California Court of Appeals, First District, Second Division
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.
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Dungeness crab fishing was revoked by the California Fish and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.
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.)
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.) 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).)
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
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.) 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).)
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.
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.
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.
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,
that a landing receipt is signed “once the fish are
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.
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.
the hearing, the administrative law judge issued a proposed
decision revoking Sturgell's Dungeness crab vessel
permit. And the Commission ...