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 Based upon all of the evidence, the following findings of fact are determined: Background This case involves a challenge by petitioners, Organized Fishermen of Florida, Inc., Southeastern Fisheries Association, Inc., Seafood Consumers and Producers Association, Inc., Glen Black, Ronald E. Black, Henry Crane, Dewey Destin, Cecil Lane, Denise Leek, Gerald Pack, Harold Raffield, Richard Van Munster, D. W. Wilson, Tim Adams, Johnnie Clopton, Geoffery Cox, Mike Davis, Ronnie Day, Tim Dixon, Bob Gill, Tim Gerz, Tim Goodrich, and Mark Taylor (petitioners), to the validity of certain changes to forty-seven rules proposed by respondent, Marine Fisheries Commission (MFC or agency). According to paragraphs 5 through 27 of their amended petition, which are not contested, petitioners are incorporated associations of commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants and retailers, as well as individual commercial fishermen, fish and bait dealers, owners of seafood unloading facilities, processors, packers and producers, all of whom are substantially affected by the proposed rules. As such, they have standing to bring this action. The changes being proposed by the MFC affect various rules in Chapters 46-3, 46-4, 46-23, 46-24, 46-36, 46-37, 46-39, 46-42 and 46-43, Florida Administrative Code. The rule changes were proposed as a result of the adoption by the electorate on November 8, 1994, of Article X, Section 16 to the State Constitution. That section generally (a) prohibits the use of gill or entangling nets to take marine animals, and (b) places limitations on other nets in nearshore and inshore Florida waters. The amendment becomes effective July 1, 1995. On December 30, 1994, the agency published notice in the Florida Administrative Weekly (FAW) of its intent to adopt new rules, amend certain rules, and repeal all or portions of other existing rules. Claiming that these changes were invalid on a variety of statutory grounds, petitioners filed a petition to invalidate proposed rules on January 20, 1995. On March 3, 1995, a notice of changes to proposed rules was published in the FAW advising that, "based on written comment and public testimony" given at public hearings, further changes, albeit minor, were being made to rules 46- 3.008, 46-3.029, 46-4-001, 46-4.002, 46-4.004, 46-4.005, 46-23.003, 46-36.002, 46-37.002, 46-37.006, 46-39.002, 46-42.007, and 46-43.005. By virtue of these changes, petitioners were authorized to file an amended petition which contains essentially the same contentions as were previously pled. They include allegations that the rules are an invalid exercise of delegated legislative authority because (a) the MFC failed to materially follow the applicable rulemaking procedures in Section 120.54(2)(b), Florida Statutes, by failing to provide them a copy of the Economic Impact Statement (EIS) on each of the rules at least 14 days prior to the public hearing, (b) the MFC failed to materially follow the procedures in Rule 46-1.004(4), Florida Administrative Code, by not allowing public testimony at the final rule adoption hearing, (c) the proposed rules have no foundation in statutory law but rather are derived from the Florida Constitution and thus exceed the MFC's delegated legislative authority, (d) the proposed rules are arbitrary and capricious because they are based on law enforcement considerations and lack scientific certainty, (e) the rules conflict with the law implemented, and (f) as to twelve of the rules, the MFC failed to materially follow an applicable rulemaking procedure in Rule 46- 1.004(5), Florida Administrative Code, which requires that, before amending or repealing any rule derived from local laws, a public hearing be held in each affected county. In conjunction with their claims that the rules exceed the agency's rulemaking authority or are arbitrary and capricious because of law enforcement considerations, petitioners have rarely cited the specific language in the rules that they wish to be invalidated. Rather, they suggest that the entire rule is invalid. Therefore, the undersigned has been forced to undertake the tedious and difficult task of attempting to identify the allegedly offensive language in each of the challenged rules. Where the offending language cannot be readily identified, or speculation is required to identify that language, the contention has been rejected. The Rules and Their Genesis As noted above, on November 8, 1994, the electorate adopted Article X, Section 16 of the Florida Constitution. The new section, which is entitled "Limiting Marine Net Fishing," has a stated purpose of "enact(ing) limitations on marine net fishing in Florida waters to protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, overfishing, and waste." More specifically, subsection (b) of section 16 provides as follows: (b) For the purpose of catching or taking any saltwater finfish, shellfish, or other marine animals in Florida Waters: No gill nets or other entangling nets shall be used in any Florida waters; and In addition to the prohibition set forth in 1., no other type of net containing more than 500 square feet of mesh area shall be used in nearshore and inshore Florida waters. Additionally, no more than two such nets, which shall not be connected, shall be used from any vessel, and no person not on a vessel shall use more than one such net in nearshore and inshore Florida waters. Paragraphs 1.- 5. of subsection (c) go on to define the terms "gill net," "mesh area," "coastline," "Florida waters" and "nearshore and inshore Florida waters," while subsection (d) exempts from the application of the provision the "use of nets for scientific research or governmental purposes." Subsection (f) provides that "implementing legislation is not required for enforcing any violations hereof," and that "nothing in this section prohibits the establishment by law or pursuant to law of more restrictions on the use of nets for the purpose of catching or taking any saltwater finfish, shellfish, or other marine animals." Consistent with subsection (f), the legislature has not enacted any implementing legislation for the purpose of enforcing the new amendment. Also, the MFC has cited a proposed effective date for the rules of July 1, 1995, which coincides with the effective date of the new amendment. In the notice published in the FAW, the MFC stated that "the constitutional provision effectively changes the direction of marine fisheries regulation in the state." In general terms, the MFC proposed the numerous changes, additions and repeal of rules to conform the rules "to this new direction," to remove the provisions that were obsolete or in conflict with the new constitutional provision, and to enhance its ability to enforce the new amendment. According to the MFC's executive director, the constitututional amendment "will have a very significant impact on the historical means and methods of commercial, . . . recreational and subsistence fishing in Florida." As specific authority for making every change, the MFC cites Subsection 370.027(2), Florida Statutes, which grants the MFC "exclusive rulemaking authority (in ten areas) relating to marine life," including gear specifications, prohibited gear, closed areas and seasons. As to the rules in chapter 46-3, the MFC also cites as rulemaking authority Section 2, Chapter 83- 134, Laws of Florida, as amended by Chapter 84-121, Laws of Florida. For those rules being modified in chapter 46-4, the MFC additionally relies upon the new constitutional amendment. For the affected rules in chapter 46-23, the agency further identifies as its authority for rulemaking Subsection 370.01(20), Florida Statutes, which authorizes the MFC to include within the term "restricted species" such species of saltwater products as the MFC deems necessary. As the law implemented for all rule changes, the MFC cites Sections 370.025 and 370.027, Florida Statutes. The former statute generally authorizes the MFC to adopt rules to further the state policy of managing and preserving renewable marine fishery resources while the latter statute delegates to the MFC "full rulemaking authority over marine life." The MFC further cites the Florida Constitution as the law implemented for rules in chapter 46-4, and for chapter 46-3 it cites Chapters 83-134 and 84-121, Laws of Florida. In broad terms, the rule chapters in issue cover a wide range of subject matter within the MFC's regulatory jurisdiction over marine fisheries resources, including local laws which have been reenacted as rules governing marine fishing in all or parts of thirteen counties (chapter 46-3), gear specifications and prohibited gear (chapter 46-4), and regulations pertaining to the harvest of spanish mackerel (chapter 46-23), spiny lobster (crawfish) and slipper lobster (chapter 46-24), blackdrum (chapter 46-36), spotted seatrout (chapter 46-37), marine life (chapter 46-42), and bluefish (chapter 46-43). The constitutional amendment does not prohibit the possession of gill or entangling nets. Rather, it prohibits the use of such nets in Florida waters. Thus, it is still permissible for Florida fishermen to use this gear in federal waters which lie outside of Florida waters. In addition, the amendment prohibits the use of any type of net "containing more than 500 square feet of mesh area . . . in nearshore and inshore Florida waters" but contains no limitations for nets below that threshold size. Within the context of petitioners' objections, it is noted that the proposed rule amendments fall into two broad categories: those which delete obsolete or conflicting language in order to conform existing rules to the new amendment, and those which add more restrictive measures than are contained in the new amendment. While petitioners contend that all of the proposed rules are invalid, their principal attack is directed at the more restrictive amendments. For example, the latter group of rules prohibits (a) the possession of a gill net in state waters, (b) the possession of a gill or entangling net aboard a vessel in state waters at the same time a cast net is on the same vessel, (c) the use of two nets from the same vessel in nearshore and inshore waters, (d) the use of purse seine nets under 500 square feet, (e) the use of a bailer net in Volusia County, (f) the use of a trawl for any purpose other than the harvest of shrimp, and (g) the use of purse seines of any size in Escambia and Santa Rosa Counties. None of these activities is prohibited by the new constitutional amendment. Do the Rules Exceed the MFC's Rulemaking Authority? Petitioners contend that all of the proposed rules "have as their exclusive foundation the adoption by referendum of Art. X, Sec. 16 of the Constitution of the State of Florida," and thus they "have no foundation in the criteria established by Ch. 370.025 et seq. for the adoption of rules by the (MFC)." As a consequence, petitioners essentially contend that the MFC has exceeded its delegated legislative authority by relying upon a constitutional provision, rather than statutory law, as the source of authority for its rulemaking. At the same time, they contend that the MFC exceeded its rulemaking authority by adopting a number of rules, all containing more restrictive measures than are found in the constitutional amendment, based solely on law enforcement considerations, rather than on its statutory charge of managing and preserving renewable marine fisheries resources. Similarly, they contend that the more restrictive rules are arbitrary and capricious because they are based on law enforcement considerations. This contention, however, is dealt with in a separate part of this order. As noted earlier, the MFC cites Subsection 370.027(2), Florida Statutes, as the source of its rulemaking authority for each of the rules. That subsection vests in the MFC "exclusive rulemaking authority (in ten areas) relating to marine life," including gear specifications, prohibited gear, closed areas and seasons. For rules in chapter 46-4, the MFC has cited the new constitutional provision as an additional source of authority. Finally, as to the rules in chapter 46-3, the MFC also relies on Section 2 of Chapter 83-134, Laws of Florida, as amended by Chapter 84-121, Laws of Authority. All of the rule changes generally pertain to the areas of gear specifications, prohibited gear, closed areas and seasons, each of which is within the "exclusive rulemaking authority" of the MFC. In this broad sense, they are derived from MFC's statutory authority under Subsection 370.027(2), Florida Statutes, and thus they arguably fall within the scope of the organic law. Petitioners contend, however, that the MFC exceeded its rulemaking authority by making law enforcement considerations a basis, at least in part, for adopting the more restrictive rules. Petitioners assert that there in nothing in