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Fishing and the Law

Started by Inchlaggan, February 28, 2013, 03:38:11 PM

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Inchlaggan

'til a voice as bad as conscience,
rang interminable changes,
on an everlasting whisper,
day and night repeated so-
"Something hidden, go and find it,
Go and look beyond the ranges,
Something lost beyond the ranges,
Lost and waiting for you,
Go."

Buanán

Quote from: fishtales on March 02, 2013, 01:13:23 PM
You missed this.

"6
Fishing for salmon without right or permission


(1)
Any person who without legal right, or without written permission from a person having such right, fishes for or takes salmon in any waters, including any part of the sea within 1.5 kilometres of mean low water springs, shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

"salmon" means all fish of the species Salmo salar and migratory fish of the species Salmo trutta and commonly known as salmon and sea trout respectively or any part of any such fish;"

""trout" means non-migratory trout of the species Salmo trutta living in fresh water or in estuaries;" This would include Slob Trout which live in the brackish water in the estuary limits but don't go to sea or farther along the coast and into salt water.

^^^^^ Thats my niche right there, or as I'd say if i was ever challenged, which I haven't been in 30 years fishing my favorite spot, "thats a trout, if you say it's a sea trout, you prove it".

Ken, does your book mention the rights bestowed to subjects of the crown regarding crown estate tidal reaches in scotland, there's rights of navigation, rights to fish except for salmon (and the under the radar of the salmon and sea trout act, sea trout, if it can be proven, a few years back I heard from our local estate manager that the only two court cases he'd heard of concerning supposed sea trout under the S&S act, failed to prove that the offending fish were sea trout ) also rights to conduct business on the shore, collect shell fish and sea weed etc, all activities give way to salmon fishing activity as they have right of way, unless there's a danger to life and limb.

The crown controls 50% of the Scottish coast, 25% is in dispute between the crown and private interests, 25% is in private hands, areas such as the Clyde estuary are a good example of how individuals gained control of tidal areas, the clyde looks to have been seeded to the lords of Lenox in the 11th century on the collapse of the northern Welsh Kingdom of Strathclyde (Ancient Cumbria, only the Northern bit is in modern scotland, but it's the southern part, modern cumbria, that recycled and reused the old name for the modern region, taken from the old kingdom that is thought to have run, at it's most extensive, from westmoorland in the south to just shy of Crianlarich, the main seat being Dumbarton Rock until the 9th century and latter to Govan it's thought this kingdom survived until as late as 1070), basically to keep these powerful regional magnates on side while the regions was absorbed into Scotland, letting them retain their traditional rights enjoyed under the old kingdom.

Inchlaggan

Wullie, As I read it (or the limitations of the scope of the book) the Crown's rights are described only in respect of migratory fish and extend from burn to territorial limits. They do not affect other aspects of use of the waters. The case of Wills' Trs v Cairngorm Canoeing and Sailing School in 1976 established the right of navigation on the Spey. Knockando Estate owned the banks and the alveus (channel)of the river plus the salmon fishing rights (ultimately from the Crown) and wished that the canoeists be banned. It went all the way to the House of Lords and Knockando lost.  Disturbingly though the finding was that "if there was a public right to navigation, evidence as to damage to or disturbance of the fish was irrelevant". Worrying, as the Land Reform (Scotland) Act 2003 extends the navigation rights to practically all Scottish waters.
On your other point, it should now be fairly simple to distinguish between Salmo salar and Salmo trutta by means of DNA and contend that a Salmo trutta caught in anything other than freshwater is a sea trout.
'til a voice as bad as conscience,
rang interminable changes,
on an everlasting whisper,
day and night repeated so-
"Something hidden, go and find it,
Go and look beyond the ranges,
Something lost beyond the ranges,
Lost and waiting for you,
Go."

Buanán

Quote from: Inchlaggan on March 02, 2013, 04:24:35 PM
Wullie, As I read it (or the limitations of the scope of the book) the Crown's rights are described only in respect of migratory fish and extend from burn to territorial limits. They do not affect other aspects of use of the waters. The case of Wills' Trs v Cairngorm Canoeing and Sailing School in 1976 established the right of navigation on the Spey. Knockando Estate owned the banks and the alveus (channel)of the river plus the salmon fishing rights (ultimately from the Crown) and wished that the canoeists be banned. It went all the way to the House of Lords and Knockando lost.  Disturbingly though the finding was that "if there was a public right to navigation, evidence as to damage to or disturbance of the fish was irrelevant". Worrying, as the Land Reform (Scotland) Act 2003 extends the navigation rights to practically all Scottish waters.
On your other point, it should now be fairly simple to distinguish between Salmo salar and Salmo trutta by means of DNA and contend that a Salmo trutta caught in anything other than freshwater is a sea trout.

