8230-8248
FISH AND GAME CODE
SECTION 8230-8248
8230. (a) The Legislature finds and declares that commercial salmon fishing is in the public interest and that the preservation of commercial salmon fishing directly affects the health and welfare of the public. The Legislature further finds and declares that, due to past declines in salmon stocks, the increase in the quality and value of salmon on the market, the number and types of vessels being used, the commensurate salmon fishing potential of the commercial salmon fishing fleet, and the demand for entry into the commercial salmon fishery, it is necessary and proper to limit the persons who are eligible to take salmon for commercial purposes and to regulate the amount of salmon that may be taken by restricting the number and salmon fishing potential of the vessels in the commercial salmon fishing fleet in order to preserve and rebuild the salmon resource, to protect commercial salmon fishing, and thereby to protect the health and welfare of the public. (b) The Legislature further finds and declares the following: (1) The salmon resource declined in 1983 and 1984 as a result of the most severe warm water El Nino current of this century, which caused major disruptions and hardship in the commercial salmon fishery. Habitat destruction in the rivers of California has also depleted the salmon stocks which are bred and reared in those rivers. (2) The Pacific Fishery Management Council has imposed season closures on the taking of salmon since 1982, including a total prohibition on commercial taking of salmon in 1985 along portions of the northern California coast to protect the king salmon stock from the Klamath River. In 1987, a five-year agreement was signed which allocates the king salmon stock from the Klamath River between ocean commercial and recreational users and in-river Indian and recreational users. This agreement may result in further closures. (3) Nearly 30 percent of the commercial salmon fishing vessels which were permitted to take salmon for commercial purposes in California did not record landings of salmon in the 1986 and 1987 commercial salmon seasons. (4) There are more than enough commercial salmon fishing vessels for which commercial salmon fishing permits have been issued to harvest the less than 10 million pounds of salmon that are currently available annually. With the present fleet makeup between large vessels and small vessels and between full-time and part-time fishermen, it is estimated that the present resource capacity may accommodate a fleet of not more than 2,500 permitted vessels. Therefore, no new permits should be issued until the time that the fleet size falls below 2,500 permitted vessels. Adequate provision for entry of new persons or vessels to the commercial salmon fishery is afforded by transfers of vessels for which permits have been issued and renewed and by transfers of those existing permits to vessels of the same or less salmon fishing potential. 8231. The following definitions govern the construction of this article: (a) "Agent" means the person designated in writing by the owner as the owner's representative. (b) "Appeal" means a request for reconsideration of an action of the review board, the department, or the commission pursuant to this article. (c) "Change of ownership" means the transfer of ownership of a permitted vessel to a new owner. (d) "Commercial salmon vessel permit" means an annual permit issued by the department to an owner of a commercial fishing vessel for use of that vessel to take salmon for commercial purposes and shall not be considered personal property. (e) "Fishing potential" means the capability and capacity for harvesting salmon of a particular commercial fishing vessel. "Fishing potential" includes, but is not limited to, a rating based upon factors such as size, seaworthiness, propulsion system, hold size, and hull design. (f) "Permit" means a commercial salmon vessel permit as defined in subdivision (d). (g) "Permitted vessel" means a commercial fishing vessel for which a permit is currently valid. (h) "Replacement vessel" means a commercial fishing vessel for the use of which a permit is proposed to be transferred pursuant to this article. (i) "Review board" means the commercial salmon fishing review board created pursuant to Section 8247. (j) "Transfer" means the issuance of a permit for use of a replacement vessel. 8232. It is unlawful to take or possess salmon for commercial purposes on a vessel unless all of the following conditions are met: (a) The vessel is registered with the department pursuant to Section 7881, and the owner of the vessel has a valid commercial salmon vessel permit for the use of that vessel. (b) The permit for the use of the vessel is affixed to the vessel adjacent to the department registration number unless otherwise authorized by the department. (c) The permit affixed to the vessel is visible at all times. 