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Thread: A Favorable Ruling on Spearing in Federal Waters!

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    Default Will enforcement get it right?

    Carry a copy of the ruling on your boat.
    There is no such thing as uniform enforcement or even proper interpetation, from my experience.

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    Not to take away from this happy moment but 68B-24.007 is the Florida Admistrative Code section that covers Spiny Lobster. I cannot find that code anywhere else someone help me please. I just want to read it for myself.

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    Quote Originally Posted by Roland View Post
    Not to take away from this happy moment but 68B-24.007 is the Florida Admistrative Code section that covers Spiny Lobster. I cannot find that code anywhere else someone help me please. I just want to read it for myself.
    That's an FWC typo. They meant to say 68B-21.007(1): https://www.flrules.org/gateway/Rule...?ID=68B-21.007

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    Default Thanks

    Kite,

    Thanks for posting this. You've made a buddy of mine in Naples VERY happy.

    It's was nice of you to let us all benefit from the time it took you to come up with such a properly detailed question.

    Now here's a question, If one of us were to get ticketed for being in possession of a speared permit, what are the odds that a copy of your letter would hold up in court?

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    When I read this I was both happy and sad. Sad that I had a 40+lb permit 5' away from my speartip last week and happy that next time one of them will be pulling me through the water after I send steel flying it's way. Thanks for the info John can't wait to add another species to the "got one" list.

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    Quote Originally Posted by richt View Post
    Roger that! It also goes against what Capatin Beaton said in an earlier E-mail that I posted on SB.

    Thanks John for getting the legal department to finnaly interpret this confusing set of laws.

    Do you think they will post this online at the FWC website if we urge them to do so?
    And what do you think we will we need to have in our posession to show to a FWC law enforcement officer in order to not get a citation?

    Thanks again for all youe work!!
    I've received a number of private inquiries on this and have given the matter further thought. The way that I reconcile this reply with those that we've received in the past denying us the right to spear these fish in federal waters is as follows:

    Chapter 38 Section 1856 of the Magnuson Stevens Act (cited as 16 USC Sec. 1856) merely contains permissive language. It does not say that state laws apply in federal waters. It merely grants the state the right to under certain circumstances make rules that regulate fishing outside its borders for boats that are registered in that state only. The exact language is: “A State may regulate a fishing vessel outside the boundaries of the State in the following circumstances: (A) The fishing vessel is registered under the law of that State, and . . .”

    It is up to the state (having been granted this limited rule making jurisdiction) to decide the extent to which it wants to make use it. Thus, we must refer to state law to deteremine to what extent (if any) the state has chosen to exercise its jurisdiction.

    In the case of snook, Florida has chosen to exercise its jurisdiction in Florida Administrative Code 68B-21.007 (https://www.flrules.org/gateway/Rule...?ID=68B-21.007) which begins: “ The taking or attempted taking of snook within or without state waters is prohibited except by use of hook and line gear.” It occurs to me that Florida may have exceeded its limited jurisdiction in applying this law to boats not registered in Florida, but that is a question for another day. The FWC’s position (right or wrong) appears to be that you cannot spear snook in federal waters regardless of where your boat is registered. If you get caught spearing snook on a non Florida registered vessel you will probably get a ticket. If you go to court you may win depending upon how much effort the judge wants to expend reconciling federal and Florida law.

    The prohibition against spearing the other species is contained in Florida Administrative Code 68B-20.005 (https://www.flrules.org/gateway/Rule...?ID=68B-20.005) which states in part: “The spearing of the following species and species groups is prohibited: . . .
    (7) Permit (Trachinotus falcatus).
    (8) Pompano (Trachinotus carolinus).
    (9) African pompano (Alectis ciliaris). . . .
    (17) Tripletail (Lobotes surinamensis).”
    Here the state has apparently not chosen to regulate fishing outside its borders because it does not say “within or without state waters” like in the snook rule. Therefore, the Florida rules don’t extend into federal waters for boats registered in Florida, and all boats regardless of their registration can spear these fish in federal waters.

