Marine Endangered Species Rules Subject to APA - by Clay Henderson - Holland & Knight Consulting
July 19, 2001
When Florida's Constitution Revision Commission proposed the creation of a
new Fish and Wildlife Conservation Commission, the biggest issue was whether
decisions of the new independent agency would be reviewable by the courts or
through the Administrative Procedure Act (APA). The First District Court of
Appeal has ruled that regulations relating to marine endangered species, such as
manatees and sea turtles, must be developed and challenged through the APA.
Florida Fish and Wildlife Conservation Commission v. Caribbean Conservation
Corp., Case No. 1D00-1389 (Fla. 1st DCA June 12, 2001).
Voters approved Revision 5, also known as the Conservation Amendment, in
1998. Among other things it created a new Fish and Wildlife Conservation
Commission through the merger of the Game and Freshwater Fish Commission and the
Marine Fisheries Commission. The former was an independent agency with
constitutional authority regulating "wild animal life and freshwater
aquatic life." Its rules were subject to review only by the courts as if
they were laws passed by the legislature. By contrast, the Marine Fisheries
Commission was a creature of statute that regulated takings of salt water
species including marine endangered species, such as manatees, sea turtles and
whales. Its rules and regulations, like other state agencies', were subject to
challenge through the APA.
Following the ratification of Revision 5, the Legislature enacted Ch.99-245,
Laws of Florida, to implement the new Fish and Wildlife Conservation Commission.
Therein, the Legislature specifically transferred all authority over marine
endangered species to the FWCC subject to the APA. Caribbean Conservation Corp
filed suit for a declaratory judgment that Ch. 99-245, Laws of Florida, was
unconstitutional because the legislative requirement concerning the
applicability of the APA was contrary to the plain meaning of Revision 5, which
provides that that commission "shall also exercise regulatory and executive
powers of the state with respect to marine life." The trial court agreed
and granted summary judgment in favor of the conservation group. The FWCC
appealed.
The First DCA reversed the trial court, holding that the legislature had the
authority to regulate marine endangered species and that authority was conveyed
to the Marine Fisheries Commission and later merged into the new Fish and
Wildlife Conservation Commission. Accordingly, the legislature had the power to
restrict the exercise of that power to be consistent with the APA.
Regulation of endangered species continues to be a hot topic in Florida. In
recent years, manatee and sea turtle protection rules have had significant
impacts on waterways and beaches. Business advocates have generally advocated
use of the APA for participation in rulemaking and challenging particular rules.
Related Practices