Shark-shortened Halibut

September 11, 2008

Question: A diver friend recently speared a halibut that was clearly legal, but before he could get it to shore, a shark bit off the rear half. What remained was not 22 inches long meeting the minimum size limit. I’m sure this same situation happens to rod and reel fishermen too.

Would the diver or fisherman in possession of a shark-shortened fish be cited? It seems a shame to throw away the remains of what was a legal fish, but I want to be clear on the law. I have no desire to be the test case in this area. (Bill M., San Clemente)

Answer: This is one of those “letter of the law” vs. “spirit of the law” questions. By the letter of the law, if a fish no longer measures the minimum length required by law, then technically that fish is no longer legal to possess and the diver/angler could be cited for having a short fish. It is unlawful to possess on any boat or to bring ashore any fish with a minimum size limit that is in such a condition to where it’s size or weight cannot be determined (Fish and Game Code Section 5508.)

As far as the spirit of the law goes, if the Department of Fish and Game (DFG) game warden could clearly see what had happened and believed the fish started out as legal size, it would be up to him/her to decide whether or not to cite for what is now a “shark-shortened” fish, as you put it. This is something that would be entirely up to the discretion of the game warden. One suggestion if this happens again is to not fillet the fish. Keep the fish whole as evidence to show that the shark bite matches up to the story, and wait to fillet the fish until getting it home.

The bottom line according to Assistant Chief Rob Allen, if the fish’s minimum total length or filet size cannot be determined, then the safest decision would be to let the fish go back to nature. This would not be a waste of fish issue since the fish was supposedly legal when originally taken. If the fish is half-eaten and there is no way to measure the size, the diver/angler could be cited for keeping it. In a situation like this, a fish being returned to the ocean half-eaten would provide food for other organisms, such as crabs and fish.

I call BS.

-Allen

Citing someone for such an occurrence is a total waste - the fish, the tation and the court's time if it should end up there.

If someone was CS enough to issue under those circumstances, I would hope the bench would a rain a little wrath on the citation's author.

My $.02

How does the officer know that the person didn't take a hatchet to the fish?

In the legal world, what exactly is "spirit of the law"?

-Allen

That my friend is OTW kayak sashimi