SEAWATCH November 2004 Issue #102

Table of Contents:

• First Flagrant Netting Violators Arrested and Charged with Felonies Under New Law -- by Rick Farren
  
• CCA Intervenes in No-Fishing Zone Lawsuit off Florida’s Coast
• Legislative Conservation Awards for 2004
• FWC Wants to Continue Sea Bass Trapping in Florida Waters -- by Ted Forsgren
• Commercial Netters Allowed to Legally Exceed Manatee Slow Speed Limits to “Set Nets to Encircle Fish” -- by Ted Forsgren
  

First Flagrant Netting Violators Arrested and Charged with Felonies Under New Law

by Rick Farren, Communications Director of CCA Florida

Illegal netters are finding themselves in hot water with new felony charges and new court venues.

It didn’t take illegal netters long to get charged under the state’s new felony law for flagrant violations of the net ban. Passed by the Florida Legislature earlier this year, with strong support from CCA Florida representatives and volunteers, the new law makes it a third-degree felony for committing a flagrant violation of the state’s constitutional netting restrictions. A flagrant violation is defined as using a seine net exceeding 2,000 square feet or using a monofilament gill net. The maximum penalty for a third-degree felony is a $5,000 fine and five years in jail. In addition, under the new law a mandatory $5,000 civil penalty applies to the first “flagrant violation” along with a suspension of all saltwater licenses for 12 months.

The tougher penalties were needed to help the Florida Fish and Wildlife Conservation Commission address widespread poaching activities still taking place almost 10 years after passage of the constitutional net ban. Lesser, misdemeanor-level charges were proving insufficient to deter large-scale illegal netting operations and repeat resource violators.

The new law was implemented on July 1, and the first felony-level arrests took place just 18 days later. On that evening, FWC officers patrolling along Florida’s Big Bend coast off Taylor County caught three poachers using two monofilament gill nets tied together to form a 4,587-square-foot gill net. The violators also had freshly-caught mullet and a redfish on their boat. Each netter faces a felony charge as well as misdemeanor charges for other violations including possession of an undersized red drum.

A few weeks later on August 12, four poachers were arrested near Vero Beach on Florida’s East coast as part of an FWC net enforcement detail. With the use of night-vision goggles, officers observed the men wading into the Indian River and working a monofilament gill net. The suspects returned to shore, loaded up a cooler and were stopped as they started to drive away.

In the cooler were 17 undersized snook (see photo on page 2), 19 undersized sheepshead, and a variety of other saltwater species. The officers returned to the spot where they saw the netters working and found a monofilament gill net hidden underwater next to a tree stump. There were still fish entangled in the net and all four men were charged with a felony along with a number of misdemeanor charges.

Six days later, also in Taylor County, two men were spotted around midnight using a spotlight. The netters attempted to flee, and after a brief chase during which the suspects dumped a net, the men were apprehended. They had 1,000 pounds of mullet on board along with a small nylon net. Officers recovered a large monofilament entanglement net from the area where the men had first been spotted. The suspects were charged with felonies for illegal netting and fleeing.

Change in Court Venues
Since passage of the net ban in 1994 and implementation in 1995, one of the major weaknesses in the enforcement system has been a failure by some local county judges to adequately sentence repeat poaching violators. The result has been frustration on the part of law enforcement officers and continued large-scale poaching in some parts of the state. In at least one county guilty verdicts were so rare that officers were reluctant to bring charges—choosing instead to simply confiscate illegal nets.
However, under the new felony law, flagrant illegal netting cases go directly to the state’s circuit court system where local politics are less likely to influence rulings. CCA Florida will continue to track illegal netting cases from arrests to convictions.

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CCA Intervenes in No-Fishing Zone Lawsuit off Florida’s Coast

Once again Florida anglers are on the front line of the fight against the creation of unnecessary large-scale, no-fishing zones.

The Coastal Conservation Association has taken action in a lawsuit filed by the Ocean Conservancy which seeks the total closure of two 100-square-mile grouper reserves located off Florida’s Central Panhandle. CCA has intervened in the suit to protect recreational anglers’ right to surface troll for highly migratory species while grouper stocks hundreds of feet below the surface remain protected.

