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 furtherhealth 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 accessweapons, 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 affectapply 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 impactaffect 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.