|
|
|
|
|
|
Constitutional Amendment Prohibiting Use of
Gill or Entangling Nets |
| [Return to Advocacy Positions Main Page] |
CCA Florida Comments and Recommendations
Constitutional Amendment Prohibiting Use of Gill or Entangling Nets |
|
Section 16, Limiting Marine Net Fishing –
(a) The marine resources of the State of Florida belong to all of the people of the state and should be conserved and managed for the benefit of the state, its people, and future generations. To this end the people hereby enact limitations on marine net fishing in Florida waters to protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, overfishing and waste.
(b) For the purpose of catching or taking any saltwater finfish, shellfish or other marine animals in Florida waters:
(1) No gill nets or other entangling nets shall be used in any Florida waters; and
(2) 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. (Emphasis added)
FLORIDA CONSTITUTION – ARTICLE X, SECTION 16 (a) and (b)
|
|
|
1) INTRODUCTION
In November of 1994 an overwhelming 72% of Florida voters said yes to the constitutional amendment limiting marine net fishing. The amendment includes both a prohibition on the use of gill and entangling nets in all state waters and a size limit on other nets. Although the restrictions have been in place for nearly ten years, there are still factions within the commercial industry who refuse to accept the legal reality that the constitutional prohibition on gill nets means no gill nets.
Since 1994, there have been numerous lawsuits, attempts to create enforcement loopholes, and outright scams all designed to invalidate or circumvent provisions of the constitutional amendment. All have failed. The Florida Legislature, Florida Courts, and state agencies have upheld the clear intent of Florida voters.
One of the attempts to create an enforcement loophole began when fishermen started using nets with mesh sizes commonly used in gill nets prior to the amendment. They claimed the nets were seine nets, even though at the time of arrest, their nets were filled with gilled fish. To resolve enforcement and prosecution issues, the Florida Marine Fisheries Commission (MFC) adopted a rule to establish a distinction between legal seine nets and illegal gill nets. The rule restricted seine nets to a mesh size no larger than two inches.
2) THE TWO INCH MAXIMUM MESH SIZE FOR SEINE NETS WAS “HISTORICALLY BASED, RATIONAL AND PRACTICAL.”
The Florida Marine Fisheries Commission (MFC) adopted a rule setting a maximum mesh size of two inches for seine nets to establish a “bright line” distinction between illegal gill nets and legal seines. A lawsuit was filed by Ray Pringle and Ronald Fred Crum challenging the rule. A Florida administrative law judge conducted the hearing, heard expert testimony from witnesses on both sides, and upheld the MFC’s rule. Pringle and Crum appealed the judges ruling to the First District Court of Appeal which unanimously upheld the judge’s ruling and the MFC’s rule. The ruling was then appealed to the Florida Supreme Court which denied the appeal and allowed the District Court of Appeal ruling to stand.
The following “Conclusions of Law” are excerpts from the judge’s ruling.
|
|
73. Testimony presented by both Petitioners and the MFC established that all nets gill to some degree. Because the net ban amendment was not intended to preclude the use of all nets in inshore and nearshore Florida water, the term “gill net” as used therein has been interpreted by the MFC to require something short of a complete ban on net fishing.
74. To this end, the MFC held public hearings, collected studies, and applied its expertise. With regard to the specific rule under challenge here, it gave considerable weight to historical functions of nets so as to draw a distinction between gill and seine nets and to preclude seine nets from being modified or adapted to become entangling or gill nets.
75. Evidence presented herein by the MFC, and not controverted by Petitioners, demonstrated that historically nets were distinguished largely on the basis of function. Certain nets (gill nets) captured fishby entangling them. Other nets (seine nets) captured fish by encircling them. This historical distinction comports with the definition of “gill net” contained in the Florida Constitution: “gill net” means one or more walls of netting which captures saltwater finfish by ensnaring or entangling them in meshes of the nets by the gills….” See Article X, Section 16(c) (1), Florida Constitution.
76. Selection of the most commonly used mesh size and one which already was provided for in the panel portion of the existing legal seine nets was historically based, rational and practical for application of the proposed rule.
