of the lobster tails which had been seized. Mr. Torres denied having violated either the Lacy Act or Florida Law. The lobster tails were not the product of Florida but had been caught in waters elsewhere. The lobster tails seized from Henri's were combined with all of the lobsters seized from other business. It was impossible to determine how many, if any, were undersized. When Petitioner applied for the renewal of its license, a disclosure was given as to the conviction described in Findings of Fact, paragraphs 1 and 2.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Natural Resources enter a Final Order approving Petitioner's renewal application and placing said license on probation for a period of two years. DONE AND ORDERED this 1st day of October, 1987, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 1st day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2394 Rulings of the Proposed Finding of Fact submitted by Respondent 1. Rejected, outside the scope of evidence Submitted at the final hearing. COPIES FURNISHED: Michael I. Rose, Esquire Suite 303, Roberts Building 28 West Flagler Street Miami, Florida 33130 Henri C. Cawthon, Esquire Assistant General Counsel 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399 Mr. Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas G. Tomasello, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The Respondent, the Department of Labor and Employment Security, had the sole authority to administer the Net Ban Assistant Program enacted in Section 370.0805, Florida Statutes. For purposes of this record, this program has been called the net buy-back program (or the program). The Petitioner, Stephen E. English, is a fisher who filed an application for assistance under the buy-back program on July 5, 1995. The Department received applications from many fishers who sought to participate in this program. Those fishers who were deemed eligible to receive assistance from the program were notified of a time and date certain to present their nets for buy-back. The Department advised all fishers that their claims would be processed on a first come, first served basis. The initial estimate of the total buy-back expense to the Department (and the assumption that the fund was sufficient to cover same) was based upon the types of nets listed on the buy-back applications which had been filed. For example, Petitioner listed that he would be selling 5,000 yards of gill net (49 meshes or less); 5,000 yards of gill net (50 meshes or more); 1,000 yards of beach, purse or seine net; and 4,000 yards of trammel net. Based upon the foregoing information, when the Department reviewed the Petitioner's application and the amounts applicable to each type of net was computed, it was presumed Petitioner would receive approximately $25,000.00 for his nets. This process was repeated for all applications filed and led the Department to believe that, based upon what the fishers had described in their applications, there would be sufficient funds to pay all fishers who were deemed eligible for all nets listed in their applications. When the Department made the decision to set appointments for the buy- back program it erroneously presumed the fishers would turn nets in as described in the applications. Therefore, although the appointments were to be on a first come, first served basis (based upon the date and time of the filing of the applications), the appointments were scheduled at various sites around the state on the basis of when applications were turned in, what nets were expected to be received, and total volume of work a location could be expected to do on a given day. Several buy-back sites were selected in an effort to accommodate the fishers hauling their nets in for sale. Had the Department used only one buy- back site, and set the appointments by time only, fishers traveling long distances to turn in their nets would have been inconvenienced. Delays inherent in the process of waiting for identification of nets and receiving them by the Department would have been greater than those incurred at the multiple sites. Since the Department did not expect any site to be able to handle more than 80 nets per day, the numbers of nets expected to be turned in also affected the scheduling of the appointments. None of these minor deviations from the first come, first served policy would have effected the buy-back program had the fishers, in fact, turned in nets according to their applications. That did not happen. Instead, when fishers presented nets for buy-back on the first days of the program in August, 1995, they turned in huge volumes of seine nets. The buy-back amount for a seine net was much greater than the other types of nets. As a result, the claims to the buy-back fund greatly exceeded the amounts initially computed by the Department. In fact, it became apparent that the fund could not repay fishers for all seines expected to be turned in. This impacted Petitioner because the first appointments for the buy- back program at Petitioner's buy-back site (Stuart or Salerno) began on September 5, 1995. Petitioner's appointment was for September 7, 1995 at 8:00 a.m. By September 5, 1995, the Department was in the process of evaluating claims and stopping the buy-back program. On September 6, 1995, at 5:00 p.m. the Department called a halt to the buy-back at all sites. On September 6, 1995, before the buy-back program was stopped, Petitioner attempted to sell his nets. He was advised by the Department's agents at the buy-back site that he would not be allowed to turn in his nets until his appointment time. Petitioner observed others, who had appointment times after his, being allowed to turn in their nets on September 6, 1995. The Department refused to purchase Petitioner's nets on September 6, 1995. The net purchase process can be described as follows: a fisher presented the net for purchase, it was identified by type, measured over a roller, and a voucher receipt issued. This procedure was repeated for each type of net turned in until all nets from a fisher were processed. Although unexpected by the Department some buy-back locations were able to process more than 80 nets per day using the described procedure. After the buy-back program was resumed, Petitioner was permitted to sell his nets but was advised he would only be paid for 1,200 yards of seine nets (the