    Anyway, that is my take on it. Neither the FWC nor I have the power to make laws or interpret laws in court. The email does not prohibit an officer from writing you up. If you get stopped it will be up to the officer to decide whether or not he is going to write you up. I would think that having a copy of the email in your possession would help greatly in avoiding a ticket. If he still writes you up on the water, you may be able to avoid going to court by presenting the email to the FWC or the state attorney who will have more time and expertise to carefully consider the legal merits (unlike the FWC officer on the water). If they don’t drop the case I would have to believe that the trial judge would take a closer look at the law and the fact that the FWC has induced you through its email that was referred to its own legal department to feel that spearing such fish was lawful. It is possible that somehow you will be found guilty; however, I have to think that in such case he would be merciful under the circumstances and perhaps give you a withheld adjudication and/or court costs. If you lost, you could take your case to the appellate court. My guess is that you either wouldn’t get written up or the case would be dropped before trial. The prosecutor and the courts have more important things to take care of.

    All that said, I am a TAX LAWYER. I am not a fisheries lawyer or a civil or criminal litigator. Like most things in life, there is risk involved. There are no guarantees. I am not your lawyer and am not advising anyone on how they should proceed. This is merely my unpaid personal opinion of how the laws fit together in a manner that explains the email. If you want further assurances, please consult your own lawyer. In other words, don’t feel that you have the right to sue me if you get in trouble.
    Last edited by kitefisherman; 07-23-2007 at 03:05 PM.

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    Kite,

    Thanks again for your detailed response, I agree completely with your interpretation.

    I also agree with your caveat about everbody making their own decision and not holding you liable.

    About the only thing you left out is the answer to this very important question:

    Are you shooting the next African Pomp or permit you see in Federal waters?

    For the record, I think that I will, but I'll copy that FWC letter and keep it on my boat first.

    Thanks again.

  8. #28
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    Quote Originally Posted by Keith8h View Post
    About the only thing you left out is the answer to this very important question:

    Are you shooting the next African Pomp or permit you see in Federal waters?
    Absoluely Keith!

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    Just a reminder to review the size and bag limits. Boat limits and slot limits apply to these fish. See http://myfwc.com/marine/docs/07FLSalt_webregs.pdf

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    So by that definition you could kayak out there and spear them?
    Sweet !!!


    Quote Originally Posted by kitefisherman View Post
    With all the excitement today, I almost forgot about this.

    It looks like I got what I was after from the FWC. In short, we can legally from a non Florida registered vessel (that is a vessel that is USCG registered or registered in another state) spear permit, African pompano and tripletail in Federal waters and return with the harvested fish to a Florida port. Please note that this ruling does not pertain to snook. The answers come from the FWC's legal section so I would attach a high degree of reliability to them. A complete record of all of my correspondence with the FWC regarding this matter appears below.

    The FWC's answers appear in red in the email, but that does not translate here. Accordingly, I have marked the FWC's response in bold.

    If I'm not mistaken, I believe that the Jolly Rogers II is a USCG registered vessel, so this should apply to them.

    If anyone wants a copy of this, PM me your email address and I will send it to you.

    -------- Original Message --------
    Subject: FW:[*] Question Regarding Florida Jurisdiction of Fish Harvested in Federal Waters
    Date: Thu, 19 Jul 2007 09:59:23 -0400
    From: Beaton, Rob
    To: John A. Herrera

    Mr. Herrera,

    I have consulted our legal section on your questions and have provided the responses in red below.

    -----Original Message-----
    From: John A. Herrera [mailto:jherrera@ix.netcom.com]
    Sent: Monday, July 02, 2007 3:24 PM
    To: Beaton, Rob
    Subject: Re:[*] Question Regarding Florida Jurisdiction of Fish Harvested in Federal Waters


    Captain Beaton:


    That will be fine. I'd rather wait for a good answer than rush a hasty one.


    Thank you for you attention to this matter. I look forward to hearing back from you.


