California Marine Reserves Collection and Fishing Regulations

Joe-Ceph

Haliphron Atlanticus
Registered
Joined
Sep 25, 2006
Messages
563
Reaction score
24
SanClementeEric;168871 said:
Invertebrates collected under the authority of a sport fishing license may not be used to establish breeding colonies for sale or trade with other people. Any trading, selling or possession for sale or trade of these animals constitutes commercial marine aquaria pet trade activity and requires all parties to hold marine aquaria collectors permits authorizing this practice
That means that you may not sell or trade an octopus (or any animal) that you collect using a sport fishing license, nor may you sell or trade any babies that come from animals collected. However, it is not illegal to give such animals away for free, as long as you don't get any form of compensation in return (money, or anything in trade). I strongly recommend against "handling fees", or "adoption" fees, or any other sneaky way to try to get around the letter of the law. If a judge thinks you received any form of compensation, even indirectly, you are in violation. I wouldn't even let anybody reimburse me for shipping because I don't want any money changing hands. If you want to give away an octopus you caught or hatched in California, and you need to ship it, I recommend you ask the recipient to set up a UPS account that you can charge the shipping to.
 

temet vince

Hatchling
Registered
Joined
Mar 23, 2011
Messages
5
Reaction score
0
Ok, so obviously anyone could catch live bimacs from California, breed them, and begin selling them as a business without getting caught, since no one can stop you from taking them home for your own use, and once they are "home", no one can prove you got them from the ocean.

But, to be completely legal, what would you do? Someone mentioned that you need a Scientific Collectors permit, but it was also mentioned that you cannot obtain said permit unless you are a teacher (basically).
The law was blatantly obvious that bimacs cannot be collected with a Marine Aquaria Collector's permit.

So is there no possible way, even with an infinite amount of starting capital, for any company to legally start breeding bimacs?

(Edit: Ok, so I should add that according to the law, you ARE able to collect O. bimaculoides, as mentioned here:

"Specifically, Section 8597(b)(2)(H) states that all species of octopus may be taken EXCEPT O. bimaculatus and O. maculoides. (note - maculoides is an error - should read bimaculoides)."

This is blatantly wrong: While the intent of the law was to protect all bimacs, the intent of a law is irrelevant, legally speaking. The law specifically protects 1. O. bimaculatus and 2. O. maculoids.

Unless the law has been updated, if this went to court, you would not be charged guilty if you were collecting and selling O. bimaculoides (following all other regulations, of course).
However, I think that after this went to court, the law would probably be changed to be more proactive, which would probably mean banning all collection of bimacs in the state of California, even with a fishing permit. So in the long run, this course of action would probably hurt everyone who ever wants to own a bimac.)
 

Joe-Ceph

Haliphron Atlanticus
Registered
Joined
Sep 25, 2006
Messages
563
Reaction score
24
This stuff can be confusing, and there are a lot of conflicting statements made, which doesn't help. I'll try to clarify:

temet vince;174731 said:
Ok, so obviously anyone could catch live bimacs from California, breed them, and begin selling them as a business without getting caught, since no one can stop you from taking them home for your own use, and once they are "home", no one can prove you got them from the ocean.
They don't need to prove you got them from the ocean. The law you would be breaking would be selling california native species without a "marine aquaria collector's permit" or "marine aquaria receiver's permit" (regardless of where you got them). And those permits specifically exclude bimacs.

temet vince;174731 said:
Someone mentioned that you need a Scientific Collectors permit
"Someone" is wrong. I can collect an octopus with a fishing license. I can then eat it, use it for fish bait, or keep it alive indefinitely, but I can't sell it, or use it for any commercial purpose.

temet vince;174731 said:
The law was blatantly obvious that bimacs cannot be collected with a Marine Aquaria Collector's permit.
So is there no possible way, even with an infinite amount of starting capital, for any company to legally start breeding bimacs?
According to a letter from DFG on the topic, I can breed them, but I can't sell the babies (but I could give them away). I think that there are places that breed them for scientific and education purposes, and I think they sell them to approved institutions (and maybe teachers), so there must be a way to get a permit to do it, at least for that market and those purposes.
If someone caught a gravid female bimac, and took her out of state, and then sold the babies while in say Texas, would it be legal? What if they bred them in Texas and sold the babies from there. It would be illegal to collect the female for a commercial purpose in the first place, so collecting her for the purpose of selling the babies would be a violation. Could you be prosecuted by Ca once you've left the state? Would selling the babies be a violation of California law, since it's not happening in Ca? I don't know The whole thing seems unethical to me, and might be illegal, and might even be actionable. It's an open question as far as I know.

