Opinion Number ( 1995 )

Dear Representative Roach:

Our office is in receipt of your July 17, 1995 memorandum in which you request an Attorney General's Opinion of whether the Louisiana Wildlife and Fisheries Commission ("Commission") has the authority to adopt an emergency rule in accordance with the Administrative Procedures Act to grant a tolerance for the mesh size for shrimp nets within the one and one-eighth inch to one and one-sixteenth inch measurement. In your request, you reference R.S. 56:6(25). This section allows the Commission to promulgate rules and regulations to, among other things, set size limits for all fish and wildlife. Once promulgated, these rules supersede limits currently set by law.

Article IX, Section 1 of the Louisiana Constitution provides:

The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy.

Article IX, Section 7 provides: "The control and supervision of the wildlife of the state, including all aquatic life, is vested in the Louisiana Wildlife and Fisheries Commission". This section further states that "the functions, duties, and responsibilities of the Commission, and the compensation of its members, shall be provided by law."

Thus, the Constitution provides a balancing between the independent Wildlife and Fisheries Commissions control and supervision over the wildlife of the state and the legislature's ultimate responsibilities over the natural resources of the state. Given the language of Article IX that the functions, duties, and responsibilities of the Commission shall be as provided by law, the Commission's authority is subject to the direction of the legislature.¹

Title 56 of the Louisiana revised statutes provides the general provisions for wildlife and fisheries. Through this title, the Louisiana legislature has enacted a legislative scheme for the taking of fish and wildlife. These specific provisions regulate certain activities regarding fish and wildlife and include several sections delineating the functions, duties, and responsibilities of the Commission.

R.S. 56:499(b) provides:

"No person shall take saltwater shrimp with any trawl, skimmer net, or butterfly net with a mesh size less than five-eighths of an inch square or one and one-fourth of an inch stretched. . . ."

R.S. 56:8(64) defines "mesh size" as:

". . . the full measure of the mesh as found in use when measured as follows: bar measure is the length of the full bar stretched from the near side of one knot to the far side of the other after being tarred, treated, or otherwise processed. Stretched measure is the full stretched distance from the near side of one knot to the far side of the opposite knot diagonally across the mesh. . . ."

It is clear from the reading of these two sections that the minimum one and one-fourth inch mesh size allowed for shrimp trawls, skimmer nets, and butterfly nets is the mesh size of the net as the net is used and after the net has been tarred, treated, or otherwise processed. Thus, a fisherman using a net with a mesh size less than one and one-fourth inch stretched, regardless of whether the net has been tarred, treated, or otherwise processed, is in violation of the law. A review of these sections and other relevant statutes also show that the legislature did not provide any tolerance for the measurement of the mesh size for shrimp nets.

In addition to the sections in title 56 providing for specific provisions regulating activities regarding fish, such as the sections listed above, there are several sections delineating the functions, duties, and responsibilities of the Commission. These include R.S. 56:6(25)(a) which provides:

"[The Commission] [s]hall promulgate rules and regulations, subject to the provisions of the Administrative Procedure Act, to set seasons, times, places, size limits, quotas, daily take, and possession limits, based upon biological and technical data, for all wildlife and fish. . . . Any season, time, place, size, quota, daily take, or possession limit currently set by law shall be superseded upon promulgation by the Commission of new rules and regulations concerning a particular species. . . ."

(b) The provisions of this section shall not amend, supersede, or repeal any other provision of the law pertaining to fish as defined in R.S. 56:8(38).²

Subsection b specifically provides that a rule promulgated by the Commission may not supersede any other provision of law pertaining to fish. Thus, even if "mesh size" can be considered a "size limit", the Commission cannot adopt a rule allowing use of shrimp nets with a mesh size less than the one and one-fourth inch (1-1/4") stretched provided by statute.

I trust this opinion answers your questions. Should you need further assistance in this matter, please do not hesitate to contact our office.

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: ___________________________ FREDERICK C. WHITROCK Assistant Attorney General

Date Received:

Date Released:

¹ Aguillard v. Treen, 440 So.2d 704 (La. 1983).

² R.S. 56:8(38) defines "fish" as all finfish, shellfish, and crustaceans. R.S. 56:8(89.1) defines "shellfish" to include shrimp.