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Is it Legal?

Aug 21,2006 SACN


Is it Legal?

Prepared by the Sea Anglers’ Conservation Network
http://www.sacn.org.uk

(Last Updated September 2006)


As the amount of netting along some parts of our shorelines increases, and anglers in some areas find trawlers working in very close to the beaches, SACN is increasingly approached by anglers asking how to report illegal fishing activity.

However, the assumption that all close to shore netting or trawling is illegal isn’t necessarily so, and the rules applying are complex, so without full details of what is occurring where, and what rules apply there at what times of year, it is difficult to say what, if anything, can be done.

What we shall try to do is explain some of the complexity and give guidance on what anglers can do when they suspect illegal activity is taking place.

Firstly, there is a common law right for anyone to take fish from the sea, whether that be by using a rod and line or a net.

It’s only if fish are taken with the intention of selling them, and a powered boat is used, that the boat must be licensed.  And many regulations, especially EU regulations, only apply to licensed fishing vessels.

Then there are a number of layers of legislation, starting with EU legislation, then UK legislation, then district byelaws created and enforced by local Sea Fisheries Committees.  

Enforcement is carried out by the Marine Fisheries Agency, the Sea Fisheries Committees’ Fishery Officers, and in the case of Migratory fish legislation (salmon, sea-trout and eels) by the Environment Agency, who also act as the SFC in some estuaries.

So, as you can imagine there is a morass of legislation that determines whether a particular fishing activity is legal or not, and it is difficult to determine who is responsible for enforcing it.

The good news is that a call to any of the agencies should produce advice as to whether observed activity is illegal or not, and they will usually pass you over to whoever should be dealing with it. But you may need to be insistent!

Whether or not an activity constitutes ‘illegal fishing’ there are other considerations that can also apply.

Is there a public safety issue, whereby nets could be a danger to swimmers, boats or other water users?

In such cases the local harbour master or council might take action.

Are the nets set in a place and in a way that may endanger wildlife, ie birds, cetaceans etc?

If so then a call to the local Wild life Trust or RSPB could see them taking appropriate action very quickly.

Lets look then at some of the issues that may determine whether nets or close inshore trawling could be illegal.

Foreign Vessels

Firstly the issue of foreign vessels, trawling right up to our beaches.

The original aim of the Common Fisheries Policy (CFP) was to have one EU fleet, with all vessels having equal access to all EU waters. 

However, it has never worked like that.

The old pre CFP national limits of just 3 miles, have been expanded out to 200 miles (or the median line when countries’ coasts are closer than 400 miles), and each nation has control over fishing in its own waters out to just 12 miles  (the derogation from the CFP allowing national control of coastal waters is reviewed every 10 years).

But in some cases other nation’s have long established fishing rights that predate the CFP which means that they continue to have access in other nations' coastal waters, perhaps limited to specific areas, at certain times of the year and to certain species.

But no foreign boats are allowed within six miles of another nation’s coast. 

The only exceptions to that are a small number of Anglo/foreign vessels that are considered part of the British Fishing Fleet.

So, if a foreign vessel is spotted fishing within 6 miles it is almost certainly fishing illegally, within 12 miles it probably isn’t (but it might be).

How Close Can Trawlers Come?

The first thing to mention is that close inshore trawling may not necessarily be for fin fish, often more likely it is shrimps or shellfish that the boat is fishing for and disturbance of the ground is more likely to bring fish into the area to feed, than to clean the beach of fish.

However some trawlers do come very close in, particularly when targeting sole at certain times of the year.

There is no overall regulation regarding how close they can trawl, with some vessels allowed to come in as close as they possibly can.

Usually there are local byelaws governing the size of vessels that are allowed to approach the coast.  (eg In Kent and Essex, they must be 17 metres or less to work close in).

An enquiry to your local Sea Fisheries Committee should inform you as to what size vessels are allowed to come in close in particular parts of your district, and what they are most likely to be targeting, fish or shrimps or shellfish. 

In any case, the local sea fisheries officer will probably be interested to know what boats are fishing where, and for what, so if you do have concerns about a vessel, get it’s number if you can, and a description of the boat and how it is fishing.


Netting

Again many anglers see markers and assume that they are marking nets, when they may very well be something completely different.

