A circuit judge in Tallahassee has agreed with commercial fishers — the enforcement of Florida’s net-ban law is an “absolute mess.” She ordered the Florida Fish and Wildlife Conservation Commission to stop prohibiting the use of certain nets.
But that doesn’t mean fishers are close to ending their nearly 20-year struggle with the FWC’s interpretation of the 1994 constitutional amendment that limited net fishing.
“We have to be cautiously optimistic about this,” said Jerry Sansom, executive director of the Organized Fishermen of Florida, a statewide commercial fishing association, “We’ve had circuit court rulings like this before and the District Court of Appeal just overturns them without explanation.”
“We’re just advising our members to pay very close attention to the situation and particularly to what the FWC says they are and are not enforcing,” Sansom said Oct. 30.
On its face, the Oct. 22 ruling by Leon County Circuit Judge Jackie Fulford in a lawsuit brought by Wakulla County mullet fishers against the state agency is a strong victory.
Fulford has been considering the issue for more than a year and has even gone mullet fishing to see how the nets allowed by the FWC work.
At the heart of the case is an agency rule that defines any net with a stretched mesh size greater than 2 inches a “gill net.” Since the constitutional amendment specifically outlawed gill nets, commercial fishers have been restricted to using hand-thrown cast nets, but those nets do a poor job of catching legal-sized fish and juvenile fish are being killed in the process.
Fulford wrote in her 11-page opinion: “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? And how does FWC have the authority to write exceptions to the Net Ban Amendment?”
Fulford concluded that “a legal absurdity has been created by amendments to the Florida Constitution and rules adopted by the FWC, and it may well be that only further amendment to the constitution will correct the problem.”
“Do not misunderstand the Court’s conclusion,” she continued. “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.”
Initially, Fulford’s ruling was stayed after the state attorney general’s office filed a notice of appeal with the 1st District Court of Appeal. But Fulford reaffirmed her order on Oct. 30 and instructed the FWC to immediately stop enforcing its net rules.
“The recent ruling in the 2nd Judicial Circuit Court could remove the stay for the net-limitation case, which could remove all limitations for net fishing as prescribed in the Florida Constitution and associated rules,” Amanda Nalley, spokeswoman for the FWC, said Nov. 1.
“Our law enforcement officers are staying current on the status of the 2nd Judicial Court’s ruling and will abide by the court’s decision,” she added.
However, in practice that might not always be the case.
Karen Bell, owner of Star Fish Co. in Cortez and co-owner of A.P. Bell Fish Co., a fish wholesaler, said Nov. 1 that one Cortez fisherman asked a local FWC official what would happen if he fished with gill nets and he was told, “I will arrest you, I will seize your boat, I will seize your net if you try to go gill-netting.”
“As I understand (the ruling), right now you can go gill-netting,” Bell said, yet the risk of arrest and the cost might stop netters from attempting to use gill nets anytime soon.
An appeal of Fulford’s ruling is likely and the issue is far from resolved, but Bell sees some positives.
“At least people are thinking about it and I think some people are seeing that (the net ban) wasn’t done properly,” she said.
We shouldn’t manage fisheries through the constitution and the ban’s impact on commercial fishers is better understood now by the public, she said.
Florida residents are “at least more respectful of what these guys go through to bring domestic seafood to consumers,” Bell said, plus they have become more aware of how important commercial fishing is to the state’s economy.
Ron Mowrey, the attorney who filed the lawsuit against the FWC on behalf of some north Florida mullet fishers, told the Tallahassee Democrat his clients would be happy to stop the court wrangling. They are willing to work with the agency to come up with a net size acceptable to both sides, but earlier attempts at mediation were shut down by the agency.
If an agreement can’t be reached, Mowrey said the issue “is a major public-policy matter that needs to be addressed by the Florida Supreme Court.”
Cheryl Nordby Schmidt is a freelance writer based in Holmes Beach.