“It is exactly this kind of arbitrary and capricious action that characterizes the entire Marine Protected Area (MPA) debate,” said Fred Miller, chairman of the CCA Government Relations Committee. “Expert testimony showing that it is virtually impossible to catch grouper on the reefs using conventional trolling techniques targeting pelagics on the surface hundreds of feet above the bottom is in the record. Yet here we are having to defend a perfectly reasonable solution to a relatively simple problem once again.”

The two areas, known as the Madison-Swanson and Steamboat Lumps, were established in 1999 to protect gag grouper spawning aggregations. CCA supported the original proposal because it protected grouper spawning stocks while allowing unrelated fishing practices to continue. However, when the proposal was altered at the last minute by the Gulf of Mexico Fishery Management Council to also prohibit surface trolling, CCA filed suit in federal district court, arguing that preventing fishing for unrelated and healthy fish stocks in the upper-levels of the water column was unnecessary to conserve gag grouper residing on the bottom, 200 to 400 feet below the surface.

As part of a settlement agreement, NMFS agreed to allow trolling to continue while conducting further research to determine if anglers would catch grouper while trolling for coastal pelagics. Unfortunately, part of the study approach was to attach baits to 2- to 6-pound weights which were then dropped to the bottom while the boat was nudged in and out of gear. As any offshore angler can attest, that’s far different from any conventional trolling techniques used for surface-dwelling species. Not surprisingly the bottom-dragging approach did catch grouper, but also failed to catch any pelagic species.

When the study methodology was questioned, a compromise was reached between CCA, the Gulf Council and the National Marine Fisheries Service allowing recreational anglers to troll from May to November, while closing the two areas completely in the winter when grouper spawning aggregates assemble in the area. The Council also adopted CCA’s recommendation to provide an additional conservation measure by prohibiting the possession of any reef fish while in the two areas.

Now the Ocean Conservancy is challenging that compromise and is relying on the bogus trolling study to push for a year-round closure against all fishing in the two areas.

“With this lawsuit, the Ocean Conservancy is demonstrating that the only solution they will accept is one that supports their preconceived objectives,” said Michael Kennedy, chairman of CCA Florida. “It’s nothing but an attempt to circumvent the process until they find a court that agrees with their views.”

FWC Intervenes in Lawsuit
At CCA Florida’s urging the Florida Fish And Wildlife Conservation Commission has voted unanimously to intervene in the Ocean Conservancy Lawsuit on behalf of the NMFS. The FWC has consistently opposed the establishment of unnecessary no-fishing zones that impact Florida’s saltwater anglers.

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Legislative Conservation Awards for 2004

The Coastal Conservation Association of Florida has selected six state legislators to receive Legislative Conservation Awards in recognition of their support for marine and fisheries conservation issues during the 2004 Legislative session.

“We are very pleased to recognize these legislators,” said CCA Florida Chairman Michael Kennedy. “Their support was instrumental in the efforts to pass new laws which substantially increased the penalties for flagrant illegal netting violations and new measures to incorporate measurable biological goals in managing Florida’s manatees.”

Legislators chosen to receive CCA Florida 2004 Legislative Conservation Awards are:
Senator Mike Bennett (R - Bradenton)
Senator Mike Haridopolos (R – Melbourne)
Senator Jim King (R – Jacksonville)
Senator Ken Pruitt (R – Port St. Lucie)
Representative Andy Gardiner (R – Orlando)
Representative Lindsay Harrington (R – Punta Gorda)

Conservation Legislation
House Bill 1313, sponsored by Representative Gardiner in the Florida House and by Senators Haridopolos and Pruitt in the Florida Senate, creates a “flagrant violation” which is defined as a violation involving a monofilament gill net, or a net with a mesh area larger than 2000 square feet. These flagrant violations, which previously were misdemeanors, are now third-degree felonies for the first and every subsequent offenses. In addition, there is now a $5,000 mandatory civil penalty for the first “flagrant violation” and a suspension of all saltwater licenses for 12 months. The felony charge is also punishable by up to five years imprisonment. For second or subsequent violations, there is a mandatory $5,000 civil penalty and a lifetime revocation of the saltwater products license as well as the forfeiture of all gear and equipment used in the violation.

Senate Bill 540, sponsored by Senator Bennett in the Senate and Representative Harrington in the House, contains new measures to implement “measurable biological goals” for manatee recovery. The legislation specifies that in regions where the biological goals are being achieved the Florida Fish and Wildlife Conservation Commission (FWC) is required to consider whether existing regulations are sufficient before adopting additional regulations.

