Sturgell v. Department of Fish & Wildlife

          As Modified on Denial of Rehearing 1/3/2020.

         [256 Cal.Rptr.3d 332] San Francisco County Superior Court, Stephen M. Murphy, Judge (San Francisco County Super. Ct. No. CPF-14-514036)

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[Copyrighted Material Omitted]

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         COUNSEL

         Attorney 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

         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.

         OPINION

         Richman, J.

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          Respondent Dennis Sturgell’s permit to engage in commercial Dungeness crab fishing was revoked by the California Fish and Game Commission (Commission) after an administrative hearing.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, 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.)

         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, 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, 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

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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 Cal.Rptr.3d 788.)

         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, 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.)^[2] [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. (c).)^[3]

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          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 ...