ELR Citation: ELR 20053
No(s). 84-5722 (11th Cir. Nov 15, 1985)

The court holds that fishermen have no vested third-party beneficiary property rights in commercial fishing in Everglades National Park, that the National Park Service (NPS) was not estopped from enforcing regulations prohibiting commercial fishing, and that the NPS did not act arbitrarily and capriciously in prohibiting commercial fishing. The court first holds that there was no contract between the state of Florida and the United States to not prohibit commercial fishing in the park in exchange for the land, and that plaintiffs therefore have no third party beneficiary rights. Plaintiffs' claims regarding such a contract are based on various representations by NPS officials, none of which can fairly be read as promises that the Service would never prohibit commercial fishing in the park. Plaintiffs also rely on a state statute providing that the state shall not sell water bottoms without reserving the "absolute right to fish." Even if the state law did give plaintiffs an absolute right to fish, the statute would not prohibit the state from exercising its conservatory, regulatory function, and the federal government would have the same power to regulate as the state's successor in interest to the land. The court next holds that estoppel does not apply. The representations made by NPS officials were not promises that commercial fishing would never be prohibited, nor would it be reasonable for plaintiffs to rely on such representations given NPS' conservation function. Lastly, the court rejects plaintiffs' claim that the regulations were arbitrary and capricious because they represent a departure from established NPS policy. The rules in question do not represent the first time commercial fishing has been regulated in the park. They are a valid exercise of NPS' authority to protect public resources and are supported by the administrative record.

[The opinion from the lower court appears at 14 ELR 20917.]

Counsel for Plaintiffs
Douglas M. Halsey
Thomson, Zeder, Bohrer, Werth, Adams & Razook
1000 SE Bank Bldg., Miami FL 33131
(305) 350-1100

Counsel for Defendants
Michael J. Mitchell, Ass't U.S. Attorney
155 S. Miami Ave., Miami FL 33130
(305) 350-4471

Counsel for Intervenors
E.S. Corlett III
Corlett, Killian, Hardeman, McIntosh & Levi
116 W. Flagler St., Miami FL 33130
(305) 377-8931

Before HILL, ANDERSON, and GARZA,^* Circuit Judges.