In 1998 the voters of Florida overwhelmingly approved adding Amendment 5 to the Florida Constitution. That amendment mandated the merging of the Florida Game and Fresh Water Fish Commission and the Marine Fisheries Commission into one new fish and wildlife conservation commission responsible for managing and protecting all of Florida's wildlife.
Amendment 5 specifically states that the new commission "shall exercise regulatory and executive powers of the state with respect to marine life." However, despite this clear directive for the new FWCC to protect all marine species, the 1999 Florida legislature withheld this authority from the FWCC. The legislation implementing the amendment and establishing the FWCC states "the commission has full constitutional rulemaking authority over marine life, and listed species as defined in s. 372.072(3), except for endangered and threatened marine species..." This is an attempt by the legislature to maintain control over threatened and endangered marine species protection and limit the constitutional protections afforded them by Amendment 5. In its complaint, STSL and SMC seeks to have the language removed from the FWCC implementing legislation.
The consequence of this language, if allowed to remain in effect, is that the new commission can only promulgate rules affecting these marine species when the legislature statutorily authorizes the commission to do so. However, current strong statutory protections could be weakened in the future by a "wildlife unfriendly" legislature. Additionally, parties affected by a proposed rule issued under statutory authority or by other actions addressing threatened and endangered marine species, can challenge the action through the state's Administrative Procedures Act (APA) to immediately slow or stop the proposed rule. The APA is continually being manipulated by the legislature and could be used to make it increasingly difficult to protect these marine species. In contrast , challenges to rules promulgated under the FWCC's constitutional authority must be made through the circuit court system, which in practice affords the agency action a presumption of validity until proven otherwise.
SMC, STSL and other environmental organizations worked hard, but unsuccessfully, during the 1999 legislative session to have this unconstitutional language removed from the FWCC enabling legislation. In response to this legal action, Pat Rose from SMC stated, "This court action is being taken to reverse the legislature's attempt to withhold constitutionally guaranteed protection for endangered and threatened marine species." David Godfrey, STSL's Executive Director stated, "It is unfortunate we have to go to court over this. However, we feel very strongly that endangered and threatened marine species are the primary candidates for the full protections intended by Amendment 5, which was overwhelmingly approved by Florida's voters."
The Sea Turtle Survival League is a program of the Caribbean Conservation Corporation (CCC). CCC is the worlds oldest non-profit sea turtle research and conservation organization, which is celebrating its 40th anniversary this year. Information about CCC, STSL and other issues related to sea turtles can be found on CCC's web site at http://www.cccturtle.org
Save the Manatee Club is a national membership based organization doing work exclusively for the protection of manatees and their habitats.
Representing the plaintiffs is the Tallahassee office of the Earthjustice Legal Defense Fund which handles cases across the country in matters affecting the health of the environment.