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Palm Beach Cannot Regulate Shark Fishing Via OrdinanceFebruary 24, 2017
By: John K. Powell
“Never insult an alligator until after you have crossed the river.”1
When you think of Florida, images of sandy beaches, orange groves dotted with fragrant white blossoms, or the many cypress swamps and wetlands might come to mind. These scenes, while perhaps cliché, are nevertheless an accurate reflection of our diverse landscape, helping to capture part of Florida’s unique essence, particularly to those living elsewhere. The American alligator (Alligator mississippiensis) is another one of those enduring symbols of Florida. So associated with and prevalent in the state, it was designated as the official state reptile by the Florida Legislature in 1987.2 Just take a drive across State Road 84, or “Alligator Alley” as it is often referred to by native south Floridians, and glance over into the dark tannic acid waters of the drainage canals that parallel this mostly desolate road. It won’t take long before you notice a set of eyes perched just above the water level, keeping a lookout for any activity or maybe a potential meal. Keep watching and you are likely to see hundreds of alligators on your 100-mile journey from the Ft. Lauderdale area, across the Big Cypress National Preserve, to Naples. This same scenario rings true not just in south Florida, but all across the state. The American alligator can be found from parts of the Florida Keys all the way to the western panhandle.
It wasn’t all that long ago that the alligator’s fate in Florida was in question. The species, along with many others, was a casualty of habitat loss and hydrologic alterations beginning in the late 1800s and early 1900s as much of Florida’s wetlands and swamps were drained for flood control, navigation, and agriculture and to make way for roads, housing, and future development. Additional pressures arose in the mid-1900s as Florida’s population skyrocketed from around 2 million in 19403 to almost 10 million by 1980.4 Pressure from hunting was also a factor. Restrictions on alligator hunting during the early part of the century were almost nonexistent and the regulations that followed were much looser than they are today with essentially no hunting permits, tags, or quotas.5 Hunting for this top-of-the-food-chain species was managed in a fashion more similar to that of raccoons and rabbits, which was often year-round and with few limits. Where regulations existed, mostly on a local level, enforcement was lacking.6 Hunting during that era was also less recreational in nature and more about obtaining alligator hides for sale.
Impacts from herbicides, pesticides, and other environmental factors were also partly to blame. While necessary to support a growing population and economy, these chemicals were believed to be contributing to a variety of maladies, such as endocrine disruption, decrease in egg viability, and neural decline.7 Eutrophication of water bodies and fertilizer runoff also affected the alligator.8 Green algae that choked water bodies and prevented light infiltration to the water column caused an imbalance in the food chain affecting the availability of prey.9 As a result of these various factors, the population of alligators declined.
Alligator Protections Under the Law
The state of Florida and the federal government recognized the problem and took action. For example, in 1967 after consultation with the states and scientists, the U.S. Fish and Wildlife Service determined that the American alligator was “threatened with extinction” and classified it as endangered under the Endangered Species Preservation Act,10 the predecessor to what is arguably the most powerful federal environmental law on the books today, the Endangered Species Act.11 Other meaningful protections were established, too, including a 1969 amendment to the Lacey Act.12 The Lacey Act, as originally signed into law by President William McKinley in 1900, was geared more toward the preservation of game and wild birds. However, the act was amended in 1969 to cover amphibians, reptiles, mollusks, and crustaceans, including an increase in penalties and even prison time. In 1975, the American alligator was also listed as an Appendix I species during the Convention for the International Trade in Endangered Species of Wild Fauna and Flora (CITES), thereby prohibiting the export of alligator hides.13
the mid-1970s, with stronger laws and more effective enforcement in place, the population was showing signs of recovery. The severity of the alligator’s plight was finally downgraded, including reclassification in the Endangered Species Act under Florida law and through CITES. In order to ensure that population trends didn’t reverse course, many other statutory and regulatory protections were implemented and remain in place today. They relate to the taking of nuisance alligators, alligator farming, selling of alligator products, and much more.
