BILL ANALYSIS                                                                                                                                                                                                              1

          |                                                                 |
          |                Senator Darrell Steinberg, Chair                 |
          |                    2007-2008 Regular Session                    |
          |                                                                 |

          BILL NO:  AB 815                   HEARING DATE:  July 10, 2007
          AUTHOR:  Berryhill                 URGENCY:  No
          VERSION:  June 27, 2007            CONSULTANT:  Bill Craven
          FISCAL:  Yes                       
          SUBJECT:  Hunting or fishing: local regulation.
          The state constitution authorizes the Legislature to delegate to  
          the Fish and Game Commission the power to protect and propagate  
          fish and game. The Legislature delegated this responsibility to  
          the Commission which must act in accordance with state fish and  
          game laws. The constitution also guarantees the right to fish on  
          public lands and waters of the state and prohibits laws to  
          impede access to these lands for the purpose of fishing. 

          The constitution confers on local governments the authority to  
          make and enforce, within their jurisdictions, ordinances to  
          provide police, sanitary, and other public welfare protections  
          that do not conflict with general law. 

          PROPOSED LAW
          This bill makes several findings regarding the Legislature's  
          jurisdiction over fish and game matters that cite case law,  
          Attorney General opinions, and the state constitution. 

          This bill would explicitly prohibit a city or county from  
          adopting an ordinance or regulation that affects the taking of  
          fish and game within its jurisdiction unless the ordinance or  
          regulation is within the police powers of the local government,  
          does not conflict with general laws, has as its principal  
          purpose the protection of public health and safety, and has only  
          an incidental effect upon hunting and fishing. 

          This bill would also allow, but not require, a review of the  
          validity of any local ordinance or regulation that affects the  
          hunting and fishing to be undertaken in light of the following  


          factors: the nature of the geographic area affected by the  
          ordinance; the method, manner, and season in which the taking of  
          fish and game occurs; the effect of any take on fish and game;  
          existing state and federal hunting and fishing regulations; the  
          degree of public access to the area; and the effective range of  
          weapons used to take fish or game. 

          Local ordinances would be prohibited if they affect lands owned  
          or managed by the state or federal government, private lands  
          outside the geographical limits of a city where hunting and  
          fishing may safely occur; and private lands inside the  
          geographical limits of a city where limited hunting and fishing  
          may safely occur, taking into account any restrictions on  
          equipment that are intended to protect the public; and areas  
          where hunting and fishing may occur without endangering public  
          health and safety. 

          The bill also directs that the Fish and Game Commission consider  
          the public's access to navigable waters and the right to hunt  
          and fish when promulgating regulations and the bill designates  
          the commission as the only entity in the state authorized to  
          adopt or promulgate regulations regarding hunting and fishing.  
          Private property owners are entitled to restrict hunting and  
          fishing on their property.

          According to the author, this bill would clarify that the state  
          has largely preempted the field of fishing and hunting  
          consistent with the state constitution, case law, existing  
          statutes, and opinions of the Attorney General. The bill would  
          also define the limits of local ordinances and provide guidance  
          to assess the validity of those ordinances. 

          Supporters of this bill, largely hunting and fishing  
          organizations, believe that this bill simply codifies the  
          existing constitutional and decisional law, while also providing  
          the encouragement that many private landowners need to continue  
          their efforts to restore habitat and wetlands and provide  
          hunting and fishing access without the difficulty of dealing  
          with a patchwork quilt of local government ordinances. 

          Opponents contend that the bill usurps local control by altering  
          the balance of shared state-local power. The central opposition  
          argument is that while the state has the authority to establish  
          fundamental wildlife policies, including hunting and fishing  


          regulations, that are consistent across the state, that local  
          jurisdictions have long had the flexibility to adapt those  
          policies and regulations to address local wildlife issues. Many  
          in the opposition prefer what they call the existing state-local  
          "partnership" that they believe has created effective policies  
          for long-term wildlife management. 

          The example used by some of the opposition are the alleged  
          activities of nuisance wildlife control operators who use  
          Conibear traps and snares to capture animals that come into  
          conflict with people. These devices, which are non-selective,  
          may capture non-target animals including household pets. Local  
          ordinances have been enacted that limit or ban the use of traps  
          within their jurisdictions. The opposition is concerned about  
          the proposed bill's effect on such ordinances, should it become  

           Author response  . While the author is aware of a small number of  
          local ordinances, he believes that they would be validated  
          either under the provision in the bill that prohibits hunting  
          within the 150 yard "safety distance" codified in Section 3004  
          of the Fish and Game Code, or pursuant to the provisions that  
          authorize local ordinances necessary to protect public health  
          and safety. Examples of such ordinances are those that prohibit  
          hunting within certain distances to streets or roadways. 