Chapter 370, Florida Statutes, which allows the MFC to take into account law enforcement issues when engaging in rulemaking. In this regard, respondent concedes through testimony, as corroborated by documentation received in evidence, that the more restrictive rules were crafted for the sole purpose of "facilitat(ing) the most cost effective and efficient enforcement on the prohibition of use (of prohibited gear)." In other words, while the new amendment did not require these more restrictive terms, the MFC nonetheless proposed the rule changes in order to make the Florida Marine Patrol's (FMP) job of enforcing the ban on prohibited gear less "costly" and more "efficient." One of the statutes relied upon by the MFC as the source of its rulemaking authority is Section 370.027, Florida Statutes. Among other things, subsection (1) thereof provides that "(a)ll administrative and enforcement responsibilities which are unaffected by the specific provisions of this act continue to be the responsibility of the department (of environmental protection)," of which the FMP is a part. Although Section 370.028, Florida Statutes, provides that "any law enforcement officer certified pursuant to s. 943.13" shall have the responsibility of enforcing the rules of the MFC, it is clear that the FMP has the primary responsibility of enforcing the new restrictions imposed by the constitutional amendment. The principal statutory charge of the MFC is to manage and preserve renewable marine fisheries resources. The MFC has no specific statutory authority to enact rules solely for the purpose of allowing more "cost- efficient, effective" enforcement of its regulations by another agency, and its executive director readily acknowledges that the agency has no role in enforcing its regulations from a law enforcement perspective. The purpose of the constitutional amendment is to protect marine animals from "unnecessary killing, overfishing and waste." By its own terms, then, the intent of the amendment is to preserve and protect Florida's existing and future fishing stocks. The amendment should achieve its goal, for the record shows that, once the amendment becomes effective, there should be a significant reduction in fishing mortality, with a concomitant rise in fishing stocks. Under Section 370.025, Florida Statutes, the MFC is charged with a similar responsibility of managing and preserving marine fishery resources. The evidence clearly shows that the more restrictive rules will have no meaningful effect on fishing mortality. That is to say, this category of rules has been proposed, not to further the MFC's charge of managing and preserving marine fisheries resources, but rather for the sole purpose of assisting another agency (the FMP) in enforcing the ban on the use of gill or entangling nets in Florida waters, and the use of certain nets in nearshore and inshore waters. As such, the more restrictive rules have no foundation in statutory law, and they exceed the MFC's rulemaking authority. For this reason, the following proposed rules or parts thereof are deemed to be an invalid exercise of delegated legislative authority: the last sentence in 46-3.008(3)(c)3.; 46-3.028(3); 46-3.029(3); 46- 3.031(3); 46-3.032(3)(a); 46-3.034(3); 46-3.035(3); 46-3.037(3); 46-3.038(3); 46-4.001(1)(b); the sentence in 46-4.001(1)(c)3. which reads as follows: "(t)he exceptions provided in this paragraph are not available to a person aboard any vessel on which is also possessed a cast net"; the word "trawl" in 46- 4.001(2)(e); 46-4.001(2)(c)5.; 46-4.001(3); 46-4.004; 46-4.005(2)(a)3.; 46- 23.002(2); the first sentence in 46-23.003; 46-24.007(5); 46-37.002(2); 46- 37.006(2) and (3); 46-39.002(3); and 46-42.007(1)(b) and (c). Because the record supports a finding that the changes to rules 46-4.007, 46-4.015, 46- 4.017, 46-36.002, 46-39.011, 46-39.012, and 46-43.005 do not impose more restrictive conditions than are found in the new amendment, and are derived from appropriate statutory law, the contention that they exceed the MFC's rulemaking authority is deemed to be without merit. Are the Rules Arbitrary and Capricious? In their amended petition, petitioners also contend that all of the rules affected by these changes are arbitrary and capricious. In this vein, they contend that the rules "are not grounded in logic and reason and are not supported by appropriate scientific certainty." They also claim that where the MFC has exceeded the mandate of the constitution, the rules are arbitrary and capricious in the sense they are not grounded on a rational or logical basis since they stem from MFC's desire to ease the FMP's job in enforcing the new amendment rather than its desire to further the goal of managing and preserving the marine fishery stocks in Florida. The record on which the MFC based its changes was derived in part from public hearings conducted in three locations around the state. At those hearings, it heard comment from its staff, numerous affected persons, including those who oppose and support the proposed rules, as well as FMP representatives who are charged with the responsibility of enforcing the new law. In addition, during the rulemaking process, MFC and FMP staffers consulted with the State of Texas, which has a similar ban on the use of entangling net gear, to gain an insight on any enforcement problems which that state experienced. Thereafter, the MFC staff prepared an analysis of the public comment, together with their own recommendations, which were considered by the MFC prior to its final decision. Copies of the staff reports and analyses have been made a part of this record. The more restrictive rules and law enforcement considerations Before adopting any rule, the MFC says it always consults with, and obtains advice from, the FMP regarding enforcement implications. Thus, in crafting its more restrictive rules, the MFC relied wholly upon the recommendation of the FMP, which has the responsibility of enforcing the law. The FMP in turn relied upon the experience of the State of Texas, which first imposed a statutory ban on the use of nets in 1988, and later imposed a statutory ban on the possession of nets in order to provide more effective enforcement. Based on advice from the FMP that, without more restrictive measures, it would experience the same problems as did Texas, the MFC decided that a ban on the possession of nets would be necessary in order to permit a more efficient enforcement of the new amendment. Indeed, it did so even though the FMP's chief law enforcement officer acknowledged that the FMP can enforce the new constitutional amendment without the MFC adopting any new rules. Except for this advice from the FMP during the rulemaking process, there is no other basis in fact or logic to support the broad and sweeping revisions. Therefore, while the more restrictive rules are designed to ease the job of law enforcement officials, and thus in that respect they have some logical and rational basis from a law enforcement perspective, they nonetheless have no correlation to the MFC's task of managing and preserving marine fisheries resources. Given this lack of a factual and logical predicate, the following proposed rules or parts thereof are deemed to be an invalid exercise of delegated legislative authority: the last sentence in 46-3.008(3)(c)3.; 46-3.028(3); 46-3.029(3); 46-3.031(3); 46-3.032(3)(a); 46-3.034(3); 46-3.035(3); 46-3.037(3); 46-3.038(3); 46- 4.001(1)(b); the sentence in 46-4.001(1)(c)3. which reads as follows: "(t)he exceptions provided in this paragraph are not available to a person aboard any vessel on which is also possessed a cast net"; the word "trawl" in 46- 4.001(2)(e); 46-4.001(2)(c)5.; 46-4.001(3); 46-4.004; 46-4.005(2)(a)3.; 46- 23.002(2); the first sentence in 46-23.003; 46-24.007(5); 46-37.002(2); 46- 37.006(2) and (3); 46-39.002(3); and 46-42.007(1)(b) and (c). Because the record supports a finding that the changes to rules 46-4.007, 46-4.015, 46- 4.017, 46-36.002, 46-39.011, 46-39.012, and 46-43.005 do not impose more restrictive conditions than are found in the new amendment, the contention that they are arbitrary and capricious on account of law enforcement considerations is deemed to be without merit. The other rules Petitioners also contend that the rules are arbitrary and capricious because they "are not grounded in logic and reason and are not supported by appropriate scientific certainty." Each of the affected chapters will be discussed separately. Chapter 46-3 Chapter 46-3 contains provisions governing fishing in Lee, Volusia, Collier, Duval, Escambia, Santa Rosa, Hernando, Manatee, Martin, Pinellas, Sarasota, Walton and Brevard Counties. When the MFC was statutorily created as a part of the Department of Natural Resouces (DNR) in 1983, there were numerous local laws in existence having special application to these counties. The law which created the MFC directed that these local laws be repealed and reenacted as DNR rules. Some of these were codified in chapter 46-3. As changes to organic law occur, the MFC must logically amend these "local" rules to conform them to statewide requirements. According to the notice published in the FAW, the "purpose of these rule amendments (in chapter 46-3) is to conform the Marine Fisheries Commission's rules readopting portions of various special acts (local laws) to this new direction by deleting numerous local netting regulations and amending other provisions relating to gear still allowed by the constitutional provision." The notice added that "the effect of this rulemaking will be to eliminate many obsolete local rules and implement the constitutional provision's uniform regulatory regime." Affected by the proposed changes are rules 46-3.002, 46-3.008, 46- 3.025, 46-3.027, 46-3.028, 46-3.029, 46-3.031, 46-3.032, 46-3.034, 46-3.035, 46- 3.037, and 46-4.038. Each of these rules contains requirements unique to a particular county or waterbody within a county. They include seasonal restrictions on the use of nets other than cast nets and bait seines (Caloosahatchee River in Lee County, rule 46-3.002); restrictions on the use of gill nets (Volusia County, rule 46-3.008); minimum mesh size for gill nets and other gear (Lee, Collier and Duval Counties, rules 46-3.025 and 46-3.027); minimum mesh size for gill or trammel nets, a special management regime for purse seine harvest of menhaden in inside waters, and a minimum length for seines (Santa Rosa and Escambia Counties, rule 46-3.028); minimum mesh sizes for gill or trammel nets and maximum lengths for nets (Hernando County, rule 46- 3.029); restrictions on net fishing and a minimum gill net mesh size (Manatee River and Terra Ceia Bay in Manatee County, rule 46-3.031); restrictions on allowable nets and traps for inside waters (Martin County, rule 46-3.032); minimum mesh size for gill and trammel nets (Pinellas County, rule 46-3.034); miminum mesh size for gill and trammel nets (Sarasota County, rule 46-3.035); minimum seine length (Walton County, rule 46-3.037); and restrictions on the use of nets and seines (Brevard County, rule 46-3.038). All of the rules in chapter 46-3 have been amended in some respect to delete language made obsolete by the constitutional amendment. More specifically, the existing rules provide an array of requirements relative to the use of gill or entangling nets in the various counties which are clearly at odds with the amendment. Wherever this language appears, or where other obsolete local rules are present, they have been deleted since the use of such gear will no longer be allowed anywhere in the state after July 1, 1995. On this basis alone, and to the extent the changes do nothing more than delete obsolete or conflicting language, it is found that the changes in rules 46- 3.002, 46-3.008, 46-3.025, 46-3.027, 46-3.028, 46-3.029, 46-3.031, 46-3.032, 46- 3.034, 46-3.035, 46-3.037 and 46-4.038 have a factual and logical basis and are not arbitrary and capricious. Chapter 46-4 This chapter is entitled "Gear Specifications and Prohibited Gear." As stated in the FAW, the purpose of the changes is "to implement new prohibitions and specifications to enhance enforcement of the (constitutional) amendment, and provide guidance to Florida citizens in complying with the requirements of the new provision." In new rule 46-4.001, the FMC prescribes new limitations on marine net fishing. More specifically, it prohibits the use of any gill or entangling net to harvest any marine species in state waters, prohibits possession of nets on the waters of the state except for those persons who have a legitimate need for legal harvest elsewhere, prohibits the use of any net in nearshore or inshore Florida waters to harvest marine species other than certain equipment of specified dimension, prohibits the use of any purse seine in nearshore and inshore Florida waters, and provides an exception for nets fished pursuant to a special