Helpful Links - Regs and more

[BatRay]

Since it's a pretty common thing for people to ask, I've gone ahead and linked to Fish and Game's sportfishing booklet for this year. Those are much more handy than the entire Fish and Game Code, and include regulations for spearfishing, license costs, and required stamps. Hard copies are also available at sporting goods stores at no cost for both fresh and salt water.

California Department of Fish & Game, Marine Region

More to come

 

[BatRay]

I have also linked to Oregon's Department of Fish and Wildlife page. From there, you can select the sportfishing regulations, including the amendments for 2008. There are also links to shellfish regs.

Resources: Fishing - Oregon Department of Fish and Wildlife

 

[Bill McIntyre]

Great idea. Thanks.

 

[BatRay]

Here is the most current booklet that I could find for Washington's Department of Fish and Wildlife. The booklet is available for download in the left-hand column. Rule changes appear to be quite frequent in that state. Who else has Emergency Rule Changes for every type of recreational fishing?

https://fortress.wa.gov/dfw/erules/efishrules/index.jsp

 

[Bill McIntyre]

Here is the most current booklet that I could find for Washington's Department of Fish and Wildlife. The booklet is available for download in the left-hand column. Rule changes appear to be quite frequent in that state. Who else has Emergency Rule Changes for every type of recreational fishing?

https://fortress.wa.gov/dfw/erules/efishrules/index.jsp

California doesn't change rules for every species during the year, but it does change some.

For instance, I think they shut down sheephead late every fall after the estimated take reaches a certain level. I don't shoot sheephead so it has no impact no me, but I've always thought that it wasn't right to expect someone to have computer access in order to obey the law. How else is one supposed to find out about things like that?

 

[BatRay]

It would probably require some legwork, such as contacting the Fish and Game office and asking about the status of sheephead take. Things in general have gotten more complicated and difficult to follow over time. I have seen copies of the Fish and Game code from the 1970's, those were maybe an eighth the size of the current codes.

Say, if any of you need help interpreting a code section or law, feel free to ask me. I studied criminal justice, including law, for five years, so I have a bit of practice figuring out what the law asks.

 

[Bill McIntyre]

Say, if any of you need help interpreting a code section or law, feel free to ask me. I studied criminal justice, including law, for five years, so I have a bit of practice figuring out what the law asks.

OK, you're on. These are quotes from the DFG regs.

28.90. Diving, Spearfishing. Persons who are floating or swimming in the water may use spearfishing
gear and skin or SCUBA diving equipment to take fin fish other than giant (black) sea bass, garibaldi,
gulf grouper, broomtail grouper, trout, salmon, striped bass or broadbill, except that:
(a) No person may possess or use a spear within 100 yards of the mouth of any stream in any
ocean waters north of Ventura County.
(b) When spearfishing for or in possession of federal groundfish or associated species as
authorized pursuant to sub-sections 27.25(c)(4), 27.30(c)(4), 27.35(c)(4), 27.40(c)(3), 27.45(c)(4)
or 27.50(c)(3), in an area or during a season closed to the take of these species, no fishing gear
except spearfishing gear may be aboard the vessel or watercraft.

28.95. Spears, Harpoons and bow and arrow Fishing Tackle. Spears, harpoons and bow and
arrow fishing tackle may be used for taking all varieties of skates, rays, and sharks, except white
sharks. Such gear may not be possessed or used within 100 yards of the mouth of any stream
in any ocean waters north of Ventura County, nor aboard any vessel on any day or on any trip
when broadbill swordfish or marlin have been taken. Bow and arrow fishing tackle may be used
to take finfish other than giant (black) sea bass, garibaldi, gulf grouper, broomtail grouper, trout,
salmon, striped bass, broadbill swordfish and white shark.

Section 28.90 says that we can spear anything not listed, and marlin are not listed.

Then 28.95 says that we can't have spears aboard a boat on a day when marlin have been taken.

These apparent conflicts have been the subject of arguments on Spearboard and Freedivelist. Representatives of dive clubs say that they have called and written to the DFG and received conflicting answers depending on whom they talked to.

