Question...FWC... Do You Want Legal Reasoning For Overturning The 2" Rule on Seine Nets that the CCA Can NOT Beat
Do you want to settle and head off our lawsuit? Do you really think the CCA has ANY opportunity of defeating you in court with many of the legitimate governmental purposes listed below? Get real!
There is no "BAN." In Florida, there can be only ONE subject an amendment addresses. This is called the "Single Subject Rule," AKA "Sole Purpose" and/or "voter intent." The "Single Subject" of this amendment was, "To PREVENT unnecessary killing, overharvest and waste of the marine resource." (Fl Sup. Ct 1993)
The Amendment is very specific in it's description of what a gill net is, and that description makes EVERY net ever made a "gill net" except cast nets. The FWC has admitted that every net made that voters approved of falls under Article X, Section 16's definition of a "gill net." But, the constitution allows netting. The answer to this dilemma can be found in Millender, SC 85,880 where the Florida Supreme Court instructed the MFC/FWC to "HARMONIZE" the amendment. Taking "no gill nets" without "HARMONIZING" the amendment has been the problem all along. More to come on this.
The FWC brought in two members of NOAA to sit in on our discussions about nets with the FWC. We have on CD, even the NOAA experts agreeing that the Florida Constitutional definition of a gill net describes every net ever made. They even stated, "even our plankton nets gill fish."
Clearly, net fishing was NOT banned, it was LIMITED. The Title of the amendment must accurately describe it's contents by law.
So, if you have two nets... One being 2" stretch mesh as legally permitted today by the FWC and one being 3" stretch mesh to fish with... The FWC/FWRI's own tests PROVE...
The 2" stretch mesh will catch 98% waste.
The 3" stretch mesh will catch 2% waste.
Both, as admitted in court by the FWC Attorney, Jonathon Glogau, "gill fish." (As EVERY net will.)
Which do you suppose complies with the PREVENTION of unnecessary killing and waste? One that wastes 98% or one that wastes only 2%? Duh!
Stupidly, certain members of the FWC have threatened us that they will make the meshes even smaller... Let's not forget, that on video in a public FWC meeting we have the FWC/FWRI's own expert, Gil McRae, declaring that the smaller the mesh size, the MORE gilling, unnecessary killing and waste will occur and the LESS selective and commercially viable the net becomes. "Even less selective than the 2" mesh net."
Which leads into the next point... This was NOT a vote for a "constitutional taking," where the fishing was supposed to be so limited that one's livelihood was lost. But, for those net fishermen that can not throw a commercially viable cast net, that is EXACTLY what the FWC have created by forcing fishermen to waste the resource... and their time... at a 98% rate.
The CCA loves to claim that the Fishermen are attempting to circumvent the amendment. No, legally, the CCA is attempting to circumvent the ONLY purpose of the amendment and continue to force net fishermen to waste the resource at a PROVEN 98% rate.
Here's your choice. The Florida Supreme Court stated that you must "harmonize this amendment," that "commercial viability is relevant" and that "absurd and illogical rules will not be adopted." Ask yourself, does a net that has an unprecedented waste rate of 98% comply with the "sole purpose" of "preventing unnecessary killing and waste?" Is a net that only catches 1 marketable fish out of 50 commercially viable? Is a rule that forces fishermen to waste 49 out of 50 fish captured a "logical rule?"
For those of you that haven't thought of it, the current 2" stretch mesh rule causes the majority of the fish to be destroyed before they ever have an opportunity to spawn.
Our larger mesh net that only has a 2% by-catch (waste), GILLS FAR LESS FISH than the CCA/Florida Sportsman backed net, yet is still LIMITED to only 500 square feet of mesh area.
The FWC, FWRI and our fishermen know that the 2" mandated nets supported by the CCA and Florida Sportsman magazine have led to the decline of many protected fisheries...such as several Grouper species. The forced use of these nets have cost dozens of species, including Grouper, hundreds of thousands of lives of those species. The 2" stretch mesh nets nets are NOT in the least "selective," leading to hundreds of thousands of 3" to 7" fish being needlessly destroyed.
Juvenile fish would have grown to an age they stood a chance of survival and moved "off shore" by the time they would have been captured with large mesh nets... Not so with the small 2" mesh nets. It's exactly like walking around a pond... You will see the minnows clinging to the bank to avoid being eaten by the larger fish waiting in the deep. It's after the 2" stretch mesh size is when the young decide to migrate into the deeper waters.