8232.5. (a) Except as provided in this section, it is unlawful to take salmon for sport purposes on a permitted vessel. (b) Subdivision (a) does not prohibit taking salmon for sport purposes under a sportfishing or a sport ocean fishing license, which is issued pursuant to Article 3 (commencing with Section 7145) of Chapter 1, on a vessel licensed as a commercial passenger fishing boat pursuant to Section 7920 and engaged in that business on any day when salmon are not being taken for commercial purposes on that vessel. (c) Subdivision (a) does not prohibit taking salmon for sport purposes under a sportfishing or a sport ocean fishing license, which is issued pursuant to Article 3 (commencing with Section 7145) of Chapter 1, on a permitted vessel in the Klamath Management Zone, as designated by the federal Pacific Fisheries Management Council, when the commercial salmon season is closed and after 24 hours after the time when salmon taken during the commercial salmon season are required to be landed. (d) The use of a vessel pursuant to subdivision (c) shall be considered as being engaged or employed exclusively in the taking and possession of fish or other living resource of the sea for commercial purposes for purposes of subdivision (a) of Section 227 of the Revenue and Taxation Code. 8233. Except as otherwise provided in this article, a permit shall be renewed prior to expiration. Each permit issued by the department shall display the expiration date on the face of the permit. 8233.3. Except as otherwise provided in this article, the department shall issue a permit, upon application and payment of the renewal fees pursuant to Section 8235, that is valid for the subsequent permit year, to the owner of a permitted vessel that is registered with the department pursuant to Section 7881. 8233.4. Except as otherwise provided in this article, the department shall issue a permit, upon payment of the transfer fees pursuant to subdivision (a) of Section 8239 and surrender to the department of the permit for the use of the permitted vessel, to the owner of a replacement vessel that is registered with the department pursuant to Section 7881, if the transfer has been approved pursuant to Section 8241. 8233.5. Except as otherwise provided in this article, the department shall change the designation of the holder of a permit, and with it shall go all rights, privileges, and obligations of a permit holder, including rights of renewal, upon receipt of a notice of change of ownership to a new owner of a permitted vessel upon change of ownership in the permitted vessel. A permit changed pursuant to this section is valid for the permit year during which it is issued. 8233.8. Except as otherwise provided in this article, the department shall issue a permit to the owner of a commercial salmon fishing vessel that is registered with the department pursuant to Section 7881 for the new entry of that vessel into the commercial salmon fishery if that owner is authorized to be issued a permit for the use of that new entry vessel pursuant to subdivision (b) of Section 8245. 8233.9. Section 8101 does not apply to this article. 8234. (a) The department shall not issue a permit under this article unless one of the following first occurs: (1) The applicant presents to the department a commercial fishing salmon stamp issued to the owner or an agent of the owner. No commercial fishing salmon stamp shall be presented or accepted by the department to authorize issuance of a permit under this section for more than one vessel. (2) The applicant obtains a commercial fishing salmon stamp and pays the fees for the stamp. (3) On or before April 1 of the current license year, the owner is 70 years of age. (b) The first commercial fishing salmon stamp issued to an owner, or to that owner's agent, shall be affixed to the commercial fishing license of that owner or agent. Any additional commercial fishing salmon stamps issued to the owner or the owner's agent pursuant to paragraph (1) of subdivision (a) for purposes of obtaining permits for use of additional commercial salmon fishing vessels shall be affixed to each additional vessel's registration issued pursuant to Section 7881. 8235. (a) The owner of a permitted vessel, or that owner's agent, may apply for renewal of the permit annually on or before April 30, upon payment of the fees established under subdivision (b), without penalty. Upon receipt of the application and fees, the department shall issue the permit for use of the permitted vessel in the subsequent permit year only to the owner of the permitted vessel. (b) The department shall fix the annual fee for the renewal of the permit in an amount it determines to be necessary to pay the reasonable costs of implementing and administering this article. (c) If an owner to whom a permit has been issued, or that owner's agent, applies for renewal of the permit, the application for renewal shall be received or, if mailed, postmarked, on or before April 30. An application received or, if mailed, postmarked, after April 30 shall be assessed a late fee subject to Section 7852.2. The department shall issue the permit for use of the permitted vessel in the subsequent permit year. (d) The department shall suspend a late fee otherwise due under subdivision (c) and shall issue a permit for use of the permitted vessel in the subsequent permit year if the department is unable to accept applications for renewal of permits by March 1. (e) Except as provided in subdivision (c), the department shall not renew a permit for which the application for renewal is not received, or, if mailed, is received or postmarked after expiration of the permit. 