Dept. of Environ. Protection v. Millender

666 So. 2d 882
CourtSupreme Court of Florida
DecidedJanuary 18, 1996
Docket85880
StatusPublished
Cited by19 cases

This text of 666 So. 2d 882 (Dept. of Environ. Protection v. Millender) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dept. of Environ. Protection v. Millender, 666 So. 2d 882 (Fla. 1996).

Opinion

666 So.2d 882 (1996)

DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al., Appellants,
v.
Bruce MILLENDER, et al., Appellees.

No. 85880.

Supreme Court of Florida.

January 18, 1996.

*883 Robert A. Butterworth, Attorney General and Jonathan A. Glogau, Assistant Attorney General, Tallahassee, on behalf of the Department of Environmental Protection, et al.; and Terry L. McCollough of Terry L. McCollough, P.A., Orlando, on behalf of Florida Conservation Association, for Appellants.

J. Patrick Floyd of J. Patrick Floyd, P.A., Port St. Joe, Florida, on behalf of Bruce Millender, et al.; Alfred O. Shuler of Shuler and Shuler, Apalachicola, Florida, on behalf of Franklin County; and Ronald A. Mowrey of Mowrey & Newman, P.A., Tallahassee, Florida, on behalf of Wakulla County, for Appellees.

SHAW, Justice.

We have for review a final declaratory judgment of the Circuit Court in Franklin County, construing article X, section 16, Florida Constitution, limiting marine net fishing. The First District Court of Appeal certified the trial court order to be of great public importance, requiring immediate resolution by this Court. We have jurisdiction. Art. V, § 3(b)(5), Fla. Const. We affirm the judgment of the trial court and hold that the trial court's construction of article X, section 16 of the Florida Constitution is correct, and that the Golden-Crum net meets the specifications of the amendment.

The controversy at issue involves the method of measuring trawl nets used for fishing in nearshore and inshore waters. Article X, section 16 states in pertinent part:

*884 SECTION 16. Limiting Marine Net Fishing. —
(a) The marine resources of the State of Florida belong to all of the people of the state and should be conserved and managed for the benefit of the state, its people, and future generations. To this end the people hereby enact limitations on marine net fishing in Florida waters to protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, overfishing and waste.
(b) For the purpose of catching or taking any saltwater finfish, shellfish or other marine animals in Florida waters:
(1) No gill nets or other entangling nets shall be used in any Florida waters; and
(2) In addition to the prohibition set forth in (1), no other type of net containing more than 500 square feet of mesh area shall be used in nearshore and inshore Florida waters. Additionally, no more than two such nets, which shall not be connected, shall be used from any vessel, and no person not on a vessel shall use more than one such net in nearshore and inshore Florida waters.

(c) For purposes of this section:

(1) "gill net" means one or more walls of netting which captures saltwater finfish by ensnaring or entangling them in the meshes of the net by the gills, and "entangling net" means a drift net, trammell net, stab net, or any other net which captures saltwater finfish, shellfish, or other marine animals by causing all or part of heads, fins, legs, or other body parts to become entangled or ensnared in the meshes of the net, but a hand thrown cast net is not a gill net or an entangling net;
(2) "mesh area" of a net means the total area of netting with the meshes open to comprise the maximum square footage. The square footage shall be calculated using standard mathematical formulas for geometric shapes. Seines and other rectangular nets shall be calculated using maximum length and maximum width of the netting. Trawls and other bag type nets shall be calculated as a cone using the maximum circumference of the net mouth to derive the radius, and the maximum length from the net mouth to the tail end of the net to derive the slant height. Calculations for any other nets or combination type nets shall be based on the shapes of the individual components;

... .

Art. X, § 16, Fla. Const. (effective July 1, 1995).

The following factual background is pertinent. Ronald Crum hired Buford Golden, an experienced net maker, to construct a shrimp trawl[1] which would meet the amendment's specifications ("Golden-Crum net"). In light of the state's[2] assertion that the Golden-Crum net does not comply with article X, section 16, of the Florida Constitution, appellees Bruce Millender, Ronald Crum, and other commercial shrimpers along with intervenors Wakulla and Franklin Counties asked the circuit court to determine: (1) the appropriate method of measuring trawl nets under the amendment; (2) the meaning of "with the meshes open;" and (3) whether the Golden-Crum net was prohibited.

The trial court concluded that the Golden-Crum net contained less than 500 square feet of mesh area as determined by application of subsections (b)(2) and (c)(2) of the amendment. In reaching its determination, the court found that: (1) the amendment intends to limit not prohibit trawl nets in the nearshore and inshore waters of Florida; (2) the amendment contains an internal inconsistency within its terms, but the various provisions must and can be construed together in harmony granting import to each; (3) trawl nets must not contain more than 500 square feet of mesh area using the formula for the area of a cone (circumference of the mouth of the net times the slant height length divided *885 by two); and (4) the slant height equals the mid-point of the headrope (net mouth) to the tail of the net, with the meshes of the net in an open rather than closed or stretched position.

The basis of this appeal is a disagreement relative to the measurement of slant height. The state, FCA, and Millender present three different methods of calculating slant height.[3] FCA argues that the stretched mesh measurement should be used because the specific language of the fourth sentence in subsection (c)(2) governs over the general language of the first sentence of subsection (c)(2):

Sentence 1: `[M]esh area' of a net means the total area of netting with the meshes open to comprise the maximum square footage.
Sentence 4: Trawls and other bag type nets shall be calculated as a cone using ... the maximum length from the net mouth to the tail end of the net to derive the slant height.

Art. X, § 16(c)(2), Fla. Const. FCA contends that because the slant height of a net cannot be measured with all the meshes open, the language in the first sentence requiring measurement "with the meshes open" is overridden by the language in the fourth sentence requiring the net to be stretched to its "maximum length."[4]

The state argues that the "meshes open" language can be harmonized with the "maximum length" language by using its calculations to obtain slant height and is the correct method because the net mesh is oriented and hung on the diagonal.[5] Millender agrees that the "open mesh" language must be harmonized with the "maximum length" language. He uses the measurement across the bar (one side of one square) of the mesh because he claims it is the industry-accepted method of measuring open mesh and most nearly approximates the amount of raw net stock actually contained in the trawl.[6]

It is undisputed that Golden used less than 500 square feet of netting to construct the net.

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Bluebook (online)
666 So. 2d 882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dept-of-environ-protection-v-millender-fla-1996.