Attorney General of Florida — Opinion
May 23, 1989
Operation of Ch 18740, Laws of Florida 1938
Robert A. Butterworth Attorney General
Mr. Russell Nelson Executive Director Marine Fisheries Commission 2540 Executive Center Circle West, Suite 106 Tallahassee, Florida 32301
Dear Mr. Nelson:
You ask substantially the following questions:
(1) Are the provisions of Ch. 18740, 1937 Laws of Florida, prohibiting “any other apparatus or device whatsoever for the purpose of catching fish” still in effect?
(2) Does the term “fish” in the above provision include shrimp and crabs?
(3) What measures must the Florida Marine Patrol take in order to ensure adequate notice to members of the public fishing in the effective area?
In sum, I am of the opinion that:
(1) The provisions of Ch. 18740, Special Acts of 1937, repealed by Ch. 83-134, Laws of Florida, and carried forward as rules of the Department of Natural Resources, are still in effect.
(2) The provisions in Ch. 18740, Special Acts of 1937 relating to the catching of fish include the catching of shrimp and crabs.
(3) A determination as to what measures must be taken by the Florida Marine Patrol in order to provide adequate notice to members of the public is a determination which must be made by the Florida Marine Patrol and cannot be delegated to this office.
Section 1, Ch. 18740, Special Acts of 1937, provides:
That from and after the passage of this Act it shall be unlawful for any person, persons, firm or corporation, to use or have in his possession any stop net or seine, or any other apparatus or device whatsoever for the purpose of catching fish in Old Tampa Bay North of Gandy Bridge or any creek or bayou emptying into said Bay, other than an ordinary gill net, cast net or hook and line, and the possession of any such stop net, or seine, or apparatus or device by any person, persons, firm or corporation, in or on said waters shall be prima facie evidence of intention and purpose of catching fish in said waters.[1]
The Marine Fisheries Commission (commission) was created by Ch. 83-134, Laws of Florida. Section 2(2) of the act provides that the commission is delegated full rulemaking authority over marine life, with the exception of endangered species, subject to final approval by the Governor and Cabinet sitting as the head of the Department of Natural Resources (department). To the extent of any conflicting authority of another division or bureau of the department or other state agency, such commission rules prevail in the following areas:
a) gear specifications,
b) prohibited gear,
c) bag limits,
d) size limits,
e) species that may not be sold,
f) protected species,
g) closed areas,
h) quality control codes,
i) seasons, and
j) special considerations relating to eggbearing females and oyster and clam relaying.
Chapter 83-134, Laws of Florida repealed several local laws pertaining to saltwater fishing to the extent that they related to the above areas. Included was the repeal of Ch. 15379, Special Acts of 1931, as amended by Ch. 18740, Special Acts of 1937.[2]
These special laws, however, “shall continue in effect as rules of the department.”[3] You state that there have been no changes amending or repealing these laws, other than those mentioned above.
QUESTION ONE
You have advised this office that the Florida Marine Patrol, as did its predecessor, the Florida State Board of Conservation, publishes a book intended to contain accurate copies of the laws applicable to marine resources. The Marine Patrol officers use this “Florida Marine Patrol Law Book” in the field as an enforcement aid in carrying out their duties to enforce the laws of this state, including the rules of the commission and the department. You state that the staff of the Marine Fisheries Commission recently discovered that the Marine Patrol Book excluded the following phrase from Ch. 18740, Special Acts of 1937: “or any other apparatus or device whatsoever for the purpose of catching fish.” The commission has been advised that the above language was contained in the manual from 1937 to 1955; however, the 1960 version deleted the phrase. You indicate that as a result of the deletion from the book, the Florida Marine Patrol has not been enforcing this provision. You, therefore, inquire whether the deleted provision is still in effect.
As stated above, s. 2(5)(a), Ch. 83-134, Laws of Florida repealed Ch. 18740, Special Laws of 1937, “to the extent [the special act] relate[s] to those areas specified in subsection (2).” Chapter 18740, supra, prohibiting certain gear in Old Tampa Bay and its tributaries north of Gandy Bridge, appears to fall within those areas of s. 2(2), Ch. 83-134, Laws of Florida, which refer, among other things, to prohibited gear and closed areas.
Thus, the provisions of Ch. 18740, Special Acts of 1937, were repealed by Ch. 83-134, Laws of Florida, and carried forward as rules of the Department of Natural Resources. As noted above, these rules do not appear to have been amended, modified or repealed. Accordingly, this office has no authority to declare such rules no longer valid or effective. Instead this office must presume the validity or effectiveness of such rules until declared otherwise in a court of competent jurisdiction. Therefore, I am of the opinion that the provisions of Ch. 18740, Special Acts of 1937, repealed by Ch. 83-134, Laws of Florida, and carried forward as rules of the Department of Natural Resources, are still in effect.
QUESTION TWO
Chapter 18740, Special Acts of 1937, prohibits the use or possession of any stop net or seine, or any other apparatus or device for the purpose of catching fish in Old Tampa Bay north of Gandy Bridge or its tributaries, other than an ordinary gill net, cast net or hook and line. The act, however, does not define the term “fish.”
As you note in your letter, s. 370.01(2), F.S., defines the term “saltwater fish” to include “all classes of pisces, shellfish, sponges and crustacea indigenous to salt water.” While the above definition first appeared in 1941 as s. 371.01(12), F.S. 1941, you state that you have been unable to find any specific definition of “saltwater fish” in existence prior to 1941, although the subject has been regulated by the State since 1880’s.[4] The term “fish,” however, in its broadest sense has been generally held to be a designation of almost any exclusively aquatic animal and to include oysters, clams and other shell fish.[5]
Accordingly, in the absence of judicial clarification and based upon the above, I am of the opinion that the term “fish” includes shrimp and oysters.
Question Three
You ask what measures should be taken by the Florida Marine Patrol in order to ensure that members of the public who are fishing in the affected area are notified. This office can only advise you that, absent amendment or repeal of these rules, this office must presume that the provisions of Ch. 18740, Special Acts of 1937, are still in effect. The determination as to the measures that should be taken to notify the public of enforcement of the rules involves questions of administrative policy which must be made by the Florida Marine Patrol and cannot be delegated to this office.
Sincerely,
Robert A. Butterworth Attorney General
RAB/tjw