8236. (a) The department shall send a written notice of renewal and a permit renewal application to the owner of each currently permitted vessel at the most recent address of that owner in the records of the department. The notice shall be sent by first-class mail before March 1. The department shall mail a copy of the notice for renewal to all associations and groups known to the department to be representing commercial salmon fishermen. The department shall also provide blank permit renewal applications at appropriate offices of the department. (b) The notice shall include all of the following: (1) Instructions on how to apply for renewal of a permit. (2) Information on the provisions of subdivisions (c) and (e) of Section 8235. (c) Failure to receive the notice under this section does not exempt or excuse the owner from the requirement of annual renewal of the permit on or before the permit expiration date. 8237. (a) The department shall change the designation of the holder of a permit to the new owner of a permitted vessel upon change of ownership of the permitted vessel, whether the change of ownership is by contract, by operation of law, or otherwise. (b) The permit shall not be transferred to any other vessel, except by the issuance of a permit for use of the replacement vessel pursuant to subdivision (c) and Sections 8239 to 8241, inclusive. (c) The owner of the permitted vessel may seek to retire the permitted vessel from the commercial salmon fishery and apply for transfer of the permit, to be issued pursuant to Section 8241, for use of a replacement vessel. 8238. On or before January 1, 1991, the department, in consultation with the review board, shall establish and adopt, in the manner prescribed in Section 8238.3, a vessel classification system to determine the fishing potential of replacement vessels for applications for transferred permits to be issued pursuant to Section 8241, including consideration of how the vessel from which the permit is sought to be transferred was used, the vessel's highest and best use by a prudent operator, and the fishing potential of prospective vessels for applications for new, original permits. 8238.1. The vessel classification system shall be used by the department in consultation with the review board for issuance of new original vessel permits pursuant to Section 8243 and as a guideline for the review board in making its recommendations to the department on vessel permit transfers. 8239. A transfer may be approved and a permit issued for use of a replacement vessel pursuant to Section 8241 under all of the following conditions: (a) The vessel owner submits a written request for the transfer to the department on a form provided by the department and pays a nonrefundable transfer fee of two hundred dollars ($200). (b) The permit for the permitted vessel is current, and the owner of the permitted vessel makes assurances in the application that any renewal of the permit which becomes due during the application processing period will be made. (c) The owner of the permitted vessel submits evidence with the application sufficient to establish that he or she is the owner of the permitted vessel at the time of the application for the transfer. (d) The vessel owner submits evidence with the application sufficient, in the judgment of the review board and the department, to establish that the replacement vessel has the same fishing potential as, or less fishing potential than, the permitted vessel. (e) Under penalty of perjury, the vessel owner signs the application for transfer and certifies that the included information is true to the best of his or her information and belief. (f) The same transfer has not been requested within the previous 12 months or the same transfer has not previously been denied and that denial is final, unless the application or supporting information are different than that contained in the previous application, as determined by the department and after consultation with the review board. (g) The permittee has 50 percent or greater ownership interest in the permitted vessel and in the replacement vessel. For purposes of this subdivision and subdivision (h), "permittee" means an individual designated as the owner of the permitted vessel. (h) Except as provided in Section 8239.1 or paragraph (5) of subdivision (a) of Section 8246.7, the permittee has maintained a 50 percent or greater ownership interest in the permitted vessel for not less than 18 months prior to the date of the transfer and the permit for use of the permitted vessel has been maintained for that vessel and has not been previously transferred less than 18 months prior to the date of the transfer. (i) The permittee has written authority from the legal owner, if other than the permittee or mortgager, if any, to transfer the vessel permit from the permitted vessel. 8239.1. (a) Unless otherwise prohibited, the department shall accept a transfer application within one year after the date that a permitted vessel was lost, stolen, or destroyed, notwithstanding any inability to physically examine the permitted vessel to determine its salmon fishing potential. Only the permittee at the time of the loss, theft, or destruction of the vessel may apply for the transfer of the vessel permit. Proof that a vessel is lost, stolen, or destroyed shall be in the form of a copy of the report filed with the United States Coast Guard or any other law enforcement agency or fire department investigating the loss. (b) (1) The owner, or the owner's agent, may request an extension of the time to complete a transfer under subdivision (a) if the application for extension is submitted before the end of the time to submit an application under subdivision (a), or before the end of any previous extensions granted under this subdivision, whichever date is later. (2) The department, after consultation with the review board and for good cause shown, including, but not limited to, inability to find a replacement vessel or pending litigation, may grant an extension of the time to complete a transfer under subdivision (a) for a period of six months. The department may grant further extensions under this subdivision, not to exceed a total time period of five years after the date the permitted vessel was lost, stolen, or destroyed if the permit fees are paid annually as required in paragraph (2) of subdivision (b) of Section 8239 and subdivision (c) of Section 8240. 