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Eder v. California Dep't of Fish and Game

January 16, 2009; as modified February 4, 2009

ROBERT EDER ET AL., PLAINTIFFS AND APPELLANTS,
v.
CALIFORNIA DEPARTMENT OF FISH AND GAME ET AL., DEFENDANTS AND RESPONDENTS.



(San Francisco County Super. Ct. No. CPF 06-506862). Honorable Patrick J. Mahoney.

The opinion of the court was delivered by: Marchiano, P.J.

CERTIFIED FOR PUBLICATION

In this case we uphold the constitutionality of Fish and Game Code section 8279.1, subdivision (c), which is an important adjunct to the tri-state California, Oregon, and Washington agreement to regulate Dungeness crab fishing.*fn1

Plaintiffs Robert Eder, Bryan Randall, and Justin Yager are Oregon Dungeness crab fishermen. Defendant California Fish and Game Commission (Commission) revoked their California Dungeness crab vessel permits because they violated section 8279.1, subdivision (c) by fishing for crab in San Francisco waters and then fishing for crab in Oregon sooner than the time designated by the regulatory statute. Plaintiffs sought writ and declaratory relief, which the trial court denied.

Plaintiffs contend they are entitled to relief because section 8279.1, subdivision (c) extraterritorially regulates conduct which was lawful in Oregon, and violates the "dormant" Commerce Clause and Privileges and Immunities Clause of the United States Constitution. We reject plaintiffs' contentions and uphold the constitutionality of the statute. Accordingly, we affirm.

I. THE REGULATORY SCHEME*fn2

The Pacific Coast Dungeness crab fishery is regulated by state laws in Washington, Oregon, and California.*fn3 These laws impose a "3-S" system: commercial Dungeness crab fishing is restricted by sex (male only), size (over 6.25 inches), and season (usually opening December 1).

A tri-state Memorandum of Understanding (MOU) commits the Washington Department of Fish and Wildlife, the Oregon Department of Fish and Wildlife, and defendant California Department of Fish and Game to take mutually supportive actions to implement sound management of the Dungeness crab resource. The three states' regulations governing the crab fishery are generally consistent. There is general agreement that the regulations adequately protect the Dungeness crab resource.*fn4

The fishery subject to the tri-state MOU is divided into two zones: the northern zone, which runs from mid-Oregon north to the Canadian border; and the southern zone, which runs from mid-Oregon south to Point Arena, California, on the Mendocino Coast. The California portion of the southern zone is comprised of California Fish and Game Districts 6, 7, 8, and 9. (§§ 11014--11017.) In its written decisions to revoke plaintiffs' Dungeness crab vessel permits, defendant Commission refers to the California portion of the southern zone, which is essentially the northern coastal area of California, as "North Coast." We will use that designation.

South of the North Coast lies a separate Dungeness crab fishery, Fish and Game District 10, which is referred to in the record and by the parties as "Central Coast." Central Coast stretches from the southern boundary of Mendocino County to San Mateo County (§ 11018), and thus includes San Francisco. It is undisputed that Central Coast is not included in the tri-state MOU and is regulated entirely by California.

Central Coast opens on November 15, approximately two weeks earlier than the tri-state MOU fishery zones, to accommodate the Thanksgiving market for Dungeness crab in the San Francisco Bay Area.*fn5

The record shows that historically there has been a potential problem of an early season "race" for crabs that can result in glutted markets, fishing in unsafe conditions, and the overwhelming of crab processors leading to waste of harvested crab.*fn6 This is apparently the reason why the crab seasons of the northern zone and the southern zone (including North Coast) are coordinated to begin simultaneously on December 1.

The December 1 opening in either zone can be delayed if conditions are not appropriate for crab harvest. If the opening is delayed in one zone and not the other, fishermen who take crab from the open zone must not take crab from the delayed zone until 30 days after the delay is lifted and the closed zone opens.

This 30-day rule is enforced in California by section 8279.1. In addition to imposing the 30-day rule on the North Coast fishery, the statute also imposes the rule on Central Coast, with the apparent purpose of discouraging an influx of boats taking advantage of the earlier, November opening of crab season.*fn7

Section 8279.1, subdivision (a) provides: "No person shall take, possess onboard, or land Dungeness crab for commercial purposes from any vessel in ocean waters in [North Coast] for 30 days after the opening of the Dungeness crab fishing season in California, if both of the following events have occurred:

(1) The opening of the season has been delayed pursuant to state law in California. (2) The person has taken, possessed onboard, or landed Dungeness crab for commercial purposes, from ocean waters outside of [North Coast], prior to the opening of the season in [North Coast]."

If the crab season in North Coast is delayed, no one may fish for crab in North Coast for 30 days after the season opens if they have previously fished for crab for commercial purposes from ocean waters outside of North Coast-which would include Central Coast, which opens two weeks earlier.

Section 8279.1, subdivision (b) provides: "No person shall take, possess onboard, or land Dungeness crab for commercial purposes from any vessel in ocean waters south of the border between Oregon and California for 30 days after the opening of the Dungeness crab fishing ...


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