IN THE SUPREME COURT OF FLORIDA. Petitioners, CASE NO: SCl PETITIONERS' AMENDED JURISDICTIONAL BRIEF

Transcription

1 Filing # Electronically Filed 08/20/ :05:24 PM RECEIVED, 8/20/ :08:42, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA WAKULLA COMMERCIAL FISHERMEN'S ASSOCIATION, INC., RONALD FRED CRUM, JONAS PORTER, and KEITH WARD, v. Petitioners, CASE NO: SCl FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, Respondent. PETITIONERS' AMENDED JURISDICTIONAL BRIEF On Review from the District Court of Appeal, First District State of Florida. MOWREY LAW FIRM, P.A. RONALD A. MOWREY Florida Bar No rmowrey@mowreylaw.com MARK L. MASON Florida Bar No mmason@mowreylaw.com MOWREY LA W FIRM, P.A. 515 North Adams Street Tallahassee, Florida Telephone: 850/ Telecopier: 850/ ATTORNEYS FOR PETITIONERS 1

2 TABLEOFCONTENTS Table of Citations...iii-iv Statementofthe CaseandFacts Summary ofthe Argument... 3 JurisdictionalStatement... 3 Argument The decision of the First District Court of Appeal in this case expressly and directly conflicts with the decision of multiple prior courts in its application of resjudicata Conclusion Certificate of Service CertificateofCompliance

3 TABLE OF CITATIONS Cases Campbell v. State, 906 So. 2d 293 (Fla. 2d DCA 2004) Florida Fish and Wildlife Conservation Com'n v. Wakulla Fishermen's Ass'n, Inc., 2014 WL (Fla.13tDCA2014) ,10 Hernandez v. Marsarm Corp., 613 So. 2d 914 (Fla. 3d DCA 1992) Hialeah Race Course, Inc. v. Gulfstream Park Racing Ass 'n, 210 So. 2d 750 (Fla. 4th DCA 1968), aff'd,245 So.2d 625 (Fla. 1971)... 4 University Const. Co. v. City offort Lauderdale, 68 So.2d366(Fla.1953) University offlorida v. Massie, 602 So. 2d 5 16 (Fla. 1992) Wakulla Commercial Fishermen's Association, Inc. v. Florida Fish and Wildlife Conservation Com'n, 2006 WL (Fla. 2d Jud. Cir. Feb. 3, 2006) , 7 Wakulla Commercial Fishermen's Association, Inc. v. Florida Fish and Wildhfe Conservation Com'n, 951 So.2d 8(Fla. 13t DCA2007) Constitutional Provisions and Statutes Art. V, 3(b)(3),Fla. Const Art. X, 16, Fla. Const.... 1, 2, 7-8 Section ,Fla.Stat

4 Administrative Rules and Court Rules Rule 68B-4.002, Fla. Admin. Code... 1, 2, 4, 6-10 Rule 68B , Fla. Admin. Code... 1, 2, 4, B ,Fla.Admin. Code... 1,2,4,6-10 Rule 9.030(a)(2)(A)(iv),Fla. R. App. P iv

5 STATEMENT OF THE CASE AND FACTS This case was brought by the Wakulla Commercial Fishermen's Association, Inc., and Ronald Fred Crum, Keith Ward, and Jonas Porter ("Plaintiffs" or "Appellees") against the Florida Fish and Wildlife Conservation Commission ("FWC"). The basis of this suit was a constitutional challenge asserting that certain administrative rules promulgated by the FWC had no rational basis. The suit also alleged that the rules violated the equal protection rights of the Plaintiffs and commercial mullet fishermen, generally. The challenged rules at issue are Rule 68B-4.002, 68B , and 68B , Fla. Admin. Code (the "Challenged Rules"). Together, these rules defined constitutionally prohibited 'gill nets' not to be used in the nearshore and inshore waters of Florida under article X, section 16, of the Florida Constitution (the "Net Limitation Amendment"). The Net Limitation Amendment defined a prohibited gill net as "one or more walls of netting which captures saltwater finfish by ensnaring or entangling them in the meshes of the net by the gills." Id. This definition encompasses every net, as every net ensnares or entangles fish in the meshes of the net. However, the Net Limitation Amendment did not seek to outlaw all fishing nets in the state of Florida. Therefore, the FWC adopted rules to more specifically define what constituted a 'gill net' within the intended meaning