8239.2. The department, in cooperation with the review board, shall establish and implement administrative procedures for the administration of this article. 8239.6. A permit issued for the use of a replacement vessel under Section 8241 is valid for the balance of the permit year for which the permit for the use of the permitted vessel was originally issued or last renewed, and the permit issued under this section authorizes the use of the replacement vessel only for that period. 8239.9. Notwithstanding Section 8239, 8239.1, or 8239.2, any person may request the review board to determine the fishing potential of any permitted vessel or any replacement vessel before a transfer application for a permit for use of a replacement vessel is submitted to the department. The person making a request under this subdivision is not required to be the owner of either vessel. A determination under this subdivision is not binding on the review board or the department and is only advisory. 8240. (a) The department shall not issue a permit for use of a replacement vessel if the permitted vessel was reported as lost, stolen, or destroyed by fraudulent means or for fraudulent purposes. (b) The department shall not issue a permit for use of a replacement vessel if the application contains or is accompanied with fraudulent or willfully misleading information. (c) The department shall not issue a permit for use of a replacement vessel or to a new owner of a permitted vessel if the permit for the permitted vessel expires and is not renewed. Except as provided in Section 8235, an owner of a permitted vessel shall renew the permit before the expiration date even if that owner has a transfer application pending. (d) The department may refuse to issue a permit for use of a replacement vessel or to issue a permit to a new owner of a permitted vessel on any grounds for which a permit may be suspended or revoked. 8241. The department shall issue the permit for use of a replacement vessel if it determines, after consultation with the review board, the following: (a) The replacement vessel has the same fishing potential as, or less fishing potential than, the permitted vessel. The review board and the department shall consider the type of fishery the vessel was previously used in and the vessel's highest and best use by a prudent operator, and the review board shall make written findings on those facts. (b) The replacement vessel's fishing potential will not substantially increase fishing capacity over that which resulted from the operation of the permitted vessel. (c) The applicant owns the replacement vessel. (d) The conditions in this article are satisfied. 8242. A person seeking to gain entry into the commercial salmon fishery may obtain a permit under either of the following conditions: (a) By legally obtaining the ownership of a permitted vessel and notifying the department of the change of ownership of the permitted vessel. (b) By applying to obtain a new, original permit issued by the department pursuant to Sections 8244 and 8245. 8243. (a) If the department determines that the number of permitted vessels is less than 2,500, the department shall determine, after consultation with the review board, the number and vessel classification for which any new, original permits may be issued to bring the total number of permitted vessels to no more than 2,500. (b) New, original permits to be issued shall be authorized by vessel classifications established under Section 8238. 8244. (a) An applicant may apply for a new, original permit as an individual, a joint venture, or a corporation. The applicant may submit only one application annually. The application shall be made on a form provided by the department. (b) An applicant for a new, original permit under this section shall submit a completed application as directed by the department. The completed application, and the application fees prescribed in subdivision (c), shall be delivered or postmarked on or before February 1 in order to be considered for permits for the subsequent permit year. (c) The applicant shall submit with the application a nonrefundable application fee determined by the department in an amount sufficient to pay the costs of administering the issuance of new, original permits by the department, which shall be not less than thirty-five dollars ($35). (d) The department, after consultation with the review board, shall determine the fishing potential of the vessel for use of which the new, original permit is to be issued and otherwise determine if the applicant is eligible to be issued a permit under this article. 