Supreme Court Determines Authority of Wildlife Commission
Corporation v. Florida Fish and Wildlife Conservation Commission,
2003 Fla. Lexis 41 (Fla. Jan. 16, 2003).
Stephanie Showalter, J.D., M.S.E.L.
In a recent decision,
the Supreme Court of Florida addressed the issue of whether newly enacted
state laws unconstitutionally usurped the state constitutional authority
of the Florida Fish and Wildlife Conservation Commission (FWCC) to regulate
Prior to 1998, the regulation of marine life in Florida was divided
between three agencies, the Florida Game and Fresh Water Fish Commission,
the Marine Fish Commission (MFC), and the Department of Environmental
Protection (DEP). The Game Commission had regulatory authority over
fresh water aquatic life. Endangered and threatened marine species were
regulated by the DEP, and the MFC had jurisdiction over all marine life,
with the exception of endangered species. Although the MFC could not
directly implement regulations with respect to endangered marine species,
the MFC was allowed to issue rules impacting endangered species, such
as gear specifications.1
This division of power was altered in 1998, however, with the creation
of the Florida Fish and Wildlife Conservation Commission (FWCC). Article
IV of the Florida Constitution established the FWCC stating that the
commission shall exercise the regulatory authority and executive powers
of the state with respect to wild animal life and fresh water aquatic
life, and shall also exercise regulatory and executive powers of the
state with respect to marine life.2 Article XII transferred
the jurisdiction, power, and rules of the MFC to the FWCC. The Game
and Fresh Water Fish Commission and the MFC were disbanded.
Following the approval of the constitutional amendment, the Florida
legislature enacted chapter 99-245. Chapter 99-245 gave the FWCC full
constitutional rule making authority over marine life and listed species
as defined in [section] 372.072(3), except for endangered or threatened
marine species for which rule making shall be done pursuant to chapter
120.3 Chapter 120 contains the provisions of Floridas
Administrative Procedure Act (APA) which set out the various procedures
an agency must adhere to when issuing rules and regulations. Chapter
99-245 also grants the protection of the APA to any party whose interests
will be affected by the Commissions performance of its statutory
duties, including research management responsibilities for marine
species listed as endangered, threatened, or of special concern, including,
but not limited to, manatees and marine turtles. The FWCC is also
required to comply with the APA when adopting rules concerning marine
turtles and manatees.
These sections of Chapter 99-245 were challenged by environmental organizations
under Articles IV and XII of the Florida Constitution. The petitioners
argued that the above provisions of chapter 99-245 were unconstitutional.
They contended that the Legislature gave full constitutional rule making
authority over all marine life to the FWCC and, therefore, the Legislature
could not require the FWCC to comply with the APA when issuing regulations
with respect to endangered and threatened species or species of special
concern. In 1996, Floridas APA was amended to improve legislative
oversight of the rulemaking process. The petitioners apparently felt
that additional legislative oversight of the FWCC infringed upon the
agencys authority to issue regulations.
Lower Court Decisions
The circuit court, the trial court in Florida, agreed with the petitioners
and held that the FWCCs exercise of authority over endangered
and threatened marine species could not be made subject to the provisions
of the APA. The circuit court held that the FWCC acts not as an
administrative agency but as a constitutional commission with constitutional
authority to promulgate rules that impact upon endangered and threatened
species and to otherwise act in reference to endangered and threatened
species.4 Chapter 99-245 is therefore unconstitutional,
according to the circuit court, to the extent it requires the FWCC to
adhere to the APA when exercising its constitutional powers.
The First District Court of Appeals, a mid-level appellate court, disagreed
with the circuit courts conclusion that the FWCC has constitutional
authority over endangered species and is exempt from the APA. The district
court ruled that chapter 99-245 was constitutional. The petitioners
appealed to the Supreme Court of Florida.
Authority of the
The Florida Supreme Court initially examined whether the Florida Constitution
gave the FWCC full constitutional regulatory authority over all marine
life. The petitioners argued that Article IV, section 9 of the Florida
Constitution gave the FWCC full authority. The court read the language
of the Article IV, in conjunction with Article XII, and concluded that
the two provisions gave to the FWCC regulatory and executive powers
with respect to marine life, including the regulatory and executive
powers of the Marine Commission in effect on March 1, 1998.5
The court found that the FWCC did gain regulatory and executive powers
with respect to some marine life, but not all, because some power over
endangered and threatened marine life remained with the DEP.
Prior to the enactment of the Constitutional amendment, the DEP regulated
endangered and threatened marine life. The MFC did not have authority
over these species. The Supreme Court, therefore, determined that the
transfer of authority to the FWCC did not include any authority over
endangered or threatened marine life. This conclusion is consistent
with the language of the Article IV and the legislative history of the
amendment. The Supreme Court stated that Article IV gave the FWCC some
regulatory powers with respect to marine life, but not the
regulatory power of the state. The court reached this conclusion by
dissecting the phrasing of Article IV. While there is a the
before regulatory in the phrase, FWCC shall exercise
the regulatory and executive powers of the state with respect to wild
animal life and fresh aquatic life, there is no the
prior to regulatory in the phrase immediately following
which states, shall also exercise regulatory and executive powers
of the state with respect to marine life. The missing the
indicated a difference in the level of authority designated to the FWCC
by the Florida Congress. While the FWCC has the full powers of the state
with respect to wild animal life and fresh water aquatic life, the Commission
only has some powers with respect to marine life. In reviewing other
relevant sections of the Florida Constitution and the legislative history
of the provisions, the Court found that it was the intent of the Florida
Constitutional Revision Committee to keep the regulatory authority
which is being transferred . . . narrow in scope.6 The
Revision Committee transcripts also indicate a specific intent to allow
regulatory authority over endangered and threatened species to remain
with the DEP.
The challenged sections of the Florida Statutes, concerning the FWCCs
regulatory and executive authority over marine life, are constitutional.
The FWCC must comply with the APA when issuing rules and regulations
concerning endangered and threatened marine species.
1. State v. Davis, 556 So. 2d. 1104, 1006 (Fla. 1990). In Davis,
the MFC passed an emergency rule that prohibited possessing a trawler
rig that was not equipped with a qualified turtle excluder device.
2. Fla. Const. art. IV, § 9.
3. Fla. Stat. Ann. § 20.331(6)(c) (2002).
4. Caribbean Conservation Corp. v. Florida Fish and Wildlife Conservation
Commn, 2003 Fla. Lexis 41, at *16 (Fla. Jan. 16, 2003).
5. Id. at *24.
6. Id. at *27.