03-002156RU Alley Cat Allies, Inc. And Frank Hamilton vs. Fish And Wildlife Conservation Commission Status: Closed DOAH Final Order on Friday, August 29, 2003.

Summary: Feral and Free Ranging Cat Policy of the Fish and Wildlife Commission (FWC) is not self-executing. It is merely hortatory. It does not meet the definition of a rule. Summary Final Order for FWC.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLEY CAT ALLIES, INC. and )

FRANK HAMILTON, )

)

Petitioners, )

)

and ) Case No. 03 - 2156RU

)

SPACE COAST FELINE NETWORK, )

ELLEN DOZIER, MELINDA R. )

BUSCHOR, EILEEN GOULD, MARY )

PRICE, ELVIRA HASTY, and THE )

CAT NETWORK, INC., )

)

Intervenors, )

)

vs. )

)

FISH AND WILDLIFE CONSERVATION )

COMMISSION, )

)

Respondent. )

)

SUMMARY FINAL ORDER

This Summary Final O rder is entered following the filing of

Re spondent's Motion for Summary Final Order on July 23, 2003.

Also considered prior to the entry of this order are

Petitioners' response in opposition filed August 6, 2003;

Respondent's Initial Brief filed August 6, 2003; Petitioners'

Response Brief filed A ugust 20, 2003; and Respondent's Reply

Brief filed August 27, 2003. All citations are to Florida

Statutes (2002) unless otherwise indicated.

STATEMENT OF THE ISSUE

Whether the policy on impacts of domestic cats on native

wildlife adopted by the Florida F ish and Wildlife Conservation

Commission on May 30, 2003, is an agency statement that violates

Section 120.54(1)(a), Florida Statutes?

FINDINGS OF FACT

1. On May 30, 2003, the Florida Fish and Wildlife

Conservation Commission (the "FWC" or the "Commissi on") adopted

a policy (the "Feral and Free Ranging Cat Policy" or the

"Policy"). The Policy is attached as an exhibit to the Petition

filed by Petitioners, Alley Cat Allies, Inc. and Frank Hamilton,

that initiated this proceeding:

Position and Policy

The domestic cat ( Felis catus ) is not native

to Florida, but feral and free - ranging cats

occur throughout the state and number

several million. Cats prey upon both common

and rare species of native wildlife in

Florida, including species listed as

threatened or endangered by state and

federal governments. Although the

cumulative impact of cats upon native

wildlife in Florida remains uncertain

relative to other impacts, predation by cats

is common and can be especially detrimental

to wildlife populations that are small or

restricted in their distribution.

The Florida Fish and Wildlife Conservative

Commission (FWC) is mandated by the Florida

Constitution to conserve and protect

populations of native wildlife, and the FWC

has authority to curtail adverse impacts

that nonnative animals cause to native

species. Therefore, it is the policy of the

FWC to protect native wildlife from

predation, disease, and other impacts

presented by feral and free - ranging cats.

The FWC recognizes that local governments

have the res ponsibility to regulate

domesticated species, including cats, but

the actions of local governments must not

adversely impact native wildlife. Thus, the

FWC will strive to minimize or eliminate the

impacts of cats where they pose a

significant threat to lo cal wildlife

populations, but will otherwise leave

control of nuisance of feral cats and issues

of local public safety and welfare to local

governments.

Implementation

Implementing this broad policy will require

a variety of FWC resources as well as

coop erative efforts between FWC and other

public agencies and private groups. Because

of the extent of the domestic cat problem,

protection of listed species and public

lands are considered the highest priority.

Several strategies may be followed and

listed below are some that should be

particularly useful in protecting native

wildlife from feral or free - ranging cats.

FWC staff should consider these and other

potential strategies and recommend

implementation measures, as appropriate.

