SEAWATCH August 2004 Issue #101

Table of Contents:

• Commercial Fishermen Pushing for Return of Gill Nets in Florida’s State Waters -- by Ted Forsgren
  
• FLORIDA CONSTITUTION – ARTICLE X, SECTION 16 (a) and (b)
• Permit Protection— FWC considers boat limit for large fish
• Inter-Chapter Challenge
  

Commercial Fishermen Pushing for Return of Gill Nets in Florida’s State Waters

by Ted Forsgren, CCA Florida Executive Director

Commercial netting interests have begun yet another effort to convince the Florida Fish and Wildlife Conservation Commission to allow gill nets in state waters by challenging the two-inch maximum mesh size rule for seine nets.

In November 1994 an overwhelming 72 percent of Florida voters said yes to the proposed constitutional amendment limiting marine net fishing. The amendment, popularly known as the “Net Ban” includes both a prohibition on the use of gill and entangling nets in all state waters and a size limit on other nets such as seines. Although the restrictions have been in place for nearly 10 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 passage of the amendment there have been numerous lawsuits, attempts to create enforcement loopholes, and outright scams designed to invalidate or circumvent provisions in the constitution. All have failed. Instead, the Florida Legislature, Florida courts, and state agencies have consistently upheld the clear intent of Florida voters.

One of the early attempts to create an enforcement loophole began shortly after passage of the net ban 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, the nets were filled with gilled fish. To resolve enforcement and prosecution issues, the Florida Marine Fisheries Commission (MFC) adopted a rule to establish a “bright line” distinction between legal seine nets and illegal gill nets. The rule restricted seine nets to a mesh size no larger than two inches. The rational and practical decision was based on the historic definition of a seine net.

At that time, a lawsuit was filed by commercial interests challenging the rule. A Florida administrative law judge consequently conducted a hearing, heard expert testimony from witnesses on both sides, and upheld the MFC’s rule. Commercial fishermen appealed the ruling to the First District Court of Appeal which unanimously upheld the judge’s ruling and the MFC’s rule. That 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 fish by 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 the Florida 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

“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, taken 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. The Courts specifically ruled that “commercial viability” does not apply to nets that are gill nets 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

Concern over killing “baby fish” with a small mesh size is just another ploy to get a large mesh size to gill adult fish.

The commercial netting industry seldom misses a chance to claim that the smaller mesh size gills and kills “baby fish.” However, if they were genuinely concerned about fishing gear that killed juvenile fish they would address the massive waste and by-kill of “baby fish” by shrimp trawls. There is no doubt that just one shrimp trawl kills far more “baby fish” than all the 500-square-foot 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 previous lawsuits.

[return to Table of Contents]

FLORIDA CONSTITUTION
– ARTICLE X, SECTION 16 (a) and (b)

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)

[return to Table of Contents]

Permit Protection
— FWC considers boat limit for large fish

Large permit are an outstanding and valuable saltwater game fish. Current laws prohibit commercial take and sale of any permit over 20 inches. Recreational anglers are restricted to only one fish over 20 inches.

Last year CCA Florida urged the Fish and Wildlife Conservation Commission to hold a hearing to examine the possibility of establishing a limit on the number of permit longer than 20 inches fork length that could be taken per boat. Sightings and other evidence had come to light of charter boats and head boats taking 15 to 30 large permit when the fish are aggregated on wrecks in South Florida in the fall and winter.

CCA Florida suggested a two-fish vessel limit for permit. A number of years ago, the Marine Fisheries Commission established a two fish per boat limit on African pompano to address similar concerns.

Following a hearing in Islamorada the FWC staff recommended establishing a boat limit of two for permit over 20 inches. In June, commissioners agreed to consider a revised draft rule in September regarding proposed establishment of a recreational possession limit of two-fish per vessel for permit over 20 inches long in Florida and federal waters.

[return to Table of Contents]

Inter-Chapter Challenge

The CCA Florida Inaugural Inter-Chapter Challenge, held on June 26, proved to be a great success. Thirty anglers representing local chapters traveled to Fort DeSoto Park in St. Petersburg from as far away as Pensacola, Palm Beach and Naples. Everyone that took part had a great time.

The Manatee County Chapter won the Grand Slam Division and now has the option to host next year’s event.

The Inter-chapter Challenge was the brain child of Wright Taylor, current chairman of the President’s Council and Naples Chapter president. Sean Gucken and Steve Furman also helped plan the event.
A special thanks goes to Billy’s Stone Crab for hosting the challenge. The Tampa Chapter provided measuring boards and goody bags and the Sarasota Chapter contributed cameras and film for the catch and release format.

PARTICIPATING ANGLERS:
Pensacola - Allen Bounds, Buster Levin, Skeet Lores, Chad Williams, Landry Leidner, and Steve Henderson
Pinellas County - Clint Snyder and Michael Davis
Manatee County - Ray Markham, Keith Pratt, Scott Dalton, Thom Smith, and Bill Packer
Tampa - Jimmy Stembridge, Richard Seward, Steve Furman, Matthew Campbell, Jack Flacke, and Buddy Stokes
Orlando - Nancy Caine, Brian Gorski, Caitlin Reardon
West Palm Beach - Scott Nichols
Naples - Wright Taylor, Al Keller, Jack Sumlin, Rebecca Carroll, Terry Metzger, Kyle Metzger, Nino Gonzalez and Paul Long

AWARDS
Grand Chapter Champion - Manatee County
Largest Trout - Michael Davis, Pinellas County
Largest Redfish - Jimmy Stenbridge, Tampa
Largest Snook - Ray Markham, Manatee County
Team Trout - Pinellas County
Team Redfish - Naples
Team Snook - Manatee County
Hard Luck Award - Allen Bounds (Allen blew four hubs on his tandem axle trailer on the way from Pensacola, but he didn’t give up and made it to the event.)

[return to Table of Contents]

[Return to Table of Contents] [Return to CCA Florida Home] [Return to list of SeaWatch publications]

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.