Last week, we asked whether Florida’s ruling class was still clever enough to know that the accumulation of profits proceeds most smoothly when business suits are not caked in the blood and guts of the public’s wildlife. This week, we received the answer: four of them are; three of them are not. For now.
On June 22nd, after being bombarded by hours of eloquent, heartfelt, and intelligent public comment, the political appointees on Florida’s Fish and Wildlife Conservation Commission (FWC) disregarded the staff recommendation for an “even more conservative bear hunt” in 2016 and chose the third of the four options that had been placed on the table, postponing bear hunting until 2017 at the earliest. (Links to videos of the meeting appear at the bottom of this article.) As the Commissioners took turns expressing their views, it became apparent that Chairman Yablonski was going to have to settle the matter himself by providing the deciding vote. The FWC “hit the pause button” almost exactly eight months after Florida’s developer elite launched their camo-clad troops into battle against the public’s wildlife trust – a period corresponding to the age of the many cubs that were left alone in a demonstration of “tough love” from the bear scientists who claim to care about them so much.
For quite some time, we had wondered if Chairman Yablonski was going to lead the FWC the way that Chief Justice John Roberts leads today’s Supreme Court – always keeping an eye on the long-term health and power of his institution in the larger polity, protecting its ability to midwife the plutocratic project of the elite, even if it means occasionally disappointing the interests to which one might expect him to cater. Until Option 3 was published on June 10, the Chairman’s previous paeans to hunter-conservationists and insistence that policy must be determined by “the science” (i.e. their science), not by opinion polls, suggested that Florida’s iconic wild animals and the people who love them would be subjected to another orgy of premeditated violence. But the level of detail in Option 3, as we discussed last week, strongly implied that the Chairman was looking for a way out of a situation that had become untenable.
However, while the FWC’s decision to postpone bear hunting answered the immediate question that had been burning within the souls of so many of us for so long, it simply deferred many larger issues that still need to be resolved if the public’s wildlife trust is to remain secure.
FWC v. The People of Florida (2016): The Switch in Time that Saved Seven?
There can be no question that, without massive, impassioned, and unrelenting popular resistance, the FWC would have hunted bears again this year. No, Florida in 2016 has not been Venezuela in 2002, when the poor descended en masse from the barrios of Caracas to defeat the elite-driven, U.S.-backed coup attempt against Hugo Chavez. Nor has it been like Bolivia in 2000, when a mass uprising defeated an evil corporate privatization scheme in the Cochabamba Water Revolt. But it has been a remarkable period, uniting Floridians across ethnic, class, and party lines like no other issue we can recall.
The FWC’s reversal echoes the famous Supreme Court case, West Coast Hotel v. Parrish (1937), often referred to as “the switch in time that saved nine” and part of what legal scholars saw as a bona fide Constitutional Revolution. Throughout the early years of the New Deal, attempts by FDR and several states to improve economic conditions for ordinary working people were being struck down left and right.1 Fed up, FDR proposed to “pack the court” with additional justices who would interpret the Constitution in a less restrictive way. Thus, in Parrish, Justice Owen Roberts, who had previously voted with the reactionary “Four Horsemen,” suddenly decided that the Constitution didn’t mean what he used to think it meant, and the tide turned, warding off the threat to the Court’s composition. In what we might call the case of FWC v. The People of Florida (2016), the FWC made a switch of its own (albeit with two apostates, not one), very possibly intended to create a social relief valve for the head of steam that was building behind a state constitutional amendment to require democratic election of Commissioners and/or limit their power to hunt species that had been listed as threatened at any time in the past.
As tempting as that analogy might be, it is fundamentally flawed, for there is not yet sufficient reason to believe that a revolution has just occurred in professional wildlife management. Far from it. In judicial terms, the FWC handed down a plurality judgment – a decision in which a majority of the judges agree on the verdict of a court decision, but do not agree on the rationale that leads to the verdict. This creates great uncertainty as to what the court’s holding really means for other actors in society going forward. The FWC is not a court; it is an administrative agency. But its decisions have life-and-death consequences for non-human sentient individuals (and significant consequences for the humans who see those individuals as much more than resources to be harvested). When the FWC’s Commissioners do not agree on the rationale for their decisions, the fate of many individuals is still held hostage to the vagaries of individual or factional shifts. In 2016, we know that hundreds of Florida black bears will not be murdered, mutilated, and gutted in their forest homes. But we do not know that this will be the case in 2017 or beyond.
6/22 helped us to identify three distinct factions on the current FWC. We need to understand each one if we are to have a realistic chance of deterring a resumption of hostilities.