There's no discernible difference between the various incarnations of salmo trutta that can prove a trout a sea trout or not, prosecution has been attempted and it seems a salmo trutta is a salmo trutta regardless of where it plies it's trade, DNA hasn't solved it, judging by the failure of the P'sF offices to secure a prosecution.

Crown Estate foreshore, the tidal zone between mean low and mean high tides, as far into rivers and loch as the tide travels, the crown is the owner and with that goes standing ancient rights bestowed on the subjects of the crown by royal decree, which are still standing as far as I'm aware, one of which is the right to fish for all fish with swim bladders, excluding Salmon, but including "trout", but since the act of either 2004 or 2006, excluding "sea" trout, as far as I understand it and this is where I'm fishing for further enlightenment. 

It's a complicated area, I think it's the recent salmon and sea trout act that sets the limit for sea trout in the sea as being illegal with in a Kilometer from the shore, but it's different if the shore belongs to the crown and the tidal reach of the shore includes a salt/fresh interface, because "trout" aren't covered by the act, therefore the kilometer doesn't count, because that zone isn't the sea. You'd need to go beyond mean low into the sea proper to fall foul of the act, as you'd actually be fishing in the sea rather on the shore.

I don't really care, as nobody bothers me really, what with my wee flee thrashing around on the shore in flowing fresh and standing water pools. Knowing all the keepers helps with fishing in the actual sea, keepers being keepers are usually as keen as we are when it comes to fishing and are aways interested in how your getting on, if anything I find the local keeper quite an encouraging influence.

The only problem I can foresee is with the only keeper I don't know, who's now in place just inland above the crown shore of my favorite place, he's seen me fishing in my spot but hasn't approached, no doubt the lads on the estate would have put him in the picture regarding who I am and that I had an understanding with his predecessor, whereby the predecessor wasn't interested provided I stayed between the agreed boundaries and fished with a single fly and fly line only, and since that accommodation I haven't fished the river proper, even though it's the traditional thing to do, perhaps thats why the new guy's stayed away from me, as the estate guys are perfectly aware who's chancing their arms on the river. Truth is I want to have a word and see if I can't reach an accommodation/understanding with him, renew my unneeded permission, just to maintain the peace and tranquility of the glen. He's not from here though, he's a foreigner from over the hill in Loch Carron and so, not to be trusted as he doesn't live in the community, which is likely why he got the job. No leverage as there's no stake in the locality. I just don't want to approach and end up in conflict with him, especially having behaved myself on the river this past 20 years. I was thinking of asking the stockman and former neighbour, to ask me up for a cast on the river, by way of getting close enough to pop the question whilst I'm actually on his water with semi official sanction.   

Inchlaggan

Aye, that's pretty much the route I follow. Get to know owners and keepers, ask permission (90% granted) and do not over-fish.
If science and the fiscal cannot (as proof) distinguish between brown trout and sea trout then nor can we. Yet the law (and we anglers) do make such a distinction.
For me, any trout I take in Quoich is brown (leaving out the ferox debate) and any trout I take in Hourn is sea- before I self-incriminate I was fly fishing for pollack and caught (and returned) the trout in question!
However, I would not rely upon the fiscal's past inability to define a sea trout as an open licence to fish.
And the swim bladder argument bu**ers up my mackerel fishing as well.
The law is, indeed, an ass.
'til a voice as bad as conscience,
rang interminable changes,
on an everlasting whisper,
day and night repeated so-
"Something hidden, go and find it,
Go and look beyond the ranges,
Something lost beyond the ranges,
Lost and waiting for you,
Go."

Part-time

Quote from: fishtales on March 02, 2013, 01:13:23 PM
(1)
Any person who without legal right, or without written permission from a person having such right, fishes for or takes salmon in any waters, including any part of the sea within 1.5 kilometres of mean low water springs, shall be guilty of an offence, and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

"salmon" means all fish of the species Salmo salar and migratory fish of the species Salmo trutta and commonly known as salmon and sea trout respectively or any part of any such fish;"

""trout" means non-migratory trout of the species Salmo trutta living in fresh water or in estuaries;" This would include Slob Trout which live in the brackish water in the estuary limits but don't go to sea or farther along the coast and into salt water.

Its really the fishes for bit I'm curious about.