I don't want to shoot a marlin anyway and I've passed one up in Mexico where it is legal as well as in California where its in doubt, but I'd like to know whether its legal.

And BTW, the reg says that you can't have a harpoon on board a boat on a day when a broadbill swordfish is taken, but harpoons are what commercial broadbill fishermen use to take them. I guess that can be explained by the fact that we are reading rules for recreational fishing and we would need a commercial license to harpoon a broadbill anyway, but it sure is confusing to the casual reader.

 

[BatRay]

Section 28.90 says that we can spear anything not listed, and marlin are not listed.
Then 28.95 says that we can't have spears aboard a boat on a day when marlin have been taken.

There is more than one question here: 1) is it legal to spearfish for marlin in any instance, and 2) is it legal to spearfish for marlin from a boat?

The spearfishing regulations exclude broadbill from spearfishing, but not marlin. To take section 28.90 at face value, it means it's ok to spear marlin. Enter section 28.95, which deals with Spears, Harpoons and bow and arrow Fishing Tackle and is a separate section from spearfishing. That might make it seem that they are two separate issues. However, 28.95 mentions spears. Does that include polespears, spearguns, etc? That is the crux of the matter, and the question that DFG should clarify - what is considered a spear according to section 28.95? If a speargun is legally considered a 'spear', then you may spear marlin, but not from a boat. If a speargun is not considered a spear, then it is legal to spear marlin from a boat. Section 28.90 mentions 'spearfishing gear', while 28.95 mentions 'spears' in particular. That may mean that there is a legal difference between spearfishing gear and just spears.

Bear in mind that, even if you manage to get a straight answer from DFG about what a spear is and it turns out to be perfectly legal to spear marlin, you could still run into a warden that would cite you under this code section. You could fight the ticket in court, and maybe the judge would see things your way. Maybe he wouldn't. You would have to be willing to take that chance.

And BTW, the reg says that you can't have a harpoon on board a boat on a day when a broadbill swordfish is taken, but harpoons are what commercial broadbill fishermen use to take them. I guess that can be explained by the fact that we are reading rules for recreational fishing and we would need a commercial license to harpoon a broadbill anyway, but it sure is confusing to the casual reader.

Criminal codes are so complicated that people spend 6 months studying them in the academy, and that doesn't come close to preparing them for practical application. The fishing regulation booklets are much more helpful and user-friendly than the full-size Code, but they are still confusing. Questions like this really make you think, similar to looking through the Vehicle Code to answer the question "Can you drive a tractor on the freeway?" In such cases, there is no specific code section that will answer the question. If there is no specific code forbidding it, there may still be codes that act upon the issue.

Good question, Bill. I am curious to know the answer as well and will delve more deeply into the issue. I will ask my Wildlife Law Enforcement instructor, who is a DFG lieutenant. I will also ask one of my criminal justice instructors who delights in confusing students with legal questions.

Also, page 8 of the online booklet details four separate ways to get the information on in-season changes in groundfish regulations, including two phone numbers and two internet options.

 

[Bill McIntyre]

Thanks. I too see it as a matter of what is defined as a "spear." Its just too bad that well meaning citizens who actually want to obey the law have to struggle over poorly written regulations such as these. And then the fact that DFG employees can't read the regulations doesn't help.

While I'm complaining, there is similar uncertainty over gear restrictions for lobster. We aren't allowed to use hooked devices to help get them out of holes. Is a speargun with a flopper shaft a hooked device?

A lot of guys who dive from the beach at night for lobster would like to take a gun along in case they spot a halibut, but they are not sure if its legal. They report asking DFG wardens and getting different answers. Some say the gun would be illegal, some say it wouldn't be, and others say its up to the warden.

As you said, with this and the marlin question we could just go to court if cited, but that could be an expensive way to get a determination. If I want to obey the law, it should be easier to find out what the law is.

