California Court of Appeals, First District, Second Division
Modified on Denial of Rehearing 1/3/2020.
Cal.Rptr.3d 332] San Francisco County Superior Court, Stephen
M. Murphy, Judge (San Francisco County Super. Ct. No.
[Copyrighted Material Omitted]
for Plaintiff and Respondent Dennis Sturgell: Williams
Kastner & Gibbs, PLLC, John G. Young, Theresa H. Rava; Law
Office of Michael Linscheid, Michael Linscheid, San Francisco
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.
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Dungeness crab fishing was revoked by the California Fish and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
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, 87 Cal.Rptr.3d 788 (Eder ).) A
tri state agreement commits the three states to mutually
support sound management of the Dungeness crab resource, and
the three states’ regulations for the crab industry [256
Cal.Rptr.3d 333] are generally consistent. (Id. at pp.
219-220, 87 Cal.Rptr.3d 788.)
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, � 8276; Eder,
supra, 170 Cal.App.4th at pp. 220-221, 87 Cal.Rptr.3d
788.) 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,
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, 87 Cal.Rptr.3d 788.) 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, 87
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, 87 Cal.Rptr.3d 788.) 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.) [256 Cal.Rptr.3d 334] 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.
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 ...