State's endangered status of manatee on agenda of Florida wildlife panel

The West Indian manatee may drop a notch on the state's protected species list if a commission charged with protecting Florida wildlife heeds a federal report released three months ago.

The Florida Fish and Wildlife Conservation Commission is meeting in Fort Myers for three days starting Wednesday. The meetings start at 8:30 a.m. each day in the Lee County Commission Chambers, 2120 Main St. Manatee issues will be discussed Thursday.

A U.S. Fish and Wildlife Service report released in October says the manatee does not meet any of the state's criteria for classification as endangered. It does, however, meet criteria for being listed as threatened, such as a projected population decline of at least 50 percent over the next 45 years and having an adult population of fewer than 2,500 animals, according to the report.

In order to meet the state's definition of endangered, animals must be faced with an 80 percent decline over the next 45 years, have lost 80 percent of the population over the last 45 years or have fewer than 250 adults.

Fish and Wildlife officials could vote to accept the report, delay a decision or retain the manatee's endangered status. A change in the state status, however, would not effect any federal protection or listing.

Boating groups and those in the marine industry say the change is overdue, while manatee supporters say the state's criteria should be more stringent.

The review was triggered in August of 2001 when the Coastal Conservation Association petitioned the state to reconsider the listing status. The review also mandates that a state manatee protection plan be developed.

Ted Forsgren, CCA executive director, said the manatee should actually be listed as a species of special concern, which is one level lower than threatened.

"The manatee, if looked at through document science, it doesn't fit any of the criteria," Forsgren said. "We simply want to get the truth out on the table."

Forsgren said CCA has asked Fish and Wildlife to defer the decision until a March Commission meeting in Tallahassee. Save the Manatee Club has asked for the decision to be deferred as well.

Vance Hurd, a Lee County resident and member of Standing Watch, a statewide boating rights group, said the manatee should never have been listed as an endangered species by the state.

"If (manatees) were held to scientific standards, they would have never been put on the endangered list to begin with," Hurd said. "They don't meet the criteria and they didn't back when they were put on. We've got to get them back off."

Laura Combs, the Southwest regional spokeswoman for Save the Manatee Club, said the state should change the listing criteria for manatees before a decision is made. Combs said she's also concerned that the public may think the manatee is no longer threatened if the state downlists the sea cow.

"That's a very big concern," Combs said. "These criteria are completely inappropriate and misleading."

Independent scientists who reviewed the state's criteria were mixed on the potential status change. One scientist reported that the criteria was not appropriately used, another reviewer said the criteria was suitable, and another scientist said the criteria could further polarize manatee advocates and the marine industry.

Elsa Haubold with Fish and Wildlife said the state has changed some of the report since it was sent out for independent review.

"Those reviews were based on the preliminary report that came out in October," Haubold said. "We have modified the report since then."

Haubold said the changes should address concerns raised by the outside scientists.

This could be significant due to a couple of recent court decisions. The first was as follows:

SCOFLA: Manatee group loses court fight over endangered species law

Friday, January 17, 2003
By JACKIE HALLIFAX, Associated Press

TALLAHASSEE — Critics of manatees and sea turtle regulations can file administrative challenges, the state Supreme Court ruled Thursday, rejecting an argument by environmental groups that such challenges could not be made.
But the losers aren't too upset.
That's because the unanimous decision means Save the Manatee Club, the Florida Wildlife Federation and others in the environmental community will also be able to challenge rules made by the Florida Fish and Wildlife Conservation Commission.
"We thought we'd be defending them ... and now I think it's more likely that we're going to be challenging them," said David Guest, a lawyer for Earthjustice Legal Defense Fund who represented Save the Manatee Club and the Florida Wildlife Federation.
The two groups and some of their officers went to court in 1998 arguing that regulations adopted by the fish and wildlife board weren't subject to administrative challenges.
The trial judge agreed with them but the 1st District Court of Appeal overturned that decision and the groups appealed to Florida's high court.
The crux of the legal issue was whether the authority of the fish and wildlife board to protect endangered marine species like manatees, sea turtles and sturgeon was granted by the state constitution or by state lawmakers.
If constitutional, as the environmental groups argued, critics wouldn't be able to resort to the administrative challenge process set up by the Legislature to give people and organizations a way to challenge most state regulations.
Voters in 1998 approved creating the seven-member conservation board by merging the former Florida Game and Fresh Water Fish Commission and the Marine Fisheries Commission. In most ways, the conservation board is a constitutional entity with constitutional powers.
But the protection of manatees, sea turtles and sturgeon is an exception because the state Department of Environmental Protection also continues to be responsible for regulation of endangered marine species, Justice Charles Wells wrote for the court.
James Antista, general counsel for the Fish and Wildlife Conservation Commission, said public participation improves the process because the objectors might have a valid points that can lead to better protection of the species.
"The only thing it really means is that interested people will be able to participate in the administrative process when any rules are adopted that affect endangered species," Gary Perko said.
Perko said the ruling wouldn't hurt species because an administrative challenge wouldn't stop the commission could take emergency steps if there was a crisis.
Guest said the fact that the commission was considering taking manatees off the endangered species list was an example of why environmental groups have come to realize that they too, like marinas and boat manufacturers, might want to challenge the commission.
"At the time we filed this case we were of the view that the Fish and Wildlife Conservation Commission was going to carry forward the long tradition of complete independence and resource-oriented regulation," Guest said.
"Since we filed the case I think that we have become a little more sanguine about what the future holds."

