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Florida Supreme Court Determines Authority of Wildlife Commission

Caribbean Conservation Corporation v. Florida Fish and Wildlife Conservation Commission, 2003 Fla. Lexis 41 (Fla. Jan. 16, 2003).

Joseph M. Long, 2L
Stephanie Showalter, J.D., M.S.E.L.

In a recent decision, the Supreme Court of Florida addressed the issue of whether newly enacted state laws unconstitutionally usurped the state constitutional authority of the Florida Fish and Wildlife Conservation Commission (FWCC) to regulate marine life.

Background
Prior to 1998, the regulation of marine life in Florida was divided between three agencies, the Florida Game and Fresh Water Fish Commission, the Marine Fish Commission (MFC), and the Department of Environmental Protection (DEP). The Game Commission had regulatory authority over fresh water aquatic life. Endangered and threatened marine species were regulated by the DEP, and the MFC had jurisdiction over all marine life, with the exception of endangered species. Although the MFC could not directly implement regulations with respect to endangered marine species, the MFC was allowed to issue rules impacting endangered species, such as gear specifications.1

This division of power was altered in 1998, however, with the creation of the Florida Fish and Wildlife Conservation Commission (FWCC). Article IV of the Florida Constitution established the FWCC stating that “the commission shall exercise the regulatory authority and executive powers of the state with respect to wild animal life and fresh water aquatic life, and shall also exercise regulatory and executive powers of the state with respect to marine life.”2 Article XII transferred the jurisdiction, power, and rules of the MFC to the FWCC. The Game and Fresh Water Fish Commission and the MFC were disbanded.

Following the approval of the constitutional amendment, the Florida legislature enacted chapter 99-245. Chapter 99-245 gave the FWCC “full constitutional rule making authority over marine life and listed species as defined in [section] 372.072(3), except for endangered or threatened marine species for which rule making shall be done pursuant to chapter 120.”3 Chapter 120 contains the provisions of Florida’s Administrative Procedure Act (APA) which set out the various procedures an agency must adhere to when issuing rules and regulations. Chapter 99-245 also grants the protection of the APA to any party whose interests will be affected by the Commission’s performance of its statutory duties, including “research management responsibilities for marine species listed as endangered, threatened, or of special concern, including, but not limited to, manatees and marine turtles.” The FWCC is also required to comply with the APA when adopting rules concerning marine turtles and manatees.

These sections of Chapter 99-245 were challenged by environmental organizations under Articles IV and XII of the Florida Constitution. The petitioners argued that the above provisions of chapter 99-245 were unconstitutional. They contended that the Legislature gave full constitutional rule making authority over all marine life to the FWCC and, therefore, the Legislature could not require the FWCC to comply with the APA when issuing regulations with respect to endangered and threatened species or species of special concern. In 1996, Florida’s APA was amended to improve legislative oversight of the rulemaking process. The petitioners apparently felt that additional legislative oversight of the FWCC infringed upon the agency’s authority to issue regulations.

Lower Court Decisions
The circuit court, the trial court in Florida, agreed with the petitioners and held that the FWCC’s exercise of authority over endangered and threatened marine species could not be made subject to the provisions of the APA. The circuit court held that the FWCC “acts not as an administrative agency but as a constitutional commission with ‘constitutional authority to promulgate rules that impact upon endangered and threatened species and to otherwise act in reference to endangered and threatened species.’”4 Chapter 99-245 is therefore unconstitutional, according to the circuit court, to the extent it requires the FWCC to adhere to the APA when exercising its constitutional powers.

The First District Court of Appeals, a mid-level appellate court, disagreed with the circuit court’s conclusion that the FWCC has constitutional authority over endangered species and is exempt from the APA. The district court ruled that chapter 99-245 was constitutional. The petitioners appealed to the Supreme Court of Florida.

Authority of the FWCC
The Florida Supreme Court initially examined whether the Florida Constitution gave the FWCC full constitutional regulatory authority over all marine life. The petitioners argued that Article IV, section 9 of the Florida Constitution gave the FWCC full authority. The court read the language of the Article IV, in conjunction with Article XII, and concluded that the two provisions “gave to the FWCC regulatory and executive powers with respect to marine life, including the regulatory and executive powers of the Marine Commission in effect on March 1, 1998.”5 The court found that the FWCC did gain regulatory and executive powers with respect to some marine life, but not all, because some power over endangered and threatened marine life remained with the DEP.

Prior to the enactment of the Constitutional amendment, the DEP regulated endangered and threatened marine life. The MFC did not have authority over these species. The Supreme Court, therefore, determined that the transfer of authority to the FWCC did not include any authority over endangered or threatened marine life. This conclusion is consistent with the language of the Article IV and the legislative history of the amendment. The Supreme Court stated that Article IV gave the FWCC some regulatory powers with respect to marine life, but not “the” regulatory power of the state. The court reached this conclusion by dissecting the phrasing of Article IV. While there is a “the” before “regulatory” in the phrase, “FWCC shall exercise the regulatory and executive powers of the state with respect to wild animal life and fresh aquatic life,” there is no “the” prior to “regulatory” in the phrase immediately following which states, “shall also exercise regulatory and executive powers of the state with respect to marine life.” The missing “the” indicated a difference in the level of authority designated to the FWCC by the Florida Congress. While the FWCC has the full powers of the state with respect to wild animal life and fresh water aquatic life, the Commission only has some powers with respect to marine life. In reviewing other relevant sections of the Florida Constitution and the legislative history of the provisions, the Court found that it was the intent of the Florida Constitutional Revision Committee to keep the “regulatory authority which is being transferred . . . narrow in scope.”6 The Revision Committee transcripts also indicate a specific intent to allow regulatory authority over endangered and threatened species to remain with the DEP.

Conclusion
The challenged sections of the Florida Statutes, concerning the FWCC’s regulatory and executive authority over marine life, are constitutional. The FWCC must comply with the APA when issuing rules and regulations concerning endangered and threatened marine species.

ENDNOTES
1. State v. Davis, 556 So. 2d. 1104, 1006 (Fla. 1990). In Davis, the MFC passed an emergency rule that prohibited possessing a trawler rig that was not equipped with a qualified turtle excluder device.
2. Fla. Const. art. IV, § 9.
3. Fla. Stat. Ann. § 20.331(6)(c) (2002).
4. Caribbean Conservation Corp. v. Florida Fish and Wildlife Conservation Comm’n, 2003 Fla. Lexis 41, at *16 (Fla. Jan. 16, 2003).
5. Id. at *24.
6. Id. at *27.

University of Mississippi