6 of the Net Limitation Amendment to place "limitations on marine net fishing in Florida waters to protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, overfishing and waste." Art. X, 16(a), Fla. Const. The Challenged Rules defined a 'gill net' based on its mesh size, limiting the maximum stretched mesh size to two inches. Mesh is the rectangular webbing making up the body of a fishing net. It consists of strands of nylon fiber tied in knots to create the net wall. A net with a two inch stretch mesh means that when grasping opposing knots and stretching, the measurement from knot to knot is two inches. Nets are stretched by the force of water, so the size of the stretched mesh is the deciding factor in d.etermining the average size of the fish caught. In a net with a two-inch stretch mesh, the size of the average fish caught would be smaller than the average fish caught by a net with a larger stretch mesh, as smaller fish would be able to swim through the larger stretch mesh without being caught. The Plaintiffs proved at trial that the Challenged Rules mandated the use of a net that resulted in 90-98% bycatch, meaning a catch of non-targeted fish of other species and unmarketable juveniles, most of which die in the nets. The Judge Fulford Order found that the Challenged Rules were unconstitutional. On appeal, the appellate court found that regardless of the underlying facts, res judicata should have prevented judicial review, since one of the Plaintiffs 2

7 previously challenged the rules at issue in a prior proceeding, resulting in summary judgment in favor of the FWC affirmed on appeal. SUMMARY OF THE ARGUMENT The First DCA's opinion incorrectly found that res judicata should apply and the lower court's ruling should be reversed. New facts have arisen subsequent to the prior action rendering the doctrine inapplicable. Furthermore, the Defendant failed to prove its affirmative defense by never bringing forth a record of prior proceedings. Finally, the district court erred in finding that the Plaintiffs failed to demonstrate a manifest injustice would result. JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of the supreme court or another district court of appeal on the same point of law. Art. V, 3(b)(3), Fla. Const. (1980); Fla. R. App. P (a)(2)(A)(iv). Introduction: ARGUMENT As the appellate court opinion subject to challenge in this Jurisdictional Brief is based upon the legal doctrine of res judicata, the argument will make references to the lower court order in the prior case and corresponding appellate 3

8 court opinion, as well as the lower court order in the instant case and the corresponding appellate court opinion subject to challenge. The lower court order in the prior case, Wakulla Commercial Fishermen's Association, Inc. v. Florida Fish and Wildlife Conservation Com 'n, 2006 WL (Fla. 2d Jud. Cir. Feb. 3, 2006) will be referred to as the "Judge Ferris Order" and the appellate court's corresponding opinion, Wakulla Commercial Fishermen's Association, Inc. v. Florida Fish and Wildhfe Conservation Com'n, 95 1 So. 2d 8 (Fla. l'' DCA 2007) as the "2007 Opinion." The lower court final judgment in the instant case will be referred to as the "Judge Fulford Order" and the appellate court's corresponding opinion and subject of this Jurisdictional Brief as the "2014 Opinion". Argument: Res judicata only extends to the facts and conditions as they existed at the time the judgment was rendered. Hialeah Race Course, Inc. v. Gulfstream Park Racing Ass 'n, 210 So. 2d 750, 753 (Fla. 4th DCA 1968), aff'd, 245 So. 2d 625 (Fla. 1971). New facts demonstrate that the Challenged Rules were not promulgated to further a fishery management objective. Res judicata should not have applied. Since res judicata depends upon the facts of the prior case and the instant case, the FWC failed to establish its affirmative defense by never producing a record of any prior proceedings to allow the court to make this comparison. The 4