activities license issued for public or scientific purposes. Rule 46-4.002, which contains gear definitions, provides new or amended definitions of the terms "entangling net," "gill net," and "mesh area," and repeals the definition of an "airboat." At the same time, rule 46-4.0025, which contains other definitions, provides new or amended definitions for the terms "coastline," "Florida waters," "harvest," and "nearshore and inshore Florida waters." According to the FAW, these changes make the definitions "consistent" with the new constitutional amendment. In proposed rule 46-4.004, as later modified in the notice of changes to proposed rules, the MFC expands the scope of the rule banning the use of certain gear with power to include nearshore and inshore waters. As to rule 46-4.005, it is unclear from the record whether the changes regarding the issuance of a special activities license first proposed in paragraph (2)(a)3. were later eliminated by the notice of changes to proposed rules. Assuming they were not, the revisions to the remaining part of the rule simply substitute the word "governmental" for "public" and redesignate the Department of Natural Resources as the Department of Environmental Protection. The MFC has also proposed to repeal rules 46-4.006, 46-4.007(1)and (3), 46-4.008(1)-(4), 46-4.0081, 46-4.0085, 46-4.015(1), 46-4.016, and 46- 4.017(1) and (5). The MFC says these changes are required in order to eliminate obsolete language, some of which is derived from special laws. Finally, the minor changes in rules 46-4.013 and 46-4.014 prohibit the use of spotter planes in harvesting Spanish mackerel and prescribe gear specifications for using purse seines in certain waters of Pinellas, Hillsborough and Manatee Counties, respectively. These changes have been made in order to conform the rules to what the MFC perceives to be existing law. Where the above revisions simply delete obsolete or conflicting language, or make other changes which are not more restrictive in nature, as described in finding of fact 24, there is a sufficient record basis to support a finding that the amendments are grounded in fact and logic and are thus not arbitrary and capricious. Chapter 46-23 This chapter governs the harvest of fishing for Spanish mackerel. By the rule changes, the MFC proposes to prohibit the commercial harvest of this species of fish in state waters by gill nets after July 1, 1995, and to allow only hook and line gear to be thereafter used. Specific changes have been made to rules 46-23.001, 46-23.002, 46- 23.003 and 46-23.004 to eliminate all reference to gill nets, and to describe other restricted activities relating to this species. To the extent these changes do not create more restrictions than are found in the new amendment, as more specifically described in finding of fact 24, they conform to the new law and will ease the fishing pressure exerted on Spanish mackerel. Because the changes in chapter 46-23 enhance the state policy of preserving marine fishery resources, there is insufficient evidence to support a finding that they are arbitrary and capricious. Chapter 46-24 Chapter 46-24 governs the harvest of Spiny Lobster (Crawfish) and Slipper Lobster. The only rule affected by the changes is rule 46-24.007, which has been amended to specify the maximum size of bully nets and hoop nets used in the spiny lobster fishery. More specifically, the changes in subsection (5) of the rule limit bully nets to a diameter no larger than 3 feet while hoop nets are limited to a diameter no larger than 10 feet. Because the only change has been previously found to be arbitrary and capricious, the additional argument that the rule lacks "scientific certainty" need not be addressed. Chapter 46-36 This chapter, which relates to Black Drum, is amended in one respect by changing language in rule 46-36.002(2) to delete reference to nets and seines in the definition of the term "commercial harvest." Because the change is necessary to conform the rule with the new amendment, and there will be no appreciable change in the number of fish that can be caught, there is a sufficient factual predicate to support the change. Chapter 46-37 This chapter specifies regulations pertaining to the harvest of spotted seatrout. Only two rules are affected, those being rules 46-37.002 and 46-37.006. According to the FAW, the effect of the changes will be to "clearly indicate that hook and line gear is the only allowable gear for the harvest of spotted seatrout and that spotted seatrout harvest in excess of recreational bag limits will be considered commercial harvest after (the constitutional amendment) become(s) effective July 1, 1995." The only change in rule 46-37.002 is found in section (2), which defines the term "harvest for commercial purposes." There, the MFC has proposed to delete reference to the use of nets. In addition, sections (2) and (3) of rule 46-37.006 have been amended to delete all gill and trammel net mesh size requirements. Since both changes exceed the constitutional mandate and are based solely on law enforcement considerations, and have already been determined to be arbitrary, it is unnecessary to address petitioners' remaining contentions. Chapter 46-39 Chapter 46-39 governs the harvest of mullet, which has traditionally been a gill net fishery. All or parts of rules 46-39.002, 46-39.0035, 46- 39.005, 46-39.006, 46-39.007, 46-39.008, 46-39.009, 46-39.010, 46-39.011 and 46- 30.012 have been amended or repealed to conform these rules to the new amendment. More specifically, the species will now be available to a limited extent only through the use of cast nets, and thus all provisions pertaining to gill net specifications, spotter planes, daily vessel limits, and weekend closures and other closed seasons have been deleted. To the extent these rules do not exceed the constitutional mandate, as previously discussed, they are based on facts and logic and are not arbitrary or capricious. Chapter 46-42 This chapter pertains to the broad subject of "Marine Life." As stated in the FAW, the purpose of the single rule amendment is to "specify the maximum size of barrier nets and drop nets used to harvest tropical fish." Rule 46-42.007 provides gear specifications for the harvest of tropical fish. Paragraphs (1)(b) and (c) have been amended to establish a maximum length for barrier nets of 60 feet, with a maximum depth of 8 feet, and a maximum dimension of 12 feet for drop nets. Because these changes have been previously found to be arbitrary and capricious by virtue of being based solely on law enforcement considerations, it is unnecessary to determine if they are arbritrary and capricious for other reasons. Chapter 46-43 The final chapter being amended governs the bluefish harvest and changes one rule "to provide gear specifications to apply to the commercial harvest of bluefish in the federal Exclusive Economic Zone (EEZ) waters adjacent to east coast Florida waters in the Atlantic Ocean, in accordance with the Fishery Management Plan for the Bluefish Fishery . . . as implemented through federal rules." Specifically, subsection (2) of rule 46-43.005 has been amended to delete references to current statewide gear rules and provide new net gear requirements applicable to commercial bluefish harvest in federal waters adjacent to Florida east coast waters, including tending requirements, net marking specifications, maximum net length and minimum mesh size, and soak requirements. The new language also allows only one net to be fished at a time from a single vessel, but allows possession of a maximum of two nets, including the one being fished. Finally, the term "net" is defined to exclude purse seines. These changes apply only to the bluefish fishery in adjacent federal waters which are subject to Florida rulemaking by virtue of an interstate compact. The proposed changes have been approved by the Atlantic States Marine Fisheries Commission, are necessary in order for Florida to meet its state quota under the compact, and have a basis in fact and logic. Accordingly, the rule changes are not found to be arbitrary or capricious. Do the Rules Conflict with the Law Implemented? Petitioners further allege that the proposed rules conflict with the law implemented. More specifically, they have alleged that the proposed rules do not conform with the criteria established in Section 370.025, Florida Statutes, one of the two statutes relied upon by the MFC as the law implemented for all rules. Subsection (1) of the law declares that the state policy of managing and preserving its renewable marine fishery resources shall be based upon the best available information, emphasizing protection and enhancement of the marine and estuarine environment in such a manner as to provide for optimum sustained benefits and use to all the people of this state for present and future generations. Subsection (2) requires that all rules adopted by the MFC relating to saltwater fisheries be consistent with the following standards: The paramount concern of conservation and management measures shall be the continuing health and abundance of the marine fisheries resources of this state. Conservation and management measures shall be based upon the best information available, including biological, sociologi-cal, economic, and other information deemed relevant by the commission. Conservation and management measures shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis. When possible and practicable, stocks of fish shall be managed as a biological unit. Conservation and management measures shall assure proper quality control of marine resources that enter commerce. State marine fishery management plans shall be developed to implement management of important marine fishery resources. Conservation and management decisions shall be fair and equitable to all the people of this state and carried out in such a manner that no individual, corporation, or entity acquires an excessive share of privileges. Federal fishery management plans and fishery management plans of other states or interstate commissions should be considered when developing state marine fishery management plans. Incon- sistencies should be avoided unless it is determined that it is in the best interest of the fisheries or residents of this state to be inconsistent. To show conformity with the above standards, the MFC staff prepared a document entitled "Adherence to Commission Standards" for each of the affected chapters. These documents, which are a part of the rule file, are found in respondent's exhibit 1 received in evidence, and they were considered by the MFC as a part of the rulemaking process. They provide an analysis on how the proposed rules comply with the standards enumerated in subsection 370.025(2), to the extent such standards are applicable. This analysis was not credibly contradicted at hearing. In their proposed order, petitioners focus principally on the rules in chapter 46-4, which relate to gear standards and specifications, and contend these rules are illustrative of the fact that none of the rules are consistent with the statutory standards. As to whether the changes in all of the chapters are consistent with the criteria in Subsection 370.025(1), Florida Statutes, the rule changes were based on oral and written comments from laypersons, law enforcement personnel and experts and thus were based on the best available information. In addition, many of the changes were necessary by virtue of the constitutional amendment, and to this extent, they protect and enhance the marine environment for the benefit of all present and future generations. Accordingly, they are found to be consistent with the criteria in Subsection 370.025(1), Florida Statutes. As to whether the changes in chapter 46-4 are consistent with the standards in Subsection 370.025(2), Florida Statutes, the MFC's analysis indicates they "reduce fishing mortality on most inshore finfish species" and do not "jeopardize the health or abundance of inshore finfish stocks" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], eliminate obsolete provisions and "allow for alternative gear fisheries to develop after the new constitutional provision becomes effective" [paragraph (c)], "complement and affect the provisions of already developed management plans" and "maintain consistency" [paragraph (f)], "apply equally to all persons" [paragraph (g)], and "are consistent as possible with federal management plans" [paragraph (g)]. The standards in paragraphs (d) and (e) do not apply. Given these considerations, it is found that the rule changes in chapter 46-4 are consistent with the criteria and standards in Subsection 370.025(2), Florida Statutes. In a similar vein, the rule changes in chapter 46-23 "affect a reduction in fishing mortality on Spanish mackerel in state waters" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], allow the species to "continue to be available to commercial harvesters in state waters with hook-and-line and cast net gear" [paragraph (c)], conduct the management of the species "on the unit stock" [paragraph (d)], amend the fishery management plan [paragraph (f)], "apply equally to all persons" [paragraph (g)], and are "consistent as possible with federal management plans" [paragraph (h)]. The standard in paragraph (e) does not apply. As such, the changes are consistent with the statutory criteria. With respect to the changes in chapter 46-37, they "affect a reduction in fishing mortality on spotted seatrout in state waters" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], allow the species to "continue to be available to commercial and recreational fishers with hook-and-line gear" [paragraph (c)], conduct "the managment of spotted seatrout . . . on the unit stock" [paragraph (d)], amend the fishery managment plan [paragraph (f)], "apply equally to all persons seeking to harvest spotted seatrout" [paragraph (g)], and are not "inconsistent with recommended management plans initiated by the interstate commissions" [paragraph (h)]. The standard in paragraph (e) does not apply. On this basis, the rule changes are found to consistent with the standards. As to the consistency of the changes in chapter 46-39, they "affect a substantial reduction in fishing mortality on mullet in state waters" [paragraph (a)], "implement and aid enforcement of the recently adopted revisions to the Florida Constitution" [paragraph (b)], make "available to harvesters with cast net, and to a much lesser extent, hook-and-line gear" and "aid in the development of alternative gear fisheries for mullet" [paragraph (c)], continue to conduct the management of mullet on the unit stock [paragraph (d)], amend the fishery management plan [paragraph (f)], and "apply to anyone attemting to harvest mullet" [paragraph (g)]. The standards in paragraphs (e) and (h) do not apply. Accordingly, the rule changes are found to be consistent with the statutory standards. The revisions in chapter 46-43 "will not change the substantial conservation measures heretofore in place" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], "continue the current regulatory regime in place in the bluefish management plan" [paragraph (c)], allow the management of Atlantic bluefish to be continued to be conducted on the basis of the U. S. Atlantic coast unit stock" [paragraph (d)], amend the fishery management plan [paragraph (f)], "continue the regulatory regime currently in place and allow a fair and equitable distribution of the available bluefish harvest among commercial and recreational fishers" [paragraph (g)], and "are consistent with federal management plans" [paragraph (h)]. The standard in paragraph (e) does not apply. Again, it is found that the rule changes are consistent with the statutory standards. G. Were Procedural Requirements Met in Adopting the Rules? Petitioners complain that the MFC materially failed to follow the applicable rulemaking procedures set forth in Section 120.54, Florida Statutes, in three respects. First, it is alleged that the MFC failed to provide petitioners with a timely draft of the EIS prepared for each of the rule changes. Second, petitioners contend that the MFC erred by refusing to take public comment at the final adoption meeting in violation of Rule 46- 1.004(4)(b), Florida Administrative Code. Finally, petitioners argue that the MFC amended or repealed rules derived from local laws without holding a mandatory meeting in each affected county. These contentions will be considered separately below. Was the EIS submitted on a timely basis? The Organized Fishermen of Florida, Inc., Southeastern Fisheries Association, Inc., and Seafood Consumers and Producers Association, Inc. are organizations representing at least one hundred persons. Under Section 120.54(2)(b), Florida Statutes, an agency must prepare an EIS if within 14 days after the publication of the notice provided pursuant to paragraph (1)(c) or, if no notice of rule development is provided, within 21 days after the notice required by paragraphs (1)(a) and (b), a written request is filed with the appropriate agency by . . . an organization representing at least 100 persons. The same statute goes on to provide in part that: If an economic impact statement is prepared pursuant to paragraph (2)(b), at least 14 days prior to any public hearing on a proposed rule held pursuant to subsection (3), the agency shall make a draft copy of the economic impact statement available to any person who requests a copy of the statement. On January 20, 1995, or just four days before the first public hearing, petitioners filed with the MFC a written request for preparation of an EIS on each of the proposed rules. They also asked that they be provided with a copy of a draft of the statement. Notwithstanding this request, the hearing on the proposed rules was held on January 24-26, 1995, as previously scheduled. The official record of the rulemaking proceedings was closed on February 9, 1995. On the same day, petitioners were provided with a draft EIS. There is no evidence as to how petitioners were prejudiced in the conduct of this proceeding by virtue of not receiving a copy of the EIS prior to the public hearings. Indeed, petitioners never made the MFC aware of any specific concerns regarding the EIS, and they made no claim that the EIS itself is deficient. Therefore, even if an error in procedure occurred, it was harmless and did not impair the fairness of the proceeding. Did the MFC improperly refuse to hear public comment? Rule 46-1.004(4)(b), Florida Administrative Code, provides that during a MFC rulemaking hearing any person present shall be heard on any issue under consideration, subject to control by the presiding officer of irrelevant, repetitious or unduly extended comment. The rules under consideration here were revised and approved for adoption at a MFC meeting held on February 16, 1995. It is undisputed that no public comment was permitted at that meeting. Prior to the final adoption meeting, the MFC conducted public hearings on the proposed rules in Lee, Orange and Leon Counties. The MFC general counsel was appointed as a hearing officer to conduct those meetings, and at least one commissioner attended each meeting. Members of the public who attended the meetings were allowed to offer both written and oral comment on the rules. The meetings were not transcribed, but they were videotaped in order to preserve the record. After the meetings were completed, the MFC general counsel prepared a summary of the public comment and a staff recommendation for use by the MFC at its regularly scheduled meeting on February 16, 1995. Since three public hearings had already been conducted, including one in Tallahassee, the MFC opted to dispense with public comment at the February 16 meeting and to deliberate and vote on the proposed rule changes. It is undisputed that, prior to voting on the changes, the commissioners who had not attended the public hearings did not watch the videotaped record. Instead, they relied upon the summary of comments prepared by their staff. Even if the MFC's decision to dispense with public comment was in violation of rule 46-1.004(4)(b), there is no evidence as to how petitioners were prejudiced. This is especially true since a public hearing had already been held in Tallahassee less than a month earlier, at which time public comment was invited. Therefore, if an error in procedure occurred, it was not material, and it did not impair the fairness of the proceeding. Were hearings required in each affected county? Each of the twelve affected rules in chapter 46-3 is derived from local laws identified in Chapter 83-134, Laws of Florida, as amended by Chapter 84-121, Laws of Florida. Although these rules affect Lee, Volusia, Collier, Duval, Escambia, Santa Rosa, Hernando, Manatee, Martin, Pinellas, Sarasota, Walton and Brevard Counties, a public hearing was held only in Lee County. Rule 46-1.004(5), Florida Administrative Code, provides in relevant part as follows: (5) Before adopting any rule amending or repealing any rule derived from local laws identified in Section 2(5)(a), (b), or (c) of Ch. 83-134, Laws of Florida, . . . the Commission or, at the direction of the Commission, one or more Commissioners or staff members shall hold a public hearing. When acting on rules derived from such local laws, a hearing shall be held in the county or counties affected. (emphasis added) This rule tracks language in Section 2(5)(d) of Chapter 83-134, Laws of Florida, which requires the MFC to "hold a hearing in the affected county or counties" before amending or repealing any rules derived from local law. Petitioners contend that the foregoing rule and law were violated since a hearing was held in only one of the thirteen affected counties. As noted earlier, when the MFC was created by Chapter 83-134 as a part of the DNR, numerous local laws were in effect regulating fishing practices on a county by county basis. Section 2(5)(a) of Chapter 83-134 provided as follows: Effective upon the appointment of the commission, the following local laws pertaining to saltwater fishing, to the extent they relate to those areas specified in subsection (2), shall be repealed and shall continue as rules of the department: Chapter 83-134 was amended by Chapter 84-120, Laws of Florida, which, among other things, repealed additional local laws but provided that they continue in effect as DNR rules. It is a commonly recognized fact that in 1993 the DNR was abolished through a merger with the Department of Environmental Protection (DEP). Respondent takes the position that when the DNR was merged with the DEP, the DNR rules were repealed and readopted as MFC rules, and thus the present rules found in chapter 46-3 are no longer "derived from local laws." As a consequence, the MFC contends that a public hearing in each affected county is not required. The history notes to the challenged rules reflect that they were amended at various times in 1992, or before the merger of DNR and DEP occurred. No amendments have occurred since that time. Whether the 1992 changes constitute the readoption that the MFC relies upon is not apparent from the record. In any event, the rules are clearly derived from local laws, and thus they are subject to the requirements of Chapter 83-134, Laws of Florida, and Rule 46-1.004(4)(b) Florida Administrative Code. This finding is buttressed by the fact that in the FAW, the MFC describes its changes in chapter 46-3 as being for the purpose of conforming its rules "readopting portions of various special acts (local laws)" to the constitution. Moreover, the rules themselves contain language that the MFC intends "to readopt certain provisions of (the local law)." Even though the requirement in chapter 83-134 was not followed, there was no showing by petitioners that they were prejudiced by this error or that the fairness of the proceeding was impaired. Therefore, the error is deemed to be harmless. G. Do the Rules Conflict with the Constitution? Although petitioners' amended petition does not contain the allegation that the rules conflict with the new constitutional provision, in the main body of their proposed order they argue that eighteen rules "enlarge, modify or contravene the specific provisions of the constitution implemented." In contrast, the appendix to their proposed order cites twenty, rather than eighteen, rules which are allegedly constitutionally infirm. More specifically, petitioners complain that rules 46-3.008, 46-3.029, 46-3.032, 46-4.001, 46-4.005, 46-4.007, 46-4.015, 46-4.017, 46-23.001, 46- 23.002, 46-23.003, 46-24.007, 46-36.002, 46-37.002, 46-37.006, 46-39.002, 46- 42.007 and 46-43.005 make certain conduct unlawful even though such conduct is permissible under Section 16, Article X. By way of example, the rules make the possession (as opposed to the use) of gill or entangling nets unlawful even though the possession of such equipment is not barred by the constitutional amendment. Assuming, but not conceding, that the constitutional claim has been timely raised, Subsection (f) of Section 16, Article X provides in part that "nothing in this section prohibits the establishment by law or pursuant to law of more restrictions on the use of nets for the purpose of catching or taking any saltwater finfish, shellfish, or other marine life." (Emphasis added) Since the changes to the rules under challenge arguably relate to the "use of nets," and they have been made "pursuant to law," that is, pursuant to MFC's statutory rulemaking authority, the cited rules, even if more restrictive than the amendment, do not contravene the constitutional provision.
The Issue The issue is whether Petitioner is entitled to additional compensation for fishing nets that he sold to the State of Florida under the Net Buy-Back Program.
