November 16, 2013
By Kevin Lollar
In the soft, orange light of dawn last week, commercial fisherman Mike Dooley ran his mullet skiff along a mangrove island in Matlacha Pass and made his first set of the day.
Dozens of mullet swirled and jumped behind the boat, but when the 60-year-old Dooley pulled his net, all but three had escaped.
Traditionally, Florida’s inshore fishermen used gill nets to catch mullet, varying the size of the mesh with the size of the fish: In the spring, when mullet are small, they used 3-inch mesh; in the winter roe season, when mullet are at their maximum size, they used 4-inch mesh.
But under the state’s net limitation regulations, which went into effect in 1995, nets cannot have mesh sizes greater than two inches, so most of the mullet simply bounced off Dooley’s net.
“If the state would let us use nets with the right mesh size, I could have caught 300 pounds right here,” Dooley said. “You change mesh size to catch the size fish you want. The people who figured that out didn’t learn it in school. They learned it on the water. But the state didn’t use that knowledge.”
Commercial mullet fishing in Florida is a game of inches, and a recent judicial ruling has revived an 18-year controversy over the mesh size of commercial nets.
On Oct. 22, Judge Jackie Fulford, of the Second Judicial Circuit, ruled that net-limitation regulations, which she called a “legal absurdity,” would no longer be enforced.
Fulford’s ruling was in a case in which Wakulla County commercial fishermen sued the Florida Fish and Wildlife Conservation Commission over the legality of commercial fishing regulations.
In several other cases challenging the net law, judges have found in favor of the FWC; in a 2002 case, a Wakulla County judge ruled in favor of commercial fishermen, but the ruling was reversed by the First District Court of Appeals.
“It would be much easier to simply deny the Plaintiffs any relief and say ‘you have had your day in court,’” Fulford wrote. “But the application of these laws by FWC appears to be fundamentally unfair and this Court, as a court of equity, feels compelled to at least attempt to abate the unfairness.”
Soon after Fulford’s ruling, the state announced it would appeal, which automatically put a stay on Fulford’s injunction, and on Oct. 30, Fulford announced that she would lift FWC’s stay.
On Nov. 1, Col. Calvin Adams, director of FWC’s Division of Law Enforcement, sent a memo to law enforcement personnel stating that the net limitation rules would not be enforced “until further information is received from the court.”
Five days later, First District Court of Appeals overruled Fulford and reinstated the automatic stay, which means FWC is no longer prohibited from enforcing net rules.
The story begins in the early 1990s, when the recreational fishing community, led by the Florida Conservation Association (now Coastal Conservation Association-Florida) mounted a multimillion-dollar campaign to ban the use gill nets in state waters.
Gill nets are simple technology: When a fish of the right size swims into the net, its head goes through the mesh, and it is caught by the gills; smaller fish swim through the mesh without being gilled.
According to the anti-net lobby, gill nets were not only wiping out fish stocks, but they were also killing sea turtles, dolphins and birds.
In the early 1990s, data didn’t show that fish stocks were being harmed by gill nets, said Steve Bortone, environmental consultant and former executive director of the Gulf of Mexico Fishery Management Council.
“It was a gut feeling that gill nets must be bad,” he said. “This was economic discrimination against a group of people. The recreational side and environmentalists ganged up on them with little information.”
Florida residents successfully petitioned the state to place an amendment banning the use of gill nets or other entangling nets in state waters on the 1994 ballot; the amendment passed by a 3-to-1 margin.
Under the amendment, a gill net is “one or more walls of netting which captures saltwater finfish by ensnaring or entangling them in the meshes of the net by the gills.”
Commercial fishermen were allowed to use hand-held cast nets and two seines of no more than 500 square feet each — before the net limitation, mullet fishermen typically used 400 to 500 yards of gill net that were five to six feet deep.
But the amendment didn’t specify what size mesh commercial fishermen could use, so FWC defined a gill net as a net with a mesh size greater than two inches.
A two-inch mesh size limit presents two problems:
• The heads of legal-size mullet are too large to fit through the net, so most of the fish bounce off and get away.
• The heads of undersize fish do fit through the net, so these fish are often gilled; in effect, the legal two-inch seine is a gill net — fishing Matlacha Pass last week, Dooley gilled two juvenile snook and numerous juvenile sheepshead, sand bream and mangrove snapper.
A key issue in Fulford’s ruling was that the amendment’s stated intent is “to protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, overfishing and waste.”
Fulford wrote: “If that is true, how can it be acceptable that the only net that FWC will permit 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?”
Ted Forsgren, executive director of CCA-Florida, criticized Fulford’s ruling.
“We don’t think she did a good job with the law,” he said. “We think she completely ignored previous rulings that came before from judges in the area.”
To catch legal-size mullet more efficiently and to avoid catching juvenile fish, commercial fishermen would like the state to allow them to fish with two 500-square-foot nets, as stipulated by the state Constitution, with mesh sizes that vary with the size fish they’re targeting.
“We don’t want thousands of square feet of net,” said Dooley’s son, Shane, 34. “We just want something we can make a living with without destroying the environment.”
Florida constitutional law expert Talbot “Sandy” D’Alemberte, a professor at Florida State University College of Law, said that if the net-limitation amendment is found to be invalid, the state could choose not to apply it.
Furthermore, he said, the regulations concerning mesh size could easily be rewritten.
As to the amendment itself, D’Alemberte said: “I thought, without analysis, that it might be a good idea as a conservation movement. I’m ashamed to say that I did not take time to study it and think it through. I think we need to do that now.”