amount shown on his application). Petitioner was advised that the remainder of his nets would be acceptable in any other type other than seine net. Consequently, Petitioner was paid as follows: $11,608.68 for trammel nets, $6,999.60 for seine nets, and $10,382.51 for gill nets (50 meshes or more). Thus, the total Petitioner received for his nets was $28,990.79. The underlying problem with the buy-back program was caused when fishers who turned in nets ahead of Petitioner altered their nets to claim reimbursement as seine nets. Since the appointment letters did not advise fishers that they would only be able to sell the nets described on their applications, the fishers took advantage of the definition of "seine" net as then in effect and presented "seine" nets at the buy-back locations. In response to this definition issue, the Department enacted an emergency rule, 38BER95-1, to define the types of seine nets more particularly so that the integrity of the buy-back program was assured. Persons who were given vouchers for their "seine" nets who were later disallowed have filed a class action lawsuit against the Department. Petitioner did not receive a voucher for his nets on September 6, 1995, so he is not a member of the class action suit. Petitioner maintains he should have received a voucher for his nets on September 6, 1995; that he was treated differently than others whose nets were purchased at his site on September 5 and 6, 1995; and that he has been damaged and should receive a voucher from the net buy-back program in the amount of $55,000.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Labor and Employment Security enter a final order denying Petitioner's claim for additional compensation based upon the nets returned under the buy-back program, and dismissing Petitioner's request for a voucher or to make him a member of the class action lawsuit. DONE AND ENTERED this 20th day of May, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 20th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5781 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 6, and 14 through 17 are accepted. Paragraphs 7 through 13, 18 and 19 are rejected as contrary to the weight of the credible evidence, argument, or irrelevant. Further, it is concluded that Petitioner had no vested right to sell his nets before 8:00 a.m. September 7, 1995. Since the program had been suspended by that time, he was compensated according to the rules and his application at the next appointment date and time. Thus, he was paid all monies contemplated under his original application. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1 through 18, and 22 through 38 are hereby accepted and adopted by reference. With regard to paragraph 19, it is rejected as repetitive. With regard to paragraph 20, it is rejected as irrelevant. With the correction to September 6, 1995 at 5:00 p.m., paragraph 21 is accepted. The Department bought no nets on September 7, 1995. COPIES FURNISHED: Louise T. Sadler, Senior Attorney Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2189 Stephen E. English, pro se Post Office Box 814 Port Salerno, Florida 34992 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152
Findings Of Fact Petitioner is the holder of Oyster Lease NO. 981. The annual rent for the lease has been paid in full as it became due and the lease is currently in full force and effect. No formal action has been brought by DNR to revoke this oyster lease. On June 30, 1988, Petitioner filed a valid and adequate application for a special activity license to use mechanical harvesting implements on this lease. Petitioner furnished or will furnish a bond payable to the Governor of the State of Florida and approved by DNR in the sum of $3,000.00 as required for issuance of a special activity license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order and therein grant the application of W. E. Schoelles for a special activity license to use mechanical harvesting implements on Oyster Lease NO. 981. DONE and ENTERED this 22nd day of March, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 22nd day of March, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-5989 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Natural Resources The only finding of fact proposed by DNR is rejected as being irrelevant and unsupported by the competent evidence. COPIES FURNISHED: Harold A. McLean Deputy General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Suite 1003 Tallahassee, FL 32399 J. Ben Watkins Attorney at Law 41 Commerce Street Apalachicola, FL 32320 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
The Issue The issue is whether proposed amendments to Rule 46-39.005 adopted by the Marine Fisheries Commission, setting maximum lengths for nets used for the commercial harvesting of mullet, establishing one week alternating closure periods for mullet harvests during the late fall/ early winter roe season, setting a 500 pound per vessel per day harvest limit during the pre-roe season and a one thousand pound limit if two licensed commercial fishermen fish together during the roe season, constitute invalid exercises of delegated legislative authority. The Petitioners assert that the economic impact statement which accompanied the notice of rulemaking is inadequate.
Findings Of Fact The Parties Sigma International, Inc., owns and operates a mullet processing, wholesaling and exporting business in Florida. The restrictions embodied in the proposed rules will substantially affect its interests. Seafood Consumers and Producers Association is a non-profit association of businesses and consumers interested in fishery resources and fish harvesting in Florida and elsewhere. The rules would substantially affect interests of the association and the interests of individual members of the association. Bob Combs Fish Co. are fishermen, a first receiver of fish caught by others, and a fish wholesaler doing business in Florida. The proposed rules would substantially affect its interests. Everglades Fish Corporation are fishermen, are first receivers of fish caught by others, and fish wholesalers doing business in Florida. The proposed rules would substantially affect their interests. Houston Brown is a fisherman who does business in the State of Florida. The proposed rules would substantially affect his interests. Triad Seafood is a first receiver of