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Thread: A Favorable Ruling on Spearing in Federal Waters!

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    Default A Favorable Ruling on Spearing in Federal Waters!

    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
    Last edited by kitefisherman; 07-20-2007 at 01:32 AM.

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    A documented vessel versus a Florida registered? That is drawing an extremely odd disticntion.
    SPUC
    1987 Mako 254 with twin 175 ETEC's
    1984 Mako 17 with 115 Suzuki

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    The federal government only gave the states jurisdiction over vessels registered in that state. I suppose that we as taxpayers and people who pay the state registration fee should demand that the state not treat us worse than they treat people from other states and people who chose to register with the federal government. The statute says that the state "may" regulate vessels registered with the state - it doesn't say that the "must" do it.

    It's a narrow loophole but a loophole none the less.

    I sent Capt. Beaton a thank you note and asked that he get the message out to the officers in the field. He responded asking if there was an incident that had occurred that he could help with. He seems like a really good guy.

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    John can you foward me a copy of the email ------- Thanks John
    Last edited by Roland; 07-20-2007 at 09:29 AM.

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    Default Very interesting

    Sounds positive. So it was legal to spear africans in federal waters all along then? (not snook) or is this something new? .

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    Scott: My inquiry was related to the discussion in this SB thread: http://www.spearboard.com/forum/show...t=42185&page=1

    As a coutesy to people following the thread and to be responsible, I posted over there that I got a favorable ruling and to PM me your email address for a copy (I didn't post the ruling there), and Tony deleted my post!

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    That's very cool John.....now I just need to find a non-Florida registered boat to shoot those African Pomps and Permits!!

    Why on Earth would Tony delete that? Man, he must really be flippin' out.

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    So if I had a friend from Georgia trailer his (Georgia Registered) boat to the Keys, it would then be legal to spear permit and pompano?????
    "The greatest spearfisherman in the world is the one that is having the most fun"

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    There is a bit of a problem. My boat is federally documented. However, I am also required to register it with FL. I am not assigned FL#'s because of the documentation, but it is registered in FL.

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    My Bertram is documented with the USCG. I don't remeber getting any FL info. I'll have to check.
    In honor of this, let's get a trip together! Supposed to be getting the transmissions looked at today! Let's do a cost-share trip! I'll take as many people as we can stuff on the boat!
    Capt. Sean Patterson

    Members and non-members only...

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    Quote Originally Posted by WonderBoy View Post
    My Bertram is documented with the USCG. I don't remeber getting any FL info. I'll have to check.
    In honor of this, let's get a trip together! Supposed to be getting the transmissions looked at today! Let's do a cost-share trip! I'll take as many people as we can stuff on the boat!
    Shit, I am all for that. How much gas will that thing burn?......

    Oh yeah, lets make it a weekday so Jerry can go. Tent sales on weekends.
    SPUC
    1987 Mako 254 with twin 175 ETEC's
    1984 Mako 17 with 115 Suzuki

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    Quote Originally Posted by Red Tide View Post
    So if I had a friend from Georgia trailer his (Georgia Registered) boat to the Keys, it would then be legal to spear permit and pompano?????
    Yes, that is my reading of it

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    Quote Originally Posted by WonderBoy View Post
    My Bertram is documented with the USCG. I don't remeber getting any FL info. I'll have to check.
    In honor of this, let's get a trip together! Supposed to be getting the transmissions looked at today! Let's do a cost-share trip! I'll take as many people as we can stuff on the boat!
    Make sure that you save me a spot. Somebody on board will have to be able to explain it to the FWC officer

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    In his response he stated " regardless of where a vessel is registered you may spear those species in federal waters...as long as the vessel does not stop in state waters" that leads me to believe anyone can shoot a. pompano/permit in fed. waters.

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    Quote Originally Posted by Chum Bucket View Post
    In his response he stated " regardless of where a vessel is registered you may spear those species in federal waters...as long as the vessel does not stop in state waters" that leads me to believe anyone can shoot a. pompano/permit in fed. waters.
    You are absolutely right! My bad, I did notread his response carefully enough. I was so happy that I got what I wanted that I failed to notice that I GOT MORE THAN I WANTED. Any boat can apparently spear African pompano, pompano and tripletails in federal waters and return to a Florida port.

    Great point - THANK YOU!

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    great news, completely contradictory to everything they have ever sent me in writing. Can we ask for an official letter that says it is ok? A copy of an email may only go so far.

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    Thumbs up

    Quote Originally Posted by kitefisherman View Post
    You are absolutely right! My bad, I did notread his response carefully enough. I was so happy that I got what I wanted that I failed to notice that I GOT MORE THAN I WANTED. Any boat can apparently spear African pompano, pompano and tripletails in federal waters and return to a Florida port.

    Great point - THANK YOU!
    Well hell, that is great news. I leave for the keys in the morning and it is nice to know I can shoot the tripletails swimming under debris offshore.
    SPUC
    1987 Mako 254 with twin 175 ETEC's
    1984 Mako 17 with 115 Suzuki

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    Quote Originally Posted by JAW View Post
    great news, completely contradictory to everything they have ever sent me in writing. Can we ask for an official letter that says it is ok? A copy of an email may only go so far.

    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 finally 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 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 your work!!
    Last edited by richt; 05-22-2009 at 10:52 PM.

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    John, If you want to go test this out I will make the time to run a trip out of Canaveral with you. We can shoot all three species and see what happens.

    Jason

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    Im game for a trip as well Jason....I would love to shoot a pomp.

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