California Abalone Law Attorneys
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Abalone fishing (diving) at the treacherous Sonoma and Mendocino County Coast is also fraught with the never-ending undercover police stings that will eventually fine and jail you for any violation of California Code of Regulations, Title 14, Fish and Game Subdivisions.
The California Supreme Court decided that warrant-less searches of vehicles are acceptable in circumstances where there is an “overriding concern” that outweighs a citizen’s Fourth Amendment right to protection against unlawful search and seizure. The court ruled that “conservation” amounts to such a concern, thus placing the value of “conservation” above the value of one of our most basic civil rights.
In 2009, there were several big abalone busts at both the Sonoma County and Mendocino County coasts. In one such sting, 11 members of a suspected abalone poaching ring were arrested on the Mendocino Coast. The 11 men and women arrested in that case were suspected of taking the abalone for commercial purposes because of the quantity involved according to Mendocino County District Attorney, Tim Stoen. Under state law, when an accused is caught with more than 12 abalone, the assumption is that the abalone is intended for commercial sales, and the penalty and fines are staggering. Oftentimes felony charges are filed against each member of the fishing group, and the new bail schedule could mean a $50,000 bail just to get out of jail! Abalone divers are legally only allowed three abalone per day. The annual total is 24.
Oftentimes, abalone divers are charged with the following violations of the law:
Taking excessive numbers of abalone
Taking undersized abalone
Refusing to display their tags
Using the tags of others
Since 1993, Fiumara & Milligan Law, PC has handled most California Fish and Game violations which are either charged as a misdemeanor or a felony. Some of the most common violations are listed below:
Abalone divers are often cited on a violation of 29.16(b)(2) of the California Code of Regulations. In most cases these are charged as misdemeanors, but if the numbers are great, a felony charge is not out of the ordinary. In a typical 29.16(b)(2) misdemeanor charge, the abalone diver is cited with unlawfully possessing an abalone with a tag that was not filled out. Under the strict code requirement, the cardholder (or in this case the diver) shall fill in the month, day, time of catch and fishing location on the abalone tag; remove and completely detach the tag from the card; and affix it to the shell of the abalone. If the abalone diver fails to complete any one of these requirements, he or she faces a misdemeanor charge and a stiff fine.
The second most common violation that Fiumara & Milligan Law, PC has handled is violation of Section 29.16(b)(3) of the California Code of Regulations (a misdemeanor) accuses the diver of not having an abalone tag that was fastened to the abalone as required. The regulation states emphatically that, “The tag shall be securely fastened to the shell of the abalone. To affix the tag, a ‘zip tie,’ string, line or other suitable material shall be passed through a siphon hole on the abalone shell and through the tag at the location specified on the abalone tag.”
The third most common violation abalone divers face is violation of Section 29.16(d) of the California Code of Regulations, usually a misdemeanor. Here, the diver is accused of not recording prior activity on his or her Abalone Report Card. The requirement is: All individuals, including divers, must have an Abalone Report Card in their immediate possession while fishing or taking abalone. Individuals must complete and return the card pursuant to another harsh set of regulations in this section. Under the above section, 29.16(d), the tag of prior activity is very specific: (A) All tags must be accounted for at all times by the entry of a record on the Abalone Report Card corresponding to all tags that are not in possession; (B) Any tag that is lost or destroyed shall be recorded as such on the corresponding line on the Abalone Report Card; (C) Any tag that you may have inadvertently removed and is still in your possession shall be recorded as void on both the tag and the corresponding line on the Abalone Report Card.
If these specific regulations are not followed to the letter, then an arrest is eminent. This is especially true along some parts of the Sonoma County Coast where homeowners groups who do not appreciate tourists visiting their areas are vigilant in seeing that the local officials, wardens and law enforcement enforce the letter of the law even if it means immediate arrest or citation to appear in court!
The Fish and Game Wardens will cite you if you possess an abalone with a tag that was not filled out, if that tag was not fastened to the abalone as required and if you do not record your prior activity on your Abalone Report Card. For this, you could rack-up three misdemeanor charges and potentially face thousands of dollars in fines and a criminal record on top of that! Please keep in mind that the tagging needs to be accurately and precisely done in the manner that is prescribed above. In addition to the “zip tie” and string and line passed through a siphon hole, you must do the following:
According to the regulations, tags should be used in sequential order, and shall not be removed from the report card until immediately prior to affixing to an abalone. Any tags detached from the report card and not affixed to an abalone shall be considered used and therefore invalid.
Further, the regulations go on to state that no person shall possess any used or otherwise invalid abalone tags not attached to an abalone shell. These abalone tags must be left affixed to the shell, including while stored at a residence or non-transient location, until the abalone is processed for immediate consumption. These strict regulations are vigorously enforced and violators are fully prosecuted!
In one case that Fiumara & Milligan Law, PC recently handled, one individual was charged with California Code of Regulations Sections 29.16(b)(2), 29.16(b)(3), and 29.16(d), all misdemeanors. After more than half a dozen court appearances and lengthy negotiations with at least two assistant deputy district attorneys, and before two Sonoma County superior court judges a disposition was finally reached to dismiss all three charges.
The accused had to show proof of contributing to an abalone restoration organization as designated by the district attorney. This favorable disposition of the case was reached after the abalone diver agreed to give up her fishing and abalone license for a short period of time to show proof of no additional or new Fish and Game violations. Settlement negotiations are further helped along if counsel could show that the abalone diver does not have any past Fish and Game, abalone or other fishing violations on his or her record.
Every case gets settled based on its unique facts, case by case. However, the best results are in abalone cases achieved by good investigative work, negotiations and a threat of a trial, with the right kind of advocacy and conscientious environmental perspective.
Please contact Fiumara & Milligan Law, PC today at 707-571-8600 OR 415-492-4507 for more information regarding Abalone Law in California.
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