Findings Of Fact Petitioner is a commercial fishers who is an affected person under the Florida Net Ban, which is set forth in the Florida Constitution, Article X, Section 16. Section 370.0805(5), Florida Statutes, which became effective on July 1, 1995, establishes the Net Buy-Back Program. The program enables eligible persons previously engaged in the commercial fishing industry to sell fishing nets to the State of Florida. The Legislature appropriated $20 million to the Seafood Workers Economic Assistance Account (the Account) to fund the payments authorized in Section 370.0805, as well as agency expenses in administering the program. Section 370.0805(3)(b) directs Respondent to purchase nets "according to the availability of funds on a first-come, first-served basis determined by the date of receipt of each completed application." By Net Buy-Back Application signed on July 5, 1995, and filed with Respondent on the same day, Petitioner applied to sell nets to the State of Florida. His application form is completely filled out and shows two saltwater-product license numbers, one for an individual and one for a vessel. The application form calls for the applicant to list the "TOTAL NUMBER OF YARDS OF EACH NET TYPE THAT YOU INTEND TO SELL." The form lists five categories of nets: gill (49 meshes or less); gill (50 meshes or more); beach, purse, seine; trawl; and trammel. The former gill net is a shallow-water gill net. The latter gill net is a deepwater gill net. Petitioner listed on his application 800 yards of shallow-water gill nets, 4600 yards of deepwater gill nets, two trawls, and 600 yards of trammel nets. After checking a data base maintained by the Department of Environmental Protection, Respondent found only one of Petitioner's two listed saltwater-product licenses. Respondent thus processed Petitioner's application as though he had only one license. By letter dated August 8, 1995, Respondent advised Petitioner that he was eligible "to receive compensation for 8 nets" and set an appointment for him to turn in the nets on September 6, 1995. On September 6, 1995, Petitioner appeared at the appointed site with nets to sell to the State of Florida. He delivered 4800 yards of seine nets, for which he received a voucher for $27,998.40. Prior to paying the voucher, Respondent discovered that the Account might be exhausted before Respondent had paid for all of the nets that fishers might lawfully seek to sell to the State. Respondent thus dishonored Petitioner's voucher, as well as the vouchers held by numerous other fishers, while Respondent considered changes in its administration of the program. The purpose of the Net Buy-Back Program, as provided by Section 370.0805(5)(a), Florida Statutes, was to allow, "[a]ll commercial saltwater products licensees and persons holding a resident commercial fishing license" to apply to Respondent "to receive economic assistance to compensate them for nets rendered illegal or useless by the constitutional limitation on marine net fishing." The emphasis was on economic assistance. Section 370.0805(5)(a) authorizes Respondent to make payments only "in nonnegotiable amounts not intended to reflect the actual value of the nets." Section 370.0805(5)(a) assigns payment amounts of $3500 for beach, purse, or seine nets of at least 600 yards in length; $500 for trawls and shallow-water gill nets of at least 600 yards in length; and $1000 for trammel nets of at least 600 yards in length and deepwater gill nets of at least 600 yards in length. Section 370.0805(5)(a) states that, except for trawls, nets of less than 600 yards in length shall be "valued proportionately." Section 370.0805(5)(c) limits the number of nets that a commercial fishers could sell, based on his annual earnings from the sale of eligible saltwater products. The limits range from four nets, for licensees whose annual earnings average from $2500 to $4999 in earnings, to ten nets, for licensees whose annual earnings average more than $30,000. Respondent relied on another data base from the Department of Environmental Protection to determine the average yearly earnings of applicants. The Department of Environmental Protection maintains records of each licensee's trip tickets, which disclose earnings. The only other limit in the statute as to the type and number of nets to be purchased is that, under Section 370.0805(5)(d), "[n]o licensee may be paid for more than two. . . trawls." Respondent reviewed the applications that it received from the initial 951 fishers who filed applications. This was a large majority of the 1104 fishers who would eventually sell their nets to the State under the Net Buy-Back Program. The purpose of the review was to determine whether the funds in the Account would be sufficient to cover the nets that the State was to be purchasing. Respondent found from the applications that seine nets represented only about five percent of the nets that fishers intended to sell to the State. Relying on this information, Respondent calculated the potential encumbrance of $6.5 million on the Account, based on an average payment of $1000 per net. Applications contained few seine nets because commercial fishers initially resisted selling their best nets to the State of Florida. The Net Buy-Back Program provided for payment of only $3500 per seine net, even though many seine nets were worth $10,000. And commercial fishers were optimistic at first that their legal challenges to the constitutional amendment would succeed. Applying liberal eligibility criteria, such as calculating the number of nets that each applicant could sell based on the number of licenses that he held, Respondent raised its estimate of the potential encumbrance to $8.775 million. But in recalculating the potential encumbrance on the Account, Respondent still assumed that the average payment per net would be $1000. Respondent began receiving nets on August 3, 1995. Through the first three weeks of August, Respondent purchased seine nets in roughly the same five-percent mix that it had used in calculating the potential encumbrances on the Account. After this point, however, fishers started turning in much larger numbers of seine nets than they had listed in their applications. During this first phase of the program, Respondent paid fishers for whatever types of nets they presented at their net buy-back appointment. Respondent would pay a fishers entitled to sell eight nets for seine nets if he turned in seine nets, even though he had listed only gill nets on his application. This policy jeopardized the solvency of the Account because the payments to fishers turning in all seine nets were 3.5 times greater than the figures that Respondent had used in calculating the potential encumbrance on the Account. From the fishers's perspective, the program acquired an element of chance, as applicants with earlier appointment times-which did not necessarily correspond with earlier-filed applications-netted fine catches of economic assistance at the expense of their counterparts, upon whom destiny had bestowed later appointment times. By late August, the applicants, less sanguine about their litigation prospects (as the fishers suggest) and more inventive in recasting old gill nets as seine nets (as Respondent suggests), began turning in seine nets in large numbers, so that Respondent was purchasing nearly all seine nets. Eventually, the cumulative effect of this trend raised the total mix of seines purchased from five percent, during the first three weeks, to sixty percent. After a brief period of trying to stay the course, Respondent decided on September 6, 1995, that it had to take action or else the Account would be exhausted before the State had purchased all of the nets listed on the applications. Respondent immediately suspended further payments on issued vouchers and applied new criteria to persons holding unpaid vouchers, as well as to applicants who had not yet received vouchers. This action stopped payment on all vouchers issued from around August 28 through September 6. At the time that it stopped payment on outstanding vouchers, Respondent had approved the purchase of nets from about 750 fishers. About 450 of these applicants received their money prior to the suspension of payments, leaving about 300 applicants, including Petitioner, holding worthless vouchers. However, a large number of the 450 applicants who were actually paid for their nets prior to September 6 sold a relatively large percentage of gill nets rather than seine nets. As of September 6 (retroactive to August 28), Respondent began the second phase of the Net Buy-Back Program. In this phase, Respondent paid for seine nets, but only up to the greater of the number of seines shown on the application or the number of seines based on past use of seines. Respondent determined the latter figure from the trip tickets, which also contained information as to types of catch, from which Respondent could infer the type of net used. As in the first phase, Respondent continued to insist the fishers turn in seines if they were being paid for seines. The 300 fishers holding dishonored vouchers filed a class action suit. Petitioner's voucher for his first eight nets was covered in this legal action and is not the subject of this case. Petitioner received slightly more than $10,000 on his claim for about $28,000. In the meantime, Respondent discovered that Petitioner in fact held two licenses, as he had represented on his application. By letter dated October 5, 1995, Respondent advised Petitioner that it had reconsidered his application and determined that he had the right to sell 16 nets, not eight nets, but none could be a seine net. Respondent issued Petitioner a new voucher for these additional eight nets. This voucher is in the amount of $7996.80 for 4800 yards of deepwater gill net. On October 13, 1995, Petitioner turned in eight nets and received his money. Petitioner's application lists no seine nets. His application, as noted above, lists one and one-third shallow- water gill nets (i.e., 800 yards), eight deepwater gill nets, two trawls, and one trammel net. Petitioner claimed that he turned in seine nets. If turned in during the first or second phase of the program, Respondent would have treated these nets as seine nets. But it is Petitioner's unique fortune to have been intimately involved with all three phases of the Net Buy-Back Program. Evidently dissatisfied with the effects of the restrictions introduced by the second phase of the program, Respondent added a third phase by promulgating an emergency rule defining "seine nets," effective October 2, 1995. This third phase, which did not change Respondent's policy of paying for the greater number of seines as shown on the application or the trip tickets, restricted the kinds of nets that fishers could turn in as seine nets. Rule 38BER95-1 provides that, for the purpose of "the implementation of the Net Buy-Back Program" described in Section 370.0805(5): "Gill net" means a wall of netting suspended vertically in the water, with floats across the upper margin and weights along the bottom margin which captures fish by entangling them in the meshes, usually by the gills. Any net offered for the net buy- back program that consists of at least fifty- one percent (51 percent) gill net, shall be considered a gill net. "Seine" means a small-meshed net suspended vertically in the water, with floats along the top margin and weights along the bottom margin, which encloses and concentrates fish, and does not entangle them in the meshes. No net offered for the net buy-back program shall be considered a seine if the wings are composed of entangling mesh. * * * THIS RULE SHALL TAKE EFFECT IMMEDIATELY UPON BEING FILED WITH THE DEPARTMENT OF STATE. Effective Date: October 2, 1995 Under the emergency rule, Respondent's nets were not seines, but were gill nets because they were at least 51 percent, by area, gill net. At the time of the final hearing, Respondent estimates that the Account balance is about $300,000 with about 160 contested claims remaining to be resolved.
Recommendation It is RECOMMENDED that the Department of Labor and Employment Security enter a final order dismissing the petition for additional payment from the Account. ENTERED on October 3rd, 1996, in Tallahassee, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this October 3rd, 1996. COPIES FURNISHED: Secretary Douglas L. Jamerson Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Edward A. Dion General Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 John Wayde Campbell 1103 67th Street Northwest Bradenton, Florida 34209 Louise T. Sadler Senior Attorney Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
The Issue As stated by the Hearing Officer the issue in this case is whether the District should issue a surface water management permit to Russell E. and Marilyn F. Scott, and Caloosa Television Corporation for the construction and operation of a surface water management system to serve a television signal tower and control building in Southeast Lee County, Florida. There are no significant water resource impacts related to the management of surface water by the proposed project. The harm at issue in this case is the potential for wood storks and other wading to strike the tower and guy wires which are not structures related to management and storage of waters. The parties disagree as to whether the District has jurisdiction to consider the bird impacts related to collisions with the tower and guy wires, and if so, whether the tower and guy wires will have a significant adverse impact on the water resources of the state through a reduction of wood storks, an endangered species, and other wading birds which through feeding on fish remove biomass from such water, thereby maintaining water quality. In determining jurisdiction in this case, the parties disagree on the meaning of "works" and "surface water management system" as used in Chapter 373, F.S. and Rule 40E-4, F.A.C. The petitioners argue that since one set of guy wires will be placed across one end of the cypress wetland located on the subject property, the entire project including the guy wire and tower is a "works" and part of the surface water management system, which is subject to the permitting jurisdiction of the District. The District and respondent Caloosa Television Corporation contend that the tower and guy wires are not structures related to surface water management and are not "works" nor part of the surface water management system, and therefore, bird mortality, as a result of hitting the tower and guy wires, is not subject to the permitting jurisdiction of the District. FINDINGS ON EXCEPTIONS At the Governing Board meeting of October 6, 1988, the petitioners waived Findings of Fact exceptions 1 and 2 of Petitioners' Exceptions to Finding of Fact, Conclusions of Law, and Recommended Order. Therefore, Findings of Fact exceptions 1 and 2 are rejected. The petitioners' exceptions 1, 2, and 3 to Conclusions of Law of the Recommended Order are rejected as set forth in the District's Response To Exceptions Filed by Petitioners filed on September 27, 1988, and attached hereto as Exhibit B and made part of this Final Order. The Governing Board accepts the exceptions filed by the District and the respondent, Caloosa Television Corporation, as set forth herein under Conclusions of Law.
