definition of fishing

I don't tie my own flies or even fly fish.
 if a fly fisherman wanted to test some fly patterns he had tied without a hook in a waterway where the fishing is allowed would he be breaking the law ?

my bad
 in a waterway where no fishing is allowed

If you put a hook in water where there are fish you are fishing even if there is no intent on catching

Carrie Wilson has answered this both ways in the past.

http://www.norcalkayakanglers.com/index.php?topic=60314

http://www.norcalkayakanglers.com/index.php?topic=54048

That's the second question you've asked in the last 12 hours where you are trying to get cute with the regs.

I have wondered something about this in regards to using my fishing pole to retrieve waterfowl from water too deep for my waders.  Especially cause fishing licenses expire dec31 if using a pole and hook is "fishing" I probably may have been in violation? Hypothetically of course. I only use it when I am getting a downed bird but it is rigged up right there beside me ready to go the whole time so it looks kinda bad as far as intent may be concerned

Carrie Wilson has answered this both ways in the past.

http://www.norcalkayakanglers.com/index.php?topic=60314

http://www.norcalkayakanglers.com/index.php?topic=54048

I don't think those replies are inconsistent. In the first case, the person without the hook on his line could be viewed as trying to assist a person who is actually fishing to catch fish. The second case is just someone practicing casting, with no intent to help anyone else catch fish.

Anyways, I've wondered about this too, but in a slightly different scenario. Suppose I run a GoPro on my downrigger with, say, a plug trailing behind. As long as I remove the hook(s) from the lure, it seems this would be clearly legal regardless of season, or whether I have a fishing license or not.

§1.80. TAKE.  Hunt, pursue, catch, capture or kill fish, amphibians, reptiles, mollusks, crustaceans or invertebrates or attempting to do so.

This is a very liberal and wide ranging definition, and "pursue" does not have any type of inference of any intent to capture whatsoever.  I can pursue a turtle by swimming, chasing it with a camera, and maybe trying to touch it.  Would you get cited for swimming with a no-take turtle in closed waters?  Probably not.  Would you get cited for trying to match a hatch with hand tied flies and heading out to the stream with a hookless fly to test your work?  Maybe, I don't know.  But I do know that if you test your fly in a place where it is legal to fish, and you have a license, you won't have any troubles.

Think about that first thread I linked above.  The dude's mere presence is apparently enough to be considered assisting in "take".  If the warden sees it that way, I can guess how he would feel about a hookless fly.

so, would a wildlife photographer be "pursuing" a fish if the only intent was to make an underwater movie for TV? I think not. The intent is the key as a matter of law. There may be another law that could be about harassing a fish that could apply tho.

I have wondered something about this in regards to using my fishing pole to retrieve waterfowl from water too deep for my waders.  Especially cause fishing licenses expire dec31 if using a pole and hook is "fishing" I probably may have been in violation? Hypothetically of course. I only use it when I am getting a downed bird but it is rigged up right there beside me ready to go the whole time so it looks kinda bad as far as intent may be concerned

That's how I retrieve at Don Edwards and I think it's pretty common practice out there.  You're not allowed to fish in the reserve but I was checked several times at the check in station by a warden and they never said anything. 

I'd call and check with the nearest dfg office. 

so, would a wildlife photographer be "pursuing" a fish if the only intent was to make an underwater movie for TV? I think not. The intent is the key as a matter of law. There may be another law that could be about harassing a fish that could apply tho.

Don't get confused.  It doesn't matter if the intent is to make a movie or to test a fly pattern.  The intent that matters is the general intent to pursue the fish, no matter what you ultimately intend to do with it, and you don't have to intend to catch it.  Otherwise the regulation wouldn't have to differentiate between "pursue" and "catch"... "or attempting to do so".  Pursue  without intent to catch is definitely contemplated and within the scope of the definition of take.

You are correct that intent is important, but incorrect about what intent means.

Still though, I don't think a wildlife photographer is at risk of citation unless he or she is being a complete jackass to a wildlife officer.  Discretion is a key component of their jobs and I think everyone would agree that citing a photographer is a bit heavy handed.  I don't think you would get that kind of agreement about a hookless fly, particularly not with the non-consumptive crowd.