fish caught by others, and a fish wholesaler which does business in Florida. The proposed rules would substantially affect its interests. Horse Weeks Fish Co. is a first receiver of fish caught by others, and a fish wholesaler which does business in Florida. The proposed rules would substantially affect its interest. A.P. Bell Fish Co. are fishermen, a first receiver of fish caught by others, a wholesaler, retailer, and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interests. SaltWater Enterprises, Inc., are fishermen, a first receiver of fish caught by others, a wholesaler, retailer and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interest. The Fisherman's Market, Inc., is a first receiver of fish caught by others, a wholesaler, retailer and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interest. The Marine Fisheries Commission (Commission) is legislatively created and assigned to the Department of Natural Resources. It has authority to adopt rules. Sections 370.025, 370.026 and 370.027(1), Florida Statutes (1991). It adopts fishery conservation and management measures which promote the continued health and abundance of marine fisheries resources in Florida. Section 370.025(2)(a) and (c), Florida Statutes (1991). The Fish Black or striped mullet is a popular food sought for the flesh of the fish and especially for its roe, which is available annually during the autumn spawning season beginning in October. Mullet roe is highly valued by the Japanese, and much of the roe is exported to Japan. Mullet is the most intensively harvested finfish in Florida; in 1989 mullet accounted for 19.3 percent of the state's total finfish catch. Florida is the source for 85 percent of the nation's black mullet catch. Since 1976 the demand for the export of black mullet roe has increased, which has increased fishing pressure on the species' egg bearing females. Roe-bearing fish caught during roe season are about four times as valuable as the fish would be if caught in the pre-roe season. Mullet has a shelf life as a fresh fish of no more than four days due to the oil in its flesh. Although it can be frozen, in the Florida retail market frozen mullet is not considered a desirable food. There is a California market for frozen mullet, however, where it is popular with Asians. Since the closures during the roe season proposed in the Commission's rules will be for periods of one week, there could be days when no fresh mullet would be available to Florida consumers. Earlier Regulation of the Black Mullet Fishery - 1989-1992 Black or striped mullet (mulgi cephalus) are regulated by the Commission as a restricted species. Section 370.01 (20), Florida Statutes (1991), and Rule 46-39.001(4), Florida Administrative Code. Size and bag limits are imposed on recreational takings of mullet. Commercial fishermen taking mullet must hold a saltwater products license with a restricted species endorsement. When they sell their catch they must provide a trip ticket to the purchaser of the fish which includes the fisherman's name and license number, the gear used in the catch, the place of the catch, the species caught and the number of pounds of fish caught. This information is then sent by the purchaser to the Department of Natural Resources, and is an important part of the Department's data base used in regulating the fishery. The Marine Fisheries Commission began a study of black mullet in 1987, and adopted rules restricting commercial black mullet fishing in 1989. Those rules established gear restrictions, amended certain qualifications for licensure to catch mullet in commercial quantities, and set roe season closure periods for mullet fishing. During 15 weekends of the year, the fishery was closed for 36-hour periods. The minimum net size for mesh was set at three inches. Amendments to the rules in 1990 closed new areas to fishing, set minimum net mesh size which could be used during the roe season at four inches, and prohibited commercial fishermen from using spotter aircraft to locate schools of fish. The weekend closures were extended from 36 to 54 hours, and two more weekends were closed for fishing. In drafting all its management measures, the Commission attempted to make it possible for fishermen to fish year round for mullet, and thus make fresh mullet available to consumers throughout most of the year; See the Purpose and Effect Statement of the rule published at 18 Florida Administrative Weekly at 4931, which reflects this Commission policy. In 1991 the Commission debated whether additional regulation was necessary for the mullet stock and proposed new rules and amendments to existing rules which were published in Volume 17, No. 32, of the Florida Administrative Weekly on August 9, 1991, at pages 3593 et seq. but, as noted above, the validity of these rules was challenged. In a final order that was issued on December 9, 1991, provisions of those rules were found to be invalid exercises of delegated legislative authority (DOAH Case Nos. 91-5408R and 91-5422R). The District Court of Appeal affirmed that determination in the opinion entered in Florida Marine Fisheries Commission v. Organized Fishermen of Florida, 610 So.2d 92 (Fla. 1st DCA 1992). Those invalidated rules had their genesis in a decision made by the Commission in February 1991 which set a statewide spawning potential ratio (SPR) for black mullet. The SPR is a measurement tool used by the Commission and by other regulatory groups, such as the Federal Fishery Management Councils, in the regulation of fish stocks. It is a measure of the biomass (essentially the total weight) of those fish capable of reproducing, divided by an estimate of what would have been the total biomass of fish of reproductive age if there were no fishing at all in the fishery. The goal the Commission set of maintaining a 35 percent SPR for black mullet was chosen using the best information available. The goal is a reasonable tool for the Commission to use in assessing the effectiveness of any of its efforts to manage the black mullet population to produce maximum stock abundance. The 35 percent target is the minimum level which could be set to provide adequate management of the stock and avoid the risk of a dramatic reduction in the number of fish available. The Commission was disappointed that its August 1991 efforts to increase regulation (and in its view, protection) of