Increased Human Interaction
No longer on the list of endangered species, today the prognosis for their long-term survival appears favorable. However, challenges still remain. More alligators mean less food per alligator, with the larger alligators either forcing the smaller ones out or alternatively pursuing them as potential prey.14 Continued residential and commercial development similarly means less natural habitat.15 Furthermore, higher ambient temperatures, less predictable and steady rainfall, and more frequent drought conditions result in fewer habitable water bodies. These conditions are compelling alligators to relocate in search of more suitable areas.16
Therefore, not surprisingly, with Florida’s alligator population around 1.2 million, more of them on the move, and the human population approaching an all-time high of 20 million people,17 encounters with these prehistoric creatures are inevitable. Frequent discoveries in backyard swimming pools, garages, and on roads are the norm in some areas. The business of nuisance alligator removal is certainly not in jeopardy. Again, not surprisingly, public perception of the alligator is not always positive, struggling due to these numerous documented encounters. Growing up to 14 feet in length,18 with 75 to 80 sharp teeth, and thousands of pounds per square inch of bite strength, many of the human encounters with this apex predator end in serious injury and sometimes death. On average, over the past 20 years, there have been approximately 10 unprovoked alligator bites per year on people in Florida, the majority of which were considered “major” requiring medical care beyond first aid to treat the wounds.19 Approximately 7 percent of these unprovoked encounters resulted in a fatality.20
There are other laws too that are designed to protect not just the species, but people as well. For example, it is illegal to intentionally feed, or entice with feed, any crocodilian unless held in captivity under a permit issued by the Florida Fish and Wildlife Conservation Commission (FWCC) or otherwise provided.21 Feeding can cause alligators to lose their fear of people, an important evolutionary trait that benefits both people and animal. A scared alligator is usually also a distant one, getting far away as quickly and silently as possible.
Another important protection involves the duty of an owner or occupant to warn others regarding the presence or potential of a dangerous condition, such as wild animals. The extent of this duty will depend on several factors, such as the status of the victim, knowledge of the owner, and knowledge of the victim. Generally, owners or occupants do not have an obligation to warn others about the dangers of animals living in their natural habitats or to protect them from wild animal attacks.22 However, an owner must still exercise ordinary due care in managing their property, and failure to exercise ordinary care could give rise to a cause of action for negligence, particularly for invitees.23
Ordinary care, however, does not mean the owner must prevent all injuries, but rather that the owner should use reasonable care to discover dangerous conditions on the property and to protect visitors from or inform visitors about those discovered conditions. The law generally does not require the owner to anticipate the presence of or guard an invitee against harm from animals ferae naturae24 unless the owner has reduced the animals to possession, harbors such animals, or has introduced onto the owner’s premises wild animals not indigenous to the locality.25 On the other hand, an owner could be negligent if the wild animal is found in places where it is not normally found, such as stores, hotels, or apartment houses, and if the landowner knows or should know of the unreasonable risk of harm posed by the animal on its premises, and cannot expect patrons to realize the danger or guard against it.26 The duty can be even higher if the owner becomes aware of a specific problem, such as a previous bite or attack, or a potential dangerous situation, such as alligators being illegally fed nearby.
The severity of the danger or injury could influence duty as well. For example, the presence of poison ivy on a property may carry with it a lower level of due care than the presence of a 12-foot bull alligator. If an owner voluntarily decides to warn his or her guests, the owner could become liable if the warning or precautions are not sufficient and someone is nevertheless injured.27
The ubiquitous nature of alligators in Florida might make it difficult for Florida residents, whether landowners, invitees, or trespassers to claim they were not aware of the potential presence of alligators in lakes, ponds, and rivers. After all, to live in Florida is to coexist among these ancient reptilian predators. However, millions of years of evolutionary development have made the species very adept at concealing themselves, making it difficult for those unfamiliar with Florida’s natural landscape, such as non-native tourists, travelers, or visitors, to discover their presence before it is too late.
Hunting as a Management Tool
Like so many areas of the law, environmental law and policy is a balancing act. Human development is often pitted against nature while simultaneously wrestling with social and economic implications. Striking the right balance is tricky, and species conservation is really no different. Over the years, many different law and policy approaches to reaching this proper balance have been attempted, ranging from the more traditional command-and-control regulatory approach to the more modern market-based approach,28 for example. One sometimes controversial regulatory tool in the species management toolbox is harvesting (a command-and-control regulatory approach),29 or as the layperson might refer to it, hunting. Some will say this is never an option and that human development should yield to the alligators; after all, they have been around for millions of years longer than humans.30 Others will contend that there is no such thing as a “good” alligator and, therefore, their complete elimination from Florida would be welcomed, perhaps like the disease-carrying mosquito.31 The vast majority of Florida residents, however, fall somewhere in between.
After careful consideration, and backed by research,32 Florida reinitiated statewide alligator harvesting in 1988. Accurate estimates of species counts coupled with the issuance of the right number of hunting permits can take much-needed pressure off a species that is often competing for a portion of an insufficient supply of habitat or food.33 Hunting also provides recreational opportunities as well as a revenue source to the state through licensing, gear, guides, meat, and hide sales.34 Moreover, hunting offers the added benefit of reducing the possibility of human-animal impacts.35 Florida witnessed this most recently in the much publicized and highly controversial black bear hunt.36 However, hunting for charismatic mega-fauna like the black bear generally attracts a different type and level of attention than the hunting of the mysterious and ominous alligator.
