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(continued)
(3) If the violation involves birds, mammals, amphibians, reptiles, or fish with a value in the aggregate of less than four hundred dollars ($400) and involves only the transporting, taking or receipt of fish or wildlife taken or possessed in violation of the Code, the civil penalty shall not exceed the maximum criminal fine provided by law for the violation in the Code or ten thousand dollars ($10,000), whichever is less.
(4) Civil penalties shall be imposed on a per item basis unless:
(A) Any of the aggravating factors specified in subsection (c)(8) of this section are found by the qualified referee or hearing board to be present. If any of the aggravating factors are found, the qualified referee or hearing board can impose the penalties as set forth in that subsection;
(B) The qualified referee or hearing board determines that it is impracticable to use a per item basis. In this case, the qualified referee or hearing board can determine a reasonable unit of measure and may impose a penalty based on that, but in no case can the cost per unit exceed the maximum per item penalty set forth below; or
(C) A mitigating factor is found by the qualified referee or hearing board to be present.
(5) The qualified referee or hearing board shall use the following considerations in assessing civil penalties within the ranges set forth below:
(A) The gravity of the violation, imposing lesser penalties for acts which have little significant effect upon the resources, and greater penalties for acts which may cause serious injury to the resources;
(B) The particular nature, extent, and circumstances of the violation; and
(c) The characteristics of the violator, including the violator's assets and other resources so as to ascertain the appropriate penalty level to deter future violations. This assessment shall also include a review of the violator's degree of culpability and involvement in the activity.
(6) In setting the civil penalties for acts set forth in sections 2582 and 2583 of the Code, the qualified referee or hearing board will base the penalty upon the fair market value of the item(s) plus the amounts for the items listed below. If no fair market value exist for the item, the Department may use any generally accepted valuation methodology generally in use at the time plus the amounts listed below:
(A) Big game as defined in Section 350 of the Regulations: $ 400 - $ 15,000
(B) Resident small game as defined in Section 257 of the Regulations: $ 50 - $ 1,000
(C) Migratory game birds as defined in Section 3500 of the Code: $ 50 - $ 1,000
(D) Nongame birds as defined in Section 3800 of the Code: $ 50 - $ 500
(E) Furbearing mammals as defined in Section 4000 of the Code: $ 50 - $ 1,000
(F) Marine mammals as defined in Section 4500 of the Code: $ 400 - $ 10,000
(G) Nongame mammals as defined in Section 4150 of the Code: $ 50 - $ 1,000
(H) Threatened, endangered, fully protected, specially protected and rare insects and animals as defined in sections 3511, 4700, 4800 and 5515 of the Code and Section 670.5 of the Regulations: $ 400 - $ 10,000
(I) Threatened, endangered, or rare plants, as defined in Section 670.2 of the Regulations: $ 400 - $ 5,000
(J) Fish as defined in Section 45 of the Code: $.01 - $ 1,000
(K) Reptiles: $ 50 - $ 1,000
(L) Wild animals as defined in Section 671 of the Regulations: $ 400 - $ 5,000
(7) In addition to the foregoing penalties, the qualified referee or hearing board may impose civil penalties for acts set forth in Code sections 2582(b) and 2582(c) and 2583 in the amounts as follows:
(A) Unlawfully exporting, importing, possessing, receiving, or transporting in interstate commerce any container or package that has not been marked, labeled, or tagged in accordance with the Code or Regulations and contains any bird, mammal, amphibian, reptile, or fish, or any endangered, rare, or threatened species, or any fully protected bird, mammal, amphibian, reptile or fish, or any part thereof, up to $1,000.00 for each container or package. The penalty under this section cumulatively shall not exceed $10,000.00 for acts or conduct taking place within a 24-hour period.
(B) Unlawful failure or refusal to maintain records or paperwork required by the Code or Regulations for the payment of taxes, fees, charges, or for export, import, possession, receipt or transport, up to $l,000.00 for each individual bird, mammal, amphibian, reptile or fish, or any endangered, rare or threatened species, or any full protected bird, mammal, amphibian, reptile or fish or any part thereof. The penalty under this section cumulatively shall not exceed $10,000.00 for acts or conduct taking place within a 24-hour period.
(8) If any one of the following aggravating factors is found by the qualified referee or hearing board to exist, the qualified referee or hearing board may, based on the totality of the circumstances surrounding the violation, impose a civil penalty of up to $10,000 for each bird, mammal, amphibian, reptile, fish or endangered or threatened species, or fully protected bird, mammal or fish:
(A) The violator's conduct was, in the opinion of the qualified referee or hearing board, intentional or reckless;
(B) The violator, within the last five (5) years, has been subject to a criminal or civil penalty for violation of the Code or related codes, been a subject to civil damages, or had any license document, including but not limited to a permit, suspended or revoked. This subsection shall not apply when the previous criminal or civil penalty, civil damage, or license suspension or revocation resulted from acts or conduct which are the same as those for which the civil penalty is currently sought;
(C) The acts of the violator could have resulted or did result in serious injury to the resources of the state;
(D) The acts of the violator were part of an illegal business enterprise or a legal business enterprise conducted illegally; or
(E) The acts of the violator took place in a wildlife management area. legislative refuge, ecological reserve, state marine reserve, state marine park, state marine conservation area, national wildlife refuge, national marine sanctuary, an area of critical concern, within the boundaries of a federal or state park or recreational area, or on other public lands or water set aside for the express purpose of protecting wildlife, plants, or habitat.