Icon of Trusteeship: The Bergeron Corollary to the Bear Management Plan
“Alligator” Ron Bergeron, the only Commssioner to have voted against the decision to hunt in 2015, was a man on a mission. Startling the Chairman with his eagerness to question the science of Dr. Thomas Eason (the FWC’s Director of Habitat and Species Conservation), Bergeron had clearly been impressed by the letter (pdf here) submitted to the FWC by Dr. Matthew Aresco and two other Florida-based scientists. Although similar concerns had been expressed in the letter from the statewide protest group, Stop the Florida Bear Hunt, the Aresco letter was taken more seriously by the Commission – so seriously, in fact, that the agency’s response (pdf here) failed to exemplify the courtesy and respect that Vice-Chair Priddy demands of members of the public who testify before her. Invoking the opinion of “the world’s leading experts” on bear science and management – who turned out to be a bunch of hunter-centric managers from other states that like to kill large numbers of bears – the FWC’s response to Aresco positively dripped with venomous resentment at the temerity of those who would dare to question The Greatest Scientists The World Has Ever Seen™. In an amazing moment that elicited a round of applause from a well-informed audience, Commissioner Bergeron actually apologized for this response to one of Aresco’s colleagues who had come to testify.
The Aresco letter called for serious efforts to create connectivity corridors, the establishment of bear sanctuaries in state and national forests, and a moratorium on bear hunting until more fine-grained demographic data can been collected and analyzed. It was this last argument – involving a focus on female mortality, age of first reproduction, and other details that the FWC might, at best, only possess for the large and much-studied Central Bear Management Unit (BMU) – that allowed Bergeron to demonstrate to the beneficiaries of Florida’s public trust that he actually took his role as a trustee very seriously indeed. Repeatedly stating that he represented 20 million Floridians, including those “who love animals” as well as those who have “a constitutional right to hunt,” Bergeron put on a showcase of legitimate-interest balancing. And although this was not explicitly recognized at the time, he effectively sought to re-write the FWC’s Bear Management Plan (BMP).
The BMP – a document that is transparent only to hunter-centric wildlife managers, not to members of the public who wish to know how their wildlife will be “conserved” – anticipates lethal management of bear populations in two situations: when biological carrying capacity has been exceeded in areas deemed to be “suitable habitat,” and when social carrying capacity has been exceeded in human-dominated areas. Since the larger BMUs can easily contain both types of territory, the BMP really gives the FWC two reasons to pull the trigger. The BMP sets no objective metrics to determine when biological carrying capacity might be reached in any given BMU, for the simple reason that the FWC has no idea what those “magic numbers” might be. It does, however, set measures for social carrying capacity by stating that human-bear conflict (HBC) must be kept below certain levels. The concept of social carrying capacity is problematic in many respects, not the least of which is that it ties the FWC to the indefensible assertion that hunting can reduce HBC. The best available science clearly shows that it can not – and the FWC knows that, although they persist in muddying the waters by claiming that killing bears in the forest will reduce the number of potential conflict bears swarming into the yards of defenseless suburbanites.
Bergeron’s innovative corollary to the BMP dispenses with social carrying capacity altogether, asserting that for an iconic species like the Florida black bear, hunting would only be acceptable to the people of Florida if the data available on each BMU established that biological carrying capacity had been reached. Since the FWC has no way to show this at the moment, hunting would be blocked until the science had developed to the higher standard upon which Bergeron insisted. Staff mentioned their claim that they were seeing “signs” of overcrowding – dispersal and infanticide – but knew they had no real answer. (They were probably livid. It was truly a beautiful thing to behold.) Bergeron had expressed concerns about the hunting of an icon without proper science last year, but the Aresco letter gave him a way to formalize his objection. It remains to be seen whether he will go one step further and propose a formal amendment to the BMP (and if the votes would be there to support it).
Commissioner Spottswood, who was not on the Commission when the hunt was approved in 2015 but who opposed last year’s quota in his first Commission meeting, followed Bergeron’s example (as expected) and asked for the development of better data.
Two Commissioners, then, demonstrated a real commitment to the requirement that trustees make informed choices and respect the precautionary principle in the face of uncertainty. However, neither one of them was interested in Option 4, a permanent ban on bear hunting. Bergeron – perhaps in a tactical move, but we think sincerely – stated that hunting is an important management tool that should not be taken off the table. Spottswood stated that he did not want to kick the (bloody) can too far down the road. Thus, if The Greatest Scientists The World Has Ever Seen™ find some way to satisfy Bergeron and Spottswood that there are, in fact, too many bears in the woods, then the harvest can resume. And since the amount of “suitable habitat” in Florida is constantly dwindling, their task might not be insurmountable. However, Bergeron and Spottswood might not matter in the future any more than they mattered in 2015.