Recommended strategies:

(1) develop and implement a comprehensive

education program to increase public

awareness of the impacts that feral and

free - ranging cats present to wildlife,

identify ways for cat owners to minimize

impacts, and inform cat owners of laws

prohibiting the release or abandonment of

cats to the wild;

(2) eliminate the threat cats pose to the

viability of local populations of wildlife,

particularly species listed as Endangered,

Threatened, or of Special Concern;

(3) prohibit the release, feeding, or

prote ction of cats on lands managed by the

FWC, and strongly oppose programs and

policies that allow the release, feeding, or

protection of cats on public lands that

support wildlife habitat;

(4) provide technical advice, policy

support, and partnerships to l and management

agencies in order to prevent the release,

feeding, or protection of cats on public

lands that support wildlife habitat;

(5) oppose the creation or maintenance of

Trap - Neuter - Release (TNR) programs and

similar activities involving managed c at

colonies because they are not an effective

means of reducing ore eliminating the

impacts of feral cat populations on native

wildlife;

(6) support the elimination of TNR colonies

and similar managed cat colonies wherever

they potentially and significan tly impact

local wildlife populations;

(7) evaluate the need for new rules to

minimize the impact of cats on native

wildlife.

Petition to Challenge Agency Rule or Statement Entitled, "Policy

on Impacts of Domestic Cats on Native Wildlife" , Exhibit A, p. 4

and 5.

2. The Feral and Free Ranging Cat Policy was not adopted

by the rulemaking procedure provided by Section 120.54.

CONCLUSIONS OF LAW

Jurisdiction

3. The petition in this case is filed pursuant to Section

120.56(4).

4. The Commission is in agreement with Petitioners that

the Feral and Free Ranging Cat Policy was adopted without

compliance with the rulemaking provisions of Chapter 120,

Florida Statutes, the Administrative Procedure Act (the "APA").

There are, therefore, no facts in dispute i n this case material

to a determination pursuant to Section 120.56(4).

5. Since there is no "genuine issue as to any material

fact," notwithstanding Petitioners' written response in

opposition, the Commission's Motion for Summary Final Order is

appropriat e. Section 120.57(1)(h); Fla. Admin. Code R. 28 -

106.204.

Pertinent Provisions of the APA

6. Section 120.56(4)(a), states "[a]ny person

substantially affected by an agency statement may seek an

administrative determination that the statement violates s.

120.54(1)(a)."

7. Section 120.54(1)(a), in part, states, "[r]ulemaking is

not a matter of agency discretion. Each agency statement

defined as a rule by s. 120.52 shall be adopted by the

rulemaking procedure provided by this section as soon as

feasible a nd practicable."

8. Section 120.52(15), in pertinent part, defines the term

"rule:"

'Rule' means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements o f an agency . . .

The term does not include:

(a) Internal management memoranda which do

not affect either the private interests of

any person or any plan or procedure

important to the public and which have no

application outside the agency issuing the

memorandum.

* * *

The Commission's Contentions

9. The Commission contends that the Feral and Free Ranging

Cat Policy is not subject to the rulemaking provisions of the

APA because it is an exercise of Commission power derived solely

from the Florida Co nstitution.

10. Indeed, the Legislature has specifically recognized

that the exercise of the Commission's constitutional power is

not subject to Chapter 120 rulemaking provisions. Only "agency

statements" are subject to the provisions of Section 120.56(4 ),

that allow challenges to statements defined as rules. The term

"agency" includes the Commission only "when acting pursuant to

statutory authority derived from the Legislature." Section

120.52(1)(b)4.

11. In support of its argument that the Feral and Free

Ranging Cat Policy is a statement made under the Commission's

constitutional power immune from challenge under Section

120.56(4), the Commission has cited a number of cases dealing

with its constitutional power and among them are: Caribbean

Conservat ion Corporation, Inc. v. Florida Fish and Wildlife

Conservation Commission , 838 So. 2d 492 (Fla. 2003); Airboat

Ass'n of Fla., Inc. v. Florida Game and Fresh Water Fish

Commission , 498 So. 2d 629, 631 (Fla. 3d DCA 1986); and, Florida

Minerals Association v . Florida Fish and Wildlife Conservation

Commission , Case No. 01 - 0746RU (DOAH March 27, 2001).