A temporary channel marked out for yachting or a wind-surfing competition, buoys marking a dive site, an anchor temporarily buoyed off, more often they are simply marking fleets of crab pots etc.

Where nets are set they can either be fixed (often referred to as a ‘fixed-engine’ where ‘engine’ is used in an archaic way meaning a ‘device’), or drifting.

Fixed Nets

It is interesting that under the Salmon and Freshwater Fisheries Act (1975) the setting of any fixed net is illegal!

However Sea Fisheries Committees are able to make byelaws that ‘enable’ fixed nets to be set in their district, usually subject to place, time of year, size of mesh etc.

An important principle is that fixed nets cannot be set where they are likely to interfere with a run of migratory salmon or sea trout.

And as salmon and sea trout usually swim towards the top of the water column, near to the surface, the byelaws that enable the setting of fixed nets often require that they are set in such a way that the headline (top of the net) is at a certain depth at all times of the tide.

The depth at which the headline must be set differs from area to area.
Where this type of byelaw applies it means that it is impractical to set nets close to the beach, without falling foul of the depth of headline required. 

Drift Nets  

Unlike fixed nets the assumption is that they are legal unless there is a byelaw restricting their use.

Such restrictions can apply to where they are set, at what times of the year, what is the minimum mesh size that can be used, what species can be taken etc

So again to determine whether a particular net is illegal or not, means scrutinising the local byelaws, or seeking advice from the Local Sea Fisheries Committee.

Usually the byelaws themselves are quite confusing in what combinations of date, place and season makes netting legal/illega.  This isn’t helped by the fact that the byelaws for fixed nets detail what is allowed, whereas those for drift nets detail what isn’t allowed!


The greatest problem with nets used inshore is often from unlicensed netting.

If the fish caught are for personal consumption, then unlicensed nets may be perfectly legal.  However if the catch is sold and a powered vessel was used to set the nets, then the sale of fish caught from an unlicensed vessel is illegal.  (Note, seine netting from a beach, often for mullet and bass where the net is ‘walked out’ and the catch is sold is perfectly legal, even though no licensed vessel is involved).

It is often almost impossible to bring a prosecution for the illegal sale of fish, although the recently introduced registration of buyers and sellers legislation has gone some way to making it easier

What must be remembered is that unlicensed netting, has a ‘double whammy’ on local fish stocks.

Firstly simply because of the unregulated removal of large quantities of fish from close inshore, significantly reducing the number of fish available to licensed fishermen.

Then if the fish are sold, that reduces the market available to licensed fishermen, and the price that they can obtain for their catch, leading to a reduction in earnings.

That means that the licensed fisherman must fish even harder to maintain their income, catching more fish than they would otherwise need to, reducing stocks still further.

This is one of the problems that has led SACN to propose the implementation of a ‘Golden Mile’ (see:  http://www.sacn.org.uk/Articles/The_Golden_Mile.html )  


Nursery Areas

A number of bass nursery areas have been established around the country, but the degree of protection varies

Generally speaking, fishing for bass from a boat is not allowed in a nursery area, and neither is it allowed to use sandeel as bait.

But fishing from the shore is allowed, including netting, and in some cases so is netting from a boat, but for other species than bass (ie mullet).

In some cases the restrictions only apply at certain times of the year.

There are often reports of people legally netting for mullet in nursery areas, taking a bycatch of bass and sea-trout, which is illegal, but enforcement is difficult  (mullet have a reputation now of being an ‘excuse’ species, no one actually wanting to net them, but the fact that they are allowed to gives an excuse for being in the area with nets out).

Another wheeze is drifting nets through a nursery area, putting them in the water outside the area, and picking them up again once they have drifted through on the tide

And boats that have been catching bass outside of the area, ‘passing through’ the nursery area.

These exceptions and practices make enforcement of the byelaws protecting the nursery areas very difficult.


What constitutes ‘Illegal Netting’

Well, a whole list of things including:

- Netting with the intention of selling the catch from an unlicensed powered vessel.

- Using mesh sizes less than byelaws allow

- Taking undersized fish

- Taking fish in excess of bycatch allowance for which quota is not held

- Taking migratory fish such as salmon and trout (and eels) without a special licence

- Netting where fishing is restricted, maybe at certain times of the year

- Using a fixed net when and where no enabling byelaw exists

- Not having properly marked nets, fishing nets unattended, not having the correct depth of water above the headline at all states of the tide, all according to local byelaws.

