County sues FWC over Indian Lagoon

Gulf County commissioners are not pleased with how the state
has handled the closure of Indian Lagoon for those who want to grab some
oysters to fry up or shuck.

So in an unusual move, they’re suing the Florida Fish and
Wildlife Conservation Commission.

Following unanimous votes by the five commissioners, County
Attorney Jeremy Novak filed a complaint in the 14th Judicial Circuit asking
Circuit Judge Shonna Young Gay to stop the FWC from implementing what the
motion calls “an unconstitutional closure of Indian Lagoon.”

The lagoon, described as “a thick, muddy body of extremely
shallow water” that runs north of the Indian Pass peninsula, is at the
westernmost edge of the Apalachicola Bay, and makes up just six-tenths of 1
percent of the Bay system.

It has long been a locale for the recreational harvest of
oysters. Gulf County commissioners are objecting that it be lumped in with the
five-year ban of commercial and recreational harvesting that now applies to the
entire Apalachicola Bay.

“No research has been conducted on the lagoon to justify the
need for its inclusion of the bay system closure,” reads the motion, filed Feb.
1.

“The lagoon’s inclusion in the (Apalachicola) Bay System
Project is based solely on one brief visit to the lagoon by a local researcher
who was not even able to adequately observe the system during that visit due to
the lagoon’s non-navigable waters,” it reads. “After a superficial observation
on the banks adjacent to the lagoon, the researcher concluded that the lagoon
‘looked similar’ to the bay and therefore should be closed as stated during the
FWC public hearing on Dec. 17, 2020.”

That Dec. 2020 hearing, when the FWC formally closed the
Apalachicola Bay to oystering following an Aug. 1 executive order that had
initially put a stop to any harvesting, also comes in for criticism in Novak’s
motion.

“On. Dec. 16, 2020, a final public hearing was held but the
public was cut off, on multiple occasions and restricted from discussions
regarding the lagoon between the FWC staff, the FWC commissioners and other
members of the public through the virtual meeting,” it reads. “Despite Gulf
County’s efforts, no public hearing or adequate forum was provided to discuss
the lagoon nor possible restrictions that would align with the Bay System
Project’s goals while maintaining the needs of Gulf County families.”

The argument on behalf of Gulf County families is bolstered
by an affidavit by former longtime Gulf County Commissioner Carmen McLemore
that accompanies the complaint.

“I have grown up on and around the multiple waterways and
aquatic ecosystems throughout Gulf County my 68 years and I am very familiar
with these various waterways and specifically, Indian Lagoon,” he swears to, in
the affidavit. “My family and I have been recreationally harvesting oysters
from the Gulf County’s Indian Lagoon for over five generations and for over 70
years.

“I was taught by the elders this family tradition and the
ability to feed our families from this fishery has been passed down through the
generations. The closing of the Indian Lagoon prohibits my ability to feed my
family and the other families that rely on this food source,” McLemore writes,
noting that “I am unable to afford the expensive aquaculture/farm-raised
oysters that are now being sold and promoted exclusively in our community.”

He contends that ever since he started harvesting oysters as
a child, he has “seen no evidence of researchers or scientists in this lagoon
for collecting data or restoration programs. The one opportunity I was provided
to go with commissioner David Rich and representatives from the state, I
personally took them directly to Indian Lagoon and showed them myself the
abundant oyster beds and thriving environment where we have physically walked
into the lagoon and manually harvested by hand oysters over the 70-plus years.”

The Gulf County commission’s stated and approved position on
the Indian Lagoon dates back to Sept. 29, 2020, when it “unanimously resolved
its unfettered support of the preservation of the Indian Lagoon as well as the
continued efforts from the FWC’s in the conservation and protection of Gulf County’s
molluscan fisheries.”

In that resolution, the commissioners pledged their “continued
cooperation and support of the FWC and its efforts for conservation and
promotion of a healthy Indian Lagoon within Gulf County,” while stating that
they wished that area remain “independent of the Apalachicola Bay System within
Franklin County.”

The county commissioners urged “a coordinated and
cooperative effort” with FWC to keep the lagoon open to the public for recreational
oyster harvesting and arrive at “a balance between preserving these natural
resources and maintaining the fragile economic stability of Gulf County’s small
rural economy through a balanced program of maintenance, enforcement and public
information for the citizens of Gulf County and its minimal visitors to the
Indian Lagoon.”

County commissioners offered to help with a public campaign by
both local and state agencies, one that “would be done in coordination and
consideration (of the commission) through proper public hearings and
presentations before (them).” The proposal calls for “consideration of limited
access to the lagoon and the wade in access, hand harvesting and minimal draft
limitations for all access to the lagoon “

It also seeks a “proactive and cooperative campaign” for
keeping open the lagoon in Gulf by the Tourist Development Council, and state
agencies for “the proper messaging and public information projects to educate the
residents and visitors…. of the aquatic impacts of the recreational use, hand harvesting
and future access and oyster spat populations in the lagoon.”

Lastly, it seeks “a clear delineation between the Gulf
County and Franklin County segments of the Apalachicola Bay System.

In addition to this call for a hydrological and aquatic delineation
between the two water bodies, the complaint’s overview of how the FWC handled
the years leading up to the closure suggests Gulf County is taking a less
tolerant view of the state agency’s actions than has the Franklin County
commission, which has largely been in support of the closure while asking that
it not be strung out for five years, perhaps leading to a complete end of all
wild-caught harvesting.

“The bay once supported an expansive oyster reef ecosystem
that was considered the healthiest in the nation and supported an iconic oyster
fishery that supplied almost 90 percent of Florida’s, and 10 percent of the
nation’s, wild oysters,” read Novak’s motion. “In 2010, in response to the
British Petroleum Company oil spill, FWC allowed unfettered harvesting in the
Apalachicola Bay. This led to a massive depletion of the wildlife in the bay
system. By 2013, the fishery collapsed, and a federal fisheries disaster was
declared, given the historically low numbers of oysters in the bay.”

The motion says that in early 2020, FWC received a $20
million grant commitment from the National Fish and Wildlife Foundation’s Gulf
Environment Benefits Fund to conduct a large-scale restoration of the oyster
habitat in the bay system, but has neither “advised or informed Gulf County of
plans to spend any of the $20 million NFWF grant specifically on the Lagoon
studies and restoration.

“No substantive research was conducted to specifically
address the Indian Lagoon… and a research-driven report for the FWC to
determine the number of oyster spat, the health of the Lagoon’s ecosystem, or
anything else that would allow for an accurate assessment of the need to close
the entire Lagoon,” it reads.