Although I've heard scores of horror stories about DFG selective enforcement and harassment from anglers and fellow outdoor writers over the years, one of the strangest is the case of James Smith, captain of the California Dawn, and Mike Gaddis, the boat's deckhand and second captain.
Smith was boarded by 8 DFG officers on August 24, 2006 and issued a citation for (1) an over limit taken on a Commercial Passenger Vessel; (2) violation of the rule requiring that "crew members fish must be labeled and kept separate from passengers fish; and (3) an "undersized filet violation," according to the DFG declaration filed on September 20.
After hearing testimony from Smith and Gaddis, the Alameda County Superior Court Judge in Oakland on February 1 dismissed the first two charges and all that remained was the one illegal fillet charge.
"This is what the judge said: "In all of my 25 plus years sitting on the bench, I have never heard of a half legal and a half illegal fish," according to Smith.
"As she chuckled, the majority of people in the courtroom, including people with far more serious offenses, laughed also with her," said Smith.
"All of the charges were dismissed with the exception of a minor infraction which I still don't believe I deserved," said Smith.
He and Gaddis each ended up with a $125 fine and the charges were reduced from a misdemeanor to an infraction. "Mike Gaddis and me could have gone to jury trial, but we didn't want to spend any more money or time in court and we decided to pay the infraction," Smith stated.
After enduring his ordeal, on March 8, Smith filed a formal complaint against four DFG wardens, including Roxanne Bowers and Wardens Garrett, Wheeler and Stiehr. In his complaint, Smith charged the DFG with "civil rights violations" and "harassment."
In the complaint, Smith stated that the ordeal cost him $6,247 in attorney and court fees and five trips cancelled. He also had to endure four trips to court, two pre-trial hearings and one day of being booked at the Oakland Police Department.
"Was this whole event worth it for the eight wardens, one attorney, two defendants, five witnesses, four days in court, one day at the police station, five days of cancelled charters, six plus thousand dollars in fees, the thousands in taxpayers' money spent, not to mention the bad public image your department has permanently scared into my twenty-eight passengers and crew and dockside observers' minds?" asked Smith.
"Where is the accountability?" he questioned. "This is not Russia or some Third World country. There are laws to protect us from overzealous agencies and overbearing enforcement."
The ordeal that Smith and Gaddis went through started on August 24, 2006. When Smith was coming in from rockfishing with a boatload of 28 passengers, he received a call from the Berkeley Sports Center at 4 pm, informing him that there were fish and game wardens on the dock. "Previous to this, I had never been charged with a Fish and Game violation," said Smith.
"Taking this into consideration, I double checked everything," he said. "My boat was 30 fish under the legal limit."
At 4:30 pm, Smith pulled back into his slip at the Berkeley Marina. "I noticed a swarm of wardens headed down the dock to greet my vessel," he stated. "Before I am two-thirds the way into my slip, two fish and game wardens climb over (in a cowboy type fashion) on the starboard side of the vessel."
Smith was aghast that the wardens were hopping on his boat while the boat was still in motion sliding back into this slip. He couldn't even get the gate open to let them board.
"The warden just jumped on board, ignoring all safety procedures and practices that I set in place for everyone that boards and disembarks my vessel," said Smith.
Without the boat yet secured to the dock, Warden Stiehr asked Smith to let him see his logbook. Smith got his logbook and presented it to him. Stiehr asked him how many fish and fishermen he had on the vessel and Smith replied with the numbers shown in the logbook.
"I was then greeted by 3 more fish and game wardens," said Smith. "I now believed that there were a total of five wardens aboard the boat."
Smith continued his path down the side of the boat and into the main cabin. One of the wardens asked Smith for his fish and game paperwork and Smith complied.
"At approximately 5 pm," recounted Smith, "there seemed to be some confusion over the paperwork as the wardens received it. I was confident in the completion of the paperwork.... However, after several minutes of conversation between myself and the wardens, it was agreed that everything was in order."
Warden Stiehr then turned to Smith and asked him for his driver's and captain's license. "What is the problem?" said Smith.
"You did not properly mark your crew fish, captain," said Stiehr.
Warden Stiehr then told Smith that they had crew fish that were not properly marked on board the boat, according to Smith.
"This is B.S., warden," Smith replied. "You mean to tell me that some people left some fish behind and you're going to write me a ticket for them?"
Smith then walked out of the cabin with his attention directed on two wardens with a bucket of rockfish containing no more than 10 fish. "These are not my fish, nor are they my crew's fish," said Smith, walking away from the two wardens holding the bucket.
Smith then saw another warden with a dip net in his live bait tank. The warden proceeded to pull out a live rockfish from the tank that is no more than three inches in length.