 

[BatRay]

Unfortunately, laws are enacted at different times and not in harmony with existing laws, so the criminal codes can be very difficult to understand. To look at the marlin question again, it is hard to know what the intent of this law actually was. Was it meant to make the recreational marlin sportfishery exclusive to anglers? Taken at its most severe, that would seem to be the intent, but it would be nice of them to say so.

We aren't allowed to use hooked devices to help get them out of holes. Is a speargun with a flopper shaft a hooked device?

Section 29.80(g) says that you are not allowed to take crustaceans with anything other than your hands. Section 1.80 defines "take" as to hunt, pursue, catch, capture, kill, or attempt to do so. 29.80(g) forbids you to use anything other than your hands to take, not just remove from their holes. 29.80(g) also states that you cannot possess a hooked device while diving or attempting to dive for crustaceans, regardless of the intended usage of said device. I'm not sure which question the divers have been asking of the DFG people. My suggestion is that they isolate the issue and ask for a definition of 'hooked device'. (The definition may be in the complete Fish and Game Code. I'll look it up when I acquire a copy.) My guess is that it starts with "Anything that..." If so, you need to be very careful.

The intent of this law is obviously to prevent divers from using anything other than their hands to take crustaceans. With that in mind, it would be wise to avoid possessing anything that could be used to hook lobsters out of holes when diving or attempting to dive. The section is ambiguous on purpose, because there are countless devices that people could use for this.

Another good question, Bill. I'll do some more research on it and see if I can't get more of the spearos to weigh in.

 

[kale]

Bill,
I've never heard of anyone getting a ticket for diving for bugs and carrying a speargun with a flopper. Have you? I've asked a warden and he said as long as the bugs don't have holes in them when you come back, you're good. But I have also heard conflicting reports from other divers. I went on a liveaboard trip to the northern islands on the truth and they made a big announcement that we were not allowed to bring spears while diving for bugs. Most of the divers politely told them to shove it and brought their polespears along anyway. I think the boat was just covering their ass because they didn't want people spearing bugs and maybe someone had done that on a previous trip.
Kale

 

[Bill McIntyre]

Kale,

I don't think I've heard of a ticket either, but I don't want to be the test case. As you said, I've heard of divers getting conflicting reports for different wardens. I hate to keep beating the same drum, but if the wardens responsible for enforcing the law don't know for sure what the law says, how the hell is the average citizen supposed to know?

While I'm on this rant, here is another example. Two or three years ago, the Fish and Game Commission decided to allow boat limits. A boat limit means that if I don't take my limit, you can take your limit and the extra fish to make up my limit as long as the boat doesn't have more fish than the individual limits multiplied times the number of people on the boat.

At first I was naive and thought this applied to spearfishermen as well as rod and reel fisherman, but at the time, the Deputy Director of the DFG was a diver and a participant in the Freedivelist, so I asked him. He said it didn't apply to divers since the key word in the regulation was "anglers" and we were not anglers.

Soon after that, I was boarded by the DFG at Catalina Island, and discussed the new regulation with the wardens who boarded my boat. They thought it applied to divers too, but I told them I didn't think so. The next week I was out there again, and the same guys came over to tell me that I was right.

In this case I was safe since I knew the rules better than they did, but its still disconcerting to me that the guys in charge of enforcing the law don't know what it says.

Oh hell, one more. In the late 70s, they closed the coast from Palos Verdes Point to Dana Point for abalone for 10 years to let them replenish. It turned out that it never got opened again, but that is beside the point.

There was a spot off of Dana Point where I could almost always get my limit of four pink abs in about 40 feet of water, so I wanted to know exactly where the line was drawn. One day when I came back to the launch ramp at Dana Point a warden was checking catchs. I asked him exactly where the line was drawn, and he said it was "straight off Dana Point." I explained that when I was out off the point in a boat, there was no obvious place that could be called "the point," and that even if there was, what does "straight off" mean? In other words, I need a compass bearing. He got all huffy, and I told him that I was just trying to obey the law, but I didn't want to pass up abs that were legal. When you argue with them, they assume that you are trying to find a way to break the law rather than make sure that you are in compliance.