(d) If the qualified referee or hearing board finds that the violation was committed incidental to commercial fishing or processing activities, then the she/he shall impose a civil penalty based on the following schedule.
(1) If the illegally taken species constitute less than five percent, wet weight, of the load or lot, the civil penalty shall be $1,000.00, or the civil penalty listed in subsection (c)(6) above, whichever is less.
(2) If the illegally taken species constitutes five percent to ten percent, wet weight, of the load or lot, the civil penalty shall be $2,000.00, or the civil penalty listed in subsection (c)(6) above, whichever is less.
(3) If the illegally taken species constitute more than ten percent, wet weight, of the load or lot, the civil penalty listed in subsection (c)(6) above shall be imposed.


Note: Authority cited: Sections 500 and 2589, Fish and Game Code. Reference: Sections 500 and 2580-2589, Fish and Game Code.

s 748. Procedures for Civil Penalties and License or Permit Revocations and Suspensions.
The procedures described in this chapter shall be applicable for the purposes of imposing civil penalties under Fish and Game Code sections 500 and 2580-2589 and regulations made pursuant thereto for violations described therein and for the purposes of revoking or suspending licenses or permits under Fish and Game Code section 8025, unless specific procedures for suspension or revocation are provided for by the Fish and Game Code or regulations made pursuant thereto.
(a) Burden of Proof.
The burden of proof shall be a preponderance of the evidence.
(b) Complaint.
(1) The Director, after investigation of facts and circumstances, may issue a complaint to any person on whom a civil penalty may be imposed pursuant to Section 2582 or 2583 of the Code. The complaint shall:
(A) allege the acts or failure to act that constitute a basis for the civil penalty;
(B) state the amount of the proposed civil penalty;
(C) be served by personal service or certified mail upon the person whom a civil penalty may be imposed at the last known address of the person;
(D) shall inform the person served that a hearing will be conducted within 60 days after the date of service unless the right to a hearing is waived.
(2) In the case of a license or permit revocation or suspension, the Department shall issue a complaint that shall:
(A) state the name of the licensee or permittee;
(B) inform the person served that a hearing will be conducted within 60 days after the date of service unless the right to a hearing is waived.
(C) be served by personal service or certified mail upon the person identified in the complaint at the licensee's or permittee's last known address.
(D) state the facts which constitute a violation of the Fish and Game Code and/or the regulations made pursuant thereto, including specific citations of the Code and/or regulations alleged to have been violated. In the case of a revocation or suspension in which the licensee or permittee has been convicted of a violation of the Fish and Game Code or any regulations pertaining to the activity licensed or permitted, the complaint shall state the date and fact of conviction;
(3) The complaint issued pursuant to (b)(1) and (b)(2) above may be accompanied by a Notice of Hearing described in subsection (e) of this section.
(c) Amended or supplemental complaint before submission of case.
At any time before the matter is submitted for decision, the Director may file or permit the filing of an amended or supplemental complaint. All parties shall be notified in writing thereof. If the amended or supplemental complaint presents new charges, the Department shall afford the person served a reasonable opportunity to prepare his or her defense thereto, but he or she shall not be entitled to file a further pleading unless the qualified referee or the presiding officer of the hearing board in his or her discretion so orders. Any new charges shall be deemed controverted, and any objections to the amended or supplemental complaint may be made orally and shall be noted in the record.
(d) Amendment of complaint after submission of case.
The Director, qualified referee or presiding officer of the hearing board may order amendment of the complaint after submission of the case for decision. Each party shall be given notice of the intended amendment and opportunity to show that he or she will be prejudiced thereby unless the case is reopened to permit the introduction of additional evidence on his or her behalf. If such prejudice is shown, the Director, qualified referee or presiding officer shall reopen the case to permit the introduction of additional evidence.
(e) Notice of hearing.
(1) The Department shall deliver or mail a notice of hearing to all parties at least 10 days prior to the hearing.
(2) The notice to the person served shall be substantially in the following form but may include other information:
You are hereby notified that a hearing will be held before a qualified referee or hearing board appointed by the Department of Fish & Game at [here insert place of hearing] on the __________ day _________ 19 __________, at the hour of __________, upon the charges made in the complaint served upon you. You may be present at the hearing. You have the right to be represented by an attorney at your own expense. You are entitled to represent yourself without legal counsel. You may present any relevant evidence, and will be given full opportunity to cross-examine all witnesses testifying against you. You are entitled to the issuance of subpoenas to compel the attendance of witnesses and the production of books, documents or other things by applying to [here insert name and address of referee or presiding officer of the hearing board].
