Caribbean Conservation Corporation,
Inc., d/b/a Caribbean Conservation Corporation,
Save the Manatee Club, Inc., Florida
Wildlife Federation, Daniel R. Evans,
Patrick M. Rose, and Manley K. Fuller III,
Plaintiffs,
v.
Katherine Harris, in her capacity as
Secretary of State, and Fish and Wildlife
Conservation Commission,
Defendants.
______________________________________/
1. This is a complaint against Katherine Harris, in her capacity as Secretary of State, and the Fish and Wildlife Conservation Commission, Defendants, for declaratory, injunctive, and other relief demanded herein. Specifically, Plaintiffs Caribbean Conservation Corporation, Inc., d/b/a Caribbean Conservation Corporation, Save the Manatee Club, Inc., Florida Wildlife Federation, Daniel R. Evans, Patrick M. Rose, and Manley K. Fuller III request that this Court declare unconstitutional and invalidate portions of section 1 and section 39, and potentially portions of section 45, Chapter 99-245, Laws of Florida (the Committee Substitute for the Committee Substitute for Senate Bill 864 or CS/CS/SB 864). Those sections of the statute unconstitutionally limit the powers of the Fish and Wildlife Conservation Commission (“FWCC”) over endangered and threatened species. The FWCC’s powers are set forth in article IV, section 9, and article XII, section 22, of the Florida Constitution.
2. This Court has jurisdiction pursuant to article V, section 5 of the Florida Constitution (providing for circuit court jurisdiction), and sections 26.012 (providing for general circuit court jurisdiction, including the power to issue injunctions) and 86.011 (providing circuit courts power to issue declaratory judgments), Florida Statutes. Venue is proper pursuant to § 47.011, Florida Statutes.
3. Plaintiff Caribbean Conservation Corporation, Inc. (“Caribbean Conservation Corporation” or “CCC” – The Caribbean Conservation Corporation, Inc., is a Florida not-for-profit corporation, with its principal place of business in Gainesville, Florida. The Caribbean Conservation Corporation is a registered fictitious name for the CCC.), is the world’s oldest sea turtle preservation and protection organization and is located at 4424 NW 13th Street, Suite A-1, Gainesville, Florida 32609. Founded approximately 40 years ago, it has for decades engaged in research, education, and advocacy designed to protect and enhance the globally important sea turtles and their habitat in Florida. The Caribbean Conservation Corporation has participated and is currently participating in legal and administrative challenges on behalf of its members to defend and otherwise support rules Florida’s Department of Environmental Protection has issued to protect endangered and threatened sea turtles.
4. The Caribbean Conservation Corporation files this action on its own behalf and on behalf of its members in an effort to protect their economic, recreational, aesthetic, scientific, and conservation interests in the endangered and threatened sea turtles of Florida. The Caribbean Conservation Corporation has approximately 5,000 members, many of which are concentrated in Florida’s coastal areas, where endangered and threatened sea turtles nest. A substantial number of these members reside near sea turtle nesting beaches, and regularly engage in recreation related to, education about, and observation of sea turtles, including leading groups of people to show them and educate them about nesting turtles.
5. Implementation of the portions of Chapter 99-245, Laws of Florida, that plaintiffs herein challenge directly impacts and substantially affects the Caribbean Conservation Corporation and the substantial interests of a substantial number of its members. Rules needed to protect endangered and threatened sea turtles have historically been delayed during the pendency of administrative challenges brought pursuant to the statutory provisions of chapter 120, Florida Statutes. In contrast, rules promulgated by the FWCC under its constitutional authority as a general rule take effect immediately, thereby eliminating the time delay allowable under chapter 120. The elimination of the delay in implementing rules to protect sea turtles significantly increases the likelihood of their survival. Thus, if chapter 120 procedures are required, the Caribbean Conservation Corporation’s members lose the opportunity to observe, study and enjoy sea turtles that are killed or injured because the implementation of rules to protect them is delayed.
6. Plaintiff Save the Manatee Club, Inc., is a Florida not-for-profit corporation with approximately 40,000 members, located at 500 N. Maitland Ave., Suite 210, Maitland, Florida 32751. The organization’s stated purpose includes protecting the manatee and its habitat through public awareness, research support and advocacy, which activities benefit manatees and Save the Manatee Club’s members. The Save the Manatee Club has participated and is currently participating in legal and administrative challenges on behalf of its members to defend and otherwise support rules Florida’s Department of Environmental Protection has issued to protect manatees.
