Re: Stop your whining, Dave


Scuba Diving on the Great Escape Southern California Live-Aboard Dive Boat

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Posted by John Refkin on February 06, 2005 at 11:45:20:

In Reply to: Re: South County Dive Report - Bag o Bugs posted by Dave on February 05, 2005 at 23:02:53:

Dave, you know nothing about law, so stop your complaining. I think I have seen your posts before and I am sick of your moaning and whining. Are you the same guy that claims he went to a police academy? If so, you're full of BS or you just didn’t pay attention in class.

First of all, you should have known the difference between a detention and an arrest. Case law clearly differentiates the two. Secondly you know nothing of Fish and Game law. You need to familiarize yourself with the Public Trust doctrine. It has been reviewed several hundred times over by many state supreme courts.

Numerous states have explicitly held that the common law Public Trust Doctrine applies to protection of wildlife. For example, the Supreme Court of Ohio stated, "The common law in Ohio has consistently recognized the trust doctrine and that it is predicated upon the property interest which the state holds in such wildlife as a trustee for all citizens." Ohio v. City of Bowling Green, 39 Ohio St. 2d 281, 313 N.E.2d 409, 411 (1974). In Virginia, "[u]nder the common law Public Trust Doctrine, the State of Virginia and the United States have the right and the duty to protect and preserve the public's interest in natural wildlife resources. Such right does not derive from ownership of the resources, but from a duty owing to the people." In re Steuart Transportation Company, 495 F. Supp. 38, 39 (E.D. Vir. 1980). More recently, in 1996, a California Court of Appeals stated, "California holds title to its wildlife in public trust for the benefit of the people. As such the state has a duty to exercise continued supervision over the trust to prevent the harmful use of the state's wildlife resources. " People v. Perez, 51 Cal. App. 4th 1168, 59 Cal. Rptr.2d 596, 599 (1996).
In light of the extensive recognition by California courts of the State's duty to manage wildlife and the State's duties under the common law Public Trust Doctrine to conserve the public's interest in our finite natural resources, THE LAW CLEARLY SUPPORTS FISH AND GAME CODE SECTIONS 1006 AND 7702. These laws provide the legal authority for Game Wardens DETAINING you and searching the public property which you took into your possession (ie the Bag O Lobsters).

Fish and Game Code section 1006 states: 1006. The department may inspect the following:
(a) All boats, markets, stores and other buildings, except dwellings, and all receptacles, except the clothing actually worn by a person at the time of inspection, where birds, mammals, fish, reptiles, or amphibia may be stored, placed, or held for sale or storage.

Fish and Game Code section 7702 states: The department may enter and examine any canning, packing, preserving, or reduction plant, or place of business where fish or other fishery products are packed, preserved, manufactured, bought or sold, or board any fishing boat, barge, lighter, tender, or vehicle or receptacle containing fish, and ascertain the amount of fish received, or kind and amount of fishery products packed or manufactured and the number and size of containers or cans for fishery products purchased, received, used, or on hand and may examine any books and records containing any account of fish caught, bought, canned, packed, stored or sold.

In summary, Game Wardens have a much different search authority when it comes to public resources.

And Dave, if you happen to be in violation of state laws after a search has been conducted on your vessel, the Supreme Courts state you will be fined for it as well. There is a developed body of law that recognizes the rights of the states to recover monetary damages for injuries to wildlife where the defendants have sought to have the cases dismissed because the state did not have a "property interest." The reasoning was expressed appropriately in Maryland v. Amerada Hess Corp. 350 F.Supp. 1060 (D. Md. l972), mot. for relief den., 356 F. Supp 975 (D. Md. 1973):
[I]f the State is deemed to be the trustee of the waters, then as trustee the State must be empowered to bring suit to protect the corpus of the trust-i.e., the waters-for the beneficiaries of the trust-i.e., the public. Id. at 1067.
In the case of State v. New Jersey Central Power & Light, 125 N.J. 103, 308 A.2d 671 (1973), aff’d. 336 A.2d 750 (N.J. Super. Ct. Div. 1975), rev’d., 351 A.2d 337 (N.J. l976), the court expressed the concept that "[t]he State has not only the right but also the affirmative fiduciary obligation to ensure that the rights of the public to a viable marine environment are protected and to seek compensation for any diminution in that trust corpus."

So Dave, as for your views upon California law enforcement authorities, I have a tip for your future run-ins with peace officers- California Penal Code section 148 says it is a misdemeanor to interfere with a law enforcement officer’s official duties. This would include any legal searches and seizures. Hopefully your piss poor attitude towards Game Wardens wont get you in trouble some day.
John Refkin



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