2016 Hunting Season
Alligator permits sold out in 201637 with the FWCC issuing more than 6,000 permits.38 Two types of hunting licenses are generally offered: by county or by harvest unit. County-wide permits allow hunting in most public water bodies within that specific Florida county. Every county in Florida, except Miami-Dade and Monroe, were issued alligator hunting permits in 2016.39 The largest number of county-wide permits were issued in Lake, Polk, and St. Johns counties situated in the central and northeast area of Florida.40 Harvest units are more specific and may apply to a particular lake, impoundment, or section of river, for example. The highest number of harvest unit permits were issued in Lake Okeechobee, the St. Johns River, and Lake Kissimmee.41 In addition to applying for a permit, hunters must also obtain two CITES tags as well as an alligator trapping license. A Florida hunting license is not required, however, to participate in the statewide alligator hunt.
As expected, and in an effort to manage the total numbers taken, alligator hunting permits carry with them many restrictions. Hunting season generally runs from August 15 through November 1 of each year.42 Hunting is allowed only at night and in the morning, between 5 p.m. and 10 a.m.43 Two alligators are allowed per permit without size limitations except that “hatchlings” cannot be taken (i.e., a minimum 18 inches from tip of snout to tip of tail).44 There are several legal methods of taking alligators including, but not limited to, bows, crossbows, gigs, spears, harpoons, spear guns, hand lines, fishing poles, and bang sticks. Contrary to popular belief, bang sticks are the only firearm allowed for alligator hunting; no hand guns or rifles are allowed.45 But, of course, these methods are not without some controversy themselves, as some aspects have been denounced by critics as cruel.46
After harvesting, the permittee must attach a CITES tag within six inches from the tip of the tail. Until the alligator’s hide is tanned, taxidermied, or otherwise processed, the CITES tag must remain on the tail for identification.47 An alligator harvest report form is also required within 24 hours of harvesting and prior to taking the alligator to a processing facility.48 Information on the report includes such things as the date harvested, county and location, total length, tail girth, sex, and pounds of meat yielded.49 Any unused CITES tags must be mailed back to the FWCC Alligator Management Program by November 15.50
The American alligator is an enduring symbol of Florida. It reminds us that even in a highly developed and populated state such as Florida, there are areas and animals that will always remain wild and untamed. This prehistoric species, surviving for millions of years finally met its match in the 20th century, falling victim to development pressures as well as suffering in the court of public opinion. Numerous alligator encounters have been documented and reported by the media, many of which ended in serious injury or death. Their numbers declined significantly until the federal and state governments began to implement important legal protections designed to bring back the species from the edge of extinction. As their population rebounded, today reaching an estimated 1.2 million in Florida, species management is necessary. Hunting is one of those important tools in the species management toolbox. Providing recreational opportunities and revenue, hunting decreases competition for a finite supply of food and habitat, and reduces the likelihood of human-species interactions. Since 1988, the FWCC has successfully offered an alligator hunting season in Florida. The program, based on science, incorporates many restrictions to ensure alligator populations remain healthy and stable. This program is a model for other states and countries to properly manage and conserve important animal species. Yet it also is a point of controversy between the FWCC and animal rights advocates based on fundamental disagreements over both the need for the program, and also the methods employed to manage the population. Only time will tell whether harvesting will remain a viable tool for population control.
1 Quote attributed to Cordell Hull, U.S. Secretary of State (1933-44) and winner of the Nobel Peace Prize in 1945 for his role in organizing the United Nations.
2 Fla. Stat. §15.0385 (1987).
3 Exploring Florida, Florida Census: 1940, http://fcit.usf.edu/florida/docs/c/census/1940.htm.
4 Exploring Florida, Florida Census: 1980, http://fcit.usf.edu/florida/docs/c/census/1980.htm.
5 See Allan R. Woodward, Florida Fish and Wildlife Conservation Commission, History of American Alligator Regulations in the U.S.A. (June 12, 2007).
7 See, e.g., Endocrine Disruptors Start a Medical Revolution: From Alligators to Humans, Science Daily (Jan. 5, 2014), available at https://www.sciencedaily.com/releases/2014/01/140105102505.htm.
9 Forman, Richard T., Urban Ecology: Science of Cities 178-179 (Cambridge Univ. Press, 2014).
10 32 Federal Register No. 48 (Mar. 11, 1967).