The second was as follows:

State vows to contest manatee zones ruling

By MIKE HOYEM, mhoyem@news-press.com

Florida officials vowed Thursday to take action to reverse a judge’s ruling that invalidates many state manatee protection zones in the waters of Lee County.
Twentieth Judicial Circuit Senior Judge Jack Schoonover signed an order Thursday declaring large portions of the county’s manatee slow speed zones unconstitutional because, the judge said, they aren’t supported by scientific evidence.
The judge ruled the zones unconstitutional last Nov. 12 after a weeklong trial, but didn’t make the ruling official until Thursday when he signed an order outlining his findings in detail.
The state now has 30 days to take the case to the Second District Court of Appeal.
Ross Stafford Burnaman, assistant general counsel for the Florida Fish and Wildlife Conservation Commission, said the state has no plans to let the ruling stand.
“The commission plans to expeditiously move for either rehearing of the order or will file an appeal of the order,” Burnaman said. “In the meantime, we’re encouraging motorboat operators to comply with the posted speed restrictions, including those in Matlacha Pass, Estero Bay and the mouth of the Caloosahatchee River.”
Burnaman said the commission will take action “early next week at the latest.”
Whether the agency seeks a new hearing or files an appeal, the commission’s action legally will put the judge’s order on hold until the matter is resolved, he said.
The judge’s ruling stemmed from the cases of nine boaters cited for speeding in manatee protection zones, including 20th Circuit Court Administrator Doug Wilkinson. The cases were consolidated and the defendants challenged the constitutionality of the manatee protection rule.
Schoonover found three of the defendants guilty of the violations. But he did not adjudicate them guilty — which means the convictions won’t go on their records — and punished them only with a “judicial warning.”
Attorney John Mills of Fort Myers was one of the defendants found not guilty.
“We’re pleased with the judge’s ruling and we hope the state and federal authorities read it thoroughly before they make any more rules,” Mills said.

If the manatees are downlisted then the state admits that they are increasing in numbers and that they are not in the same league as the federal guidlines. Therefore, the state will not have to enforce the speed zones that it has already ruled are unconstitutional. In addition, the delegation of authority is under question. Which means that local law enforcement will not have the authority to ticket boats under state law. The enforcement will have to be undertaken by the feds.

Granted this may not stop the enforcement but it does provide another opportunity to make a challenge.

Finally, the local economy is being hit by yet another aspect of the confusing guidlines:

