Angler with Revoked License May Fish During Free Weekend

State v. Milburn, 205 Or. App. 205 (Or. Ct. App. 2006).

Terra Bowling, J.D.

An Oregon man convicted of angling with a revoked license during a “free fishing weekend” recently received a reprieve from the Oregon Court of Appeals. In December 2002, Thomas Milburn was cited for keeping a “foul-hooked” fish, which is a fish that has been hooked on some part of the body other than the mouth. Consequently, Milburn’s fishing license was revoked, suspending his angling privileges for the next twenty-four months.

In June 2003, the Oregon Department of Fish and Wildlife sponsored its annual free fishing weekend. No angling licenses or tags are required for the taking of fish for personal use in Oregon waters during free weekends.1 While performing surveillance at Hebo Lake, an Oregon State Police Trooper observed Milburn fishing with his grandniece. Milburn was later cited for “angling while revoked” in violation of Oregon Rev. Stat. § 497-411, which prohibits a person with a revoked license from engaging in the activity for which the license is required.

At trial, Milburn argued that the statute only prohibited him from fishing in instances when a license is required. He contended that since there is no license requirement for a free fishing weekend, his conduct did not violate the “angling while revoked” statute. The circuit court found that since the free-fishing weekend statute did not specifically allow individuals with revoked licenses to fish, Milburn was not allowed to participate. The judge was of the opinion that “there was no intention for the legislature to allow those people who were suspended or had their privileges revoked to fish on open fishing days.”2

The Court of Appeals disagreed, concluding that Milburn had not violated Oregon law by fishing during a free weekend while his license was revoked. The court first found that the general angling licensing statute3 distinguished among different angling activities, only some of which required a license. No license, for instance, is required to angle on your own property. Turning to the revocation statute, the court found nothing in the text to suggest that revocation also prohibits the person from engaging in fishing activities that do not require a license. Because a license is not required to fish during a free fishing weekend, persons whose angling licenses had been revoked are not prohibited from participating.

One judge dissented from the majority opinion arguing that the court should have considered the legislature’s intent in creating the free fishing weekend. Judge Rosenblum felt that, had the legislature considered the issue, it would have expressly prohibited individuals whose angling licenses were revoked from participating in free weekends.

Endnotes
1. Oregon Rev. Stat. § 497.079.
2. State v. Milburn, 205 Or. App. 205, 209 (Or. Ct. App. 2006).
3. Oregon Rev. Stat. § 497.075.