Amendments to Fish and Game Code Sections 12002.3, 12006.6 and 12009
Throughout much of the world abalone fisheries have been unsustainable and stocks have collapsed. Some of these declines occurred despite fishery management and government oversight. Abalone are long-lived, slow growing and may not successfully reproduce every year making them uniquely vulnerable to over fishing.
California's last remaining viable abalone population is on the north coast. Although a small commercial abalone fishery existed there briefly during WWII, by the 1960's scientists warned that the area contained insufficient habitat to support commercial fishing. During the ensuing decades managers heeded this advice and did not open the north coast to commercial take. Unfortunately an illicit commercial fishery has existed there for some time. This takes several forms. Some people use SCUBA gear or surface supplied air on equipped dive boats and take hundreds of abalone at once. These cases typically involve two or three people and can therefore be readily prosecuted as felony conspiracies. Such cases are relatively few. Far more common are people who repeatedly sell their daily sport limit of three. These cases invariably involve a web of friends and associates and are more difficult, often impossible, to prosecute as conspiracies. By conservative estimates these people supply the black market with thousands of abalone every year.
Commercial exploitation of north coast red abalone could deplete the stocks to the point of population collapse. As the black market price for a single red abalone approaches one hundred dollars, only incarceration can dissuade those intent on exploiting an incredibly fragile resource. Current law does not provide punishment commensurate with such egregious conduct. If California's abalone are to be protected, courts must be given greater latitude when sentencing the most serious offenders.
Amend Fish and Game Code sections 12002.3, 12006.6 and 12009 to make taking and selling wild abalone a felony/misdemeanor.
12002.3
(a) Notwithstanding any other provision of law, a violation of Section 7121 for the sale, purchase, or receipt of fish taken by a person required to be licensed pursuant to Section 7145 is punishable by a fine of not less than two thousand dollars ($2,000) nor more than seven thousand five hundred dollars ($7,500), except as provided in subdivisions and (b) and (c).
(b) If the violation in question involved the illegal sale or purchase of abalone taken by a person required to be licensed pursuant to Section 7145, the violation is punishable by both of the following:
(1) Imprisonment in the state prison for sixteen months, two years or three years or imprisonment in county jail for not more than one year.
(2) A fine of not less than fifteen thousand dollars ($15,000) nor more than forty thousand dollars ($40,000).
(c) If the violation in question involved a person who knowingly purchased or received for commercial purposes, fish taken by a person required to be licensed pursuant to section 7145, the violation is punishable by a fine of not less than seven thousand five hundred dollars ($7,500) nor more than fifteen thousand dollars ($15,000).
12006.6 Notwithstanding Section 12000 or 12002.8, and in addition to Section 12009, and notwithstanding the type of fishing license or permit held, if any person is convicted of a violation of Section 5521 or 5521.5, and the offense occurs in an area closed to the take of abalone for commercial purposes, and the person takes or possesses more than 12 abalone at one time or takes abalone in excess of the annual bag limit, that person may be punished by imprisonment in the state prison for sixteen months, two years or three years or imprisonment in the county jail for not more than one year and shall be punished by all of the following:
(a) A fine of not less than fifteen thousand dollars ($15,000) nor more than forty thousand dollars ($40,000).
(b) The court shall order the department to permanently revoke, and the department shall permanently revoke, the commercial fishing license and any commercial fishing permits of that person. The person punished under this subdivision shall not, thereafter, be eligible for any license or permit to take or possess fish for sport or commercial purposes, including, but not limited to, a commercial fishing license or a sport fishing license. Notwithstanding any other provision of law, the commercial license or permit of a person arrested for a violation punishable under this section may not be sold, transferred, loaned, leased, or used as security for any financial transaction until disposition of the charges is final.
(c) Any vessel, diving or other fishing gear or apparatus, or vehicle used in the commission of an offense punishable under this section shall be seized, and shall be ordered forfeited in the same manner prescribed for nets or traps used in violation of this code, as described in Article 3 (commencing with Section 8630) of Chapter 3 of Part 3 of Division 6, or in the manner prescribed in Section 12157.
(d) Not less than 50 percent of the revenue deposited in the Fish and Game Preservation Fund from fines and forfeitures collected pursuant to this section shall be allocated for the support of the Special Operations Unit of the Enforcement Branch of the department and used for law enforcement purposes.
12009
(a) Notwithstanding Section 12000, and except as provided in Section 12006.6, the punishment for a violation of any provision of Section 5521 or 5521.5, or any regulation adopted pursuant thereto, or of Section 7121 involving abalone, is a fine of not less than fifteen thousand dollars ($15,000) nor more than forty thousand dollars ($40,000) and imprisonment in the state prison for sixteen months, two years or three years or imprisonment in the county jail for a period not to exceed one year. The court shall permanently revoke any commercial fishing license, commercial fishing permit, or sport fishing license issued by the department. Any vessel, diving or other fishing gear or apparatus, or vehicle used in the commission of an offense punishable under this section, shall be seized and shall be ordered forfeited by the court pursuant to subdivision (c) of Section 12157. Notwithstanding any other provision of law, the commercial license of any person arrested for a violation punishable under this section may not be sold, transferred, loaned, or leased, or used as security for any financial transaction until disposition of the charges is final.
(b) Notwithstanding any other provision of law, the money collected from any fine or forfeiture imposed or collected for the taking of abalone for any purpose other than for profit in violation of this article or any other provision of law shall be deposited as follows:
(1) One-half in the Abalone Restoration and Preservation Account.
(2) One-half in the county treasury of the county in which the violation occurred.
Pro
Because California's north coast abalone have withstood limited commercial exploitation thus far does not mean they can do so indefinitely. Abalone are long lived and require sufficient densities to reproduce. As a result, catch data and population surveys can remain apparently stable until the point of collapse is reached. Every effort should be made to thwart any commercial exploitation.
Based on years of investigation and prosecution, less than one dozen people per year are projected to receive prison sentences as a result of this legislative change. As the state prison population is currently 165,000 inmates, this number is statistically insignificant.
Con
California's north coast abalone have tolerated commercial exploitation without collapse.
Wildlife crimes do not rise to the level of felonious conduct. Prison space should be reserved for those who endanger human life.
Proponents
Recreational abalone divers and the coastal businesses they sustain generally support laws created to protect the viability of the fishery, especially when the laws do not reduce recreational opportunities or discourage participation in the sport. This proposal affects only those who unlawfully take or sell abalone for commercial purposes. Recreational abalone divers will see no effect.
Opponents
Those who are concerned about the state's burgeoning prison population might oppose the creation of additional felony statutes.
The State Department of Corrections could conceivably see a very slight increase in prisoner population.
This proposal affects the punishment of people whom the Department of Fish and Game will investigate regardless. This proposal can conserve limited resources of DFG's Enforcement Branch. Fiscal impact to the state corrections system is negligible.
No immediate fiscal impact, however; collapse of abalone stocks and /or closure of the recreational abalone fishery would result in the loss of tens of millions of dollars to the tourist economies of coastal communities.
Amended by Statutes 2000 Chap. 388