RONALD FRED CRUM

v.

FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION F/K/A MARINE FISHERIES COMMISSION AND GAME AND FRESH WATER FISH COMMISSION, AND ERIC SUTTON

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

RONALD FRED CRUM, Appellant, v. No. 1D21-367

FLORIDA FISH AND WILDLIFE

CONSERVATION COMMISSION f/k/a Marine Fisheries Commission and Game and Fresh Water Fish Commission, and ERIC SUTTON, Appellees.

On appeal from the Circuit Court for Leon County. Kevin J. Carroll, Judge.

June 13, 2022

ON MOTION FOR REHEARING, FOR WRITTEN OPINION, AND FOR

CERTIFICATION OF A CONSTITUTIONAL QUESTION

PER CURIAM.

On consideration of Appellant's motions, the Court denies the motion for written opinion and the motion for certification. But we grant the motion for rehearing, withdraw our prior opinion, and substitute the following opinion.

Because the record supports the judgment of the trial court, we affirm the orders dismissing Appellant's third and fourth amended complaints challenging the rulemaking authority of the Florida Fish and Wildlife Conservation Commission. See Art. IV, § 9, Fla. Const. (providing that 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”); see also Caribbean Conservation Corp. v. Fla. Fish and Wildlife Comm'n, 838 So. 2d 492, 499 (Fla. 2003) (discussing the scope of the commission's constitutional authority to regulate marine life and explaining that the commission's authority did not extend to regulation of "endangered or threatened species of marine life"); Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) ("[T]he 'tipsy coachman' doctrine[ ] allows an appellate court to affirm a trial court that 'reaches the right result, but for the wrong reasons' so long as 'there is any basis which would support the judgment in the record.'" (quoting Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999))).

AFFIRMED.

ROWE, C.J., and OSTERHAUS and WINOKUR, JJ., concur.

ON MOTION FOR REHEARING EN BANC

The Court denies the motion for rehearing en banc.

ROWE, C.J., and LEWIS, RAY, MAKAR, OSTERHAUS, KELSEY, WINOKUR, JAY, M.K. THOMAS, NORDBY, and TANENBAUM, JJ., concur.

B.L. THOMAS, J., dissents with opinion in which ROBERTS, J., joins.

BILBREY and LONG, JJ., recused.

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

B.L. THOMAS, J., dissenting from the denial of rehearing en banc.

This case presents an issue of exceptional importance¹—whether the Florida Fish and Wildlife Conservation Commission (“the Commission") has exclusive authority to regulate Florida's saltwater marine life, or whether its regulations must conform to relevant legislative enactments. I would rehear the case en banc, and thus respectfully dissent from the majority's decision.

Mr. Crum filed a complaint for a declaratory judgment challenging several rules that the Commission promulgated regulating saltwater marine life. He argued that the Commission's rules must comply with section 379.2401(3)(a)–(f), Florida Statutes, which requires all FWCC's rules relating to saltwater fisheries comply with eight standards.

The Commission admits that its rules do not comply with section 379.2401(3), Florida Statutes. Instead, the Commission argues that it has exclusive regulatory authority under article IV, section 9 of the Florida Constitution. And the Commission argues that its "constitutional rulemaking powers cannot be abrogated by the Legislature." The Commission's argument overreaches. While the Commission does have the exclusive authority to regulate freshwater marine life, it does not have the exclusive regulatory authority over saltwater marine life.

The Florida Constitution does not limit the Legislature's power to regulate saltwater marine life to the extent that the Commission asserts. In 1998, Florida's voters approved an amendment to the state constitution, which created the Commission. Caribbean Conservation Corp. v. Fish & Wildlife Conser. Comm’n, 838 So. 2d 492, 494 (Fla. 2003); see Art. IV, § 9, Fla. Const. The amendment abolished the Florida Game and Fresh Water Fish Commission and the Marine Fisheries Commission. Caribbean Conservation, 838 So. 2d at 494. The Florida Game and Fresh Water Fish Commission was a constitutionally created agency. Id. at 495. But the Marine Fisheries Commission was created by the Legislature, and that commission derived its power solely from state statute. See id. 495–96.

