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

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

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?

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.

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.

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.

Absoluely Keith!

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

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.

hmm. what if you towed the kayak out there?

How do they know where you got the fish?

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

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.

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?

__________________
"...It's a place you get to know your soul, a place you want to stay if you like what you see"

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)

__________________
"...It's a place you get to know your soul, a place you want to stay if you like what you see"

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.

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.