Sturgell v. Department of Fish and Wildlife

          San Francisco County Superior Court County Super. Ct. No. CPF-14-514036 Honorable Stephen M. Murphy Trial Judge.

          Attorney for Plaintiff and Respondent Dennis Sturgell: Williams Kastner & Gibbs, PLLC, John G. Young, Theresa H. Rava; Law Office of Michael Linscheid, Michael Linscheid

          Attorney for Defendants and Appellants Department of Fish and Wildlife; et al.: Attorney General of California, Robert W. Byrne, Annadel A. Almendras, Barbara C. Spiegel, Jonathan Wiener, Connie P. Sung.

          Richman, J.

         Respondent Dennis Sturgell's permit to engage in commercial Dungeness crab fishing was revoked by the California Fish and Game Commission (Commission) after an administrative hearing. The trial court granted Sturgell's petition for a writ of administrative mandamus and ordered the permit reinstated. The Commission and the California Department of Fish and Wildlife (Department) appeal, arguing that the trial court erred in granting the writ because the administrative hearing officer correctly interpreted the governing statute. We conclude that the appeal is moot, and dismiss it, but do so with instructions-agreed to by both sides-that the trial court vacate its decision.

         The Regulatory Scheme

         The Pacific Coast Dungeness crab fishery is regulated by state laws in California, Oregon, and Washington, regulations that restrict commercial crab fishing by sex, size, and season. (Eder v. Department of Fish & Game (2009) 170 Cal.App.4th 216, 219 (Eder).) A tristate agreement commits the three states to mutually support sound management of the Dungeness crab resource, and the three states' regulations for the crab industry are generally consistent. (Id. at pp. 219-220.)

         Crab fishing is restricted to a specified season, the opening date for which varies between the different areas into which the fishery is divided. (Fish & G. Code, ^[1] § 8276; Eder, supra, 170 Cal.App.4th at pp. 220-221.) The opening date for a given area may be delayed if quality testing indicates the crabs are of inadequate quality. (§ 8276.2.) And a vessel may not “take or land crab” in a district during any such closure. (§ 8276.3, subd. (a).)

         The first month of the Dungeness crab season is the most productive, after which the catch rate decreases quickly. “[H]istorically 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.” (Eder, supra, 170 Cal.App.4th at p. 220.) In order to ensure that smaller fishing boats in local communities maintain the benefit of resources adjacent to their shorelines, California, Oregon, and Washington all have “fair start” laws that regulate the ability of fishers to move from one area to another in years when the areas have differing opening dates. (§ 8279.1; Or. Admin. R. 635-005-0465(3); Wn. Admin. Code, § 220-52-045(2).) Eder, which upheld the constitutionality of California's fair start statute, described it as an “important adjunct” to the tristate agreement. (Eder, supra, 170 Cal.App.4th at p. 219.)

         Under section 8279.1, if a delay is ordered in a given area, fishers who have taken, possessed onboard, or landed Dungeness crab for commercial purposes from ocean waters outside the delayed area prior to the delayed opening may not “take, possess onboard, or land Dungeness crab for commercial purposes” in the delayed area for 30 days after the delayed opening. (§ 8279.1; Eder, supra, 170 Cal.App.4th at pp. 220-221.) At the time of Sturgell's alleged violation, as relevant here section 8279.1, former subdivision (c), provided, “A person shall not take, possess onboard, or land Dungeness crab for commercial purposes from any vessel in ocean waters north of the border between Oregon and California for 30 days after the opening of the Dungeness crab fishing season in Oregon or Washington, if both of the following events have occurred: [¶] (1) The opening of the season has been delayed in Oregon or Washington. [¶] (2) The person has taken, possessed onboard, or landed Dungeness crab for commercial purposes in California prior to the opening of the season in ocean waters off Oregon or Washington.” (Stats. 2011, ch. 335, § 5.)^[2] Unlike many other violations of the Fish and Game Code and regulations under it, a violation of section 8279.1 does not constitute a misdemeanor, but does result in mandatory revocation of the Dungeness crab vessel permit. (§ 8279.1, subd. (c).)^[3]