The hearing will be conducted in the English language. If you do not proficiently speak or understand the English language and would like to request language assistance, you must notify the Department in a timely manner. The referee or hearing board may order you to pay the costs of an interpreter.
Any questions you may have regarding this hearing must be addressed to the Department of Fish and Game, Legal Office at 1416 Ninth Street, Sacramento, CA 95814, telephone no. (916) 327-4483.
(3) In the case a license or permit revocation or suspension hearing, the person shall be advised that failure to appear at the time and place of the hearing shall result in an automatic suspension of the person's license or permit. In the case of the imposition of a civil penalty, the person shall be advised that failure to appear at the time and place of the hearing shall result in the automatic imposition of the civil penalty identified in the in the complaint.
(f) Continuance of hearing.
(1) The qualified referee or presiding officer of the hearing board may, on his or her own motion or upon request of any party accompanied by a showing of good cause, continue the hearing to another time not more than 60 days after the date scheduled for the initial hearing. Application for a continuance must be made to the qualified referee or the presiding officer not less than 20 calendar days prior to the scheduled hearing.
(2) When a continuance is ordered, the qualified referee or presiding officer shall give written notice of the time and place of the continued hearing.
(g) Waiver of hearing.
A person upon whom a complaint has been served may waive a right to a hearing. This waiver must be in writing signed by the person upon whom the complaint was served or his or her duly appointed representative. If the hearing is waived, the Department shall issue an order setting the penalty in the amount proposed in the complaint or setting the revocation or suspension. This order shall be final.
(h) Time and place of hearing.
The hearing shall be held at a location determined appropriate by the Department in Sacramento, California, unless the Department and the person served mutually agree to hold the hearing in one of the following locations: San Diego, Los Angeles, Fresno, San Francisco, Eureka or Redding.
(i) Discovery; exclusive provisions.
The provisions of subsection (j) of this Section provide the exclusive right to and method of discovery as to any proceeding governed by this section.
(j) Request for discovery; statements; writings.
After initiation of a proceeding, a party, upon written request made to another party, prior to the hearing and within 30 days after service by the Department of the initial pleading or within 15 days after such service of an additional pleading, is entitled to (1) obtain the names and addresses of witnesses to the extent known to the other party, including, but not limited to, those intended to be called to testify at the hearing, and (2) inspect and make a copy of any of the following in the possession or custody or under the control of the other party:
(1) A statement pertaining to the subject matter of the proceeding made by any party to another or person;
(2) Statement of witnesses then proposed to be called by the party and of other persons having personal knowledge of the acts, omissions or events which are the basis for the proceeding, not included in subsection (j)(1) above;
(3) All writings, including, but not limited to, reports of mental, physical and blood examinations and things which the party then proposes to offer in evidence;
(4) Any other writing or thing which is relevant and which would be admissible in evidence;
(5) Investigative reports made by or on behalf of the Department or other party pertaining to the subject matter of the proceeding, to the extent that such reports (1) contain the names and addresses of witnesses or of persons having personal knowledge of the acts, omissions or events which are the basis for the proceeding, or (2) reflect matters perceived by the investigator in the course of his or her investigation, or (3) contain or include by attachment any statement or writing described in subsections (j)(1) through (4), inclusive. or summary thereof.
For the purpose of this section, "statements" include written statements by the person signed or otherwise authenticated by him or her, stenographic, mechanical, electrical or other recordings, or transcripts thereof, of oral statements by the person, and written reports or summaries of such oral statements.
Nothing in this section shall authorize the inspection or copying of any writing or thing which is privileged from disclosure by law or otherwise made confidential, or is protected as the attorney's work product.
(k) Subpoenas, service; obligation of witness to attend; witness fees, mileage, per diem.
(1) The qualified referee or presiding officer of the hearing board may issue subpoenas and subpoenas duces tecum at the request of any party for attendance or production of documents at the hearing after making a showing of relevance and good cause. Subpoenas and subpoenas duces tecum shall be issued in accordance with Sections 1985, 1985.1, and 1985.2 of the Code of Civil Procedure.
(2) The process issued pursuant to subsection (k)(1) of this section shall be extended to all parts of the State and shall be served in accordance with Sections 1987 and 1988 of the Code of Civil Procedure.
(3) All witnesses appearing pursuant to subpoena, other than the parties or officers or employees of the state or any political subdivision thereof, shall receive fees, and all witnesses appearing pursuant to subpoena, except the parties, shall receive mileage in the same amount and under the same circumstances as prescribed by law for witnesses in civil actions in a superior court. Witnesses appearing pursuant to subpoena, except the parties, who attend hearings at points so far removed from their residences as to prohibit return thereto from day to day shall be entitled in addition to fees and mileage to a per diem compensation of three dollars ($3) for expenses of subsistence for each day of actual attendance and for each day necessarily occupied in traveling to and from the hearing. Fees, mileage, and expenses of subsistence shall be paid by the party at whose request the witness is subpoenaed.
