BILL ANALYSIS                                                                                                                                                                                                    

                                                                  AB 815
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          Date of Hearing:   April 24, 2007

                                  Lois Wolk, Chair
                   AB 815 (Berryhill) - As Amended:  April 11, 2007
          SUBJECT  :   Hunting or fishing; local regulation

           SUMMARY  :   Prohibits a city of county from adopting an ordinance  
          or regulation within its jurisdiction that affects the taking of  
          fish or game except under narrow specified circumstances  
          relating to public health and safety.  Specifically,  this bill  :

          1)States legislative findings and declarations regarding a 1927  
            California Supreme Court decision holding that local  
            governments are prohibited from regulating or interfering with  
            the taking of fish and game, and the Legislature's delegation  
            of regulatory powers to the Fish and Game Commission over  
            hunting and fishing.  States legislative findings that hunting  
            and fishing are statistically among the safest of outdoor  
            recreational activities, and are compatible with other  
            recreational uses on many public lands and waters.

          2)States legislative intent to affirm the exclusive legal  
            authority granted to the Fish and Game Commission and the  
            Department of Fish and Game (DFG) with regard to the taking of  
            fish and game, and to ensure continued statewide control by  
            the commission and department over all fish and game matters.   
            States further legislative intent to protect public safety,  
            and to minimize the need for litigation by serving as a guide  
            for cities and counties.

          3)Declares that the state has fully occupied the field of fish  
            and game.

          4)Prohibits a city or county from adopting an ordinance or  
            regulation that affects the taking of fish and game unless:

               a)     The ordinance or regulation is necessary to protect  
                 public health and safety and that is its principal  
                 purpose; and
               b)     The ordinance or regulation only has an incidental  
                 effect upon the field of fish and game reserved to the  
                 commission or department by the Constitution.


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          5)Authorizes a city or county when complying with the above, to  
            take into consideration specified factors.

          6)Provides that no ordinance or regulation adopted by a city or  
            county that would affect taking of fish and game shall apply  
            to any areas where the taking of fish and game may take place  
            without endangering public health and safety.

          7)Prohibits any city or county ordinance or regulations from  
            affecting the taking of fish and game in any of the following  

               a)     On any lands or waters owned and managed by state or  
                 federal government;
               b)     On any private lands outside of a city's  
                 geographical limits that are not included in the "safety  
                 zone."  (The "safety zone" is defined in Section 3004 as  
                 the area within 150 yards of an occupied dwelling.);
               c)     On lands or waters outside a city's geographical  
                 limits where the commission or department determines that  
                 the taking of fish and game is necessary for wildlife  
                 management, public safety or other purposes;
               d)     Any private lands inside a city's geographical  
                 limits that are not included in the "safety zone," where  
                 limited-range weapons may be used safely to take fish or  

          8)Requires the commission, department, or any other governmental  
            entity authorized to impact taking of fish and game on  
            navigable waters held in public trust to consider the fishing  
            and hunting rights of the public guaranteed under the  

          9)Provides that unless otherwise expressly authorized by law,  
            the commission is the only entity authorized to adopt or  
            promulgate regulations regarding the taking of fish and game  
            on any lands or waters within the state.  Further provides  
            that this subsection shall not inhibit a private landowner or  
            designee from restricting the taking of fish and game on  
            property owned in fee.

          10)Authorizes a city or county to consult with DFG.

          11)States that nothing in this section shall be construed to  
            invalidate an ordinance or regulation in its entirety, and  


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            only those specific geographic areas that do not meet the  
            requirements of this section shall be affected.

           EXISTING LAW  :

          1)Authorizes the Legislature, in the California Constitution, to  
            delegate to the Fish and Game Commission powers relating to  
            the protection and propagation of fish and game.  The  
            Legislature, by statute, has delegated to the Fish and Game  
            Commission the power to regulate the taking or possession of  
            fish and game, in accordance with state fish and game laws.   
            The California Constitution also guarantees the right to fish  
            on the public lands and waters of the state and prohibits laws  
            to impede access to these lands for the purpose of fishing.

