29.519 Commercial fishing in outlying waters.
(1b) In this section, “record" has the meaning given in s. 29.503 (1) (cm).
(1m) License authorized.
(a) No person may conduct commercial fishing operations on any of the outlying waters unless the person is issued a commercial fishing license by the department.
(b) The department may limit the number of licenses issued under this section and designate the areas in the outlying waters under the jurisdiction of this state where commercial fishing operations shall be restricted. After giving due consideration to the recommendations made by the commercial fishing boards under sub. (7), the department may establish species harvest limits and promulgate rules to establish formulas for the allocation of the species harvest limits among commercial fishing licensees or for the allotment of individual licensee catch quotas. The department may allocate the harvest limits among commercial fishing licensees. The department may designate the kind, size and amount of gear to be used in the harvest. The limitations on licenses, restricted fishing areas, harvests and gear shall be based on the available harvestable population of fish and in the wise use and conservation of the fish so as to prevent overexploitation.
(c) The department may promulgate rules defining the qualifications of licensees in the reasonable exercise of this authority, giving due consideration to residency, past record including compliance with the records requirements of sub. (5), fishing and navigation ability and quantity and quality of equipment possessed. The rules may not impose any minimum harvesting requirements on applicants for licenses requiring that applicants harvested, in any previous period of time, a specified minimum amount of fish. Rules relating to licensing commercial fishers shall be based on criteria provided by the commercial fishing boards under sub. (7).
(d)
1. In this paragraph, “ overall length" means the minimum distance between the extreme outside end of the bow and the stern using the nearest whole number of feet.
2. The application for the license shall be made to the department, accompanied by the fee specified in s. 29.563 (7). The application shall state the name, birthdate, description and address of the residence of the applicant, the manner in which he or she proposes to fish, the name or number and overall length of his or her boats, the name of the hailing port from which the boats will operate, and the number and kind of nets or other gear he or she intends to use in connection with commercial fishing and any other information required by the department for statistical purposes. The applicant shall provide an itemized listing of commercial fishing gear and equipment with the current values of those items of commercial fishing equipment, sufficient to meet the investment requirements for licensing as established in rules promulgated under this section.
(e) No outlying waters commercial fishing license may be issued to a person under the age of 18 years.
(2) Residency; transfers; catch fees.
(a) Nonresident defined. In this subsection, “nonresident" includes any individual who is not a resident, any individual applying for a license for use of nets on a boat registered or of record at a port outside of the state, or any partnership, association, corporation or limited liability company any of whose stock, boats, nets and fishing equipment has been owned by a nonresident at any time during the 2 years immediately prior to the application for a license.
(d) Transfer of license. The department shall promulgate rules governing the transfer of commercial fishing licenses between individuals equally qualified to hold the licenses and to members of a licensee's immediate family provided the rules assure the wise use and conservation of the fish resources being harvested under the license. The rules shall relate only to those waters in which the number of licenses is limited. The commercial fishing boards, under sub. (7), shall approve or deny transfers of commercial fishing licenses in accordance with the rules promulgated under this section. For purposes of s. 29.024 (2g) and (2r), a transfer of a license under this section shall be considered an issuance of a license to the transferee.
(e) Transfer of replacement boats. The department may, upon application, allow the holder of a commercial fishing license to replace a boat listed on that license with a different boat.
(f) Commercial fishing boats. Any boat used by a resident licensee shall be from a port of record in this state, its hailing port shall be a port in this state, and it shall be a registered or documented boat of this state. Any boat used by a nonresident licensee shall be a registered or documented boat of the state of residency.
(fm) Attending boats. Each boat in excess of 25 feet in overall length used by a commercial fisher may be accompanied by and work with one attending boat without an additional license fee for the attending boat. Any attending boat that is a motorboat under s. 30.50 (2) shall be registered under s. 30.51. An attending boat shall bear the name, if any, of the boat listed on the commercial fishing license issued under sub. (1m) and may be used only for attending that boat.
(g) Reciprocity.
1. Except as provided under subd. 2., the department may not issue commercial fishing licenses to nonresidents of a particular state in a number which exceeds the number of commercial fishing licenses that that particular state issues to residents of this state.
2. The reciprocity limitation on the issuance of commercial fishing licenses to nonresidents under subd. 1. does not apply to a nonresident who held a commercial fishing license on or before July 1, 1982, or to a nonresident to whom such a commercial fishing license is or was transferred by a member of his or her immediate family if that license was renewed for at least 5 consecutive years by the nonresident or a member of his or her immediate family and subject to compliance with criteria and approvals required under this section.
(h) Catch fee. The department may require a catch fee which shall be equivalent to the department's direct costs of providing fish for harvest, for species of fish designated by department order, as further consideration for obtaining the license. The fees shall be charged only for those species of fish whose populations are sustained or supplemented through stocking and only for those fish caught by the licensee. All the fees shall be used exclusively to pay for the stocking, including purchase or propagation, of the fish.
