1997 Regular Session
To: Conservation and Water Resources
By: Representative Peranich
House Bill 1582
AN ACT TO AMEND SECTION 49-15-3, MISSISSIPPI CODE OF 1972, TO REVISE AREA DEFINED AS A TONGING REEF; TO MAKE TECHNICAL REVISIONS TO THE DEFINITION OF DOMICILE; TO AMEND SECTION 49-15-39, MISSISSIPPI CODE OF 1972, TO REVISE AREAS RESERVED FOR TONGING; TO AMEND SECTION 49-15-37, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 49-15-3, Mississippi Code of 1972, is amended as follows:
49-15-3. As used in this chapter, the term:
(a) "Commission" means the Mississippi Commission on Marine Resources.
(b) "Department" means the Department of Marine Resources.
(c) "Domicile" means a person's principal or primary place of abode in which a person's habitation is fixed and to which the person, whenever absent, has the present intention of returning after a departure of absence therefrom, regardless of the duration of the absence. The burden of proving domicile in the State of Mississippi shall be on the person claiming that status. A person holding a current driver's license shall be deemed to be domiciled within the state issuing the license. * * * If a person does not hold a current driver's license the following evidence * * * may be considered in establishing * * *, but is not necessarily determinative of domicile: * * * residence for income or other tax purposes, homestead exemption receipt or other means prescribed by the commission. In the case of minors, domicile of the parents shall be used as evidence of the minor's domicile.
(d) "Illegal oysters" means:
(i) All untagged shell stock;
(ii) Shell oysters obtained from uncertified shops or dealers or from an unlicensed catcher;
(iii) Oysters obtained from waters not declared safe and sanitary by the department, except those oysters caught by the commission for re-laying or under private leases pursuant to Section 49-15-27;
(iv) Shucked oysters obtained from uncertified shops or repackers.
(e) "Inspector" means the chief inspector, the assistant chief inspector or any deputy inspector employed by the Department of Wildlife, Fisheries and Parks.
(f) "Natural reefs" means any bottom under the jurisdiction of the commission of one or more acres on which oysters grow naturally, or have grown naturally, in a quantity sufficient to warrant commercial fishing as a means of livelihood, or have been used in such a manner within a period of ten (10) years next preceding the time the bottoms may come up for determination by the commission.
(g) "Resident" means a person, firm or corporation that is domiciled in this state.
(h) "Seafood" means all oysters, saltwater fish, saltwater shrimp, diamondback terrapin, sea turtle, crabs and all other species of marine or saltwater animal life existing or living in the waters within the territorial jurisdiction of the State of Mississippi.
(i) "Tonging reefs" means:
(i) Any bottom under the jurisdiction of the commission of one or more acres on which oysters grow naturally, and where they have been taken by the use of hand tongs in commercial quantities for a period of ten (10) years next preceding the time the bottoms may come up for determination by the commission; and
(ii) All of those areas described in Section 49-15-39.
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SECTION 2. Section 49-15-39, Mississippi Code of 1972, is amended as follows:
49-15-39. (1) It is unlawful for any person to catch or take oysters by means of dredging in any of the following waters in the State of Mississippi within the limits of a line beginning at a point one (1) mile south of the shore on the east boundary line of Mississippi and thence running westerly following the meanderings of the shore line one (1) mile from the shore line to a point one (1) mile south of the shore on the west boundary line of Mississippi; the point of measure across the mouth of a bay or bayou shall be a direct line from the southern most point on the east side across to the southern most point on the west side of the mouth.
* * *
(2) * * * The commission * * * shall mark the boundaries of the areas * * * designated by appropriate poles, stakes or buoys of * * * material that will not injure watercraft, and the boundaries, when * * * designated by the commission, shall be final unless shown to be incorrect by a proceeding which may be brought by any person interested in the chancery court of the county adjacent to the area.
(3) If any boat or vessel * * * catches or takes oysters by means of dredges, drags or scoops, other than hand tongs, from any of the areas described in this section, or with a dredge or dredges in the water, then * * * all oysters * * * on board the boat or vessel * * * are hereby declared to be contraband and shall be taken and confiscated by the department or any marine law enforcement officer without court procedure. * * * The captain and crew of the boat or vessel, promptly upon being ordered so to do, shall transport the oysters to a point on the public reefs of the state where the boat or vessel is found and there scatter the oysters according to the instructions of the enforcement officers. If the captain and crew of the boat fail to comply with the instructions, the captain and all members of the crew are guilty of resisting an officer and shall be punished as provided in Section 49-15-63. * * * No permit or license shall issue under the laws of Mississippi, within twelve (12) months thereafter, to operate any boat on which the captain or any member of the crew may be employed.