         The Legislature requires each vessel participating in the Dungeness crab fishery to have a Dungeness crab vessel permit in order to protect the fishery, by limiting the number of vessels participating in it. (§ 8280, subd. (b).) And the permitting system for commercial crab fishing is based upon legislative findings and declarations that: “the Dungeness crab fishery is important to the state because it provides a valuable food product, employment for those persons engaged in the fishery, and economic benefits to the coastal communities of the state” (§ 8280, subd. (a)); “in order to protect the Dungeness crab fishery, it is necessary to limit the number of vessels participating in that fishery to take Dungeness crab and it may be necessary to limit the quantity and capacity of the fishing gear used on each vessel to take Dungeness crab” (§8280, subd. (b)); and “to limit the number of vessels in the Dungeness crab fishery, it is necessary to require that the owner of each vessel participating in the fishery obtain and possess a permit for that vessel....” (§ 8280, subd. (c).) Each permit is allotted a specified number of crab traps based on the history of California landings receipts for that permit between November 15, 2003 and July 15, 2008. And the 55 permits with the highest landings are allotted the maximum of 500 traps, with successively lower allocations in six additional tiers. (§ 8276.5, subd. (a)(1).)^[4]

         The Facts

         Sturgell was a commercial fisher for some 48 years, having fished for crab in Washington and Oregon for 40 years or more, and in California for at least 15 years. He held Dungeness crab permits in Washington and Oregon, as well as California, and in all three qualified for the maximum tier allotment of 500 pots based on the amount of crab he had caught over the years. His boat is the Fierce Leader.

         During the 2012-2013 Dungeness crab season, specifically between November 18, 2012 and January 9, 2013, Sturgell landed a total of 203, 045 pounds of Dungeness crab in California. Oregon had delayed the opening of its season until December 2012, so Sturgell's taking of crab in California before the delayed opening of the Oregon crab fishery meant he was required to wait 30 days-until 12:01 a.m. on January 30, 2013-before taking, possessing, or landing that crab in Oregon. (§ 8279.1, subd. (a).) He was free to take Dungeness crab in northern Washington as of January 24, 2013, however, as the season had been delayed in that area due to treaty obligations to native tribes rather than crab quality. And Sturgell did so-not incidentally, after his attorney obtained approval from a Department attorney.

         On January 29, 2013, between 4:00 and 5:00 p.m., Sturgell arrived in Astoria, Oregon, near his home port, to offload the crabs he had taken in Washington. He began to offload crabs at 6:15 p.m., and between then and 11:15 p.m. offloaded 38, 295 pounds; the balance of the 64, 694 total offload was completed by 4:00 a.m. on January 30. A “Shellfish & Bait Receiving Ticket, ” indicating the “date of landing” as January 29, 2013, was signed by Sturgell and the buyer who received the crab. And, the buyer stated in a declaration, the ticket was dated January 29, 2013 because this was the date the Fierce Leader arrived at the dock, and that this was “in error” as the ticket was actually written “between 4[:00] a.m. and 5[:00] a.m. on January 30, 2013, after the offload was completed.” Further, according to the buyer, “[t]he landing occurred when Mr. Sturgell and I signed Shellfish & Bait ticket No: 4649418 between 4[:00 and] 5[:00] a.m. on January 30, 2013.” Pursuant to section 8043, a landing receipt “shall be completed at the time of the receipt, purchase, or transfer of fish, whichever occurs first.” The administrative law judge found, consistent with testimony at the administrative hearing, ^[5] that a landing receipt is signed “once the fish are offloaded.”

         The Proceedings Below

         On February 28, 2014, the Department filed an accusation with the Commission claiming Sturgell violated section 8279 in two ways: (1) illegally harvesting crab in Washington; and (2) illegally landing crab in Oregon. The first charge was dismissed. Hearings on the second charge, for illegal landing, were held on July 14 and August 5. Robert Farrell, the assistant chief for the Department, testified on behalf of it and the Commission (collectively, appellants). Sturgell testified on his own behalf, and also presented a Washington state based attorney specializing in the seafood industry and west coast fisheries.

         Sturgell testified that he would sell to “whoever pays the highest price, ” and would travel to a more distant port for this purpose as long as he would not lose too much fishing time. Over the years, he had fished in an open area and then delivered in a closed area. And to him, “landing is when you sign your fish ticket.” Sturgell was not cited by the Oregon Department of Fish and Wildlife for the delivery on January 29 and 30. Asked the value of his crab vessel permit, Sturgell testified he had not been able to find one being sold with a 500-pot allotment for a boat as large as his; the closest he had seen was for a boat 12 feet smaller than his, and based on the per foot value derived from the $350, 000 that seller was asking, he estimated his permit would be worth a minimum of $420, 000. Farrell testified that at the time of the 2014 hearing, a transferrable Dungeness crab vessel permit was worth $70, 000 to $200, 000, depending on the size of the vessel.

         After the hearing, the administrative law judge issued a proposed decision revoking Sturgell's Dungeness crab vessel permit. And the Commission ...