- Not having pingers attached to prevent cetacean entanglement where this is a requirement

- etc


Who should be contacted if illegal activity is suspected?

The Marine Fisheries Agency has overall responsibility for EU and National Regulations, including enforcement of Buyers and Sellers Regulations ashore.

Contact details for local MFA offices can be found here:

http://www.mfa.gov.uk/contact/local.htm


Most inshore areas (out to 6 miles) are subject to regulation and enforcement by the Local Sea Fisheries Committee.

Contact Details for SFCs can be found here:

http://www.asfc.org.uk/


The Environment Agency is responsible for migratory species (salmon, trout and eels) out to 6 miles, and acts as the SFC in some estuaries.

The EA can be contacted on an emergency 24 hour hotline 0800 807 060


It’s important that if you even suspect that you might have seen illegal activity taking place that you contact someone right away, and not leave it until you get home.  So get the numbers that apply to your area and load them into your mobile NOW, then you will have them handy when you need them.

When making a report, make sure that you get the name of the person who takes down details, and tell them that you want to be contacted and given follow up information and feedback, so that you can be sure that the report is logged and hopefully acted upon.

Enforcement is difficult and time consuming and especially when resources are hard pressed, it is likely that you will simply be fobbed off. 

It’s up to you to make a report and to insist that details are at least logged.

That way, if they keep getting reports from ‘the public’, the authorities are likely to be far more inclined to act.

When you see something worth reporting, try to get as many details as possible; place, time, state of tide etc of course, but also a good description of any boats and/or vehicles involved, including their registration number and name of the vessel, and the number and description of people involved.  If you can, get some good photographs.  Are vehicles taxed?

Do not tamper with any nets or equipment.

Do not place yourself at personal risk.


More than one way to skin a cat!

- Where nets are placed that are likely to interfere with a run of salmon or sea-trout, or it is known that they are being caught, it should always be reported to the Environment Agency who can require the local SFC to prohibit any netting in that area.  By reporting such instances, the EA will be able to build up a log file which can be used as evidence for the need for netting in that area to be prohibited or restricted.

- Report any untaxed vehicles to the police and/or DVLC

- Where appropriate inform your local tax office that you are concerned that the individuals concerned may not be declaring their income from their netting activities, and alert the benefits agency (there is likely to be a local hotline for reporting suspected benefit cheats).

- Often, unwanted bycatch is simply dumped on the beach, or in car park bins.  That is illegal, and the local council and/or Environment Agency may want to take action against such ‘fly-tipping’.


- Nets that are set in areas frequented by swimmers or jet-skiers etc can be a public danger and it’s possible that the local council will move to ban the setting of nets in such areas under Health & Safety requirements if the matter is bought to their attention.

- If the nets are likely to endanger or interfere with the activities of other water users, report them to the nearest harbour master and/or town council. 

- If nets are likely to be a danger to Marine Wildlife and/or Birds, especially if it is known that animals have been trapped in the nets, report them immediately to the Local Wildlfe Trust ( http://www.wildlifetrusts.org/ ) and/or the RSPB (  http://www.rspb.org.uk/ ). If necessary, they can be down there taking appropriate action very quickly.


Establish a Sea Watch

If anglers suspect routine and systematic illegal netting in their area, and this does not appear to be being effectively dealt with by local enforcement authorities, a few anglers banding together to establish a Sea Watch can at least have the netters moving away from an area.

Be prepared to take part in vigils through the early hours (and maybe do some fishing at the same time) looking out for and investigating any suspicious activity.

Such a group has two objectives; to gather evidence to force the authorities to act, and to deter those who use the cover of apathy and the night to carry out their illegal activities. (Several high-powered beams suddenly shone upon their activity from the shore and/or boats can unnerve them; just knowing that there is a local group out to nail them can bring their activities to a stop.)

But remember - do not get directly involved. 

Gather and report the evidence through a Sea Watch co-ordinator to the enforcement authorities, the police and any other interested parties (the co-ordinator being responsible for keeping records of all incidents and how these were dealt with by the authorities and making the information available to all interested parties). 

Liaison with authorities such as the police and SFC will be essential.

Publicise the existence of the group, and pressure the local enforcement authorities for action, based upon your observations and any evidence that you have gathered.   