( l) Contempt.
If any person in proceedings before the qualified referee or the hearing board disobeys or resists any lawful order, refuses to respond to a subpoena or a subpoena duces tecum, refuses to take the oath or affirmation as a witness or thereafter refuses to be examined, or is guilty of misconduct during a hearing or so near the place thereof as to obstruct the proceedings, the qualified referee or presiding officer of the hearing board shall certify the facts to the Superior Court in and for the County where the proceedings are held for contempt proceedings pursuant to Government Code Section 11525.
(m) Depositions.
On verified petition of any party, the qualified referee or the presiding officer of the hearing board may order that the testimony of any material witness residing within or without the State be taken by deposition in the manner prescribed by law for depositions in civil actions. The petition shall set forth the nature of the pending proceeding; the name and address of the witness whose testimony is desired; a showing of the materiality of his or her testimony; a showing that the witness will be unable or cannot be compelled to attend; and shall request an order requiring the witness to appear and testify before an officer named in the petition for that purpose. Where the witness resides outside the State and where the qualified or presiding officer of the hearing board has ordered the taking of his or her testimony by deposition, the deposition shall be taken according to the provisions of California Code of Civil Procedure section 2026, as amended.
(n) Prehearing conference; subject matter; prehearing order.
(1) On motion of a party or by order of a qualified referee or presiding officer of the hearing board. the qualified referee or hearing board may conduct a prehearing conference. The qualified referee or presiding officer of the hearing board shall set the time and place for the prehearing conference, and the Department shall give written notice to all parties.
(2) The rehearing conference may deal with one or more of the following matters:
(A) Exploration of settlement possibilities.
(B) Preparation of stipulations.
(C) Clarification of issues.
(D) Rulings on identity and limitation of the number of witnesses.
(E) Objections to proffers of evidence.
(F) Order of presentation of evidence and cross-examination.
(G) Rulings regarding issuance of subpoenas and protective orders.
(H) Schedules for the submission of written briefs if necessary, and schedules for the commencement and conduct of the hearing.
(I) Any other matters as shall promote the orderly and prompt conduct of the hearing.
(3) The qualified referee or hearing board shall issue a prehearing order incorporating the matters determined at the prehearing conference. The qualified referee or hearing board may direct one or more of the parties to prepare a prehearing order.
(o) Conduct of hearing; disqualification of qualified referee or member of the hearing board; reporting.
(1) Every hearing in a contested case shall be presided over by a qualified referee or hearing board that shall exercise all powers relating to the conduct of the hearing.
(2) A qualified referee or hearing board member shall voluntarily disqualify himself or herself and withdraw from any case in which he or she cannot accord a fair and impartial hearing or consideration. Any party may request the disqualification of any qualified referee or hearing board member by filing an affidavit, prior to the taking of evidence at a hearing, stating with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded. The issue shall be determined by the qualified referee or hearing board.
(3) The proceedings at the hearing shall be reported by an electronic tape recording system.
(p) Evidence; examination of witnesses; interpreters.
(1) Oral evidence shall be taken only on oath or affirmation.
(2) Each party shall have these rights: to call and examine witnesses; to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach any witness regardless of which party first called him or her to testify; and to rebut the evidence against him or her. If the person upon whom the complaint was served does not testify in his or her own behalf he or she may be called and examined as if under cross-examination.
(3) The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely upon in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it,would be admissible over objection in civil actions. The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing, and irrelevant and unduly repetitious evidence shall be excluded.
(4) The hearing shall be conducted in the English language, except that a party who does not proficiently speak or understand the English language and who requests language assistance shall be provided an interpreter approved by the qualified referee or the presiding officer of the hearing board conducting the proceedings. The cost of providing the interpreter shall be paid by the Department if the qualified referee or presiding officer so directs, otherwise by the party for whom the interpreter is provided. The qualified referee's or hearing board's decision to direct payment shall be based upon an equitable consideration of all the circumstances in each case, such as the ability of the party in need of the interpreter to pay. Such an interpreter shall be selected from the list issued by the State Personnel Board pursuant to Government Code section 11513.
(5) In the event that interpreters on the approved list cannot be present at the hearing, or if there is no interpreter on the approved list for a particular language, the qualified referee or presiding officer shall have discretionary authority to provisionally qualify and utilize other interpreters.
(6) The Department shall advise each party of their right to an interpreter at the same time that each party is advised of the hearing date. Each party in need of an interpreter shall also be encouraged to give timely notice to the Department conducting the hearing so that appropriate arrangements can be made.
(7) The rules of confidentiality of the Department, if any, which may apply in an adjudicatory hearing, shall apply to any interpreter in the hearing, whether or not these rules so state.