77. Moreover, although conflicting evidence was presented, the greater weight of the evidence supports the proposition that seine nets comprised of two-inch stretch mesh, when used properly, do not gill significant numbers of adult or juvenile fish.
78. The MFC’s determination that nets comprised of greater than two-inch stretched mesh constitute “gill nets,” illegal under theFlorida Constitution, and that nets constructed of two-inch stretched mesh or less constitute “seine nets,” legal under the Florida Constitution,is not arbitrary and capricious.
|
|
State of Florida, Division of Administrative Hearings
Case No. 96-5868RP, 1998
|
|
|
3) “COMMERCIAL VIABILITY” DOES NOT APPLY TO GILL OR ENTANGLEMENT NETS
|
|
A net disallowed by the Net Ban Amendment cannot lawfully be used, whatever its commercial viability.
|
|
District Court of Appeal, First District
State of Florida, 1999
|
|
|
Commercial net fishermen continually attempt to use the concept of commercial viability, from a lawsuit over how to measure a shrimp trawl, as a means to increase mesh size in nets to larger than two inches. This specific issue has already been litigated in a lawsuit filed by Ray Pringle and Ronald Fred Crum. The Courts specifically ruled that “commercial viability” does not apply to nets that are gillnets which are clearly banned by the constitutional amendment.
The following excerpts are from the First District Court of Appeal’s ruling which unanimously affirmed a Florida administrative law judge’s ruling on the Florida Marine Fisheries Commission’s Rule 46-4 F.A.C. The judge’s order upheld the MFC rule limiting the mesh size in seine nets to a maximum of two inches.
|
|
Citing Department of Environmental Protection v. Millender, 666 So. 2d 882, 887 (Fla. 1996) (“in the context of the amendment’s stated purpose, which is to limit rather than prohibit shrimp trawl fishing, evidence of the nets’ commercial viability is relevant”), appellants put on evidence that a 500-square-foot net consisting only of two-inch mesh could not be used to take mullet in a commercially viable way. On the other hand, they put on evidence that a net with only fifteen square feet of two-inch mesh and 485 square feet of three-inch mesh (the Pringle-Crum net) was commercially viable for catching mullet.
The administrative law judge credited appellants’ evidence that a 500-square-foot net with a uniform mesh of two inches would not be commercially viable for catching mullet. The judge found further, however, that the commercial viability of the Pringle-Crum net was attributed solely to the fact that the Pringle-Crum net “gilled” mullet:
|
|
Three-inch mesh in the wings of seine nets would gill larger, commercially viable mullet. There is no practical way to construct a seine with wings and a workable pocket since the entire seine net is limited to a total of 500 square feet, but if the three-inch mesh continues to be permitted for the wings, fishermen will be able to construct 500 square foot seine nets that are 90 percent wing and 10 percent panel, thus converting what is technically a seine net into one which actually gills or entangles fish over 90 percent of the net’s surface. Such a result would be contrary to any common historical understanding of what constitutes a “seine net,” and contrary to the intent of the constitutional amendment and subsequent legislation. (Emphasis Added)
|
|
|
The administrative law judge thus found that the Pringle-Crum net constituted a gill or entangling net. A net disallowed by the Net Ban Amendment cannot lawfully be used, whatever its commercial viability. The Net Ban Amendment specifically states that “[n]o…entangling nets shall be used in any Florida Waters.” Art. X, § 16 (b) (1), Fla. Const.”
|
|
District Court of Appeal, First District
State of Florida, Case No. 98-979, 1999
|
|
|
In addition, one of the District Court Judges further added that:
|
|
“Competent substantial evidence does support the finding that the Pringle-Crum net and other mullet nets that would be prohibited by the proposed rules can take mullet in a commercially viable manner only when used as gill or entangling nets. Subsection (b) (1) of The Net Ban Amendment, article X, section 16 (b) (1), Florida Constitution, expressly prohibits the use of entangling nets in Florida waters. I do not believe that the Millender commercial viability test adopted under subsection (b) (2) of the Amendment is applicable to a rule that simply applies the prohibition in subsection (b) (1) here.”
|
|
District Court of Appeal, First District
State of Florida, Case No. 98-979, 1999
|
|
|
4) NETTING INDUSTRY’S CONCERN OVER KILLING “BABY FISH” WITH A SMALL MESH SIZE IS JUST ANOTHER PLOY TO GET A LARGE MESH SIZE TO GILLNET ADULT FISH.