8245. (a) The department shall conduct a drawing from the applicants determined to be eligible for new, original permits pursuant to Section 8244 on the first Friday in March of each year that new, original permits are authorized to be issued pursuant to Section 8243. (b) (1) The department shall issue a permit to each of those applicants who are drawn upon payment of the fees prescribed in paragraph (2) for the permit and, except as provided in subdivision (d), submittal of sufficient information to establish that the applicant is the owner of a vessel within the vessel classification designated in the application. (2) The amount of the fees for a permit issued under this section are the same as the amount of the fees for renewal of a permit for the subsequent license year beginning on April 1 which are established pursuant to subdivision (b) of Section 8235. A successful applicant shall pay the fees for the permit on or before March 31. The department shall deposit the fees to the fund pursuant to Section 13001. (c) Except as provided in subdivision (d), a successful applicant shall submit proof of ownership of the vessel to be used under the permit within 90 days of the drawing. (d) (1) A successful applicant may request one extension of no more than 90 days to obtain a vessel as designated in the application. The department, after consultation with the review board, may grant that extension. (2) If any successful applicant does not establish that he or she is the owner of a vessel as designated in the application and affix the new permit on that vessel or on another vessel with the same or less fishing potential, as determined by the department after consultation with the board, within 90 days or by the end of a 90 day extension granted by the department, the new permit is null and void. (3) The department or the review board is not liable for any risk of failure by the applicant to obtain a vessel which is designated in an application or to complete the process for determination of the fishing potential of another vessel, or for failure by the applicant to obtain that other vessel, in the time prescribed in this section. 8245.5. The review board shall review the effectiveness of new entry provisions every three years beginning three years following the first permit drawing and make recommendations to the department for any changes it finds to be needed in the new entry system. 8246. (a) At any time after notice of an order suspending or revoking of a person's commercial salmon fishing privilege is issued by the commission, and before the order of suspension or revocation is final, the commission may, with the agreement of the person subject to the action, compromise or dismiss the action to suspend or revoke the commercial salmon fishing privilege in the best interests of the state, or the commission may compromise or dismiss the action with the agreement of the person subject to the action on terms and conditions, which may include, but are not limited to, the payment of civil damages, the reduction of a revocation to a suspension for a specified period of time, or any other terms and conditions. (b) The commission, after notice and opportunity for hearing and consultation with the review board, may suspend or revoke the commercial fishing privilege, authorized under a license issued for the purposes of Section 7850 or 7852.3, for any violation of a term or condition of an agreement to compromise or dismiss a separate suspension or revocation action which was made pursuant to subdivision (a). (c) If the commission orders a suspension or revocation of a person's commercial salmon fishing privilege, any permit issued pursuant to this article shall be renewed when the next renewal is due or the permit shall expire as provided in Section 8233. (d) Subdivision (b) does not apply if an action is brought to recover civil damages under Section 2014 from the person subject to action under this section. 8246.2. (a) The commission, in consultation with the department and the review board, shall adopt regulations for the determination of civil damages provided for in subdivision (b) of Section 8246 which give due consideration to the appropriateness of the civil damages with respect to all of the following factors: (1) The gravity of the violation. (2) The good faith of the convicted licensee. (3) The history of previous violations. (4) The damage to the fishery. (5) The cost of restoration of the fishery. (b) Civil damages imposed under subdivision (b) of Section 8246 shall be due and payable on or before a date which is 30 days after the compromise is entered into. 8246.4. The commission, after notice and opportunity for hearing and consultation with the review board, shall revoke a commercial salmon vessel permit issued pursuant to this article if the vessel permit was obtained by fraudulent means. 8246.6. A person whose commercial salmon fishing vessel permit is revoked by the commission or who has been denied a permit transfer may appeal the revocation or denial to the commission by submitting the appeal in writing to the commission within 60 days of the decision. 