BILL NUMBER: AB 815 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 30, 2007
AMENDED IN ASSEMBLY APRIL 11, 2007
INTRODUCED BY Assembly Member Berryhill
(Coauthors: Assembly Members Maze and Parra)
(Coauthors: Senators Harman and Hollingsworth)
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 amended, 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 other state or
federal law, the commission is the only entity that may adopt
or promulgate 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 health and safety in those
limited instances where state laws and regulations have not already
provided a reasonable level of public safety. It is the
further health and safety. It is also the intent
of the Legislature that this section minimize or eliminate the need
for litigation by serving as a legal guide for cities and counties on
fish and game matters, while improving local government
communication with the department.
(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 all 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, or, in the case of a charter
city, the ordinance or regulation is a municipal affair under Section
5 of Article XI of the California Constitution.
(2) 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.
(3) 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 may take
into consideration the nature of the geographic area affected by the
proposed ordinance or regulation, the impact on the taking of fish
and game, existing state and federal laws and regulations governing
the taking of fish and game and use of weapons, the number
of fish and game related safety incidents within the geographic area
in question, the degree of public access weapons, 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 apply to any areas where the taking of fish and game may take
place without endangering public health and safety.
(g) A city or county ordinance or regulation shall not
affect apply to the taking of fish and game in
any of the following areas , if the taking of fish and game
compl ies with all applicable state and federal laws,
including, but not limited to, the safety zone provisions of Section
3004, and regulations adopted by the commission :
(1) Any lands or waters owned or managed by the state or federal
government.
(2) Any private lands outside the geographical limits of a city
that are not included in the "safety zone" area described in
Section 3004. where the taking of fish and game may
occur safely.
(3) Any lands or waters outside the geographical limits of a city
where the commission or department determines that the taking of fish
and game is necessary for wildlife management, public health
and safety, or other purposes.
(4) Any private lands inside the geographical limits of a city
that are not included in the "safety zone" described in
Section 3004, where limited-range weapons or other
equipment, including shotguns, archery equipment, air rifles, or
fishing equipment, may be used to safely take fish and game.
(h) The commission, the department, or any other governmental
entity legally authorized to impact affect
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 or promulgate regulations regarding the taking
of fish and game on any lands or waters within the state. This
subdivision does not prohibit a private landowner or his or her
designee from restricting the taking of fish and game on property
that he or she owns in fee.
(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.
(k) This section does not necessarily invalidate the entirety of
any ordinance or regulation, and in determining the validity of the
provisions of any ordinance or regulation pursuant to this section
those provisions may be severable, and only those specific
geographical areas not meeting the requirements of this section shall
be affected.