7. Save the Manatee Club files this action on its own behalf and on behalf of its members in an effort to protect their economic, recreational, aesthetic, scientific, and conservation interests in Florida manatees. A substantial number of Save the Manatee Club’s members regularly use and enjoy Florida waters for a variety of purposes, including, but not limited to, education about, observation of, and recreation related to manatees. The Florida legislature has recognized these substantial interests of Save the Manatee Club and its members in manatee protection by designating it a member of the Florida Manatees Sanctuary Act’s manatee protection committee and by requiring the FWCC to solicit recommendations from Save the Manatee Club regarding the use of Save the Manatee Trust Fund monies.
8. Implementation of the portions of Chapter 99-245, Laws of Florida, that plaintiffs herein challenge directly impacts and substantially affects Save the Manatee Club and the substantial interests of a substantial number of its members. Rules needed to protect manatees have historically been delayed during the pendency of administrative challenges brought pursuant to the statutory provisions of chapter 120, Florida Statutes. In contrast, rules promulgated by the FWCC under its constitutional authority as a general rule take effect immediately, thereby eliminating the time delay allowable under chapter 120. The elimination of the delay in implementing rules to protect manatees significantly increases the likelihood of their survival. Thus, if chapter 120 procedures are required, Save the Manatee Club’s members lose the opportunity to observe, study and enjoy manatees that are killed or injured because the implementation of rules to protect them is delayed.
9. Plaintiff Florida Wildlife Federation (“FWF”) is a Florida not-for-profit corporation with its principal place of business at 2545 Blairstone Pines Drive, Tallahassee, Florida, 32314. There are approximately 14,000 FWF members residing throughout the state of Florida. FWF’s purpose is to promote environmental conservation and education and a major area of emphasis for the organization is the protection of wildlife and wildlife habitat. FWF has participated and continues to participate on behalf of its members in legal and administrative challenges on behalf of its members to defend and otherwise support rules to protect manatees and endangered and threatened sea turtles.
10. FWF files this action on its own behalf and on behalf of its members in an effort to protect their economic, recreational, aesthetic, scientific, and conservation interests in the endangered and threatened sea turtles and manatees of Florida. Members of FWF regularly use and enjoy Florida waters for a variety of purposes, including, but not limited to, education about, observation of, and recreation related to manatees and sea turtles.
11. Implementation of the portions of Chapter 99-245, Laws of Florida, that plaintiffs herein challenge directly impacts and substantially affects FWF and the substantial interests of a substantial number of its members. Rules needed to protect endangered and threatened sea turtles and manatees have historically been delayed during the pendency of administrative challenges brought pursuant to the statutory provisions of chapter 120, Florida Statutes. In contrast, rules promulgated by the FWCC under its constitutional authority as a general rule take effect immediately, thereby eliminating the time delay allowable under chapter 120. The elimination of the delay in implementing rules to protect sea turtles and manatees significantly increases the likelihood of their survival. Thus, if chapter 120 procedures are required, Florida Wildlife Federation’s members lose the opportunity to observe, study and enjoy sea turtles and manatees that are killed or injured because the implementation of rules to protect them is delayed.
12. Plaintiff Daniel R. Evans is a private citizen who regularly engages in recreation related to, education about, and observation of sea turtles, and who files this action in his individual capacity as an affected citizen. He is the full-time Education Coordinator for the Caribbean Conservation Corporation in Florida, and his employment is made possible by the presence of healthy sea turtle populations nesting on Florida beaches. During sea turtle nesting season (June through August), Evans conducts two to three educational sea turtle walks each week within the Archie Carr National Wildlife Refuge in Brevard County, Florida. He also coordinates an internet-based education Program that relies on the satellite-tracking migration of sea turtles in Florida.
