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In state court, as a general rule, a conviction of a misdemeanor violation of the Fish and Game Code results in a minimum fine of $100 and a maximum fine of $1,000. But more severe misdemeanor violations have a maximum fine amount of $2,000. But, again, these are just base fines, not including assessments that can quadruple the amount. So there are certain fines associated with taking more protected species. For example, the fine for taking a trophy deer has a penalty with the assessments of $20,000; the taking of deer parts is $40,000, and a fine for taking one Abalone is $60,000. Penalties for illegal fish planning are $60,000, and then poaching for profit is $40,000.

 

These examples include both fines and assessments. While but the official fine schedule indicates much lower fines, when assessments and other fees are included, the resulting fines and fees are unreasonable.

 

The Lacey Act involves both civil and criminal penalties; civil penalties for violating the Lacey Act can result in fines of about $10,000 per offense. The maximum fine under the Lacey Act is $100,000 for a felony. A felony violation of the Lacey Act occurs when the value of the illegally taken wildlife was over $350. When wildlife was killed and the person had knowledge of the illegal nature, the maximum fine is $250,000, and if the accused is an organization or a business, the maximum penalty on a felony violation of the Lacey Act is $500,000. Typically, any property used to illegally take the wildlife, including firearms and vehicles, may also be seized, and hunting and fishing privileges may be suspended or revoked.

 

A violation of the Migratory Bird Act includes a maximum fine of $15,000 for a misdemeanor and $500,000 for a felony violation. These fines are imposed by the federal court and are even more substantial than California state court fines.

 

When It Comes To The Equipment Used, Could The Wildlife Involved In A Violation And/ Or Vessels Or Other Equipment Involved Be Seized By The Government For A Conviction? And Will I Ever Get My Property Back?

 

In California, the court is authorized to seize or order forfeiture of any device or apparatus used in committing an offense under the Fish and Game Code. The court is also authorized to immediately seize any fish or wildlife alleged to have been taken, possessed, sold, imported, or transported contrary to any other laws of the state, which is code section 12159. The government is not going to return the seized seafood, instead they are going to return the value of the seafood that was seized. The devices, apparatus, or vessels that were taken can be returned. Typically the return will be part of an ongoing negotiation with the prosecutor or following a forfeiture hearing in court. To permanently forfeit any of these items, the value of any items seized and forfeited must have been commensurate with the gravity of the offense.

 

In my experience, clients have secured the return of crabs, traps, boats, and nets seized through negotiation or following a forfeiture hearing where I was able to successfully argue to the court that the conduct was not egregious enough to justify the taking of such valuable assets. I’ve also had clients who had several thousands of dollars in seafood seized. After successfully arguing that the seizure constituted a violation of the excessive fines clause meaning the seizure of $50,000 worth of seafood was excessive compared to the breach, the court ordered the return of all or a portion of the profits or the proceeds from the sale of the seafood. 

 

What Must The Government Show To Prove A Violation Of The Lacey Act And Other State Or Federal Charges? 

 

The Lacey Act bans the trafficking of illegal wildlife, including plants. In addition, the Lacey Act makes it unlawful to import, export, transport, sell, receive, acquire, or purchase interstate or foreign commerce any wildlife taken, possessed or transported in violation of the law.

 

What Is The Statute Of Limitations On Fishing And Wildlife Violations At The State And Federal Level? And Could This Be used As Part Of Defending The Charges?

 

Generally, the statute of limitations for a misdemeanor fish and wildlife violation charge in a misdemeanor in California has a one-year statute of limitations, meaning law enforcement is required to file the charges against the accused within one year of the date of the conduct. However, should a person be charged with a felony fish and wildlife violation in California, which is often prosecuted as a criminal conspiracy, such prosecution is required to commence within three years of the date of the conduct.

 

The Fish and Game Commission may also take actions against the person’s hunting or fishing privilege. Again, this isn’t a criminal offense, but the Fish and Game Commission may take action against a person’s hunting or fishing privileges in a civil, administrative procedure. As part of an administrative hearing, the Commission has more leeway in taking action against the person’s license or permit outside the generally accepted statute of limitations but the Commission isn’t seeking a conviction. The failure of a state prosecutor to file criminal charges within the statute of limitations, which is one year for a misdemeanor, typically cuts in favor of the court dismissing charges so long as the accused can prove both actual prejudice from the delay in prosecuting and no valid justification for the delay on the part of the prosecutor.

 

If a case is not filed within the statute of limitations, it can be dismissed. There are a couple of different factors to be considered by the court. First, if criminal charges are not filed within the statute of limitations, memories fade, people forget, and records are lost, resulting in prejudice to the accused from the delay. Second, suppose the prosecution cannot justify or provide any justification for the delay. In that situation, the statute of limitations could be used as a defense, and the case can be dismissed for failure to prosecute within the assigned statute of limitations.

 

For more information on Fish And Wildlife Cases in California, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 728-9982 today.

E. Michael Linscheid, Esq.

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(415) 728-9982

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