BILL ANALYSIS
AB 815
Page 1
Date of Hearing: April 24, 2007
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
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
areas:
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
game.
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
Constitution.
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
unpublished.
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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conservation.
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.
REGISTERED SUPPORT / OPPOSITION :
Support
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
Opposition
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
Concerns
League of California Cities
Regional Council of Rural Counties
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096