TOOTHLESS? THE ENDANGERED MANATEE AND THE FLORIDA MANATEE SANCTUARY ACT

KEITH RIZZARDI[*]

Copyright © 1997 Florida State University Law Review

I. INTRODUCTION
II. THE HISTORY AND BENEFITS OF SPECIES PROTECTION IN GENERAL
III. PROBLEM IDENTIFICATION AND THE NEED FOR MANATEE PROTECTION
IV. DEVELOPMENT OF FLORIDA 'S MANATEE PROTECTION POLICIES
V. IMPLEMENTATION OF THE MANATEE PROTECTION PROGRAM
A. Designating Manatee Habitat Speed and No-Entry Zones
B. Reducing Deaths from Propellers and Flood Control Structures
C. Educating the Public About Manatee Protection
D. Facing the Threat of Natural Causes
VI. EVALUATION OF AND SUGGESTIONS FOR ALTERNATIVE MANATEE PROTECTION PROGRAMS
A. Clarifying Agency Rulemaking Duties
B. Accelerating Development of Technical Solutions
C. Improving Enforcement
D. Increasing Public Awareness and Concern
E. Providing Sufficient and Stable Program Funding
VII. CONCLUSION

I. INTRODUCTION

Manatee populations have been decreasing for over one hundred years.[1] In 1978, the Florida Manatee Sanctuary Act (MSA) was passed to stop that decline.[2] While the MSA often takes a back seat to better-known species protection laws, such as the Endangered Species Act (ESA)[3] and the Marine Mammal Protection Act (MMPA),[4] the MSA is critical to the effort to save the manatee.

Species protection laws have a surprisingly long history.[5] In Florida, manatee protection laws date to 1893, when the Legislature made it illegal to kill or capture a manatee without a permit.[6] A 1939 law empowered the Game & Fresh Water Fish Commission to designate and fence off manatee breeding grounds.[7] Another manatee protection law required permits for scientific uses of manatees and established penalties of up to $600 or one year in jail for killing or capturing a manatee without a permit.[8]

Despite these early protection laws, the manatee remained threatened with extinction.[9] Recognizing the continuing threat, the Florida Legislature passed the MSA[10] in an attempt to alleviate the most common threat to the manatee—speeding boats—by establishing speed limits in waterways frequented by manatees.[11] The MSA and its subsequent modifications built upon and consolidated the earlier laws, requiring permits[12] and empowering the Florida Department of Environmental Protection (DEP) to protect manatee habitats by regulating boat traffic.[13] However, when compared to the earlier manatee protection laws, the penalties for violating the MSA in 1997 are still relatively weak, with maximum first-time penalties of sixty days imprisonment[14] or a fine of $200 to $600.[15]

Despite protective legislation, the number of manatee deaths—particularly those resulting from collisions with recreational boats—continues to increase.[16] Experts report the cause is partly due to inadequate enforcement of the protection laws, which in turn diminishes the laws' deterrent effects.[17] These and other serious problems that undermine the MSA's effectiveness indicate that it is time for the Legislature to reexamine the MSA and make necessary revisions, such as clarifying and reducing the rulemaking burdens placed upon DEP, increasing protection laws and requiring their strict enforcement, modifying and replacing water control structures, and empowering the agency to implement an effective state-wide education program.[18]

Part II of this Article examines the history of species protection and focuses on why species deserve protection. Part III identifies the particular problems facing the manatee. Part IV explores the development of manatee protection policies, while Part V considers the implementation of these policies. Part VI evaluates the existing manatee protection program and suggests alternatives. Finally, Part VII concludes that although once considered visionary legislation, the MSA today does not effectively serve to protect manatee populations and is in need of legislative amendments to strengthen and expand its protective capabilities.

II. THE HISTORY AND BENEFITS OF SPECIES PROTECTION IN GENERAL

At the federal level, legislated species protection originated at the turn of the twentieth century when Congress, recognizing problems with the enforcement of hunting laws, passed the Lacey Act of 1900.[19] Thereafter, Congress began awarding protection to individual species.[20] As scientific understanding of ecosystems and species developed, so did the complexity of the legislation. The Endangered Species Preservation Act of 1966 (ESPA)[21] empowered the Department of the Interior to acquire land for habitat protection and to investigate the threatened or endangered status of species.[22] Marine mammals received more protection in the 1972 MMPA,[23] which established a moratorium on the taking of marine mammals such as the manatee.[24] The MMPA and the ESPA acted as precursors to the ESA.[25] All of those acts, however, built upon four basic principles: (1) economics and science, (2) recreation, (3) ecosystems, and (4) morality.[26]