13. Implementation of the portions of Chapter 99-245, Laws of Florida, that plaintiffs herein challenge directly impacts and substantially affects Evans’ above-described interests. Rules needed to protect endangered and threatened sea turtles have historically been delayed during the pendency of administrative challenges brought pursuant to the statutory provisions of chapter 120, Florida Statutes. In contrast, rules promulgated by the FWCC under its constitutional authority as a general rule take effect immediately, thereby eliminating the time delay allowable under chapter 120. The elimination of the delay in implementing rules to protect sea turtles significantly increases the likelihood of their survival. Thus, if chapter 120 procedures are required, Evans loses the opportunity to observe, study and enjoy sea turtles that are killed or injured because the implementation of rules to protect them is delayed.
14. Patrick M. Rose is Director of Government Relations of the Save the Manatee Club and a private citizen who regularly engages in recreation related to, education about, and observation of manatees, and who files this action in his individual capacity as an affected citizen. Rose’s observation of manatees includes, but is not limited to, for more than 30 years diving and photographing manatees in their natural habitat (activities he continues to engage in). Rose has worked for more than 20 years and continues to work professionally and as a volunteer to provide protection for the endangered manatee and its habitat. That work includes, but is not limited to, his work supporting the passage of the constitutional revisions discussed in this complaint and related to the passage of Chapter 99-245, Florida Statutes.
15. Implementation of the portions of Chapter 99-245, Laws of Florida, that plaintiffs herein challenge directly impacts and substantially affects Rose’s above-described interests. Rules needed to protect manatees have historically been delayed during the pendency of administrative challenges brought pursuant to the statutory provisions of chapter 120, Florida Statutes. In contrast, rules promulgated by the FWCC under its constitutional authority as a general rule take effect immediately, thereby eliminating the time delay allowable under chapter 120. The elimination of the delay in implementing rules to protect manatees significantly increases the likelihood of their survival. Thus, if chapter 120 procedures are required, Rose loses the opportunity to observe, study and enjoy manatees that are killed or injured because the implementation of rules to protect them is delayed.
16. Manley K. Fuller III is the President of FWF and a private citizen who regularly engages in recreation related to, education about, and observation of sea turtles and manatees. He files this action in his individual capacity as an affected citizen. For approximately 30 years he has enjoyed walking on Florida beaches and elsewhere observing and educating others about endangered and threatened sea turtles (activities he continues to engage in). He has flown manatee counts with manatee researchers in Florida and has otherwise observed manatees in Florida, including, but not limited to, observing manatees from his property on the Wakulla River, where manatees frequently pass in the summer months (activities he continues to engage in).
17. Implementation of the portions of Chapter 99-245, Laws of Florida, that plaintiffs herein challenge directly impacts and substantially affects Fuller’s above-described interests. Rules needed to protect endangered and threatened sea turtles and manatees have historically been delayed during the pendency of administrative challenges brought pursuant to the statutory provisions of chapter 120, Florida Statutes. In contrast, rules promulgated by the FWCC under its constitutional authority as a general rule take effect immediately, thereby eliminating the time delay allowable under chapter 120. The elimination of the delay in implementing rules to protect sea turtles and manatees significantly increases the likelihood of their survival. Thus, if chapter 120 procedures are required, Fuller loses the opportunity to observe, study and enjoy sea turtles and manatees that are killed or injured because the implementation of rules to protect them is delayed.
18. Defendant Katherine Harris, in her capacity as Secretary of State, is responsible for maintaining the laws and statutes of the State of Florida. The Secretary of State is located at PL-02, The Capitol, Tallahassee, Florida 32399-0250.
19. Defendant FWCC has the authority to ensure that the expunction of the complained-of unconstitutional provisions is reflected in the rulemaking and other operations of the commission. The FWCC implements and enforces the provisions of article IV, section 9, and article XII, section 22, Florida Constitution, and Chapter 99-245, Laws of Florida. The FWCC is located at 620 South Meridian Street, Tallahassee, Florida 32399-1600.
20. Until July 1, 1999, three different agencies or commissions exercised jurisdiction over wildlife resources of the state.
21. First, the Game and Fresh Water Fish Commission exercised exclusive authority over all wild animal life and fresh water aquatic life pursuant to article IV, section 9, of the Florida Constitution. The legislature could enact laws in aid of the commission, only as long as such laws were not inconsistent with article IV, section 9.