Remember it is illegal netters that are being targeted, people who are undermining the market and taking the catches of legal licensed netters who may also be happy to assist in stopping the activities which threaten their own livelihoods.

----------------------------------------------------------------------------------------------------

There is a very useful paper about gill-netting, produced by CEFAS that can be downloaded from www.cefas.co.uk/publications/lableaflets/lableaflet69.pdf   

And information about various types of gear at: http://www.marlab.ac.uk/FRS.Web/Uploads/Documents/Fishing Gear.pdf

Even when fishing is legal, as with any other legal 'right', the right to fish is only a right so long as it is exercised in a reasonable manner, and with regard to its impact on other stakeholders.

The following article sets out the legal position and has ome interesting implications.

See: http://www.sacn.org.uk/Articles/The_Public_Right_to_Fish.html

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Information Relating to Fixed Netting - Source CEFAS, Valid May 2008

Section 37(2) of the Salmon Act 1986 effectively banned the use of fixed nets within the England and Wales 6-mile zone, unless they were specifically authorised by SFC byelaw. 

The intention was to prohibit the operation of netting gears in a way, at times and in places that might interfere with the movements of salmon or sea trout, whilst allowing legitimate sea fisheries to continue. 

The authorising byelaws fall into three categories:

1. complete banning of fixed nets in areas where salmon and sea trout are particularly vulnerable (e.g. in and around `around river mouths), either for the whole year or a specified season;

2. constraints on the placing of fixed nets such that the net is fished in water deeper than proscribed and/or that the net’s headline is at least a specified number of metres below the sea surface (to provide free passage to shallow swimming salmon or sea trout), at all times, or seasonally;

3. complete authorisation of fixed nets within the 6-mile zone along a specified stretch of coast (i.e. the status quo).

The main constraints on the spatial and seasonal use of fixed nets inshore are summarised below, moving clockwise around the English coast. 

There are other measures specifying mesh sizes to be used and methods of marking fixed gear, for example, which we have not covered. 

The first category (complete prohibition of fixed nets) has been applied to areas around the following river mouths or harbours:

Northumberland – Tyne, and inshore south of the mouth of the Tyne to Marsden Point, Wansbeck and Coquet, and inshore between Hauxley Point and Seaton Point, between 26th March and October inclusive.

Yorkshire – Esk and Humber (April – Oct. inclusive);

Kent – Thames (inside Yantlet Line across estuary, all year), Stour (1.5 nm radius April – Sept. inclusive);

Sussex – Rye Harbour, Cuckmere Haven, Ouse, Adur, Arun, Chichester Harbour (except eel fyke nets, or if net dries out) (all within estuary closing lines, plus adjacent coastal waters, May – Sept. inclusive).

Hampshire/Dorset – Langstone Harbour (if net dries out), Meon, Test, Itchen, Lymington, Keyhaven and Poole Harbour (all within estuary closing lines, plus some adjacent coastal waters, except eel fyke nets, April – Sept. inclusive);

Devon –Axe, Otter, Exe, Teign, Dart, Salcombe Harbour, Avon, Erme, Yealm, Plym, Tamar, Lyn (all within estuary closing lines), plus part of Lundy Isle reserve, all year;

Lancashire – Ribble, Wyre, Lune, Keer, Kent, Leven and Duddon (all within estuary closing lines, plus adjacent coastal waters), May – Nov. inclusive, except actively worked flue nets <75 m in length in Leven and Kent Estuaries from July to Nov. inclusive, and authorised nets in outer estuaries of Duddon, Leven, Kent, Keer, Lune and Ribble from may until Nov. inclusive;

Cumbria – Irt, Mite and Esk (2nm radius April – Nov. inclusive), Ehen and Calder (1nm radius April – Nov. inclusive) Derwent (1nm radius April – Nov. inclusive), Ellen (1 nm radius, April – Nov. inclusive.), Solway Firth, east of Silloth (Feb. – Sept. inclusive).


The second category (constraints on the placing of fixed nets such that the net is fished in water below a certain depth, and has a minimum depth of water above the headline) has been applied to the following areas:

Northumberland – between 26th March and Oct. inclusive, fixed netting is allowed throughout the District (unless otherwise prohibited, i.e. inshore south of the mouth of the Tyne to Marsden Point and between Hauxley Point and Seaton Point) only in water more than 7 m deep (at any stage of the tide) and with at least 4 m clearance; and between Nov. to 25th March inclusive, netting is allowed throughout the District, provided there is at least 4 m clearance off the Tyne (1 nm zone between Marconi Point to Souter Point,); Wansbeck (between Newbiggen on Sea to Blyth Power Station,); and Coquet (2-3 nm offshore).