9 Defendant failed to carry its burden in establishing the applicability of the doctrine. Campbell v. State, 906 So. 2d 293 (Fla. 2d DCA 2004). A record of the prior proceedings is necessary to determine (1) whether the four elements are met; and (2) whether new facts in the instant action render the doctrine inapplicable. The First DCA only addressed one of the three arguments offered by Plaintiff with regards to res judicata, namely, that a manifest injustice would result through rigid application of the doctrine, and the court improperly determined that this argument had no basis in law. Even more egregiously, the court ignored the equal protection claim on appeal, instead reversing the lower court's decision in its entirety based on rational basis alone. This is the first case to ever proceed to trial on the merits. While the 2014 Opinion string cites to a myriad of cases involving fishing nets, res judicata could only apply to the 2007 Opinion, as all other cases cited involved different causes of action and/or different plaintiffs. The 2014 Opinion's legal analysis implicitly recognizes this, as the First DCA solely relies upon its 2007 Opinion to find that res judicata applies. This prior case was decided at summary judgment, based on a single, heavily refuted affidavit. Furthermore, a well-founded dissenting opinion stated there remained an issue of fact, and noted the concern that "[i]f agencies are not required to justify their alleged rational basis at an evidentiary hearing when 5

10 that basis is refuted, as here, this court is preparing a fertile field for the growth of imperious agencies, with all of the mischief it entails." Wakulla Commercial Fishermen's Association, Inc. v. Florida Fish and Wildhfe Conservation Com'n, 951 So. 2d 8, 11 (Fla. 1" DCA 2007) (dissenting opinion). Plaintiffs filed the instant action because of the manifest injustice articulated in the dissenting opinion and because of new facts that came to light following the prior case. The instant case is the first time a court heard testimony and cross examination, reviewed exhibits, and heard in depth legal argument based upon a substantive review of all facts necessary to make a ruling, as opposed to a brief, self-serving, and heavily refuted affidavit offered by the FWC in the prior case. Presented with this evidence, the court correctly determined that the Challenged Rules created a legal absurdity compelling commercial fishermen to either give up their livelihoods or use a net that resulted in a 90-98% catch of unmarketable juvenile fish. While a summary judgment is a determination on the merits, faulty legal precedent is no legal precedent at all. The 2014 Opinion is simply a second rubber stamp of approval on a faulty order: a perpetuation of the perfunctory treatment Plaintiffs suffered in bringing forth valid causes of action against the FWC for its rules that violate the stated purpose of the Net Limitation Amendment and devastate an entire industry's livelihood in the process. 6

11 The Challenged Rules were enacted to further interpret the Net Limitation Amendment. Therefore, rational basis analysis begins with determining the purpose of the Net Limitation Amendment. On this issue, the amendment explicitly states that its purpose is to "enact limitations on marine net fishing in Florida waters to protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, overfishing and waste." Fla. Const. Art. X, 16(a). The only judicial inquiry applying the rational basis test should have been framed as follows: "Are the Challenged Rules rationally related to the legitimate purpose of protecting marine life from unnecessary killing, overfishing and waste?" Instead, the Judge Ferris Order crafted the following question: "Can the Plaintiffs show that the mullet population has substantially reduced since the Challenged Rules were enacted?" This same question has been perpetuated by the First DCA, first in its 2007 Opinion and now in its 2014 Opinion. The operative language from the Judge Ferris Order is cited in the 2014 Opinion as follows: "[The Commission]... presented expert testimony that the mullet population remains healthy and has actually increased since the implementation of the two-inch net mesh limitation. This testimony... is sufficient to establish a rational basis for [the Commission's] adoption of the challenged rules as a means of furthering the goal of protecting marine resources." This inquiry is a bait and switch ignoring rational basis review and 7

12 improperly requiring the Challenged Rules result in the mass genocide of fisheries as the sine qua non inquiry. Other provisions of the Net Limitation Amendment positively impacted fishery populations despite the detrimental effect of the Challenged Rules. The amendment was a complete overhaul of the status quo, reducing nets from 45,000 square feet to 500 square feet. Compare (e) (1993) (imposing a 600-yard net length limit, with no size restriction on depth) and art. X, 16(b)(2), Fla. Const. (imposing a limit on the size of a net to 500 square feet). In other words, the Challenged Rules were promulgated at the same time the largest nets allowed were 1/90th the size used prior to the amendment. The Director of the FWC even stated that "[t]he reduction of net size to 500 square feet or less likely had the biggest impact in reducing commercial landings in certain fisheries." Furthermore, an FWC report released after the 2007 Opinion explicitly stated that the Challenged Rules were "not enacted to achieve a specific fishery management objective." The Challenged Rules do not survive rational basis review by equating correlation with causation, riding the coattails of the Net Limitation Amendment's very effective 500 square foot limitation for fishing nets. It is a manifest injustice to allow the FWC to deceive the judiciary when it has openly admitted that the Challenged Rules serve no legitimate purpose. This Court, in University Const. Co. v. City offort Lauderdale, 68 So. 2d 8