8246.7. (a) The commission shall reverse an order of revocation, order the permit renewed, or order the approval of a permit transfer only if it finds one of the following grounds: (1) The permittee failed to submit an application and pay the fees for renewal on or before April 30 pursuant to Section 8235 and the failure to renew a permit until after the expiration date was due to death, physical illness, mental incapacity, or being called to active military duty, and the person was not reasonably able to have an agent renew the permit. (2) A lienholder of a permitted vessel, if the vessel is the property of the lienholder as a result of foreclosure, surrender, or litigation, can show loss due to the nonrenewal of a permit by the permittee, and the nonrenewal occurred without the knowledge of the lienholder. (3) If, in the case of permit revocation because of fraud, evidence is provided to the commission disputing the charges of fraud. If the commission finds there was no fraud after consideration of all of the evidence, the commission may order the revocation annulled, and, if the permit expiration date has passed during the pendency of the hearing on the appeal, the commission may order the department to renew the permit upon payment of the fees. (4) The denial of the permit transfer was arbitrary or capricious. (5) The denial of the permit transfer was pursuant to subdivision (g) or (h) of Section 8239 and the applicant can show that the 18-month requirement cannot be met due to death, physical illness, mental incapacity, or being called to active military duty. (b) Each appeal shall be heard and considered separately on its own merits. 8246.8. The commission and the department may make and enforce regulations that may be necessary or convenient for carrying out any power, authority, or jurisdiction delegated to it under this article. 8247. There is in the department a commercial salmon fishing review board, which consists of five voting members appointed by the director. The director or a designee of the director shall attend meetings of the review board as a nonvoting member. The director may remove a member of the review board for cause. 8247.1. (a) Three of the voting members of the review board shall be owners of permitted vessels appointed by the director from lists submitted by associations or groups representing commercial salmon fishing vessel owners. (b) Two of the voting members of the review board shall be owners of permitted vessels appointed by the director from lists submitted by individual commercial salmon fishing vessel owners. (c) Any voting member of the review board may appoint an alternate member to represent him or her at any meeting of the review board. The director may, within 60 days of the appointment, refuse an alternate member. The alternate shall serve at the pleasure of the member who appointed him or her and shall have all the powers and duties of a member of the commercial salmon fishing review board, except that the alternate shall only participate and vote in meetings in the absence of the member who appointed him or her. 8247.2. The terms of the members of the review board shall be for staggered four year terms. Necessary and proper expenses shall be paid to review board members. Each member, or any alternate member participating on behalf of a regular member in that member's absence, shall receive one hundred dollars ($100) per day for each day of attendance and participation in meetings of the review board. 8247.3. Each member appointed to the review board under this article as it read prior to its reenactment in the 1988 portion of the 1987-88 Regular Session shall continue to serve for the term for which he or she was appointed and may be reappointed. 8247.4. The review board shall function as an advisory body to the department regarding implementation of the provisions of this article. The review board shall act by a majority vote of the members present and voting. The review board shall not act unless there is a quorum of the voting members, including alternate members in the absence of their appointing members, and the director or his or her designee present. 8247.5. (a) The Legislature declares that individuals appointed as members of the review board shall be chosen from the commercial salmon fishing industry in order to represent and further the interest of the industry and commercial salmon fishing vessel owners, and this representation serves the general public interest. (b) Each member of the review board is exempt from Section 87100 of the Government Code, unless the result of his or her actions taken as board members has a material financial effect on him or her distinguishable from its effect on other members of the commercial salmon fishing industry generally. 8247.6. Members and alternate members of the review board shall act in the best interest of the state, the department, and the commercial salmon fishing industry. As members of the review board, no member or alternate member shall take any action, because of his or her position, that results in a direct material effect on any of them, distinguishable from its effect on other members of the commercial salmon fishing industry. 8247.7. The director may adopt standards and criteria by regulation that shall be applied by the review board in carrying out its activities under this article. 8247.8. The review board shall do all of the following: (a) Consider and make recommendations to the department on requests for permit transfers. (b) Recommend to the department, the number and classification of new vessel permits to be issued annually, if any, pursuant to Section 8243. (c) Consult with and advise the commission as required by Sections 8246, 8246.2, and 8246.4. (d) Consult with the department and advise on the establishment of the vessel classification system pursuant to Section 8238. 8248. If any provision of this article or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of the article which can be given effect without the invalid provision or application, and to this end the provisions of this article are severable.