New regulations for the Napa River

It is an object lesson in inartful drafting.  It should be fixed.  That doesn't mean you would win a case if you got a ticket though.  Courts uphold laws with inartful drafting all the time.  It probably shouldn't be that way, but it is that way.

Unintended consequence:

Petaluma river is now an inland fishery upstream from the mouth.  It is in Sonoma County, in the north central district, and is not listed in the special regulations.

It is now closed to all fishing all year.

I've looked and I think that the Petaluma river is the only river popular for fishing where this has happened.  Sonoma Creek is now probably closed to all fishing all year too - but that's not certain as it is listed in the special regulations but not the new inland section - not sure how many people hit that water up for fishing.

6.32. NORTH CENTRAL DISTRICT
DEFINITION.
The North Central District consists of the inland
waters of all of Marin, Napa, Sonoma, Lake and
Mendocino counties

7.00
...
c) North Central District

(2) All streams except those listed by name in the Special
Regulations.
Closed to all fihing all year

(3) The tidewaters of all streams except those listed
by name in the Special Regulations. Note: Some
waters within this district are tide waters regulated by
regulations for the ocean and San Francisco Bay District
(see sections 1.53 and 27.00)
Closed to all fishing all year.

I'm still looking for other unintended consequences of redefining inland waters, but this looks like a pretty big one.

It is an object lesson in inartful drafting.  It should be fixed.  That doesn't mean you would win a case if you got a ticket though.  Courts uphold laws with inartful drafting all the time.  It probably shouldn't be that way, but it is that way.

For that matter I'm not sure I would have beat a ticket on the Napa river reg. Depends on the person you're standing in front of. Since the standard is "ignorance of the law is no excuse", I say the rules must be well written to be enforceable. You seem to be saying it is inartful because you believe they meant to say something different from what they did say. I am assuming they were careful and the words used convey what was intended. As before I would only expect them to clarify one way or the othet.

Unintended consequence:

Petaluma river is now an inland fishery upstream from the mouth.  It is in Sonoma County, in the north central district, and is not listed in the special regulations.

It is now closed to all fishing all year.

I've looked and I think that the Petaluma river is the only river popular for fishing where this has happened.  Sonoma Creek is now probably closed to all fishing all year too - but that's not certain as it is listed in the special regulations but not the new inland section - not sure how many people hit that water up for fishing.

6.32. NORTH CENTRAL DISTRICT
DEFINITION.
The North Central District consists of the inland
waters of all of Marin, Napa, Sonoma, Lake and
Mendocino counties

7.00
...
c) North Central District

(2) All streams except those listed by name in the Special
Regulations.
Closed to all fihing all year

(3) The tidewaters of all streams except those listed
by name in the Special Regulations. Note: Some
waters within this district are tide waters regulated by
regulations for the ocean and San Francisco Bay District
(see sections 1.53 and 27.00)
Closed to all fishing all year.

I'm still looking for other unintended consequences of redefining inland waters, but this looks like a pretty big one.

For that matter the Napa River isn't listed either is it? I assume if they have their act together they will clean it all up including the fact the book still says ocean regs apply.

Yes the Napa River is listed in the special regs. It's in the same situation as Sonoma creek.

This was entirely accidental on the part of the drafters on the new language. It was also avoidable. All you have to do as a drafter is check for internal cross references to the sections you are amending and fix them. Then you check for unintended consequences. It's like I'm doing their job for them. Where do I send the bill?

So at least in the past it looks like DFG fully intended for that part of the Napa River to be under the SF/SP Bay regs.

Seems not only did you get the regs clarified you got them changed, or am I missing something?

So at least in the past it looks like DFG fully intended for that part of the Napa River to be under the SF/SP Bay regs.

Seems not only did you get the regs clarified you got them changed, or am I missing something?

Missing a little. The Napa River was under Ocean Regs, not SF/SP Bay regs. The only SF/SP Bay regs are some special restrictions. Some regs said SF/SP Bays and the tidal portions of the rivers..., those regs covered the Napa River. The pole restriction did not include the part about the tidal portions of the rivers and therefore did not apply to the rivers. They realized that it meant that standard ocean regs applied to the Napa and all other rivers that flowed into the bays. That means unlimited poles just like in the ocean. I think some wardens thought the river should be two poles allowed. I guess they decided that moving it to inland waters was the way to achieve their goal. They could have added the words "plus the tidal portions of the rivers" to the pole restriction regs and limited it to one pole. They could have made a special regs allowing two poles in the tidal portions of the rivers under ocean regs. Instead they decided changing it to inland waters was what they wanted. Maybe that was to have the second pole controlled by the 2nd Rod stamp. I fully expect when the roll out is complete they will have fixed all the contradictions that seem to exist at this point.

Yes the Napa River is listed in the special regs. It's in the same situation as Sonoma creek.

This was entirely accidental on the part of the drafters on the new language. It was also avoidable. All you have to do as a drafter is check for internal cross references to the sections you are amending and fix them. Then you check for unintended consequences. It's like I'm doing their job for them. Where do I send the bill?