(8) The interpreter shall not have had any involvement in the issues of the case prior to the hearing.
(q) Qualified referee or hearing board; ex parte communication with party or interested person prohibited in absence of notice and participation opportunity.
(1) Except as required for the disposition of ex parte matters specifically authorized by statute, a qualified referee or hearing board member may not communicate, directly or indirectly, upon the merits of a contested matter while the proceeding is pending, with any party, including employees of the Department, with any person who has a direct or indirect interest in the outcome of the proceeding, or with any person who presided at a previous stage of the proceeding, without notice and opportunity for all parties to participate in the communication.
(2) Unless required for the disposition of ex parte matters specifically authorized by statute, no party to an adjudicative proceeding, including employees of the Department, and no person who has a direct or indirect interest in the outcome of the proceeding or who presided at a previous stage of the proceeding, may communicate directly or indirectly, upon the merits of a contested matter while the proceeding is pending, with any person serving as a qualified referee or hearing board member, without notice and opportunity for all parties to participate in the communication, unless prior consent is obtained from all parties to the action.
(3) If, before serving as a qualified referee or hearing board member, a person receives an ex parte communication of a type that could not properly be received while serving, the person, promptly after starting to serve, shall disclose the communication in the manner prescribed in subsection (g)(4) of this section.
(4) A qualified referee or hearing board member who receives an ex parte communication in violation of this section shall place on the record of the pending matter all written communications received, all written responses to the communications, and a memorandum stating the substance of all oral communications received, all responses made, and the identity of each person from whom the qualified referee or hearing board member received an ex parte communication, and shall advise all parties that these matters have been placed on the record. Any person desiring to rebut the ex parte communication shall be allowed to do so, upon requesting the opportunity for rebuttal within 10 days after notice of the communication.
(5) The receipt by a qualified referee or hearing board member of an ex parte communication in violation of this section may provide the basis for disqualification of that qualified referee or hearing board member pursuant to this section. If the qualified referee or hearing board member is disqualified, the portion of the record pertaining to the ex parte communication may be sealed by protective order by the qualified referee or hearing board member so disqualified.
(r) Affidavits.
(1) At any time 10 or more days prior to a hearing or a continued hearing, any party may mail or deliver to the opposing party a copy of any affidavit which he or she proposes to introduce in evidence, together with a notice as provided in subsection (r)(2) of this section. Unless the opposing party, within seven days after such mailing or delivery, mails or delivers to the proponent a request to cross-examine an affiant, his or her right to cross-examine such affiant is waived and the affidavit, if introduced in evidence. shall be given the same effect as if the affiant had testified orally. If an opportunity to cross-examine an affiant is not afforded after request therefor is made as herein provided, the affidavit may be introduced in evidence, but shall be given only the same effect as other hearsay evidence.
(2) The notice referred to in subsection (r)(1) of this section shall be substantially in the following form:
The accompanying affidavit of (here insert name of affiant) will be introduced as evidence at the hearing in (here insert title of proceeding). (here insert name of affiant) will not be called to testify orally and you will not be entitled to question him or her unless you notify (here insert name of proponent or of his or her attorney) at (here insert address) that you wish to cross-examine him or her. To be effective your request must be mailed or delivered to (here insert name of proponent or his or her attorney) on or before (here insert a date seven days after the date of mailing or delivering the affidavit to the opposing party).
(s) Official notice.
In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any generally accepted technical or scientific matter within the Department's jurisdiction, and of any fact which may be judicially noticed by the courts of this State. Parties present at the hearing shall be informed of the matters to be noticed, and those matters shall be noted in the record, referred to therein, or appended thereto. Any such party shall be given a reasonable opportunity on request to refute the officially noticed matters by evidence or by written or oral presentation of authority, the manner of such refutation to be determined by the qualified referee or hearing board.
(t) Decision consideration, preparation, adoption.
(1) A qualified referee or hearing board shall prepare, within 30 days after the conclusion of the hearing, a proposed decision which recommends the penalty to be imposed or the revocation or suspension of a license or permit. The proposed decision shall be submitted to the Director and shall be served upon the person whom the complaint was issued or his or her duly appointed representative.
(2) The Director may adopt, revise or reject the proposed decision or may enter into a settlement agreement with the person upon whom the complaint was served. If the Director revises, rejects or enters into a settlement agreement, the Director shall seek the recommendation of the qualified referee or the hearing board and shall enter into record of case the reasons for that action including the qualified referee's or hearing board's recommendations.
(3) Within thirty days after receipt of the proposed decision, the Director shall issue an order. If the order is issued against the person named in the complaint, the order shall set forth the amount of civil penalty to be imposed or the revocation or suspension of a license or permit. The order shall be served by personal service or by certified mail to the person upon whom the complaint was served. The order by the Director is final.
(u) Appeal.
Within 30 days after service of a copy of an order setting the amount of a civil penalty or revoking or suspending a license or permit, the person served may file with the Superior Court a petition for writ of mandate for review of the order. The record of the proceedings shall be prepared by the Department and delivered to the person upon whom the complaint is received by the Department after payment of any and all fees for the transcription of the record.