Well, I have first-hand experience with this situation.  I was preparing for an upcoming fly fishing trip to Baja and wanted to see how some of the experimental bait fish patterns I'd tied moved in the water.  I found a quiet corner at a nearby marina -- basically a shallow mud flat about 8 inches deep.  I had maybe 10 feet of line out and was just dragging my flies out in front of me to see the swimming action.  I'd try one, clip it off and tie on another.  I was into my 5th or 6th fly when two DFG officers walked up and asked how the fishing was... I showed them what I was doing, showed them the flies I'd already tried (still with trimmed bits of leader attached), but they didn't care to hear it. They just repeated "A line in the water equals fishing."  This was in January and I hadn't bought a license for that year yet (I have purchased them every year for the last 25+ years).  They wrote me a citation for "fishing" without a license.  I forget the exact fine amount but it was $400 plus dollars.  I challenged it at the courthouse and got it reduced to $200 something dollars.

That was a painful lesson to learn.  I respect the DFG folks, they don't have an easy job to do with limited resources.  That said, it seemed to me they had boots on the ground and could clearly see my intent wasn't to catch or even temp fish. I would think in some situations they might be inclined to use their judgement and consider the situation in front of them.  But that is apparently not part of their obligation.

Well, I have first-hand experience with this situation.  I was preparing for an upcoming fly fishing trip to Baja and wanted to see how some of the experimental bait fish patterns I'd tied moved in the water.  I found a quiet corner at a nearby marina -- basically a shallow mud flat about 8 inches deep.  I had maybe 10 feet of line out and was just dragging my flies out in front of me to see the swimming action.  I'd try one, clip it off and tie on another.  I was into my 5th or 6th fly when two DFG officers walked up and asked how the fishing was... I showed them what I was doing, showed them the flies I'd already tried (still with trimmed bits of leader attached), but they didn't care to hear it. They just repeated "A line in the water equals fishing."  This was in January and I hadn't bought a license for that year yet (I have purchased them every year for the last 25+ years).  They wrote me a citation for "fishing" without a license.  I forget the exact fine amount but it was $400 plus dollars.  I challenged it at the courthouse and got it reduced to $200 something dollars.

That was a painful lesson to learn.  I respect the DFG folks, they don't have an easy job to do with limited resources.  That said, it seemed to me they had boots on the ground and could clearly see my intent wasn't to catch or even temp fish. I would think in some situations they might be inclined to use their judgement and consider the situation in front of them.  But that is apparently not part of their obligation.

Ugh.  That's pretty terrible.  I was really hoping to not have my concerns validated.

What are their names?

law is all about intent, without a form of intent there is no violation. There are many forms of intent; general, specific, etc.

So, as in speeding, it is a general intent crime-you didn't mean to go over the speed limit, but you did mean to push the gas pedal to make the car go the speed you were going without regard for the speed the car actually travels at. If that speed is over the limit then you are speeding.

If you throw a line in the water, while not actually intending to fish, you are fishing if there is a hook on the line.

If you are photographing a fish as it swims by you did not "pursue" it so no violation. If you photographed it while swimming after it then that could be a "pursue" action.

All this would have to be argued in court. Just because the written word of a law seems to be so clear many times it is not. The FG officer may have his interpretation and it may be found to not be a legal arrest/citation. Happens all the time. I hear it weekly in court.

law is all about intent, without a form of intent there is no violation. There are many forms of intent; general, specific, etc.

So, as in speeding, it is a general intent crime-you didn't mean to go over the speed limit, but you did mean to push the gas pedal to make the car go the speed you were going without regard for the speed the car actually travels at. If that speed is over the limit then you are speeding.

If you throw a line in the water, while not actually intending to fish, you are fishing if there is a hook on the line.

If you are photographing a fish as it swims by you did not "pursue" it so no violation. If you photographed it while swimming after it then that could be a "pursue" action.

All this would have to be argued in court. Just because the written word of a law seems to be so clear many times it is not. The FG officer may have his interpretation and it may be found to not be a legal arrest/citation. Happens all the time. I hear it weekly in court.

I agree with all of this. The Latin term is mens rea . The general intent of pressing down on the accelerator is a good example too.

Think about that first thread I linked above.  The dude's mere presence is apparently enough to be considered assisting in "take".  If the warden sees it that way, I can guess how he would feel about a hookless fly.

That's not the way I read it. It's not the "mere presence" that's the potential problem. Instead, it's that the person casting the "teaser" (the letter writer's word) could be viewed (reasonably, I think, from the way the letter is written) as trying to assist someone else to catch fish.