(4) Crew licenses.
(a) Any commercial fishing licensee may use licensed crew members when fishing with or without a boat. The number of crew members engaged under a single license may not exceed 4 when fishing with nets under the ice. The department, upon proper application for crew licenses, may issue with each commercial fishing license no more than 4 crew licenses for the specific purpose of fishing with nets under the ice and the number indicated on the application for the purpose of fishing in open water. Each crew license shall bear the number of the commercial fishing license, the purpose for which intended, the year for which issued and the name of the crew member to whom the crew license is issued. The crew license permits a person to engage in commercial fishing only as a member of a crew of a commercial fisher licensed under sub. (1m).
(b) Each member of a crew engaged in the setting, lifting or pulling of nets or other devices set under authority of a commercial fishing license shall carry the crew license on his or her person while so engaged and upon demand of any warden shall exhibit the license. Persons using minnow seines and dip nets used for taking smelt and minnows are exempt from this subsection.
(c) In case of illness or unavailability for good cause of a licensed crew member, an unlicensed person may work on a commercial fishing operation for a period not to exceed 48 hours under a temporary crew identification card, after which time he or she must obtain a crew license to engage in commercial fishing operations. Temporary crew identification cards shall be issued by the department to commercial fishing licensees for use as provided in this paragraph. Prior to use, the commercial licensee shall indicate on the temporary crew identification card the license number and name of the commercial fisher for whom the crew member will be working, the time and date the crew member commences work under the card and the crew member's name, address, description and his or her signature. The card shall be presented, upon request, to a warden and must be in the possession of the crew member at all times while engaged in commercial fishing operations. The commercial fisher issuing the temporary crew identification card to an unlicensed person shall submit the card to the department with the commercial catch report submitted for the period in which work conducted under the card was performed.
(d) The commercial fishing licensee is responsible for all acts of crew members conducting commercial fishing activities for the licensee. A commercial fishing licensee may be charged with and convicted of a violation committed by his or her crew member while the crew member is conducting commercial fishing activities for the licensee. Upon revocation of a commercial fishing license, all crew member licenses issued under that license are invalid, and no person may be issued a temporary crew identification card under that license.
(4g) Prohibition against operating fish farms. No person who holds a commercial fishing or crew license issued under this section may operate a fish farm that contains a species of fish that the holder of the license is authorized to catch under this section.
(4m) Fishing for certain species of fish in Lake Michigan and Green Bay.
(a) In this subsection, “incidental catch" means species of fish inadvertently caught while a commercial fisher licensed under sub. (1m) is fishing by trawl for other species of fish.
(b) An incidental catch of smelt, chub or alewife from the waters of Green Bay or Lake Michigan may be brought to shore for the purpose of sorting or sale.
(c) A commercial fisher licensed under sub. (1m) may fish by trawl for the total allowable commercial harvest of smelt, as set by rule by the department, on the waters of Green Bay at any time during nighttime if all of the following apply:
1. The smelt will be used or sold for human consumption.
2. The fishing occurs in the areas and during the seasons established by the department for the fishing of smelt.
(5) Records and reports.
(a) Records requirements. Each commercial fisher shall maintain and submit records to the department in the form and manner required by the department.
(b) Fishing records. The commercial fisher shall keep and submit a complete, legible and accurate record of the licensee's daily fishing activities, in the form and manner required by the department. The record shall include the complete name, address and commercial fishing license number of the licensee; the name and number of the boat fished from; the location fished; the month and year for which the record is being kept; the date of each day's fishing activity; the kind and amount of commercial fishing gear used; the kind of fish caught and the number of pounds of each kind of fish caught; and the signature of the licensee.
(c) Fish disposition records. The commercial fisher shall keep a complete, legible and accurate record of the disposition of landed catch, in the form and manner required by the department. The record shall include the complete name, address and commercial fishing license number of the licensee; for each wholesale sale, the complete name, address and wholesale fish dealer license number, if any, of the buyer and the kinds of fish sold, the number of pounds of each kind and the description of the fish sold and the date of the sale; for direct retail sales, the kinds of fish sold, the total pounds of each kind, and the date of the sale; and the signature of the licensee. In this paragraph, “landed catch" means those fish or fish parts caught in commercial fishing operations and brought to shore to utilize or to sell or otherwise dispose of.
(dm) Record retention and confidentiality.
1. Each commercial fisher shall maintain and retain all records required under this subsection for a period of at least 5 years from the date on which the record was created. Each commercial fisher shall notify the department annually, on forms available from the department, of the location of the commercial fisher's records.