“Florida’s anglers should take the time to thank these legislators for their strong commitment and excellent work on these issues,” said CCA Florida Executive Director Ted Forsgren.

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by Ted Forsgren, CCA Florida Executive Director

The Florida Fish and Wildlife Conservation Commission is developing rules to control the use of black sea bass traps in state waters. Traps are currently the predominant gear used in the commercial sea bass fishery and can be legally deployed in Florida state waters north of Englewood on the Gulf coast and north of Tequesta on the Atlantic coast.

In its current form, the FWC’s proposed rule would require a non-transferable black sea bass trap endorsement, establish an appeals process for persons who are denied a black sea bass endorsement, and prohibit leasing of a black sea bass trap endorsement. The rule would also establish black sea bass trap marking requirements and forbid working traps at night.

CCA Florida is opposing the direction being taken by the FWC which in essence formally establishes a commercial sea bass trap fishery. CCA Florida instead is recommending that the Commission establish a program to phase out the use of fish traps. The reasons are numerous and demonstrate why fish traps have proven to be a significant problem in every fishery where the gear is used.

Ghost Traps
Lost and abandoned traps become “ghost” traps which continue to catch and kill untold numbers of fish and other marine life for years. Because new “victims” and other marine life are attracted to the “ghost” traps to feed on captured or dead fish in the trap, or to aggregate with other fish in the trap for shelter, the lost traps are continuously re-baited.
Ghost traps are consistently found in areas where traps are used. Carelessness, storms, deliberate abandonment, and illegal trapping operations contribute to the problem.

Overfishing
Fish traps are capable of exerting more harvesting pressure than traditional hook and line gear because the traps are left in the water to continue “fishing” for hours, days, weeks, or months at a time. In the South Atlantic and the Florida Keys for example, fish traps not only took excessive numbers of grouper, snapper and other predators, they also captured algae eating herbivores which were essential to the natural balance of Florida’s coral reef ecosystem. In Bermuda, fish trappers overharvested snapper and grouper stocks, then switched to parrotfish and overfished that species.

Enforcement Difficulties
Enforcement limitations are clearly demonstrated by the continuing use of illegal gill nets which were banned more than nine years ago. However, the use of illegal fish traps will be more difficult to enforce because the traps are sunk out of sight, not checked for days on end, and can be fished with pop-up buoy devices that remain beneath the surface until just before the trap is checked. In addition, although Florida banned all but sea bass traps in state waters in 1980, it has been virtually impossible to prevent continuous illegal trapping in some areas because traps are allowed to be possessed and transported across state waters for use in adjacent federal waters.

Biological Status of Gulf Black Sea Bass
There is no stock assessment on the biological status of black sea bass in the Gulf of Mexico. However, a recent National Marine Fisheries Service stock assessment of black sea bass in the South Atlantic indicates that the species is “overfished and is undergoing overfishing.” The South Atlantic Council has suggested regulations that would reduce total landings by 30 percent.
Recreational landings in the South Atlantic were highest in the early and mid-1980s. A commercial fish trap (pots) fishery also expanded rapidly and peaked in the mid-80s, after which both commercial and recreational landings dropped. The majority of the commercial landings are from the fish traps.

Additional Problems With the Rule
The FWC’s proposed rule does not limit the number of fish traps which can be used by any individual or by the total trap fishery. Nor does it require fish traps to be returned to the dock after each trip. The traps can be fished 24 hours a day, 7 days a week, 365 days a year. The rule also does not prohibit possession of grouper, snapper, and other reef species aboard boats with sea bass traps, thus, illegal trapping of other species will be extremely difficult to enforce.
The Commission will hold a final public hearing on sea bass trap regulations at its meeting Feb. 2 – 4, 2005 in Panama City.

Fish Traps Have Already Been Banned in Many Areas

Consistent problems with the use of fish traps such as overfishing and abandoned traps have caused them to be banned in many fisheries.

- In 1980, the Florida Legislature banned all fish traps in all Florida waters (except for small pinfish and sea bass traps).

- In 1990, the country of Bermuda banned fish traps.

- In 1991, the federal South Atlantic Fishery Management Council banned the use of fish traps in South Atlantic federal waters from North Carolina through Florida’s Atlantic Coast (except for sea bass pots).