22. Second, the legislature had delegated Florida’s Department of Environmental Protection (“DEP”) statutory authority, among other things, to protect endangered and threatened species, including sea turtles and manatees. See, e.g., Chs. 370, 372, Fla. Stat. (1997).
23. Third, the legislature had created and delegated authority to Florida’s Marine Fisheries Commission to regulate salt water fisheries. See, e.g., §§ 370.025 – 370.027, Fla. Stat. (1997).
24. Florida’s Constitution provides for the formation of a constitutional revision commission in 1998 and every twenty years thereafter to review the state constitution and propose revisions to the constitution. See art. XI, sec. 2, Fla. Const.
25. Pursuant to those constitutional provisions, the 1998 Constitutional Revision Commission proposed thirteen revisions that were included on a statewide ballot in November 1998.
26. The Constitutional Revision Commission titles Revision 5 “Conservation of Natural Resources and Creation of Fish and Wildlife Conservation Commission,” and the revision contained amendments to several constitutional provisions addressing natural resources issues. Among other things, Revision 5 created the FWCC and granted the new commission the regulatory and executive powers of the Game and Fresh Water Fish Commission and the Marine Fisheries Commission. See Summary for Revision 5, attached as Attachment I.
27. In particular, Revision 5 amended article IV, section 9, of the Florida Constitution to read as follows:
The commission shall exercise the regulatory 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, except that all license fees for taking wild animal life, fresh water aquatic life, and marine life and penalties for violating regulations of the commission shall be prescribed by general law. The commission shall establish procedures to ensure adequate due process in the exercise of its regulatory and executive functions. The legislature may enact laws in aid of the commission, not inconsistent with this section
Art. IV, sec. 9, Fla. Const. (emphasis added).
28. Revision 5 also added section 22 to article XII of the Florida Constitution, which section reads as follows:
Fish and Wildlife Conservation Commission. –
The jurisdiction of the marine fisheries commission as set forth in statutes in effect on March 1, 1998, shall be transferred to the fish and wildlife conservation commission
Art. XII, sec. 22, Fla. Const. (emphasis added).
29. Revision 5 was approved by an overwhelming majority – approximately 72 percent – of Florida voters in November 1998.
30. The legislature passed a bill during the 1999 legislative session – CS/CS/SB 864 – which the Governor signed into law June 8, 1999, to implement the merger of the Game and Fresh Water Fish Commission and the Marine Fisheries Commission. See Ch. 99-245, Laws of Florida, attached in its enrolled Senate Bill form as Attachment II.
31. Chapter 99-245, Laws of Florida, provides in section 1 that:
Ch. 99-245, Laws of Florida, sec. 1 at 9-10 (to be codified at § 20.331(6)(c), Fla. Stat.).
32. Chapter 99-245 provides in section 39 that:
Ch. 99-245, Laws of Florida, sec. 39 at 45-46 (to be codified at § 370.025(4), Fla. Stat.).
33. Chapter 99-245 requires in section 45 that where the FWCC makes rules regarding endangered and threatened sea turtles and manatees, the commission must comply with the procedures of chapter 120, Florida Statutes. See Ch. 99-245, Laws of Florida, sec. 45 at 59, 61, 65, 66, 67, 68, 69, and 71 (to be codified at § 370.12(1)(c)(3), (1)(h), (2)(g), (2)(h), (2)(i), (2)(k), (2)(l), (2)(m), (2)(n), (2)(p)1.).
34. Together, the passages quoted and discussed in the preceding paragraphs make the research and management of endangered and threatened marine species subject to the ultimate control of the legislature, and not the FWCC.
35. Thus, under the provisions of Chapter 99-245, implementation of rules to protect endangered and threatened species is delayed during challenges under chapter 120, Florida Statutes. See § 120.56(2)(b), Fla. Stat. (1997).
36. By contrast, if it were to operate under its constitutional authority, the FWCC could avoid such delays in the implementation of rules to protect endangered and threatened species. See art. IV, sec. 9, Fla. Const.
37. Similarly, under the provisions of Chapter 99-245, administrative law judges are able to invalidate rules of the FWCC addressing endangered and threatened marine species because they are not specifically authorized by the legislature. See § 120.52, Fla. Stat. (1997 and Supp. 1998); see also Ch. 99-379, Laws of Florida.
