BILL NUMBER: AB 815 INTRODUCED BILL TEXT INTRODUCED BY Assembly Member Berryhill FEBRUARY 22, 2007 An act to add Section 221 to the Fish and Game Code, relating to fish and game. LEGISLATIVE COUNSEL'S DIGEST AB 815, as introduced, Berryhill. Hunting or fishing: local regulation. The California Constitution provides for the delegation to the Fish and Game Commission of powers relating to the protection and propagation of fish and game. Existing statutory law delegates to the commission the power to regulate the taking or possession of birds, mammals, fish, amphibia, and reptiles in accordance with prescribed laws. Under existing law, the Department of Fish and Game exercises various functions with regard to the taking of fish and game. Under existing law, a city or county exercises certain limited authority with regard to the regulation of fish and game for the protection of public health and safety. This bill would prohibit a city or county from adopting an ordinance or regulation within its jurisdiction that affects the taking of fish and game unless the ordinance meets prescribed requirements. The bill would also provide that unless otherwise expressly authorized by the Fish and Game Code or federal law, the commission is the only entity that may adopt regulations regarding the taking of fish and game on any lands or waters within the state. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 221 is added to the Fish and Game Code, to read: 221. (a) The Legislature finds and declares all of the following: (1) The California Supreme Court in In re Makings (1927) 200 Cal. 474, determined that Section 251/2 of Article IV of the California Constitution, as currently set forth in Section 20 of Article IV, prohibits local governmental entities from regulating, or interfering with, fish and game matters and places this responsibility with the Legislature. (2) The Fish and Game Commission was established in 1870 to assist in the management of California's fish and wildlife resources. The California Constitution permits the Legislature to delegate to the commission certain powers relating to the management of fish and game, and the Legislature has delegated to the commission regulatory powers over the taking and possession of fish and game, as set forth in the Fish and Game Code. (3) Hunting and fishing are statistically among the safest outdoor recreational activities, particularly as they relate to impacts on the general public, and are already well regulated by the state through mandatory safety requirements, weapons laws, and regulations adopted by the commission. Hunting and fishing are also compatible with other recreational uses on many public lands and waters throughout the state. (b) In enacting this section, it is the intent of the Legislature to affirm, subject to applicable federal law, the exclusive legal authority granted to the commission and the department with regard to the taking and possession of fish and game and thereby ensure continued statewide control by the commission and the department over all fish and game matters. It is further the intent of the Legislature to protect public safety in those limited instances where state laws and regulations have not already provided a reasonable level of public safety. (c) The state has fully occupied the field of fish and game. (d) A city or a county shall not adopt an ordinance or regulation within its jurisdiction that affects the taking of fish and game, unless both of the following apply: (1) The ordinance or regulation is enacted under the police powers granted under Section 7 of Article XI of the California Constitution, and therefore does not conflict with general laws, including Sections 200, 203, and 205, and the ordinance or regulation is necessary to protect public health and safety, and has the protection of public health and safety as its principal purpose. (2) The ordinance or regulation has only an incidental effect upon the field of fish and game reserved to the commission or the department by the California Constitution, including Section 20 of Article IV of that Constitution, or state law. (e) When complying with subdivision (d), a city or county shall take into consideration existing state and federal laws and regulations governing the taking of fish and game, the number of fish and game related safety incidents within the geographic area in question, the degree of public access to that area and, if applicable, the effective range of weapons used to take fish or game. (f) No ordinance or regulation adopted by a city or county that would affect the taking of fish and game within its jurisdiction shall extend to any areas where the taking of fish and game may take place without endangering human life. (g) A city or county ordinance or regulation shall not affect the taking of fish and game in any of the following areas: (1) Any lands or waters owned or managed by the state or federal government. (2) Any unincorporated private lands. (3) Any unincorporated lands or waters where the commission or department determines that the taking of fish and game is necessary for wildlife management or other purposes. (4) Any incorporated private lands outside the "safety zone" area described in Section 3004 in which limited-range weapons such as shotguns, archery equipment, or air rifles may be used to take game. (h) The commission, the department, or any other governmental entity legally authorized to impact the taking of fish and game on navigable waters held in public trust shall consider the fishing and hunting rights of the public guaranteed under Section 25 of Article I and Section 4 of Article X of the California Constitution. (i) Unless otherwise expressly authorized by this code or other state or federal law, the commission is the only entity in this state authorized to adopt regulations regarding the taking of fish and game on any lands or waters within the state. (j) If an ordinance or regulation proposed by a city or county does not meet the requirements of this section, a city or county may consult with the department regarding compliance with this section.