Fishing and Natural Resource Law in Florida

Permits

Permits are an aspect of fishing law that most people (including most attorneys) don’t understand the importance of. Permits should be one of your priorities as a fisherman. Without them you can’t lawfully fish or earn a living. State and federal permit requirements are complex and difficult to navigate. Assistance is often required to obtain all of the permits and endorsements necessary to conduct commercial fishing activities and to legally possess, buy and sell saltwater products.

Mastry Law is available to handle any state or Federal Fishing Law matter whether it’s speaking on your behalf at a Council meeting, challenging a regulatory amendment, defending you against a fishery violation, handling a permit issue, or guiding you through the maze of state and Federal fishing laws.

Natural Resource Law

Natural resources is a general category of environmental laws that includes anything having to do with the regulation of plants, animals, fish, water and air. Some of the more important natural resource laws include the Marine Mammal Protection Act and the Endangered Species Act. Penalties for violating natural resource laws could be as minor as a warning or as severe as criminal penalties with the potential for six-figure fines and time spent in prison.

The Endangered Species Act

The Endangered Species Act (ESA) is one of the most important environmental laws affecting the daily lives of commercial and recreational fishermen. Only the Magnuson-Stevens Act is more restrictive in dictating what can and can’t be done on the water. Those who don’t pay attention to what’s being done under the ESA do so at their own peril.

The ESA provides for the protection of species that have been designated as threatened or endangered. It also provides for the conservation of their habitat. There are nearly 2,100 species that have been listed as threatened or endangered under the ESA, and more are being listed all the time.

A species can be listed by NMFS or the US Fish and Wildlife Service on the agency’s own accord or after being petitioned to do so by a citizen or organization. The first step in the listing process is the 90-day finding. At this stage the agency has 90 days to make a preliminary determination regarding whether listing of the species may be warranted. If a reasonable person could conclude that listing under the ESA may be warranted based upon the information before them, then the agency must make what’s known as a “positive 90-day finding.” This is an extremely low standard to have to meet. In fact, the 90-day standard is so low that any negative 90-day finding should be looked upon with great skepticism and should be considered for legal challenge.

Once a positive 90-day finding is published in the Federal Register, the agency has 12 months from the time that it received the petition to conduct a review of the species status and determine whether the species should be listed as threatened or endangered. If the agency concludes that listing is not warranted, then the process ends. However, if the agency finds that listing is warranted, then a “positive 12 month finding” is published in the Federal Register along with a proposed listing rule. The public is allowed to comment on the proposed rule. Thereafter, a final rule is published listing the species as threatened or endangered.

Finally, the agency has to designate critical habitat for any species that is listed under the ESA. Just as species that are listed under the ESA receive substantial regulatory protections, critical habitat is also protected under the statute. Critical habitat designations are based on the best scientific information available and must be done in an open public forum.

All actions taken by NOAA that will have an effect on an endangered species or it’s critical habitat must undergo a consultation pursuant to section 7 of the ESA. If a negative effect is found, then NOAA must offer alternatives that will minimize the impact of the action to the species and its critical habitat. These usually end up being regulations placed on fishermen.

Penalties for violating the ESA range from a warning to fines of up to $50,000 and up to one year in prison.

The Marine Mammal Protection Act

The Marine Mammal Protection Act (MMPA) protects ALL marine mammals in waters under the jurisdiction of the United States and on the high seas. Under the MMPA, marine mammals are protected from “take” by US citizens. “Take” is defined as harassing, hunting, capturing, killing or collecting marine mammals, or attempting to do any of these things. The MMPA also prohibits the importation of marine mammals and marine mammal products into the US.

In 1994, the MMPA was amended by congress to allow for exceptions to the “take” prohibitions for some activities. Congress also established a program to allow for the taking of marine mammals that is incidental to commercial fishing operations.

Under this program, any owner of a commercial vessel or non-vessel gear that is participating in a Category I or Category II fishery has to get a marine mammal authorization from NMFS to be exempt from the prohibitions of the MMPA and to lawfully incidentally “take” a marine mammal.

Penalties for violating the MMPA can range from a warning to forfeiture of cargo, fines of up to $25,000 per violation and/or a prison sentence of up to 1 year.

We can help you determine if you are required to apply for and obtain authorization to incidentally take marine mammals during the course of your fishing activities.

There are, of course, many other Natural Resource laws effecting our lives and our daily activities. If you need help with issues concerning these or any other Natural Resource laws, call or contact us.