If the commercial netting industry was genuinely concerned about fishing gear that killed “baby fish” then they would address the massive waste and by-kill of juvenile “baby fish” by shrimp trawls. There is no doubt that just one shrimp trawl kills far more “baby fish” than all the 500 sq. ft. seines combined. Even with the requirements to install turtle excluder and finfish by-catch reduction devices, shrimp trawls remain the most wasteful piece of fishing gear in the southeastern United States. In 2000, the amount of finfish and other marine life by-catch (caught, killed and discarded) by Florida’s shrimping industry was estimated to be 68 to 72 million pounds per year – which was greater than the total landings of all of Florida’s saltwater recreational fishermen. Furthermore, the specific issue of “baby fish” caught in smaller mesh sizes was directly addressed by the Courts in the lawsuit filed by Pringle and Crum.
5) ATTORNEY GENERAL STATES THAT ALLOWING ANY MESH SIZE WOULD BE UNCONSTITUTIONAL.
In 2005, legislation was filed which would have allowed the use of nets made of certain materials “regardless of mesh size.” The legislation was just another attempt by netting interests to circumvent the constitutional amendment to use a 500 square foot gillnet. In a March 4, 2005 letter to the legislative sponsors, Attorney General Charlie Crist said that the legislation would violate two provisions of the Florida Constitution. Attorney General Crist stated that:
|
|
Subsequent to approval of this constitutional provision by 72% of Florida voters in 1994, some special interest groups have attempted to get judicial determinations that large mesh nets were not prohibited under the constitution because they were not gill or entangling nets. They have uniformly failed. The proposed bill would conflict with Florida Fish and Wildlife Conservation Commission rules that prohibit use of nets with larger than two-inch mesh; and would conflict with consistent Commission policy that large mesh nets are prohibited gill or entangling nets. I do not believe the Legislature can simply declare by fiat that a certain gear is not a gill net in the face of the findings of the various responsible entities and courts that large mesh nets are gill or entangling nets.
In addition he indicated:
It seems clear that the proposed legislation would allow use of a gear that is expressly prohibited by the Article X, Section 16, Florida Constitution.
His release regarding the unconstitutional nature of the legislation also stated that:
“Florida is finally seeing positive results through improved marine populations, and this would be the worst possible time to turn back the clock by weakening the net ban,” said Crist. “The people have spoken overwhelmingly in support of the net ban, and we must respect their wishes.”
The proposed legislation did not pass any committee in either the Senate or the House.
Attorney General Charlie Crist
Letter / Press Release
March 14, 2005
|
|
|
|
Prepared by:
Ted Forsgren
CCA Florida
905 E. Park Avenue
Tallahassee, FL 32301
(850) 224-3474
Email: tforsgren@ccaflorida.org
|
|
Attachments:
A. Florida Constitution, Article X, Section 16
B. Final Order – Case No. 96-5868RP, Crum, Pringle & Arnold v. Marine Fisheries Commission. State of Florida, Division of Administrative Hearings. February 20, 1998.
C. Ruling on Case No 98-979 – District Court of Appeal, First District – State of Florida. Crum, Pringle & Arnold v. Marine Fisheries Commission. March 31, 1999.
|
| [Return to Top] |
|
|
|
State Office: P.O. Box 568886 • Orlando, FL 32856
Phone: (407) 854-7002 • Fax: (407) 854-1766
e-mail: Marcia Dunfee |
Advocacy Office: 905 East Park Avenue • Tallahassee, FL 32301
Phone: (850) 224-3474 • Fax: (850) 224-5199
e-mail: Amy Harllee |
|
|
|