          2)Gives local governments authority, under the California  
            Constitution, to make and enforce within their limits all  
            local, police, sanitary and other ordinances and regulations  
            not in conflict with general law.

           FISCAL EFFECT  :   Unknown costs to DFG and the Fish and Game  
          Commission to review and analyze local ordinances if  
          consultation is sought by the local jurisdiction.

           RELATED LEGISLATION  :  AB 2146 (Canciamilla) of last session was  
          substantially similar to this bill, except that AB 2146 only  
          applied to local ordinances adopted on or after January 1, 2007,  
          whereas this bill would apply to existing as well as future  
          ordinances.  This bill also adds some provisions not included in  
          AB 2146, such as the provision which provides that no ordinance  
          or regulation of a city or county that would affect the taking  
          of fish and game shall extend to any areas where hunting and  
          fishing may take place without endangering public health or  
          safety, and the provisions limiting local ordinances from  
          affecting the taking of fish and game on private lands.  AB 2146  
          passed the Assembly Water, Parks & Wildlife Committee based on  
          an agreement that the sponsors would work with the League of  
          California Cities to address their concerns with the bill.  AB  
          2146 was subsequently held in the Senate when interested parties  
          agreed to negotiate over the Fall interim.  

           COMMENTS  : 

           1)Author's Statement  :  According to the author, the purpose of  
            this bill is to ensure comprehensive, biologically-based  


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            control over the management of fish and game by keeping local  
            governments from regulating fish and game matters unless  
            legitimate public safety reasons require otherwise.  Other  
            purposes include preventing duplicative or contradictory game  
            regulations, encouraging greater communication between local  
            governments and DFG, and maintaining hunting and fishing as  
            incentives for private landowners to enter into conservation  
            easements or other habitat protection agreements.  The author  
            cites examples of local ordinances adopted by cities and  
            counties which restrict the otherwise legal taking of fish and  
            game in areas where the author and sponsors do not believe  
            these activities are creating a public safety threat.   
            Examples cited by the author include the City of Hercules  
            which has an ordinance which prohibits discharging a firearm  
            within the city limits, and an ordinance adopted by the County  
            of Placer which prohibits possession or discharge of a firearm  
            over unincorporated parts of the county.

          With regard to the City of Hercules ordinance, the city  
            indicates that when increased development occurred in the city  
            near the shoreline, the city interpreted the ordinance to  
            extend to prohibit hunting offshore in San Pablo Bay.  After  
            discussions with the Fish and Game Commission the city was  
            convinced that they did not have jurisdiction to enforce the  
            ordinance against waterfowl hunters offshore in the bay who  
            were not posing a threat to residents on shore given the range  
            of the weapons they were using, and are no longer enforcing  
            the ordinance offshore in the bay.

          The author asserts that this bill will provide needed clarity  
            for local governments by clarifying state preemption over fish  
            and game, while allowing local governments to pass ordinances  
            if they are both necessary to protect public health and safety  
            and only incidentally impact fishing and hunting.

           2)Legal background  :  Local ordinances are invalid if they  
            attempt to impose requirements in a field that is preempted by  
            state law.  Local ordinances may be preempted where the  
            Legislature adopts a general scheme for regulation that  
            indicates an intent, expressly or impliedly, by the state to  
            occupy a particular field to the exclusion of local laws.   
            (See In re Lane, 58 Cal.2d. 99, Pipoly v. Benson (1942) 20  
            Cal.2d. 366, and Sherwin-Williams Co. v. City of Los Angeles  
            (1993) 4 Cal.4th 893.)  The California Constitution, Article  
            XI, Section 7, gives local governments broad police powers.   