Just Kill Them Already: Maximum Sustained Greed
The FWC’s current equivalent to the Four Horsemen of the Apocalypse are the three Commissioners who supported the staff’s proposal for another hunt. Commissioner Roberts – one of the state’s biggest paving contractors who owns a private quail-hunting plantation – was as eager to hunt as Bergeron was to stop it, stating before any public testimony had begun that he supported Option 2. When the time came for voting, Roberts made the motion to hunt and was quickly seconded by Vice-Chair Priddy, a woman who has become Florida’s Cruella DeVille. (Priddy makes her living by slaughtering cattle raised on the ranch she inherited in Collier County, sold access to her land in last year’s bear hunt, and is part of a consortium of developers who wish to convert a huge area of panther habitat into a new city.) Commissioner Hanas, an executive with a company that sells agricultural land to developers, provided the third vote for the hunt.
For these three Commissioners, the FWC’s science was more than good enough to justify a hunt. Vice-Chair Priddy, openly challenging Bergeron, defended the agency’s aggressive response to the Aresco letter. The public’s trust, for her, is actually a trust for consumptive users only: if there are enough animals to support a harvest, then you harvest, and you don’t think twice about the 20 million people who might want their wildlife to be left alone.
There isn’t much complexity to analyze here. But this unshakeable alliance between the greediest members of the elite and hunter-centric wildlife managers exposed a lethal concept that had not really come out in the bear discussions before. When asked about the staff’s understanding of biological carrying capacity, Diane Eggeman (Director of Hunting and Game Management) blurted out the only thing she knew and explained that maximum sustained yield occurs when a species is at about half the carrying capacity of its habitat. Not the brightest bulb in the room, Eggeman did not seem to realize that disclosing such insider concepts in a public forum full of over-emotional, anti-hunt “extremists” might not be such a good idea. Game managers want to provide their clients (hunters) with a bountiful crop to harvest each year, so they work to maximize the “recruitment” of new animals. For those who listened carefully to the FWC’s public webinars before this meeting, this concept shed a cold, clear light on the staff’s assertion that they wanted to keep bears below biological carrying capacity. In the webinar, having freely admitted that they wished to provide hunters with “an opportunity,” they claimed that this would be better for the bears. Always insincere, those claims now hover like ghouls over the bear gallows that still stand at check stations all across the state – ghouls that an outnumbered Ron Bergeron may not be able to exorcise.
Commissioner Roberts’ term ends on August 1 of this year. Commissioner Priddy’s term is up on January 6, 2017, and Commissioner Hanas (whose increasing corpulence suggests severe risk-factors for heart disease) will time out on August 1, 2017. By the time bear hunting comes back on the agenda next year, then, at least two of these three may have been replaced. But we wouldn’t count on it. Priddy was appointed by Governor Rick Scott after a chance encounter at a high-society event, and she is his kind of gal. Although Scott plans to run for a U.S. Senate seat to further his service to the Koch brothers, and needs to sell himself to the people to get there, we see no reason to expect him to deviate from his consistent pattern of appointing special-interest insiders to powerful agency positions. (One of the most notorious examples of this was his appointment to the South Florida Water Management District of an employee of the King Ranch, which owns large agricultural tracts in south Florida, after a private hunting trip on a King Ranch property in Texas paid for by lobbyists for Big Sugar. South Florida is currently experiencing horrific water pollution due to massive releases of Big Ag’s contaminated water from Lake Okeechobee.) Of course, a new occupant of the Governor’s mansion could lead to changes in the composition of the FWC, but diminishing the influence of today’s elite interests will require large-scale environmental awareness from a public that could always be distracted by some kind of cultivated fear.
For now, then, the cupidity of Florida’s ultimate consumptive users has been forced into hibernation by an unfavorable season. But this is Florida, where winter is short.
Swinging with Brian: Hoping for a “TR Moment”
When the U.S. Supreme Court is more or less evenly divided between conservative and liberal blocs, lawyers often pitch their arguments at the swing justices who can go either way. Over recent decades, Justices Lewis Powell, Sandra Day O’Connor, and Anthony Kennedy have all been inordinately important in deciding close cases of great national importance. In the last few years, Chief Justice Roberts has started to challenge Kennedy as the Court’s most important swing vote (as exemplified by the Obamacare cases). This judicial analogy remains apposite for the FWC and the many animals whose lives depend upon its decisions.
