Judge James C. Chalfant, Case Number: 22STCP03987, Date: 2023-09-12 Tentative Ruling

Petitioner John Crowe (“Crowe”) seeks a writ of mandate vacating the penalty decision of Respondent California Fish and Game Commission (“Commission”) for a five-year suspension of his commercial fishing license and his lobster operator permit (collectively, “Licenses”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioner Crowe filed the Petition on November 7, 2022, alleging a claim of administrative mandamus. The Petition alleges in pertinent as follows.

The California Department of Fish and Wildlife (“DFW”) filed an accusation with Commission seeking revocation of Crowe’s Licenses. An administrative law judge (“ALJ”) with the Office of Administrative Hearings (“OAH”) conducted a hearing on the Accusation on January 19 and 20, 2022. On March 23, 2022, the OAH issued a proposed decision recommending that the Commission suspend Crowe’s Licenses for one year. On April 20, 2022, Commission rejected the proposed decision and chose to decide the case upon the record. Commission heard oral argument on August 17, 2022 and subsequently issued a decision suspending Crowe’s Licenses for five years.

On November 29, 2022, the court denied Crowe’s ex parte application to stay Commission’s decision suspending his Licenses.

On March 20, 2023, pursuant to court order, Commission Executive Director Melissa Miller-Henson filed a declaration stating that Commission has no policy or manual in place regarding the suspension, revocation, or penalization of commercial fishing licenses or permits.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514 15.

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143; see CCP §1094.5(c). An administrative decision imposing discipline on a professional licensee is decided under the independent judgment standard. Griffiths v. Superior Court, (2002) 96 Cal.App.4th 757, 767.[1]

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Bixby, supra, 4 Cal.3d at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013 16.

“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150 51; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514 15. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

It is unlawful to possess a bird, mammal, fish, reptile, amphibian, or part of any of those animals, taken in violation of the Fish and Game Code (“F&G Code”)[2] or any regulations adopted pursuant to it. §2002. To “take” a fish is to hunt, pursue, catch, capture, or kill it, or attempt to do so. §86. “Fish” means wild fish, mollusks, crustaceans, invertebrates, or amphibians, including any part, spawn, or ova thereof. §45.

No person shall use or operate any boat or appliance to take fish for commercial purposes unless DFW has issued that person a commercial fishing license. §7850(a). A licensed commercial fisherman cannot fish for lobster without either a transferable lobster operator permit, a non-transferable lobster operator permit, or a lobster crewmember permit. 14 CCR §122(a).

All licenses, tags, and fish taken or otherwise dealt with under the F&G Code shall be exhibited upon demand to any person authorized by DFW to enforce the F&G Code or any law that relates to fish protection and conservation. §2012.

The holder of a fishing license shall keep a true record of all fish taken and shall comply with such regulations as Commission may prescribe. §7923.

Commission may require the owner and operator of a commercial fishing vessel, the holder of a commercial fishing license or permit, and the owner and licenseholder of a commercial passenger fishing boat to keep and submit a complete and accurate record of fishing activities in a form prescribed by DFW. §8026(a); 14 CCR §190(c). This logbook must be immediately surrendered upon demand to a DFW peace officer. 14 CCR §190(c).

Failure to keep required logbooks may result in revocation or suspension of the license or permit for taking of either all fish or the species at issue, not to last more than one year. 14 CCR §190(e).

Every commercial fisherman who sells or delivers fish taken by him or her to any person who is required to be licensed as a fish receiver under F&G Code section 8030 et. seq. and is not, shall make a legible landing receipt record on a form that DFW furnishes. §8043(a). Such receipt shall be completed at the time of the receipt, purchase, or transfer of fish, whichever occurs first. §8043(a). The landing receipt shall include an accurate weight of the species of fish received, as well as any other information that DFW prescribes. §8043(b)(1), (9).

Only licensed commercial fisherman operating under a valid lobster operator permit or lobster crewmember permit may take spiny lobsters for commercial purposes. 14 CCR §122(a).

It is unlawful to possess on any boat or to bring ashore any fish upon which a size or weight limit is prescribed in such a condition that its size or weight cannot be determined. §5508.

No person may take, possess, purchase, or sell a spiny lobster less than 3.25 inches in length measured in a straight line from the rear edge of the eye socket to the rear edge of the body shell. §8252. Every person who takes spiny lobster shall carry a measuring device and shall measure any lobster immediately on removal from a trap. Id. If it is found to be undersized, the lobster shall be returned to the water immediately. Id.

Spiny lobsters must be kept in a whole, measurable condition such that their size can be determined, until being prepared for immediate consumption. 14 CCR §§ 29.90(e), 121.5(a).

Commission has designated marine protected areas, marine managed areas, and special closures. 14 CCR §632. 14 CCR section 632(b)(120)(A) defines the boundaries of the Abalone Cove State Marine Conservation Area (“SMCA”) where the taking of any living, geological, or cultural marine resource for commercial or recreational purposes is prohibited. 14 CCR §§ 632(a)(1)(c), (b)(120)(B).

After notice and opportunity for hearing, Commission may suspend, revoke, or cancel commercial fishing privileges for the period it so determines, based on a violation of the F&G Code or any regulation adopted pursuant thereto. §7857(b)(2).

For purposes of license suspension or revocation, a plea of nolo contendre qualifies as a conviction of the statute or regulation violated. §12158.5.

In the analogous case of an appeal for the revocation or suspension of a recreational hunting or sport fishing license or permit privileges, Commission shall consider at least the nature, circumstances, extent, and gravity of the person’s violations, the person’s culpability for the violations, and the injury to natural resources by the violations, and may restore the person's hunting or sport fishing license or permit privileges. §12154(b)(1).

Crowe has been a commercial fisherman his entire adult life. AR 483. Crowe began fishing recreationally as a youth and has fished in multiple commercial fisheries, including lobster, squid, and rod and reel in southern California. AR 484.

On December 16, 2008, Warden S. Garcia (“Garcia”) cited Crowe for possession of six undersized lobsters out of a total catch of about 150. AR 65-66. This was a violation of section 8252. AR 66. Garcia confirmed that Crowe had measured the lobsters with the same type of gauge as Garcia. AR 66. Crowe admitted that the six lobsters were short and needed a year or two to reach legal size. AR 66.

In February 2009, the prosecution dismissed the case against Crowe in the furtherance of justice. AR 97.

On February 7, 2014, while on patrol on the coast of Palos Verdes, Warden L.D. Arkinstall (“Arkinstall”) saw two lobster traps 69 and 109 yards into an SMCA. AR 71-72. Arkinstall wrote that these traps violated 14 CCR section 632(b)(98)(B), which prohibits the taking of living resources from the SMCA. AR 72.

Arkinstall contacted Crowe, the owner of the traps. AR 72. Crowe said he set those traps two days earlier on February 5, 2014, and that they must have drifted into the SMCA. AR 73. Arkinstall replied that this was unlikely because the prevailing wave direction would have forced the traps southeast, farther away from the SMCA. AR 73. This meant that Crowe must have set the traps deeper into the SMCA than Arkinstall found them. AR 73.

When Arkinstall contacted Crowe again on March 1, 2014, Crowe argued that the wind must have pushed his traps into the SMCA. AR 73. Arkinstall cited Crowe for a violation of 14 CCR section 632(b)(98)(B). AR 71.

In August 2014, Crowe pled nolo contendre to a count of disturbing the peace under Penal Code section 415 for the incident. AR 100. The court assessed $280 in fines, which Crowe paid. AR 100.