As the supreme court noted, we must read article IV, section 9 in conjunction with article XII, section 23, subsection (b). Id. at 501–02. Article XII is an enacting provision, which states, “The jurisdiction of the marine fisheries commission as set forth in statutes ... shall be transferred to the fish and wildlife conservation commission. The jurisdiction of the marine fisheries commission transferred to the commission shall not be expanded except as provided by general law.” Art. XII, § 23(b), Fla. Const. (emphasis added). When reading the two constitutional provisions together, the supreme court concluded that the Commission only had the power that the Marine Fisheries Commission had on March¹, 1998. Caribbean Conservation, 838 So. 2d at 501–02. But on March¹, 1998, the Marine Fisheries Commission, which derived its power from the Legislature, did not have exclusive authority to regulate saltwater marine life. Thus, because the Marine Fisheries Commission did not have exclusive authority to regulate saltwater marine life when its jurisdiction transferred to the Florida Fish and Wildlife Conservation Commission, the Commission does not have exclusive authority to regulate saltwater marine life.

The ballot summary further supports the interpretation above.² When Florida voters approved of “revision 5" which

amended the state constitution to add both article IV, section 9 and article XII, section 23—the ballot summary stated:

Requires adequate provision for conservation of natural resources; creates Fish and Wildlife Conservation Commission, granting it the regulatory and executive powers of the Game and Fresh Water Fish Commission and the Marine Fisheries Commission; removes legislature's exclusive authority to regulate marine life and grants certain powers to new commission; authorizes bonds to continue financing acquisition and improvement of lands for conservation, outdoor recreation, and related purposes; restricts disposition of state lands designated for conservation purposes.

(emphasis added). The language stating that the amendment removed the Legislature's “exclusive authority to regulate marine life" does not suggest that the amendment removed all of the Legislature's regulatory authority over saltwater marine life.

The supreme court came to the same conclusion Caribbean Conservation:

Our conclusion is consistent with what was presented to the voters in the revision 5 ballot summary, which states that revision 5 “removes legislature's exclusive authority to regulate marine life and grants certain powers to new commission.” This statement is reasonably read to mean that the Legislature had exclusive power to regulate marine life, but some, not all, of that exclusive power was being constitutionally transferred to the FWCC. This correlates with the constitutional language in article IV, section 9, and article XII, section 23, that what the FWCC is to have with respect to marine life is some regulatory powers, not “the” regulatory power of the state, and that the power which the FWCC is to have is the power which the Marine Commission had on March 1, 1998.

838 So. 2d at 502–03 (emphasis added).

The Commission's argument directly conflicts with article XII, section 23, subsection (b) of the Florida Constitution. That provision specifically freezes the transfer of authority to the extent already provided by statute in 1998. (Indeed, nothing could be plainer than the word “jurisdiction." See Art. XII, § 23(b), Fla. Const.) On that date, the Legislature most certainly had the authority to require compliance with its policies. See Art. III, § 1, Fla. Const. (“The legislative power of the state shall be vested in [the] [L]egislature of the State of Florida.”). To decide otherwise nullifies article XII, section 23, subsection (b) of the Florida Constitution, and allows the Commission to nullify the legislative power preserved in that amendment.

The Commission relies, in part, on this Court's decision in Wakulla County Fisherman's Association v. Florida Fish & Wildlife Conservation Commission, 951 So. 2d 8 (Fla. 1st DCA 2007). But that decision is wrong under the supreme court's rationale in Caribbean Conservation. In Wakulla County Fisherman's Association, this Court stated that the state constitution vested the Commission “with the exclusive legislative authority to adopt reasonable rules to regulate marine life in this state, and [that] the legislature is constitutionally prohibited from adopting statutes in conflict with such rules." Id. at 9 (citations omitted). But as noted above, the supreme court explicitly stated this was not the case. That this Court's precedent contains this incorrect statement of law further supports that this Court should rehear this case en banc. See Fla. R. App. P. 9.331(d)(2).

It is worth noting that the Legislature did not fail to consider the supreme court's holding in Caribbean Conservation. Florida Statutes provides that "[t]he constitutional power granted to the Fish and Wildlife Conservation Commission does not include any authority over marine life retained by the Legislature or vested in any agency other than the Marine Fisheries Commission on March¹, 1998." § 20.331(8), Fla. Stat. (2021) (emphasis added). This section correctly notes that the Legislature retained regulatory power over saltwater marine life after the voters approved article IV, section 9 of the Florida Constitution. This Court should correct its precedent to accurately reflect the supreme court's holding.

Thus, this Court should reverse and hold that the Commission is subject to legislative authority to regulate saltwater fisheries.

Ronald A. Mowrey of Mowrey Law Firm, P.A., Tallahassee; and Marie A. Mattox of Marie A. Mattox, P.A., Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Karen A. Brodeen, Senior Assistant General, Tallahassee, for Appellee Florida Fish and Wildlife Commission.

No appearance for Appellee Eric Sutton.