    John Herrera



    Beaton, Rob wrote:


    >Mr. Herrera,

    >

    >Regarding your questions...I have a general working knowledge in a lot

    >of subjects, but have referred your questions to our legal section for a

    >response. Our fisheries expert is on leave until July 9. Will a reply

    >after then be sufficient?

    >

    >Captain Rob Beaton


    >-----Original Message-----

    >From: John A. Herrera [mailto:jherrera@ix.netcom.com]

    >Sent: Thursday, June 28, 2007 3:21 PM

    >To: Beaton, Rob

    >Subject:[*] Question Regarding Florida Jurisdiction of Fish Harvested

    >in Federal Waters

    >

    >Captain Rob Beaton

    >South Field Operations

    >FWC Division of Law Enforcement

    >

    >RE: Question Regarding Florida Jurisdiction of Fish Harvested in

    >Federal Waters

    >

    >Dear Captain Beaton:

    >

    >I am writing to request the Fish and Wildlife Commission's position on

    >the application of Florida laws and regulations to fish harvested in

    >Federal waters that are later landed in Florida. From your response to a

    >friend of mine, I understand that you have an expertise in this area of

    >the law.

    >

    >RELEVANT LAW:

    >

    >My understanding of the law is as follows:

    >

    >A. The boat transporting fish harvested in Federal waters must not stop

    >in Florida waters in transit from Federal waters to its place of

    >landfall in Florida.

    >

    >B. Florida's jurisdiction is governed by Chapter 38 Section 1856 of the

    >Magnuson Stevens Act (cited as 16 USC Sec. 1856). The relevant

    >subsection of Section 1856 is subsection (a)(3), the relevant portion of

    >which reads as follows:

    >

    >"(3) A State may regulate a fishing vessel outside the boundaries

    > of the State in the following circumstances:


    > (A) The fishing vessel is registered under the law of that

    > State, and (i) there is no fishery management plan or other

    > applicable Federal fishing regulations for the fishery in which

    > the vessel is operating; or (ii) the State's laws and regulations

    > are consistent with the fishery management plan and applicable

    > Federal fishing regulations for the fishery in which the vessel

    > is operating.


    > (B) The fishery management plan for the fishery in which the

    > fishing vessel is operating delegates management of the fishery

    > to a State and the State's laws and regulations are consistent

    > with such fishery management plan. . . . [to the best of my

    > knowledge not relevant here]

    > (C) The fishing vessel is not registered under the law of the

    > State of Alaska . . . [to the best of my knowledge not relevant

    > here]"

    >C. Florida law prohibits the spearing of snook, permit, African pompano

    >and tripletail. To the best of my knowledge, Federal law does not

    >prohibit the spearing of any of these species and there are no Federal

    >regulations relating to the harvest of these species.

    >

    >QUESTIONS:

    >

    >My questions all relate to Florida's jurisdiction over vessels not

    >registered in Florida. These vessels may be registered under the laws

    >of the United States (Federal registration), under the laws of a state

    >other than Florida, or under the laws of a foreign country. If the form

    >of this non-Florida registration affects the outcome please specify in

    >your answer.

    >

    >Please assume that the vessel is in compliance with all Federal

    >licensing and permit requirements and that the vessel is not fishing in

    >a MPA or other area where spearfishing is specifically prohibited.

    >

    >A. May a spearfisherman on a vessel not registered in Florida lawfully

    >harvest snook, permit, African pompano and tripletail by spear in

    >Federal waters and return with the harvested fish to a Florida port? NO for snook, YES for the others. If

    >the answer is negative or differs by species, please cite the legal authority for your answer.



    68B-24.007(1)states that “taking of snook within or without state waters is prohibited except by use of hook and line gear.” That language clearly prohibits the spearing of snook in federal waters regardless of where a vessel is registered, if the vessel comes into state waters thereby submitting to its jurisdiction. For the other species, permit, African pompano, and tripletail, there is no extension of the allowable gear requirements into federal waters; thus, regardless of where a vessel is registered you may spear those species in federal waters and return to port in Florida as long as the vessel does not stop in state waters prior to reaching port.