First, economic, scientific, and research justifications are the most readily understood reasons for species protection. The potential for nature to provide medical cures is often cited by legislators as justifying protection laws.[27] Similarly, a creature with unique genetic characteristics could have enormous value for commercial uses.[28] However, insufficient data is available to justify species protection solely upon economic grounds, and other factors must be considered.[29]

Second, and related to economics, recreational considerations also warrant species protection. From Maine to Hawaii, people travel thousands of miles to go whale watching.[30] Similarly, in the Florida Keys, tourist groups don snorkels and diving suits to view coral reefs.[31] Ecotourism is an increasingly popular recreational pastime, and many communities are seeking to attract visitors to their unique environments.[32]

Third, ecosystem concerns also justify species protection because of the interconnectedness of species, including humans, in the Earth's ecosystem.[33] For example, the preservation of the California condor helps to ensure that decaying carcasses are consumed before they spread disease,[34] and the existence of the grey wolf in Yellowstone National Park is necessary to prevent an overabundance of deer that overconsume Yellowstone's vegetation.[35] Protecting ecosystems also preserves genetic diversity, which enables populations to adapt to changing environments.[36]

Finally, moral or intrinsic reasons justify species protection.[37] Human progress need not be at the expense of other creatures, which could be considered self-defeating or arrogant.[38] The biblical account of Noah and the Ark suggests that species protection even has ancient origins.[39] Some scholars suggest that animals and plants should be granted rights under law.[40] All of these concepts provide moral or ethical foundations for species protection laws.

Based upon these four fundamental justifications for species protection, the Florida Legislature should reaffirm its commitment to the protection of the manatee and recognize that problems with the MSA warrant amendments to expand the protective powers of the law.

III. PROBLEM IDENTIFICATION AND THE NEED FOR MANATEE PROTECTION

The West Indian manatee, or trichechus manatus, is native to both the warm waters of Florida's coastline and inland waters.[41] Resembling a cross between a seal and a walrus, but lacking tusks or long whiskers, manatees are playful mammals that spend most of their time eating,[42] resting, and endlessly searching for warmer waters.[43] They can grow as large as thirteen feet, weigh as much as 3,500 pounds, and live as long as sixty years.[44]

Documented countings of manatee populations are a fairly recent effort,[45] but history demonstrates that manatee counts today are far lower than they once were. Native Americans once hunted manatees for food, oils, and hides simply by wading into the waters.[46] In fact, manatees were hunted commercially until 1973; close to 7,000 were killed in the 1950s.[47] Yet manatee research did not become an important scientific subject until the early 1950s, when Joseph C. Moore, an Everglades National Park biologist, began identifying manatees by the boat propeller scars on their backs.[48] Later, in 1974, the University of Miami and the U.S. Fish & Wildlife Service jointly began a systematic study of manatee population biology.[49] In Florida, pursuant to the directives of the MSA, DEP is currently among the leaders in manatee research.[50] Along with scientists around the world, DEP has been monitoring manatee populations through the use of aerial flights and satellite tracking technology both for further study and to gauge manatee populations.[51]

In February 1996, an aerial census placed the manatee population at 2,600, a dramatic increase above previous counts, such as the 1995 census that spotted 1,443 manatees.[52] While the 1996 figure appears to reflect an increase in the manatee population, the increase could be attributed to improved observation techniques.[53] Moreover, it does not reflect the catastrophic manatee "die-off" in southwest Florida, which resulted in 158 manatees deaths in early 1996.[54] Furthermore, it is very difficult to estimate the natural fluctuations in manatee populations. Surveys cannot reveal the exact number of female manatees; therefore, estimates of manatee reproductive rates range from eight to eighteen percent annually.[55] Estimates of total population growth are similarly uncertain,[56] although some reports indicate that this growth is zero.[57] Thus, the census data, while informative, is not comprehensive. What is clear is that the total manatee population is dangerously low, and could reach the point where extinction is inevitable.[58]

The endangered status of the manatee is particularly disappointing given the fact that humans are the manatees' sole enemy.[59] Manatees are confronted with many man-made threats to their continued existence, some more severe than others, which have caused more than 2,000 of their deaths since 1974.[60]

Today, collisions with boats and boat propellers are one of the biggest threats to the manatee, causing roughly twenty-five percent of all manatee deaths.[61] Water control structures occasionally crush or drown manatees, accounting for approximately five percent of manatee deaths.[62] Another significant cause of the declining population is the disappearance of manatee habitats, which primarily results from water quality problems, coastal development, and alteration of water levels caused by Florida's flood control systems.[63] Of course, not all manatee deaths can be prevented. More than thirty-five percent of manatee deaths are a result of natural causes, such as bacterial infections, perinatal deaths, or cold weather stress, and another thirty percent of the deaths are from undetermined causes.[64]