Bo Rivard, an attorney and businessman, was one of the first Commissioners to speak. Before 6/22, he had come across as something of a nonentity, never asking any meaningful questions or offering more than empty generalities. On this day, he waffled like a politician for several minutes, trying not to offend anyone, including the hunter-centric staff. Eventually, he rejected the staff’s appeal to the popularity of bear hunting in other states, noting that we had gone 21 years without it. Translation: “We’re in deep stuff if we do this again in 2016.” For us, Rivard’s testimony raises only two questions: how serious was he in saying that hunting should be considered again in 2017, and did he arrive at his “policy decision” independently?
Much as legal scholars still debate the motives of Justice Owen Roberts in 1937, we may never know for sure what prompted Bo Rivard to change his mind about bear hunting in Florida, but we suspect the Chairman had made his own “policy decision” before the meeting and needed someone else to make up the votes. Whether the Chairman was rebuffed by others or only approached the fellow lawyer is now academic; the lines on the current Commission have been drawn. Assuming that Dr. Eason and his fellow hunterologists cannot prove to the satisfaction of Bergeron and Spottswood that biological carrying capacity has in fact been reached, the fate of Florida’s bears will remain in the hands of Chairman Yablonski and Bo Rivard, for neither of them officially endorsed the Bergeron Corollary to the BMP or requested a higher standard of science. If Rivard was willing to stick his neck out for the Chairman on this occasion, he will probably do it again, with whatever waffle that future vote calls for. If this line of reasoning is correct, it all comes down to the Chairman.
Brian Yablonski has been on the FWC far longer than any of the other Commissioners and his seat is secure through 2019, after all the others must be reappointed. Just like Chief Justice John Roberts, he has many years of leadership ahead of him, and he was put in his position for several reasons. Committed to privatization, well-connected in Republican political circles (especially with the Bushes), and a corporate executive, he understands the long-term elite project. A lawyer and public-relations man, he has the smoothness and savvy that the Commission’s self-interested apex predators lack. (Can anyone imagine Aliese Priddy asking the precocious Megan Sorbo – the adorable, strident young voice of the next generation – to come up and give her a hug?) And it is clear from his many allusions to Theodore Roosevelt that he wants to carve a place for himself as a great conservationist. The FWC’s current drive to create more Critical Wildlife Areas is clearly Yablonski’s pet project, put on display at the beginning of the meeting when the audience was guaranteed to be huge. And while Aliese Priddy evidently does not care that most of Florida hates her guts, Brian Yablonski is clearly tired of being on the receiving end of so much animosity without being paid for his trouble.
Very cleverly, Yablonski did not tie himself down to any particular reason for choosing Option 3. Alluding to certain fishery issues, he simply stated that it was not unusual for wildlife managers to wait and see how existing policies were going to work out. In an attempt to prove that the FWC could listen to the public, he recognized the argument of Matthew Schwartz (the always excellent director of the South Florida Wildlands Association) that there were too many things happening at once to be able to evaluate the effectiveness of hunting. This was an important concession, for while nothing Yablonski said took hunting off the table for the future, if it can be shown that “the bear problem” has been addressed adequately through non-lethal means he may be willing to keep the hunters at bay. Wasting no time, bear activists across the state continue to lobby local governments to pass the trash ordinances that are scientifically proven to solve most conflicts with bears in neighborhoods.
We were particularly interested in the Chairman’s express denial that the Commissioners had a hidden agenda, were working for special interests, and were in it for the money. (Perhaps certain forms of criticism have penetrated the inner sanctum after all.) They were, he claimed, just doing “what they believed in.” True or not, that is the ultimate problem, for their beliefs are fully congruent with the desires of those who would consume our wild places and our wild animals. If they believe in private ownership and profitable exploitation of land instead of public ownership and conservation, if they believe that animals are resources to be harvested and used instead of sentient individuals, if they believe that the North American Model of Wildlife Conservation is compatible with the Public Trust Doctrine despite its explicit bias in favor of hunters, then the FWC will always present a danger to the public’s wildlife.
Armed with an enhanced understanding, paid for with the blood of innocents, the people of Florida must address that danger with a management plan of their own.
The FWC’s meeting on 6/22/16 was broadcast live by the Florida Channel. The recordings are here: Part 1 (Staff presentations); Part 2 (Begin public testimony); Part 3 (Conclude public testimony); Part 4 (Commissioners’ discussion and vote).
- The Court persisted in reading the Commerce Clause in a manner that blocked ambitious economic legislation at the federal level, and found a business-friendly “liberty to contract” in the Due Process Clause of the 14th Amendment to invalidate state reforms as well. ↩