CARIBBEAN CONSERV. CORP., INC. v. Fla. Fish & Wildlife Conservation Comm'n

• Decision Date: 16 January 2003
• Docket Number: No. SC01-1885.,SC01-1885.
• Citation: 838 So.2d 492
• Parties: CARIBBEAN CONSERVATION CORPORATION, INC., et al., Petitioners, v. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, et al., Respondents.
• Court: Florida Supreme Court

838 So.2d 492

CARIBBEAN CONSERVATION CORPORATION, INC., et al., Petitioners, v. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, et al., Respondents.

No. SC01-1885.

Supreme Court of Florida.

January 16, 2003.

David Guest, Earthjustice Legal Defense Fund, Tallahassee, FL, for Petitioners.

James V. Antista, General Counsel, on behalf of Fish and Wildlife Conservation Commission; and Thomas E. Warner, Solicitor General, T. Kent Wetherell, II, Deputy Solicitor General, and Matthew J. Conigliaro, Deputy Solicitor General, Office of the Solicitor General, Tallahassee, FL, on behalf of the Attorney General, for Respondents.

Gary V. Perko, Dan R. Stengle, and Gary P. Sams of Hopping, Green & Sams, P.A., Tallahassee, FL, for Marine Industries Association of Florida, Inc., Amicus Curiae.

WELLS, J.

We have for review a decision of a district court of appeal that expressly declares state statutes valid. Fla. Fish & Wildlife Conservation Comm'n v. Caribbean Conservation Corp., 789 So.2d 1053 (Fla. 1st DCA 2001). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons that follow, we approve the decision of the First District Court of Appeal and hold that the statutes challenged by the petitioners are constitutional, except that portion of section 20.331(6)(c)(1), Florida Statutes (1999), that refers to marine species that are "of special concern."

The petitioners are not-for-profit groups and individuals¹ who allege that sections 20.331(6)(c); 370.025(4); and 370.12(1)(c)(3), (1)(h), (2)(g)-(i), 2(k)-(o), 2(p)(1), and 2(q), Florida Statutes (1999), unconstitutionally usurp the constitutional authority of the Florida Fish and Wildlife Conservation Commission (FWCC) to regulate marine life. The petitioners contend that the constitutional powers of the FWCC encompass all marine life without exception and that therefore the Legislature cannot lawfully restrict the FWCC's management or regulatory actions regarding any subclass of marine life. The focal issue arising from the petitioners' challenge is whether the Legislature can require the FWCC to comply with the requirements of the Administrative Procedure Act (APA), ch. 120, Fla. Stat., when adopting rules or regulations in respect to those species of marine life that are defined as endangered, threatened, or species of special concern. The petitioners contend that the Legislature cannot require the FWCC to comply with the APA in adopting and administering such rules and regulations. The FWCC and the Attorney General (respondents) disagree and argue that the Legislature can require the application of the APA and that the statutes are constitutional.

HISTORICAL BACKGROUND

In 1998, Florida voters amended the Florida Constitution by approving a revision proposed by the Constitutional Revision Commission that created the FWCC and abolished the Florida Game and Fresh Water Fish Commission (Game Commission) and the Marine Fisheries Commission (Marine Commission). The revision, known as revision 5, is presently article IV, section 9, and article XII, section 23 of the Florida Constitution.

Prior to the adoption of the revision 5 constitutional amendments, regulation of Florida's wild animal life, freshwater aquatic life, and marine life was performed primarily by three separate agencies. These agencies were the Game Commission, the Marine Commission, and the Department of Environmental Protection (DEP).²

The Game Commission was a constitutional agency established by a 1942 constitutional amendment. See art. IV, § 30, Fla. Const. of 1885 (1942), amended by art. IV, § 9, Fla. Const. (1968). This constitutional provision authorized the Game Commission to carry out "the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life." Art. IV, § 9, Fla. Const. (1968).

The DEP was, and remains, a statutorily created agency which was established in 1993 by the merger of the then-existing Department of Environmental Regulation and Department of Natural Resources. With its creation, the DEP was given the statutory authority previously held by the Department of Natural Resources regarding "endangered and threatened" marine species. See ch. 93-213, § 3, Laws of Fla.; §§ 370.02(2), 370.12, 372.072(4)(a)(2), Fla. Stat. (Supp.1994).

The Marine Commission was created by statute in 1983. See ch. 83-134, § 1, Laws of Fla.; § 370.026, Fla. Stat. (1983). The Marine Commission was given jurisdiction over marine life with the express exception of "endangered species." § 370.027, Fla. Stat. (1983).³ The statute also expressly stated that "[A]ll administrative and enforcement responsibilities which are unaffected by the specific provisions of this act continue to be the responsibility of the department." § 370.027(1), Fla. Stat. (1983).