Findings Of Fact On or about September 14, 1987, Caloosa filed Application Number 09147- B, for a surface water management permit, with the District. This application was for the construction and operation of a surface water management system to serve a 1249 foot high television transmission tower and control building in southeast Lee County, Florida. The proposed location of Caloosa's project is approximately one mile north of the boundary of the Corkscrew Swamp Sanctuary, which is owned and operated by Audubon, and specifically, approximately two and one-half miles north of a wood stork colony located within the Sanctuary. This rookery is the largest rookery of wood stork, a federally endangered wading bird, in the United States. The project site is 60 acres in size, and approximately square in shape. It is improved agricultural land, with a circular cypress wetland of about 5.5 acres located near the center of the site. Extending outward from the cypress wetland are two ditches, one running due east and the other due west. The existing surface water flow varies with the seasons and intensity of storm events. During dry seasons, the rainfall runoff flows into the cypress wetland and percolates into the ground. However, during wet seasons, water builds up in the cypress wetland and flows into the two ditches. In larger storm events, the project site is entirely under water, and sheet flows occur to the southwest. The proposed project should have a negligible impact on the existing surface water system since the total impervious area will only be approximately one acre, or 1.7 percent of the total project area of 60 acres. The project consists of a radio tower and guy wires, a 3150 square foot control building, fill pad and parking area, guy wire anchor slabs, and approximately 1650 feet of lime rock road with an equalizer culvert to maintain existing flow. Three sets of six guy wires will extend from the 1249 foot high tower and connect to the ground at anchor slabs located near the edge of the project site. The entire project is located outside of the limits of the existing wetland, but one set of guy wires does cross the western edge of the cypress wetland. Caloosa proposes to use the tower as a "community tower" which will be capable of supporting more than one transmitting antennae. In addition to Caloosa's antennae, the tower will be able to support up to five commercial radio stations and up to sixty two-way communication antennae. Caloosa has had contacts from several commercial radio stations and governmental agencies which have expressed interest in co-locating their antennae on Caloosa's tower. After review of this application, District staff advised Caloosa, on November 23, 1987, that it was recommending approval of the application since it was felt that any impact from the project on wood storks would not result from the construction and operation of this project. At hearing, the District supported the issuance of this permit, but urged that the tower and guy wires are not a part of the surface water management system over which the District has any permitting jurisdiction. Audubon timely filed its request for a hearing on the District's intent to issue this permit, and at hearing opposed the issuance of this permit to Caloosa, urging that the tower and guy wires were an integral part of the surface water management system, and therefore subject to the District's permitting jurisdiction. The wood stork and other wading birds are an important link in the biological and ecological chain. They are the main mechanism for removing certain species of fish from ponds, lakes and waters of the state. If there is no predation by wading birds, then an increase in the biomass of the water system would be expected, water quality would decrease, and fish kills would result. Ponds that receive biomass reduction by wading birds have a reduction in fish biomass of approximately 75%, with no loss in species, while ponds that do not receive wading bird predation lose almost all individual aquatic animals through reduced water quality resulting from retention of up to 94% of the biomass from dead fish. The reduction in biomass is in direct proportion to the number of birds feeding in a pond, and therefore a 5% reduction in birds will result in a 5% lessening of the biomass reduction. Water quality will be reduced by a lowering of oxygen levels in such waters due to the excessive retention of nutrient laden biomass. During the nesting season, wood storks feed in various ponds and wetland areas that surround the rookery. Their primary feeding areas are within ten miles of the rookery. The proximity of these sites allow the birds to make several flights per day between the colony and the feeding site, and to do so with less energy expended than with feeding sites that are farther away. Caloosa's project site is located between the rookery and a primary feeding area to the north that is within ten miles of the rookery. The proximity of this feeding area allows the birds to fly low, at tree top level, to the site, without the use of thermal updrafts that they use to attain altitudes of up to 5000 feet when traveling greater distances. Thus, if the tower is built, it would be likely that wood storks would fly in the direction of, and at the height of, the tower to reach this primary feeding area. However, it was not established how many such birds actually feed in this nearby area, or how many fish are in these ponds and wetlands. The wood stork colony at Corkscrew Swamp Sanctuary has been experiencing a decline in productivity from approximately 6000 nesting pairs in 1960 and 1966, there has been a steady decline in the number of nesting pairs in the colony, and in 1987, there were no nesting pairs in the colony. During 1988, 750 nesting pairs have been observed. The steady decline in the wood stork colony population is the result of already existing developmental pressures and changes in drainage patterns which have adversely affected the birds' feeding habitats. For nesting to be successful, two adult birds are required per nest during the nesting season, which usually occurs from November to March. This allows one adult bird to be away from the nest obtaining food while the other adult keeps the nest warm and safe from predators. If a nest is left unattended through the loss of one adult bird, it is likely that the entire nest will be lost since the fledglings are very vulnerable throughout the nesting season to predators and changes in temperature. There are usually two or three fledglings per nest. For this reason, the loss of five adult birds per year, for example, results in a total loss to the colony of between ten to fifteen fledglings. This loss compounds each year, as birds lost one year are not available to reproduce in following years. Generally, transmission towers can pose a hazard to birds due to the potential for collisions. Illuminating such towers at night does not decrease this danger since the birds are simply attracted to lights. Strobe lighting has also been tried, but it appears that birds ignore, or are not deterred, by strobes. In this case, Caloosa has agreed to accept conditions placed upon the approval of this project by the Lee County Board of Zoning and Adjustments on March 16, 1987, which include placement of aircraft warning balls on the guy wires and the tower itself, habitat improvement including the creation of a wetland and a wildlife through way, if necessary, and commencement of a monitoring system to identify any problems with wood stork mortality as soon as possible. A very extensive study of bird kills and transmission towers was conducted over a thirty year period involving the WCTV tower in Tallahassee, Florida. The WCTV tower was found to kill 3.9 wading birds per year on average. Based in part upon this data, the U.S. Fish and Wildlife Service concluded that wood stork collisions with the tower will not result in significant mortality, and an "incidental take" of five wood storks per year should result. This is a level of mortality which is noteworthy, since any loss to an endangered species is significant, but is clearly below that which would cause jeopardy to the species. Although Audubon correctly pointed out that the conditions present in the WCTV study do not exactly match those present in this case, such as the fact that there are almost three times as many wading birds in the area of the Caloosa tower as were in the area of the WCTV tower, as well as the differences in the geographical relationship of the tower to nearby wading bird colonies and feeding areas, nevertheless, the WCTV study is relevant and should be considered by the District since it is the most exhaustive study of its kind ever conducted. Caloosa presented evidence of a study it conducted over approximately a one month period in May and June, 1988, of a comparable existing radio tower, the WHEW tower, located near the subject property to the east. Although substantial wood stork and other wading bird activity was observed around the WHEW tower, there were no collisions of wood storks with this 1010 foot high tower. While not a scientific study in the strictest sense, and although it was not conducted for as extensive a period as the WCTV study, nevertheless, the District should consider the WHEW study conducted by Caloosa since it involves a comparable tower in close proximity to the subject property, and the person who conducted the study for Caloosa and who testified at hearing, Robert E. Gatton, appeared particularly credible. The Federal Communications Commission has approved the location of Caloosa's tower. I5. The Florida Game and Fresh Water Fish Commission has recommended that the proposed location for Caloosa's tower be changed to an alternate site which would present a less serious obstacle to the Corkscrew wood stork nesting colony and other wading birds. This recommendation is based on the policy that the mortality of even one wood stork is too much and may present a danger to the population of the wood stork rookery. It was not shown, however, that a basis in fact exists for concluding that the loss of five or fewer wood storks per year would present such a danger. The Commission's recommendation is also based upon a concern that transmission towers will proliferate in the area, and thereby further interfere with the flight paths of wood storks and other wading birds to their feeding locations. However, the fact that Caloosa is seeking to construct a "community tower" to be shared with several governmental agencies, as well as broadcasting stations, will actually serve to decrease this potential proliferation. While there is a potential for wood storks or other wading birds in the area to be killed or injured by striking Caloosa's tower or the guy wires while in flight, the extent of this danger is speculative, but would not appear to exceed five wood storks per year. Under these circumstances, there would not be a significant threat to the population, or continued viability, of the Corkscrew rookery. It has not been shown, by the evidence in this record, that any loss of wood storks and other wading birds caused by this project will result in fish kills through a significant reduction of predation and the resulting failure to remove accumulated biomass in ponds and waters in the area. It was not demonstrated that a fish kill will, or is even likely, to occur. While the loss of five wood storks would result in a certain amount of biomass not being removed from the area's wetlands, nothing in the record suggests that this amount will have an adverse impact on the state's water resources or will otherwise be significant. Therefore, any relationship between the tower proposed by Caloosa and impacts associated with biomass accumulation is purely speculative and de minimis. Fish kills occur naturally as water levels in seasonal marshes and ponds lower in the dry season. The water quality impact of such kills is relatively short-lived, lasting up to two months or until the next wet season begins, at which time water quality parameters return to normal. The evidence produced at hearing does not establish that the project and its surface water management system will have any significant or measurable effect on drainage of surface water runoff from the subject property, or on adjacent properties. The drainage system proposed by Caloosa will utilize the existing ditches and the natural cypress pond on the property. It was established that the post-construction effect of the project on drainage would be insignificant. There are, therefore, no drainage impacts associated with this project.
Recommendation Based upon the foregoing, it is recommended that the District enter a Final Order approving Caloosa's application for surface water management permit number 09147-B, subject to the conditions, agreed to by Caloosa, which were imposed by the Lee County Board of Zoning and Adjustment in its approval of this proposed development. DONE AND ENTERED this 29th day of August, 1988, in Tallahassee, Leon County, Florida. DONALD D. CONN 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 29th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5578 Rulings on Audubon's Proposed Findings of Fact: 1. Adopted in Findings of Fact 1, 3. 2-3. Adopted in Finding of Fact 4, but otherwise Rejected as a conclusion of law rather than a finding of fact. 4-5. Adopted in Finding of Fact 5, but otherwise Rejected as unnecessary, irrelevant and as a summation of testimony. 6. Adopted in Finding of Fact 2. 7-8. Adopted in Finding of Fact 7. 9-10 Adopted in Finding of Fact 8. 11. Adopted in Finding of Fact 11. 12-15. Adopted and Rejected, in part, in Finding of Fact 12. Adopted in Findings of Fact 8, 10, but otherwise Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 9. Adopted in Findings of Fact 10, 12, but otherwise Rejected as cumulative and as argument on the evidence. Rejected in Finding of Fact 13, and otherwise as simply a summation of the testimony and argument on the evidence. 20-21. Adopted in Finding of Fact 6. 22-23. Rejected in Findings of Fact 15-17. 24. Adopted in Finding of Fact 15. Rulings on Caloosa's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 13. Adopted in Finding of Fact 1. Adopted In Finding of Fact 5. Adopted in Finding of Fact 19. Adopted in Finding of Fact 5, but otherwise Rejected as a conclusion of law and as simply a summation of testimony. Adopted in Finding of Fact 16. 9-10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 12, 13. Adopted in Finding of Fact 11. Adopted in Findings of Fact 4, 15. Adopted in Finding of Fact 6. 15-16. Adopted in Finding of Fact 17. 17. Adopted in Finding of Fact 18, but otherwise Rejected as irrelevant and as cumulative. Rulings on the District's Proposed Findings of Fact: 1-2. Adopted in Finding-of Fact I. 3. Adopted in Finding of Fact 2. 4-5. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 8. Adopted in Findings of Fact 12, 14, 16. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 13. 12. Adopted in Finding of Fact 16. 13. Adopted in Finding of Fact 15. 14. Adopted in Finding of Fact 11. 15. Rejected as irrelevant. 16. Adopted in Finding of Fact 11. 17. Adopted in Finding of Fact 6. 18-19. Adopted in Finding of Fact 5. COPIES FURNISHED: Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Russell P. Schropp, Esquire Post Office Box 280 Fort Myers, Florida 33902 James K. Sturgis, Esquire Post Office Box 24680 West Palm Beach, Florida 33416 John R. Wodraska Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 =================================================================