2. Upon the written request of a commercial fisher to the department, the department shall maintain the confidentiality of the information contained on each record furnished by the commercial fisher to the department.
3. Notwithstanding the confidentiality requirement in subd. 2., the department may disclose information contained on any record furnished by a commercial fisher to the department if the disclosure is in furtherance of an investigation or enforcement action undertaken by the department or a law enforcement agency.
4. Notwithstanding the confidentiality requirement in subd. 2., the department may disclose information contained on any record furnished by a commercial fisher to the department if the department uses the information for a statistical summary or report that does not identify the commercial fisher by name or license number.
(5m) Inventory. Each commercial fishing licensee shall prepare an annual inventory of Great Lakes fish and all species of sturgeon owned by the licensee or in the licensee's possession or control at the time that the inventory is prepared, including such fish maintained in cold storage facilities. The inventory shall be furnished to the department within 15 days after the inventory is completed. The inventory shall be recorded on a form available from the department and shall include the weight of the fish in pounds or kilograms, the species of the fish, the condition of the fish, and the address of the location of the fish.
(6) Inspection. For purposes of enforcement of this section, wardens or department employees duly authorized and designated by the secretary, upon presenting appropriate credentials to the commercial fisher, crew member, or agent in charge, are authorized:
(a) To enter any building or structure, excluding a dwelling place, in which records, nets, or fish are stored or held, or in which fish are processed or packed, or to enter any boat or vehicle being used to transport nets or fish when the owner or agent in charge is present or upon 8 hours' notice at other times.
(b) To inspect buildings, structures, boats or vehicles, to inspect all pertinent equipment including nets used or stored in the places to be inspected, to inspect or copy all records of commercial fishing activity, of fish storage, and of fish disposition, and to inspect any fish stored, processed, packed or held in the places to be inspected.
(c) To direct a commercial fisher, a crew member, or an agent in charge to empty any fish box that is larger than a standard fish box, as defined by the department by rule. If so directed, the commercial fisher, crew member, or agent shall empty such fish box.
(6g) Record production. Upon the request of the department, a commercial fisher shall produce all records relating to the production, acquisition, sale, trade, barter, storage, or disposition of fish that are kept at the commercial fisher's place of business or at a residence, dwelling, or location other than the commercial fisher's place of business within 24 hours of the request for inspection or copying. The records shall be mailed within 24 hours of receipt of the request.
(6m) Interference with inspections. No commercial fisher, licensed crew member, operator of a vehicle or boat for the commercial fisher, or an employee acting on behalf of the commercial fisher may prohibit entry, prohibit an inspection to be conducted, fail or refuse to produce any record, or fail or refuse to immediately empty a fish box or container as provided under sub. (6). The department may not conduct an inspection or examine a person's records under sub. (6) if such action has been enjoined by court order.
(7) Commercial fishing boards. The Lake Superior and Lake Michigan commercial fishing boards established under s. 15.345 (2) and (3) shall review and consider applications for a transfer of license under this section and shall approve or deny applications on the basis of rules promulgated by the department. The boards shall recommend to the department species harvest limits and formulas for the allotment of individual licensee catch quotas when the department establishes species harvest limits for allocation among licensees. The boards shall assist the department in establishing criteria for identifying inactive licensees. The criteria established for identifying inactive licensees shall be the basis for rules governing the issuance of licenses. The boards may also advise the department on all other commercial fishing matters relating to Lake Michigan and Lake Superior.
History: 1975 c. 94 s. 91 (9); 1975 c. 199, 317; 1977 c. 29, 418; 1979 c. 32 s. 92 (1); 1979 c. 154, 221; 1983 a. 25; 1983 a. 27 s. 2202 (38); 1985 a. 29; 1985 a. 332 s. 251 (1), (3); 1991 a. 39; 1993 a. 112; 1997 a. 27, 189, 191, 237; 1997 a. 248 ss. 461 to 475; Stats. 1997 s. 29.519; 1999 a. 32; 2005 a. 288; 2011 a. 177.
The warrantless search of a truck by a state conservation wardens under sub. (6) was presumptively reasonable. State v. Erickson, 101 Wis. 2d 224, 303 N.W.2d 850 (Ct. App. 1981).
Charging an employee with a license violation under sub. (1) [now sub. (1m)] was improper. The burden to obtain licenses for employees is on the employer. State v. Filipczak, 132 Wis. 2d 208, 390 N.W.2d 110 (Ct. App. 1986).
Commercial fishers did not have a property interest in quotas under existing commercial fishing licenses and were not entitled to hearings and other due process requirements or to compensation when rules setting the quotas were changed through ch. 227 rule making. LeClair v. Natural Resources Board, 168 Wis. 2d 227, 483 N.W.2d 278 (1992).
The relationship between Indian fishing rights and commercial fishing quotas is discussed. 68 Atty. Gen. 416.