Decision-making by the FWC: Is “due process” getting away from Florida’s anglers?
If you got this far, you might be asking yourself, what is “due process” and how it does it affect Florida’s recreational anglers? Generally, in the context of Florida’s fishing regulations, due process means that the FWC can’t impact Florida’ anglers without providing them a meaningful right and opportunity to be heard. The due process rights of everyone in Florida are provided for by both the Florida Constitution and the US Constitution.
Generally, state agencies are required to protect these rights by following certain procedural rules set forth in Florida’s Administrative Procedures Act (“APA”). However, since the FWC is a constitutional body, it technically isn’t bound by this statute. Nonetheless, the FWC is bound by the Florida Constitution and must observe due process. In order to do this, the FWC was encouraged, and has voluntarily agreed, to subject itself to most of these rules.
Unfortunately, when it’s not convenient to follow these rules, the FWC has been circumventing these rules more and more. I will give you an example.
Most anglers in Florida are aware that, in July, the FWC closed the harvest of snook on the gulf coast of Florida. However, what many anglers may not know is that this closure was accomplished by executive order. By using executive order authority, the FWC attempts to rely on a loophole in the APA that says that altering established annual harvest limits for saltwater fishing is not a rule IF the procedure for altering such harvest limits is already set out by an existing rule.
Therefore, in the case of snook, the harvest will be closed for three years without any rule or corresponding procedure. This means that the FWC is not altering established harvest limits but rather is effectively creating new limits and they are doing so without following the rules. Further, there is no specific procedure for altering harvest limits anyway for snook. Nonetheless, the FWC made this decision without any of the necessary hearings or processes. The FWC only held the single mid-week commissioner meeting where anglers could have their several minutes of public input. There was no meaningful opportunity to present evidence or rebuttal arguments or to otherwise be heard.
To be fair, there is some logic in the FWC exercising this authority in a temporary fashion in emergency situations (e.g. for the first spring season after the freeze), however, to continue to close the harvest of snook for 3 years without any required hearings for the establishment of a rule is unprecedented to this author’s knowledge and throws all notions of due process out the window.
Another example of the denial of due process are the multitude of rules that are being imposed lately to “go consistent” with the National Marine Fisheries Service’s federal rules. Most of these rules, particularly as they relate to grouper and red snapper, are universally despised by recreational anglers. However, in applying these rules to state waters, the FWC attempts to fit into another seldom used exception that allows agencies to avoid proper notice and hearing requirements when a federal agency that has concurrent jurisdiction over an area has already established a federal rule. Unfortunately, the National Marine Fisheries Service does not have concurrent jurisdiction with the FWC. In other words, the federal jurisdiction is in federal waters (e.g. greater than 3 nautical miles in the Atlantic and greater than nine nautical miles in the Gulf), while the state jurisdiction is inside these limits. Therefore, when creating grouper and snapper restrictions in state waters, the FWC should have to follow the procedural requirements that are in place to establish a rule for any other species.
By using these processes, the only way Florida’s anglers can obtain notice of these issues is to somehow get wind of a particular agenda item for a Commission meeting and either scramble to provide some public input (usually without sufficient time to gather data, evidence, etc.) by writing a letter or finding the time to show up at a weekday FWC meeting. Based on some commissioner comments at recent meetings, not showing up appears to mean your input is either disregarded or at least trivialized. Further, avoiding the normal hearing procedures does not provide the staff and commissioners a meaningful opportunity to process and give due consideration to the comments and input provided by the stakeholders.
There is no debate that the FWC does a much better job than the NMFS at almost everything and is much more objective. However, when it comes to due process, Florida’s anglers still deserve better. The FWC and its staff should use the rulemaking processes that are in place for all other state agencies and should not adopt regulations through shortcuts and other means just because its more convenient or politically expedient.
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