On December 8, 2015, Warden M. Louden (“Louden”) observed Crowe pulling traps from the water and asked to inspect Crowe’s Licenses and catch. AR 88. Louden discovered two undersized lobsters, a violation of section 8252. AR 88. Crowe stated that he could not accurately measure the lobsters because the boat was rocking from waves when he pulled the traps from the water. AR 88. Louden confiscated the lobsters and issued a citation. AR 88.

In April 2016, Crowe pled nolo contendre for this violation of section 8252. AR 90. The court imposed a suspended sentence and summary probation of one year, assessed a fine of $2,325, and ordered Crowe to obey all laws. AR 90. Crowe paid the fine. AR 91.

On January 17, 2016, Warden P. Ton (“Ton”) approached Crowe as his vessel returned to King Harbor from a fishing trip. AR 59. Ton approached from the rear at a speed between 30-35 mph, while Crowe traveled 25-30 mph. AR 59. As Ton approached, Crowe was cleaning the two 55-gallon barrels. AR 59.

When Crowe saw Ton, he looked startled and immediately moved toward a 35-gallon-grey barrel on the right side of his boat. AR 59. Ton shouted: “State Fish and Wildlife. Stop.” AR 59. Crowe ignored the order and dumped the 35-gallon barrel over the side. AR 59. Ton observed 12-15 undersized lobsters fall out of that barrel into the ocean. AR 59. Ton’s fellow warden pulled their vessel within five feet of Crowe’s boat. Crowe walked quickly to the left side of his vessel. AR 59. Despite two more directions to stop, he unloaded a white five-gallon bucket over the left rail. AR 59. Ton saw about ten shapes that he believes were lobster tails fall out of the bucket. AR 59.

When the wardens boarded, Ton asked Crowe why he dumped the two barrels into the ocean. AR 59. Crowe nervously stated that he was just cleaning out the barrels. AR 59. He then admitted that he did something stupid that he should not have done; he had tails on board that he should not have had. AR 59. There were about ten lobster tails in the white bucket and their ten carapaces plus five whole lobsters in the grey bucket. AR 59-60. Ton cuffed Crowe to prevent further destruction of evidence during an inspection. AR 60.

Ton cited Crowe for 15 counts of commercial possession of undersized lobster under section 8252, ten counts of unlawful possession of tailed lobster under section 2002, 25 counts of unlawful destruction of evidence under Penal Code section 135, and one count of obstructing a peace officer under Penal Code section 148(a)(1). AR 60.

In April 2016, Crowe pleaded nolo contendre to one count of violating section 5508. AR 102-03. The court sentenced him to one day in jail and one year of probation and ordered Crowe to obey all laws. AR 103.

In December 2016, a confidential informant (“CI”) met with Arkinstall and his patrol boat’s squad of DFW officers concerning Crowe. AR 44. The CI reported that Crowe was selling “sport packs”, which he described as lobster tails. AR 44. Crowe had been seen with a bucket of tails which he threw off the dock when a DFW warden arrived in the parking lot. AR 44. The CI also stated that Crowe was known to sell lobster with carapace length less than the legal requirement. AR 44. He further asserted that Crowe had admitted that he had questionable (undersized) lobster that he was selling to a receiver when a DFW warden drove by as the transaction was occurring. AR 44-45.

On March 9, 2017, Arkinstall, in plain clothes, observed Crowe’s vessel dock. AR 45. He saw Crowe’s deckhand dump lobster into a receiver at the dock. AR 45. Crowe and his deckhand unloaded and cleaned the vessel. AR 45.

On March 10, 2017,[3] Loudon saw Crowe’s vessel return to its slip. AR 45. He and his fellow commercial fisherman unload a white bucket with a green towel. AR 45. They loaded a dolly with trash cans and with buckets. AR 45.

Arkinstall called Warden Loudon to help inspect Crowe. AR 55. Warden Katherine Hummel (“Hummel”) also responded to Arkinstall’s call for assistance. AR 89. Arkinstall, then in uniform, contacted Crowe, his deckhand, and a third party, Stacian Gabrielli (“Gabrielli”). AR 45. Gabrielli had a black plastic bag which she spontaneously said to Crowe: “I grabbed this off the gate, thanks.” AR 45. Arkinstall asked to inspect the bag and felt lobster tails in it. AR 45.

Louden approached Crowe as he was walking from his boat to his truck. AR 55. He denied that he caught any lobster either that day or the day before. AR 55. Crowe also stated that the vessel did not have any fish in it. AR 55. Louden asked whether Crowe understood section 2012, which requires fishermen to exhibit all fish upon demand from a warden. AR 55, 89. He then made a formal demand to see the vessel and Crowe’s gear. AR 55. Crowe repeated that he had no fish in the vessel. AR 55. Louden again asked Crowe if he understood section 2012. AR 45, 55. Crowe then admitted that he had some spider crab in the vessel, but nothing else. AR 55.

When Arkinstall asked, Crowe gave him permission to inspect the receivers by his vessel. AR 45. As Arkinstall approached and saw a white bucket near Crowe’s truck, Crowe said “Shit.” AR 46, 55. When asked why Crowe did not mention the bucket, he said he forgot and was not trying to hide it. AR 55. He asserted that the bucket was off to the side because Crowe set it down after he accidentally dumped out trash cans onto the dock. AR 55. Arkinstall did not see any sign of spillage from trash cans, and he had not heard or seen the spill when he was watching Crowe earlier. AR 46.

Arkinstall and Louden both inspected the bucket and found 11 lobster tails under a damp towel. AR 46, 55. Crowe explained that he was taking the lobsters home to eat. AR 46. Crowe explained that he had tailed the lobster out of the harbor because his wife did not like the smell of lobster in the garage. AR 46, 55. This violated section 2002 via 14 CCR section 29.90(e), which requires that spiny lobsters be kept in a whole and measurable condition until being prepared for immediate consumption. AR 46. Crowe admitted that he knew that it was a violation and that he should have waited until he got home. AR 55. Crowe’s actions also violated section 8047(a)(1) for failure to record that a commercial fisherman was taking some fish for personal use. AR 46.

Arkinstall asked Gabrielli how much she paid for the lobster tails and she said that Crowe gave them to her for a bbq tonight. AR 47. He asked Crowe if he had filled out a landing receipt for the lobster tails he gave to Gabrielli and he said no. AR 47. Crowe violated section 8047 when he gave Gabrielli four lobster tails without accepting payment or recording a landing receipt. AR 47.

Arkinstall and Louden also inspected Crowe’s logbook. AR 46, 55. Arkinstall noted that it was not complete, which must occur before disembarking the vessel under 14 CCR section 190(c)(1). AR 46. Crowe said that he completes the log in his truck before he drives away, but Arkinstall responded that he is required to complete the log before he leaves the vessel. AR 46.

Arkinstall cited Crowe for violations of section 2012, 14 CCR section 190(c)(1), section 2002, and 14 CCR section 190(c)(1). AR 42.

In November 2017, Crowe pled nolo contendre to charges that he violated sections 2002 and 2012. AR 93-94. The court placed him on 36 months summary probation, assessed fines and restitution, and ordered him to obey all laws and not fish in Redondo Beach. AR 94.

On March 27, 2019, DFW filed an Accusation with Commission to permanently revoke Crowe’s Licenses. AR 144-60.