    >B. If the answer to Question A is yes, do any Florida bag limits apply

    >to the harvest of such fish? YES The size and bag limits for pompano, permit, and tripletail all, by their express terms, apply to fish possessed in or on state waters.

    >

    >C. If the answer to Question A is yes, do any Florida size limits apply

    >to the harvest of such fish? YES The size and bag limits for pompano, permit, and tripletail all, by their express terms, apply to fish possessed in or on state waters.

    >

    >D. If the answer to Question A is yes, do any Florida seasonal closures>

    >apply to the harvest of such fish? NO/YES for snook

    >

    >E. Do any of these answers change if the vessel is on a recreational

    >versus a commercial trip? Commercial bag limits would be higher for some species. 10 for tripletail, 250 pompano commercially if no pompano endorsement is possessed, 2 African pompano per person or 2 per vessel max whether commercial or not.

    >

    >LEGAL ANALYSIS:

    >

    >In brief, my understanding is that under Section 1856(a)(3) Florida does

    >not have the jurisdiction to regulate a non Florida registered fishing

    >vessel outside the boundaries of the State of Florida regardless of

    >whether or not there is a Federal fishery management plan or other

    >applicable Federal fishing regulations for the fishery in which the

    >vessel is operating; or Florida's laws and regulations are consistent

    >with the fishery management plan and applicable Federal fishing

    >regulations for the fishery in which the vessel is operating..

    >Accordingly, the harvest of fish harvested by such non Florida

    >registered fishing vessels exclusively in Federal waters is governed

    >only by the Federal rules and regulations. Since the Federal rules and

    >regulations do not prohibit spearfishing for snook, permit, African

    >pompano and tripletail, these fish may be lawfully speared in Federal

    >waters and returned to port in transit through Florida waters.

    >Furthermore, except to the extent that the Federal rules and regulations

    >impose bag limits, size limits, or seasonal closures on the harvest of

    >snook, permit, African pompano and tripletail, these fish may be

    >lawfully speared in Federal waters and returned to port in transit

    >through Florida waters without regard to any Florida bag limits, size

    >limits, or seasonal closures for such species.

    >

    >CONCLUSION:

    >

    >Thank you for your time and consideration of the issues discussed

    >herein. I understand that this is a somewhat confusing area of the

    >law. I have given considerable thought to these issues, but I want to

    >confirm that my conclusions are correct and to understand why if they

    >are incorrect, so that I may fully comply with the law. If your answers

    >to my questions are consistent with my legal analysis, please respond in

    >a form that will be helpful in expeditiously resolving these questions

    >with any Florida law enforcement personnel that I may encounter.

    >

    >Respectfully submitted,

    >

    >John A. Herrera, Esquire

    >Law Offices of John A. Herrera

  11. #31
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    Quote Originally Posted by Rinaldo View Post
    So by that definition you could kayak out there and spear them?
    Sweet !!!
    Yes, if you kayak all the way to federal waters and don't stop on your way in.

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    hmm. what if you towed the kayak out there?

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    How do they know where you got the fish?

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    They don't. If they stop you while at anchor is state waters, they will assume the fish came from within state waters.

    So, if you want federal rules to apply, it's best to run straight in once crossing the line. GPS track could be referred to as proof that you caught your fish in federal waters.
    Brian

    1999 Robalo 2440 w/ Merc 200s

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    Kite-
    You are the man! I will get this put on the agenda for the upcoming FWC meeting in St. Pete so they can clarify this and possibly add spearfishing gear to the allowable gear types for thos species in Florida waters.
    The meeting is in September.

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    This rule to me opens up Biscayne National Park and anything outside the 3-mile limit (as per where I usually hunt). I'm glad you pointed this out. Cant really KAYAK out to deep water (elliot key), but I usually boat out there anyways.