          The author also suggests that the severability clause would  
          allow those portions of local ordinances that do not conflict  
          with this bill to continue in full force and effect should this  
          bill become effective.  

          The author and sponsors believe that the proper forum for  
          considering additional limitations on hunting and fishing is the  
          Fish and Game Commission. The Commission has adopted several  
          regulations that either limit the types of weaponry or the  
          allowable take in various jurisdictions. 

           Opposition Concerns  . Local ordinances prohibiting Conibear traps  
          are simply not regulations of hunting and fishing. The  
          opposition also points to a provision in existing law by which  
          the Commission notifies counties of proposed antlerless deer  
          hunts and, upon receipt of that notice, counties may opt out of  
          an antlerless deer hunt authorized by the commission. This  


          statute, Section 458 of the Fish and Game Code, does not stand  
          for the proposition that counties can regulate hunting. In fact,  
          by its own terms, that statute affirms that hunting regulations  
          are made at the state level. 
           Legal History  In Matter of Application of Cencinio (1916) 31  
          Cal.App.238, 244, the court held that the effect of Article IV,  
          Section 25 1/2 of the Constitution was to remove whatever powers  
          cities and counties had exerted over fish and game matters and  
          delegate these powers exclusively to the Legislature. This  
          interpretation was also upheld by the California Supreme Court  
          in In re Makings (1927) 200 Cal. 474, 477-478.

          In the case of People v. Mueller (1970) 8 Cal.App.3d 949, the  
          court found that the state does not preclude local legislation  
          that is enacted for public safety when that local legislation  
          only incidentally affects the preempted area. The Attorney  
          General, in a 1987 opinion ((No. 86-607), points to People v.  
          Mueller to support his opinion that a county may adopt an  
          ordinance dealing with hunting so long as its principal purpose  
          is to protect public health and safety and where the ordinance  
          only incidentally affects the field of hunting. Attorney General  
          opinions are considered persuasive authority but are not binding  
          on courts.

          The only opposing authority of which staff is aware is an  
          unpublished opinion that has no precedential value. In a case  
          from the city of Burbank, the Court of Appeals concluded that a  
          ban on bow and arrow shooting was not preempted by California  
          law and was for public safety purposes, a rationale that would  
          be allowable pursuant to this bill, should it become law. 

          Amendments. Staff suggests a series of technical amendments  
          prior to proposing one substantive amendment. 

             1.   The substantive provisions of the bill, beginning on  
               page 3 at line 12, should be placed in a new Section 2 that  
               follows the findings and declarations. 

             2.   Page 3, line 21, change "or" to "and."

             3.   Page 4, line 7, delete the word "proposed."

             4.   Page 4, line 19. Delete "shall still comply" and replace  
               with "complies." 


             5.   Page 5, line 13. Delete "at the time." 

             6.   The provisions of the bill that contain the factual  
               factors to be considered in reviewing the validity of a  
               local ordinance should follow the provisions that contain  
               the legitimate considerations that may justify such  
               ordinances. This can be accomplished by switching the order  
               of subdivisions (e) and (f). 

             7.   Subdivision (i) should be merged into the findings on  
               page 3, line 11. 

             1.   Some opponents contend that this bill could limit  
               otherwise lawful ordinances that restrict or ban hunting  
               and fishing while restoration or renovation activities are  
               occurring at publicly-owned facilities.  As written, the  
               bill restricts local ordinances to situations that are  
               specifically limited to protect public health and safety.  
               It is possible, that as drafted, a local ordinance could  
               prohibit fishing at a facility owned by a local government  
               during a period of habitat restoration. To alleviate this  
               concern, the bill should be amended on page 3, line 26 to  
               authorize local ordinances that protect "public health,  
               safety  and public property  ." 

          Audubon California
          Badger Johns
          Broadway Bait Rod and Gun
          Butte Sink Waterfowl Association, Inc.
          California Council of Land Trusts
          California Deer Association
          California Rice Commission
          California Rifle and Pistol Association
          California State Pipe Trades Council
          California Trout
          California Waterfowl Association
          Cliffs Marina
          Delta Bait and Tackle
          Elkhorn Bait and Tackle
          Great Outdoors


          Lower Sherman Island Duck Hunters Association
          Mountain Meadows Conservancy
          Mule Deer Foundation
          National Rifle Association of America
          Northern California Council, Federation of Fly Fishers
          Recreational Fishing Alliance
          Romeo's Bait and Tackle
          Sportsmen's Council of Central California
          Suisun Resource Conservation District
          16 Individuals

          Animal Protection Institute
          California Animal Association
          California Federation for Animal Legislation
          The Humane Society
          1 Individual