temet vince;174731 said:
"Specifically, Section 8597(b)(2)(H) states that all species of octopus may be taken EXCEPT O. bimaculatus and O. maculoides. (note - maculoides is an error - should read bimaculoides)."
Yes, It's a typo, and I suspect that the judge would know that, ignore the mistake, and apply the law as if the word read "bimaculoides". I'm not a lawyer, but I strongly doubt that the wheels of justice stop turning for every typo in the code, and I certainly wouldn't challenge the law based on that typo.

I think it's more useful to point out that the section of law you quoted (8597) talks about what you are allowed, and not allowed, to take with a marine aquaria collector's permit. That section only applies to people who are collecting for the marine aquaria pet trade. It does not apply to fishermen, using a fishing license, taking animals for their own use (or to give away).

Here's how the section starts:
"8597. (a) It is unlawful for any person to take, possess aboard a boat, or land for marine aquaria pet trade purposes any live organisms identified in subdivision (b), unless that person has a valid marine aquaria collector's permit..."
It gets a little confusing when you look at the definition of "marine aquaria pet trade":
"8596. The following definitions govern the construction of this article:
(a) "Marine aquaria pet trade" means any activities connected with collecting, holding, selling, and displaying live aquatic marine life for pet, hobby, curio, or display purposes."​

Does that definition include a guy like me who's "hobby" is keeping an octopus, and "displaying" it in my aquarium at home? The answer is no, and I know that because that question was specifically asked, and answered by the DFG in the letter shown in post #23 of this thread, which says:
"1. Maintaining live sport-taken octopus in a home aquarium should not be considered "display" as used in FG sections 8596-97 re: Marine Aquaria Pet Trade. Therefore, octopus may be maintained in a personal aquarium and do not fall under the provisions requiring a Marine Aquaria Collectors permit."​

So just keep in mind that Sections 8596-8598 apply to commercial collectors, not to us. There are things we can take that they can't, including bimacs.
 

temet vince

Hatchling
Registered
Joined
Mar 23, 2011
Messages
5
Reaction score
0
Joe-Ceph;174861 said:
They don't need to prove you got them from the ocean. The law you would be breaking would be selling california native species without a "marine aquaria collector's permit" or "marine aquaria receiver's permit" (regardless of where you got them). And those permits specifically exclude bimacs.
Actually, California law prohibits the sell of wild caught bimacs, or their offspring. There is no legal way for California to ban the sell of it's native species nationwide if that species is already being raised in captivity. Unfortunately, the only way I know to obtain, breed, and sell the species without breaking the law would be to A. Find them in international waters or somewhere other than the California coastline, or B. Buy them from someone who was already breeding them in captivity before the law was passed.

But no, selling Bimacs outside of California is not illegal, unless it has been made so by either the state you are selling them in, or by federal statute. Now if the octupi that you are selling are offspring of one from California post-ban, then I am not sure, and I will need to ask one of my law professors.

Joe-Ceph;174861 said:
If someone caught a gravid female bimac, and took her out of state, and then sold the babies while in say Texas, would it be legal? What if they bred them in Texas and sold the babies from there. It would be illegal to collect the female for a commercial purpose in the first place, so collecting her for the purpose of selling the babies would be a violation. Could you be prosecuted by Ca once you've left the state? Would selling the babies be a violation of California law, since it's not happening in Ca? I don't know The whole thing seems unethical to me, and might be illegal, and might even be actionable. It's an open question as far as I know.
I would have to look into this. Assuming the individual in California gave the bimac to the Texan in good faith that the Texan was not going to commercially sell the offspring, then the Californian has done nothing illegal. As for the Texan... I don't know.

Joe-Ceph;174861 said:
Yes, It's a typo, and I suspect that the judge would know that, ignore the mistake, and apply the law as if the word read "bimaculoides". I'm not a lawyer, but I strongly doubt that the wheels of justice stop turning for every typo in the code, and I certainly wouldn't challenge the law based on that typo.
The judge can't apply law that doesn't exist. You cannot legally, nor constitutionally, charge and convict someone for breaking what you meant to say instead of what you actually said. However, to be safe, I will check on this also. I'd hate to put out wrong information. In addition, like I said, I think it would ultimately be harmful for everyone involved.