IV. DEVELOPMENT OF FLORIDA 'S MANATEE PROTECTION POLICIES

Since 1893, Florida law has attempted to improve the plight of the manatee. The 1939 manatee protection law enabled the Game & Fresh Water Fish Commission to fence off manatee habitats.[65] The 1953 manatee protection law revisited the permitting requirements established in the 1893 law, and established a program with penalties of up to $600 or one year in jail for killing or capturing a manatee without the required permit.[66] In 1959, however, the penalties were reduced to $500 and no more than six months in prison.[67] The 1959 law remained intact until 1971, when the penalties were further adjusted.[68]

Before 1978, the manatee protection laws primarily focused on requiring permits for killing a manatee and punishing those who illegally killed, harmed, or harassed them.[69] The Legislature substantially revised those manatee protection laws by enacting the MSA,[70] which requires permits for scientific or propagational uses of manatees[71] and makes it illegal to intentionally or negligently kill or harm a manatee.[72] The MSA symbolically declares the manatee to be Florida's state marine mammal[73] and provides for the forfeiture of any instrument used to kill or harm a manatee.[74] Most significantly, the MSA authorized the Florida Department of Natural Resources (now known as DEP)[75] to use rulemaking procedures to identify and implement boating speed limits in crucial areas "to protect the manatees or sea cows from harmful collisions with motorboats."[76]

Subsequent amendments to the MSA include deleting the commercial vessels exemption,[77] expanding the use of speed limits beyond the winter migration season,[78] and enlarging protected areas.[79] Funding mechanisms also were adjusted in 1984,[80] and again in 1989.[81] Criminal penalties for violations of manatee speed zones remained intact, but because many members of the public had limited knowledge of the manatee protection laws, law enforcement officials were reluctant to subject citizens to criminal arrest or conviction.[82] In 1993, the Legislature rewrote the punishment provisions to create noncriminal infractions for boating speed limit violations and for refusing to sign a boating infraction, and to increase penalties for failure to respond to a citation.[83]

As a result, violations of the MSA in 1997 generally carry less punishment than they did in 1978 or 1953. Killing or capturing a manatee without a permit was a violation of the 1953 manatee protection law, with penalties of up to $600 or one year in jail.[84] Violations of the 1978 MSA were punishable as first-degree misdemeanors,[85] with penalties of up to $1,000 in fines[86] or up to one year imprisonment.[87]

Today, boaters who violate manatee speed zones, as established by administrative rules, are issued a fifty-dollar uniform boating citation.[88] Failure to post bond and accept the citation is punishable as a second-degree misdemeanor, with sixty days imprisonment[89] or a $500 fine.[90] Other violations of the current version of the MSA are punished as a misdemeanor, with first-time violators receiving sixty days imprisonment[91] or a fine of $200 to $600.[92]

V. IMPLEMENTATION OF THE MANATEE PROTECTION PROGRAM

Today, Florida's manatee protection program operates primarily by establishing manatee habitat speed and no-entry zones, enforcing the speed limits, and reducing manatee deaths from other human factors, all of which are objectives supported through educational programs.[93] Unfortunately, these activities have failed to protect the manatee population sufficiently.

A. Designating Manatee Habitat Speed and No-Entry Zones

Limiting the speed that boats travel in manatee habitat helps prevent deadly collisions between boaters and manatees.[94] Consequently, the Legislature provided for the designation of manatee habitat speed zones, motorboat-prohibited zones, and no-entry zones.[95] Speed zones restrict the speed of boats and limit their wakes;[96] motorboat-prohibited zones restrict the use of engine-powered boats;[97] and no-entry zones prevent any human disturbance of a designated manatee habitat.[98] The Legislature also limited DEP's ability to create these zones by requiring DEP to weigh their burden on boaters against evidence justifying manatee protection.[99]

These zones are critical to manatee protection. Since 1950, coastal development and declining water quality have caused approximately eighty-one percent of the seagrasses in Tampa Bay to disappear, and human activities have caused the loss of another thirty percent of the historical seagrass coverage in the Indian River.[100] Such habitat depletion critically affects the manatee population,[101] yet critical habitat designation received the lowest priority ranking for implementation in the Florida Manatee Recovery Plan.[102] The low ranking of habitat protection in this instance is ironic, because Florida's 1939 manatee protection law was written to protect manatee habitats by empowering the Game and Fresh Water Fish Commission to fence them off.[103]