Officials checking up on SW Fla. dock builders

Army Corps of Engineers hunting violators

By JEFF CULL, jcull@news-press.com

Boat dock builders in Lee County aren’t worried about losing a few customers because of proposed new regulations designed to protect the manatee.
They’re worried about losing their businesses.
New federal rules that would restrict any building activity on public waters that could cause harm to the endangered sea cow would limit, at best, and halt, at worst, building boat docks, boat ramps and marinas in Southwest Florida.P>And the feds are playing hardball.
On Wednesday, the U.S. Army Corps of Engineers sent a cease-and-desist order to Honc Marine Contracting for 36 dock and seawall projects in Cape Coral.
That comes on the heels of 48 violations the Army Corps has cited Williamson and Sons Marine Construction, another local marine contractor, with over the past three months.
The Corps says that in each case, federal permits were not obtained before work was started in Cape Coral.
“We’re going to keep investigating because we see a pattern,” said Eric Summa, chief of enforcement for the regulatory division of the Army Corps. “Federal permits are required before construction starts. That’s the message we’re trying to get out.”
But officials at Honc say the government is overreacting and they haven’t violated any rules.
“The whole thing is a big mistake,” said John Honc Jr., president of Honc Marine. “We’ve pulled all the files (on the 36 violations noted in the cease and desist letter) and we either have a federal permit, or we haven’t started work yet while we’re waiting for the permit.”
Cape Coral Councilman Tim Day backed up Honc.
Day’s dock and seawall in northwest Cape Coral were listed in the Army Corps letter to Honc as one that was being built without permits.
“I don’t understand this,” Day said. “He got a permit and the dock hasn’t even been started yet. This is shocking. The feds just want to continue the war.”
Honc added that he has no idea what triggered this investigation, but he’d like to know.
“This makes no sense,” he said.
The Army Corps said that officials had inspected “some or all” of Honc’s dock and seawall projects and “determined that some work had been done,” Summa said.
And further investigations are expected in Lee County.
“This is a lot of violations by any standard,” he said.
The letter Honc received warns of criminal penalties including fines of up to $100,000 and one year imprisonment. And homeowners could also be subject to the penalties, Summa said.
Williamson and Sons Marine officials could not be reached for comment.
Futures are at risk
Other dock builders say their very livelihood is being challenged by federal agencies that have no concept of the damage the current and proposed manatee protection rules will have on their businesses.
Mike McCartney of Cape Coral has been a dock builder for 12 years.
He says he has always played by the rules, got all his permits, built according to codes and treated his customers like kings.
McCartney built quality docks with the hope that his reputation would spread faster than a political rumor in an election year.
It did.
He built his business up over those years only now to find it teetering on the brink of crashing under the weight of a government that, he says, doesn’t see the big picture.
And he feels powerless to stop it.
“I’m 47 years old, what am I supposed to do?” he said. “I’m a dock builder. I love this work. I love Cape Coral. What do I tell my guys?”
McCartney, a former member of the Save the Manatee Club, said he knows that some of the docks he builds don’t have all the required permits. But he says he’s willing to take that risk to keep his business afloat.
“We all want protection for the manatees,” he said. “ ... I love the little critters. But what are we supposed to do?”
The proposed regulation would allow for new boat docks in three regions of the state but not in the Southwest region, which includes Lee and Collier counties.
By limiting the number of access points, the U.S. Fish & Wildlife service believes it can reduce the number of manatee deaths in a region that accounts for 42 percent of manatees in the state.
It could also put many dock builders out of business.
A recent U.S. Fish & Wildlife report said the plan could cost the region $87 million to $175 million in economic losses and nearly 1,000 jobs in five years.
However, Bonita Springs hired an economist to look at the effect the rule would have on its community. David Rivenbark, of Fishkind & Associates of Orlando, estimated that if no dock permits are issued in Bonita Springs, the economic loss could reach $51 million.
Cape Coral officials are awaiting their own economic report, which should be completed by the end of January.
“We take this personally,” McCartney said. “We put so much of ourselves into this business. Now it could all be taken away.”
Bob Shenkel, a Fort Myers manufacturer of boat lifts, is worried that he’ll lose his business and all eight of his employees if the rules are approved.
“What do I tell them when they ask if they have a job in May?” he said recently.
Randy Howd has worked for McCartney for five years and he’s scared.
“Not only me but a lot of people are worried,” he said. “There’s not enough work repairing docks to keep even one contractor busy. We’d all starve.”
But McCartney remains circumspect. “I’m not a scientist, I’m a carpenter,” he said. “I don’t know what the answer is, but I can’t believe the answer is stopping dock construction.
“When does some rational thought some into play?”

If USF&W have the authority regulate the issuance of dock permits then where does the Army Corps of Engineers get their authority to shut down questionable dock construction? And does the conflict between the state's position and the fed's affect USF&W when they make a claim to affect state business in the regulation of dock permits?

Stay tuned. I'll be at the meeting Thursday to ask these and many more questions.

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