Joe-Ceph;174861 said:
I think it's more useful to point out that the section of law you quoted (8597) talks about what you are allowed, and not allowed, to take with a marine aquaria collector's permit....

....So just keep in mind that Sections 8596-8598 apply to commercial collectors, not to us. There are things we can take that they can't, including bimacs.
The reason I specifically pointed out the commercial section of the law was because that was what my post was about. Thank goodness it doesn't apply to us! :)

Thank you for your detailed response. I really value your responses; I actually followed you over here from nano-reef.com. XD. Of course, I had browsed Tonmo before, but it has been a long, long time. You are definitely more familiar with the law than I am. I just see some interesting possible loopholes with the law that I feel warrants more investigation. I'm not saying loopholes are or are not ethical, of course!
 

Joe-Ceph

Haliphron Atlanticus
Registered
Joined
Sep 25, 2006
Messages
563
Reaction score
24
temet vince;174863 said:
The judge can't apply law that doesn't exist. You cannot legally, nor constitutionally, charge and convict someone for breaking what you meant to say instead of what you actually said. However, to be safe, I will check on this also. I'd hate to put out wrong information. In addition, like I said, I think it would ultimately be harmful for everyone involved.
Oh how I wish that were true. Judges, especially in recent years, often rule what they want, even if the law clearly states the opposite. The main check on a judge is an appeal (or an election) so a judge can do just about whatever they want and only fear that their ruling will be overturned by another judge. In fact, it's considered proper by many, for judges to interpret the law based on the "intent" of the law, and not on the "letter" of the law, especially when those letters were clearly typos.
 

DWhatley

Kraken
Staff member
Moderator
Joined
Sep 4, 2006
Messages
20,662
Reaction score
1,821
Location
Gainesville, GA
California Outdoors Collecting Marine Invertebrates for a Home Aquarium August 2013

Question: What are the explicit regulations concerning the collection of live marine organisms for use in a personal marine aquarium? I am interested in collecting octopus. From what I understand, live fish are not to be taken under any circumstances. But it seems that some other organisms are allowed as long as they do not come from a protected area. I am a marine biology student who wants to have a simple native “tide pool type” of aquarium for my own personal delight. I do have a California sport fishing license. (Cristiana A.)

Answer: Octopus may be collected for a home aquarium and transported live under the authority of a sport fishing license as long as they are exclusively for that person’s personal aquarium display. Maintaining live sport-taken octopus in a home aquarium is not considered public “display” and thus does not fall under the provisions of the marine aquaria pet trade (Fish and Game Code, sections 8596-8597). Transporting live “finfish” (as opposed to mollusks and crustaceans) is prohibited (California Code of Regulations Title 14, section 1.62).

Invertebrates collected under the authority of a sport fishing license may not be used to establish breeding colonies for sale or trade with other people. Any trading, selling or possession for sale or trade of these animals constitutes commercial marine aquaria pet trade activity and requires all parties to hold “marine aquaria collectors permits” authorizing this practice. A marine collector’s permit is also required for any animals on display for the public.

People collecting live marine invertebrates for a home aquarium may do so only under the authority of a sport fishing license, and only those species allowed under a sport fishing license may be taken. In addition, any species with sport fishing restrictions (e.g. bag, size, possession, season limits, methods of take, etc.) are still covered under those regulations, and so collectors must also abide by these laws.
 

kelleyboxer

Hatchling
Registered
Joined
May 10, 2016
Messages
2
Reaction score
1
Location
arizona
I know this is an old thread, but I'm looking for some advise on a good spot in San Diego to take my son. He has a fish tank in his room and he wants to bring some plants and hermit crabs home for his tank. I know we need the sport fishing licence. I also know what we can collect. What i'm looking for is a nice spot that we can legally collect without having to drive around town all day looking for a good place. Any help would be appreciated!!
 

DWhatley

Kraken
Staff member
Moderator
Joined
Sep 4, 2006
Messages
20,662
Reaction score
1,821
Location
Gainesville, GA
Unfortunately, I can't think of any members in the San Diego area to PM as most of our California member are in the northern portion.
 

Members online

No members online now.

Latest Posts

Forum statistics

Threads
20,165
Messages
204,752
Members
8,892
Latest member
octopod

Monty Awards

TONMOCON IV (2011): Terri
TONMOCON V (2013): Jean
TONMOCON VI (2015): Taollan
TONMOCON VII (2018): ekocak

About the Monty Awards

Top