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            The California Constitution, as amended in 1902, also provides  
            that the Legislature may provide for the division of the state  
            into fish and game districts and may enact such laws for the  
            protection of fish and game as it deems appropriate.  The  
            California Supreme Court in In re Makings (1927) 200 Cal. 174  
            held that the purpose of this amendment was to take from local  
            authorities the right to regulate fish and game and to invest  
            such power exclusively in the state.

          In a 1986 opinion, the Attorney General analyzed both of these  
            constitutional provisions and opined that a county may by  
            ordinance adopt laws regulating certain methods of hunting  
            within its jurisdiction where such action is necessary to  
            protect public health and safety, and where the local  
            ordinance only incidentally affects the field of hunting.  The  
            particular ordinance in question banned steel-jawed leghold  
            traps.  Attorney General opinions are persuasive authority but  
            not binding on courts.

          The Attorney General opinion relied in part on the reasoning of  
            the Court of Appeal in People v. Mueller (1970) 8 Cal.App.3d  
            949.  The court in that case found a local ordinance  
            regulating fishing to be valid, and held that if the primary  
            purpose of the ordinance is the protection of public health  
            and safety, and the ordinance affects hunting and fishing only  
            incidentally, the ordinance is a valid exercise of the local  
            police power.

          The author's background information also references a recent  
            unpublished opinion, Cal. Bowman Hunters State Archery Assn.  
            v. City of Burbank, in which the court upheld the city's  
            ordinance prohibiting the use of bows and arrows in city  
            limits.  The author correctly notes that this ruling, which  
            the California Supreme Court declined to review, can not be  
            cited as legal authority in other cases since it was  

           3)Are Subsections (g)(2) and (4) overly broad or necessary?:    
            Subsection (d) of this bill clarifies that local ordinances  
            which affect fish and game are preempted unless the local  
            ordinance is both: (a) necessary to protect public health and  
            safety and has protection of public health and safety as its  
            primary purpose, and (b) only incidentally affects the field  
            of fish and game.  Subsections (g)(2) and (4) go beyond these  
            parameters to further prohibit local ordinances that affect  


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            the taking of fish and game on private lands outside the  
            "safety zone" of 150 feet from occupied dwellings, whether or  
            not the local agency believes the ordinance is necessary for  
            public health and safety and only incidentally affects fish  
            and game.  For example, an ordinance that prohibited the  
            discharge of a firearm on private lands within city limits  
            would be preempted under subsection (g)(4) to the extent it  
            applied outside the "safety zone" of 150 yards from occupied  
            buildings where limited range weapons could be used to safely  
            take fish and game.  Whether such weapons could be safely used  
            to take fish and game within city limits may be subject to  
            debate depending on the circumstances, and a local  
            jurisdiction may argue that it is within their police powers  
            to prohibit the use of such weapons within city limits for  
            public health and safety reasons.  

          An ordinance that prohibited discharging of a firearm for public  
            safety reasons on private lands outside city limits and more  
            than 150 feet from an occupied dwelling would be preempted  
            under subsection (g)(2) of the bill.  In many communities  
            there are areas where unincorporated private lands abut  
            developed areas or areas where the public has access for  
            hiking or bicycle riding, and the discharge of long range  
            firearms could pose a public safety hazard.  Proponents of  
            this bill point out that such concerns may be addressed by  
            existing Fish and Game codes or regulations that prohibit, for  
            instance, negligent discharge of a firearm or prohibit the  
            discharge of firearms over roads or other public ways. 

           4)Support:   Supporters of this bill assert that it will help  
            ensure that California follows a science-based, comprehensive  
            approach to its fish and game laws, facilitate better  
            regulatory compliance with fish and game rules, provide  
            statutory guidance for local governments that have no legal  
            background or biological expertise on such issues, and  
            encourage greater communication between local governments and  
            DFG.  Supporters also argue that state control over fish and  
            game will ensure statewide management rather than parochial  
            local control.  Some supporters also note that while affirming  
            the state's control over fish and game matters, this bill also  
            protects the rights of private landowners to determine whether  
            to allow fishing and hunting on their own properties.  This  
            bill will also encourage private habitat conservation, since  
            the opportunity to hunt and fish is a prime motivation for  
            landowners to protect wildlife habitat, particularly wetlands  


