Attorney General Charlie Crist warned two Big Bend legislators Monday that bills allowing mullet nets with bigger mesh would violate the state constitution's net ban and poach on the powers of the Fish and Wildlife Conservation Commission.

As a state senator from St. Petersburg, Crist vigorously supported the 1994 amendment that outlawed gill and entangling nets and other nets bigger than 500 square feet to protect supplies for sport fishermen. The Fish and Wildlife Commission further declared that nets with holes larger than two inches aren't allowed.

The bans have been extremely unpopular in the Big Bend and Panhandle, where many small towns depend on commercial shrimping and other marine resources.

"Florida is finally seeing positive results through improved marine populations," Crist said Monday, "and this would be the worst possible time to turn back the clock by weakening the net ban."

Sen. Al Lawson, D-Tallahassee, and Rep. Will Kendrick, D-Carrabelle, have introduced identical bills (SB 1178 and HB 741) saying that nets made of specified materials, "regardless of mesh size, not exceeding 500 square feet, shall not be considered a gill or entangling net and may be used to harvest mullet in the waters of this state."

Lawson said Crist didn't have the right to judge what's constitutional and accused him of trawling for environmentalists' votes in his unannounced campaign for governor. Kendrick pushed the idea that bigger holes in fishing nets would mean longer life for millions of little fish that hadn't spawned yet.

Both legislators said they will continue working for passage of their bills, which are pending in House and Senate natural-resources committees.

Constitutionality in question

In letters to Lawson and Kendrick, Crist noted that the 1994 net-ban amendment provides, "No gill nets or other entangling nets shall be used in any Florida waters." It defines the banned nets as any types that snag the head, fin, leg "or other body part" of marine animals.

Another amendment, adopted in 1998, creates the Fish and Wildlife Commission and gives it power to regulate the taking of game and freshwater fish without legislative interference, Crist wrote. He said the Florida Supreme Court has recognized the commission's authority.

"I do not believe the Legislature can simply declare by fiat that a certain gear is not a gill net in the face of the findings of the various responsible entities and courts that large-mesh nets are gill or entangling nets," Crist wrote.

"The courts determine the constitutionality of legislation, not the attorney general's office," Lawson countered. "Judges have been throwing out net-ban violations because of vague descriptions of the materials that are allowed in making of nets. This bill is not an attempt to get around the net ban; it's an attempt to remove some of the ambiguities that have surrounded the issue for years."

The Fish and Wildlife Commission allows use of a "one-inch bar" mesh, which stretches to two inches when pulled through water. Kendrick said up to 90 percent of the mullet snagged by such a net are smaller than the 11-inch minimum for keeping, and many of the "immature" fish haven't reproduced.

Allowing the same net with two-inch holes, which stretch to four inches in the water, would mean 95 percent of fish caught are legal, he said. An 11-inch mullet has usually spawned once or twice.

Kendrick, whose district spans fishing villages from Apalachicola to Cedar Key, keeps two net samples in his office with wooden fish attached to them.

"The constitution doesn't say anything about mesh size," Kendrick said. "Our bills are not about the 500 square feet, but about mesh size."

Litigation looming?

Legislators, other public officials and agencies often ask for advisory opinions from the attorney general's office and the Department of Legal Affairs. The opinions aren't binding but are usually heeded, to avoid costly court fights.

Kendrick said he and Lawson didn't ask Crist for an opinion, because he and his office have represented the pro-net-ban side in legal challenges and prosecutions over the past decade.

"If he had not already weighed in on the issue, I would value" his advice, Kendrick said. "But I don't give it much validity."

Crist said the Legislature can't pass any laws pertaining to hunting and fishing.

"If passed," he said, "the proposed legislation will result in litigation costs to taxpayers who have made their wishes known by amending the Constitution."