Mississippi Gulf Coast Fishermen's Organization, Inc. v. Mississippi Marine Conservation Commission

387 So. 2d 757, 1980 Miss. LEXIS 2093
Mississippi Supreme Court·Decided September 10, 1980·No. No. 52130·Published

Opinion

BROOM, Justice,

for the Court:

Shrimp taking pursuant to Ordinance 86 (0-86 herein) of the Mississippi Marine Conservation Commission is the salient feature of this case appealed from the Chancery Court of the Second Judicial District of Harrison County, Mississippi. 0-86 allowed bait fishermen to take from the waters certain shrimp along the Mississippi Gulf Coast. Under 0-86, these waters were not opened to other commercial fishermen; consequently, Mississippi Gulf Coast Fishermen’s Organization, Inc., a non-profit corporation of commercial fishermen (appellant herein), brought this injunction suit contending that 0-86 was invalid. After hearing testimony, the lower court (Chancellor Frank Alexander) denied the injunction, and found that 0-86 was a proper exercise of authority under Mississippi Code Annotated § 49-15-15(3)(k) (Supp.1979). We affirm.

Appellant contends: (1) the Commission exceeded its statutory authority in adopting 0-86 and two other ordinances; (2) the ordinances were not within the conservation mandates of state statutes because nursery areas for shrimp were permitted to be invaded; (3) appellant was denied its right of equal protection by the adoption and enforcement of these ordinances; and (4) appellant, in seeking to enforce the declared public policy of Mississippi Code Annotated § 49-15-1 (Supp.1979) and related sections, was entitled to attorney’s fees.

0-86 was passed at a special meeting of the Mississippi Marine Conservation Commission (Commission herein) on April 20, 1978; its practical effect was to allow no one but live bait fishermen to enter and take shrimp from our coastal waters North of Deer Island, North of a line from Grand Bayou on Deer Island as it runs to the Northeast to Marsh Point. Also, under 0-86, live bait fishermen were allowed to catch live bait in all areas North of the L & N Railroad as it runs through the coastal counties after July 1 of each year unless it was determined that 75% of the shrimp are smaller than 90 to 100 to the pound. At the time 0-86 was passed, Ordinances Nos. 59 and 63 (6-59 and 0-63 herein), which closed all areas one-half mile South of the Mississippi coastline to shrimping, excepting live bait captures, were in effect. On June 4, 1979, the Commission passed its order opening the 1979 shrimp season declaring the fishing grounds to be one-half mile from the shoreline of the three coastal counties. 0-59, 0-63 and the June 4, 1979 Order of the Commission in effect established a one-half mile staging area from the coastline and prohibited all shrimping therein except for 0-86. According to 0-86 live bait fishermen were authorized to catch shrimp within this one-half mile area which was not a part of the regular fishing grounds [759] annually open to other commercial fishermen each year in June. Under 0-86, a total of 4,900 commercial shrimping licenses and 33 live bait licenses have been issued.

WAS THE COMMISSION’S ACTION IN ADOPTING 0-86, 0-59, 0-63 AND THE ORDER OF JUNE 4, 1979, IN VIOLATION OF ITS STATUTORY AUTHORITY AS EXCEEDING CONSERVATION MANDATES AND PERMITTING NURSERY AREAS TO BE FISHED?

Live bait catchers are, as pointed out by appellant, recognized under Mississippi Code Annotated § 49-15-29(i) (Supp.1979). That section provides that the live bait catchers must purchase a license to operate, and then the statute provides:

Such shrimp may be taken in either the closed or open season . ...

The position taken by appellant is that the Commission may only license live bait catchers to take shrimp in an area where others may do so although this may be done in “either the closed or open season.” They say that the Commission has too broadly interpreted § 49-15-29(i) and exceeded the “leeway the Legislature intended to grant the live bait catchers.” Additionally, the appellant argues that the legislative grant was “for one of additional time; it was not one of additional space.” Further elaborating upon its argument, the appellant contends “the Legislature, in allowing for live bait catchers to take (shrimp) during open or closed seasons, did not go so far as to allow them to take from any area, but instead limited the grant to that area where the season was opened or closed.”

In passing upon the argument before us, we are mindful of Mississippi Code Annotated § 49-15-1 (1972) which states that:

[I]t is the intent of the legislature to provide a modern, sound, comprehensive and workable law to be administered by specialists, who are vested with full and ample authority to take such action as may be necessary in order to help protect, conserve and revitalize seafood life in the State of Mississippi. [Emphasis supplied].

The wording of the portion of the statute just quoted makes it clear that the legislature in giving consideration to aquatic life was aware that each of the species has its own peculiarities and that the lawmakers could not effectively deal with the shrimping and fishermen’s industry with a rigid set of statutory regulations. Accordingly the legislature, so as to provide for the management and regulation of the fishing and shrimping industry, vested the Commission with broad and extensive powers:

1. § 49-15-11(1) (Supp.1979). The Mississippi Marine Conservation Commission is hereby established and full power is vested in the commission to manage, control, supervise and direct any matters pertaining to all saltwater aquatic life not otherwise delegated to another agency. [Emphasis supplied].
2. § 49-15-15(1) (Supp.1979). The express purpose of this section is to furnish the commission with jurisdiction and authority over all marine aquatic life.
3. § 49-15-15(3) (Supp.1979). In connection with its jurisdiction and authority, the commission:
(b) shall open, close, and regulate fishing seasons for the taking of shrimp, oysters, fish .
(c) shall set size, catching and taking regulations for all types of seafood

In order to provide statutory authority to deal with and provide for the needs of the shrimping (fishing) industry, there was enacted into law Mississippi Code Annotated § 49 — 15-15(3)(k) (Supp.1979):

(The Commission) is authorized to enact all regulations necessary for the protection, conservation or propagation of all shrimp, . . . . However, it shall be unlawful for any person, firm or corporation to take, catch or have in their possession . . . shrimp of a size weighing in the raw state less than one (1) pound to each 68 shrimp . . . This provision may be changed by a two-thirds (%) vote of the commission. [Emphasis supplied].

[760] Appellant argues that the language of § 49-15-29(i), supra, permitting live bait fishermen to take shrimp in the closed or open season, precludes any other control by the Commission so as to allow live bait takers to operate where appellant may not. The statutory language is the following:

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Mississippi Gulf Coast Fishermen's Organization, Inc. v. Mississippi Marine Conservation Commission, 387 So. 2d 757, 1980 Miss. LEXIS 2093 (Mich. 1980).

387 So. 2d 757 (Mississippi Gulf Coast Fishermen's Organization, Inc. v. Mississippi Marine Conservation Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

§ 49
Mississippi § 49
§ 49-15-1
Mississippi § 49-15-1
§ 49-15-15
Mississippi § 49-15-15(3)(k)
§ 49-15-29
Mississippi § 49-15-29(i)