38. By contrast, when the FWCC operates under its constitutional authority, an administrative law judge cannot invalidate commission rules that the legislature did not specifically authorize.
39. The portions of sections 1 and 39 of Chapter 99-245 discussed in paragraphs 31 and 32 of this complaint and potentially the portions of section 45 discussed in paragraph 33 contradict and violate article IV, section 9 and article XII, section 22, of the Florida Constitution. Those portions of Chapter 99-245 unconstitutionally make the FWCC subject to legislative oversight in the exercise of its authority over endangered and threatened marine species.
Portions of sections 1 and 39 of Chapter 99-245, Laws of Florida violate article IV, section 9, of the Florida Constitution.
40. Paragraphs 1-39 are realleged and incorporated herein.
41. Article IV, section 9, of the Florida Constitution provides that the FWCC “shall exercise the regulatory 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.”
42. Article IV, section 9, further provides that the FWCC “shall establish procedures to ensure adequate due process in the exercise of its regulatory and executive functions.”
43. Article IV, section 9, explicitly states particular situations in which the legislature may make laws that impact upon the FWCC’s constitutional authority.
44. First, article IV, section 9, states that “all license fees for taking wild animal life, fresh water aquatic life, and marine life and penalties for violating regulations of the commission shall be prescribed by general law.”
45. Second, article IV, section 9, states that the “commission’s exercise of executive powers in the area of planning, budgeting, personnel management, and purchasing shall be as provided by law.”
46. Third, “[r]evenue derived from license fees relating to marine life shall be appropriated by the legislature for the purposes of management, protection, and conservation of marine life, as provided by law.” Art. IV, sec. 9, Fla. Const.
47. Fourth, “[u]nless provided by general law, the commission shall have no authority to regulate matters relating to air and water pollution.” Art. IV, sec. 9, Fla. Const.
48. In any event, article IV, section 9, provides the general and overriding rule that the “legislature may enact laws in aid of the commission, not inconsistent with this section, except that there shall be no special law or general law of local application pertaining to hunting or fishing.”
49. The portion of section 1 of Chapter 99-245, Laws of Florida, that attempts to define the constitutional powers of the FWCC (regarding endangered and threatened species) as statutory powers unconstitutionally limits the authority of the FWCC over endangered and threatened marine species in violation of the provisions of article IV, section 9. Ch. 99-245, Laws of Florida, sec. 1 at 10 (to be codified at § 20.331(6)(c), Fla. Stat.)(powers regarding “[r]esearch and management responsibilities for marine species listed as endangered, threatened, or of special concern, including, but not limited to, manatees and marine turtles”).
50. The portion of section 39 of Chapter 99-245 that provides that the FWCC has “full constitutional rulemaking authority over marine life, and listed species as defined in s. 372.072(3), except for . . . [e]ndangered or threatened marine species for which rulemaking shall be done pursuant to chapter 120” unconstitutionally limits the authority of the FWCC over endangered and threatened marine species in violation of the provisions of article IV, section 9. Ch. 99-245, Laws of Florida, sec. 39 at 45-46 (to be codified at § 370.025(4), Fla. Stat.).
51. To the extent that Chapter 99-245 requires the FWCC to follow chapter 120 requirements when it exercises its constitutional powers in section 45 at 59, 61, 65, 66, 67, 68, 69, and 71 (to be codified at § 370.12(1)(c)(3), (1)(h), (2)(g), (2)(h), (2)(i), (2)(k), (2)(l), (2)(m), (2)(n), (2)(p)1.), it unconstitutionally limits the authority of the FWCC in violation of the provisions of article IV, section 9.
52. By enforcing a law – Chapter 99-245 – that violates article IV, section 9, of the Florida Constitution, defendants are substantially affecting and having a direct impact on the interests of individual plaintiffs, a substantial number of members of plaintiff organizations and those organizations themselves. The continued enforcement of the complained-of provisions of Chapter 99-245 will continue to substantially affect and have a direct impact on individual plaintiffs, a substantial number of members of plaintiff organizations and those organizations themselves.
53. There is a bona fide, actual, present practical need for a declaration regarding the constitutionality of Chapter 99-245 and the applicability of that law to ongoing FWCC rulemaking regarding endangered and threatened species.
