People v. Zankich

Opinion

After a certification by the Appellate Department of the Superior Court for Ventura County under rule 63(a), California Rules of Court, we ordered this appeal from the Municipal Court of Ventura County transferred under rule 62(a). The superior court stated as the important point making transfer appropriate “whether sections 8180 et seq. of the Fish and Game Code, and specifically section 8181 [by their terms], declare the waters of the State . . . open to the taking of anchovies for any purpose or whether the taking of anchovies for reduction purposes can be regulated by the Fish and Game Commission as it has purported to do in title 14, section 147(a)-6-B of the California Administrative Code.”

It appears that the regulation of fishing for reduction purposes^[1] was first instituted in Statutes 1919, chapter 551, section 5, page 1204, followed by Statutes 1921, chapter 340, section 1, page 459. The Fish and Game Code of 1933 contained section 1068 on this subject. In 1957, as part of an overall revision of the Fish and Game Code,^[2] without substantive change, this section became sections 8075 through 8080. Section 8075 reads as follows: “The commission may grant a permit, subject to such regulations as it may prescribe, to take and use fish by a reduction . . . process.”

Section 8076 reads as follows: “No reduction of fish shall be permitted which may tend to deplete the species, or result in waste or deterioration of fish.”

Section 7701 reads in part as follows: “The commission may regulate . . . commercial fishermen, . . . insofar as necessary ... to prevent . . . waste of fish.”

Section 7708 provides in part as follows: “The commission may make and enforce such regulations as may be necessary or convenient for carrying out any power . . . conferred under this article.” (Art. 2 [general provisions] of part 3 [commercial fishing] containing § § 7700 through 7708.)^[3]

In 1953 section 747 of the Fish and Game Code was made into law by the state Legislature. (Stats. 1953, ch. 1065, § 1, p. 2548.) In 1957, without substantive change, this section became sections 8180 through 8189. (Stats. 1957, ch. 456, pp. 1437-1438.) Section 8180 reads as follows: “In any district or part of a district lying south of a line drawn east and west through Point Mugu, anchovies may be taken in any quantity for bait or for human consumption in a fresh state, or, by contract with the department, for hatchery food, not to exceed 500 tons per year.”

Section 8181 reads as follows: “Anchovies taken south of that line in waters not less than three nautical miles from the nearest point of land on the mainland shore, and anchovies taken north of that line in any waters, may be possessed, transported, sold, or otherwise dealt with in any district or part of district south of that line.”

Prior to the time of this enactment, under the authority granted by old section 1068, the commission had promulgated certain rules, with the nature of which it is to be presumed the Legislature was familiar. They dealt mostly with sardines, a variety of fish obviously then catching the attention of officials concerned with a management of the state’s fish resources consonant with the best interests of the people. Some regulations

In 1965 a regulation was promulgated by the commission pertaining to the taking-of anchovies for reduction purposes which was much like that now under consideration. In August 1968 the regulation was put in the form that it was in when Zankich became involved with the authorities. (Cal. Admin. Code, tit. 14, Register 68, No. 29.) It was designated as section 147(a)-6-B of title 14 of the Administrative Code and reads in part as follows:

“147. Granting and Issuance of Permits to Take and Use Anchovies by a Reduction Process.

“The following shall constitute the regulations under which permits may be issued for the take and use of anchovies for reduction:

“(a) Permits to.Take Anchovies

“(6) Permit Areas

“(b) Southern Permit Area. Subject to the zoning limitations noted below, the total tonnage for this area shall be 65,000 tons per season. The area shall include the waters of the Pacific Ocean between the United States-Mexico International Boundary and a line extending due west (true) from Point Conception. Anchovies taken under the provisions of these regulations may be taken in all waters of southern permit area described above, with the following exceptions: Within three miles of the mainland shore south of Point Conception and in all districts or portions of districts where and at such times as the use of round-haul nets is prohibited.”

