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9/19/07
Dear Commissioners,
My name is David Grix. I am the VP of Fishing For Freedom and webmaster of http://fishingforfreedom.net .
Pertaining to any size mesh (holes) that we are seeking in fishing nets. I will provide you with some of the history. There will be a lot I left out that further supports the change in mesh size.
To begin with, after the amendment to LIMIT net fishing, the MFC (FWC) redefined what a "seine net" is and removed all of the large mesh. (Insane) Historically, that large mesh allowed the majority of by-catch to escape. Since then, the FWC staff informed us that there “is no such thing” as the “other rectangular nets” the voters, through the constitution, provided us with. (If you are an attorney, that “goof” should amaze you.)
1. The 2” stretch mesh (1” square holes) net became law because:
A. A decade ago, FMRI (FWRI) gear expert, Brent Winner, told the court that the nets would only have around 5% by-catch. (1 wasted fish for every 19 marketable fish caught.)
B. Our expert testimony that the nets would have a devastating by-catch was considered anecdotal by the ALJ. (Administrative Law Judge)
C. The ALJ, Ella Jane Davis, passed the 2" stretch mesh net size agreeing with the FMRI “expert’s” testimony that, “there would be no unnecessary levels of by-catch and the nets would be commercially viable, except maybe in roe mullet season.” (Egg bearing season.)
2. The DCA affirmed this decision, giving the MFC constitutional authority to implement the seine net rule a year before they had they even had the authority. (We figured that out years later.)
3. Simultaneously as #2 occurred, the Legislature provided us with 370.093(2)(b) to prevent a “taking,” allowing us to use non-monofilament nets with any mesh size.
This statute still exists.
4. For some unknown reason, the FMP/FWC began arresting fishermen using these legislatively granted, legal nets within 3 months after the law passed.
5. Judge Charles D. McClure declared our big mesh nets were constitutional.
6. The DCA overturned Judge Mc Clure’s decision in 1999 citing primary jurisdiction.
7. Legislative attempts to increase the mesh size were overturned due to the Legislature being prohibited from even reviewing FWC Constitutional rules. (Representative Kendrick’s Bills)
8. Judge Sander Sauls (Bush-Gore Judge), wrote a 27 page decision in our favor declaring the FWC 2” mesh net unconstitutional in 2000.
9. The DCA sealed the decision and claimed we failed to exhaust administrative remedies (there are none that we failed to address) and primary jurisdiction.
10. In 2003 we presented a “hybrid” nets to the courts… Once again the DCA declared FWC primary jurisdiction and stated we still had failed to “exhaust administrative remedies”…after 8 years.
11. The DCA all along refused to write an opinion. Without an opinion, as the DCA knew, we were not permitted to appeal our cases to the Supreme Court. (Law)
12. We worked with the Legislature and the Speaker of the House (by E-mail with the Speaker) on the net and due process issues. An OPPOGA investigation on the FWC was threatened. (Government accountability Investigation) In trade for no investigation, the FWC chose to test the impact of the nets. (The MFC/FWC had refused to do so for the 7 previous years because they knew their testimony from the ALJ case was completely false.) … Until this date, for 7 years, with 750 scientists, the FWC/FWRI had intentionally not tested the nets.
13. The FWC/FWRI and our fishermen jointly conducted net tests. The same FWRI “expert” that testified there would only be around a 5% by-catch before the ALJ in 1996-7, admitted that “No one can catch a fish with the 2” stretch mesh net.” Mr. Winner, the “expert,” cancelled the tests after two days of testing. The end results proved our minimum mesh size of 3” had about a 2% by-catch versus a 98% by- catch with the FWC mandated 2” mesh net. In other words… Our net caught 50 marketable fish for each fish wasted/discarded, while the FWC net caught an appalling 1 marketable fish for each 49 wasted/discarded. The FWC then declared we had dealt in “bad faith” by filing for an injunction BEFORE the net tests were stopped by the FWC/FWRI. We filed AFTER the FWC/FWRI stopped all tests and we informed the staff that we would file for an injunction if the FWC refused to act on the data. (We operate entirely in good faith)
14. The FWC held two net meetings with 12 people from industry. (Including Ted Forsgren of the CCA). We voted 11 to 1 to support increased fines and felonies in exchange for the increase in mesh sizes to allow innocent, law abiding fishermen a “choice” and an opportunity to make a living without destroying the environment, economy and wasting 98% of their time killing juvenile fish. The FWC staff promised to present the 11 to 1 vote in favor of this action at the FWC Duck Key meeting that year. Our proposal of larger mesh in exchange for increased fines and felonies was NOT presented, ONLY the vote for increased fines and felonies was. The increase of fines and felonies was pushed by the commission in the Legislature and signed into law. (See #15)
15. The FWC promised the House that fishermen would receive bigger mesh (or “a choice”) if the House passed huge civil fines and felony status against net fishermen that broke the law. The FWC received the huge civil fines and felony status… And as usual, the FWC dealt in Bad Faith with us and the Legislature. We received NOTHING. (Even worse, see #16)
16. The FWC promised the House not to add nets that were tied together to exceed the 2,000 square feet of mesh area - that if exceeded, created a felony. The FWC lied to the House and to us… arresting fishermen on felony charges for tying together nets that didn’t cross into felony guideline until tied together.