Note: Authority cited: Section 2589, Fish and Game Code. Reference: Section 2580-2589, Fish and Game Code.

s 749. Special Order Relating to Incidental Take of Sacramento River Spring-Run Chinook Salmon During Candidacy Period.
The Commission finds that, based on current knowledge and existing protection and management efforts outlined in Appendices 1 [FNa1] and 2 [FNa2], the level of habitat loss and take of Sacramento River spring-run chinook salmon individuals which is likely to occur during the period that this regulation is in effect will not cause jeopardy to the continued existence of the species.
(a) Take Authorization
Based on the above findings, the Commission authorizes the take of Sacramento River spring-run chinook salmon during the candidacy period subject to the terms and conditions herein.
(1) Inland Sport Fishing
Take of Sacramento River spring-run chinook salmon is authorized in accordance with the regulations adopted by the Commission.
(2) Ocean Sport Fishing
Take of Sacramento River spring-run chinook salmon is authorized in accordance with the regulations adopted by the Commission.
(3) Upper Sacramento River, Tributaries
Take of Sacramento River spring-run chinook salmon is authorized incidental to life-history studies described in (d)(3)(H) of Appendix 1, water diversions as described in (d)(3)(A)-(d)(3)(E) and (d)(6) of Appendix 1, and restoration actions described in (d)(3)(F)-(d)(3)(J) of Appendix 1, provided that such activities are substantially similar in nature and scope to those activities which existed on the effective date of this regulation, and provided further that there is no material change, to the detriment of conservation, in the existing management measures. The Commission shall determine, in its sole discretion, whether there has been a detrimental material change in such management measures.
(4) San Francisco Bay/Sacramento-San Joaquin River Delta Estuary
Take of Sacramento River spring-run chinook salmon is authorized incidental to water diversions described in (d)(6) of Appendix 1, provided that such activities are substantially similar in nature and scope to those activities which existed on the effective date of this regulation, and provided further that there is no material change, to the detriment of conservation, in the existing management measures. The Commission shall determine, in its sole discretion, whether there has been a detrimental material change in such management measures.
Take of Sacramento River spring-run chinook salmon is authorized incidental to operation of the State Water Project facilities and the Central Valley Project facilities in accordance with the 1995 WQCP and the Central Valley Project Improvement Act and as may be modified by the Operations Group through the process described in (d)(5) of Appendix 1. (For example, the CALFED OPERATIONS GROUP SACRAMENTO RIVER SPRING-RUN CHINOOK SALMON PROTECTION PLAN, dated October 27, 1997, found in Appendix 2.)
(b) Additions, Modifications, or Revocation
Other actions not addressed in this regulation requiring authorization for incidental take of Sacramento River spring-run chinook salmon from the Commission pursuant to Fish and Game Code Section 2084 or, to the extent allowed by law, by the Department of Fish and Game pursuant to Fish and Game Code Section 2081, will be considered on a case-by-case basis.
The Commission may modify or repeal this regulation in whole or in part, pursuant to law, if it determines that any activity, project or persons may cause jeopardy to the continued existence of the Sacramento River spring-run chinook salmon. In the event of a "triggering event (for consultation)", as defined in the CALFED OPERATIONS GROUP SACRAMENTO RIVER SPRING-RUN CHINOOK SALMON PROTECTION PLAN, or in the event the monitoring devices currently in place on Mill and Deer creeks are removed or rendered inoperable, the Commission shall forthwith institute an emergency action under Government Code Section 11125.5(a) and (b) to review the events which gave rise to the triggering event or loss of monitoring devices, and to consider modification of this regulation. [Note : During the candidacy period of the spring-run chinook salmon, the commission commits to remaining informed on a timely basis as to the activities described in this regulation to determine if the commission must consider modification of the regulation. For example, in order to be informed of and responsive to potential impacts on spring-run throughout the candidacy period, the commission staff shall receive all electronic mail notices sent by the CALFED Operations Group Data Assessment Team (DAT) and the No Name Group to provide timely information to the commission. Based on this information, the commission will determine an appropriate level of participation in these conference calls and related meetings. When considering information of potential impacts or modification of this regulation, the commission shall ask staff for pertinent information about activities from other agencies or programs that could affect spring-run salmon, including the CALFED Bay-Delta Program, the CALFED Operations Group, the SWRCB Bay-Delta Water Rights Hearings, and the U.S. Fish and Wildlife Service and National Marine Fisheries Service (with respect to their biological opinions). Such involvement and information is intended to facilitate the commission's role in providing effective measures to protect spring-run salmon while minimizing conflicts with other resource needs. As provided by this regulation, where information warrants, the commission would convene an emergency meeting (under Government Code Section 11125.5) to determine whether any activity may cause jeopardy to the spring-run and if modification of this regulation is necessary. Specifically, the commission acknowledges that the CALFED Operations Group Spring-run Chinook Salmon Protection Plan and the fish monitoring program, described by the Plan to determine salmon movements in the rivers and the Delta, continue to be in effect throughout the spring-run candidacy period and that the status of spring-run salmon will continue to be a factor in the Operations Group's decision making. (See Appendix 2, page 2, of this regulation.) Through receipt of DAT and No Name Group conference call notices, the commission will be able to determine when to participate in these groups, especially if these groups are making recommendations to DWR and USBR as to adjustments in CVP or SWP Delta pumping operations for purposes of spring-run salmon protection. Through this process, the commission may consider providing recommendations to DWR and USBR for protecting spring-run salmon and also may consider modifying this regulation through an emergency action to implement such protective measures.]