Yorkshire  - from 26th March to Oct. inclusive, fixed netting is allowed only in water >10 m deep in all areas (unless otherwise prohibited) provided there is at least 4 m clearance, except sole nets may be fished Monday – Friday set on the seabed and no more than 1 m in height; and netting is allowed in all areas from Nov. to 25th March inclusive, provided there is at least 4m clearance between Tyne and Souter Point, between Souter Point and Salterfern Rocks, and between Tees and Redcar.

Sussex - May to Sept. inclusive, fixed netting is allowed in all waters within the District (unless otherwise prohibited) provided there is at least 1.5 m clearance.

South Devon – fixed netting is prohibited all year round within 1 nm of the shore in specified areas, unless there is at least 3 m clearance, and only with permission: Humble Point to Branscombe Mouth; Salcombe Mouth to Orcombe Rocks, Langstone Point to Torquay Harbour, Mewstone to Langerstone Point, Warren Point to Anchorites Rock and Yealm Head to Rame Head.

Cornwall – fixed netting is prohibited all year round within 1 nm of the low water mark in specified areas, unless there is at least 3m clearance:
Rumps Point to Trevose Head (except during October to March inclusive between Catclews Point to Roundhole Point);
Towan Head to Liggar Point;
Rosemullian Head to Black Head (S of Coverack);
Nare Head to Zone Point;
Dodman Point to Greeb Point;
Pencarrow Head to Black Head (E of Mevagissey)
Rame Head to Hore Stone
St Ives Bay, between Godrevy Point and St Ives Head (except herring nets may be set on the sea bed, Oct – Dec. inclusive)
Mounts Bay, between Penlee Point and Cudden Point.

North Devon – fixed netting is prohibited all year round within 1 nm of the shore in specified areas, unless there is at least 3 m clearance, and only with permission: Blackchurch Rock to Westward Ho!, Morte Point to Bull Point, beacon Point to Rillage Point, Duty Point to Foreland Point.

Cumbria – fixed netting is allowed all year round in all waters within the District (unless otherwise prohibited), provided there is at least 3 m clearance, except the latter does not apply from Grune Point to southern boundary of SFC between Dec. to May inclusive.

The third category (complete authorisation of fixed nets within the 6-mile zone) has been applied to all other areas. 

These include the entire Lincolnshire and East Anglian coastline from the Humber to the Thames, and the Cheshire and Lancashire coasts from Hilbre Point to the northern boundary of NW&NWSFC District, unless netting is otherwise prohibited.

The effect of the fixed engines prohibition (Section 37(2), Salmon Act 1987), and the subsequent authorising byelaws put in place by SFCs in constraining netting activity around the English coast, is summarised in Figure 2. 

This shows that fixed netting is prohibited all year round in most estuaries, unless specifically licensed for taking salmon, sea trout or eels, and is also prohibited in the greater part of shallow inshore waters (out to 1 nm in Devon and Cornwall) unless the headline lies at a minimum depth (usually 3 m) below the sea surface at all stages of the tide. 

The exceptions are in Lincolnshire and East Anglia, and along parts of the Dorset, Cornwall and Lancashire coasts, where there are legitimate commercial netting fisheries for sea fish that are well established and do not pose a threat to migratory salmonids. 

This indicates that around half of the English coastline has regulations restricting the use of fixed nets so that they are unlikely to interfere with anglers fishing from the shore. 

The use of attended drift nets and ring nets in close proximity to the shore is still permissible in many areas around the coast (including in bass nursery areas along the central south coast).  In some cases, these fisheries are targeted at bass.
 
Figure 2 (not shown here).  The estuaries (with English borders) in which fixed nets are prohibited under Section 37(2) of the Salmon Act 1986 (black circles, unless licensed for taking salmon, sea trout or eels) and the subsequent authorising byelaws put in place by SFCs (open circles), and stretches of the English coastline (thick line) where fixed netting activity is also constrained in shallow inshore waters.




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