In 1990, the Court decided State v. Davis, 556 So.2d 1104 (Fla.1990), which concerned rules promulgated by the Marine Commission pertaining to gear specifications. We noted: "The gravamen of Davis' initial argument is that the [Marine] Commission's rule constitutes an invalid exercise of delegated legislative authority because section 370.027 prohibits any action by the Commission pertaining to endangered species." Davis, 556 So.2d at 1105. We rejected Davis's argument:

We find that a plain reading of section 370.027 does not preclude the Commission from establishing rules that might impact upon endangered species. Rather, the plain import of the reference to "endangered species" is to modify the Commission's otherwise "full" and "exclusive" rulemaking authority relating to all marine life. The statute does not say that the Commission cannot act at all with reference to endangered species; it says that the Commission is not the only agency permitted to act with reference to endangered species. Moreover, a TED is a shrimping gear specification. Clearly the Commission has the authority to regulate gear specifications. Thus, we are persuaded that the Commission's rulemaking power is circumscribed only by the requirement in the statute that the Commission act reasonably pursuant to the policy and standards in section 370.025.

. . . .

... Accordingly, the Commission has the power under sections 370.027 and 370.025 to protect and recover marine resources through fishing gear regulations just as it has the power to do so through season closures, bag limits, or fishery management plans.

Davis, 556 So.2d at 1106-07.

In January of 1998, this Court decided Advisory Opinion to the Attorney General re Fish & Wildlife Conservation Commission, 705 So.2d 1351 (Fla.1998) (hereinafter Advisory Opinion re FWCC), in which we assessed the validity of a citizens' initiative entitled "Fish and Wildlife Conservation Commission: Unifies Marine Fisheries and Fresh Water Fish Commissions." In pertinent part, the initiative provided:

(c) The Commission shall exercise the regulatory and executive powers of the state with respect to wild animal life, freshwater aquatic life, and marine aquatic life, except that all license fees for taking wild animal life, freshwater aquatic life and marine aquatic life, and penalties for violating regulations of the Commission shall be prescribed by specific statute. The Commission shall not be a sub-unit of any other state agency and shall have its own staff which includes management, research, enforcement and public information functions. The Legislature may enact laws in aid of the Commission, not inconsistent with this section. The Commission's exercise of executive powers in the area of planning, budgeting, personnel management and purchasing shall be as provided by law. Revenue derived from such license fees shall be appropriated to the Commission by the Legislature for the purpose of management, protection and conservation of wild animal life, freshwater aquatic life and marine aquatic life.

Id. at 1353 (quoting petition). We determined that the ballot summary was inaccurate and struck the initiative from the ballot. In our opinion, we wrote:

The summary does not explain to the reader that the power to regulate marine life lies solely with the legislature, which has delegated that power to not only the Marine Fisheries Commission but also the Department of Environmental Protection and the Department of Agriculture.[n.] Though the summary states that the purpose of the amendment is to "unify" the Marine Fisheries Commission with the Game and Fresh Water Fish Commission, those two entities do not share the same status. Despite the common label "commission," the former is a legislative creation while the latter enjoys independent constitutional stature. Thus the proposed amendment does not unify the two so much as it strips the legislature of its exclusive power to regulate marine life and grants it to a constitutional entity. The summary does not sufficiently inform the public of this transfer of power.

[n.] Thus, if the amendment were passed, the legislature's determination that the Department of Environmental Protection should regulate endangered marine species would no longer be effective. § 370.027; § 372.072(4)(a) 2, Fla. Stat. (1995).

Advisory Opinion re FWCC, 705 So.2d at 1355.

After our opinion was issued, the Constitutional Revision Commission, in its review of the constitution pursuant to article XI, section 2, proposed revision 5, which was placed on the ballot for the November 1998 election. Revision 5, as it appeared on the ballot, stated:

NO. 5

CONSTITUTIONAL REVISION ARTICLE II, SECTION 7(a);

ARTICLE IV, SECTION 9;

ARTICLE VII, SECTION 11(a)-(f);

ARTICLE X, SECTION 18;

ARTICLE XII, SECTION 22

(Constitutional Revision Commission)

Conservation of Natural Resources and Creation of Fish and Wildlife Conservation Commission

Requires adequate provision for conservation of natural resources; creates Fish and Wildlife Conservation Commission, granting it the regulatory and executive powers of the Game and Fresh Water Fish Commission and the Marine Fisheries

...