Probably not much point in debating this. I think it is simply an incomplete process. They didn't announce the change yet, probably because it isn't finished yet. I don't think we can assume that any of the rivers are closed to fishing because of the old regs. Those regs say the ocean rules apply and the new definition says the inland water rules apply.

I'm just pointing out what is on the books, not what is in the books.

I think they will have a hard time making fines stick in either case since they didn't even bother to include the definitions of inland water and ocean waters in either 2016 reg book.

Total frustration trying to discuss this with dfg. It seems they are not yet aware of the changes being made. I called the yountville office only to get unreturned calls all week. Today they said ocean rules still apply. Then she asked a warden who told her the limited geographic restriction to barbless would somehow automatically expand beyond it's definition to cover the entire river if inland water rules were applied.  So for now, they seem to be still enforcing the regs incorrectly. I don't want to fight a ticket even if I'm sure I'd win. I'm still hoping to speak to someone that can tell me what the plan is to roll out the changes. I also hope to let the wardens in charge of enforcement know there are changes coming.

In cases like this I print a copy of the applicable regs and carry them with me, slim chance that it would do any good but it might.

I ran into a warden in downtown Martinez the other day and we had a short but good conversation where he explained that something I thought was not allowed was indeed OK.

I believe DFG (W) gets bashed more than they should but in an organization like that I would NOT expect a reg change to be propagated thru the system and down to the Warden level smoothly or in a timely manner. Not giving them a pass, just my view of reality.

In cases like this I print a copy of the applicable regs and carry them with me, slim chance that it would do any good but it might.

I ran into a warden in downtown Martinez the other day and we had a short but good conversation where he explained that something I thought was not allowed was indeed OK.

I believe DFG (W) gets bashed more than they should but in an organization like that I would NOT expect a reg change to be propagated thru the system and down to the Warden level smoothly or in a timely manner. Not giving them a pass, just my view of reality.

I agree. That is partly why I want to discuss it with them. If the change filters down from the top and at the same time they are looking for it at the bottom, things might happen faster. 

I just got this from fish and game. It looks like they changed their mind or something.

Ken:

Below is the proposed regulatory language that will be formally Noticed at the next Fish and Game Commission meeting in a few weeks. This is what is formally required before making a regulation change. I’m at my desk for most of the day. If you miss me I may be away from my desk for the moment. just leave a msg and I will return the call promptly. I can explain more when you call.

Patrick



 

Regulatory Language

 

Amend Section 1.53, Title 14, CCR, to read:

 

§ 1.53. Inland Waters.

Inland waters are all the fresh, brackish and inland saline waters of the state, including

lagoons and tidewaters upstream from the mouths of coastal rivers and streams. Inland

waters exclude the waters of San Francisco Bay and San Pablo bays downstream from the west Carquinez Bridge, and the waters of Elkhorn Slough, west of Elkhorn

Road between Castroville and Watsonville. Also sSee Section 27.00 for the description of San Francisco Bay.

Note: Authority cited: Sections 200, 202, 205, 215 and 220, Fish and Game Code. Reference: Sections 200, 202, 205, 206, 215 and 220, Fish and Game Code.

 

Amend Section 27.00, Title 14, CCR, to read:

§ 27.00. Definition.

The Ocean and San Francisco Bay District consists of the Ocean and San Francisco Bay, as described herein. The Ocean is the open seas adjacent to the

coast and islands and or in the waters of those open or enclosed bays contiguous to the

ocean, and including the waters of Elkhorn Slough, west of Elkhorn Road between Castroville and Watsonville. San Francisco Bay is the waters of San Francisco and San Pablo bays plus all their tidal bays, sloughs, estuaries, and tidal portions of their rivers and streams between the Golden Gate Bridge and the west Carquinez Bridge. For purposes of this section, waters downstream of the Trancas Bridge on the Napa River, downstream of the Highway 121 Bridge on Sonoma Creek, and downstream of the Payran Street Bridge on the Petaluma River are tidal portions of the Napa River, Sonoma Creek, and Petaluma River, respectively. Also see Section 1.53.

That wording is way better and I'm pretty sure it fixes the problem.  I don't think that they changed their minds necessarily.  I don't think they understood what they were doing on their first attempt.  This wording is now how almost everyone always understood it to be - bay regs apply, no third area between the bay and the inland streams.  This wording removes the ambiguity.

That wording is way better and I'm pretty sure it fixes the problem.  I don't think that they changed their minds necessarily.  I don't think they understood what they were doing on their first attempt.  This wording is now how almost everyone always understood it to be - bay regs apply, no third area between the bay and the inland streams.  This wording removes the ambiguity.

I agree that this wording now matches what they were enforcing. No if, ands or buts. However, I spoke to Captain Foy for almost a half hour and I can say they did change their minds so to speak. After the mess was created they decided to take the rivers back out of inland waters and redifine SF Bay to fix the regs. Clearly different than the proposed changes you linked to earlier. This change brings the rivers back to only one pole, and it looks like that is how it will stay. He expects it to be finalized late this summer.

He also apologized for the difficulities I had getting them to listen and said in no uncertain terms that I had been right all along. Now that I have their attention, I will inquire about the wording of the salmon barbless regulation.