Of the ten causes for discipline, the first six stem from the 2017 incident and violations of sections 2012 (AR 154), 2002 (AR 155), 8043(a) (AR 156), and 14 CCR sections 29.90(e) (AR 155), 29.91 (AR 156), and 190(c) (AR 156).

The other four causes for discipline stem from the 2015 incident and a violation of section 5508 (AR 157), the 2015 incident and a violation of section 8252 (AR 157), the 2014 incident and a violation of 14 CCR sections 632(A)(1)(c) and 632(b)(120) (AR 158), and the 2008 incident and a violation of section 8252 (AR 158).

The OAH initially set the hearing for October 6 to 8, 2021. AR 28. After Crowe’s unopposed motion for a continuance (AR 29-30), the OAH rescheduled the hearing for January 19-21, 2022. AR 34-35.

Crowe is a licensed commercial fisherman for lobster. AR 296. In the 2014 incident, Arkinstall was on a skiff patrol when he saw two lobster traps in the SMCA. AR 300-01. He confirmed that the traps were in the SMCA and not just the buoys that marked them. AR 301. He then confirmed that the traps were closed and had bait in them. AR 301. The paint on the traps indicated that they belonged to Crowe. AR 302. Crowe subsequently confirmed that the traps were his. AR 302.

Arkinstall met Crowe near Point Vicente. AR 302. He admitted that they were in the SMCA but said the traps were set outside the SMCA and must have drifted into it. AR 303. In a follow-up call on March 1, 2014, Crowe repeated that the wind or waves must have pushed them in. AR 304. Crowe never admitted or denied that he put the traps in the SMCA. AR 328.

Arkinstall investigated the claim and integrated wind and wave conditions from windfinder.com and UCFD.edu into his report. AR 304305. They show that there was a little bit of wind, but it looked like it would push anything further from the coast and SMCA instead of closer to it. AR 307. Admittedly, a current can move a trap in the opposite direction of the wind. AR 330. Fishermen are so competitive that DFW has had to prosecute people for moving other fishermen’s traps without permission. AR 331-32.

For the 2017 incident, the dates on Arkinstall’s report should read March 9 and 10 instead of 8 and 9. AR 311. The incident began when a CI informed DFW that Crowe was conducting illegal activity of selling tailed lobsters. AR 312. Tailed lobsters are lobsters with the body removed because most people eat the tail. AR 312. Fishermen sell the tails as “sport packs.” AR 312. Arkinstall admitted that he only knew the term “sport pack” from the CI. AR 340.

Arkinstall’s investigation began on March 8, 2017. AR 313. He was in an unmarked vehicle and saw Crowe and another commercial fisherman on board put lobster into the receiver at the dock. AR 313. A “receiver” is a change in which lobster can be kept alive. AR 312.

The next day, Arkinstall, again in an unmarked vehicle, saw Crowe unload a white bucket and place a green towel on top. AR 314. After cleanup, he grabbed the bucket and walked to his truck. AR 315. He saw Gabrielli speak to Crowe and his deckhand. AR 314.

Arkinstall called another warden to contact Crowe. AR 314. A half hour later, Arkinstall, now in uniform, Hummel, and Louden then made contact with Crowe. AR 315. Gabrielli grabbed a bag, looked at Crowe, and said “thanks”. AR 315. Arkinstall asked Crowe if he could inspect the bag. AR 315. Arkinstall felt lobster tails and gave the bag to Hummel. AR 315.

He then asked Crowe for permission to inspect his receivers. AR 315. At this point, Louden had formally demanded to see all fish that Crowe possessed. AR 315-16. Arkinstall saw the white bucket just below Crowe’s vehicle and discovered 11 tailed lobsters inside. AR 316. Crowe spontaneously said: “Shit.” AR 316.

Crowe said that he was going to take the 11 tails home to eat, but this is a violation. AR 316. A lobster must remain whole until immediate consumption so DFW can measure the carapace until then and confirm that the lobster meets size requirements. AR 316. Arkinstall asked where the carapaces were, and Crowe responded that he tailed them outside the harbor because his wife hates the smell in the garage. AR 317. A fisherman taking broken yield home is therefore typical. AR 342-43. Some markets will not accept a lobster with a broken leg or antennae or will only do so for a much lower price. AR 342. The problem was that Crowe tailed the lobsters at the dock as opposed to his house. AR 343. Crowe lives in Redondo Beach, the same town as the harbor in the 2017 incident. AR 344-45.

Arkinstall noticed that Crowe had not fully filled out his daily log. AR 317. Crowe also failed to issue a landing receipt for the tailed lobster he gave to Gabrielli or the ones he took home. AR 318.

Arkinstall cited Crowe for unlawful possession of fish or wildlife under section 2002, possession of a tailed lobster under 14 CCR section 29.90(e), and incomplete logbooks under 14 CCR section 190. AR 320-21.

For the December 16, 2008 incident, Garcia was in his patrol truck when he noticed Crowe’s vessel. AR 360-61. Once he realized that Crowe was a commercial fisherman, he approached and performed an inspection on his catch. AR 361. The catch was in a barrel-like container. AR 361. Garcia measured 150 lobsters, six of which were under the 3.25-inch carapace requirement. AR 361.

After Garcia finished measuring the lobsters, he confirmed that Crowe’s gauge was the same size as his own. AR 361-62. When asked who on the crew measured the lobsters, Crowe confirmed he did. AR 362. He acknowledged that the gauge moved for the six lobsters at issue, which meant they were too small. AR 362. He also stated that he needed his eyes checked. AR 362. Based on the water temperature, Crowe and Garcia agreed that the six lobsters needed at least another year to grow. AR 363.

For the 2016 incident, Ton and another warden were on boat patrol offshore of Redondo Beach when they observed Crowe’s vessel through radar and binoculars. AR 378, 380. As they approached Crowe from the rear-left quarter, it looked like Crowe was cleaning two gray 55-gallon barrels in the center of the deck. AR 381.

Crowe first saw Ton’s vessel when it was about ten feet away. AR 382. Crowe was startled, akin to a kid caught with his hand in the cookie jar. AR 382. Crowe immediately abandoned the barrels and walked to the right of the vessel. AR 382-83. Ton yelled for Crowe to stop and identify himself, but Crowe ignored the command and overturned the contents of a 35-gallon barrel into the ocean. AR 383. Ton saw what looked like 12-15 undersized lobsters fall into the sea. AR 383. They looked like they were the size of crayfish, about half the required size. AR 399. It appeared that Crowe was trying to get rid of the barrel’s contents before the wardens could board his vessel. AR 404.

When Ton’s vessel was only five feet away, Ton and his fellow warden again yelled for Crowe to stop. AR 383-84. Crowe instead walked to the left side of his boat, lifted a white five-gallon bucket over the rail, and dumped what looked like ten lobster tails into the ocean. AR 384.

Crowe’s helmsman then noticed the wardens and slowed Crowe’s boat. AR 385. Ton boarded and asked Crowe what he was doing. AR 385. Crowe first answered nervously that he was cleaning his vessel. AR 385. When asked why he dumped the buckets, Crowe admitted that he freaked out because he had tails on board that he should not have. AR 385. When asked for details, he said there were ten tails in the five-gallon bucket and the ten bodies plus five whole lobsters in the 35-gallon barrel. AR 385. Ton handcuffed Crowe as he searched for more evidence. AR 386.

For the December 2015 incident, Ton and Louden measured Crowe’s catch and discovered that two of Crowe’s lobsters were undersized. AR 389-90. Ton did not personally measure the lobsters, Warden Loudon did. AR 393. He did not remember how many lobsters Crowe had on board. AR 392-93.