Instead of no-entry or motorboat-prohibited zones, DEP has emphasized protection by implementing speed zones that are regularly subjected to administrative challenges.[104]In Bonita Bay Properties v. Department of Environmental Protection,[105] boaters won a victory in the battle over establishment of manatee speed zones when the Lee County manatee protection rules were rejected by an administrative law judge (ALJ). Citing language within the MSA, the ALJ found that DEP did not present sufficient evidence that manatees were "frequently" sighted,[106] that DEP had failed to consider whether the rules created "undue interference" with boaters,[107] that the rule "regulates excessively,"[108] and that DEP had failed to consider all appropriate evidence.[109]

The Bonita Bay decision is somewhat surprising because, at the time, the legal burden of proving the invalidity of rules rested on the challenger,[110] rules were presumed valid,[111] and an agency's interpretation of its enabling statute was entitled to great judicial deference.[112] Accordingly, the ALJ could have deferred to the agency. However, this standard has been altered by recent changes to the Florida Administrative Procedure Act (APA),[113] which states that in the future, agency rules will not be presumed valid or invalid, and that the agency will be required to prove that a proposed rule is not an invalid exercise of delegated legislative authority.[114]

DEP's ability to implement manatee protection zones also has been affected by its relationship with county governments. In 1989, DEP began a comprehensive effort to implement the MSA through county-wide manatee protection plans in each of the thirteen key counties identified in the statute.[115] DEP sought local support for manatee protection programs through a coordinated implementation effort, which DEP hoped would better address potentially controversial localized issues.[116] Unfortunately, the development of thirteen individual programs has seriously slowed the implementation process.[117]

B. Reducing Deaths from Propellers and Flood Control Structures

The MSA does not require DEP to find technical solutions to all of the problems causing manatee deaths. However, technical solutions may be available for two of the problems. Manatee deaths from watercraft collisions can be reduced by using propeller guards, and deaths from flood control structures can be reduced by using manatee sensor devices.

As the speed zone regulations and statistical data discussed above have demonstrated,[118] watercraft collisions are a major cause of manatee deaths, and as many as forty percent of these deaths are caused by open-bladed propellers.[119] Some manatee deaths are tragic stories, such as the May 1990 incident in which a U.S. Navy tugboat killed a female manatee and her calf in Kings Bay Submarine Base, just north of the Florida-Georgia border.[120] The incident led the Navy to install propeller guards on its entire tugboat fleet at Kings Bay, and no deaths have occurred since that time.[121] Still, the MSA does not require propeller guards.

Propeller guards have existed for many years. In fact, the first patent for a cage-type propeller guard was issued in 1938.[122] Eighteen such patents were issued by 1964.[123] Today, a propeller guard can be installed on an open-bladed propeller for anywhere from $300 to $1400, depending upon the design.[124] Some boaters have voluntarily attached the devices to their boats, including some manatee research vessels.[125] However, not all Florida agencies involved in the manatee protection effort have installed the guards on their boats. At the time this Article was being prepared for publication, DEP's Bureau of Protected Species Management was still installing propeller guards on its boats; the last boat was scheduled to have a custom-made propeller guard installed by the end of 1996.[126] By contrast, DEP's Division of Law Enforcement, which is responsible for enforcing the manatee protection laws, has no propeller guards on any of its boats.[127]

Recently, DEP has been exploring the possibility of requiring propeller guards on all boats in return for an exemption from manatee speed zone requirements.[128] If the program is implemented, permittees would be given a list of acceptable guards, and the installation of the guard would become a condition of the permit.[129]

DEP's Bureau of Protected Species Management has resubmitted a budget request to fund a comprehensive propeller guard engine efficiency study.[130] The study is intended to address the counterargument that propeller guards are not a viable solution to the manatees' troubles. Boating industry officials offer three main arguments against propeller guards. First, they claim that propeller guards will increase manatee deaths because most cage-type guards enlarge the striking surface around propellers by thirty to fifty percent, increasing the likelihood of blunt trauma at speeds over seven to eight miles per hour.[131] Second, industry officials note that certain types of propeller guards can entrap limbs or body parts, causing more severe injuries than an open propeller.[132] Third, they state that propeller guards will decrease engine efficiency by collecting debris and causing vibration and steering problems.[133]

Flood control structures also kill manatees.[134] Manatees can get caught between the moving parts of flood control gates, which open and close to allow water to pass, or they can be pinned against the flood control structure's stationary concrete walls or floors, causing them to be crushed or drowned.[135]

The MSA does not address this problem, which causes as many as sixteen deaths a year, or approximately five percent of all manatee deaths annually.[136] Although these structures are killing manatees in violation of the MSA,[137] there are no consequences for the violations. The federal government, which owns these structures, is immune from any liability relating to flood waters.[138] Because the South Florida Water Management District (Water Management District) is operating the structures to prevent residential and commercial flooding in south Florida pursuant to guidelines established by the U.S. Army Corps of Engineers, no penalties have ever been imposed.[139]