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           5)Opposition:   Opponents of this bill believe cities and  
            counties should retain the right to determine activities  
            within their jurisdiction according to their best judgment and  
            local preferences.  The Animal Protection Institute asserts  
            that this bill would shift the balance of power between local  
            governments and the state Fish and Game Commission.  In  
            particular they are concerned that this bill would prohibit a  
            local government from adopting an ordinance to prohibit the  
            setting of traps in local communities where they might  
            seriously injure or kill family pets, and pose a hazard to  
            young children.   They cite examples of local ordinances on  
            trapping they fear could be preempted by this bill.  They  
            argue that the bill limits local government's exercise of  
            police power beyond mere codification of existing case law,  
            and will have a chilling effect on local government's exercise  
            of police powers for the protection of public safety and  
            property.  API further asserts that this bill, by declaring  
            the state has fully occupied the field, could serve to  
            invalidate local ordinances previously upheld by the courts.    
            The Urban Wildlands Group of Los Angeles is concerned that the  
            bill would limit the ability of cities and counties to protect  
            their citizens, pets and wildlife, and asserts that the courts  
            have been able to appropriately resolve previous conflicts.     

           6)Concerns:   The League of California Cities, while not opposing  
            this bill, has raised several concerns, including that some of  
            the language of the bill is fairly broad and could limit the  
            authority of cities to adopt ordinances to protect the public  
            health and safety.  While the League recognizes the state's  
            role over fish and game, they point out that cities need to  
            retain the authority to protect the public based on local  
            needs.  They also believe that the need for this legislation  
            has not been demonstrated.  Specific concerns the League  
            raises include a concern that the language in subsection (g),  
            which prohibits a local ordinance from affecting the taking of  
            fish and game in several areas, may expose local jurisdictions  
            to liability, because there is no guarantee that a local  
            ordinance to protect public health and safety will absolutely  
            not have an unintended impact on hunting and fishing in these  
            areas.   Some of the concerns raised by the League may have  
            been addressed by the April 11th amendments.  


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          The Regional Council of Rural Counties similarly is concerned  
            that this bill include language clarifying the authority  
            delegated to cities and counties to regulate for the  
            protection of both public health and safety.  It is unclear  
            whether the April 11th amendments address these concerns.       


          Butte Sink Waterfowl Association, Inc.
          California Animal Association
          California Council of Land Trusts
          California Deer Association
          California Houndsmen for Conservation
          California Outdoor Heritage Alliance
          California Rice Commission
          California Rifle and Pistol Association, Inc.
          California State Pipe Trades Council
           Support - continued  

          California Trout
          California Waterfowl Association
          Federation of Fly Fishers, Northern California/Nevada Council
          Golden Gate Fishermen's Association
          Lower Sherman Island Duck Hunters Association
          Mountain Meadows Conservancy
          Mule Deer Foundation
          National Rifle Association of America
          Nevada County Sportsmen, Inc.
          Outdoor Sportsmen's Coalition of California
          Recreational Fishing Alliance
          Safari Club International
          Suisun Resource Conservation District
          The California Sportsman's Lobby, Inc.
          U.S. Sportsmen's Alliance
          Quail Unlimited, Orange County and Santa Clarita Chapters
          Z-Tech Sales Inc.
          Over 30 individuals

          Animal Place


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          Animal Protection Institute
          Animal Switchboard
          California Animal Association
          California Federation for Animal Legislation
          Last Chance for Animals
          League of Humane Voters - California Chapter
          People for the Ethical Treatment of Animals (PETA)
          The Humane Society of the United States
          Urban Wildlands Group, Inc.
          Several individuals

           League of California Cities
          Regional Council of Rural Counties
          Analysis Prepared by  :    Diane Colborn / W., P. & W. / (916)