Tom Mason (“Mason”) is a Senior Environmental Supervisor with DFW’s Marine Division. AR 412. Spiny lobster fishing holds an important place within fishing communities. AR 417. It dates back to the 1800s and is responsible for the third most valuable fishery. AR 417. He helped develop the spiny lobster management plan based on a harvest control rule that relies on logbook data and landing receipt information. AR 418.

The rule that a caught lobster must be kept intact and meet a size minimum is important to maintain a sustainable commercial lobster fishery. AR 415. Size limits for any species increase the ability of that species to reproduce before capture. AR 415. Lobsters reach sexual maturity when between five and seven years old, or 2.5-3 inches. AR 416, 420. The minimum size to catch a lobster is 3.25 inches to ensure that lobsters live long enough to reproduce at least once. AR 416. The reproductive output of the stock would otherwise reduce over time, which would increase the risk of overfishing and the lobster stock’s collapse. AR 416-17.

The Catch per Unit Effort (“CPUE”) is the ratio of fish of lobster caught per trap dropped. AR 420. The spiny potential ratio (“SPR”) is the estimate of the stock’s spawning output. AR 421. If either number drops below a certain threshold, it may trigger management action. AR 421. The CPUE has generally increased since 2016, and the SPR was at its peak in around 2018. AR 420-21. The lobster population currently is healthy because of the management measures in place. AR 426.

For the March 9, 2017 incident, Hummel was on patrol with Louden when they made contact with Crowe at King Harbor Marina. AR 466-67. King Harbor Marina coordinator, Gabrielli, came up from the dock with a plastic bag. AR 467. She gave it to Arkinstall, who felt it and could tell that there were lobster tails inside. AR 467. Gabrielli confirmed that Crowe gave them to her. AR 467.

Louden asked if Crowe had caught anything and Crowe at first said “No.” AR 467. Louden then advised Crowe that under section 2012, all fish are to be exhibited on demand. AR 467. Hummel does not remember what happened with Crowe afterwards. AR 468. Arkinstall and Louden dealt with him while Hummel stayed with Gabrielli. AR 468. After Arkinstalll and Louden completed the investigation, Hummel gave the lobster tail bag to Arkinstall and left. AR 468.

Crowe began commercially fishing for lobster in 2004 after he purchased a boat and permit from a retired fisherman. AR 485-86. The boat cost him $15,000 and the permit $20,000. AR 486. As of January 2022, a lobster permit sells for $100,000 to $130,000. AR 486.

Other fishery costs include buoys, ropes, traps, and various pieces of electronic equipment. AR 487. He has to replace the boat’s motor every three years. AR 487. His costs average about $20,000 per year. AR 487. Crowe makes about $80,000 to $100,000 a year after he subtracts the $20,000 in costs. AR 488.

Crowe measures lobster as soon as he raises them from the ocean floor. AR 493. He immediately throws undersized lobsters overboard and keeps the rest in a holding tank to keep them alive until they can be received or sold. AR 494. Crowe would never intentionally take undersized lobster because they are of no value, it is in effect stealing from oneself, and it is against regulations. AR 497, 519.

Different wardens have given him different instructions on how to measure lobster lengths. AR 496. Some ask to see the gauge stand up on the carapace without touching both sides or in between. AR 496. Others want to ensure that there is no wiggle room when in that position. AR 496.

For the 2008 incident, Crowe believed all his lobsters met size requirements when Garcia came aboard. AR 494. Garcia said he thought they were undersized, and that Crowe could work that out in court. AR 570-71. Because Crowe was never prosecuted for the 2008 incident, he still believed that the lobsters were legal to take. AR 570. His impression was that the court dismissed the case for that reason. AR 597.

Two days before the 2014 incident, Crowe set 26 traps on either side of the SMCA boundary line. AR 499. Crowe always chooses the same spots. AR 499-00. He plots the boundary line to ensure that he stays out of the MLPA and SMCA. AR 500.

After Arkinstall showed Crowe the traps he found within the SMCA, Arkinstall asked for Crowe’s map plot data, which Crowe provided. AR 501. As to how the traps moved, factors could include weather, kelp carried by the current, boats keelhauling them, or even whale entanglements. AR 504-05, 556. The 2014 incident was not the first time Crowe had to retrieve his traps from inside the MLPA. AR 505. When he finds his gear in the MLPA, the law requires that he rail dump whatever is inside the trap. AR 505.

For the 2015 incident, Crowe was catching about four short lobsters for every legal one. AR 512-13. Louden and Ton boarded the ship for a standard inspection. AR 513. The two lobsters that they eventually deemed short were measured between 10 and 15 times. AR 514. They argued with Crowe about the gauge test, but the wardens eventually considered them clicker fish. AR 514. That was the same type of fish that was at issue in the 2008 incident. AR 566-567.

For the 2016 incident, Crowe was startled when he saw a boat approach from behind because he feared a collision. AR 516-17. He saw only a silhouette and did not know that it was the DFW at first. AR 517. At the time, Crowe had already tailed lobsters that octopus and other fish predation had picked apart, which made them inferior for sale. AR 518-19. It just made more sense to consume them himself or give them to friends and family. AR 519. What the wardens saw him throw overboard was not undersized lobsters, but rather the bodies of the tailed lobsters. AR 519.

Crowe normally fills out his logbook in the morning, save for three fields that can only be filled after he returns: the number of shorts released, the number of legal caught, and the number of traps serviced. AR 526.

During the 2017 incident, Crowe had 15 tailed lobsters in a white bucket on the sidewalk as he spoke to the wardens. AR 536. These lobsters were inferior due to predation. AR 580. He planned to eat 11 and give four to Gabrielli for free for a surf-and-turf meal she had planned. AR 536-37. He could have cleaned the 11 lobsters at home, but he did not want to hear from his wife, who is the only person in the family who does not like lobster. AR 537.

In 2011, it was acceptable to tail a lobster at the harbor and throw the carapace into the water. AR 538. This was economically responsible because crabs could feed on those entrails. AR 586. Crowe had sufficient time before the 2017 incident to learn that the regulations had changed, but he had no reason to do so because he had never been cited for it. AR 586. Crowe also did not know that he needed landing receipts for fish that he would not sell. AR 539, 580.

Crowe did not tell Arkinstall that the white bucket had lobster tails until Arkinstall asked about the bucket. AR 583. However, he did not try to hide the white bucket, which was in plain sight. AR 583.

The 2017 incident is the last time DFW has contacted him for a violation. AR 523. Since then, DFW wardens have boarded him 15-20 times. AR 523-24.

Crowe pled nolo contendre on two different occasions for three of the incidents; the 2015 and 2016 incidents were part of the same hearing. AR 510-11.

Crowe now understands that, if he is going to gift a lobster, he should wait until he meets his buyer to tell him that. AR 540-41. The buyer will then fill out his own fish log and exclude those lobsters. AR 541. He also was remorseful that he continued to tail lobsters after they changed regulations for tailing lobsters in 2010. AR 544.

Crowe has learned his lesson in small increments about taking fish for personal consumption and other violations. AR 598. He has a lot of respect for DFW and Commission, and he understands that the standards for a commercial fisherman are higher than for a recreational one. AR 598. It has been almost six years since the 2017 incident, and no time in court is worth taking him out of the fishery he uses to provide for his family. AR 598. If given the chance, Crowe will ensure that DFW does not hear negative things about him again. AR 598.