While the MSA has not expressly provided protection from flood control structures for the manatee, the potential for third-party lawsuits based upon the federal ESA,[140] as well as directives of the federal and state Interagency Manatee Task Force[141] to protect the manatee, have motivated some actions by the Water Management District and Army Corps of Engineers.[142]

To reduce structure-related mortality, the Water Management District and the Army Corps of Engineers are installing over two million dollars worth of devices to detect manatees before they are crushed or drowned by the gates.[143] The original design of these pressure-sensitive devices enabled the flood control structure operators to detect an object between or below the closing structure gates, much like the sensors on an elevator door.[144]

Unfortunately, the prototype models installed on the Water Management District's S-27 (Little River) and S-29 (Snake Creek) structures in Dade County—both of which are responsible for roughly twenty-five percent of all manatee deaths caused by water control structures[145]—were plagued with maintenance problems.[146] As a result, the Water Management District and the Army Corps decided to delay implementation of the project, instead developing a new pressure control device using piezo electric film.[147] The film, which conducts an electric current, is 1/1000th of an inch thick and attaches to the floor on either side of the gate.[148] When touched, an alarm is triggered.[149] If the piezo electric film proves effective, the detectors will be installed on the S-27 and S-29 structures during the winters of 1996 and 1997, and on other structures thereafter.[150]

C. Educating the Public About Manatee Protection

DEP has emphasized educational efforts, such as the Adopt-a-Manatee program, manatee decal and publication distribution,[151] and license plate promotions[152] to protect the manatee. Counties also are beginning to discuss extensive boater education programs. Dade County has suggested teaching boaters about locations of designated manatee protection zones.[153]

A 1995 DEP report to the Legislature lists a variety of educational programs used in 1994 and 1995.[154] A voluntary contribution campaign promoted public awareness and raised $85,000 by distributing "Boomer" decals and bumper stickers after the death of the popular manatee known through the Adopt-a-Manatee program.[155] In addition, DEP staff worked at boat shows and participated in the development of public service announcements, brochures, and teachers' guides, and the Bureau of Protected Species Management published a newsletter for the Manatee Technical Advisory Council.[156] These numerous but relatively small-scale educational efforts reflected only 2.25% of the manatee protection program budget.[157]

D. Facing the Threat of Natural Causes

While Florida's legal and educational efforts seek to limit human impact upon manatees and their habitats, these actions cannot protect manatees from naturally occurring harm. In early 1996, natural causes killed more than 150 manatees on Florida's west coast.[158] The massive die-off significantly reduced the manatee population and further diminished the genetic pool enabling manatees to adapt to changing conditions.[159]

Catastrophies similar to the recent die-off do occur naturally.[160] In 1992, an outbreak of red tide caused thirty-seven deaths in Lee County.[161] Hurricanes also have caused manatee deaths by forcing salt water into fresh water manatee habitats, destroying food supplies and stranding manatees.[162] Cold stress, a syndrome caused by the rapid onset of extremely low water temperature, can kill manatees and can sometimes be catastrophic when it strikes areas where manatees have congregated.[163] Cold stress also can kill by lowering disease resistance, thus enabling bacteria and viruses to rapidly spread among the congregated manatees.[164]

Death from natural causes could force the manatee population to fall below the critical numeric threshold.[165] Dr. Gregory Bossart, a veterinarian at the Miami Seaquarium, has suggested that the manatee population today cannot withstand any significant natural die-offs.[166] Even with the successful implementation of regulations that reduce the number of manatee deaths caused by humans, the manatee will continue to face extinction if it cannot breed faster than its death rate and if deaths from natural causes continue.[167] Accordingly, the most important thing the MSA can achieve is to ensure that the manatee population is large enough to withstand the threats of death from natural and even catastrophic causes.

VI. EVALUATION OF AND SUGGESTIONS FOR ALTERNATIVE MANATEE PROTECTION PROGRAMS

The difficulties associated with implementing species protection programs are not unique to the MSA.[168] The 104th Congress recently considered rewriting the ESA.[169] The Legislature should likewise reassess the MSA and consider clarifying rulemaking requirements, accelerating development of technical solutions, improving enforcement, and encouraging MSA compliance through improved educational programs.

A. Clarifying Agency Rulemaking Duties

Given the litigation and delays hindering DEP's rulemaking efforts under the MSA, the Legislature should give clear directions to expedite the agency's efforts. This can be done in three ways.