SECTION 3. Section 49-15-37, Mississippi Code of 1972, is amended as follows:
49-15-37. By order of the commission, the director, under the direction and control of the commission, shall employ boats, crews and laborers and shall cultivate the public reefs of the state, and shall dredge the oysters in the Mississippi Sound from places where they are too thick, and shall spread them on reefs where they are too thin, and shall carry shells from the factories and spread them in places where the oyster beds can be improved and enlarged * * *. The department may purchase such other materials as may be equally suitable for the propagation of oysters. The department in cultivating the reefs, transplanting and spreading oysters and shells and other suitable materials, may expend * * * any funds available for that purpose * * *. In taking seed oysters, care shall, however, be used so as not to injure or destroy the merchantable oysters on the reefs from which they are taken. * * * The seed oysters shall * * * be tonged from the "conner" or seed reefs, unless it is practicable and safe to dredge same. The commission shall have authority, by orders spread * * * on its minutes, to establish new bedding grounds at such places within the boundaries of the state as it may determine, on advice of the director, or on advice of technical governmental experts, or competent aquatic biologists. On existing public reefs in which oysters exist and in waters * * * not of a safe sanitary quality as determined by the department, the commission shall prohibit any person, firm or corporation from taking oysters from those areas except that the commission shall from time to time remove the oysters from the areas and re-lay or replant them in an approved area for a period of time pursuant to Section 49-15-15(9) before they may be harvested. * * * The commission may transport the oysters to an onshore, molluscan depuration facility for the purpose of proving depuration technology and for other experimental purposes. In connection with the testing of onshore, molluscan depuration technology, the commission may sell or dispose of the re-layed oysters in a manner consistent with all applicable state and federal laws and regulations. * * * Any funds received from the sale of the oysters shall be used in a like manner as those funds received under Section 49-15-15(3)(d), Mississippi Code of 1972.
If the commission finds and determines that onshore, molluscan depuration technology proves to be successful, the commission may issue permits to private enterprise which may locate depuration facilities in Hancock, Harrison and Jackson Counties. The commission shall promulgate rules and regulations for the taking of oysters from reefs for transport to an onshore, molluscan depuration facility and for the operation of the facilities. Each depuration facility operated by private enterprise shall return oyster shells to the oyster reefs for replanting under the proper supervision of the department and pursuant to Section 49-15-15(3)(d).
The commission may issue permits to persons to remove oysters by dredging or otherwise from water bottoms which are not of a safe sanitary quality for oysters * * * for human consumption even though those areas may have been reserved for tonging only in * * * Section 49-15-39. These areas shall be designated as seed grounds, and permits to persons shall be issued only for the purpose of transplanting oysters to privately leased Mississippi territorial waters * * *. The commission may permit the transplanting of these seed oysters by a duly authorized public agency.
The commission may, upon certification of the department that the water bottom from which oysters are to be removed is not of a safe, sanitary quality for oyster production for human consumption and has been * * * unsafe for a period of at least one (1) year immediately preceding certification, and upon complying with the following requirements, permit the dredging of oysters from contaminated public areas and re-laying the * * * oysters to private leased grounds in the State of Mississippi:
(a) Permittee must hold valid lease of oyster bedding grounds in the State of Mississippi;
(b) Permittee must be bonded in compliance with the permit system established by the commission;
(c) Permittee must fulfill all permit requirements as established by the commission;
(d) Permittee shall not move oysters from one (1) contaminated area to another contaminated area;
(e) Permittee shall move oysters only to an area leased by the commission after April 13, 1977; and
(f) Permittee shall not move oysters from the contaminated area without the presence of a conservation officer * * * at all times, from the dredging of the oysters from the contaminated areas to their deposit on private leased grounds or to an onshore, molluscan depuration facility.
Harvesting of oysters shall be permitted only during daylight hours and with the most efficient gear possible consistent with conservation requirements of not damaging the reefs. This shall include permission to use two (2) dredges per boat on contaminated areas and on private leased grounds.
Any person obtaining a permit to remove oysters from seed grounds shall post a penal bond of One Hundred Dollars ($100.00) per leased acre with the commission to be forfeited upon any violation of this section. The bond may be approved by the director of the department if he finds the bond to be secured by sufficient property or sureties.
The commission shall regulate the amount and time of taking of oysters from seed areas and shall supervise the removal, planting and harvesting of oysters from the areas. The time * * * set for the taking of oysters from contaminated seed areas for re-laying or replanting and the time * * * set for the taking of oysters from private leased grounds shall be separated by not less than a period of time determined under Section 49-15-15(9) during which neither activity may be allowed.
The commission shall regulate the taking of oysters from contaminated seed areas and the subsequent depuration of the oysters by off-bottom techniques * * * to protect public health, while at the same time fostering the utilization of the state's oyster resources. The regulations shall include the setting of the period of depuration for the oysters by the use of appropriate techniques and provide for a conservation officer to be present when the oysters are taken from contaminated seed areas and deposited on private lease grounds. Any person, firm or corporation engaged in the depuration of oysters by * * * off-bottom techniques or onshore, molluscan depuration facility shall pay to the department an amount equal to the regular compensation of the conservation officer for the time * * * officer actually spends performing the duties * * *.
Only persons who have been residents of Mississippi for at least five (5) years shall be eligible to obtain permits for removal of oysters from seed grounds.
The commission shall designate certain uncontaminated reefs in the state as public reefs and shall remove oysters from water bottoms which are not of a safe, sanitary quality for oyster production for human consumption and shall transport the oysters to the public reefs which shall be reserved for tonging only.
SECTION 4. This act shall take effect and be in force from and after its passage.