the mullet population had been turned back through litigation. It credited data on mullet landings showing a continuing decline in the mullet population. This led the Commission to believe that the spawning potential ratio for mullet in the 1991-1992 fishing year had declined to 18-25 percent, well below the target of 35 percent. Review of nine management options and debate at its August 1992 meeting led the Commission to advertise proposed new rules and amendments to existing rules published in Volume 18, No. 35 of the Florida Administrative Weekly at pages 4931 et seq. on August 28, 1992. According to the Purpose and Effect Statement and Summary for these rules the changes proposed to the regulatory regime for black mullet would do six things: proposed rule 46-39.0036 would prohibit the recreational harvesting of mullet from October 1 through October 15, from November 1 through November 15, and from December 15 through January 15 each year; an exception to the closures would be recognized for possessing cut mullet to be used on boats as bait; an amendment was proposed to existing rule 46-39.005 to prohibit the use of gill or trammel nets or beach or haul seine nets longer than 600 yards; subsection (4) of existing rule 46-39.005 was deleted, it had closed the fishery to commercial operation during weekends in the roe season; a new subsection (5) was proposed to rule 46-39.005, which would close the fishery to commercial harvests for the same periods specified for recreational closures; a new subsection (6) was also proposed for rule 46-39.005, which set a limit on commercial harvesting of mullet to 500 pounds of mullet per vessel per day from July 1 through September 30, which is the pre-roe season. At its meeting of September 25-26, 1992, the Commission conducted a legislative-type hearing under Section 120.54(3), Florida Statutes (1991), for the rules it had noticed for adoption. More than 60 people commented on the proposed new rules and amendments to existing rules. On September 26, 1992, the staff of the Commission made a presentation of options it believed were available to the Commission to achieve increased SPR for black mullet and the Commission deliberated using all the information placed before it. Based upon the rule making record compiled, the Commission voted to make changes to the text of the rules as they had been published for comment on August 28, 1992. The Commission decided that instead of two week alternating closures of the mullet fishery for 61 days during the roe season (from October 1-15, November 1-15 and December 15-January 15), it would close the fishery for 56 days using alternating one week periods (from the first through the seventh and fifteen through the twenty-first days of the months of October, November, December and January). The proposed 600-yard maximum net length and 500-pound per fisherman trip limit during the pre-roe season remained, but an increased limit of 1,000 pounds per vessel during the roe season was added if two licensed commercial fishermen used a single vessel. These changes were published in Volume 18, No. 42, of the Florida Administrative Weekly, pages 6221 et seq., on October 16, 1992, as a notice of changes to the Commission's proposed rules. DSPOPS Model for Estimating Spawning Potential Ratio Authorities which manage stocks of pelagic fishes commonly assess the condition of the stock with biological models. Models attempt to account for dynamics of a fishery represented by variables, in an effort to mimic the behavior of the population in its natural state. The models' results provide managers with as accurate an estimate of future fish populations as current science can provide. The choice of a particular model is significantly affected by the data available to be loaded into the model equation. How well any model mimics the natural population necessarily is affected by the accuracy of each of the values used in running the model. The federal National Marine Fisheries Service uses models to assess the condition of stocks of king mackerel, Spanish mackerel and dolphin. The Florida Marine Fisheries Commission has used similar a model known as GXPOPS 1/ to manage the red drum population, with good results, and another for management of Spanish mackerel, which has been brought back from the point of collapse (i.e., a dramatic change in population from an insufficient number of juveniles reaching adulthood). Commission staff chose the biological model known by the acronym DSPOPS 2/ to analyze the current spawning potential ratio of the black mullet fishery. The DSPOPS model is rather sophisticated and contains a significant number of input parameters or variables, such as growth rates, age at sexual maturity, observed harvest levels, recruitment and mortality. The value for some of these parameters are relatively well known through biological sampling, such as age, size, sex and maturity. Values for others, such as mortality of black mullet due to fishing, are subject to some debate. There is sufficient data available to use the DSPOPS model. The model can be run using the high and low estimates for input variables, which yields a range for the SPR, based on those runs. Data the Commission staff used to run the model came from the southwest Florida area. About 75 percent of all mullet landings are made there (especially in the Tampa area), and there is no reason to believe that the dynamics of the black mullet population operate differently there than in the panhandle area or in eastern Florida waters. Catch and effort data for all areas of the state are sufficiently similar to show the fishery is a single unit. Analysis of mullet show Gulf and Atlantic mullet are part of a single gene pool. Moreover, the statute encourages the Commission to manage species populations as a single biological unit. Section 370.025(2)(d), Florida Statutes (1991). The Commission used data only for female mullet, which is appropriate when calculating the spawning potential for a fish where eggs are a limiting factor for the number of fish in a population. Recruitment is a term that refers to those fish that survive the egg and larval stages and eventually mature into adults which can be harvested with fishing effort. There is a relationship between the number of fish able to spawn and the number of fish that are added or "recruited" into a fishery