First, the Legislature should direct DEP to pursue ecosystem solutions to manatee protection and to develop rules for no-entry zones. Rather than focus on protection of individual species, many scholars and scientists argue that protection of entire habitats and ecosystems better ensures the survival of endangered and threatened species.[170] The Legislature already recognized this concept when it enacted an ecosystem management bill in 1995.[171]

For the manatee, habitat protection might require complete removal of potentially harmful human activities, such as watercraft traffic and development. A legislative mandate, requiring counties and DEP to designate certain areas as no-entry zones, could prove highly effective in protecting manatees. A similar program is being implemented within the Florida Keys National Marine Sanctuary.[172] In fact, the designation of specific manatee habitats has already been an effective tool in manatee protection; at the Crystal River and Blue Spring sites in Florida, both designated no-entry zones, manatee populations are increasing.[173] Researchers found that maintenance of habitat quality and protective measures reducing human impact are accompanied by high rates of adult manatee survival.[174]

Second, the Legislature should address the problems engendered by the Bonita Bay decision and the 1996 amendments to the APA. Despite rules jointly developed by DEP and Lee County, as well as testimonial evidence of manatee sightings, the Lee County rules failed to withstand an administrative challenge.[175] Given the fact that Lee County was designated a "critical county" in the Save the Manatee Trust Fund report[176] presented to the Legislature, and given the MSA's express recognition of the need for protective regulation in some areas of Lee County,[177] the DEP rulemaking effort should have been expedited. Unfortunately, as the final order in Bonita Bay recognized, the language in the MSA creates some ambiguity when applied in a rulemaking challenge. Bonita Bay included disputes over words such as "frequently," "undue interference," "periodic," and "seasonal."[178]

Addressing the semantic confusion created by the MSA, the Florida Fourth District Court of Appeal ruled in May 1996 that the MSA was not an unconstitutional or invalid delegation of legislative authority in Marine Industries Association of South Florida, Inc. v. Department of Environmental Protection.[179] Included in the court's opinion was a review of specific terms in the MSA such as "frequently" and "congregate."[180] Relying upon the "Legislature's concerted efforts to protect the manatee," the court upheld the MSA.[181]

The 1996 APA amendments also will have a substantial impact upon the MSA. The MSA already restricts DEP rules from "unduly interfering with the rights of fishers, boaters and water skiers using the areas for recreational and commercial purposes."[182] The loss of the presumption of rule validity under the revised APA[183] will make it even more difficult for DEP to develop manatee protection rules because future manatee rules are likely to undergo even more rigorous scrutiny during administrative challenges.

When Marine Industries, Bonita Bay, and the APA revisions are considered together, it becomes apparent that the Legislature must revise the language in the MSA to enable DEP to properly implement the Act. Given the continued struggles of the manatee, the Legislature should remove from the MSA qualifying terms such as "frequently," which have led to litigation and rulemaking delays, and decrease the burden on agency rulemaking.

Third, the Legislature should establish specific timelines for rulemaking and implementation of legislative directives. The 1978 MSA included provisions authorizing the Department of Natural Resources to "initiate rule adoption procedures under chapter 120 regulating the operation and speed of motor boat traffic . . . ."[184] Almost twenty years later, rulemaking is still incomplete even in the counties that DEP designated as critical.[185] In the future, to avoid delays and prevent continued manatee deaths, the Legislature should direct DEP to complete the rulemaking effort by a date certain.

B. Accelerating Development of Technical Solutions

In implementing the MSA to protect the manatee, federal and state governmental entities have considered propeller guards and manatee sensors on flood control gates as two technical solutions to slowing manatee deaths.[186] The Legislature should give further direction in these areas.

While propeller guards cannot prevent every manatee death that results from a watercraft collision, the guards could potentially reduce such deaths by up to forty percent because an enclosed propeller prevents the deep gashes that open-bladed propellers cause in the flesh of the animal.[187] Of the many watercraft-related manatee deaths each year, approximately fifty-five percent are caused by impact with watercraft, forty percent are caused by direct contact with open-bladed propellers, and five percent are a combination of the two.[188]

As discussed earlier,[189] boating industry representatives argue that propeller guards are unnecessary expenses and could even increase injuries to manatees.[190] DEP personnel disagree.[191] Accordingly, more research is probably warranted.

Since some DEP boats already have propeller guards, informal experiments with their use as a tool for manatee protection have already begun.[192] If propeller guards are considered a realistic solution to the problems of manatee protection, then it is an embarrassing fact that not every DEP watercraft has one. The Legislature should immediately increase funding for the Bureau of Protected Species Management, allocating the money needed to install some type of propeller guards on all of its watercraft.

