Martinet v. Department of Fish & Game

[793]Opinion

WORK, J. Gary Steven Martinet appeals the denial of his petition for a writ of mandate ordering the California State Department of Fish and Game and the captain of its San Diego office, Rodney Shackelford,1 to issue him a shark and swordfish drift gill net permit. We affirm.

I

Martinet has been a commercial fisherman for more than 10 years and a shark and swordfish fisherman since 1977. The boat he purchased in 1982 is exclusively a shark drift gill net vessel.

Martinet fished off" the Oregon and Washington coasts from the 1983 season until the middle of the 1984 season. At that time he hired a fisherman who had a shark drift gill net permit enabling him to fish in California waters. When his employee quit, Martinet was out of business until he was able to hire another fisherman with a permit. He may be faced with this problem again.

On March 4, 1985, Martinet obtained a general gill net permit. In April, he applied for a shark drift gill net permit. The Department denied his application because he did not qualify as a prior permittee (Fish & G. Code,2 § 8568, subd. (a)) but forwarded Martinet’s application to the Long Beach office, which was to hold a lottery for the persons applying as new entrants if the number of permits issued to prior permittees was fewer than 150 (§§ 8568, subd. (b), 8570). However, the Department notified Martinet that more than 230 permits had been issued the previous season (1984-1985), making it unlikely the number of prior permittees would be fewer than 150. Martinet appealed to the Fish and Game Commission (§ 8569) asserting factors beyond his control, i.e., his vessel was destroyed by fire in August 1980 and his insurance company was bankrupt, preventing him from qualifying as a prior permittee. On October 3, 1986, the commission denied his appeal, finding he had failed to meet the requirements for the permit and this was not due to circumstances beyond his control. The commission considered Martinet’s petition, the Department’s answer, as well as an affidavit by Eugene Fleming, the Department’s marine resources supervisor. According to Martinet, after he applied for the permit, the Department issued permits to at least three San Diego residents, two of whom did not own vessels or the necessary equipment and one of whom had a vessel but no equipment and no experience as a shark and swordfish [794]