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Law Office of E. Michael Linscheid

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Are Fish And Wildlife Violations Criminal Or Civil In Nature Or Could They Be Both?Fish and wildlife violations can be both criminal and civil in nature. In California, the Fish and Game Code and Title 14 of the California Code of Regulations cover the entirety of the Fish and Game laws’ criminal regulatory violations and criminal penalties. However, in California, primarily regarding commercial fishers, there is a trend amongst prosecutors of opting to charge violations of the Fish and Game code and Title 14 of the Code of Regulations as violations of the Unfair Practices Act. Prosecutors proceed in this manner because a single act of unfair business practices can result in fines of up to $2,500 per violation and the standard of proof in a civil case are lower than the standards for obtaining a conviction in a criminal proceeding. The penalties in a criminal case are limited by the excessive fines clause of the United States Constitution. When a prosecutor proceeds by way of the Unfair Practices Act, fishers can be fined with tens or hundreds of different breaches to increase a person’s potential exposure in excess of the criminal sanction for the same offense.

The National Oceanic Atmospheric Administration (NOAA) enforces laws pertaining to Marine resources in federal waters. It is tasked with managing fisheries to the Magnuson-Stevens Fishery Conservation Act, implementing the endangered species act, the Marine Mammal Protection Act, and the National Environmental Policy Act. And all of these have both criminal and civil components. Fish and wildlife violations can be prosecuted both criminally and civilly. The US Fish and Wildlife Service conducts civil and criminal investigations on the taking of birds and game and deportation of foreign species.

Are The Criminal Charges Going To Be Generally Misdemeanor Or Felony Charges And What Is The Distinction?

The vast majority of violations of the California Fish and Game Code are misdemeanors, with the exception of minor charges, which can be charged as either a misdemeanor or an infraction. Those who violate the Fish and Game Code can be charged with a felony in the circumstances involving a criminal conspiracy or conduct involving more egregious acts of poaching. When the person’s wrongful intent increases, so does the likelihood the offense will be charged as a felony. For more unknowing violations, those are typically charged as an infraction and potentially a misdemeanor. An infraction does not involve any jail time, and it’s just a fine; misdemeanors can include jail time not exceeding one year in the county jail, and then a felony can involve the potential for state prison.

When Does The Fish And Wildlife Violation Become A Federal Offense?

Fish and wildlife offenses in federal waters more than three miles from shore or on federal land can be charged in federal court. Similarly, violations of the Lacey Act, which involves the illegal taking, possessing, transporting, or sale of protected species in violation of state or federal law, will also be charged in federal court. Typically, a crime that occurs within California or any state will be prosecuted by the state government or state prosecutors. Once you are either in waters beyond three miles from shore or when the conduct involves interstate commerce or specific violations of federal law, these violations will be prosecuted as federal offenses. These are the primary ways in which a fish and wildlife violation becomes a federal offense.

If An Alleged Violation Occurred On Tribal Land, How Does That Impact A Case?

In most circumstances, the regulation of the violation occurring on tribal land is primarily within the jurisdiction of the tribe. However, there are some circumstances where it may impact non-tribal land, which can be prosecuted in federal or state court.

What Are The Criminal Sanctions For Someone Convicted Of A Felony Or Misdemeanor Violation At Both The State And Federal Levels?

In California, a misdemeanor sanction at the state level includes a maximum punishment of six months for certain violations and one year in the county jail for more serious misdemeanor violations, which are governed by the Fish and Game Code. Felony violations of the Fish and Game Code are typically limited to conspiracy charges, which involve working in collusion with others with the intent to violate a Fish and Game Code. Felony violations are also limited to more egregious poaching. Killing a human while pursuing a bird or mammal under Fish and Game Code section 12001 is also charged as a felony.

A federal violation of the Lacey Act as a misdemeanor carries a maximum term of imprisonment for one year and five years for a felony. Under the Migratory Bird Treaty Act, penalties can range from a maximum of six months and a fine of $15,000 for misdemeanor violations to a maximum sentence of two years imprisonment and a $500,000 fine for an organization convicted of a felony violation. The federal government under the Trump administration decriminalized the accidental killing of migratory birds by businesses like construction companies who may have accidentally killed a migratory bird, and now, the Biden administration has reinstated the criminal sanctions for the accidental killing of migratory birds.

For more information on Fish And Wildlife Cases in Californiaan 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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