Photographing No-take Species

February 10, 2011

Question: I fish in Southern California and have a question about black sea bass. I know they are illegal to keep when caught. However, when they are caught while targeting other species, what is the regulation for releasing them? After the hook is removed and swim bladder punctured, may a picture be taken with the fish out of the water before it is released? I am under the impression they may not be removed from the water. I ask because a friend of mine accidentally caught a small black sea bass (about 30 lbs.) and after removing the hook and puncturing the swim bladder, he held it up and posed for a quick picture with the fish. I told him I didn’t think that was legal and he argued it was. He did release the fish immediately after the photo was taken, and the fish swam off, apparently unharmed. I’ve searched the website for clarification, but have found nothing. Can you please clarify this issue for me? We are very conscientious fisherman. (Dave L.)

Answer: Giant (black) sea bass and other no-take species cannot be retained and must be released immediately. Therefore, holding the fish out of the water for a picture is unlawful. The best case scenario for the fish would be to cut the line while it is still in the water.

The definition of “take” is to “hunt, pursue, catch, capture or kill” an animal, or to attempt to do so (California Code of Regulations Title 14, section 1.80). So, by catching the fish, reeling it in, taking it off the hook and holding it up for a picture, your friend has “taken” a prohibited species. He also did not release it immediately as required.

Department of Fish and Game (DFG) Associate Marine Biologist Ed Roberts published a great article on best practices for releasing rockfish, giant sea bass and other fish with swim bladders that inflate at the surface, thus preventing them from descending successfully following capture. The article was published in the January/February 2005 issue of Outdoor California magazine, available online at http://www.dfg.ca.gov/ocal/archives/J_F_05_16-19.pdf. There’s also a very informative brochure regarding how to relieve barotrauma in fish brought up from the deep that’s available online at http://www.dfg.ca.gov/marine/pdfs/release.pdf .

Needles and sharp objects should never be used to deflate a fish’s swim bladder. Even though the fish may be able to descend below the surface following a puncture, many will still die due to internal damage and/or the introduction of bacteria caused by the needles.

Those links are not there at DFG so. still need air bladder information

Some good info on barotrauma and easy techniques to safely release rockfish ... http://www.westcoast.fisheries.noaa.gov/publications/fishery_management/recreational_fishing/rec_fish_wcr/bring_that_rockfish_down.pdf

Giant (black) sea bass and other no-take species cannot be retained and must be released immediately. Therefore, holding the fish out of the water for a picture is unlawful. The best case scenario for the fish would be to cut the line while it is still in the water.

The definition of “take” is to “hunt, pursue, catch, capture or kill” an animal, or to attempt to do so (California Code of Regulations Title 14, section 1.80). So, by catching the fish, reeling it in, taking it off the hook and holding it up for a picture, your friend has “taken” a prohibited species. He also did not release it immediately as required.

And this is why AOTY only allows species and sizes that you can legally "take".

-Allen

Thanks for the clarification Allen.  What other fish species are covered by the no take restriction?  No take and no retention aren't the exact same thing.

Thanks for the clarification Allen.  What other fish species are covered by the no take restriction?  No take and no retention aren't the exact same thing.

For the purposes of taking a picture, we erred to the side of caution, so neither "no take" and "no retention" species are allowed.  If you couldn't have legally take that fish home with you (regardless of whether you actually released it), it's not allowed.

-Allen

Not convinced that she is right. If it's an ESA fish, sure. No harassment means don't take it out of the water. But non ESA fish, it's quite a stretch for photograph = take.

Not convinced that she is right. If it's an ESA fish, sure. No harassment means don't take it out of the water. But non ESA fish, it's quite a stretch for photograph = take.

I've had a game warden describe it to me as this ... removing a fish from the water qualifies as "capture" which is defined explicitly as a "take" under DFW rules. Likewise, not being "immediately released" goes against DFW code as well.

An example would be an oversized white sturgeon; while its not an ESA species, you can be be ticketed and fined for removing one from the water for a photograph before release. Not saying that it happens a lot (just look at the morons on YouTube that drag them all over the levee for pictures before releasing them), but wardens are within the law to issue a citation.

