Californians often feel strongly about what they can fish for, and regulations on access. Some assert that Article 1, Section 25, of the California Constitution seems to give the public a “right to fish.” It states “The people shall have the right to fish upon and from the public lands of the State and in the waters thereof…provided, that the legislature may by statute, provide for the season when and the conditions under which the different species of fish may be taken.” 

However, this “right to fish” is not absolute. In 1918, the California Supreme Court considered whether a law providing for the licensing of fishermen was unconstitutional because it violated Article 1, Section 25. The court rejected the argument, finding that the provision authorizing the Legislature to fix the seasons and conditions under which fish are taken was intended to leave the matter up to the Legislature [Paladini v. Superior Court (1918) 178 Cal. 369]. As recently as 1995, a court reaffirmed the qualified, not fundamental, right to fish and that the language of the State Constitution was not intended to curtail the ability of the Legislature (or the Fish and Game Commission through legislated authority) to regulate fishing [California Gillnetters Association v. Department of Fish and Game (1995) 39 Cal.App.4th 1145]. 

Section 25 must be read in connection with article 4, section 20 (formerly section 25½), which states that the Legislature may enact appropriate laws for protection of fish and game, and may delegate to the Fish and Game Commission such powers relating to protection and propagation of fish and game [Ex parte Parra (1914) 24 Cal. App. 339, 340]. In that respect, the California Supreme Court found it “most apparent” that the purpose of (now) article 4, section 20 “was to clothe the Legislature with ample power to adequately protect the fish and game of the state.” Further, the California Supreme Court has long declared that the power to regulate fishing has always existed as an aspect of the inherent power of the Legislature to regulate the terms under which a public resource may be taken by private citizens [In re Phoedovius (1918) 177 Cal. 238, 245-246; People v. Monterey Fish Products Company (1925) 195 Cal. 548, 563]. This regulatory power clearly includes the regulation of fishing within marine protected areas [Section 2860, FGC].