On March 21, 2022, the ALJ issued a Proposed Decision to suspend Crowe’s Licenses for one year. AR 686-706.

Of the ten causes for discipline in the Accusation, DFW had abandoned the third and fifth. AR 201. Crowe’s criminal convictions proved four causes of action. AR 688-91, 700-01. The convictions show that he violated sections 2012 and 2002 during the 2017 incident (AR 689), section 5508 in the 2016 incident (AR 690-91), and section 8252 in the 2015 incident (AR 691).

DFW also provided sufficient evidence to prevail on allegations that Crowe violated 14 CCR sections 29.90(e) and 190(c) in the 2017 incident (AR 691-92, 701-03), 14 CCR section 632 in the 2014 incident (AR 693-94, 703-04), and sections 7857(b) and 8252 in the 2008 Incident (AR 694, 704).

Crowe testified that he has been commercial fishing for more than 20 years on his own Licenses. AR 695. He testified that he did not place his two buoys in the SMCA and offered possible explanations how they got there, including someone moving his traps or a fisherman tying up to a buoy, causing it to drag. AR 695.

For the March 9, 2017 incident, Crowe testified that when the warden demanded to see his fish, he thought the warden only wanted to see those he intended to sell. AR 695. He did not intend to sell the tailed lobsters but rather to take them home. AR 695. His motive to tail the lobsters he was taking home was to avoid placing carapaces in his trash can because his wife hated the smell. AR 695. He admitted that he did not understand the requirement for a landing receipt for lobsters taken for personal consumption. AR 695. The applicable statute does not require a landing receipt for fish held for personal consumption but it is applicable to any transfer of fish. AR 696. Crowe testified that he now presents all of his fish to a buyer who prepares a landing receipt. AR 696.

Since the 2017 incident, DFW wardens have boarded his boat 20 times without additional citation. AR 696. Crowe has also cooperated with DFW investigations of other fishermen. AR 696.

As for the penalty, the purpose of disciplinary proceedings is not to punish the licensee but to protect the public. AR 700. Neither DFW nor Commission has issued guidelines for discipline applicable to this situation. AR 704. However, section 12154 lists factors to consider when deciding on the appropriate discipline against a hunting or sport fishing license. AR 704. These include the nature, circumstances, extent, and gravity of the violations; the person’s culpability for the violations; and the injury to natural resources caused by the violations. AR 704. Other regulatory agencies consider similar factors. AR 704-05. These factors are useful in determining the appropriate discipline for Crowe’s Licenses. AR 704.

DFW seeks to protect a valuable public resource through the Accusation. AR 700. The laws regarding the taking of waters have been developed to protect lobster stock, a resource of great value to California. AR 696-97. Mature and uninjured lobsters have substantial value to fisherman as shown by the fact that the lobsters confiscated from Crowe in 2016 were sold for just under $35 per lobster. AR 697. The law places a minimum size on lobsters and the taking of undersized lobsters threatens to erode lobster stock. AR 697. Disallowing the tailing of lobsters ensures that only properly sized lobsters are taken. AR 697. Lobster fishermen are required to report their catches and the number of undersized lobsters returned to the ocean so that DFW can gather data to regulate the trade and evaluate the health and viability of the stock. AR 697.

While the harm from Crowe’s misconduct is not quantifiable, the potential for harm is significant. AR 705. Crowe’s actions prevented lobsters from laying hundreds of thousands of eggs. AR 705. He may have mismeasured the lobsters without intent to violate the law, but the rules that proscribe tailing lobsters are clear and he was caught more than once with tailed lobsters. AR 705.

Crowe’s last violation was five years ago, despite frequent DFW inspections. AR 705. The evidentiary significance of misconduct is diminished in the absence of recent and similar misconduct. AR 705.

In light of this, the ALJ did not think that outright revocation was necessary to protect the public or aquatic resources. AR 705. Given that he has been on a lawful course since 2017, the loss of one year’s income via license suspension should be enough for Crowe to understand his obligation to fish in a responsible manner. AR 706.

DFW opposed the ALJ’s Proposed Decision and asked Commission to revoke the Licenses. AR 161-65. DFW asserted that a one-year suspension is woefully inadequate given Crowe’s pattern of repeated misconduct. AR 164. A suspension for one lobster season is not enough to keep Crowe off the water or allow rehabilitation. AR 164. Crowe testified that he is remorseful and has learned his lesson, but his violations and criminal convictions show that the violations may continue. AR 164.

Crowe asked Commission to adopt the ALJ’s Proposed Decision in its entirety. AR 166-71. He asserted that because he harvests thousands of lobsters per year, the number of lobsters at issue in the five incidents render his violations relatively minor. AR 169. Because he only tailed lobster to avoid doing so at home, the extent of the harm was minimal and grossly disproportionate to any revocation of his Licenses. AR 170.

On April 20, 2022, Commission held a closed session to consider the Proposed Decision. AR 181-88. Commission voted to reject the Proposed Decision and issued a notice of non-adoption of the Proposed Decision on May 4, 2022. AR 242-43.

The Commissioners discussed the Accusation in executive session at its August 17, 2022 meeting. AR 654.

Counsel for DFW argued that the ALJ erred in recommending only a one-year suspension. AR 657-58. The ALJ found that Crowe committed eight violations across six dates spanning ten years, all related to commercial spiny lobster fishing. AR 658. Perhaps the most egregious of these violations was the destruction of evidence in the 2016 incident. AR 659.

Mason testified that the regulations at issue are important from a biological perspective. AR 659. They protect the species’ reproductive output and prevent collapse of the stock. AR 659-60. Despite this, paragraphs 17 and 18 of the Proposed Decision are based on a flawed conclusion that revocation is not necessary to protect marine resources. AR 660.

DFW argued that the Proposed Decision also is inconsistent with past Commission decisions. AR 660. In one such decision, the licensee, Tecklenburg, committed violations of taking and possessing lobster on three occasions, with a total of 25 undersized lobsters recovered. AR 660-61. When combined with the other violations, the situation merited a lifetime revocation of Crowe’s Licenses. AR 661. The facts of this case warrant revocation because they reflect a long-standing disregard for the applicable rules. AR 661. Crowe testified that he was remorseful, but it strains credulity to presume he was remorseful after the violations for which he was convicted. AR 661. An appropriate discipline for Crowe is important to deter other bad actors and affirm the faith of law-abiding fishermen. AR 663.

Crowe replied that he had a “heavy heart and much regret” over the actions at issue in the Accusation. AR 664. He has cooperated with DFW in various matters before to protect the health and the sustainability of the fishing industry from which he derives his income. AR 665-66. He has accepted responsibility for the violations at issue and has changed his own behavior over the last five years to avoid any future violations. AR 666.

Crowe’s counsel added that Crowe is not a poacher. AR 668. The issue before Commission was not revocation versus suspension. AR 668. Even DFW admitted that revocation is the most severe penalty. AR 668. While revocation is recommended for other forms of misconduct, Crowe’s actions do not require that. AR 668-69. This is not a nine-year period of lawbreaking; it is a single incident in 2008 plus four more between 2014 and 2017. AR 671.

Crowe’s counsel noted that Crowe was not asking that he be returned to the fishery without penalty. He asked Commission to impose a lesser remedy that will allow him to get back to the fishery at some point and continue working where he had worked for the last 18 years. AR 670-71.