The next year the regulation was rewritten so that the southern boundary of the closed area was a line that extended straight off of the Dana Point breakwater. That put my abs off limits but at least is was clear and definitive. It would be nice if all the regulations could be clear.

 

[kale]

I agree Bill, it would be nice if we could easily interpret the law, or at least get straight answers from the authorities. There are a ton of grey areas, especially regarding abalone. Did you hear about the guy who got a ticket for carrying a 10inch gauge and not a 7incher even though his abs were 10+.
My best idea has been to talk to local wardens to get their point of view. I guess some poor guy will have to see a judge to get some of these things cleared up. Fortunately most wardens seem reasonable and easy to deal with. I just try to follow the spirit of the law as I understand it, and do my best to interpret the letter of the law. It is always better to error on the side of caution.

 

[BatRay]

You've got to love criminal law Much of the time, the cops would rather have clear laws because they don't enjoy getting their cases overturned. More laws are passed all of the time. It's really difficult to keep track of all of them, much less relate them to existing laws when the pieces don't quite fit. In some cases, the law is vague in order to give the officer some leeway. I'd say the instance with the abalone and the 10" gauge was not really a gray area unless the gauge was not capable of accurately measuring a 7" shell. The spirit of that law is obviously to keep people from taking abalone under 7", which is the legal minimum, but taken literally, the guy was in the wrong if he did nto have such a device. The code section does not specify that the gauge can only be 7", just that the device should be able to measure that length. However, in the spirit of the law, the warden should have noted that the abs were of the proper size and warned the guy that he needed a gauge within the specifications. A citation was a bit overkill, but I say that without knowing the particulars. Maybe the warden was new on the job, or in a bad mood, or the diver provoked him. Did the warden confiscate anything, or just issue the ticket?

 

[BatRay]

Update - I spoke to one of my instructors, who is an active DFG lieutenant. He confirmed that a speargun is indeed considered a 'spear', so no go on having spearguns on the boat when marlin is being taken. Now, you know that other wardens might have a different interpretation, but it wouldn't be a good idea to try spearing marlin off of a boat.

 

[Bill McIntyre]

That's almost funny. An acquaintance on another board is an attorney and very much involved in regulatory matters for clients, and he says "spear" means a harpoon in this case.

In any event, in that other section that says spearfishing equipment can be used to take all species except--- why isn't marlin included in that list?

 

[BatRay]

They probably left it out on accident Or, they're a bunch of sadists who said "Hmm, let's mess with the spearos...."

 

[BatRay]

Here is a link to DFG's current regs:

Hunting and Fishing Regulations

 

[Bill McIntyre]

Thanks.

I was reading back through some of our posts in this old thread, and it occurs to me that I forgot to tell one of my favorite stories that was posted on the old Freedivelist.

Two divers came out of the water with their limits of abs and were checked at water's edge by a warden. Everything was legal.

Then they walked up to a campground, and one of the guys left his abs with his buddy and went into the men's room. The warden cited his buddy for possession of too many abs.

Stories like that make me feel like abs are not worth driving about 600 miles. Its like navigating a minefield to comply with the regulations. Maybe I'd do it if I had never taken abs, but I used to get them so easily for years when it was legal down here in SoCal, so I'm jaded.

 

[BatRay]

I don't think I'd want to make that trip, either. From the sounds of that story, the wardens begin swarming when it's ab season. It sounds like more hassle than it's worth.

At the same time, I wonder about the other side of the story. When I was working as a park ranger, a family claimed that they had received a citation for fishing without a license. They said they were only showing their kids how to cast. The warden who issued the citation is a reasonable guy, and he tends to hang back and watch the situation for a while before issuing citations. I was more inclined to believe the warden.

I tend to think that, in both cases, the warden was technically right. Even with the abs, the friend was technically in possession. However, there are times to be judicious about enforcement. Perhaps instead of a citation, the warden could have waited until the second diver returned from the bathroom, or verified with the warden who checked their catch at the water's edge. At least, that's what I would have done, circumstances permitting.