54. By violating the Florida Constitution in the manner described in this Count I, defendants are causing irreparable injury to plaintiffs for which plaintiffs have no adequate remedy at law.
Portions of sections 1 and 39 of Chapter 99-245, Laws of Florida violate article XII, section 22, of the Florida Constitution.
55. Paragraphs 1-39 are realleged and incorporated herein.
56. Article XII, section 22(b), of the Florida Constitution states that the “jurisdiction of the marine fisheries commission as set forth in statutes in effect on March 1, 1998, shall be transferred to the fish and wildlife conservation commission.”
57. Article XII, section 22(b), further emphasizes that the jurisdiction of the MFC transferred to the commission “shall not be expanded except as provided by general law.”
58. As of March 1, 1998, the MFC had jurisdiction to make rules regarding endangered and threatened marine species. See Florida v. Davis, 556 So. 2d 1104, 1106 (Fla. 1990)(“The statute does not say that the [Marine Fisheries] Commission cannot act at all with reference to endangered species; it says the Commission is not the only agency permitted to act with reference to endangered species.”)
59. The portion of section 1 of Chapter 99-245, Laws of Florida, that attempts to define the constitutional powers of the FWCC (regarding endangered and threatened species) as statutory powers unconstitutionally limits the authority of the FWCC over endangered and threatened marine species in violation of the provisions of article XII, section 22. Ch. 99-245, Laws of Florida, sec. 1 at 10 (to be codified at § 20.331(6)(c), Fla. Stat.)(powers regarding “[r]esearch and management responsibilities for marine species listed as endangered, threatened, or of special concern, including, but not limited to, manatees and marine turtles”).
60. The portion of section 39 of Chapter 99-245 that provides that the FWCC has “full constitutional rulemaking authority over marine life, and listed species as defined in s. 372.072(3), except for . . . [e]ndangered or threatened marine species for which rulemaking shall be done pursuant to chapter 120” unconstitutionally limits the authority of the FWCC over endangered and threatened marine species in violation of the provisions of article XII, section 22. Ch. 99-245, Laws of Florida, sec. 39 at 45-46 (to be codified at § 370.025(4), Fla. Stat.).
61. To the extent that Chapter 99-245 requires the FWCC to follow chapter 120 requirements when exercising its constitutional powers in section 45 at 59, 61, 65, 66, 67, 68, 69, and 71 (to be codified at § 370.12(1)(c)(3), (1)(h), (2)(g), (2)(h), (2)(i), (2)(k), (2)(l), (2)(m), (2)(n), (2)(p)1.), it unconstitutionally limits the authority of the FWCC in violation of the provisions of article XII, section 22.
62. By enforcing a law – Chapter 99-245 – that violates article XII, section 22, of the Florida Constitution, defendants are substantially affecting and having a direct impact on the interests of individual plaintiffs, a substantial number of members of plaintiff organizations and those organizations themselves. The continued enforcement of the complained-of provisions of Chapter 99-245 will continue to substantially affect and have a direct impact on individual plaintiffs, a substantial number of members of plaintiff organizations and those organizations themselves.
63. There is a bona fide, actual, present practical need for a declaration regarding the constitutionality of Chapter 99-245 and the applicability of that law to ongoing FWCC rulemaking regarding endangered and threatened species.
64. By violating the Florida Constitution in the manner described in this Count II, defendants are causing irreparable injury to plaintiffs for which plaintiffs have no adequate remedy at law.
For the reasons stated above, plaintiffs respectfully request:
(1) that this honorable Court declare unconstitutional the portions of sections 1 and 39 of Chapter 99-245, Laws of Florida, complained of in Counts I and II;
(2) that this Court declare the complained-of portions of Section 45 unconstitutional to the extent they require the FWCC to follow chapter 120 requirements when exercising its constitutional powers;
(3) that this Court order that the Secretary of State remove and expunge any and all references to the unconstitutional portions of Chapter 99-245, Laws of Florida, from the records of the state;
(4) that this Court enjoin the FWCC from enforcing the unconstitutional portions of Chapter 99-245, Laws of Florida; and
(5) that this Court order other and further relief as the Court deems just and appropriate to effectuate a complete resolution of the legal disputes between Plaintiffs and Defendants.
Sea Turtle Conservancy