17. Two more FWC net workshop meetings were held. We have on CD, Colonel Jones apologizing for a lengthy period of time about the fact that we didn’t get the nets we were led to believe we were going to get from the FWC.
18. At the first net workshop meeting, the two invited guests from the NOAA/NMFS stated they couldn’t imagine that anyone could catch a marketable fish with the FWC mandated net.
19 Federal law mandates a 3” minimum mesh size for bluefish and a 3 ½” minimum mesh size for Spanish Mackerel. You (the commission) allow a 2” maximum mesh size? Make sense to you? Similar problems with mullet and pompano. What’s left? Nothing.
FWC refusal to fix the net problem and to create due process caused our group to petition the legislature to cut the FWC budget a couple of years ago… and they did. The legislature, through several bills, have attempted to force the FWC to create the “adequate due process” as required in Art IV, Sec 9 since the FWC’s inception to no avail. With due process we would prevail on the net issue. EVERYTIME the substantive issue has been addressed by the courts since the 1st ALJ case, we have prevailed… ONLY to be overturned due to primary jurisdiction, failure to exhaust non-existent administrative remedies, and the courts declaring they can’t question FWC “wisdom.” You’ve mandated a net that has a 49 to 1 unnecessary killing and waste ratio. That logic is called “wisdom” under an amendment that mandates the prevention of exactly that type of scenario. Make sense to you? Not to us! … Or any rational being for that matter.
If the net situation is not addressed and fixed at the next FWC meeting in the Keys, we will be forced to pursue the FWC’s Federal funds and federal court action to escape the politics of the state court. The FWC receives Federal funds tied to the Magnussen Stevenson Act. The same act mandates that the states reduce by-catch. The FWC took a traditional net that had a 2-3% by-catch and by misinforming the ALJ in the mid 90’s, turned it into a net that has a 98% by-catch. Jonathon Glogau, the FWC’s “complex litigation specialist attorney” told the courts that the Magnussen Stevenson Act was “garbage.” I don’t believe the Feds will feel the same way. Your Chief Attorney, Jim Antista, informed 5 of us in front of Executive Director Kenneth Haddad, the he believes there should be “a total net ban.” (That’s what we are dealing with commissioners.)
Don’t you (commissioners) think it’s time to fix the net problem that is killing the HONEST fishermen, hurting the environment, economy and citizens? Your attorneys have admitted that you can fix this problem (so you aren’t violating the constitution) and the courts can’t question your wisdom. In addition, as mentioned by the Chief Judge in our latest 1st DCA case, two of your own experts stated there is “no rational basis for the 2” mesh rule.”
What is written above is only part of what we have been through with the FWC for the last 8 years.
QUESTIONS?
Dave Grix
561-252-0550
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Governor Bush signs the bill that created felonies and increased fines against fishermen. Fishermen never received the promised net choices that the FWC told the Legislature they would deliver in exchange for the bill. Secondly, fishermen were arrested under felony charges that the FWC promised NOT to make in exchange for the bill. This is yet another example of the "mischief" that can occur with an "imperious" form of government. (1st DCA Chief Judge Browning's description of what can occur with government entities like the FWC if never held unaccountable to the checks and balances provided by our constitutions. From our most recent DCA case.)
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