While propeller guards may provide a solution to propeller injuries, another option is to encourage the use of boats without propellers. Alternative boat engine designs are increasingly being used in watercraft.[193] For example, personal jet-skis and jet-drive propulsion boats, which do not have exterior propellers and have a shallow draft, present less of a risk to the manatee.[194] These boats may provide an alternative to the potential problem created by propeller-driven boats with propeller guards.

The Legislature should direct DEP to engage in additional research concerning propeller guards and alternative engine designs. Eventually, depending upon the results of this research, the Legislature should encourage the use of propeller guards or alternative designs on all Florida-registered boats to further reduce the number of boating-related manatee deaths. As an incentive, the Legislature could consider reducing boat registration fees for owners of boats with guarded propellers or alternative designs.[195] Finally, if warranted by the additional research, the Legislature should require the Florida Marine Patrol to install propeller guards on its boats as well.

The Legislature also should expedite the installation of manatee sensors on flood control structures, such as the sensors being installed by the Water Management District and the Army Corps of Engineers.[196] The MSA already requires the use of devices to stop the crushing of manatees between vessels and bulkheads or wharves;[197] an amendment to this provision should address the crushing of manatees in flood control and similar structures. Such an amendment could expedite the implementation of the pressure sensitive devices on the flood control structures in South Florida.

In a few instances, the Legislature should consider removing or replacing existing flood control structures. The Dade County Manatee Protection Plan suggests replacing some older structures with newer models that allow water to spill over the top of the gates.[198] Many flood control gates in south Florida allow the water to flow under the gates; when the gates begin to close, the manatee is crushed as though it had put its head in a guillotine. The alternative gates proposed by the Dade County Manatee Protection Plan could eliminate the risk of manatees being crushed when they close. However, these gates are costly and also could cut off manatee access to upstream habitats.[199] Accordingly, the Legislature should authorize further research and encourage the careful placement of these structures—if they need to be used at all.

C. Improving Enforcement

Enforcement of the MSA can be improved. Available options include increasing penalties under the MSA, developing new enforcement techniques, enhancing existing enforcement—especially through additional funding—and putting the MSA forfeiture provisions to work.

The Legislature should provide for increased penalties and stricter enforcement to deter violations of the MSA. The deterrent value of current penalties is uncertain. The MSA provides for a fifty-dollar citation for violating boating speed limits[200] or prosecution for a second-degree misdemeanor for any other violation.[201] Such threats are minor, as shown by the recent DEP study concluding that as many as one-half of all boaters violated speed limits.[202]

Increasing the penalties for violations could boost the deterrent effects of these laws, although it also could deter some law enforcement officers from issuing citations with harsh penalties to unsuspecting boaters.[203] Accordingly, appropriate intermediate levels of sanctions and deterrence must be found.

Encouraging new approaches to enforcement, such as rewarding witnesses who report boats that exceed posted limits in manatee speed zones or requiring mechanics who repair propellers damaged by manatees to disclose their findings, also could increase manatee protection.[204] However, even if new methods to enforce the MSA were found, they likely would be of little value without the presence of additional marine patrol officers and other law enforcement personnel to enforce them.[205] Budgetary constraints inevitably play a significant role in determining whether additional enforcement personnel can be hired; however, if Florida is truly committed to the preservation of the manatee, better enforcement of the MSA is a necessity, not a luxury.

MSA forfeiture provisions allow for the confiscation of equipment including scuba gear, cars, and boats.[206] Significantly, this forfeiture provision has never been used.[207] Theoretically, the use of existing forfeiture laws could create new funding sources for Florida's marine patrols because in many areas of law, such as those dealing with criminal drug distribution, the proceeds of forfeiture proceedings help fund enforcement agencies.[208]

However, the Legislature must be cautious in applying forfeiture laws in the area of environmental regulation. While forfeiture law also has been used to promote species protection, most notably under the Bald Eagle Protection Act[209] and the ESA,[210] the items forfeited are generally limited to the items actually taken from the endangered species.[211] Furthermore, civil forfeiture is a severe option, particularly because it only requires proof by a preponderance of the evidence and not proof beyond a reasonable doubt.[212] Accordingly, it must be carefully applied so it does not violate private property rights or provoke angry public reactions.[213] For example, MSA forfeiture provisions should only be used against boat owners who are observed harming a manatee through grossly negligent, reckless, or intentional conduct.

By amending the MSA to provide clear directives on the use of the forfeiture provisions, the Legislature could encourage their use in the future. The reasonable use of the forfeiture provisions could create publicity for the consequences of violating the MSA, and proceeds of the forfeitures could be used to provide additional funding to the Florida Marine Patrol, or as a reward to those who report violations.