11 See, e.g., Erin Chapman, The Most Powerful Environmental Law on the Books, PBS News (July 9, 2010), available at http://www.pbs.org/wnet/need-to-know/environment/video-the-most-powerful-environmental-law-on-the-books/2123/.
12 16 U.S.C. §§3371-3378.
13 See U.S. Fish and Wildlife Service CITES Species Database, http://www.speciesplus.net/#/taxon_concepts/6810/legal.
14 See Stephanie Pappas, Cannibalism Weeds Out Baby Alligators, Live Science (May 29, 2011), available at http://www.livescience.com/14368-cannibalism-baby-alligators-florida.html.
15 See Florida Fish and Wildlife Conservation Commission, Are Alligators Posing a New Threat to Humans?.
16 See Jackson Landers, Alligators in Your Backyard, Slate (Feb. 19, 2013), available at http://www.slate.com/articles/health_and_science/animal_forecast/2013/02/alligators_in_virginia_climate_change_could_be_pushing_cold_blooded_species.html.
17 University of Florida Bureau of Economic Business Research, Florida Estimates of Population 2015, available at http://edr.state.fl.us/Content/population-demographics/data/PopulationEstimates2015.pdf.
18 U.S. Fish and Wildlife Service, Species Profile for American Alligator, http://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=C000.
19 Florida Fish and Wildlife Conservation Commission, Florida Fish and Wildlife Conservation Commission Alligator Bites on People in Florida.
21 F.A.C.R. 68A-25.001 (2006) (Feeding or Enticement of Crocodilians Unlawful).
22 See Palumbo v. State Game and Fresh Water Fish Commission, 487 So. 2d 352, 353 (Fla. 1st DCA 1986).
23 See Post v. Lunney, 261 So. 2d 146 (Fla. 1972).
24 Latin, of a wild nature or disposition.
25 Wamser v. City of St. Petersburg, 330 So. 2d 244, 246 (Fla. 2d DCA 1976).
26 Hanrahan v. Hometown America LLC, 90 So. 3d 915, 918-19 (Fla. 4th DCA 2012).
27 Seelbinder v. County of Volusia, 827 So. 2d 1095, 1097 (Fla. 5th DCA 2002).
28 See Center for Climate and Energy Solutions, Market Mechanisms: Understanding the Options (Apr. 2015).
30 See Nanci Alexander, Alligator Hunts Harm Florida’s Public Image, The N.Y. Times, Nov. 8, 1991.
31 “Three million alligators were killed in Florida between 1880 and 1900. Goody!” quote attributed to Will Cuppy, American Humorist (1884-1949).
32 See Keith Wood, Gator Hunting in the Sunshine State, NRA American Hunter (June 11, 2012), available at https://www.americanhunter.org/articles/2012/6/11/gator-hunting-in-the-sunshine-state/.
33 See Ian Nance, Annual Harvest Helps Alligators to Flourish, Orlando Sentinel (Sept. 7, 2016), available at http://www.orlandosentinel.com/opinion/os-ed-gator-hunt-pro-front-burner-09062016-20160907-story.html.
35 Michael R. Conover, Resolving Human-Wildlife Conflicts: The Science of Wildlife Damage Management 48 (2002).
36 Florida Fish and Wildlife Conservation Commission, 2015 Florida Black Bear Hunt Summary Report; David Shiffman, 298 Bears Killed in Florida Hunt that ‘Ignored Science’, Washington Post, Oct. 29, 2015, available at https://www.washingtonpost.com/news/speaking-of-science/wp/2015/10/29/298-bears-killed-in-florida-hunt-that-ignored-science/?utm_term=.42cf5cfab9a9.
37 Florida Fish and Wildlife Conservation Commission, Alligator Management Program, http://myfwc.com/wildlifehabitats/managed/alligator/.
38 Florida Fish and Wildlife Conservation Commission, 2016 Guide to Alligator Hunting in Florida.
39 Id. at 1.
40 Id. at 2, 3.
42 Id. at 4.
44 Id. at 7.
45 Id. at 6.
46 See Care 2 Petitions, Stop the Alligator Hunt!, http://www.thepetitionsite.com/1/stop-the-alligator-hunt/.
47 Florida Fish and Wildlife Conservation Commission, 2016 Guide to Alligator Hunting in Florida, http://myfwc.com/wildlifehabitats/managed/alligator/.
50 Id. at 12.
John K. Powell is an environmental lawyer, registered professional engineer, and member of the Animal Law Section of The Florida Bar. He is the environmental services and facilities director for the City of Tallahassee.
This column is submitted on behalf of the Animal Law Section, Ralph A. DeMeo, chair, and Deborah C. Brown, editor.