There are then some subparagraphs setting out certain geographically described zones and their part of the tonnage limitation. For instance, in zone 1 (generally Point Dume south to Catalina Island thence to Dana Point) the tonnage was set at 25,000; in zone 2 (generally, from Dana Point at an angle 12 nautical miles from the mainland shore and thence southeasterly to the United States-Mexico International Boundary and then back to the mainland) the tonnage was set at zero, and in zone 3 (all waters in southern area not in zones 1 and 2) it was set at 40,000 tons.^[5] Subparagraph (A) of paragraph 6 deals with the northern permit area which runs from Point Conception north to the California-Oregon border, and the tonnage is set at 10,000 per season. Subparagraph (A) further provides that anchovies may be taken in all waters of the northern permit area with certain specified exceptions within certain numbered districts

The facts concerning the apprehension and charging of Zankich were set forth in a settled statement on appeal as follows:

“On . . . October 21, 1969, . . . defendant, a commercial fisherman [with permit^[7] ] took anchovies for reduction purposes within three miles of the mainland shore of the County of Ventura, north of Point Mugu and south of Point Conception. . . .”

It is somewhat difficult to discern what the intent of the Legislature was in passing sections 8180 and 8181, but at least we are satisfied that it was not to impliedly emasculate the delegation it had made to the commission under sections 8075, 7701 and 7708 of the power to regulate the taking of anchovies for reduction, by indirectly providing by a statute that south of Point Mugu to Mexico within three miles of the shore no anchovies could be taken for reduction purposes but that outside the three-mile limit and north of Point Mugu to Oregon anchovies could be taken for reduction purposes without any limitations whatsoever.

As indicated by sections 7704 and 7707, which in effect, provide that the use of fish in violation of section 8075 et seq., or in violation of any regulation of the commission constitutes a nuisance, and by certain language in Bayside Fish Flour Company v. Gentry, 297 U.S. 422 , 428 [ 80 L.Ed. 772 , 776, 56 S.Ct. 513 ], it is known that the use of fish for reduction purposes is not favored, and that the purpose of the legislation is" to conserve for human food the fish found in the waters of the state. As to the latter and to the same effect see People v. Monterey Fish Products Co., supra, 195 Cal. 548 , 557, stating that the public policy of the state “aims at the protection and conservation of food fish for the benefit of the present and future generations of the people of the state and the devotion of such fish to the purposes of human consumption.” We also see that the Legislature with the aid of the commission had and has established a comprehen

One interpretation for section 8180 would be that it limits what the Fish and Game Commission could regulate as to the taking of anchovies for human food, bait, and hatchery food within the three-mile limit south of Point Mugu (i.e., commercial fishermen could take fish for human food and bait in unlimited quantities and for hatchery food in the amount specified, and there could be no curtailment of these allowances by commission regulations) with all other areas being left to regulation and control by the commission. In 22 Ops.Cal.Atty.Gen. 96, it is noted that originally the wording of the first portion of the proposed enactment was that in the area, “lying south of Point Arguello, anchovies could be taken or possessed only for bait or for human consumption” (italics added); that after an amendment was added allowing the use for hatchery food up to 500 tons and a second amendment removing the words “or possessed” and setting up the wording of what became section 8181 was put in, a final amendment was made striking out the word “only” and adding in lieu thereof the words “in any quantity.” This may have been done simply to make clear the distinction between taking for bait or human consumption and taking for hatchery food, but, in another sense, it very definitely changed the meaning of the section which originally seemed to indicate, by saying that anchovies could be taken only for food for human consumption, bait, and hatchery food, a prohibition against taking for any other purpose. This might have lent a little more credence to the thought that unlimited taking was contemplated in the other areas. Removing the word “only” and inserting the words “in any quantity” would suggest a revised intention to allow controls by commission regulation as to other purposes rather than a complete prohibition by statute.^[8]

Section 8181 seems to be limited to the matter of bringing fish taken outside the three-mile area south of Point Mugu into that area: for example, bringing fish taken for reduction purposes, if such taking were not prohibited by regulation, from outside the three-mile limit into the three-mile limit area south of Point Mugu on the way to a reduction plant adjacent thereto, even though the taking for reduction purposes in that area were totally prohibited; or bringing fish taken for hatchery food outside the three-mile area into it, even though this would bring what was taken within that area above the 500 tons.^[10]

To construe sections 8180 and 8181, as Zankich would have it, so as to invalidate the commission’s regulations would be to render section 8075 et seq., inapplicable to anchovies taken in any waters of the state north of Point Mugu, both in the southern and northern sectors set up in the regulations.

Zankich appears to argue at one point that the commission’s regulations, in- effect, formulate a new fish and game district, a thing the commission is not empowered to do. There is no merit to this suggestion. The regulations, of course, treat only with anchovies and with the taking of them for reduction purposes. The commission simply made regulations which applied in parts of two districts.^[11] The Constitution itself appears to author