13 366, 370 (Fla. 1953), stated that "every member of this Court subscribes to, the view that pride of opinion should never be so great as to constitute an obstruction in the path ofjustice." In that case, the court explicitly found that all the requisites of res judicata existed, and yet "social and economic complexes [sic] must compel [a different result]." Id (citation omitted). In that case, the 'social and economic complexity' at issue was the fact that by applying res judicata, the plaintiff contractor would not be compensated for additional materials and labor. Manifest injustice may also prevent application of res judicata when a child's right to support is at issue. Hernandez v. Marsarm Corp., 613 So. 2d 914 (Fla. 3d DCA 1992). In this case, the court noted that the recognized public policy of this state to provide support for children precluded application of res judicata. Here, an improperly entered 2007 Opinion has allowed the survival of rules that violate the purpose of the amendment under which they were promulgated. Mullet fishermen bring in 90-98% bycatch (juvenile fish or fish of a non-targeted species) every time they deploy a net due to the mesh size restriction. A two-day study conducted by both Plaintiffs and Defendant conclusively established that if mesh size were not restricted and the mesh size is increased by an inch, the bycatch rate is minimal, dropping to roughly 5%, since juvenile fish are able to swim through the net without becoming gilled or entangled. The overall amount 9

14 of fish caught and gilled in these nets is also substantially less. The Challenged Rules preventing fishermen from using such nets simply do not protect marine life. An entire livelihood should not be devastated by a single affidavit and a rubber stamp, especially when the agency later admits that there never was a rational basis to the rules. This Court has acknowledged that, in rare instances, "a court may correct its own erroneous prior decision to prevent manifest injustice." University offlorida v. Massie, 602 So. 2d 516 (Fla. 1992). This injustice is far more severe than a contractor not being compensated for work or a single child not receiving support: an entire industry has been devastated, ruining entirefamilies ' livelihoods. Section , Fla. Stat. recognizes that fishing plays an important role in the state's economy and therefore citizens of Florida have a right to fish. Commercial fishing is a recognized public policy and a statutory right, as is conservation and preservation. None of these public policies are served by the Challenged Rules. It is a manifest injustice for the 2014 Opinion to again rely upon an uninformed 2007 Opinion by two judges based on nothing more than a single affidavit. CONCLUSION This court should exercise its discretionary jurisdiction to consider the merits of this cause. 10

15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of this brief has been furnished to Jonathan A. Glogau, Chief, Complex Litigation, jon.glogau@mvhoridalegal.com Office of the Attorney General, PL-01, The Capital, Tallahassee, FL , this 20th day of August, 20]4. MOWREY LAW FIRM, P.A. RONALD A. MOWREY Florida Bar No rmowrey@mowreylaw.com MARK L. MASON Florida Bar No mmason@mowreylaw.com NICHOLAS FUGATE Florida Bar No nfugate@mowreylaw.com MOWREY LAW FIRM, P.A. 515 North Adams Street Tallahassee, Florida Telephone: 850/ Telecopier: 850/ ATTORNEYS FOR PETITIONERS 11

16 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. MOWREY LAW FlRM. P.A. RONALD A. MOWREY Florida Bar No rmowrey@mowreylaw.com MARK L. MASON Florida Bar No mmason@mowreylaw.com NICHOLAS FUGATE Florida Bar No nfugate@mowreylaw.com MOWREY LAW FIRM, P.A. 515 North Adams Street Tallahassee, Florida Telephone: 850/m-9482 Telecopier: 850/ ATTORNEYS FOR PETITIONERS