On October 27, 2022, Commission issued the Final Decision suspending Crowe’s Licenses for five years. AR 682-84. Commission adopted the Proposed Decision’s Factual Findings 1-38 and Legal Conclusions 1-16. AR 682.

As to concealment of evidence, Crowe threw illegally possessed lobster tails overboard in response to the impending boarding in the 2016 Incident. AR 683. In the 2017 incident, he did not identify a bucket containing lobster tails despite the DFW wardens’ demands that he display all fish caught. AR 683. He only acknowledged that tails were inside after a warden inspected the bucket. AR 683. The multiple violations demonstrating an intent to conceal misconduct weakens the limited evidence of rehabilitation. AR 683.

Crowe’s testimony demonstrates a continued effort to downplay culpability. AR 683. He deflected responsibility for the placement of traps in the SMCA in the 2014 incident and concealment of evidence. AR 683. The impact in a marine protected area like the SMCA is significant because such areas are a particularly important public resource. AR 683.

Per Factual Finding 34, DFW has repeatedly boarded Crowe since the 2017 incident without issuing any citations. AR 683. Crowe also testified that he has changed his fishing practices and record keeping practices. AR 683.

Crowe presented no other evidence of rehabilitation besides his own testimony and the passage of time. AR 683. The limited evidence of rehabilitation is insufficient to overcome the nature of the violations. See In the Matter of the Accusation against David Hornbaker, (“Hornbaker”) Agency Case No. 17ALJ02-FGC.[4] AR 683. His support of the Proposed Decision’s one-year suspension seems to concede that his evidence of rehabilitation is insufficient. AR 683.

Factual Findings 24-27 and 31, and Legal Conclusion 13 demonstrate that Crowe unlawfully placed traps in an MPA. California’s network of MPAs is a particularly important public resource and impacts within an MPA are particularly significant. See In the Matter of the Accusation against Pacific Star Sportfishing, LLC et al., Agency Case No. 15ALJ08-FGC. AR 683.

Factual Findings 16 and 21-22 demonstrate Crowe’s repeated efforts to conceal misconduct by throwing illegally possessed tails overboard when approached by a DFW vessel, and in a separate incident, failing to identify a bucket containing lobster tails when repeatedly asked to display all fish caught, only acknowledging the bucket after a warden inspected it. AR 683. Such violations are significant and a history of concealing misconduct weakens the limited evidence of rehabilitation. AR 683.

Factual Findings 5-29 demonstrate a substantial number of violations over many years. AR 684. Where a person commits repeated violations in disregard for public resources and shows a lack of sincere remorse, revocation of licenses is warranted. See In the Matter of the Accusation against Troy Tecklenberg, Agency Case No. 15ALJ04-FGC. AR 683. Despite this, Crowe has expressed an intent to change other practices to avoid future violations. AR 684. He will change how he documents landings in his logbook, will avoid retaining any lobsters whose legal size is unclear, and admitted that much of what he did violated the law. AR 684. These actions suggest that revocation is not the appropriate remedy. AR 684.

The Proposed Decision’s one-year suspension is the same discipline Commission imposed for a serious, yet isolated violation, in In the Matter of the Accusation against Gerald Wetle, Agency Case No. 17ALJ05-FGC. AR 683-84. This precedent suggests that a one-year suspension is inconsistent with Crowe’s number of violations over many years. AR 684. Commission ordered a five-year suspension of Crowe’s Licenses. AR 684.

Petitioner Crowe does not dispute his guilt for any of the sustained charges. Rather, he contends that the five-year suspension of his Licenses is excessive because Commission’s findings on penalty are unsupported, and its conclusion is an abuse of discretion.

Crowe contends that the court has “wide discretion” to determine whether an administrative agency has abused its discretion when imposing a penalty. “Although the Department's discretion with respect to the penalty is broad, it does not have absolute and unlimited power. It is bound to exercise legal discretion.…The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. Harris v. Alcoholic Bev. Etc. Appeals Bd., (1965) 62 Cal. 2d 589, 594-95 (acts over eight-day period of serving beer to minors, serving wine to investigators, and serving beer to intoxicated person, although imputed to the licensee, were not of nature requiring license revocation). See also Magit v. Board of Medical Examiners, (1961) 57 Cal. 2d 74, 88 (in determining whether agency abused its discretion, trial court must consider all the circumstances, including that revocation of medical license would prevent medical doctor from being gainfully occupied in his profession); Walsh v. Kirby, (1974) 13 Cal. 3d 95, 105, ,n. 13 (department practice of building evidence of three or more illegal sales before filing accusation in order to justify license revocation was arbitrary because it made the gradation of penalties set forth in regulations superfluous); O'Reilly v. Board of Medical Examiners, (1967) 66 Cal. 2d 381, 388 (licensee’s good faith in allowing foreign doctors to assist him did not justify a penalty greater than probation); Turner v. Hatch, (1971) 14 Cal. App. 3d 759, 765 (maximum penalty of revocation of electronics repair dealer’s registration for technical violation would be abuse of discretion).[5]

From this caselaw, Crowe concludes that this court has broad discretion to take all facts into consideration and make its own judgment whether the punishment was excessive. Pet. Op. Br. at 9-11; Reply at 2-4.

Crowe draws the wrong conclusion from the case law about the standard of review for license discipline. Commission, not the court, has broad discretion with respect to the licensure penalty. It is well settled that the purpose of license discipline is to protect the public, not to punish the licensee. See e.g., Camacho v. Youde, (1979) 95 Cal.App.3d 161, 164. The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Commission, (1975) 47 Cal.App.3d 224, 228; Borden v. Division of Medical Quality, (Borden”) (1994) 30 Cal.App.4th 874, 884. The policy consideration underlying this allocation of authority is the expertise of the administrative agency. Cadilla v. Board of Medical Examiners, (1972) 26 Cal.App.3d 961.

Contrary to Crowe’s contention, the court may not substitute its judgment on the proper penalty in place of the discretion of the administrative agency. Nightingale v. State Personnel Board, (“Nightingale”) (1972) 7 Cal.3d 507, 515; Deegan v. City of Mountain View, (“Deegan”) (1999) 72 Cal.App.4th 37, 45. “If reasonable minds may differ as to the propriety of the penalty imposed, there has been no abuse of discretion. It is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown.” Deegan, supra, 72 Cal.App.4^th at 46-47 (citations omitted). The caselaw cited by Crowe is not to the contrary.

Thus, Commission has broad discretion with respect to the licensure penalty and the court may reverse Commission’s decision to impose a five-year suspension only if it is a clear abuse of discretion. In making this evaluation, the court may not simply substitute its judgment on the proper penalty for that of Commission.

Crowe argues that some of Commission’s findings and conclusions are unsupported by the weight of the evidence.

Commission concluded that Factual Findings 16 and 21-22 demonstrate Crowe’s repeated efforts to conceal misconduct by throwing illegally possessed tails overboard when approached by a DFW vessel, and, in a separate incident, by failing to identify a bucket containing lobster tails when repeatedly asked to display all fish caught, only acknowledging the bucket after a warden inspected it. AR 683. Commission found that these violations are significant, and a history of concealing misconduct weakens the limited evidence of rehabilitation. AR 683. Crowe’s support of the Proposed Decision’s one-year suspension seems to concede that his evidence of rehabilitation is insufficient. AR 683.

Crowe contests the finding that his support of the Proposed Decision’s one-year suspension seems to concede that his evidence of rehabilitation is insufficient. AR 683. He never conceded that there was limited evidence of rehabilitation and his support for the one-year suspension is based on his remorse and recognition that he is accountable for his misconduct. AR 666-67. Pet. Op. Br. at 14.