12. By its terms, the purpose of the Policy is to protect

native wildlife. The Commission is mandated by the Florida

Constitution in Article IV, Section 9, to exercise the

regulatory and executive powers of the state over native

wildlife: "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 [those

po wers] with respect to marine life [with certain exceptions]."

13. Article IV, Section 9 of the Florida Constitution,

provides further that "[t]he legislature may enact laws in aid

of the commission, not inconsistent with this section, except

that there sh all be no special law or general law of local

application pertaining to hunting or fishing. The Commission's

exercise of executive powers in the area of planning, budgeting,

personnel management, and purchasing shall be as provided by

law." Hence, the Le gislature included the Commission within the

definition of "agency" in Section 120.52(1)(b)4., "when acting

pursuant to statutory authority derived from the Legislature"

and, further provided that the Commission is subject to

challenges under Section 120.5 6(4) to its non - rule statements

based on that non - constitutional authority.

14. The Policy, predominately, concerns the regulatory and

executive powers over native wildlife derived from the Florida

Constitution.

15. Among the Policy's "[r]ecommended stra tegies" to be

considered under the Policy by FWC staff, however, is

development of a comprehensive education program to increase

public awareness. See (1) under "Recommended strategies" listed

in the Policy. Such a strategy would likely include the entry

by FWC into agreements for the private publication of public

information, an act authorized by statute:

(1) The Fish and Wildlife Conservation

Commission may enter into agreements to

secure the private publication of public

information brochures, pamphle ts,

audiotapes, videotapes, and related

materials for distribution without charge to

the public . . . .

Section 372.0222.

16. It is upon this slender reed, the possibility of the

Policy's implication of authority in Section 372.0222, that the

petition in this case was able to withstand a motion to dismiss

filed by FWC.

17. There is another potential basis for disposition of

this proceeding briefed by the parties pursuant to an order

entered in this proceeding; one that is not grounded in the

Florida C onstitution. Summary final order should be entered in

favor of FWC if the Feral and Free Ranging Cat Policy does not

meet the definition of the term "rule" in the APA.

A Rule? The Arguments of the Parties

18. There is no question that the Feral and Free Ranging

Cat Policy is a statement of the FWC. It is in writing. It was

adopted at a meeting of the Commission. It sets forth the

"policy of the FWC to protect native wildlife from predation,

disease, and other impacts presented by feral and free - rangin g

cats." See paragraph 2 of the Policy. But is it "one of

general applicability that implements, interprets, or prescribes

law or policy or describes the procedure or practice

requirements of an agency?"

19. The Commission cites to Department of Revenue v.

Novoa, 745 So. 2d 378 (Fla. 1st DCA 1999) in which the court

cautioned:

The legislative power to regulate rulemaking

necessarily includes the authority to

prevent an agency from employing a policy

that meets the definition of a rule. It

does not follo w, however, that the

definition of a rule should be applied so

expansively that it brings all agency

functions within the direct supervision of

the legislature. When a dispute arises over

the mandatory rulemaking provisions of

section 120.54(1)(a), the co urt must protect

the legislative power to regulate

rulemaking, but the court must also ensure

that the definition of a rule is not applied

so broadly that it includes executive branch

functions within its scope.

Id. at 381. The court in Novoa found the p olicy at issue there,

that employees of the Department of Revenue are not allowed to

prepare tax returns for private parties during non - working

hours, to fall within the "internal memorandum" exception to the

definition of a rule.

20. But the court also found that the policy was not a

rule because it was not self - executing. It did not, therefore,

have the force of a rule. The policy at issue in Novoa did not

constitute a mechanism for action. It established a

disciplinary standard, but it did not menti on the possible

penalty. Nor did it contain a procedure for imposing the

penalty. The court wrote:

Another factor supporting our conclusion in

this case is that the Department's policy is

not self - executing. Although the policy

sets a standard of conduc t that might

ultimately result in disciplinary action, it

does not provide a remedy or establish a

procedure that could be used to impose a

penalty. A career service employee charged

with a violation of the policy is still

entitled to all of the protectio ns of the

career service system. In this respect, we

find the policy to be quite different from

the one we addressed in Florida State

University v. Dann, 400 So. 2d 1304 (Fla.