"The only possible factor of that fish being caught in the bait tank is that it was an accident. Small rockfish, not much bigger than bait, can slip onboard a boat while loading bait. The fish is obviously way too small to eat," said Smith.
At approximately, 5:05 pm, Smith turned his attention to a warden dumping one of his customer's fish onto the "filthy marina dock," according to the complaint.
He walked away from the bait tank area, got off the boat, and proceeded down the boarding stairs. At the back of the boat, approximately 10 feet from the transom area, Smith saw some anglers from his boat getting their fish bags checked by wardens. Two more wardens were throwing the clean fillets onto the marina dock.
Smith pleaded with the two wardens checking the fillets not to dump the cleaned and bagged fish on the dock.
"'You know you should not dump fish on that dirty dock. There is dog feces on the dock, animal urine and seagull droppings everywhere. You wardens are going to get some some of these people sick. Have you ever heard of the word ecoli.?"
He then turned to Warden Stiehr, who was now standing behind Smith and asking him to not dump the customer's fish on the dock anymore, instead requesting to putting the fish on a fish cleaning station if they planned on dumping more fish out of customer's bags.
"We have zero crew fish. My crew did not fish today. Not only that, my boat is thirty fish under the legal limit for rockfish," said Smith.
Smith then instructed his customers to not put another fillet of the catch on the filthy deck. The wardens didn't use his cleaning station for counting the fish, but ended up dumping the fillets on a plastic bag.
Smith reboarded the boat, walked into the main cabin and had a seat. He saw a warden, Roxanne Bowers, holding a bag of filets.
Warden Bowers said, "A woman walked off your boat with two limits of fish. I seized the extra limit of fish from the woman."'
Captain Smith told her, "There were 4 women fishing in a group together and none of them spoke any English. I'm sure one of them was carrying the extra fish that the second bag of fish belonged to."
"Warden Bowers, could we get the women back on my boat? I can prove to you that the women you stopped were in fact 2 of my passengers. I'll show you my sign in sheet to prove it," he stated.
Bowers replied, "it's too late - they're already gone. Everyone has left the boat with their 10 fish rockfish limit. We counted every bag."
"Is that so? How about that couple," said Smith, pointing to a husband and wife, Paul and Amber Stafura. Smith asked them whether they had limits and Paul replied no. Stafura said that he and his wife caught limits of rockfish, but left all but 7 or 8 and 3 lingcod for the boat and crew.
"The fish that you left behind are getting me in trouble. Because of the fish that you left behind, I'm getting a logbook violation. Would you please go back and claim your fish?" Smith asked them.
Paul Stafura said he would go back on the boat for the rest of the fish, but was met at the top of the stairs by a warden that would not allow Paul's reentry!
After an exchange between Stafura and the warden, the warden affirmed, "No it's too late. You stepped off the boat already. You can't come back up. I told you to leave with your fish and that's exactly what you did."
Smith then asked the warden if Stafura could get his fish off the boat. "No, it's too late," he stated again.
In frustration, Smith returned to the cabin only to hear about one short lingcod fillet.
"I was in the main cabin area and did not physically see the lingcod fillet in question. I was only informed by Warden Stiehr that there was a short fillet on boat the boat. I assured Warden Stiehr that is was physically impossible to get one legal-sized fillet off a short lingcod."
In their exchange, Stiehr replied, "One fillet was short, but the other was okay."
"How can you catch a half legal, half illegal fish? This is not fair, "said Smith.
Before the wardens departed the boat, "Warden Stiehr was very much in 'my face' during our last few minutes in the cabin together. Like he was trying to intimidate me and acting in a very unprofessional manner," concluded Smith.
The complaint that Smith filed was the "Citizen's Report" form of the DFG. Departmental procedure allows up to 120 days for completion of an investigation into a "Citizen's Report." Should additional time be required, consecutive 15-day extensions may be granted by the Director of the DFG.
Dennis De Anda, Captain of the DFG's Investigative Services Unit, officially received the complaint on March 15, and he said he could not comment on a complaint that is being currently investigated.
After completing an investigation, a disposition of "sustained or not sustained" will be made by the Division Chief. When complaints are found to be sustained, the Division Chief shall determine and administer corrective and/or disciplinary action. Final action will be reported to the Director, Community Relations and the Chief Deputy Director, according to Department procedure.
In the meantime, De Anda will be contacting the wardens, witnesses, the captain and the deckhand of the California Dawn. "Everything will be investigated and we will collect all of the necessary evidence and witness interviews," assured De Anda. As soon as we hear the outcome of the investigation, I will write an article about it in the Fish Sniffer.