The court agrees in part. Commission correctly concluded that there is limited evidence of rehabilitation. Crowe presented no other evidence of rehabilitation besides his own testimony and the passage of time. AR 683. There were no witnesses to his character, and no witnesses other than himself for his conduct since the offenses, boardings by wardens without finding a violation, and the correction of his record-keeping. The rehabilitation evidence was weak. However, Crowe is correct that his support for the ALJ’s proposed one-year suspension is not a concession about his rehabilitation. Rather, it was a litigating position implicitly acknowledging his guilt and that Commission would impose at least a suspension. No conclusion can reasonably be drawn about rehabilitation from his support for the ALJ’s proposed one-year suspension.

Commission found that during the 2016 incident Crowe threw illegally possessed lobster tails overboard in response to the impending boarding. AR 683. In the 2017 incident, he did not identify a bucket that had lobster tails despite the DFW wardens’ demands to display all fish caught. AR 683. He only acknowledged that tails were inside after a warden inspected the bucket. AR 683. A history of violations with an intent to conceal misconduct weakens the limited evidence of rehabilitation. AR 683.

Crowe challenges Commission’s conclusion. The ALJ never concluded that Crowe made efforts to conceal misconduct. For Factual Finding 16, Crowe was in the process of carrying all lobster from his fishing vessel to his vehicle, and the ALJ made no finding that Crowe concealed lobsters. Pet. Op. Br. at 14.

As Commission’s opposition states, whether the ALJ failed to conclude that Crowe concealed his misconduct is irrelevant because it is Commission’s findings that are at issue. See Opp. at 18-19. An agency may reject an ALJ’s proposed decision and decide the case upon the record, including the transcript, with or without taking additional evidence but affording the parties the opportunity to present argument before the agency itself. Govt. Code §11517(c)(2)(E). “[T]he proposed decision thereafter serves no identifiable function in the administrative adjudication process.” 2 Cal. Jur.3d Admin. Law § 611; Alford v. Department of Motor Vehicles, (2009) 79 Cal.App.4th 560, 566-67. Commission rejected the ALJ’s proposed decision and followed the statutory procedure for deciding the case itself. Commission was entitled to render its own decision and order, even after it adopted the balance of the ALJ’s proposed decision. Govt. Code §11517(c)(2)(E).

The facts support Commission’s conclusion that Crowe tried to conceal his misconduct. First, on January 17, 2016, Warden Ton approached Crowe as his vessel returned to King Harbor from a fishing trip. AR 59. When Crowe saw Ton, he looked startled and immediately moved toward a 35-gallon-grey barrel on the right side of his boat. AR 59. Ton shouted: “State Fish and Wildlife. Stop.” AR 59. Crowe ignored the order and dumped the 35-gallon barrel containing 12-15 undersized lobsters over the side. AR 59. Despite two more directions to stop, Crowe walked quickly to the left side of his vessel and unloaded a white five-gallon bucket of lobsters over the left rail. AR 59. When the wardens boarded, Ton asked Crowe why he dumped the two barrels into the oceans. AR 59. Crowe first nervously stated that he was just cleaning out the barrels and then admitted that he did something stupid that he should not have done. AR 59. This is evidence of concealment.

Second, on March 10, 2017, Louden approached Crowe as he was walking from his boat to his truck. AR 55. Crowe denied that he caught any lobster either that day or the day before. AR 55. Crowe also stated that the vessel did not have any fish in it. AR 55. Louden asked whether Crowe understood section 2012, which requires fishermen to exhibit all fish upon demand from a warden. AR 55, 89. He then made a formal demand to see the vessel and Crowe’s gear. AR 55. Crowe repeated that he had no fish in the vessel. AR 55. Crowe gave permission to inspect the receivers next to his vessel. AR 45. As Warden Arkinstall approached and saw a white bucket near Crowe’s truck, Crowe said: “Shit.” AR 46, 55. When asked why he did not mention the bucket, Crowe said he forgot and was not trying to hide it. AR 55. He also asserted that the reason that the bucket was off to the side was that he set it down after accidentally dumping out trash cans on the dock. AR 55. Arkinstall did not see any sign of spillage from trash cans, and he had not heard or seen a spill when he was watching Crowe earlier. AR 46. Arkinstall and Louden both inspected the bucket and found 11 lobster tails under a damp towel. AR 46, 55. See also AR 313-16. Despite Crowe’s protestation, this is evidence of concealment.

Commission found that Factual Findings 5-29 demonstrate a substantial number of violations over many years. AR 684. Where a person commits repeated violations in disregard for public resources and shows a lack of sincere remorse, revocation of licenses is warranted. See In the Matter of the Accusation against Troy Tecklenberg, (“Tecklenberg”) Agency Case No. 15ALJ04-FGC. AR 683. Despite this fact, Crowe expressed an intent to change other practices to avoid future violations. AR 684. He will change how he documents landings in his logbook, will avoid retaining any lobsters whose legal size is unclear, and admitted that much of what he did violated the law. AR 684. These actions suggest that permanent revocation is not the appropriate remedy. AR 684.

Crowe argues that Commission’s conclusion is unwarranted. While Crowe did admit to committing five separate law violations in the course of his lengthy career as a commercial fisherman, he did not do so without remorse. He expressed remorse during his testimony at the hearing (AR 598) and during his statement to Commission. AR 664-67. The ALJ was present during Crowe’s testimony and was able to judge his credibility. Pet. Op. Br. at 14-15.

Crowe misunderstands Commission’s reference to remorse. Commission’s decision noted that its decision in Tecklenburg stated that repeated violations show a disregard for the Department’s mission of managing wildlife resources for the public’s use and enjoyment, and coupled with a lack of sincere remorse, requires permanent licensure revocation. Commission concluded that, despite his substantial number of violations, Crowe expressed an intent to change his practices, suggesting that revocation is not the correct remedy. Thus, Commission distinguished Tecklenberg based on Crowe’s remorse. See Opp. at 17.

Because neither DFW nor Commission has disciplinary guidelines for commercial fisherman, the ALJ applied by analogy section 12154. That provision lists factors to consider when deciding on the appropriate discipline against a hunting or sport fishing license: (a) the nature, circumstances, extent, and gravity of the violations; (b) the person’s culpability for the violations; and (c) the injury to natural resources caused by the violations. AR 682, 704. Crowe does not dispute the applicability of section 12154 factors. See Pet. Op. Br. at 12-13.[6]

Crowe argues that the five-year suspension is “an abusive swinging of the hammer of power to strike [Crowe] with nearly the worst sentence possible.” Commission’s decision is what one expects in an arbitrary system wherein punishment is meted out with a single goal in mind, imposition of the stiffest sentence possible. The ALJ’s decision was guided by criteria imposed by section 12154 but the Commission’s decision was guided by no criteria other than “wild west justice” glossing over all the circumstances of the case and creating aggravating facts to support its abusive punishment. Pet. Op. Br. at 12-13.

The ALJ concluded that Crowe’s conduct had some appreciable impact on the natural resources as he had tailed lobster on multiple occasions and had mismeasured some lobsters. AR 705. However, Crowe had not committed these acts on any commercial scale or in gross quantities. The ALJ found compelling evidence of rehabilitation, the fact that Crowe had been subjected to numerous inspections by DFW wardens without a violation for five years since the last incident in March of 2017. AR 705. In concluding that Crowe had established a period of rehabilitation, the ALJ followed the guidance of other regulatory agencies (State Bar and the Department of Real Estate) in determining whether sufficient rehabilitation had been established. AR 705. Pet. Op. Br. at 13.