as the result of the spawning, which is known as the spawner recruit relationship. Unfortunately, the spawner recruit relationship cannot be estimated for mullet with enough precision to incorporate it into the model. To account for this, Commission staff ran the model assuming constant recruitment, that is, the assumption was made that there is no relationship between spawning stock and recruitment. This produces an estimate of spawning potential ratio that may be accurate or may be higher than it would be had a spawning recruitment relationship been determined (or assumed). Thus, use of a constant recruitment assumption tends to produce an optimistic assessment of the spawning potential ratio. The most basic variables used in a biological model designed to predict future fish stock are those for mortality rates. In fisheries science, total mortality is universally represented as the variable "Z." It is equal to the rate of fishing mortality, represented as "F," plus the rate of natural mortality "M." 3/ Thus, the equation is that Z = F + M. This is as basic to fishery science as the equation "debits = credits" is to accounting. It is also significant that under this equation, if any two of the three variables are known, the third can be calculated. Non-Parametric Statistics and Independent Review Many of the parameters used in the DSPOPS model have threshold values, they are not parameters which would be expected to have a normal or bell-curved type distribution (such as the average age of fish in a population). Threshold values are non-parametric statistics, and there are no confidence intervals or other measures of variation, such as coefficients of variation, associated with them. This does not mean that the expected SPR levels produced by the model lack utility, are unscientific, or are inherently untrustworthy. Other efforts are made to test the correctness of the parameters values used in the model, or in using the model's output. Using the model to estimate a range of SPR for various regulatory regimes is the best way to manage a fishery. It is for this reason that the Department convened an independent review panel to evaluate the values which its staff had loaded into runs of the DSPOPS model, to represent what would happen in the fishery if various management measures were imposed. This group of outside scientists met with the Commission staff on July 9-10, 1992, to review the data and reach a consensus on the appropriate values to be used for all parameters introduced into the model equation. They cross checked data, and evaluated its consistency with published studies. Although Petitioners complain that scientists who testified for them at the Section 120.54(4) final hearing on the 1991 rules were not invited to this meeting, the Commission's explanation for this is persuasive. The scientists invited were independent, had no association with the Commission, DNR or the Petitioners, and had no other prior associations or biases militating against reaching a consensus. The panel concluded that data available showed female SPR was in the range of from 15 percent to 26 percent, with the most likely value being 21 percent or less. F Value Determined by Tag/Recapture Data and Z Using Time Series of this Data Dr. Behzad Mahmoudi, of the Florida Marine Research Institute, performed a tag/recapture experiment on mullet in southwest Florida in an attempt to determine the F value (fishing mortality) to be used in the DSPOPS biological model. The determination of F can be a problem; for some fish species it is not available. In a few fisheries researchers are assigned to observe and record activity on commercial fishing vessels; there F (fishing mortality) may be calculated by analyzing catch per unit of fishing effort, i.e., the number of pounds of fish landed per hour or per day of fishing. Florida's data gathering through trip tickets does not permit this, since it provides no means to account for the common situation of a fishing trip which yielded no mullet catch. Dr. Mahmoudi's experiment for determining fishing mortality was a good one, which carefully accounted for the biases normally associated with studies designed to estimate F. In a tagging experiment mullet are handled, a smooth plastic filament streamer or tag inserted in a small slit, and then the fish is reintroduced into the waters of the Gulf. These streamers are thin enough to be pulled through the mesh of the crown of fishing caps, where they are sometimes worn by fishermen disinclined to return them to the Commission's researchers, although they are paid $5.00 per tag returned. These tags are then returned to the Florida Marine Research Institute by fishermen or fish processors when tagged fish are caught. When used in conjunction with data on landings of mullet, the proportion of tags returned from among those landed gives an indication of the fishing mortality for the species. The fish were tagged at the beginning of the '89-'90 and '90-'91 seasons, and captured over the following two seasons. Fish tagged in the first year may not be caught until the second year or later. Dr. Mahmoudi also performed ancillary experiments. He put a sample of tagged fish in pools, and evaluated mortality over time caused by the tagging process itself. He also evaluated tag rejection by monitoring tagged fish placed in pools to determine the proportion of spontaneous tag loss. Lastly, he and associates evaluated the non-return rate for tagged fish commercially caught by going to fish processors, and examining commercial catches made by licensed fishermen. After the fishermen and processors had finished with the fish, and returned all tags that were going to be returned, researchers examined those fish to see how many tags yet remained and had not been removed or returned to the Commission. This permitted calculation of the rate at which tags on fish caught are returned. Through these three ancillary experiments, Dr. Mahmoudi accounted for the major variability likely to be introduced into estimations of F (fishing mortality) based on tag recovery. He did not add a specific adjustment to his F value for any increased predation on tagged fish, for there was no reason to believe that it would be anything other than de minimis. Due to the nature of the tag and the placement of the tags on the fish, it is unlikely that tagged fish were ensnared