1st DCA 1981) There, we held that a

University policy setting forth the

proced ure for awarding merit pay increases

for faculty members was not an internal

management memorandum. The difference is

that the mechanism for the agency action in

Dann was the policy itself. Because the

policy was self - executing, it had the same

force as a rule.

Id. at 382.

21. Petitioners respond that the Feral and Free Ranging

Cat Policy, by its very existence, is disrupting years of

planning, education and activity to promote spay/neuter,

vaccinations, adoption and other humane care management progra ms

that have proved successful in reducing populations of feral and

free - ranging cats in a cost efficient manner. While proof of

this allegation might sustain Petitioners' standing, it does not

make the Policy a rule.

22. Petitioners further argue that the Policy does not

fall within the "internal memorandum" exception to the

definition of a rule. However apt, this argument does not cure

the other bases in Novoa offered by the court for its finding

that the Novoa policy was not a rule.

23. What is it a bout the Policy that is self - executing?

What is it that the Policy implements, interprets or prescribes?

What procedure or practice requirement of the agency does the

Policy describe? The answer to each of these questions is

"nothing." The Policy exhor ts staff to consider various

recommended strategies. Not only does it merely recommend that

staff consider various strategies, it then calls for staff, in

turn, to "recommend" appropriate implementation measures. The

Policy is at least one step, if not t wo, removed from actual

interpretation, implementation or prescription of law or policy.

Just as the Novoa policy was not self - executing, the Feral and

Free Ranging Cat Policy of the FWC is not self - executing. It is

merely hortatory. 1

24. The Feral and Free Ranging Cat Policy adopted by FWC

on May 30, 2003, does not meet the definition of "rule"

contained in Section 120.52(15).

ORDER

Because the Feral and Free Ranging Cat Policy does not meet

the definition of the term "rule" in Section 120.52(15), S umm ary

F inal O rder is entered in favor of the Commission. The P etition

to have the Feral and Free Ranging Cat Policy determined to be a

statement that violates Section 120.54(1)(a), is denied.

DONE AND ORDERED this 29th day of August, 2003, in

Tallahassee, L eon County, Florida.

S

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl. us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of August, 2003.

ENDNOTE

1/ See In re CODE OF JUDICIAL CONDUCT, 643 So. 2d 1037, (Fla.

1994), for another context in which language is hortatory and

does not constitute a rule. "When the text uses 'shall' or

'shall not,' it is intended to impose binding obligations the

violation of which, if proven, can result in disciplinary

action. When 'should' or 'should not' is used, the text is

intended as hortatory and as a statem ent of what is or is not

appropriate conduct but not as a binding rule under which a

judge may be disciplined. When "may" is used, it denotes

permissible discretion or, depending on the context, it refers

to action that is not covered by specific proscrip tions. Id. at

1041.

COPIES FURNISHED :

Barbara A. Eagan, Esquire

Arnold, Matheny & Eagan, P.A.

801 North Magnolia Avenue, Suite 201

Post Office Box 2967

Orlando, Florida 32802 - 2967

Charles J. Hardee, Esquire

Michael A. Yaun, Esquire

Florida Fish and Wildlife Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

James V. Antista, Esquire

Florida Fish and Wildlife Conservation Commission

620 South Meridian Street

Bryant Building, Room 108

Tallahassee, Florida 32399 - 1600

L iz Cloud, Chief

Department of State

Bureau of Administrative Code

The Elliott Building

Tallahassee, Florida 32399 - 0250

Carroll Webb, Executive Director

And General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Flor ida 32399 - 1300

Kathleen F. Harer, President

Space Coast Feline Network

138 East Leon Lane

Cocoa Beach, Florida 32931

Albert S. Lagano, Esquire

551 South Apollo Boulevard, Suite 103

Melbourne, Florida 32901

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where th e party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.