If you are fishing in an estuary or the 1.5km crown rights zone and you knock a salmon or seatrout (genetically identified as such :)) on the head you commit an offence no matter what species you fish for and what tackle you are using. If you catch a migratory and return it you commit no offence providing you weren't deliberately fishing for it but as far as I can see it would be very difficult for the law to prove you were deliberately ''fishing for''. In the example I gave earlier I mentioned fishing for bass/seafish with a clouser minnow, a recognised saltwater fly. if I catch a migratory and return it then no problem as its accidental but what if I were fishing with a recognised salmon/seatrout pattern, say a Silver Stoat - does that change of fly now make me deliberately ''fishing for'' migratories and guilty of committing an offence?


 

Inchlaggan

"fishes for" is phrased that way to cover all fishing methods beyond rod and line- net and coble, fixed nets etc.
'til a voice as bad as conscience,
rang interminable changes,
on an everlasting whisper,
day and night repeated so-
"Something hidden, go and find it,
Go and look beyond the ranges,
Something lost beyond the ranges,
Lost and waiting for you,
Go."

Fishtales

This covers it I would have thought.

'61
Defences


(1)
Subsection (2) applies where in accordance with a provision mentioned in subsection (3) it is a defence for a person charged with an offence to prove a particular matter.



(2)
If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.



(3)
The provisions in respect of which subsection (2) applies are sections 16, 19, 20 and 30 of this Act.'


If your defence is that you were fishing for other fish and not migratory fish and that you only have the other fish in your bag and not migratories then the prosecution have to prove the opposite. They can't prove 'beyond a reasonable doubt' that you were targeting migratory fish so they wouldn't prosecute.
Don't worry, be happy.
Sandy
Carried it in full, then carry it out empty.
http://www.ftscotland.co.uk/

Looking for a webhost? Try http://www.1and1.co.uk/?k_id=2966019

Fishtales

This is the bit youy are looking for Andy

'33
Salmon fishing: regulations as to baits and lures


(1)
Without prejudice to section 38(5)(b) of this Act and subject to subsections (2) to (7) below, the Scottish Ministers may make regulations prohibiting the use of specified baits and lures for the purposes of the definition of "rod and line" in section 4(1) of this Act in the case of fishing for salmon.



(2)
The Scottish Ministers may make regulations under subsection (1) above only on an application to them made in accordance with subsection (5) below.



(3)
An application under subsection (2) above may be made by—



(a)
a district salmon fishery board; or



(b)
one or more such boards jointly,



and any reference in this section to an "applicant" shall be construed accordingly.

(4)
Regulations made in respect of an application under subsection (2) above shall be made only in respect of the district of the applicant.



(5)
An application under subsection (2) above shall be accompanied by the applicant's written proposals which shall state—



(a)
the baits and lures the use of which it is proposed should be prohibited;



(b)
the places to which and the times during which the proposed regulations should apply; and



(c)
the reasons for the proposals,



and the application and proposals mentioned in this subsection may be communicated and stored electronically.

(6)
Regulations under subsection (1) above shall specify, subject to such exceptions as may be provided therein, all or any, or a combination of, the following—



(a)
baits and lures or classes of baits or lures, the use of which is prohibited;



(b)
times when the regulations apply;



(c)
areas to which the regulations apply.



(7)
Paragraphs 10 to 15 of schedule 1 to this Act shall apply to the making of regulations under subsection (1) above as they apply to the making of the orders or regulations mentioned in those paragraphs; and references to an applicant, and to an application, under paragraph 1 of that schedule shall be construed respectively as references to an applicant, and to an application, under subsection (2) above.'

Basically if they say fly only then you are breaking the law to fish any other method.
Don't worry, be happy.
Sandy
Carried it in full, then carry it out empty.
http://www.ftscotland.co.uk/

Looking for a webhost? Try http://www.1and1.co.uk/?k_id=2966019

Inchlaggan

It works on three or more levels.
Nationally, Government legislates against such things as explosives, live vertebrates, poison, lights etc- criminal offences.
On a district level the Salmon Fisheries Boards can set their own rules- bye-laws- criminal offences.
Locally, associations or riparian owners can set their own rules. When you obtain the required permission to fish (whether you pay for it or not) you have entered into a contract. The contract may stipulate the methods that can and cannot be used, fail to stick to these conditions and you are in breach of contract and can be pursued in the civil courts.

EDIT Details from Fishtales as usual!
'til a voice as bad as conscience,
rang interminable changes,
on an everlasting whisper,
day and night repeated so-
"Something hidden, go and find it,
Go and look beyond the ranges,
Something lost beyond the ranges,
Lost and waiting for you,
Go."

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