Crowe concludes that the punishment pronounced by Commission should be reserved for those that engage in the most serious acts of poaching, including fishing out of season or retaining prohibited species. The five-year suspension of Crowe’s commercial fishing license and lobster permit is excessive and constitutes an abuse of discretion by Commission. Pet. Op. Br. at 14.

Commission (and the ALJ) concluded that Crowe is subject to discipline based on his four criminal convictions for misconduct over a nine-year period. AR 700-01. For the 2008 incident, Crowe was convicted and subject to discipline for possessing undersized spiny lobsters in violation of section 8252. AR 704. For the 2014 incident, Crowe was convicted and is subject to discipline for attempting to take lobster in a SMCA in violation of 14 CCR section 632. AR 703-04. For the 2017 incident, Crowe was convicted and is subject to discipline for violating section 8043(a) by delivering lobsters without generating a landing receipt (AR 701-02) and 14 CCR section 190 by not completing his logbook (AR 702-03).

Crowe’s violations were numerous and committed over a protracted period. None appears particularly serious, but the importance of the policies violated by Crowe is a matter committed to Commission’s discretion.

Crowe committed a substantial number of violations over nine years. AR 684. For the 2016 and 2017 incidents, he made efforts to conceal his misconduct by throwing illegally possessed tails overboard when approached by a DFW vessel, and in a separate incident, by failing to identify a bucket containing lobster tails when repeatedly asked to display all fish caught. AR 683. The efforts to conceal are significant, making Crowe more culpable than for mere violations. AR 683.

Commission found that Crowe’s unlawful placement of traps within the SMCA had the potential to substantially impact a significant natural resource. AR 683. The impact in a marine protected area like the SMCA is significant because such areas are a particularly important public resource. AR 683. California’s network of MPAs is a particularly important public resource and impacts within an MPA are particularly significant. See In the Matter of the Accusation against Pacific Star Sportfishing, LLC et al., Agency Case No. 15ALJ08-FGC (disciplinary action against a commercial passenger fishing vessel license for, inter alia, taking passengers fishing in a closed marine reserve). AR 683.

Crowe’s violations both caused and had the potential to cause significant harm to the State’s lobster fishery “in that hundreds of thousands of eggs could not be laid by the undersized lobsters taken by [him].” AR 705.

The ALJ relied on the passage of five years between Crowe’s March 2017 violation and the January 2022 hearing, as well as his fishing without incident during that period even though he was regularly inspected, to show rehabilitation. AR 705.

This is a bit simplistic. The period between Crowe’s March 2017 misconduct and the March 27, 2019 Accusation was only two years. While it took almost another three years for the Accusation to be heard, the two-year period is most relevant. It would take a brazen offender to commit more violations while an accusation is pending against him. Most people are on their best behavior during such a period and the lack of misconduct while accused does not reflect significantly on rehabilitation. The two-year period between Crowe’s misconduct and the Accusation is not lengthy and does not show rehabilitation.

Undermining Crowe’s rehabilitation is that he twice made attempts to conceal evidence. A history of violations with intent to conceal misconduct weakens the limited evidence of rehabilitation. AR 683.

Crowe’s testimony demonstrates an effort to downplay culpability. AR 683. He deflected responsibility for the placement of traps in the SMCA in the 2014 incident and his concealment of evidence. AR 683. These facts also undermine rehabilitation.

Commission found that Crowe presented no other evidence of rehabilitation besides his own testimony and the passage of time and that the limited evidence of rehabilitation is insufficient to overcome the nature of the violations. See Hornbaker, supra, Agency Case No. 17ALJ02-FGC. AR 683. In Hornbaker, Commission concluded that the mere passage of time is insufficient evidence of rehabilitation to avoid revocation where only he testified but called no other witnesses to describe his rehabilitation efforts, current commercial fishing practices, or present character, he downplayed his culpability for the violations by characterizing them as inadvertent mistakes, he did not address his dishonesty with Department wardens and attempts to conceal his violations.

The court agrees with Commission that Hornbaker is on point. Se Opp. at 14-15. Crowe claimed to have learned from his mistakes and urged Commission to consider the passage of time since his last known violation. Yet, he only presented self-serving testimony as evidence of rehabilitation, downplayed his culpability, and denied evidence of dishonesty and concealment.

Despite these facts, Commission found that DFW has repeatedly boarded Crowe since the 2017 incident without issuing any citations. AR 683. Crowe also testified that he has changed his fishing practices and record keeping practices and has expressed an intent to change other practices to avoid future violations. AR 683-84. He will change how he documents landings in his logbook, will avoid retaining any lobsters whose legal size is unclear, and admitted that much of what he did violated the law. AR 684. These actions suggest that revocation is not the appropriate remedy. AR 684.

Commission found that the ALJ’s proposed one-year suspension is the same discipline the Commission imposed for a serious yet isolated violation in In the Matter of the Accusation against Gerald Wetle, Agency Case No. 17ALJ05-FGC. AR 683-84. A one-year suspension is inconsistent with Crowe’s number of violations over nine years. AR 684. As a result, Commission ordered a five-year suspension of Crowe’s Licenses. AR 684.

Given the number of Crowe’s offenses, his efforts to conceal and downplay his misconduct, the weak evidence of rehabilitation, the potential harm to natural resources, and Commission precedent, the court cannot say that the five-year suspension was a manifest abuse of discretion.

The Petition is denied. Commission’s counsel is ordered to prepare a proposed judgment, serve it on Crowe’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for October 19, 2023 at 9:30 a.m.

[1] Although Crowe contends that Commission’s opposition does not clearly agree that the independent standard of review applies (Reply at 4), it does so. Opp. at 12.

[2] All further statutory references are to the Fish & Game Code unless otherwise stated.

[3] Arkinstall testified that the dates on his report should read March 9 and 10 instead of 8 and 9. AR 311.

[4] Government Code section 11425.60(a) authorizes Commission to rely on agency decisions that have been designated as precedential.

[5] Crowe also relies on public employee discipline cases. See Skelly v. State Personnel Board, (1975) 15 Cal. 3d 194, 21718 (public agency has a broad discretion for discipline, but it does not have absolute and unlimited power); Carroll v. Civil Service Commission (1970) 11 Cal. App. 3d 727, 729-30, 733 (dismissal was abuse of discretion for employee who stole $1 from the employees' coffee fund and initially denied taking it); Szmaciarz v. State Personnel Board, (1978) 79 Cal. App. 3d 904, 921 (abuse of discretion may be found if the penalty was clearly excessive).

[6] Crowe argues that, while Commission’s opposition argues that it considered section 12154, nothing in the record indicates that it did so. Reply at 5. Not so. Commission’s decision expressly adopted the ALJ’s finding on the applicability of section 12154. AR 682. Commission was not required to make findings on these section 12154 factors. Govt. Code section 11425.10(a)(6) does not require penalty findings. Williamson v. Board of Medical Quality Assurance, (1990) 217 Cal.App.3d 1343, 1346 (referring to former Govt. Code §11518). The agency is only required to justify the penalty imposed, including a statement of the factual and legal basis for the decision, and there is no legal obligation to outline the reasons for rejecting a lesser form of discipline. Oduyale v. California State Board of Pharmacy, (2019) 41 Cal.App.5^th 101, 113.