Under the Magnusun Stevens Act (The FWC's Federal money line), the FWC have been mandated to "reduce by-catch" by all possible means. AFTER the public approved traditional 90% large mesh seine nets in the Limited Net Fishing Amendment, the MFC/FWC redesigned the net into the ecological disastrous 2" small mesh seine nets of today. This redesign by the MFC/FWC resulted in increased by-catches from 5%-10% to 98%. That is NOT what the public voted for by any stretch of the mesh. ;)
If the FWC would like 27 pages of brilliant reasoning to defend a change in the nets mesh size, they simply look at Judge Sander Sauls ruling in our favor that they had sealed. He was the deciding Judge of the Bush-Gore Presidential Ballot Case. His 27 page order has more than ample ammunition to defeat any CCA case. His order claimed we were right and the FWC net was unconstitutional.
Of course the FWC could establish the Constitutional Due Process mandated by the Florida Constitution in Article IV, Section 9 that they have refused to establish for 11 years. All of this would have been over a long time ago if the FWC actually obeyed the constitutional mandate. Similar to Sauls echo, the Chief Judge of the 1st DCA called the FWC "imperious" and a "danger to the rights of the common citizen." And boy, have we seen this in our lives due to their tyranny.
Of course if the FWC also obeyed Article X, Section 16 this net debacle would not continue... Nor would it continue if they were to obey the Statutes that our elected officials mandated the FWC obey in the year 2000. (Those pesky due process standards that protect the environment (1st), economy and citizens.)
Additionally, if the FWC were to obey their agreement as written in the Blue Crab Bill and signed into law a few years ago, we would have the same constitutional due process as other constitutional agencies have provided citizens. The only problem here is that I told the Senate EXACTLY what the FWC would do a few months down the line and that the FWC were lying to them about their agreement to obey the due process procedures. These procedures, written on page 5 of the bill, have NEVER been followed... Leaving the fishing community protectionless and the legislature looking like fools for believing the FWC in the first place.
Or maybe the FWC would like to apply the science to our industry as they claim to do in every other sector of fishery management. Because even the FWC's own scientists claim they are are wrong.
Better yet, how about the U.S. Constitution, the supposed guaranteed rights and equal protection of the law for ALL CITIZENS? The FWC position on these issues is a little hard to defend when their commissioners have stated that they refused to obey statutes that defend our rights and will only use statutes to prosecute fishermen. "We are going to rule you by Politics only," as stated by Commissioner Wright, is a pretty brazen thing to say...especially since he supposedly has a law degree.
The FWC have denied all disabled accommodations that would allow disabled fisherman to use the same material and mesh size allowed in a cast net to fish with... Leaving the disabled absolutely no way to provide for themselves. WHY? IF the FWC were to change the mesh size to unlimited monofiliment mesh of 500 square feet or less, ALL problems would be solved for the regular AND disabled fishermen.
How about the FWC simply keep their promise to the Legislature to provide us with our requested nets in 2005? The FWC held three meetings (of which I traveled 2,700 miles for) to garner our support for increased fines and penalties in exchange for the nets we are STILL requesting. The FWC got their increased fines and penalties against fishermen and then refused to provide the promised nets. Simply dispicable.
It is also noted that Commissioner Stephenson questioned how fishermen could pay their bills with what is going on with the continued mandate of the 2" stretch mesh net? The answer, they can't without fishing so dangerously that they risk serious injury or death. Or, their environmental footprint is so extreme from wasting 49 fish out of every 50 captured. (For the readers information, you can't keep or sell the 49 juvenile fish wasted for each marketable fish captured.)
In the constitution itself, it provides for "seines AND OTHER RECTANGULAR NETS." The FWC have never provided fishermen with any other "rectangular net" outside of a seine. Gill nets were long nets, but some of us (me included) carried small "feeler nets" which would gill, but were NOT considered "gill nets." Exactly like the requested nets, these nets were also called "test nets." You used them just to see what was in the water. Most fishermen though, would use a small portion of their gill nets as a "feeler net" so not to capture too many fish they were not seeking in murky water.
Here is the "kicker." FWC Head Commissioner, Rodney (Big Dog) Baretto, told everyone at an FWC meeting and throughout Florida on The Florida Channel, that the FWC could LEGALLY RAISE THE MESH SIZE TO WHATEVER THEY WANTED TO... No constitutional amendment needed. We've known this all along. Now the public knows it. It's time to do something about it.