in nets at any higher rate than untagged fish. It is also significant to remember that the recovery rate for tags is not affected by fishing effort. It is based on the percentage of tags which are returned from among fish caught, and is a proportion of fish caught. The more fishermen fish, the larger the absolute number of tags returned, but if the price of fish falls, and fishermen make fewer fishing trips, the proportion of tags returned does not change, although fewer tags may be returned. The range of values which Dr. Mahmoudi estimated for F based on his tag return data of .88 through 1.13 are quite accurate. Moreover, the numbers are consistent with published studies and confirmed by separate calculations discussed below which are consistent with these F values. By treating tagged fish as if they were the whole fish population, Dr. Mahmoudi was also able to determine how many tags were returned at different time intervals, and by using this time series data, was able to calculate a value for Z (total mortality) of 1.5. Since he then had values for both F and Z, he was able to calculate the value of M (natural mortality) as .3. Independent Calculation of Z Through Catch Curve Analysis A commercial catch of fish contains individual fish of different ages. When gear such as gill nets are used, small fish escape, but after the fish reach a certain size, all but the biggest fish are caught (big fish may bounce off or swim around gill nets). The range of ages of the fish caught in gill nets mirrors the age distribution in the fish population, after an adjustment for the smallest and largest fish which escape gill net capture. It is possible then to calculate the slope of a line by plotting the age of fish versus the percent of fish of that age in the catch, and by this method to derive a value for Z (total mortality). Dr. Mahmoudi did this. He then went through an additional verification step. He made a catch of fish using a purse seine net which, unlike a gill net, catches all fish regardless of size. He was able to superimpose the catch curve analysis from this purse seine catch over that generated by the catch curve for fish caught with gill nets, and they matched. This gave him two additional independent and consistent estimates of Z, which also were consistent with his Z estimate of 1.5 from the tag/recapture data. Corroboration of Z value by Otolith Size Mullet have bones in their ear which lay down layers of clear and opaque material creating rings. Counting the number of rings yields a determination of the fish's age. Dr. Mahmoudi counted otolith rings using a large sample of mullet, and he determined the average age of mullet in the fishery was 3.5 to 4 years. This is consistent with the estimates of Z as being 1.5, because use of 1.5 in the equation Z = F + M means that the average age of mullet in the fishery is 3.5 to 4 years old. Independent Calculations of M Natural mortality, or M, is a significant parameter in the DSPOPS biological model, and it is important to have a good estimate for it. Dr. Mahmoudi used three independent methods to calculate a value for M. The first he used, Pauly's method 4/, is one which can be done with little data, but provides a somewhat weak estimate. It was developed for use in estimating sardine populations, and is based on water temperature readings, and the rate of the growth of fish. It yields an estimate of mortality which is accurate within a range of from one half to two times the actual mortality rate for the fish. The independent review panel determined that it was likely that the estimate for mullet of .58 using Pauly's method would be on the high side, i.e., closer to the twice than to one-half of the actual mortality rate. Dr. Mahmoudi then calculated an M value with a different method, Alagaraja's method 5/, which provides a stronger estimate, but requires knowing the maximum age of the fish attained in an unfished environment. This is somewhat difficult because black mullet have been fished in Florida waters for more than 50 years. Other experiments in the scholarly literature showed mullet have been found that were at least ten old, so an age of at least ten years was appropriate and when used in Alagaraja's method yielded a value for M of .4. The consensus of scientists on the independent review panel was that the maximum age of mullet in an unfished population was probably closer to 15 years of age, and using that value, the Alagaraja's method yielded a M value of .3, which was consistent with the M value generated in the tag/recapture study, and reasonably close to the .4 value computed for M under Alagaraja's method using a maximum age of ten years for mullet. The third method was to calculate M based on the values of F and Z determined from the tag/recapture study. Summary of Biological Data For Z there were two independent estimates derived from catch curve analyses (one using gill nets and the other purse seine net catches) and the determination from otolith rings. There were two separate calculations of M using Pauly's and Alagaraja's methods. F was calculated from the tag/recapture study. Independent estimates for Z and M were derived from Dr. Mahmoudi's tag/recapture data, and all were consistent. There are number of reasons, therefore, to have great confidence in the values for the significant variables Z, F and M used by Dr. Mahmoudi in running the DSPOPS model. As with the values for other parameters loaded into the DSPOPS model, which have no statistical confidence intervals associated with them, it is not possible to say that the value of 1.5 for Z is correct within plus or minus X thousandths of a point, at the .05 level of confidence, as is commonly done with parametric statistics, such as reports of opinion polling data. For this reason, separate computer runs were done using high and low estimates of significant variables such as Z (total mortality), F (fishing mortality), and M (natural mortality), paying special attention to the estimates likely to produce the highest SPR value. Effects of Cold Fronts on Catchability and the Effect of Effort-shifting by Fishermen. The more cold fronts which occur during the closure season, the more likely it is that a higher proportion of fish will escape, and conversely if many cold fronts occurred during the open weeks, a larger proportion of fish ready to spawn would be