Judge rules against net ban as 'legal absurdity'

[woopty]

Judge rules against net ban as 'legal absurdity'
Fulford's decision an initial win for Wakulla fishermen; FWC appeals
Oct. 23, 2013 |

In a sweeping judgment in favor of Wakulla County commercial mullet fishermen, Leon County Circuit Judge Jackie Fulford on Tuesday ordered a halt to enforcement of Florida’s constitutional amendment limiting net fishing in state coastal waters.

Fulford sided with the Wakulla Commercial Fisherman's Association, Panacea bait-and-tackle shop owner Ronald Fred Crum and county mullet fishermen Jonas Porter and Keith Ward, who sued FWC in 2011. They argued during a two-day hearing last year the mesh size of nets the agency forces them to use kills too many baby fish and violates the very constitutional amendment its rules are meant to protect. Fulford, who spent a year considering her decision, went out on the water off St. Marks last September to see for herself how the nets worked.

Calling contradictions between the so-called “net ban” approved by voters in 1994 and rules adopted by the Florida Fish and Wildlife Conservation Commission in 1997 to implement it a “legal absurdity,” Fulford’s decision is the latest turn in a 20-year legal battle that she said may only be resolved by further amending of the constitution.

“The court is not saying that preserving our marine life is absurd. Instead the absurdity is created in the law and how it is being applied. It is abundantly unfair for the courts to continue to attempt enforcement of laws that contradict each other,” Fulford wrote in her 11-page ruling. “An absolute mess has been created.”

“I think her order is entirely correct, not just because we prevailed, but because she has for the first time conducted an evidentiary hearing,” said Tallahassee attorney Ronald Mowrey, who represented the fishermen and has litigated the issue for decades. “The evidence was very, very clear … You can’t reconcile the rules they have enacted with their legislative authority with the constitution. They are discriminating against the mullet fishermen.”

Within hours of Fulford’s order, Attorney General Pam Bondi’s office filed on behalf of FWC a notice of appeal of the judge’s decision to the 1st District Court of Appeal.

“We are disappointed with the court’s ruling,” said FWC spokeswoman Amanda Nalley. “We are appealing because we don’t think it is valid.”

The appeal puts Fulford’s order to not enforce the law on hold, Nalley said.

“We are going to continue to enforce the law,” she added.

Crum expected FWC to appeal, but he wishes the two sides could settle and work together to fix the inconsistencies between the agency’s rules and the constitutional amendment.

“We’ve been at this for 20 years,” Crum said. “I wish we could get it over with.”

Mowrey said he and his clients would be happy to set aside the appeals process and try to mediate an agreement with state officials. Alternatively, he said, the matter should immediately go to the state’s highest court.

“This is a major public-policy matter that needs to be addressed by the Supreme Court,” Mowrey said.

At issue is an FWC rule that defines any net with a stretched mesh size greater than 2 inches a “gill net” and thereby illegal under Florida law. But Fulford pointed out in her forcefully worded order that under the net ban amendment, all nets except a cast net are illegal and in fact gill, or entangle, fish.

“We cannot have a provision in our Constitution which outlaws the use of all nets in fishing, except use of a hand thrown cast net, and at the same time have rules adopted by the FWC that make exceptions to this constitutional provision,” Fulford wrote. “It is also absurd that a net as defined by FWC as lawful for the mullet fishermen to use, cannot even be used in the manner prescribed by FWC to catch fish.”

While the net-ban amendment itself was earlier upheld by the Florida Supreme Court, Fulford said that was done with the understanding that voters were not being misled.

“They were told net fishing in Florida was being ‘limited,’” the judge wrote. “Because every net is a ‘gill or entangling net,’ the only lawful net in Florida is a hand-thrown cast net. Shouldn’t that be what the voters were told?”

The stated purpose of the amendment was “to protect saltwater finfish, shellfish and other marine animals from unnecessary killing overfishing and waste.”

“If that is true,” Fulford went on, “how can it be acceptable that the only net that FWC will permit the commercial fishermen to use to catch mullet actually gills and entangles massive amounts of juvenile fish that are unlawful to keep, thus causing significant unnecessary killing and waste? Doesn’t that defeat the purpose for which the Net Ban Amendment was enacted?”

Further, Fulford asserted, FWC rules unfairly target mullet fishermen and it appears they are being singled out for prosecution — something she deemed “simply unacceptable.” Until the legal confusion is corrected, Fulford said the least she could do was stop what she called the unfair application of the laws.

“Isn’t there a way (the intent of the amendment) can be accomplished without making hard-working men and women lose their jobs, or face criminal prosecution for trying to earn a living?” Fulford wrote.

“The bottom line is this: The Net Ban Amendment and rules adopted by FWC took away the tools of the trade for these commercial fishermen. If that is the desire of the people, then so be it. But this Court, despite a tireless effort to determine the intent of the laws and rules, simply cannot come to the conclusion that such was the intent.”

[red_yakker]

I didn't realize there was anyone still fighting that old battle. They are right. The nets they have to use now make it more difficult to catch fish, and they kill smaller fish that used to just swim right through the older nets with larger mesh. I hope they are able to work together to come up with a solution that minimizes by-catch but still makes it possible for commercial fisherman to make a living off the water.

[wevans]

The fishermen have been trying to "work together" with the arrogant FWC heads for years They believe that they are always right and everyone else is wrong!! And they have very little oversight to limit what they do or don't do

[Sea Dawg]

I have a bird dog net boat.. As soon as i Put in the water with no nets fishing tackle or any thing to do with fishing the fnk FWC pull me over just to try and screw me just because i i have a mullet boat and am breaking the laws by being on the water