The Issue The issues in this case are the validity of Florida Administrative Code Rules 18-14.003(4) and 18-21.004(1)(g)-(h) and (7)(i),1 and an alleged unadopted rule prohibiting fish cleaning stations over sovereign submerged land (SSL); and Petitioner's claim to an award of attorney's fees and costs under Section 120.595(3)-(4), Florida Statutes.2
Findings Of Fact Petitioner owns land on Lake Talquin. In 2003, he obtained a joint permit and SSL consent of use to build a seawall, a boat dock and a covered but not walled boathouse there. In 2005 he obtained another joint permit and SSL consent of use to build another boat dock and another covered boathouse at another location on his property there. Both joint permit/authorizations had general and special conditions. Both had a general condition that limited the permit/authorization to "the specific processes and operations applied for and indicated in the approved drawings or exhibits" and required Petitioner to operate and maintain the facilities "to achieve compliance with the conditions of this permit." Both have a specific condition prohibiting "fish cleaning stations . . . on any structure that is located over the water." The 2003 joint permit/authorization has a specific condition prohibiting any walls and doors on the boathouse and another specific condition prohibiting the installation of water and electric lines. The 2005 joint permit/authorization omits those specific conditions. DEP has issued a Notice of Violation (NOV) against Petitioner for violating the 2005 joint permit/authorization's specific condition prohibiting water and electric lines, for exceeding the dimensions of the boathouse authorized by the joint permit/authorization, for adding a second story structure of livable space (with a kitchen, bathroom, shower, furnished seating area, flat-panel television, and window air conditioning unit) above the boathouse in the space between the roof rafters and the top of the authorized first story structure. DEP has not issued an NOV as to the 2003 joint permit/authorization although it also has electric and water lines. DEP has not issued an NOV as to either joint permit/authorization for having a fish cleaning station over the water. An inspector told Petitioner that the fish cleaning station on the newer facility was a violation of the 2005 permit but that it was not an issue anymore after a change in the law. Petitioner attempted but failed to prove that DEP or BOT prohibits fish cleaning stations over water as a general rule. It is not clear what change in the law has occurred with respect to fish cleaning stations. In any event, the evidence was that these facilities are prohibited when appropriate for protection of water quality, not as a general rule. Rule 18-14.003 states in pertinent part: It shall be a violation of this rule for any person or the agent of any person to knowingly refuse to comply with any provision of Chapter 253, F.S., willfully violate any provision of Chapter 253, F.S., or to willfully damage state land (the ownership or boundaries of which have been established by the state) or products thereof, by doing any of the following: * * * (4) Maintain, place or build permanent or temporary structures, including, but not limited to, additions to existing structures; all structures whose use is not water- dependent; sanitary septic systems; fences, docks and pilings; houses; oil rigs; and utility installations on or over state land without consent or authority from the Board or Department. Petitioner's rule challenge focuses on the part of the rule specifying: "structures whose use is not water-dependent; sanitary septic systems; . . . houses; . . . and utility installations on or over state land without consent or authority from the Board or Department." Rule 18-21.004 states in pertinent part: The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands. General Proprietary. * * * Activities on sovereignty lands shall be limited to water dependent activities only unless the board determines that it is in the public interest to allow an exception as determined by a case by case evaluation. Public projects which are primarily intended to provide access to and use of the waterfront may be permitted to contain minor uses which are not water dependent if: Located in areas along seawalls or other nonnatural shorelines; Located outside of aquatic preserves or class II waters; and The nonwater dependent uses are incidental to the basic purpose of the project, and constitute only minor nearshore encroachments on sovereign lands. Stilt house, boathouses with living quarters, or other such residential structures shall be prohibited on sovereignty lands. * * * General Conditions for Authorizations. All authorizations granted by rule or in writing under Rule 18-21.005, F.A.C., except those for aquaculture activities and geophysical testing, shall be subject to the general conditions as set forth in paragraphs through (i) below. The general conditions shall be part of all authorizations under this chapter, shall be binding upon the grantee, and shall be enforceable under Chapter 253 or 258, Part II, F.S. * * * (i) Structures or activities shall be constructed, operated, and maintained solely for water dependent purposes, or for non- water dependent activities authorized under paragraph 18-21.004(1)(g), F.A.C., or any other applicable law. Petitioner's rule challenge focuses on the parts of this rule prohibiting non-water dependent uses over SSLs, unless in the public interest as determined by a case-by-case evaluation and prohibiting stilt houses, boathouses with living quarters, and other residential structures. Petitioner contends that these rules: exceed their legislative authority; enlarge, modify, or contravene the laws they implement; are vague, lack adequate standards for BOT decisions, and vest unbridled discretion in the BOT (particularly by use of the terms "structure whose use is not water dependent," "utility installations," and "public interest by a case by case evaluation"); and are arbitrary and capricious (for essentially the same reasons they allegedly are vague). See § 120.52(8)(b)- (e), Fla. Stat. The term "structure whose use is not water dependent" is not defined by rule, but Rule 18-21.003(68) states: "'Water dependent activity' means an activity which can only be conducted on, in, over, or adjacent to water areas because the activity requires direct access to the water body or sovereign submerged lands for transportation, recreation, energy production or transmission, or source of water, and where the use of the water or sovereign submerged lands is an integral part of the activity." DEP makes determinations of water-dependency on a case- by-case review of the facts and circumstances presented in each case. DEP does not have a list of factors used in making this determination in any rule, non-rule policy, or other document. According to the evidence, DEP considers docks and boathouses to be water-dependent structures. A roof over a dock may be considered water-dependent depending on the facts and circumstances and whether the roof is an integral and required part of the water-dependent activity. The same is true with respect to benches that are part of a dock structure. Boating- related paraphernalia such as boat paddles, life vests, and similar items can be stored in empty rafters under the roof of a permitted docking facility, but not rakes and shovels cannot, because boating-related paraphernalia are associated with transportation across water, while rakes and shovels are not. Cans of gasoline are related to transportation on water, but their storage on the rafters of a boathouse is not necessarily a water-dependent activity because this is not considered to be safe. Depending on the circumstances, DEP has authorized the installation of electrical and water lines and sewage pump-out systems on boat docking facilities. The installation of electrical and water lines and sewage pump-out systems can be an integral or required part of a public or private commercial marina or docking facility, but generally not a noncommercial dock. DEP once authorized the use of golf carts in connection with a long private pier. The evidence proved that reasonable people of common intelligence can disagree on the interpretation and application of the "not water-dependent" definition. Even experienced consultants are required to check with DEP to be sure they are interpreting and applying the definition correctly. DEP employees sometimes are required to check with DEP headquarters in Tallahassee to be sure they are interpreting and applying the definition correctly. But the evidence did not prove that the definition is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The term "utility installations" is reasonably clear and is generally understood to mean the installation of water, sewer, and electricity. The evidence did not prove that the term is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The evidence did not prove that the term "public interest by a case by case evaluation" is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The evidence was that DEP interprets the definition in the sentence that immediately follows in Rule 18-21.004(1)(g) to limit the "public interest" exception to certain "public projects" (which BOT then broadly interprets to include privately-owned marinas that are open to the public). The evidence did not prove that the challenged parts of Rules 18-14.003 and 18-21.004 are unsupported by logic or the necessary facts, or were adopted without thought or reason or are irrational.
The Issue Whether or not the Petitioner, Dog Island Company, is entitled to the grant of a default permit from the State of Florida, Department of Environmental Regulation, premised upon a violation on the part of the Respondent of the conditions of Section 120.60(2), Florida Statutes, for the alleged failure on the part of the Respondent to respond to the application within the prescribed period of time in the above referenced section, thereby entitling the Petitioner to the grant of the requested permit without further justification on its part. Whether or not on the facts and evidence in this cause, the Petitioner, Dog Island Company, is entitled to the requested permit, which is the subject of this controversy.
Findings Of Fact This case concerns the application of Dog Island Company, Petitioner, to excavate a canal on Dog Island, a barrier island off the coast of Florida. This canal would be approximately 825 feet long, 85 feet wide, and 4 feet deep. At present the canal is partially completed. The initial application permit filed with the State of Florida, Department of Environmental Regulation, was made on December 10, 1976, and the terms and conditions of that application may be found in the Petitioner's Exhibit No. 1 admitted into evidence. This application is by the "short-form" method; however, it was later determined that the application needed to be filed on the "long form," in view of the amount of material to be dredged and filled. Consequently, on June 6, 1977, the Petitioner filed its reapplication and that reapplication may be found as Petitioner's Exhibit No. 9 admitted into evidence. The Petitioner by its action raises two points. The first point considers the Petitioner's contention that the Respondent must issue a default permit to the Petitioner in view of the Respondent's alleged violation of the conditions of Section 120.60(2) Florida Statutes. More particularly, the Petitioner asserts that the Respondent violated the conditions of Section 120.60(2), Florida Statutes, when it, the Respondent, stated to the Petitioner that the Petitioner must fulfill the requirements of Section 253.77, Florida Statutes, as a necessary prerequisite to the granting of an application for a dredge and fill permit. The second point of the petition is a prayer that the permit he granted on the merits of the request, if it is determined that the Petitioner is not entitled to a default permit. Turning to a consideration of the initial point raised by the petition, it may be further categorized as one, a general attack on the Respondent's treatment of the Petitioner's application and reapplication permit, in the context of the requirements of Section 120.60(2), Florida Statutes; and, two, the Respondent's alleged disallowance of the permit premised upon the belief that Section 253.77, Florida Statutes, would not allow the permit to be granted until the conditions of that portion of Chapter 253, Florida Statutes, had been complied with. The questioned provision of Chapter 120, i.e., Section 120.60(2), Florida Statutes, states in pertinent part: 120.60 Licensing.- * * * (2) When an application for a license is made as required by law, the agency shall conduct the proceedings required with reason- able dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the appli- cation, notify the applicant of any apparent errors or omissions, and request any addi- tional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period. The agency shall notify the applicant if the activity for which he seeks a license is exempt from the licensing requirement and return any tendered application fee within 30 days after receipt of the original appli- cation or within 10 days after receipt of the timely requested additional information or correction of errors or omissions. Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions. . . . By its argument herein, the Petitioner is convinced that the Respondent failed to notify the Petitioner within thirty (30) days after receipt of the initial application, of any apparent errors or omissions or to request any additional information the agency is permitted by law to require, again within the thirty (30) day period. This has a direct bearing in the mind of the Petitioner on the effective date of the license permit approval or denial, in relationship to the requirement that the license/permit be granted within ninety (90) days after the receipt of the original permit or receipt of the timely requested additional information or correction of errors or omissions. Factually, we have the initial application of the Petitioner which was filed on December 10, 1976, and received that same date. This was responded to by two items of correspondence. One, dated January 6, 1976, from the Panama City District Office of the Respondent, that being reflected in Petitioner's Exhibit No. 3 admitted into evidence; and a second exhibit, which is a January 10, 1977, correspondence from the central office of the Respondent, this item being found as Petitioner's Exhibit No. 5 admitted into evidence. Petitioner's Exhibit No. 3 notifies the Petitioner that his application is on the wrong form. The proper form should have been the "long form." (The initial application had been submitted on the "short form.") Therefore, on that basis alone, the ninety day requirement for issuance of the application was tolled. Subsequent to being informed by the Respondent that the application must be filed on the "long form," the Petitioner hired the firm of Barrett, Daffin and Figg, Architects, Engineers, Planners, Inc., to assist in the formulation of a reapplication. This document was filed June 6, 1977, and in the body of the document it is represented that this matter is a reapplication. A copy of this reapplication started the thirty-day clock for the Respondent to notify the applicant of apparent errors or omissions and request additional information permitted by the law, and it ran from June 6, 1977. The additional effect of the reapplication was to start a new ninety-day clock for approving or denying the permit and this clock was running from June 6, 1977, or from receipt of the timely requested additional information or correction of errors or omissions. On July 11, 1977, an employee of the Respondent filed what purports to be additional requests for information addressed to the Petitioner. The contents of this request may be found as Petitioner's Exhibit No. 10 and Respondent's Exhibit No. 7 admitted into evidence. This request is clearly outside the thirty day limitation set forth in Section 120.60(2), Florida Statutes, pertaining to the right of an agency to request additional information founded upon any apparent errors or omissions on behalf of the Petitioner, or any additional information the Respondent is permitted by law to require. Nonetheless, the Petitioner met with the Respondent to address the questions raised by the July 11, 1977, correspondence. This meeting was held on July 21, 1977, and out of this meeting the Petitioner, through its agent, responded in writing to the completeness summary of July 11, 1977. This response was dated July 25, 1977, and may be found as Petitioner's Exhibit No. 14 admitted into evidence. These responses were acknowledged by the Respondent on a copy of its July 11, 1977, completeness summary, this being Respondent's Exhibit No. 7. These acknowledgments show the date, July 26, 1977, and create the requirement on the part of the Respondent that it approve or deny the application within ninety days of the date of July 26, 1977. Within ninety days of that date, specifically on October 14, 1977, the Respondent issued the letter of intent to deny the permit; a copy of this letter of intent to deny may be found as Respondent's Exhibit No. 11 admitted into evidence. By its actions of responding to the July 11, 1977, completeness summary, the Petitioner has acquiesced in the right of the Respondent to make such request, notwithstanding the fact that the request had been made thirty days after the June 6, 1977, reapplication had been filed. The October 14, 1977, letter of intent to deny the permit application was timely and no default permit should be issued under the terms and conditions of Section 120.60(2), Florida Statutes. The Petitioner raises the additional point that Respondent was denying the permit application solely on the basis of the Respondent's contention that Section 253.77, Florida Statutes, had not been complied with. This impression on the part of the Petitioner came about after it had requested issuance of a default permit on November 17, 1977, under the belief that Section 120.60(2), Florida Statutes, required the permit to be issued. The Respondent, in the person of its secretary, issued a letter of November 29, 1977, in which document the secretary states that the permit cannot be granted because Section 253.77, Florida Statutes, has not been complied with in that proof of payment for state- owned dredge material is not reflected. Section 253.77, Florida Statutes, has the following language: 253.77 State lands; state agency authoriza- tion for use prohibited without consent of agency in which title vested.- No department, including any division, bureau, section, or other subdivision thereof, or any other agency of the state possessing regulatory powers involving the issuance of permits shall issue any permit, license, or other evidence of authority involving the use of sovereignty or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under chapter 253, until the applicant for such permit, license, or other evidence of permission shall have received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, ease- ment, or other form of consent authorizing the proposed use and exhibited it to such agency or department or subdivision thereof having regulatory power to permit such use. This act shall not apply to any permit, license, or other form of consent to take the regulated action which gas issued and outstanding on June 23, 1976. It can be seen by an examination of that section that it does not require payment for state-owned dredge material. It simply requires that the applicant have permission of the Board of Trustees of the Internal Improvement Trust Fund, in the person of the Department of Natural Resources. Moreover, there are no regulations existing which require that proof of payment be a precondition to any issuance of a dredge and fill permit by the Respondent. Nevertheless, the October 14, 1977, letter of intent to deny was sufficient compliance with the requirements of Section 120.60(2), Florida Statutes, and obviated the necessity to Issue a dredge and fill permit on a default basis. The issue in this cause should therefore be considered on its merits, and if the Petitioner prevails on the merits, then the permit should be granted conditioned upon the necessary approval of the State of Florida, Department of Natural Resources, on the question of payment for the fill material. This opinion is held because an examination of all the testimony and other items of evidence in this case leads to the conclusion that the land waterward of the mean high water line, at the mouth of the proposed canal, belongs to the State of Florida. (The land above the mean high water line at the site of the proposed canal is land which is owned by the Petitioner.) What then is the determination to be reached on the merits? The initial question that should be addressed on the issue of the merits of the case, is the question of what class of waters is found in the St. George Sound, which is the body of water that is fronted by the mouth of the proposed canal. The argument between the parties is on the issue of whether the waters are Class II or Class III waters. The significance of the difference between the classification is the fact that Class II waters require a more careful consideration of the environmental issues, as stated in Rule 17-4.28(8), Florida Administrative Code. The parties offered certain maps for consideration on the question of whether the waters were in fact Class II or Class III. These maps may be found as Petitioner's Exhibit No. 23, and Respondent's Exhibits Nos. 13 and 15 admitted into evidence. The real question, however, is whether or not the area in dispute meets the criteria for classification as a Class II body of water. That criteria pertains to the inquiry whether the site, either actually or potentially, has the capability of supporting recreational commercial shellfish propagation and harvesting. From the testimony offered in the course of the hearing, it is evident that the eventuality and potential does exist as outlined in Rule 17-3.08, Florida Administrative Code. It exists because of the existence of fish, oysters and shrimp in the immediate vicinity of the proposed canal. As a consequence, the Petitioner must have a plan of procedure which adequately protects the project area and areas in the vicinity of the project from significant damage of the site as a source of commercial or recreational shellfish harvesting and as a nursery area for fish and shellfish. This particular requirement for dealing with Class II waters only has importance because it creates a responsibility on the part of the applicant to adequately address the question of the marine life for the reasons stated above. In fact, the Petitioner has offered its explanation of how it intends to protect the marine life in these Class II waters at a time when the project is being constructed and subsequent to the construction. However, this effort at explanation of its protection of the shellfish and other related marine life found in the Class II waters is not convincing. If the canal is completed, certain forms of marsh grasses and attendant habitat will be removed, thus interfering with the function of the detrital food chain and associated food webs which are found near the proposed open end of the canal. This would result in the diminution of the marine resources. This can be seen by an examination of the Petitioner's Composite Exhibit No. 16, which is a series of photographs of the area and part of the Respondent's Exhibit No. 1, which contain further photographs of the area. Both of these sets of photographs have been admitted into evidence. Effectively, what exists at the site is a marsh area at the end of the canal nearest the sound, and a type of pond at the closed end of the canal. Furthermore, the removal of this marsh area will have no positive benefit to the public at large. This can be seen by a comparison of the proposed canal and an existing canal which is located in the immediate vicinity. There is a marked similarity between the length, width and depth of the proposed canal and the existing canal. In addition, the existing canal is a dead-end canal. In the existing canal, there is a substantial buildup of anaerobic muck at the closed end of the canal due to poor circulation and flushing by action of the tides. The water quality in the existing canal is also very poor in the measure of the dissolved oxygen count and this condition is not conducive to the survival of marine live. Although there is a worse condition, when speaking of anaerobic muck, that has built up in the proposed canal due to less circulation, there is no reason to believe that there will be any positive flushing effect to the proposed canal by completing the proposed canal and removing the marsh area. There is also a legitimate concern of possible salt water intrusion into the fresh water lens which serves as a potable water supply for residents of the island. Additionally, the experience in the existing canal has shown a development of shoaling at the open end of the existing canal and it is reasonable to expect the same type of effect in the proposed canal. This would further diminish the flushing of the waters in the canal and cause an unsatisfactory concentration of dissolved oxygen, bringing about problems such as the anaerobic muck and resulting difficulty for marine life. For the reasons stated above, the Respondent is justified in denying the reapplication for permit made by the Petitioner to excavate a dead-end canal of 825 feet long and 85 to 90 feet wide by 4 feet deep at the mean low water mark. The Proposed Findings of Fact and Conclusions of Law submitted by the parties have been examined, and where appropriate have been incorporated in this order. Those that do not comport with the Findings of Fact and Conclusions of Law of the undersigned are rejected.
Recommendation It is recommended that the application for permit to excavate a dead-end canal as set forth in the reapplication of the Petitioner be denied. DONE and ENTERED this 7th day of June, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel S. Dearing, Esquire 424 North Calhoun Street Tallahassee, Florida 32302 Alfred W. Clark, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether Rule 27G-1.06(2) and Rule 27G-1.08(4), Florida Administrative Code, or either of them, is an invalid exercise of delegated legislative authority?
Findings Of Fact The parties have stipulated that Fairfield Communities, Inc. (Fairfield) has the requisite standing to challenge the rule provisions at issue and that Friends of Fort George, Inc., (Friends), Florida Wildlife Federation (FWF) and Florida Audubon Society (Audubon) have standing to participate as intervenors in support of these rule provisions. The Florida Land and Water Adjudicatory Commission (FLWAC) is the state agency that promulgated the challenged rules. The Fort George DRI case, No. 86-4127, began on August 1, 1986, when the Department of Community Affairs took an appeal of the development order entered by the City of Jacksonville on June 12, 1986 on grounds The MLUP does not accurately show or locate the DER jurisdictional line on the western side of the island from which buffer areas required by the ADO are to be measured . . . The MLUP does not properly or accurately depict or locate buffer areas surrounding the sloughs on the western side of Fort George Island. Exhibit B to the Prehearing Stipulation. Together with others, the Intervenors in the present case filed, in the Fort George DRI case, No. 86-4127, a motion to intervene as of right and request for consideration of additional issues on August 7, 1986. The intervenors in No. 86-4127 sought consideration of a wide range of issues in the Fort George DRI case, including questions concerning Blue Pond, the perimeter buffer zone, the interior habitat, weirs, berms, dikes and hydraulic connections, the adequacy of the water supply, the effect of the Game and Fresh Water Fish Commission's disapproval, the placement of various boundaries, and whether "Fairfield has failed to provide adequate protection of the microclimate and ecology of the Rollins Bird and Plant Sanctuary as mandated by the ADO . . ." Exhibit C to the Prehearing Stipulation. In filing their motion to intervene as of right and request for consideration of additional issues in No. 86-4127, Friends, Audubon and FWF expressly relied on Rule 27G-1.06, Florida Administrative Code. The portion under challenge here provides: (2) Motions to intervene filed with the Commission within 30 days of the filing of a notice of appeal may request the Commission to consider issues raised in the record below but not raised by the parties to the appeal. Rule 27G-1.06, Florida Administrative Code. In the order of transmittal, entered in No. 86-4127 on October 15, 1986, FLWAC denied consideration of every issue raised by the intervenors, except for the issue concerning the Rollins Bird and Plant Sanctuary, and added a related issue, also concerning the Rollins Bird and Plant Sanctuary, citing Rule 27G- 1.08, Florida Administrative Code. The portion of that rule under challenge here provides: Within 60 days of receipt of a notice of appeal, the Commission shall meet to review the issues raised by the parties. If the Commission determines that an issue of statewide or regional importance was not raised by the parties but is necessary to its disposition of the appeal, the Commission shall specify said issue and shall specify whether the issue shall be the subject of review based on the record made below, additional evidence or a combination thereof. New issues shall not be raised by the parties or other persons after this Commission meeting. At this meeting, the Commission may also dispose of procedural motions, including motions to intervene, which have been filed within 30 days of the filing of the notice of appeal. Rule 27G-1.08, Florida Administrative Code. Fairfield, as the applicant for the development order in No. 86- 4127, questions FLWAC's authority to promulgate rules that allow FLWAC to consider issues not raised by the party who took the DRI appeal, whether sua sponte or on motion of an intervenor.