[FNa1] Copies of Appendices 1 and 2, including attachments, which are referenced in this regulation are available upon request from the Fish and Game Commission, 1416 Ninth Street, Box 944209, Sacramento, CA 94255-2090 (Telephone: 916 653-4899).


Note: Authority cited: Sections 200, 202, 205, 240 and 2084, Fish and Game Code. Reference: Sections 200, 202, 205, 240 and 2084, Fish and Game Code.

s 749.1. Special Order Relating to Incidental Take of Coho Salmon (Oncorhynchus kisutch) During Candidacy Period.
The commission finds that, based on current knowledge and protection and management efforts outlined in this regulation, including Exhibits A through D [FNa1], the level of habitat loss and take of coho salmon which is likely to occur during the period that this regulation is in effect will not cause jeopardy to the continued existence of the species.
(a) Take Authorization.
Based upon the above findings, the commission authorizes the take of coho salmon north of San Francisco (Exhibit A) during the candidacy period subject to the terms and conditions herein.
(1) Inland and Ocean Sport and Commercial Fishing.
Coho salmon may not be retained during sport or commercial fishing in any waters of the State. Incidentally hooked or netted coho salmon must be immediately released unharmed to the waters where they are hooked or netted.
(2) Suction Dredging.
Incidental take of coho salmon during suction dredging that complies with Section 228, Title 14, CCR, is authorized during the candidacy period.
(3) Research and Monitoring.
(A) Take of coho salmon by department personnel in the course of research and monitoring is authorized pursuant to Section 783.1(c), Title 14, CCR.
(B) Take of coho salmon in the course of research and monitoring by public agencies and private parties is authorized subject to restrictions in Exhibit B.
(4) Hatchery Operations.
Take of coho salmon by the Department of Fish and Game for hatchery management purposes is authorized pursuant to Section 783.1(c). Title 14, CCR.
(5) Habitat Restoration.
(A) Incidental take of coho salmon resulting from planning, assessment, inventory, construction, maintenance and monitoring activities consistent with the objectives of the Department of Fish and Game Fisheries Restoration Grants Program and carried out in the manner prescribed in the department's "California Salmonid Stream Habitat Restoration Manual - Third Edition, January 1998", is authorized. Incidental take resulting from an activity not carried out in such manner is authorized only if the activity is performed under the supervision or oversight of, or is funded by the department.
(B) Incidental take resulting from activities performed by department employees related to constructing, installing, operating and maintaining facilities or stream features designed to eliminate or minimize barriers to fish migration and fish rescue operations is authorized pursuant to Section 783.1(c), Title 14, CCR.
(6) Extraction of Gravel Resources.
Incidental take of coho salmon resulting from the extraction of gravel resources in a stream or river, is authorized for the coho candidacy period provided that such activities are conducted in accordance with the measures specified in Exhibit C.
(7) Water Diversions.
Incidental take of coho salmon resulting from diversion of water, for any purpose, is authorized during the candidacy period, subject to the following conditions:
(A) Existing unscreened diversions may continue in operation through the candidacy period. Upon any future determination by the commission that coho salmon shall be added to the list of threatened or endangered species, incidental take for such diversions must be authorized under Fish and Game Code Section 2081(b) or be determined exempt from the permitting requirement under Fish and Game Code Section 2080.1.
(B) Diversions approved and constructed after the effective date of this section shall be screened and shall meet the Department of Fish and Game Fish Screening Criteria (dated June 19, 2000) included in this regulation as Exhibit D.
(C) Existing fish screens that are repaired, upgraded, or reconstructed during the candidacy period must meet the Department of Fish and Game Fish Screening Criteria (dated June 19, 2000) included in this regulation as Exhibit D.
(8) Department of Fish and Game Streambed Alteration Agreements.
Incidental take of coho salmon during the candidacy period is authorized for any project carried out in compliance with section 1601 or 1603 of the Fish and Game Code, for which a Lake or Streambed Alteration Agreement (Agreement) has been entered into between the department and the party undertaking the activity, provided that:
(A) any measures identified by the department as necessary to protect coho salmon are incorporated into the signed Agreement and are fully implemented by the party undertaking the activity; and
(B) the project otherwise complies with other relevant provisions of this section. Projects that will involve the extraction of mineral resources shall also comply with subsection (a)(6), and projects involving water diversions shall also comply with subsection (a)(7) of Section 749.1, Title 14, CCR.
