Bait and Shackle | New Times Broward-Palm Beach

Bait and Shackle

It is the height of the ballyhoo season, yet fisherman Everett Hobby frets over an expected cold front about to blow in from the west. He worries about how he's going to meet the demand for the popular baitfish if the winds are so stiff that he can't fish. He also worries about his upcoming criminal trial.

Hobby is charged with violating the net ban law, a 1995 amendment to Florida's Constitution that prohibits commercial fishing inside a one-mile line on the Atlantic coast and a three-mile line on the Gulf. Florida voters overwhelmingly approved the ban to protect the sea's natural resources.

Hobby, one of a handful of commercial ballyhoo fishermen in the world, sees the law differently. He claims the net ban has run the small commercial fishing industry out of Palm Beach County, where he had made his living for nearly 30 years.

Now, when the weather is good, Hobby must leave his Lake Worth home well before dawn to drive to the Miami River, where a 31-foot fishing boat is docked at a bait wholesaler. When he gets there around 7 a.m., he and his two-member crew load the boat with crates and ice for the fish, along with 70 to 80 gallons of gasoline, before heading east on the river into the Atlantic. They continue another mile into the ocean -- as the Florida Constitution requires -- before they locate their fishing spot. In an elaborate routine that entails an enormous net and a lot of pulling and grunting, the three men haul the net toward the boat's hull in their effort to snare the ballyhoo. On a good pull, they catch thousands of the silvery, narrow-bodied, nine-inch fish in one round. Other times they come up empty.

Before the net ban law, Hobby estimates that he, his brother, and two nephews, while fishing off Palm Beach County, provided about one-third of the bait for every sport fisherman along the eastern seaboard. Since the ban the Florida Marine Patrol (FMP) has charged each of them with net ban violations, forcing them to fish from Miami. The business has suffered; local wholesale bait distributors estimate they have only one-third the supply of ballyhoo they normally have this time of year.

It's not that Hobby didn't try to work in Palm Beach County after the ban. But every time he threw his net down, he had to look over his shoulder for marine patrol officers who, he contends, would stop at nothing to catch him doing something wrong. Hobby maintains it is impossible to comply with the law.

Simply finding the one-mile line is a formidable challenge, because the coastline constantly changes and the hand-held instruments that can pinpoint locations have a margin of error, he says. "The way the continental shelf is, there's a certain area where the fish hang," Hobby explains. "It's just a little strip, and it's right at a mile."

Nonetheless the marine patrol enforces the law with a zeal that Hobby claims borders on harassment. On one afternoon an FMP officer hid in his boat off the beach by The Breakers of Palm Beach Hotel, waiting for Hobby to drop his net. When he did, the officer rushed over to measure his distance from shore -- only to find that Hobby was legal. On another occasion the same officer shadowed him for the entire day, waiting for him to fish illegally.

"Every day they tried to catch me doing something wrong, like I was doing pot or crack or something," Hobby scoffs. "It was a joke."

Then around midday on July 17, Hobby dropped his net at a spot by the Delray Outfall that he had fished for years without incident. That same FMP officer requested marine patrol helicopters fly by and check his position. They found him at 26i27.72 Hobby declined to comment specifically on his case, but says the vigilant FMP eye and the helicopter patrol were nothing new. "Every day -- I'm not talking once in a while -- every day, we had helicopters fly over us. We had marine boats dog us down."

What Hobby deems harassment the marine patrol considers basic law enforcement. "They want to be able to fish that reef, and you can't blame them for that, but it's illegal," says Lt. Herb Hamilton of the Jupiter FMP office. "If the rule said we want people to use thermonuclear devices, that's what we'd allow. We enforce what the law is."

At least one judge, however, has ruled against strict enforcement in what could be a precedent-setting case. In Wakulla County, about 25 miles south of Tallahassee, where fishing and seafood reign, County Court Judge Jill C. Walker dismissed charges against a man arrested for fishing within three-tenths of the nautical-mile limit in Apalachee Bay. Walker ruled it was impossible for any fisherman -- however diligent -- to know when he was going inside the line because of the law's ambiguity and deviations in the coastline (known in the trade as the territorial sea baseline).

In that case U.S. Coast Guard Lt. Louis Earl Whaley testified that he was unaware of any map that explicitly displayed the baseline.

"The dotted line, what is that called?" an attorney asked him, holding up a navigation map of Apalachee Bay.

"That's the territorial sea baseline," he replied.
"Can you show me on the map where it identifies that it's the territorial sea baseline?" the attorney inquired.

"Well, I can't," he replied. "You're just going to have to take my word for it."

If appellate courts uphold Judge Walker's decision, it will set the precedent for Hobby's trial, according to his attorney, Bob Romani.

"She [the judge] basically said it really places the fisherman in a precarious position, because it's hard for the fisherman to know where they are at any given moment," notes Romani. "The coastline is constantly changing, so you have a net fisherman out there, and it's very, difficult unless you have extremely sophisticated equipment, which most of these guys don't have."

FMP's Hamilton, however, says the line is easy to find with the use of a nautical chart from the National Oceanic and Atmospheric Administration and a common boating tool called a GPS (Global Positioning System), which uses satellites to determine location. Nonetheless Hamilton admits that some deviation exists on a day-to-day basis. "We can only use the tools we have available," he says.

After his arrest Hobby sold his boat in Palm Beach County. He says fishing off the coast of Miami is tougher because ballyhoo swim farther out and the terrain is less familiar. The cost of additional gasoline and maintenance has increased his business expenses dramatically.

That cost has been passed on to recreational fishermen, according to Mark Montella, the owner of M&M Bait, a Deerfield Beach-based ballyhoo wholesaler. Restrictions on fishing make sense, he says, but adds that Palm Beach County commercial fishermen have in effect been banned from doing their job, causing the wholesale ballyhoo price to increase by more than 30 percent. In retail stores the price has jumped from $4.50 a dozen to $7 a dozen since the ban took effect.

Maybe so, but sport fishermen aren't complaining, says Ted Forsgren, executive director of the Coastal Conservation Association of Florida, one of several recreation and environmental organizations that backed the net ban amendment. Before the ban, he says, entire populations of fish were being decimated by environmentally irresponsible net fishermen. Now sports fishermen are catching more and bigger fish than ever before. And that, he adds, is precisely the law's purpose: to protect natural resources by restricting commercial fishermen to certain areas.

Although ballyhoo aren't endangered, the one-mile limit provides a corridor of protection for them. Larger game fish, such as king mackerel and tarpon, follow right behind the ballyhoo, Forsgren says, creating a steady stream of good days for Florida's thousands of recreational fishermen. And good days of fishing mean good things for Florida: the sport fishing industry, he maintains, is more important to Florida's economy than citrus. Possibly, but Florida's courts will have to determine if a law that protects big fish should make criminals out of small businessmen.