Not convinced that she is right. If it's an ESA fish, sure. No harassment means don't take it out of the water. But non ESA fish, it's quite a stretch for photograph = take.

I've had a game warden describe it to me as this ... removing a fish from the water qualifies as "capture" which is defined explicitly as a "take" under DFW rules. Likewise, not being "immediately released" goes against DFW code as well.

An example would be an oversized white sturgeon; while its not an ESA species, you can be be ticketed and fined for removing one from the water for a photograph before release. Not saying that it happens a lot (just look at the morons on YouTube that drag them all over the levee for pictures before releasing them), but wardens are within the law to issue a citation.

If that was true then 27.90(e) would be unnecessary. Since it's in the regs, it's fair to surmise that other fish that you are not allowed to "take" can be removed from the water.

In law, we try to give the legislating body the benefit of the doubt and assume that I they say something, it isn't meaningless or superfluous.

Sometimes when barotrauma is not an issue, you have to resuscitate a fish to release it successfully. If you pop the hook and they are belly up, chances are they aren't going to make it without resucitation. During that time, and in water photo can be taken.

Not convinced that she is right. If it's an ESA fish, sure. No harassment means don't take it out of the water. But non ESA fish, it's quite a stretch for photograph = take.

I've had a game warden describe it to me as this ... removing a fish from the water qualifies as "capture" which is defined explicitly as a "take" under DFW rules. Likewise, not being "immediately released" goes against DFW code as well.

An example would be an oversized white sturgeon; while its not an ESA species, you can be be ticketed and fined for removing one from the water for a photograph before release. Not saying that it happens a lot (just look at the morons on YouTube that drag them all over the levee for pictures before releasing them), but wardens are within the law to issue a citation.

If that was true then 27.90(e) would be unnecessary. Since it's in the regs, it's fair to surmise that other fish that you are not allowed to "take" can be removed from the water.

In law, we try to give the legislating body the benefit of the doubt and assume that I they say something, it isn't meaningless or superfluous.

Like I said, I definitely wasn't making the claim that I'm am expert on the topic,  just passing along a conversation that I had with a warden on the topic.

Not convinced that she is right. If it's an ESA fish, sure. No harassment means don't take it out of the water. But non ESA fish, it's quite a stretch for photograph = take.

I've had a game warden describe it to me as this ... removing a fish from the water qualifies as "capture" which is defined explicitly as a "take" under DFW rules. Likewise, not being "immediately released" goes against DFW code as well.

An example would be an oversized white sturgeon; while its not an ESA species, you can be be ticketed and fined for removing one from the water for a photograph before release. Not saying that it happens a lot (just look at the morons on YouTube that drag them all over the levee for pictures before releasing them), but wardens are within the law to issue a citation.

If that was true then 27.90(e) would be unnecessary. Since it's in the regs, it's fair to surmise that other fish that you are not allowed to "take" can be removed from the water.

In law, we try to give the legislating body the benefit of the doubt and assume that I they say something, it isn't meaningless or superfluous.

I kind of think 27.90(e) is there to allow fish between 60 and 68 to be removed from the water for measurement as they may be "too close to tell" in the water, and that it's not necessarily there to allow it to be "fair to surmise that other fish that you are not allowed to take can be removed from the water".

So let me ask a different question.  If you photograph a released fish that you could have kept, should it count against your bag limit?

-Allen

Excellent question Allen.

This really ought to be black and white in the regs. The regs are a hot mess on several issues. This one came up when matanaska entered a hatchery coho caught on CA ocean waters. We revisit it here.

I agree that the intent of the law on white sturgeon is to allow for measurement of fish that are close to the slot limit. That ought to be spelled out in the regs too.

When it comes to potential criminal offenses and potential loss of fishing rights, we should not be left to guess at what the regs mean. When I am philosopher king, putting the regs into plain English will be high on my to do list.

Would it be against the rules to pull a canary rockfish out of the water to release it? If so, you'd need to positively ID your fish while it is still in the water, which is not always so easy, especially for the smaller ones.