caught. Dr. Mahmoudi ran simulations using data from 17 years on the occurrence of cold fronts, and using what is similar to a random number generator, performed a Monte Carlo simulation for likely occurrences of cold fronts based on the 17 years of data. This data was incorporated into the projections of likely SPRs for different regimes. Net Limitations The Petitioners attack the 600-yard net limitation found in the rule as arbitrary. At the time the rule was being considered, the average net length used in the fishery was about 1,000 yards. The reduction in the maximum net length would have an effect on the catch, but while catch may vary inversely with maximum net length, it does not vary directly with a reduction in net length. Consequently, Dr. Mahmoudi estimated that the 40 percent reduction in the maximum net length would result in an approximately 15 percent reduction in catchability. While this assessment of the effect of the reduction in gear is judgmental rather than statistical, it is reasonable, and not arbitrary, i.e., a judgment unsupported by fact or logic. Regulatory Options For the option proposed of two-week closures during the roe season of October through January of each year, coupled with the 600-yard net limitation and a 500-pound catch limit per vessel, the estimation of SPR mullet would achieve would be from 30 percent to 39 percent. This was the management option discussed at the Commission's August 1992 meeting which led it to the publication of the first iteration of the rule in the August 28, 1992 edition of the Florida Administrative Weekly. After that publication and before the legislative-type public hearing on the rule which had been noticed for adoption, Dr. Mahmoudi ran the DSPOPS biological model to consider four more management options, three of which were suggested by commercial fishermen or their representatives. The option which suggested the highest SPR range was not necessarily the best option, however, because the Commission also had to consider what the escapement rate would be for roe-bearing mullet during the roe season for that option, and how enforceable that option was likely to be. The commercial fishermen made it clear at the pubic hearing that they would prefer a one week open/one week closed regime, as opposed to the published text of the rule which would have closed the fishery for alternating two week periods. In addition, the rule was amended to allow two licensed fishermen on a single vessel to catch 1,000 pounds of mullet per boat trip during roe season. Fishermen believed that by fishing together when fish were more valuable they could lower their expenses and thus achieve a higher profit margin during the open weeks. The Petitioners argue that had the Commission chosen option 1, a 72- hour-per-week closure during roe season, with one 10 day closure, the predicted SPR would be approximately 32.3 percent (with a range of 27.9 to 36.7 percent), while option 4, the proposal for week one/week off closures, would produce an average SPR of 34.2 percent (having a range of 29.8 to 34.2 percent). They see the options as essentially identical in the SPR but would find option 1 much easier to live with, since it would be easier for fish processors to maintain their labor forces with shorter closures. Option 1 would also make it less likely that there would be many periods when no mullet would be available to retail consumers of fresh mullet since with a four-day shelf life, week long closures could produce periods when fresh mullet could not be found and 72-hour closures do not. The longer the closure period, the more likely closures will coincide with cold fronts; it is closures during these frontal periods which permit the escapement of the most fish. The significant differences between option 1 and option 4 are that under option 1, approximately 20 percent more spawning females would survive the roe season, but under option 4 (which is essentially the option the Commission adopted), the increase in the number of spawning females surviving through the roe season would be 48 percent. Option 4 intuitively is a better management option if the goal is to reach spawning potential ratio of 35 percent, the minimum ratio to sustain stock abundance over time. The Commission did adjust the closure period to help the commercial fishermen by switching the closures periods from a two-week on/two-week off regime to a one-week on/one- week off regime. The Economic and Small Business Impact Statement As is often the case with legislation, the goals stated in Section 370.025(2), Florida Statutes (1991), can be harmonized, but only with some difficulty. Section 370.025(2)(b) requires the Commission to base its conservation and management measures upon "the best information available, including biological, sociological, economic and other information deemed relevant by the Commission." Section 370.025(2)(c), Florida Statutes, requires that those measures "shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis." The Petitioners interpret this to require the Commission to achieve its biological goals with the least possible negative impacts on the economics or social conditions in the fishery. This is simply not what the statute says. No doubt those regulated would hope that the Legislature would require the least possible impact on them. But what was enacted was the mandate that the Commission's primary goal is to insure the continuing health and abundance of the species, and after doing so, then to permit reasonable quantities of annual harvest which can be sustained over time. The economic impact statement (EIS) was prepared by an economist, using data from a variety of sources. The statement itself is 16 pages long, it contains three pages of references, five figures to illustrate points, and six pages of tables of data to support its conclusions. Much of the important information was derived from a 1989 study published by the Institute of Food and Agriculture Science at the University of Florida by Robert Degner and others entitled "An Analysis of Potential Regulatory Changes on the Economic Structure of the Eastern Gulf of Mexico Finfish Industry Centered in Florida" (Reference 11). Section 3 of the EIS estimates the economic benefits and costs to persons directly affected by the proposed amendments. It analyzes who are the persons directly affected (Section 