D. Increasing Public Awareness and Concern

While deterrence through post-incident penalties can help protect manatees by warning others of the consequences of violations, voluntary compliance is preferable. Through revisions to the MSA, the Legislature could increase public awareness of the problems faced by the manatee. Specifically, the Legislature should direct the implementing agencies to encourage voluntary compliance with the MSA through better education. Those education programs should be designed to appeal to Florida's children and to adults' financial interests.

Despite the successes of Florida's educational programs—exemplified by the fact that the "Save the Manatee" license plate is one of Florida's largest selling specialty plates[214]—some people still ignore or even scoff at the "Save the Manatee" message.[215] Justifying manatee protection by relying upon moral or practical reasons can be difficult when unsympathetic adults place greater emphasis on economic values. Sympathy for an animal is often not enough for many people to justify the inconvenience of placing their needs second to those of a creature, even one poised on the brink of extinction. However, these same anthropocentric adults may listen to their children and grandchildren.

One particularly effective way to educate the public and ensure future concern and protection for manatees is to educate Florida's children. While local governments are incorporating this tactic in their manatee protection plans,[216] DEP is struggling to develop information for the school districts. The manatee education program consists of one full-time employee. While DEP staff have made appearances in schools and have encouraged counties to incorporate manatee education programs, the staffing shortfall makes it extremely difficult to achieve the program's goals in any comprehensive, statewide manner.

Heightened public concern for the manatee also can be achieved by emphasizing economic reasons for manatee protection. Tourism is an essential part of Florida's economy, and the manatee is a prime Florida tourist attraction. Manatee habitats and refuge areas, from Crystal River Springs to the Florida Power & Light Co. discharge area in Riviera Beach,[217] attract thousands of visitors. Sea World in Orlando[218] and the Miami Seaquarium[219] both have dedicated entire exhibits and attractions to the manatee. The Fort Pierce Utilities Authority recently was awarded a grant from the Water Management District to help pay for the development of a Manatee Observation and Education Center in St. Lucie County.[220] Citizens of Florida need only look around them to understand that manatees should be protected because they have economic value to the state's tourism trade.

Medical and genetic research also may justify manatee protection. In its 1987 report on the future of the world ecosystem, the World Commission on Environment and Development repeatedly emphasized scientific and financial reasons for encouraging nations to enact species protection laws and programs,[221] especially in light of the emerging science of genetic engineering.[222] The same arguments can be used to justify manatee protection. Scientists have suggested that the manatee could have value in medical research because it has an advanced immune system.[223] Similarly, the manatees' ability to quickly heal and recover from huge propeller gashes provides strong reasons for undertaking comprehensive medical research.[224] Further research may uncover even more economic or genetic values. Thus, economic justifications for manatee protection laws should be communicated to the public as reasons for improving Florida's manatee protection laws, and the Legislature should direct DEP to further explore this route.

E. Providing Sufficient and Stable Program Funding

Manatee programs are funded by state and federal sources, both of which are becoming increasingly unreliable. In 1995, the National Biological Service considered eliminating its support of manatee protection programs as part of its 1996 budget.[225] Had it done so, the loss of nearly $1 million in research funds would have greatly reduced available information used in the effort to protect the manatee.[226] Money from the state comes primarily through voluntary contributions. Of the $2.8 million provided by Florida for manatee protection programs, two-thirds of the money comes from voluntary citizen contributions through the purchase of specialty license plates and the optional check-off donations by boat registrants.[227]

Federal government funding sources have been drying up with increasing frequency.[228] The Legislature must recognize that it cannot forever rely upon continued federal funding for research.[229] Similarly, relying upon the goodwill of citizens to fund the bulk of manatee protection programs is dangerous because of the inherent instability in voluntary contributions. While the "Save the Manatee" license plate is a source of revenue for DEP, the Legislature should redesign the manatee protection program budget to guarantee that the program's funding is sufficient, with state funds supplementing specialty license plate revenues and voluntary donations.

Finally, as suggested throughout this article, the Legislature should consider allocating additional funding in some limited areas. These funds should improve DEP's ability to hire essential staff and perform necessary research to identify habitat areas, develop new protection rules,[230] and improve education programs. The funds also could be used to help the Florida Marine Patrol and other enforcement agencies purchase needed boats and pay for additional personnel to increase enforcement of the manatee protection laws.[231]

VII. CONCLUSION

When it was adopted in 1978, the MSA was a visionary species protection program. Today, however, this landmark legislation needs improvement. The Legislature should aggressively act to preserve the manatee population for the future by revising the MSA and addressing its rulemaking, research, enforcement, education, and funding problems. Manatees grow teeth for their entire lifetime. If the Legislature wants manatees to go on living, then it must put teeth in the MSA.