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.