3.20); the costs and benefits of having no regulation, of maintaining current regulations, or of imposing the new regulations published in the August 28, 1992 edition of the Florida Administrative Weekly (Section 3.30); the result of changes in net lengths (Section 3.40); the result of the seasonal closures (Section 3.50), and of trip limits (Section 3.60). It contains as well an analysis of the impact of the proposed rules on competition in the open market for employment in Section 4.00, a small business impact statement in Section 5.00, and an analysis of alternatives in Section 6.00. Section 7.00 evaluates costs to the agency and to local governments. Section 8.00 describes the data and methods used by the Commission in making its estimates. The Petitioners presented testimony at final hearing of an economist that many of the views expressed in the economic impact statement are misinterpretations of economic data or are in error. It is essential to remember that the purpose of rulemaking is not to produce assessments of potential economic impact which can withstand the intense scrutiny of a Ph.D. dissertation. Rather, the EIS is required to insure that the agency considers each of the topics required in the statutory economic impact analysis before settling on a policy which will be embodied in its rule, and to give affected persons the opportunity to bring to the attention of the Commission information which could lead to other regulatory choices, if the Commission is persuaded by that economic evidence or argument. Basically, Mr. Murray's testimony at final hearing argued that the Commission's economic impact analysis focused on macro-economic results of the proposed regulations, but not enough on micro-economic results, that is, impacts on individual households and business (Tr. 458). The EIS concentrated on such things as estimates of total dollar losses caused by the regulation proposed. In Section 3.20 the EIS defines the persons directly affected by the rules as "those engaged in the directed harvest of mullet for commercial purposes;" and commercial harvesters (fishermen) were estimated to be between 455 and 3,150 persons, based on estimates in two sources (EIS at 5). The fishermen generally work alone, as two-man crews, and in a few instances in six to eight fishermen groups. These estimates of those directly affected appear to have an adequate basis. While a broader number of people will feel the pinch of the rule (for instance consumers wishing to buy fresh mullet at retail) they are indirectly rather than directly affected, since there is no prohibition against possession of mullet purchased at retail for home consumption during closure periods. The statute requires the analysis of the effect on those persons who will be prevented from harvesting mullet during closure periods and the EIS is not deficient for limiting its analysis to those whose actions would be directly regulated by the Commission. The section of the EIS dealing with the impact on competition and the open market for employment acknowledged that the rule would have seasonal affects on employment and the incomes of persons in roe mullet fishing and processing businesses (EIS Section 4.00 at 9). Most all of the fishermen are small businesses, so there is no effective way to tier the rules to impose lesser restrictions on small businessmen and ultimately achieve the impact the Commission intends to achieve. If small businesses were exempted, no regulation could be effective. EIS has an analysis of the effect on the standing stock of fish and the dollar value of that stock under four scenarios, (1) under equilibrium conditions with no regulation, (2) the then current weekend closure and net size regulations, (3) under the proposed rule as published and (4) under the assumption that the rule would result in an increased recruitment to the fishing stock of an additional 10 percent. The dollar value for the fish used in the these evaluations is probably inappropriate (the value is $6.70 for each fish, which is the ecological value the Department of Environmental Regulation was considering establishing for fish killed through violations of ecologic regulations). What is significant is the comparison of the increase in standing stock in each scenario, as well as the dollar value ascribed to that stock. Commissioners, legislators, or anyone else could interpret the dollar value by making different dollar assumptions for the stocks levels projected. Mr. Murray's written comments pointed out to the Commission that a better value might be 60 per pound. The EIS does provide a means of comparing the benefits of not adopting the rule to the benefits of adopting the rule, at least as far as an increase in the size of the fish stock is concerned. Proper notice of the proposed rule was sent to the Director of Economic Development, the Bureau Chief of Minority Business, and the Small and Minority Business Advocate, as well as to the Joint Administrative Procedure Committee. The Marine Fisheries Commission received neither a response nor an objection from any of these agencies. The Commission amended the proposed rules in significant ways in an attempt to relieve the burdens which the fishermen argued they would suffer if the rules were adopted with no changes. The one week on/one week off closure periods were substituted for the two week closure periods originally proposed, and the trip limit was amended to permit two licensed fishermen to fish in a single boat and bring in 1,000 pounds of fish during the roe season. The agency thus seriously considered alternatives to achieve their management goals while ameliorating the economic impact on those regulated. This shows that the economic information contained in the economic impact statement was seriously considered by the Commissioners. The only economic objection actually voiced to the Commission on September 25, 1992, during public testimony by Mr. Murray was that the EIS did not ascribe sufficient value to mullet flesh taken during roe season, but concentrated on the value of the roe. He informed the Commission that for some sellers, fresh mullet flesh was 80 percent of their sales, and that two week closures could put them out of business. (Ex. 12, at 57-58). This error in the EIS was remedied by Mr. Murray's testimony.
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.
