Incidental Take While Spear Fishing?

Question: What happens if a spearfishing diver spots a large fish and shoots and spears it without realizing until too late that it’s a giant (black) sea bass? Then after the fish is speared and brought to the surface, the spearfisher identifies it as a giant (black) sea bass and promptly returns it to the ocean. Has the spearfisher violated any laws?

A fisherman (angler) who catches a giant (black) sea bass while fishing for other species can argue that the take was unintentional/incidental. Could the spearfisher successfully make a similar argument? (Steve H.)

Answer: Spear fishermen are responsible for identifying their targets before they pull the trigger and can be held accountable for shooting a prohibited species. They are also responsible for ensuring that any fish they shoot meets the minimum size limit requirements for that species, again, before they pull the trigger.

According to Associate Marine Biologist Ed Roberts, a short lingcod, or illegal giant sea bass, is unlikely to survive after being shot by a spear fisherman who has the ability to select his target carefully; a short or illegal fish is much more likely to survive being hooked and released by an angler fishing from a boat, who cannot selectively target which individual fish he wishes to catch.

If a diver is unsure about the size or identity of the fish he/she’s aiming at, he/she should choose a different target. Shooting a fish that you’re unsure of could be illegal, and we believe that many spear fishermen would consider it unethical, as well.

All of these same principles also apply to hunters. No one with a rifle, shotgun, spear gun or even bow should pull the trigger unless absolutely 100 percent sure that their intended target is of legal size, species, gender, etc. An accurate (or even lucky) shot made, but with an error in judgment, isn’t worth the repercussions of breaking the very laws enacted to protect the state’s fish and game.


Do You Need a License do to Catch-and-Release Fishing?
Question: I am interested in fishing both freshwater and saltwater but plan to do only catch-and-release fishing. Will I still need a license if I’m fishing only for fun and not keeping any of the fish I catch? Thanks! (Josh)

Answer: The answer is “YES” you will need to buy a license even for catch-and-release fishing. You must have a fishing license to even engage in the act of fishing regardless of whether you intend to keep fish or not. “Take” is defined in the regulations as even the “attempt to pursue or take” a fish or animal.


Is My Residental Fishing License Still Good Even If I Moved Out of State?
Question: If I bought a California fishing license earlier in the year but then moved out of state, can I still legally fish with that resident license even if I now have an Idaho address? I’ll be coming back and forth during the year to visit family and am hoping this license will be good at least through the end of the year. (James F., Boise, ID)

Answer: Your resident California sport fishing license is valid through Dec. 31, 2008, even if you move out of state.

“Resident” is defined as: Any person who has resided continuously in the State of California for six months or more immediately prior to the date of his application for a license or permit, any person on active military duty with the Armed Forces of the United States or auxiliary branch thereof, or any person enrolled in the Job Corps established pursuant to Section 2883 of Title 29 of the United States Code (ref. Fish and Game Code Section 70).

“Nonresident” is defined as: Any person who has not resided continuously in the State of California for six months immediately prior to the date of his application for a license or permit (ref. Fish and Game Code Section 57.)

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Carrie Wilson is a marine biologist with the California Department of Fish and Game. While she cannot personally answer everyone’s questions, she will select a few to answer each week. Please contact her at CalOutdoors@dfg.ca.gov.

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