- In 1996, the federal Gulf of Mexico Fishery Management Council banned the use of fish traps in federal waters off of Alabama, Mississippi, Louisiana, and Texas. In Florida, the Gulf Council enacted a moratorium on fish trap permits and a phase out which will ban all fish traps in Florida’s west coast federal waters in the year 2006.

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Commercial Netters Allowed to Legally Exceed Manatee Slow Speed Limits to “Set Nets to Encircle Fish”

by Ted Forsgren

A last minute addition to Tampa Bay manatee protection zones lets commercial netters exceed speed zone limits.

The Florida Fish and Wildlife Conservation Commission (FWC) approved new manatee protection rules in September for Tampa Bay. The three counties included in the rule, Hillsborough, Pinellas and Manatee, had formed a local rule review committee to work with the FWC to refine rule proposals developed by the agency’s staff. That process allowed boaters and anglers an opportunity to bring local knowledge into the process.

CCA Florida, which took part in the local committee, was pleased that many of the local committee’s recommendations were included in the final rules. However, a last minute amendment was added to allow commercial netters to exceed the speed limit in Manatee County slow speed zones while deploying nets to encircle fish. CCA Florida strongly opposed the amendment stating that it was both unwarranted and unnecessary.

It’s bad public policy and undermines voluntary compliance to force one class of boaters to watch another class of boaters legally exceed the speed limit up to 20 mph while they are required to maintain 5 mph or less. In addition, the whole concept is outdated and goes back to pre-net ban days when commercial fishermen were allowed to use nets up to a half mile long to encircle fish. There is simply no justification for an exemption for setting nets to encircle fish with the 500 square foot nets allowed today under the constitution. These nets are roughly the area of a 14-foot cast net and could not be used to encircle fish at high speed, unless netters tie multiple nets together. Although illegal, tying nets together has been one of the main violations of the net ban during the last nine years.

The exemption is also a major departure from FWC policy over the last three years. In 2002, the FWC adopted manatee zone rules for Turtle Bay, Lemon Bay and the Peace River in Charlotte County without any exemptions for commercial fishermen to set nets. And in 2002 the FWC adopted a manatee zones rule for Terra Ceia Bay in Manatee County, which did not include an exemption for commercial fishermen to set nets, although it has now been included in the new rules as an area where netters can exceed the speed limit.

Similar exemption language does exist in other counties, but those rules were adopted more than 10 years ago. The current exemption is a major departure from management decisions made since that time.

Lastly, the manner in which this contro-versial provision was added at the final stage was inappropriate. For the last 14 months CCA Florida has participated in the Local Rule Review Committee and the FWC rule process and attended every public hearing and Commission meeting where the Tampa Bay manatee zone rules have been discussed. There was never any public discussion regarding an exemption in the slow speed zones for setting nets to encircle fish. The issue only became public three weeks prior to the final hearing when the final staff recommendations were released.

CCA Florida has always held the position that manatee zone speed limits should apply equally to all boaters. Other means of addressing these and other speed zone exemptions are being examined.
Special consideration and thanks should be given to FWC Commissioner David Meehan, who took the time to attend every local rule committee meeting and FWC hearing. Commissioner Meehan successfully argued for several changes at the final hearing to enhance angler and boater access, and strongly opposed the commercial netting exemption.

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CCA Florida is deeply appreciative of YAMAHA for their continued support of marine conservation initiatives in Florida.  YAMAHA outboard engines are available for auction at every CCA Florida banquet and provide a valuable fundraising opportunity for the organization.

CCA Florida would also like to recognize:

WEST MARINE is a major matching contributor to the most recent annual fall fundraising appeal, providing a major commitment to conservation of Florida's marine resources. CCA Florida would also like to acknowledge the very generous support from WEST MARINE in the form of gift cards for local chapter banquets.

FLORIDA SPORTSMAN MAGAZINE and the WICKSTROM FAMILY continue to provide generous support for CCA Florida's membership growth programs and for marine conservation in Florida.

CALUSA CAST NETS and CRACKER CAST NETS have demonstrated consistent and longtime support for marine conservation through donated and discounted cast nets provided for every CCA Florida fundraising banquet.

THE ORVIS COMPANY continues to make a significant annual donation of mercandise to CCA Florida. The staff and members of CCA Florida are deeply grateful to Orvis for their commitment to marine conservation and their support of our efforts.

OCEAN WAVES is demonstrating support for conservation by providing four pairs of high-quality sunglasses and a Guy Harvey Print to each of CCA Florida's fundraising banquets.