    So kitefisherman, in a way this basically opens up those fish to all Miami residents right? Since the majority of em hunt the park anyways.

    p.s.
    how much water do those permit like in the Bay? they're on those flats sometimes arent they?
    Last edited by Ghambit; 07-29-2007 at 11:32 AM.
    "...It's a place you get to know your soul, a place you want to stay if you like what you see"

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    Quote Originally Posted by Ghambit View Post
    This rule to me opens up Biscayne National Park and anything outside the 3-mile limit (as per where I usually hunt). I'm glad you pointed this out. Cant really KAYAK out to deep water (elliot key), but I usually boat out there anyways.

    So kitefisherman, in a way this basically opens up those fish to all Miami residents right? Since the majority of em hunt the park anyways.

    p.s.
    how much water do those permit like in the Bay? they're on those flats sometimes arent they?
    Ghambit:

    I am not very familiar with Biscayne National Park. I've never hunted there. There may be federal regulations that govern spearfishing within the national park. These regulations would most likely extend out beyond 3 miles.

    Permit are a flats fish, but they also like deep wrecks. I would think that anything within the bay would be within 3 miles of land and thus subject to the Florida prohibition on spearing regardless of whether it was in the national park or not.

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    Quote Originally Posted by kitefisherman View Post
    Ghambit:

    I am not very familiar with Biscayne National Park. I've never hunted there. There may be federal regulations that govern spearfishing within the national park. These regulations would most likely extend out beyond 3 miles.

    Permit are a flats fish, but they also like deep wrecks. I would think that anything within the bay would be within 3 miles of land and thus subject to the Florida prohibition on spearing regardless of whether it was in the national park or not.
    Well.. Biscayne National Park is considered federal waters. That's my point. As far as I know there's nothing that separates the park from anywhere else in regards to taking particular species. That being the case... I look at it as a place we can now take permit, pompano, etc. out of. This is something we should look into though as that's quite a bit of turf to add to the mix.

    Those Permit DO exist within the Park for sure on the flats (bay) side as their fished for regularly there. There is snorkeling and some spearing done in the bay also, so one might think it might be worthwhile targeting some Permit. Regardless, the main jist of it spearin-wise is off Elliot Key of Course (between Key Biscayne and Key Largo).

    3 miles or not... if you're in a national park, that's federally controlled water. Same goes for military ranges and dumpsites too, in some cases. (i gotta check my charts)
    Last edited by Ghambit; 07-29-2007 at 02:47 PM.
    "...It's a place you get to know your soul, a place you want to stay if you like what you see"

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    According to the National Parks Service website http://www.nps.gov/bisc/planyourvisi...lobstering.htm

    "Although Biscayne National Park is part of a federal agency, fishing and other harvesting activities are largely governed by state law. This somewhat unusual situation was written directly into the park's enabling legislation, the law that created the park and its predecessor, Biscayne National Monument."

    The "Spearing" tab on that web page links to the FWC webpage listing the Florida prohibited species that include permit, etc.

    I would not rely on the email that I received to shoot permit within the Park. Rather, I would contact the Park and/or the FWC for a clarification. By all means, if you get a green light please share.

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    Quote Originally Posted by Rinaldo View Post
    So by that definition you could kayak out there and spear them?
    Sweet !!!
    Quote Originally Posted by Ghambit View Post
    This rule to me opens up Biscayne National Park and anything outside the 3-mile limit (as per where I usually hunt). I'm glad you pointed this out. Cant really KAYAK out to deep water (elliot key), but I usually boat out there anyways.

    So kitefisherman, in a way this basically opens up those fish to all Miami residents right? Since the majority of em hunt the park anyways.
    So just how far out is "Federal Waters" from Fort Lauderdale? I know a buddy and I kayaked 3 miles out... the seas got 'big' so I stopped, but he kept going for two more miles... (he had a more sea worthy kayak, though)

    Is there some place out there that gets shallow again? I know I've heard of the 'grounds,' but I don't know what they are.

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