(9) Pacific Lumber Company Habitat Conservation Plan.
Incidental take of coho salmon resulting from activities within the Plan and Permit Area described as Covered Activities in the "Habitat Conservation Plan for the Properties of The Pacific Lumber Company, Scotia Pacific Holding Company, and Salmon Creek Corporation, February 1999", is authorized during the candidacy period insofar as activities are conducted in accordance with the relevant Operating Conservation Plans.
(10) Forest Practices.
Incidental take of coho salmon is authorized during the candidacy period for otherwise lawful timber operations that comply with conditions specified in the revised final rule language, "Protection for Threatened and Impaired Watersheds, 2000", sections 895, 895.1, 898, 898.2, 914.8, 934.8, 954.8, 916, 936, 956, 916.2, 936.2, 956.2, 916.9, 936.9, 956.9, 916.11, 936.11, 956.11, 916.12, 936.12, 956.12, 923.3, 943.3, 963.3, 923.9, 943.9 and 963.9, Title 14, CCR (which can be found on the Board of Forestry website at www.fire.ca.gov/BOF/pdfs/FRLZ00011814.pdf).
(11) Additions, Modifications or Revocation.
(A) Incidental take of coho salmon north of San Francisco from activities not addressed in this section may be authorized during the candidacy period by the commission pursuant to Fish and Game Code Section 2084 or by the department pursuant to Fish and Game Code Section 2081, on a case-by-case basis.
(B) The commission may modify or repeal this regulation in whole or in part, pursuant to law, if it determines that any activity or project may cause jeopardy to the continued existence of coho salmon north of San Francisco.
[FNa1] A copy of Exhibits A through D which are referenced in this regulation is available upon request from the Fish and Game Commission, 1416 Ninth Street, Box 944209, Sacramento, CA 94255-2090 (Telephone 916 653-4899).


Note: Authority cited: Sections 200, 202, 205 and 2084, Fish and Game Code. Reference: Sections 200, 202, 205, 2080, 2084 and 2085, Fish and Game Code.

Exhibit A - Coho Salmon Distribution North of San Francisco


Exhibit B
Incidental Take Authorization Standards for Research and Monitoring During the
Candidacy Period for Coho Salmon

Research Proposals
Take of coho salmon during the candidacy period is authorized for individuals, agencies, or universities and landowners for purposes of research and monitoring provided that:
(i) For ongoing research, a written, detailed project proposal describing objectives, methods (gear, sampling schedules and locations), efforts to minimize adverse effects to the species, estimated level of take of the species, and a copy of a permit authorizing take pursuant to the Federal Endangered Species Act shall be provided to the appropriate Department Regional Manager within 45 days of this regulation becoming effective.
(ii) For research which has not yet commenced, a written, detailed project proposal describing objectives, methods (gear, sampling schedules and locations), efforts to minimize adverse effects to the species, estimated level of take of the species, and a copy of a permit authorizing take pursuant to the Federal Endangered Species Act shall be provided to the appropriate Department Regional Manager.
(iii) The research or monitoring may commence once the Department issues written concurrence that the research and monitoring activities conducted are consistent with the Department's research and monitoring programs and are sufficient to protect coho salmon. The Department may specify additional terms and conditions for the protection of coho salmon and the reporting of all data collected to the Department.
Alternative Procedure
At the discretion of the Department, research and monitoring activities not addressed by the above procedures may receive separate authorization for take of coho salmon by the Department pursuant to Fish and Game Code Section 2081.
Department of Fish and Game Contacts
Regional Manager, Northern California - North Coast Region; 601 Locust Street, Redding, CA 96001 - (530) 225-2300.
Regional Manager, Central Coast Region; 7329 Silverado Trail, P.O. Box 46, Yountville, CA 94599 - (707) 944-5500.


Exhibit C
Incidental Take Authorization Standards for In-Stream Gravel Extraction During
the Candidacy Period for Coho Salmon

1. A gravel extraction plan including design features, mitigation measures, and enhancement recommendations that minimize impacts to salmonids shall be prepared by the operator and submitted to the Department for review and approval before extraction may begin. The maximum amount permitted to be removed shall be no more than the amount of sand and gravel that is annually replenished in the proposed extraction area, and cumulative extraction quantities shall be consistent with the long-term average annual sustained yield based on estimates of mean annual recruitment.
2. Extraction of gravel shall be accomplished by "skimming" or grading of gravel from bars above the low water channel unless another technique is approved in advance by the Department. The gravel barsshall be sloped from the bank down towards the thalweg and downstream to avoid stranding of salmonids. No holes or depressions shall be allowed to remain in the extraction area. No extraction of the streambanks shall be allowed. (continued)