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Tuesday, January 31, 2012
Saturday Tourney: Fun but serious bay biz


Intent of stakeholders, not actual wording, is what counts with closure areas
Confusion, rewriting of regs

42 mlpa

It would have been fun to just leave well enough alone, but of course I could not. The wild ride to reality came when a WON reader and avid fisherman, whose teenage son was kicked off Zuma Beach for surf fishing last month by a warden, asked the DFG’s Ventura/Santa Barbara regional office for clarification on the new Pt. Dume/Zuma regs.


The link to all of them is pretty simple to use, clicking area-by area, maps and regulations detailed. That is, until you actually start reading the regs for each area. And you have to know what the word “take” means in the DFG dictionary. It’s not what you think, and nor is it what Webster’s says. To the DFG, it means to “pursue.” Remember that.

Link: www.dfg.ca.gov/mlpa/scmpas_list.asp

The key words on the DFG site for Pt. Dume/Zuma Beach SMCA are: Permitted/Prohibited Uses: Take of all living marine resources is prohibited except:

1.   The recreational take of pelagic finfish www.dfg.ca.gov/mlpa/scmpas_list.asp#finfish, including Pacific bonito, and white seabass by spearfishing is allowed. It doesn’t say boating is not allowed. It doesn’t say you can’t use hook and line. Or surf fish.
 
Our Malibu reader, who lives across from Zuma Beach but shall remain unnamed at his request (He’s not keen on eco terrorists) tried to call, but got no answer in Sacramento. He e-mailed the DFG director by going to the DFG website and the e-mail link. His question about Zuma was referred to Lt. Martin Wall, the area warden, and since wardens just enforce and don’t interpret regulations, he kicked it up to his supervisor at the regional office. Lo and behold, Lt. Wall said the regs for Zuma and the new SMCA closure area were indeed unclear and that surf fishing could be allowed.
 
Here’s the e-mail to our reader.
 
“It turns out that my original interpretation of the regulations was correct. In the Point Dume SMCA, hook and line fishing for the defined pelagic species is allowable; as is spear fishing for white seabass. The confusion came from different interpretations of the punctuation and related grammatical implication of the regulation as written.  Also, since the regulation does not make a distinction between angling from the shore or a boat we have to assume there is no further restriction as to where fishermen can base their activity from.
 
Remember; this clarification is only pertaining to the newly enacted MPA rules. Other regulatory entities may have or enact regulations that could affect your surf-fishing activities. Thank you for bringing this matter to my attention.”

Lt. Martin Wall

Okay, that was the DFG enforcement branch trying to make sense of one closure area’s regs. But what that “clarification” did was allow surf fishing and boating and hook and line fishing for a bunch of species. I’d been following the e-mail exchanges between our reader for over a month. I never thought surf fishing would be ok’d. It was a done deal. But was it? After fellow staffer Paul Lebowitz and I looked at the DFG website and looked at all the SoCal region closures and their regs, we just said “WOW.” As a stakeholder in the process, Lebowitz was well aware that in the SMCAs, the intent of the pro-closure folks (not his and our guys) was to keep all hook and line fishing out of those waters and off the beaches. Only spearfishing would be allowed. Why? You’ll find out in a minute. Keep reading.  
 
In this instance, the DFG interpretation seemingly opened up a Pandora’s box of chocolates for fishermen in five similarly regulated SMCA’s. Here was the wording that seemingly allowed boating, hook and line fishing and surf fishing at Abalone Cove, south La Jolla, Naples, Swami’s and Pt. Dume.  At least for pelagic finfish and Pacific bonito. Basically, if this “interpretation” stood, it would have meant we could have fished for yellowtail, mackerel, bonito, tuna, sharks and other pelagic finfish at the five closure areas. Under this interpretation, you couldn’t fish for halibut, bass, any bottomfish and white seabass would have been off limits to all but spearfishermen. Surf fishing? You’d have to release all but sharks, mackerel and bonito. That’s a basic look. That was huge, since SMCA’s are basically off-limits to hook and line. Period.
 
Ah, but then reality came.
 
I warned our WON reader in Malibu that the regional office’s interpretation was undergoing scrutiny by the Sacramento enforcement office after I stepped into the fray. I can just imagine the discussion up there in the halls of the DFG enforcement branch. “WON is going to write a story that says we are allowing boating and fishing and even surf fishing in five MPAs that are supposed to closed to all but spearfishing.” Yikes.  
 
Now, why did I stick my nose in it? Why not let Pandora’s lid flip open and let surf fisherman flood the beaches of Zuma with a “Pelagic Finfish Festival” and see how long it took for the DFG to react, shut it down and rewrite the regs. Nah, things are already messed up enough, and the law enforcement guys in Ventura and Santa Barbara were just doing their job. They were, like all law enforcement folks, looking at a regulation and trying to make sense of it. Sonke Mastrup, the executive director of the Fish and Game Commission, was the bearer of bad news by cell call.  
 
The MPA regs, he said, have to be rewritten to get to the “intent” of the law. In fact, they are being cleaned up as you read this. And is likely the reason the DFG web link to the MPA’s has been offline. Apparently not everyone can write a decent regulation. Certainly not by committee.
 
“Dentists should fix teeth and plumbers should fix sinks, but you never mix the two,” said Mastrup. “The stakeholders should never have written the regulations. If the wardens aren’t clear on the problem, then we have a problem.” Beautifully said.
 
He added, “The housekeeping to come for the south coast MPAs is currently being compiled, and will continue to be through adoption of the north coast MLPA process. Several enforcement items have been identified. For example, the regulations concerning anchoring at Blue Cavern may need revision.
 
I asked Mastrup, “So, what can you do in those closure areas?” Well, he said, you can enter the area by boat, but you have to jump out to spearfish, because that is the only method of “take” allowed to eliminate the potential for bycatch. Hence, no hook and line fishing. Of course, you can commercially net coastal pelagics off Pt. Dume and Zuma Beach. Go figure. Each new MPA’s regs will be scruitinized.   
 
“There’s no list yet,” he added. “We’re in the process of identifying problems; each week may refine the list. This is the standard pattern. When new MPAs are adopted, we bump into unanticipated issues. For instance, the National Park Service has a pier at Santa Rosa. Technically, they can’t repair it because they’d kill invertebrates and fish.”
 
Mastrup added that judgment in the field naturally varies. In any large organization, you’ll see nuances in approach. It’s human nature and the challenge of communications. The regulations are new for enforcement, too. He’d like to think it’s clear what you can and can’t do in the MPAs. But for now, it’s not.
 
They’re working on it. Meanwhile, go fishing. There’s plenty of good fishing areas.

NOTE ON LAWSUIT: The debt is at $600,000. Shocking. Worse, it will rise. The Shedd family kicked in $50,000, and the website that draws a monthly amount you choose is generating close to $20,000 a month. Impressive and a great idea. It is not enough, though. You can contribute at www.oceanaccessprotectionfund.org.

Pat McDonell is editor of Western Outdoor News and is always being asked by friends, “Can I fish La Jolla any more.” He can be reached at pat@wonews.com.

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